6 posts tagged “australian law”

As a bit of a geek about such things, I have been finding this issue about the constitutionality of the Urgent Relief for Single Aged Pensioners Bill 2008 (link takes you to the Bill's Parliamentary Library homepage) an interesting one.

Section 53 of the Constitution states

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.

On the face of it, and certainly in the opinion of the Government and, yesterday, the Clerk of the House of Representatives, it seems pretty clear - the Bill appropriates the amount of $30 per week to be added to the pension rate of single pensioners and aged veteran pensioners.

But... Harry Evans, Clerk of the Senate has a point when he says -

HARRY EVANS: Well, what the Constitution says is that a bill appropriating money can't be initiated in the Senate. This Bill doesn't appropriate any money, the Social Security Administration Act appropriates an unlimited amount of money of indefinite duration for all future pension increases, so the money is already appropriated by that provision in the Act.

ALEXANDRA KIRK: So if the Government maintains its unconstitutional and the Bill won't make it to be debated in the House of Representatives, you don't think that is right?

HARRY EVANS: Well, I mean obviously the claim that it's unconstitutional is not the real reason why it won't be debated in the House of Representatives. The real reason is that the Government has the control of the House of Representatives and will stop it from being debated there because it doesn't approve of the Bill.

But unfortunately in these sort of situations, bizarre new constitutional doctrines are always being invented to cover what is really a political decision and, you know, they should be openly represented as political decisions rather than seeking some pseudo legal argument for them.

The key point is that the Social Security (Administration) Act 1999 provides for the appropriation of public revenues for providing payments under the social security law.  You can amend the Social Security Act 1991 to increase payments, get rid of payments etc etc etc.  So the Opposition's Bill isn't a problem - if it was creating a new payment then yeah, it probably would be unconstitutional as it would be appropriating money not currently provided for under the Social Security (Administration) Act 1999.  Hope that makes sense.

The Bill itself is pretty straightforward, maybe a little bit clumsily worded, though as a nerd I'll note that the title isn't right (strictly speaking it should be the Social Security and Veterans' Entitlements (Urgent Relief [etc]) Amendment Bill 2008). 

As Harry Evans notes above, this really is simply a political issue.  Plain old cynical politics on the part of an Opposition who showed a marked disinclination to substantially increase fortnightly payment rates while they were in office, preferring instead to use election-timed one-off payments to pensioners in the form of Utilities Allowance and Telephone Allowance lump sum increases. 

And the move by the Government to kill it off through a technicality is, of course, an example of the same kind of hollow thinking.  Better to try getting rid of the issue through procedure than actually knocking it out using the House of Representatives majority, which simply isn't a good look for the government from any angle bar "responsible and reasoned government" - and how many punters find that works for them?

Update Wednesday arvo:  Mere moments after writing this up I read Bernard Keane's piece over at Crikey about this where he provides a link to the advice of Ian Harris, Clerk of the House of Representatives.  It appears that I may be mistaken given Parliamentary standing orders about Bills of this nature - I've been meaning to pick up a copy (seriously) and might do so next time I go to Parliament House.  Should maybe cut the monster-moo loose through the place just for a laugh.

I guess that really, this episode is also another example of the tensions that exist between the two parts of our Parliament about the functions and powers of each house.  A tension that, recalling my reading of the Constitutional debates of the 1890s, could well be considered to have been deliberately created as it contributes towards overall accountability and, hopefully, better governance for all of us.  There are good reasons why Australian democracy has been so comparatively stable over the past 107 years, and the design of our system of government is a key one.

Interesting articles around the place about the appointment of Federal Court judge Justice Robert French.  Looks like he'll be a measured sort of judge, "black letter" in terms of legislative interpretation while still having a strong appreciation of the role of law more broadly.  Here's a link dump to articles:

Mark Davis in the SMH;

Richard Ackland in the SMH (recommended);

Michael Pelly in The Australian; and

Chris Merritt in The Australian (also recommended).

As I've recently become the sort of nerd who keeps an eye out for interesting decisions from the High Court, I'm kinda looking forward to seeing French's decisions once he takes up the post.

Just submitted 4,031 words on an analysis of the fees and charges regime under Commonwealth freedom of information law, with a particular focus on the reasoning of the Administrative Appeals Tribunal in Peatling and DEWR [2007] as regards to the countervailing consideration of a commercial or other benefit that may be gained from the release of government documents into the public domain.  I'm, like, totally an expert now.  Or somefink. 

Still with me?  Of course you are.  It was two weeks late but I had it covered by an extension due to illness, still it was a prick of a thing to write.  Not least when I realised at 9am this morning that the word length was actually 500 less than I'd thought. 

