UN refuses to shrink Tasmanian Wilderness area

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.

High Court strikes down school chaplains

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.

High Court upholds offshore detention of asylum seekers

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.

Qld repeals laws before High Court “implied right” challenge

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.

Budget prompts constitutional hypotheticals

The Commonwealth Government will deliver its budget today, but legal experts have raised questions about how key aspects will be passed through parliament. For example, the opposition parties have signalled their intention to block the government’s climate change policies, and in response Environment Minister Greg Hunt suggested he would include them as part of the budget. As professor Anne Twomey explains, constitutional rules about how the Senate deals with appropriation bills could lead to a crisis if neither side backed down. Similarly, the Clerk of the Senate, Rosemary Laing, said that including a new “deficit levy” in a supply bill would be legally problematic, as the constitution requires supply and taxation to be dealt with in separate bills. However, these remain hypothetical problems until the budget bills are revealed.

Round 2 of Chaplains case in High Court today

A follow-up to the School Chaplains case will be heard by the High Court today, again challenging expenditure by the Commonwealth government that is not backed by specific legislation. The earlier decision upheld the separation of powers by requiring legislative approval before the executive could spend taxpayers’ money. The Gillard Government responded with legislation that gave a general authorisation without specifying which programs were covered—today’s challenge will decide if that is sufficient. Professor George Williams thinks the Commonwealth will probably lose, and says, “What’s under challenge is the Commonwealth’s ability to give money to whomever it wants, whenever it wants. It’s hard to overplay the significance of this case. This goes to the very structure of how we are governed.”

No funding for Indigenous Law Centre

The Abbott Government will cut all funding from the Indigenous Law Centre at the University of NSW. Established in 1981, the ILC conducts research and publishes journals about Indigenous issues. Its director, Professor Megan Davis, says: “The legal issues affecting Indigenous communities are increasingly complex and part of our role is to explain the complexities of these laws in a way the community can easily understand.” The ILC has been an important contributor to the campaign for Constitutional recognition of Indigenous people, which the government officially supports

The Castle is Aus lawyers’ favourite legal film

A survey of Australian lawyers has determined that their favourite legal film of the last 40 years is The Castle. The movie follows the Kerrigan family’s bid to prevent the compulsory acquisition of their home to build a new airport runway. It includes two famous courtroom scenes, the first involving “the vibe” of the Constitution, and the second focussed on s 51(xxxi)’s requirement that Commonwealth acquisitions of property must be “on just terms”. (In reality, neither argument would prevent their eviction—while the “special value” of the land to its owner must be considered, this “cannot be used to compensate an owner for the sentimental value of the land”.) The Castle has previously been identified as the film that “best represents the real Australia”.

High Court to hear offshore detention challenge

The High Court has agreed to hear a challenge to Australia’s transfer of asylum seekers to Papua New Guinea’s Manus Island. The plaintiff’s submissions raise two arguments. First, they say the offshore processing scheme is unconstitutional because it goes beyond the “naturalization and aliens”, “immigration and emigration”, and “external affairs” powers in section 51. Alternatively, they say that using Manus Island as an offshore detention camp is unlawful because it would not adequately process claims or protect refugees. (This was the basis of the High Court’s 2011 M70 decision to overturn a similar plan to send asylum seekers to Malaysia.) The case will be heard against the background of ongoing investigations into the brutal killing of Reza Barati, and an ongoing tussle over whether PNG judges can order a human rights inquiry into the camp.

Governor-General to be sworn in and knighted

Australia’s first female Governor-General, Quentin Bryce, has finished her five year appointment. Her successor, Peter Cosgrove, will be sworn in today. He will also be awarded a knighthood (and Ms Bryce a dameship) after the Prime Minister asked the Queen to reintroduce those honours in Australia. The awarding of honours is a royal prerogative, though it is generally exercised on advice from the government.  Knights and dames had been removed from the Australian honours system in 1986 at the request of the Hawke government.