George Brandis suggests Joyce and Nash didn’t really make their ministerial decisions

Michelle Grattan, University of Canberra

Labor says decisions made by Barnaby Joyce and Fiona Nash are open to legal challenge but Attorney-General George Brandis suggests the two former ministers were not the ones who actually made them.

Joyce and Nash were disqualified from parliament by the High Court on Friday for having been dual citizens when elected.

The opposition says at least 20 executive decisions and 47 ministerial announcements made by Joyce could be open to challenge.

These include the controversial decision to relocate the Australian Pesticides and Veterinary Medicines Authority to Armidale in his New England electorate, various grants and appointments, and any decisions under the Water Act, where he had power to determine claims for payment to water access entitlement holders.

The list comes from a paper Labor sought from the Parliamentary Library on the ministerial decision-making powers exercised by Joyce and Nash, and specific important decisions they made.

Joyce had ministerial responsibility for agriculture and water resources. Nash was minister for regional development and regional communications.

The opposition says at least eight executive decisions and 43 ministerial announcements made by Nash could be subject to challenge. These included elements of each of the regional NBN rollout, the mobile blackspots program and the rural decentralisation program, as well as grants under the Building Better Regions Fund.

Labor has as well released updated advice from senior silks Matt Albert QC and Matt Collins QC about the legal status of decisions made by the former ministers.

The Constitution allows a minister to hold office for three months while not being a member of parliament.

The legal advice says that any decision made by Joyce or Nash after three months had lapsed from their appointment as ministers was open to challenge.

“Any decisions made by Joyce and Nash, purportedly in their capacity as a minister, on and after October 20, 2016, are open to challenge.

“The likelihood of proceedings being brought to challenge such decisions is high, having regard to the significance and seniority of their relevant portfolios,” the advice says.

Brandis said the government was looking very carefully at the question of the validity of the former ministers’ decisions. But “I doubt that there are many if any decisions that would be relevant in any event”, he said on Sky.

“Most decisions that ministers make are in fact made by the cabinet on the recommendation of ministers. Appointments are made by the governor-general or the federal executive council on the recommendation of ministers. So I think you will find that there is no legal consequences here at all.”

Tony Burke, manager of opposition business, told the ABC there would be “vested interests” with an interest in challenging decisions of Joyce.

“When you’re in charge of Australia’s quarantine service, there’s importers and exporters who make or lose money depending on decisions you make.

“There’ll be a series of decisions there with vested interests now combing through, and there being a whole lot of legal doubt over those decisions on the simple basis that Barnaby Joyce didn’t do what Matt Canavan did,” Burke said.

“Matt Canavan turned out to have been legally in parliament. But at least he took the precaution to step aside so that there was no risk to there being illegitimacy to his decisions.

“Barnaby Joyce and Malcolm Turnbull decided, oh no, nothing to see here, let’s just ignore the last 25 years of how the High Court ruled on this and pretend that it’s all going to be different this time.”

Burke said there was a reason why the government had not revealed the solicitor-general’s advice. “I don’t believe for a minute it was as strong as they were claiming,” he said.

https://www.podbean.com/media/player/g8gar-796795?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

The case of Michaelia Cash and her leaking adviser illustrates a failure of ministerial responsibility

Michaelia Cash has refused to resign over misleading parliament, claiming she was unaware of one of her staffer’s actions.
AAP/Lukas Coch

Yee-Fui Ng, RMIT University

The federal opposition is continuing to call for Employment Minister Michaelia Cash’s resignation, claiming she misled parliament this week after repeatedly telling a Senate estimates committee that neither she nor her office had any involvement in tipping off the media about a police raid.

Cash’s senior media adviser, David De Garis, later confessed he had leaked information about the raid on the Australian Workers Union’s offices to the press. Cash retracted her statements and De Garis resigned.

Labor frontbencher Tony Burke argued that “the wrong person has resigned”. But Cash has refused to resign, claiming she was unaware of her staffer’s actions. Prime Minister Malcolm Turnbull has defended Cash, saying she acted properly.