The thing I tend to do for essays is overprepare (might be that part of me actually likes writing them), so the evolution usually goes something like this:

1. Research the absolute crap out of the topic online and at the extensive resources of the Australian National University Law Library.  This is usually the point when I realise that I happen to have chosen a topic that virtually nobody else in Australia has.  Happened last year when I had to come up with 3,500 words on how you might assess and improve the quality of administrative decisions, and kind of happened again here with the FOI topic which is why I had to delve into a little case law.  And I wouldn't normally do that unless I had to, but in all frankness I suspect there was a little bit of ego here due to a link I have to the decision itself.
2. Using whatever I've managed to pull together, spend at least 5 or 6 solid days writing up notes and following various rabbits down various holes that the research throws up.
3. Type up all the quotes and get the referencing niceties done and down at this point.
4. Structure the notes and quotes into the shape I want.  The first draft of this for the FOI essay clocked me in at 9,500 words.  Crazy. 
5. Look at the structure again, throw my hands up in the air dramatically several times and have another couple of cracks at it before realising yes, time is getting on and I really should be knuckling down.
6. Draft 2 - knocking it into shape, in this instance I managed to get it down to about 5,900 words.  At this point I note that there's undoubtedly some really interesting material there but hard decisions have to be made about tangents.
7. Draft 3 - glance at the assessment requirements this morning and see that I need to lose about another 900 words to get it to the limit, otherwise I'm facing mark penalties.  Time to have a long look at the legislative analysis (where I tend to be a little enthusiastic anyway) and do some pruning.
8. Stress over the way I've written the introduction and conclusion before just getting it sorted out, then spend about an hour dicking around with the formatting and getting it as purty as it's meant to be for the marker.

So that's that.  And now I've got three weeks and counting to write up another 4,000 words about a privacy law issue. 

And so what have I chosen to write about?  The privacy implications associated with the exchange of information between the Job Network and Centrelink, which, you guessed right, it appears that no academics have really considered in any great detail before.  If it's good enough... I should consider doing a little more work and adaption and then see if I can get it published in a social studies or policy journal somewhere...

In my favour, both K and The Boy are down in Melbourne this week leaving me free to work away without getting distracted by nappy changing, singtime and feeding shenanigans.  In fact it feels a little weird, it's been a while since I've had a break like this and will probably be a while before I get another one.  The plan is that once I knock off this essay then it's all about K as she completes three more subjects in her Masters between August and February to finalise it all, with me then looking to do one subject per semester in 2009 to finish mine. 

And then, finally, we'll have our weekends free to spend time together as an actual family, not to mention being able to spend time with friends.  So what's that, a year and a half or so away?  Ok.  A year and a half away.  Less if you think positive and count all the mid-semester breaks and whatnot.  And I wish I could say after that that I'll never study again, but there's already a part of me thinking about a grad dip in something like ethics or political science in another 10 or so years, just to keep my brain active and engaged in that sort of space.  But that's much longer term, just need to grind through the next 18 months first... 

The issue of monetary compensation for the damage caused to individuals and families, as a result of the child removal policies of previous governments, appears to be difficult for many Australians to process.  We are, broadly speaking, perhaps very broadly speaking, supportive of the need for an acknowledgement of past wrongs.  But I can't help wondering if the idea of "giving more cash to blackfellas" is one affected by Hansonesque notions of indigenous Australians currently receiving more government benefits and handouts than "ordinary Aussies". 

The Federal Minister for Indigenous Affairs, Jenny Macklin, has already ruled out a compensation fund being set up -  

An inquiry into the Stolen Generations recommended reparations be made but Indigenous Affairs Minister Jenny Macklin has ruled out compensation as part of an apology.

"What we will be doing is putting the funding in to health and education services, and providing additional support for services needed for counselling, to enable people to find their relatives," she said.

"We think the best way to give force to the apology is to provide funding to close the gap in life expectancy between Indigenous and non-Indigenous Australians."

"So we won't be creating a compensation fund."

But there's no reason why the states and territories couldn't set up their own - Tasmania already has, for example -

It is the only state to offer a compensation scheme and Premier Paul Lennon is urging other government's to follow Tasmania's lead.

Mr Lennon says the 106 people will be compensated for being taken from their families.

"The Aboriginal children who were taken from their parents, for no other reason than the fact they were Aboriginal, were denied the right that children shouldn't have to argue for in our community, and that is right to be bought up in a family," he said.

