Three reasons why the decisions of Joyce and Nash may be difficult to challenge



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Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?
AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.


Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.

Standing

First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

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Making voting both simple and secure is a challenge for democracies



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The US compares relatively poorly with equivalent countries when it comes to voter registration.
Reuters/Bria Hall

Pippa Norris, Harvard University; Sarah Cameron, University of Sydney, and Thomas Wynter, University of Sydney

Recent elections around the world have raised concerns about the procedures used for voter registration and their potential consequences. The effects include disenfranchisement (voters being prevented from casting a ballot) and voter rights, fraud and security, and mismanagement and accuracy.

It’s critical to strike the right trade-off between making registration accessible and making it secure. But how many countries are affected by these sorts of issues? And which is more problematic – lack of security or lack of inclusion?

Our study

Our Perceptions of Electoral Integrity survey asked experts for their assessments of electoral integrity in 161 countries that held 260 national elections from January 1 to June 30, 2017.

The study used three criteria to monitor the quality of the voter registration process: inclusion, accuracy, and security.

These aspects can be considered equally important to ensure all and only eligible citizens are able to vote. The items can be analysed separately and also combined into an index.

As illustrated below, the results show the quality of the voter registration process in Northern Europe and Scandinavia performed well, as did several Latin American countries like Brazil.

At the same time, voter registration proved problematic in many countries in Africa and the Middle East, as well as in India and parts of Asia.

The US compared relatively poorly with equivalent liberal democracies on voter registration. This is in no small measure due to the partisan polarisation over the issue, and past reliance on self-registration. By contrast, governments in many other countries register voters on their behalf.

The quality of voter registration worldwide.
Authors

Inclusiveness versus security

The global comparison below shows mean ratings on the measure of inclusion on the vertical axis. The measure of security is shown on the horizontal.

Some countries performed well on both indicators – notably Sweden, Denmark and Finland, as well as Slovakia, Costa Rica and the Czech Republic.

By contrast, many other places (located in the bottom left quadrant) performed poorly on both measures, such as Syria (which failed to allow citizens to vote if they had fled to neighbouring states as refugees), Haiti (which lacked the capacity to administer elections), Bahrain (with internal conflict), and Afghanistan (with high levels of electoral corruption).

Finally, several countries scored worse on inclusiveness than on security. In these elections, experts thought the more serious problem was the exclusion of eligible citizens.

These problems can arise for many reasons – such as disputed citizenship rights, attempts at voter suppression, lack of capacity to include young people, women, linguistic or ethnic minorities and hard-to-reach rural populations, or failing to maintain up-to-date electoral rolls.

Monitoring inclusion and security worldwide. Scale ranges from strongly agree (1) to strongly disagree (5). Regimes classified according to Freedom House.
Authors

Responding to the challenges

So, the challenge is to strike the optimal balance between security and accessibility, to make ensure eligible citizens – and only eligible citizens – cast a ballot. Doing so strengthens public confidence in the electoral process and democracy.

Easier registration processes, such as the availability of online applications and same-day registration, usually strengthens voter turnout. But the introduction of more accessible registration without sufficient verification raises security risks of abuse and fraud.

In the US, parties are deeply polarised over whether the use of strict photo ID at polling places helps maintain accurate and reliable lists, or whether this suppresses voting rights for eligible citizens who lack such ID.

A 2012 report found many American states faced major challenges of accuracy, cost, and efficiency in their voter registration systems. Since then, they have made many efforts to upgrade electronic procedures by allowing citizens to register and check their records online.

An initiative sweeping the US – led by Oregon in 2015 – is states requiring citizens to opt-out rather than opt-in to being registered to vote.

But new risks have also became evident, not least Russian meddling and cyber-security threats to official voting records. To tackle this, the US Electoral Assistance Commission has recently issued new guidelines, working with the states and the Department of Homeland Security to implement them. Yet the overhaul of America’s ageing voting equipment will carry a hefty price tag.

Foreign attempts at interference in voting have been reported in other countries, including Germany and France.

Following the 2017 UK general election, the Electoral Commission expressed concern about the risks of double voting and duplicate registration applications.