Who are these advisers?

Ministerial advisers are partisan staff who are personally appointed by ministers and work out of the ministers’ private offices.

The number of Commonwealth ministerial staff has increased over the years from 155 in 1972 to 423 in 2015.

Ministerial advisers undertake a wide range of functions. Tony Nutt, a long-time former adviser, has said:

… a ministerial adviser deals with the press. A ministerial adviser handles the politics. A ministerial adviser talks to the union. All of that happens every day of the week, everywhere in Australia all the time. Including frankly, the odd bit of, you know, ancient Spanish practices and a bit of bastardry on the way through. That’s all the nature of politics.

The question is what happens if advisers overstep their roles?

Ministerial responsibility and political advisers

According to the doctrine of ministerial responsibility, ministers are responsible to parliament for the acts of their departments.

British academic Sir Ivor Jennings wrote that the “act of every civil servant is by convention regarded as the act of the minister”. And British MP Lord Morrison proclaimed that the “minister is responsible for every stamp stuck on an envelope”.

But it is doubtful that this principle has ever reflected reality. It is rare for ministers to resign or even accept responsibility for the actions of their department, where they were not personally involved.

Ministers should also technically take responsibility for the actions of advisers in their own offices, who are at an even higher level of direct ministerial control than departments.

Even more than public servants, advisers are seen to be acting as alter egos of their ministers. This means ministers should be accountable to parliament for the actions of their advisers – even those they did not authorise.

But what happens in reality is that ministers tend to use their advisers as scapegoats and blame them for controversial events. This is consistent with “public choice” theory, which predicts that politicians have the incentive to deflect all the blame that comes in their direction while accepting the credit for anything that goes right.

How are advisers regulated?

Australia has inadequate legal and political regulation of ministerial advisers. They are subject to a Statement of Standards, which sets out the standards they are supposed to meet in preforming their duties.

Sanctions under the standards are handled internally within the executive through the Prime Minister’s Office. This means any breaches of the standards by ministerial advisers would be handled behind closed doors, without the scrutiny of parliament or any external bodies.

Ministerial advisers have also refused to appear before parliamentary committees on their minister’s instruction. This has impeded the investigations of significant parliamentary committees, including the Children Overboard affair.

Australia thus has minimal legal and political regulation of ministerial advisers. This has led to an accountability deficit, where ministers have been able to utilise their advisers to escape responsibility for public controversies and scandals.

How can we fix the system?

Other Westminster jurisdictions have more stringent regulation of political advisers.

There are a few forms of regulation of advisers. The first is restrictions on the employment of advisers, either through a cap on the numbers of advisers, as in the UK, or a cap on the total budget for advisers, as in Canada.

Second, regulations can restrict the actions of advisers themselves. For example, in the UK, there is a prohibition on advisers leaking confidential or sensitive information, which would have been applicable in this scandal.

Canada has post-employment restrictions banning advisers from becoming lobbyists for five years after ceasing their employment.

Third, transparency measures also exist, such as requirements that departments disclose all meetings that advisers have with the media (as in the UK) and what hospitality these advisers receive (in the UK and Canada).

Ideally, the Australian regulatory framework should be reformed so it is policed externally from the core executive. In Canada, the conflict of interest and lobbying provisions are policed by the Conflict of Interest and Ethics Commissioner, who has been independent and ready to criticise the government.

And, in the UK, the rules provide for political advisers to appear before parliamentary committees. Similar guidelines could be drafted to facilitate the appearance of advisers before Australian parliamentary committees.

In the last 40 years, ministerial advisers have become an integral part of Australia’s system of government. But the law and rules have lagged behind, and our system should be reformed to ensure greater accountability.

Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University

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

Orissa, India Christians Still Face Boycott, Forced Conversion

Hindu nationalists continue to oppress Christians in Kandhamal district, report says.