There was also a significant case before the Supreme Court of South Australia last year, Trevorrow v State of South Australia, which determined that the state was liable for damages caused by failing to heed the advice of the Solicitor-General about the removal of indigenous children.  It's a long decision (1,240 paragraphs) so probably for legal geeks only, but here's an excerpt from the conclusion reached by Justice Gray -

1233	I am satisfied that the conduct of the State, amounting to misfeasance in public office, together with the false imprisonment of the plaintiff, has been a material cause of the plaintiff’s long-term depression. It was this conduct that ruptured the bond between the plaintiff and his mother and natural family. The breaches of duty of care that occurred were also a material cause of his depression and other losses. Those losses include the loss of his Aboriginal identity. Although there may have been other contributing causes, the conduct of the State was a material contributing cause.
1234	In the result, the State is liable to the plaintiff in respect of misfeasance in public office, false imprisonment and breaches of duty of care both in regard to his removal, placement and return. The misfeasance in public office and false imprisonment occurred in circumstances where the State acted deliberately and unlawfully and in circumstances where it was reasonably foreseeable that there was a risk of harm. The same damages are recoverable as a consequence of the common law causes of action for breach of duty.
1235	Where it is clear that a plaintiff has suffered loss the court should do its best to place a dollar value on that loss notwithstanding the paucity or absence of evidence. The court is not permitted to abandon the task through want of evidence, but a discretionary judgment should be formed.

 From what I remember and have read in one of the news articles linked to above, a case brought before the High Court of Australia in 2000 failed to get started as too much time had elapsed.  But the decision above, to me, highlights that legal remedies may be available, but it'd be a whole lot easier for everybody if we saved money on the legal fees and put it into an actual fund instead.  It's difficult to determine amounts, I know, but I remain confident that we're cluey enough to be able to work out a scheme that is fair and reflective of community expectations.

Ok, long post already.  Might do a part 4 instead about Australia Day to finish this up.

[Update 30 January] Last night, ABC Radio National's Australia Talks programme considered this issue as well and it's well worth a listen.  Go here to download the whole show. 

I've spent today researching the Australian Constitutional Conventions held in Adelaide, Sydney and Melbourne in 1897 and 1898.  In the course of trawling through the text I came across this statement by Isaac Isaacs, later Sir Isaac Isaacs, Chief Justice of the Australian High Court and the first Australian-born Governor-General, on April 21st 1897 -

We should be careful to do all that is possible to separate the personal interests of a public man from the exercise of his public duty. We should bear in mind that it is not only important to secure that so far as we can in actual fact, but, in every way possible, we should prevent any appearance of the contrary being exercised.

A few things I thought I'd share, could be a bit of a long one though so I hope you can stay with me....

Newspoll:  The latest newspoll was released earlier this week and it showed that the ALP's lead over the Coalition Government is starting to firm up a little, and that they're making ground on the issues of national security (which should continue in light of recent news) and economic management.  I find that the OzPolitics blog has the best summary of all the polling data, so take a look here for the analysis of this latest poll and here for a full range of info.  While you're there you could try the political test as well to see where you fall in the left-to-right spectrum.  No prizes for picking where I might sit, it's all too easily given away.

OzPolitics also has a summary of the latest odds from the bookmakers, which the likes of economist Andrew Leigh and Mumble like to analyse.  Come to think of it, I think just before the election I'll do a big post about the range of bloggers out there dealing specifically with Australian politics, from the far left to the far right as well as electoral analysts and the like.

Before I finish this topic I'll also note an article by Paul Kelly in yesterday's Australian about the poll and its implications for Rudd ("K-Rudd"?) and Labor -

For Labor, this means avoiding its fatal mistake of 2001 and 2004 - assuming that its current 46-41 primary vote polling lead over the Coalition is a solid vote.  It isn't.  It's a sign of goodwill towards Rudd.  Nothing more.  It is not a genuine vote and no dreaming by Labor will make it a genuine vote.

David Hicks:  Did anyone else catch Tuesday night's Insight program on SBS?  I figured it would be the kind of thing that would make me want to throw a brick at the tv and tried to stay away.  Sure enough though, curiosity got the better of me and I flicked over only to see the following exchange -

PHILIP RUDDOCK:  In relation to the American system -

JENNY BROCKIE:  But the American system was declared unlawful.  This whole process was declared unlawful.

PHILIP RUDDOCK:  In an appeals process in which all the courts up to that time upheld it and it was when it went to the Supreme Court that it was found to be flawed.

JENNY BROCKIE:  But it was found to be flawed.

PHILIP RUDDOCK:  I think it was an arguable issue.