In populous developing countries like Afghanistan and the Democratic Republic of the Congo, without reliable census information or identification documents, the challenges are even greater. Poor quality records can create opportunities for vote manipulation.

The ConversationStrict registration processes, such as those relying on biometric technologies for ID, may remove ineligible applicants but simultaneously throw out legitimate voters and make the list less accurate, not more. And biometric voter registration, which many African countries have adopted, presents challenges for the protection of personal information.

Pippa Norris, ARC Laureate Fellow, Professor of Government and International Relations at the University of Sydney and McGuire Lecturer in Comparative Politics, Harvard University; Sarah Cameron, Electoral Integrity Project Manager and Postdoctoral Research Fellow, University of Sydney, and Thomas Wynter, Research Associate, University of Sydney

This article was originally published on The Conversation. Read the original article.

Australia’s Human Rights Council election comes with a challenge to improve its domestic record



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Australia’s campaign for a seat on the Human Rights Council opened it to further scrutiny of its record on such issues.
Reuters/Denis Balibouse

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

Australia has been elected to a seat on the United Nations Human Rights Council. It will serve on the council from 2018 to 2020.

The announcement overnight formalised an assumed result: Australia and Spain were the only two countries seeking election to the two available seats for the Western Europe and Others group. Most of the other newly- elected council members similarly ran uncontested.

However, all campaigning countries required the support of a majority of voting countries to ensure their election. Australia received 176 votes and Spain 180 – both survived grilling by an expert committee.

How did Australia present itself as a candidate?

Foreign Minister Julie Bishop led Australia’s campaign, which had a particular focus on freedoms, free speech, and equality. The “five pillars” of Australia’s bid were:

  • gender equality

  • good governance

  • freedom of expression

  • the rights of Indigenous peoples

  • strong national human rights institutions and capacity building.

Australia presented itself as a “pragmatic and principled” candidate for the council position. Bishop cited Australia’s “strong track record for human rights” as well as its active and practical involvement in international affairs.

Such active and practical involvement can be seen in Australia’s advocacy for the abolition of the death penalty, as in the case of Myuran Sukumaran and Andrew Chan. Furthering global advocacy for death penalty abolition is one of Australia’s primary pledges as a new council member.

Australia’s involvement in multiple UN treaties and its anticipated adoption of the Optional Protocol to the Convention against Torture were also cited as evidence of its worthiness for election.

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Australia’s bid and opportunities for human rights advocacy

However, Australia’s campaign opened it to further scrutiny of its human rights record. Human rights organisations in Australia and overseas have been lobbying to ensure that Australia’s practices are well publicised and subject to oversight and critique.

In December 2016, Bishop sought to pre-empt such criticism, claiming “no country is perfect”. Bishop pledged to be “honest and open” about Australia’s human rights record during the campaign.

Yet the campaign’s pledges failed to acknowledge Australia’s human rights abuses. As such, Australia remains open to accusations of hypocrisy on human rights.

Australia’s human rights track record is more chequered than it would claim. The UN has condemned Australia for its asylum-seeker policies and treatment of Indigenous peoples.

Bishop frequently praised Australia for its success in building a multicultural society and valuing the diverse background of migrant settlers. Yet asylum seekers arriving by boat continue to be dehumanised.


Further reading: ‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation


Another key area of human rights controversy is the current postal plebiscite to survey public opinion on marriage equality. Australia’s council bid promised the protection of LGBTQI rights. But as was forewarned, the plebiscite campaign has exposed LGBTQI people to harmful fear campaigning and social exclusion.

It is incongruous for a claimed champion of human rights to put the rights of a minority group to a popular vote, potentially in an effort to prevent that group from gaining marriage equality.

Australia strikes a similarly dissonant note in relation to its treatment of Indigenous people. A key pledge of the council bid was the recognition of Indigenous Australians in the Constitution. However, a constitutional convention rejected the form of “recognition” the government-sponsored Recognise campaign had promoted.