NEW DELHI, November 11 (CDN) — More than two years after losing relatives and property in anti-Christian violence, there is no sense of relief among survivors in India’s Orissa state, as many are still ostracized and pressured to “return” to Hinduism, according to a private investigation.

“Despite the state administration’s claim of normalcy,” the preliminary report of a fact-finding team states, “a state of lawlessness and utter fear and sense of insecurity” prevails among Christians of Kandhamal district, which saw a major anti-Christian bloodbath in 2008.

The team, consisting of local attorney Nicholas Barla and another identified only as Brother Marcus, along with rights activists Jugal Kishore Ranjit and Ajay Kumar Singh, visited four villages in three blocks of Kandhamal on Nov. 5.

In Bodimunda village in Tikabali, the team met a pastor who said he has been closely watched since Hindu extremists forced him to become a Hindu. The pastor, whose name the report withheld for security reasons, said he had to convert to Hinduism in 2008 “to save his old mother, who could not have escaped the violence as she was not in a position to walk.”

He is still closely watched in an effort to prevent him from returning to Christianity. While the attorneys and activists were still at the pastor’s house, a man who identified himself as from the Rashtriya Swayamsevak Sangh (RSS, India’s most influential Hindu nationalist conglomerate) came to inquire about his visitors. The pastor felt compelled to tell them that they were “bank officials.”

In the same village, Hindu nationalists have also imposed a de facto ban on any private or public vehicle to ferry Christians or their belongings, said the report.

The team met the family of a paralyzed Christian, Bamadev Pradhan, whom auto-rickshaw drivers refused to take to a hospital when he recently ran a high fever. Eventually a Christian driver took him to the only hospital in Tikabali, around eight kilometers (nearly five miles) from his village of Bodimunda, but as the Christian was driving back, some local men confiscated his vehicle.

With the help of the auto-rickshaw union, the driver (unnamed in the report) got the vehicle released after paying a fine of 1,051 (US$24) rupees and promising that he would not transport any Christians in the future.

Another Christian said area Hindus extremists prohibited Christians from procuring basic necessities.

“We are not allowed to bring housing materials or food provisions or medicines, and nor are we allowed to buy anything from local shops,” he said. “We do not have any shop of our own. Here, we are struggling to live as human beings.”

The team also met a Hindu who had to pay 5,000 rupees (US$112) to get his tractor returned to him, as he had transported housing material for the construction of the house of a Christian.

In the house of a Christian in Keredi village in Phulbani Block, the team found a picture of a Hindu god. The resident, who was not identified in the report, explained that he had to display it in order to protect his family from harm.

The team found pictures of Hindu gods also in the house of a Christian in Gandapadar village in the Minia area, Phiringia Block. A woman in the house told the team that local Hindu nationalists had given her pictures of Hindu gods for worship.

“We have kept them, as they often come to check whether we have reconverted to Christianity,” she said.

Almost all Christians the team met complained that the local administration had done little to protect them and suspected that officials colluded with area Hindu nationalists.

Released on Nov. 8, the report asserts that Christians have been barred from taking water from a government well in Dakanaju village, under G. Udayagiri police jurisdiction in Tikabali Block. The village head, Sachindra Pradhan, has promised to take action “at the earliest,” it added.

Violence in Kandhamal and some other districts of Orissa state followed the assassination of Hindu nationalist leader Swami Laxmanananda Saraswati on Aug. 23, 2008. The rampage killed over 100 people and burned 4,640 houses, 252 churches and 13 educational institutions, according to estimates by human rights groups.

The spate of attacks began a day after Saraswati’s killing when Hindu nationalist groups blamed Christians for his murder, although Maoists (extreme Marxists) active in the district claimed responsibility for it.

John Dayal, a Christian activist in Delhi, told Compass that “the apparatus of 2008 remains undisturbed.” The Hindu nationalist Bharatiya Janata Party (BJP) was part of the ruling state alliance with the regional Biju Janata Dal (BJD) party at the time of the violence. Although the BJD broke up with the BJP in 2009, blaming it for the violence, the former cannot be excused, said Dayal.

