The Immigration Minister, Scott Morrison, has introduced a bill to make it easier to deport asylum seekers who face a risk of torture or death in their country of origin. The proposed changes are in response to statutory interpretation of the Migration Act that the government disagrees with. The Explanatory Memorandum to the bill states: “The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB … found that the threshold to be applied to assessing complementary protection claims is whether there is a ‘real chance’ of significant harm, the same threshold that applies to the assessment of claims under the Refugees Convention. The Government’s position is that the risk threshold applicable to the non-refoulement obligations … is ‘more likely than not’. ‘More likely than not’ means that there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country.” The Age columnist Tony Wright translates the legal language as follows: “In short, if there is a mere 49 to 50 per cent chance of … being hung by one’s thumbs from meathooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.”
The UNESCO World Heritage Committee yesterday took only seven minutes to reject an application by the Abbott Government to reduce the size of the Tasmanian Wilderness. The protected area was expanded by UNESCO last year, and the government sought to return to the previous boundary, in order to allow logging to resume. No member nation spoke in favour of the proposal, but Portugal spoke against, saying, “The justifications presented to the reduction are to say the least feeble.” The world heritage status of Tasmania’s forests has been politically sensitive since it was first listed by the UN in December 1982. Only a few months later, the Hawke Government ratified the listing with the World Heritage Properties Conservation Act 1983 (Cth), in order to prevent the Tasmanian government building the Franklin Dam. In the Tasmanian Dam case, the High Court adopted a broad interpretation of “external affairs” and upheld the dam ban.
Queensland traffic police have been issuing fines as a result of “Operation Jump Street—a mostly covert operation aimed at monitoring driver behaviour in school zones”. Although it doesn’t involve infiltrating schools, the program is named after 21 Jump Street, an American TV series about police working undercover by posing as students. Police in Florida adopted a similar approach, sending officers into high schools to make drug arrests; This American Life reported on a boy who was entrapped after falling in love with the undercover agent. They recently turned the story into a short Broadway musical, 21 Chump Street: The Musical.
The High Court has again struck down the National School Chaplaincy and Student Welfare Program as unconstitutional. In a 2012 decision, it was thrown out because the executive was acting without legislation to authorise the program. The government responded by passing amendments to the Financial Management and Accountability Act 1997 (Cth) to give itself broad power to spend money on any program approved by a minister. In today’s new judgment, Williams v Commonwealth (No 2), the High Court said any such program would still need to fall under a head of Commonwealth power—and school chaplains don’t. The High Court’s interpretation of the phrase “benefits to students” was the crux of the case: “Providing money to pay persons to provide [chaplaincy] services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA).” It also ruled that a law authorising a payment to a corporation was not a law with respect to corporations, so section 51(xx) did not apply either. As a result, the program did not fall under a head of power and the spending was invalid. The real significance of the case, though, is the precedent it establishes for future challenges to government programs. Because the High Court approached the case narrowly and only made a decision about the chaplaincy scheme, over 400 Commonwealth programs authorised under the FMA Act will continue until they are specifically challenged.
The Queensland Bar Association is calling for a new process for appointing judges, after a scandal erupted over the appointment of Tim Carmody QC as the next Chief Justice. Senior lawyers and former judges have criticised Carmody as politically biased and unqualified—in 2006, as a Family Court judge, he was caught cutting and pasting sections of a judgment—and the president of the Bar Association quit in protest over Attorney-General’s consultation process. Carmody told the media, “It’s regrettable that not one of the Supreme Court judges has congratulated me yet.” The Bar Association is calling for a “different and more structured way of identifying and selecting possible appointees to judicial office to ensure all appointments are made impartially and on the basis of suitability for the particular office”. In Victoria, controversial MP Geoff Shaw denied the Premier’s accusation that he tried to influence judicial appointments. An election promise to establish an Independent Judicial Appointments Advisory Panel has not yet been implemented by the Government. Update: It has now been revealed that “no-one—other than the premier—strongly pushed Justice Carmody’s candidacy”, and he was promoted at the last minute after being publicly criticised by former Solicitor-General Walter Sofronoff QC. A sitting Court of Appeal judge, Justice Muir, gave a speech last night saying “because of the unfortunate way in which this saga has unfolded, the obvious lack of support for the Chief Magistrate’s elevation to the office of Chief Justice of Queensland and [other] matters discussed earlier, the Chief Magistrate will see that the only appropriate course is for him to withdraw.“
A High Court challenge to Australia’s policy of sending asylum seekers to be detained and processed in Papua New Guinea was unanimously rejected today. In Plaintiff S156/2013 v Minister for Immigration and Border Protection, The High Court ruled that the legislation was valid under the “aliens” power in s 51(xix) of the Constitution, adopting a broad interpretation of the word. It also ruled that the designation of PNG as a “regional processing country” was valid, because the Migration Act 1958 (Cth) was amended after the successful challenge to the so-called Malaysia Solution, giving the Minister much broader discretion.