The Recognise campaign has since been abandoned, and the future of the proposed referendum is unclear. The Australian government is yet to embrace the Referendum Council’s proposals for treaty, truth-telling and a First Nations Voice.


Further reading: Listening to the heart: what now for Indigenous recognition after the Uluru summit?


France’s withdrawal was a loss to the election campaign

Given Australia’s record, France’s withdrawal as a third candidate for the two available seats was unfortunate. The lack of competition reduced pressure on Australia to extend its human rights commitments.

The weight of international disapproval of Australia’s practice in relation to refugees, in particular, could well have weakened the bid had France stayed in the race.

No doubt this was also true for Spain. The recent Catalan independence referendum exposed Spain’s problematic record in relation to self-determination and political rights for minority groups.


Further reading: As Spain represses Catalonia’s show of independence, the rest of Europe watches on nervously


In interesting company

The UN’s orientation is to promote inclusion rather than marginalisation of member countries on international bodies. The UN is committed to universal values and obligations, and seeks to enforce these through universal involvement in its processes.

It is undoubtedly difficult to countenance egregious human rights violators participating in human rights processes. But it is at least arguable that their involvement promotes the progressive realisation of human rights more effectively than their marginalisation would.

However, in some cases, it may be that a country’s membership should be postponed until it can show improvement in a deplorable record. Leading up to the election, Human Rights Watch campaigned against promoting the Democratic Republic of the Congo to the council due to its grave human rights violations.

Meanwhile, the US warned it may withdraw if the council continued to elect countries responsible for gross abuses.

Australia is not in this category. It aspires to be an exemplary member of the council. And its election should act as impetus for progressive gains in its human rights performance.

The value of Australia’s election for human rights

Human rights advocates will take the opportunity to draw attention to any gaps between Australia’s international legal obligations and its domestic practices.

Bishop was right to highlight the value of Australia becoming the first Pacific country to join the council. Strong diplomatic and trade relationships will hopefully enable Australia to influence human rights development in its region. It is the only place without a regional human rights treaty or institution.

An important focus in this context will be Australia’s advocacy for the abolition of capital punishment. Allied to that concern for the right to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and wellbeing.

Australia could substantially increase the legitimacy of such efforts, though, by working to build adequate domestic human rights architecture. Without federal human rights legislation, Australia cannot demonstrate the social and legal value of building human rights protections into law.

Australia’s election also calls for a renewal of political commitment to the value of international human rights review processes. Recent years have seen expressions of frustration, dismissal and poor faith that undermine Australia’s strong record of commitment to international human rights treaties.

Nowhere was this troubling attitude toward human rights protection more clear than in efforts to tarnish the reputation and work of former Human Rights Commission president Gillian Triggs.

Such mixed messages sit poorly with Australia’s continued efforts to review the practices of other countries – particularly now that it has an official role on the Human Rights Council.


Further reading: Why does international condemnation on human rights mean so little to Australia?


Australia has claimed leadership in the areas of gender equality, good governance, freedom of expression, the rights of Indigenous people, and strong national human rights institutions.

Imperfect performance in these areas indicates key targets for immediate focus – for example through human-rights-informed approaches to gendered violence, and concern for limitations on the freedom to express views about politically sensitive matters.

Considerable progress will be required on the rights of Indigenous people for Australia to claim success on that key pillar of its council campaign. The federal government could look to progress on a treaty in Victoria as evidence that such a conversation can be inclusive and productive.

The ConversationImportantly, Australia must also be held accountable in the key area its bid sought to avoid: the treatment of asylum seekers and refugees. Its election provides an ideal opportunity for Australia to show leadership and commitment to durable regional and global responses to refugee flows.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Explainer: is a High Court challenge about to bring down the Turnbull government?



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Labor will argue David Gillespie ineligible to be an MP based on Section 44(v) of the Constitution.
AAP/Mick Tsikas

Lorraine Finlay, Murdoch University

Labor is set to launch a High Court challenge over the eligibility of Assistant Health Minister David Gillespie to sit in federal parliament. The case has been brought by Peter Alley, the ALP candidate who ran against Gillespie in Lyne at the 2016 federal election.