“While the BJP is mainly to be blamed, Chief Minister Naveen Patnaik is not entirely innocent,” Dayal said. “Not  just that he allowed the BJP and RSS cadres to run amok when they were part of his government, turning a blind eye to their  very visible anti-Christian activities, but he was his own home [interior] minister and cannot really shirk command responsibility for the carnage together with his BJP ministerial colleagues and senior officers.”

Kandhamal district Magistrate Krishan Kumar, who was on a tour at press time, could not be contacted for comment despite repeated attempts.

Of the 648,201 people in Kandhamal district, 117,950 are Christian, mostly Dalit (formerly “untouchables” in the caste hierarchy in Hindu societies), according to the 2001 Census. Hindus, mainly tribal people and numbering 527,757, form the majority.

Report from Compass Direct News

Christians Most Hit by Religious Freedom Violations

Mob succeeds in getting local official to shut down HKBP church in West Java.

JAKARTA, Indonesia, January 21 (CDN) — A moderate Muslim research institute focusing on interfaith issues in Indonesia reported 35 cases of government violations of religious freedom – including 28 against Christians – and 93 instances of community intolerance of churches in 2009.

The Wahid Institute issued a year-end report of violations that included the revocation of the building permit for the HKBP Cinere Church – later overturned in court – opposition to a Catholic Church in Purwakarta and an order forbidding worship by the Filadelfia Huria Kristen Batak Protestan Church (HKBP) in Bekasi, West Java.

The highest number of violations occurred in West Java, with 10 cases, including seven against Christians; next was East Java with eight, including four against Christians, followed by Jakarta Province with four (three against Christians). In Central Java, two of three religious violation cases were against Christians, and in West Nusa Tenggara, one of the three violations violated Christians’ rights.

Government infractions included closing churches and failing to intervene in mob actions. Police were cited in 18 cases, provincial governments in eight, village and sub-district governments in six cases each and courts in two incidents.

Just as government violations were highest in West Java, community intolerance there was also highest with 32 cases, of which 14 were against Christians. Next was Jakarta, where eight of 15 cases of community intolerance were against Christians, then East Java where six of 14 cases hurt Christians. In Central Java, Christians were the victims in five of the 13 cases of community intolerance.

In West Java, the root problem is the spread of hatred against religious groups, including Christians and Jews, according to the report.

While the reported violations of religious freedom were lower than in 2008, the issue of religious intolerance continued to grow during 2009, aided by legislative and presidential elections as religion is often used to gain votes in Indonesian elections, according to the study. The overall figure of 128 cases of violations of religious freedom by government or society in 2009 represents a drop from the 2008 figure of 234 cases, according to the Wahid Institute.

Yenny Zanuba Wahid, director of the institute, told Compass that the government has not considered freedom of religion an important issue that needed attention. As a result, the government has not addressed reports of intolerance even in the face of international pressure.

“The government has been timid to acknowledge violations of religious freedom, but these are real and are carried out directly by government bodies or indirectly as a result [of government] policies,” Wahid said.

Muslims make up 88.2 percent of Indonesia’s population of about 240 million people, with Protestant Christians making up 5.9 percent, Catholics 3.1 percent, Hindus 0.8 percent, Buddhists 0.2 percent, and other religions 0.2 percent.

Church Closure

In West Java, mob efforts to shut down the Filadelfia Huria Kristen Batak Protestan Church (HKBP) in Bekasi succeeded on Dec. 31 when the district officer issued a decree ordering a stop to all worship activities at the site of the church building under construction.

The decree ordered that the construction of the building stop, and that the structure not be used for worship until the building permit process was final. The district officer based his recommendation upon a 1990 rule regarding building permits in Bekasi.

Tigor Tambubolon, head of the church building committee, acknowledged that the building permit had not been formally granted even though the process had been under way since 2000.

“We already have the permission of the Jejalen citizens,” Tambubolon told Compass. “That’s why we were brave enough to hold Christmas Eve services.”