The Legislative Assembly has voted to “name” the Member for Frankston, Geoff Shaw, suspending him without pay for 11 sitting days. In addition, he will be required to repay $5220.75 for the misuse of his office car, pay an additional fine of $1617.69, refrain from interstate or overseas travel, and apologise to the Legislative Assembly. If he fails to comply by 2 September, he will be expelled. Former Speaker Ken Smith, despite hinting he might cross the floor, voted with the government. This meant Opposition Leader Daniel Andrews was unable to amend the motion to expel Shaw from parliament immediately. The Opposition received legal advice that expulsion was an available penalty, and other constitutional experts agree. Monash University’s Greg Taylor said, “They can expel you for wearing the wrong coloured jacket or not polishing your shoes.” However, he added: “This is a nuclear bomb option.” ACU’s Greg Craven argues that “expelling an elected member is contempt of democracy itself.” No MP has been expelled from the Victorian parliament since 1901. The Commonwealth parliament legislated to remove its own power to expel MPs in 1987. During Shaw’s suspension, votes on the floor of the Legislative Assembly will be tied 43-43, with the Speaker casting a deciding vote.
ABC Radio National has rebroadcast a 2012 documentary, Wooing the jury, about the life of a criminal barrister: “in this program we go under the barristers’ horse hair wigs to hear about their struggles with ethical dilemmas, lying clients, righting injustices, long work hours and all the after-effects.”
Laws restricting political campaigns by Queensland trade unions were quietly repealed on Wednesday night, in the face of a High Court challenge. In 2013, new rules requiring industrial organisations to conduct a ballot of members before spending more than $10,000 on political campaigns were introduced. Affected unions launched a High Court challenge, saying that the cost and delay caused by the processes were a burden on their freedom of political communication. The explanatory notes for the repeal bill say the decision was prompted by the “recent decision of the High Court in Unions NSW v New South Wales“, which “indicates that the High Court will read widely the implied right of freedom of communication on government and political matters”. (In that case, the NSW government’s attempt to cap political spending by unions was unanimously held to be an illegitimate burden on the implied freedom.) The Queensland Attorney-General, Jarrod Bleijie, has been forced to defend his performance as a minister; the Court of Appeal struck down a law allowing him to jail people despite court orders to release them because it breached the separation of powers, and his anti-bikie laws are currently before the High Court.
The cost of becoming a lawyer is likely to dramatically increase under the Commonwealth budget’s deregulation of university fees. An advisor to the Abbott Government on higher education, Andrew Norton, predicts that fees will almost quadruple to equal the price charged to international students: “This would see annual fees for a law degree rise, on average, from $9792 a year to $37,831 a year.” While other estimates are lower, they nevertheless predict that “we can expect fees to rise more steeply in degrees with high private benefits and strong international demand, such as law”. The increased fees will mean law students are in debt for much longer: “The payback period for a four year professional degree such as Law will stretch from 14 years now to 20 to 25 years, depending on which university you choose.” Students will also be required to pay a higher rate of interest over the life of the debt. However, some of the plans might not be easily implemented. The government says the new interest arrangements will apply retrospectively to former students, but Monash law professor Justin Malbon questions whether that would be legal: “At its heart there’s an arguable case that it is a contract, and there’s an arguable case that taking into account the terms of the original legislation that they cannot later come along and unilaterally vary the contract to add in terms that never existed in the first place.”