The action is based on Gillespie, a Nationals MP, owning a small shopping centre in Port Macquarie that contains an Australian Post outlet. As Australia Post is a government-owned corporation, Labor claims this results in Gillespie having an indirect pecuniary interest contrary to Section 44(v) of the Constitution.

If the High Court agrees, Gillespie would be ineligible to sit as an MP.

What does the Constitution say?

Section 44 of the Constitution sets out several grounds of disqualification from holding parliamentary office.

Under Section 44(v), someone “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives” if they have:

… any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons.

Before this year, the High Court had only considered this section on one occasion, in 1975.

In that case, Chief Justice Garfield Barwick took an extremely narrow interpretation of the provision, based on a finding that its historic purpose was to protect parliament’s freedom and independence from the influence of the Crown.

An “indirect pecuniary influence” would only be disqualifying where it involved a legal or equitable interest in a contract with ongoing obligations, and where the possibility of financial gain by the agreement’s existence or performance could conceivably allow the Crown to influence an MP in relation to parliamentary affairs.

Under this narrow interpretation – which had been subject to considerable criticism – Gillespie would not be considered ineligible based on his interest in the shopping centre.

The Bob Day case

The High Court revisited the meaning of “indirect pecuniary interest” in April this year. It unanimously held that former Family First Senator Bob Day had an “indirect pecuniary interest” at the time of the 2016 federal election, and was therefore ineligible to be a senator.

Day had already resigned from the Senate before this ruling. But the High Court’s decision was significant for two key reasons.

  • The first was its immediate importance in deciding how a replacement senator was to be selected.

  • The second, which will now be critical when considering Gillespie’s future, was its reconsideration of what constitutes an “indirect pecuniary interest” under Section 44(v).

The Day case concerned a lease agreement between the Commonwealth and Fullarton Investments Pty Ltd for premises Day used as his electorate office. There were a variety of ways in which Day was connected to both the company and property. However, a fact the court found to be particularly significant was that in February 2016, Fullarton Investments directed that rental payments be made into a Day-owned bank account.

The High Court declined to follow the 1975 precedent and adopted a broader interpretation of Section 44(v). Importantly, it found the section had a wider purpose than solely protecting parliament’s independence from executive influence. It was also intended as an anti-corruption provision, designed to protect against potential conflicts of interest by ensuring the public duties of MPs are kept separate from their personal interests.

Under this broader view, an individual would be disqualified where there was an expectation of financial gain if the agreement in question was performed. The court would look at the agreement’s practical effect when making this assessment.

High Court justice Patrick Keane observed:

It is enough that the person’s pockets were or might be affected.

However, it was noted there will be no relevant interest:

… if the agreement in question is one ordinarily made between government and a citizen.

The case against Gillespie

So, is Gillespie ineligible based upon this new, broader interpretation of Section 44(v)?

There is no question of a direct financial interest in this case. Rather, the information currently available suggest that a company owned by Gillespie and his wife leases space in a shopping centre it owns to an Australia Post licensee.

The possible financial interest in this case certainly seems to be more remote than in Day’s case. However, there is still sufficient uncertainty surrounding the outer limits of section 44(v) for this case to be of real concern to the Turnbull government.

What happens now?

If the High Court finds Gillespie is incapable of sitting as an MP under Section 44(v) there would necessarily be a by-election in Lyne.

Given the Turnbull government only has a one-seat majority, the immediate stakes are as high as they could possibly be.

There is also a broader issue worth considering. Gillespie is the third member of the 45th parliament – after Day and Rod Culleton – to have their constitutional eligibility challenged before the courts. In Day’s case, High Court Justice Stephen Gageler emphasised the importance of certainty in this area, so candidates and MPs know where they stand.

The ConversationGiven recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

Tony Abbott says government’s challenge is ‘to be worth voting for’


Michelle Grattan, University of Canberra

Tony Abbott has laid out his policy alternatives to make the next election “winnable” for the Coalition, in a provocative speech that again highlights his differences with Malcolm Turnbull. The Conversation

The former prime minister said the government should say to the people of Australia that it would cut the renewable energy target, reduce immigration, scrap the Human Rights Commission, stop all new spending, and reform the Senate via a referendum held with the next election.