Last Christmas Eve hundreds of protestors demanding a halt to worship demonstrated against services at the site, where 279 Christians had gathered.

A New Year’s service scheduled to take place at the site moved to the office of the village head due to fears that protestors would become unruly. Police Chief Herry Wibowo said his officers guarded the church site at that time.

The Rev. Palti Panjaitan of Filadelfia HKBP told Compass that the church had been worshipping in the area since 2000 by meeting at various members’ homes. As the congregation grew, they rented a building combining a home and store in Vila Bekasi 2 Tambun.

“The local citizens demonstrated against our worship services,” said Panjaitan. “From there we moved to a member’s home in Jejalan village. We profited because the Jejalan citizens were very good.”

Eventually the church bought a piece of land there. A number of the community leaders and the village head gave their agreement to build the Filadelfia HKBP church there.

The Interfaith Harmony Forum of Bekasi district gave approval for the building with the stipulation that the church obey a joint ministerial decree revised in 2006 regarding construction of houses of worship. The building committee obtained signatures of 259 non-Christians endorsing the project, though the joint decree required only 60 signatures. Then the building committee wrote a formal request for a building permit.

Church elder Tambubolon, however, added that a sub-district officer collected signatures from citizens opposed to the construction of a house of worship in Jejalan. The total number of signatures is unknown, but the sub-district office sent a letter to the district officer rejecting the building permit.

Nevertheless, Tambubolon said, the church is not considering a lawsuit over the district officer’s decree.

“We are going to continue worshipping, because it is the right of every citizen,” he said. “If we are forbidden to worship even in the village office, we will continue to do so.”

Report from Compass Direct News 

TURKEY: ‘INSULTING TURKISHNESS’ CASE PROCEEDS UNDER REVISED LAW

Ministry of Justice decision suggests spreading Christianity may be unlawful in Turkey.

ISTANBUL, March 20 (Compass Direct News) – Turkey’s decision last month to try two Christians under a revised version of a controversial law for “insulting Turkishness” because they spoke about their faith came as a blow to the country’s record of freedom of speech and religion.

A Silivri court on Feb. 24 received the go-ahead from the Ministry of Justice to try Christians Turan Topal and Hakan Tastan under the revised Article 301 – a law that has sparked outrage among proponents of free speech as journalists, writers, activists and lawyers have been tried under it. The court had sent the case to the Ministry of Justice after the government on May 8, 2008 put into effect a series of changes – which critics have called “cosmetic” – to the law.

The justice ministry decision came as a surprise to Topal and Tastan and their lawyer, as missionary activities are not illegal in Turkey. Defense lawyer Haydar Polat said no concrete evidence of insulting Turkey or Islam has emerged since the case first opened two years ago.

“The trial will continue from where it left off – to be honest, we thought they wouldn’t give permission [for the case to continue],” said Polat, “because there was no persuasive evidence of ‘degrading Turkishness and Islam’ in the case file.”

A Ministry of Justice statement claimed that approval to try the case came in response to the original statement by three young men – Fatih Kose, Alper Eksi and Oguz Yilmaz – that Topal and Tastan were conducting missionary activities in an effort to show that Islam was a primitive and fictitious religion that results in terrorism, and to portray Turks as a “cursed people.”

Prosecutors have yet to produce any evidence indicating the defendants described Islam in these terms, and Polat said Turkey’s constitution grants all citizens freedom to choose, be educated in and communicate their religion, making missionary activities legal.

“This is the point that really needs to be understood,” said Polat. “In Turkey, constitutionally speaking it is not a crime to be a Christian or to disseminate the Christian faith. However, in reality there have been problems.”

The lawyer contended that prosecuting lawyers have given political dimensions to the case by rendering baseless accusations in a nationalistic light.

“From their point of view, missionary activity carried out by missionaries of imperialistic countries is harmful for Turkish culture and the country overall,” Polat said.

Tastan said that although he has always been confident that he and Topal will be acquitted, the decision of the Ministry of Justice to try them under Article 301 left him deeply disappointed in his own country.