JENNY BROCKIE:  But the Supreme Court made its decision.  You're a lawyer, the Supreme Court made its decision, are you saying that they were wrong?

PHILIP RUDDOCK:  Jenny, I'm saying that when you look at the government of the US relying upon that system it had the backing of all the courts that had dealt with the issue up to that time, and it was found to be flawed when it was ultimately before the Supreme Court.  That's the only point I was making.

...at which point I was reaching for something, anything.  Let's be clear about what he said - the Supreme Court is just one decision, all the other courts said that everything was just hunky-dory so we should focus on those more.  Like, gee, can't you just go cuddle puppies or something?

See also Daryl Mason's post at the Road to Surfdom about the program -

The loudest laugh from the audience, a laugh full of contempt and disbelief, came when Ruddock said the Australian government had never been happy with the time it had taken for Hicks to firstly be charged and then for the military trial rules to be finalised and accepted by the highest court in the United States.

They laughed because they know the Howard government only changed its tune on Hicks once it became clear that his five year long detention, without trial, was the sort of "fair go" issue that could hammer Howard hard at the 2007 federal election.  They changed their tune when the polls showing almost 70% of Australians were not happy with Howard on the issue of David Hicks told them they had no choice.

I'll just say he's one of ours, he's entitled to a trial, not giving him access to basic rights is undermining hundreds of years of law, so let's just bring him home.  Flame away if you disagree with me, I'm just calling it like I see it.

On recent comments by Justice Kirby of the High Court:  A predictable attack piece by Brad Norington Chris Merritt at the Australian followed news of comments made by Justice Kirby at Tuesday's session of the High Court hearing argument about the control order issued against Jack Thomas.  Here's part of the news article -

Mr Bennett cited nine reasons why Australia was more vulnerable to terrorist attack than when the Constitution was framed, including the terrorist attacks on the US of September 11, 2001.

But Justice Kirby replied: "Yes, but the Americans, with all respects, have become obsessed with September 11.

"This is not an even that occurred in this country, and I think we have to keep our eye on the threats to Australia" he said.

Justice Kirby added that more people died every day from the disease AIDS than died in September 11.

According to the UN, 7761 people died from AIDS-related illness across the globe in 2005.

It'll be interesting to see Justice Kirby's judgement when it's made, though I don't think the comparison will be included.  I think he's just getting to the point of why the attack is being used as part of the foundation for the Government's argument that the control order is justified and is a reasonable restriction on Mr Thomas' personal liberties.  I reckon I'll have a close look at the decision when it's made and share the main points.

Anyway, here's a part of the attack piece that followed the news article, quite hyperbolic stuff -

What we saw yesterday was a glimpse of a judge who is out of touch.  Kirby clearly had no idea that his words would inflict such hurt.  If this sort of thinking were confined to one man in Canberra, it could easily be dismissed.  That, after all, is how his colleagues on the High Court treat him.

Like I said, entirely predictable.  I half expected it to include something like "Oh, and did you know he's gay?!".  The piece also obliquely referred to this article in Friday's Sydney Morning Herald about an annual analysis of High Court decisions by a couple of academics -

The High Court is split.  On one side is the great dissenter, Michael Kirby, who outdid his own record, disagreeing with the court's decision in every second case he heard last year.  On the other side is everyone else.

The table there is interesting, and it also reminds me of something I read in an ABC Radio National Law Report transcript the other day -

[Justice] Kenneth Hayne: ….What I think needs to be borne in mind though is first that the Court does not set its own agenda, the Court deals with cases that are brought to it. In that sense the Court has to react to the issues of the moment.

 

The second thing that I think you need to bear in mind is that problems when they get to the High Court are of their very nature problems about which reasonable minds might differ. If the case admitted of only one answer, it should have been dealt with finally elsewhere in the system. So the problems we confront are problems that are disputable, problems, as I say, about which reasonable minds might differ.

 

Damien Carrick: The work of a High Court Judge, it's intensely intellectual, constantly you're dealing with vast amounts of new, complex, legally technical information. It must require some stamina.

 

Kenneth Hayne: It's a marathon, it's not a sprint. You are faced with an unremitting workload, that's true. But in a sense, that's where the rewards in the work are to be found. Yes, you are facing new, difficult, complex intellectual challenges in almost every case, and when you get to an answer in one case, well there is still the next to do. So it is unremitting. But the rewards in the work are to be found in doing it, and doing it as well as you can.

That's it from me, sorry about the length - I probably should have broken the last bit out as a separate post.  Things have been a little quiet on the comments from so any thoughts are appreciated.