Launching Making Australia Right, a book of essays by conservatives edited by James Allan, Abbott brought together several proposals he has previously argued for.

He took aim at the government’s current signals about the future direction of its energy policy, and attacked its preservation of the 23% Renewable Energy Target (RET), which was negotiated in his time as prime minister.

“The government is now talking about using the Clean Energy Finance Corporation to subsidise a new coal-fired power station – creating, if you like, a base-load target to supplement the renewable target,” he said.

“We subsidise wind to make coal uneconomic so now we are proposing to subsidise coal to keep the lights on. Go figure.”

“Wouldn’t it be better to abolish subsidies for new renewable generation and let ordinary market forces do the rest?”

“Of course that would trigger the mother of all brawls in the Senate, but what better way to let voters know that the Coalition wants your power bill down, while Labor wants it up?”

Abbott said the government’s challenge was “to be worth voting for” and to “win back the people who are giving up on us”.

“In or out of government, political parties need a purpose. Our politics can’t be just a contest of toxic egos or someone’s vanity project.”

The next election was “winnable”, he said, outlining the pitches he saw as needed to secure that win.

“If we stop pandering to climate change theology and freeze the RET, we can take the pressure off power prices.”

“If we end the ‘big is best’ thinking of the federal Treasury, and scaled
back immigration – at least until housing starts and infrastructure have caught up – we can take the pressure off home prices.”

“If we can take our own rhetoric about budget repair seriously and avoid all new spending and cut out all frivolous spending, we will start to get the deficit down.”

“If we refuse to be the ATM for the states, there might finally be some microeconomic reform of our public education and public health systems.”

“If we stopped funding the Human Rights Commission and leave protecting our liberties to the parliament, the courts and a free press where they belong, we might start to look like the defenders of western civilisation that we aspire to be.”

Speaking on Sky, Abbott said that “plainly there are lots of people concerned about our direction” and warned “the risk is we will drift to defeat if we don’t lift our game”.

He also criticised Turnbull’s decision to stay in his own home in Sydney.

“I think it would be a better look if the prime minister did live in Kirribilli House,” he said. He understood Turnbull not wanting to be a burden on the taxpayer but “by trying to avoid being a burden to the taxpayer, in the end, you end up costing the taxpayer more”.

When he was prime minister Abbott was reluctant to move from his own home to Kirribilli but was persuaded to do so.

https://www.podbean.com/media/player/j795u-67fef0?from=yiiadmin

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?


Joyce Chia, Monash University and Asher Hirsch, Monash University

The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.

Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?

While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.

So what is this case about anyway?

The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.

The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.

Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.

This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.

The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.

  • First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.

  • Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.

At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.

This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.

How did Nauru’s announcement change the case?

Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.

As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.

The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.

That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.

Circumventing the courts

From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.

Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.

For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.

The Conversation

Joyce Chia, Lecturer (Sessional), Monash University and Asher Hirsch, Tutor, Monash University

This article was originally published on The Conversation. Read the original article.

Australian Politics: 24 July 2013


The latest asylum seeker ‘solution’ proposed in Australia continues to gather a lot of attention in Australian politics. The links below are to articles that look at the policy from varying prospectives. The first article is an in-depth look at the situation in Papua New Guinea.

For more visit:
http://www.theglobalmail.org/feature/for-those-whove-come-across-the-seas-a-short-trip-to-png/662/
http://www.theaustralian.com.au/national-affairs/immigration/asylum-seeker-boat-sinks-off-indonesia/story-fn9hm1gu-1226684079708

As the Kevin Rudd experiment continues to be a winner for Labor, the Liberals are beginning to face the leadership change question themselves, with a possible shift from Tony Abbott to Malcolm Turnbull becoming popular among voters.

For more visit:
http://www.dailytelegraph.com.au/newslocal/city-east/voters-turning-to-turnbull-over-abbott-but-liberals-say-theres-no-chance-of-leadership-challenge/story-fngr8h22-1226683907946