“After this last hearing, I realized that I didn’t feel as comfortable as I had been in the past,” Tastan told Compass. “I believed that surely the Ministry of Justice would never make the decision they did.”

Tastan said he was uneasy that his country would deem his Christian faith as insulting to the very Turkishness in which he takes pride.

“This is the source of my uneasiness: I love this country so much, this country’s people, that as a loving Turk who is a Christian to be tried for insulting Turkey has really cut me up,” said Tastan. “Because I love this nation, I’ve never said anything against it. That I’m a Christian, yes, I say that and I will continue to do so. But I think they are trying to paint the image that we insult, dislike and hate Turks. This really makes me sad and heartsick.”

If nothing else, Tastan said, the trial has provided an opportunity for Turkish Christians to show God’s love and also make themselves known to their compatriots. He called the ministerial decision duplicitous.

“A government that talks the European Union talk, claims to respect freedom, democracy, and accept everyone, yet rejects me even though I’m a Turkish citizen who is officially a Christian on his ID card, has made me sad,” he said. “That’s why I’m disappointed.”

 

No-Shows

At the time of their arrests, Topal and Tastan were volunteers with The Bible Research Center, which last week acquired official association status and is now called “The Society for Propagating Knowledge of the Bible.” In the last court hearing, prosecutors demanded that further inquiries be conducted into the nature of the association since the defendants used their contact lists to reach people interested in Christianity.

“Because they think like this, they believe that the Bible center is an important unit to the missionary activities,” said Polat. “And they allege that those working at this center are also guilty.”

The court has yet to decide whether police can investigate the Christian association.

Polat and the defendants said they believe that as no evidence has been presented, the case should come to a conclusion at the next hearing on May 28.

“From a legal standpoint, we hope that they will acquit us, that it will be obvious that there is no proof,” said Tastan. “There have only been allegations … none of the witnesses have accused us in court. I’m not a legal expert, but I believe that if there is no proof and no evidence of ‘insulting,’ then we should be set free.”

The initial charges prepared by the Silivri state prosecutor against Tastan and Topal were based on “a warning telephone call to the gendarme” claiming that Christian missionaries were trying to form illegal groups in local schools and insulting Turkishness, the military and Islam.

Despite a court summons sent to the Silivri and Istanbul gendarme headquarters requesting six gendarme soldiers to testify as prosecution witnesses, none have stepped forward to do so. At a June 24, 2008 hearing, two witnesses for the prosecution declared they did not know the defendants and had never seen them before facing them in the courtroom. Several witnesses – including one of the original complainants, Kose – have failed to show up on various trial dates.

“We believe the case has arrived to a concluding stage, because all evidence has been collected and the witnesses have been heard,” Polat said. “We believe the accused will be dismissed. The inverse would surprise us.”

Polat underlined that while the case shows that human rights violations in Turkey are still a “serious problem,” it is also true that Turkey’s desire to join the European Union has brought sincere efforts to improve democratic processes. He attested, however, that establishing a true democracy can be a long process that requires sacrifices.

“It is my conviction that there is no other way for people to believe in and establish democracy than through struggle,” he said.

Tastan added that he sees hope that the notion that being “Turkish” means being Muslim is breaking. Due to exposure to media coverage of the murder trial of the April 18, 2007 slaughter of three Christians in Malatya, he said, Turks are becoming aware that there are fellow citizens who are Christians and are even dying for their Lord.

“This makes me happy, because it means freedom for the Turkish Christians that come after us,” said Tastan. “At least they won’t experience these injustices. I believe we will accomplish this.”

For the time being, though, the Ministry of Justice’s decision that Tastan and Topal can be tried under the revised Article 301 law appears to contribute to the belief that to promulgate a non-Islamic faith in Turkey is tantamount to treason. As Turkish online human rights magazine Bianet headlined its coverage of the decision, “Ministerial Edict: You Can Be a Christian But Do Not Tell Anyone!”  

Report from Compass Direct News