TURC criticism prompts new Supreme Court list

The Supreme Court of Victoria has established a specialist Employment and Industrial List, which commenced on 1 January 2016. The list will manage proceedings involving employment contracts, breaches of confidence, and employment-related misleading and deceptive conduct.

It will also deal with allegations of “interference with contractual relations, industrial torts, secondary boycotts, and related contempt proceedings”. These are claims typically directed against industrial action taken by workers and their trade unions.

The establishment of the list comes after criticism by former High Court judge Dyson Heydon in the interim report of his Royal Commission into Trade Union Governance and Corruption, known as TURC. (This controversial inquisitorial body was criticised for political bias after Heydon agreed to speak at a Liberal Party fundraiser, but he cleared himself of wrongdoing and continued its hearings.)

Heydon claimed “extraordinary delay” in the Supreme Court’s hearing of industrial torts and related matters “will make the Australian legal system a laughing stock” and called for “consideration to be given to procedures which ensure swift determination of contempt applications”.

These comments were made in relation to a case study of a long-running and high-profile dispute between construction company Grocon and the Construction, Forestry, Mining and Energy Union (CFMEU) over the appointment of safety representatives. This dispute culminated in a massive protest outside the Myer Emporium construction site, and led to Grocon suing the CFMEU over industrial torts, secondary boycotts, and related contempts.

Grocon was represented in the Supreme Court by Michael McDonald SC. He was subsequently appointed to the Supreme Court Trial Division, and is the inaugural Judge in Charge of the Industrial and Employment List.

Medicinal cannabis to be legalised for epileptic children

The Victorian Law Reform Commission has delivered its report on the legalisation of Medicinal Cannabis. In October, the report was tabled in Parliament by Attorney-General Martin Pakula. In December, the Government introduced the Access to Medicinal Cannabis Bill 2015 into parliament, with the intention of having the scheme in place by “early 2017”.

The proposed legislation would allow cannabis to be prescribed to “eligible patients”, which would initially be limited to people under the age of 18 who have epileptic seizures that do not respond to other treatments. This is narrower than the VLRC’s recommendations, which also included patients suffering from severe symptoms of multiple sclerosis, cancer, HIV and AIDS. However, the bill would establish an Independent Medical Advisory Committee to recommend other categories of eligible patient, which could be added by regulation.

Fulfilling an election promise, the Andrews Government asked the VLRC to investigate the best way to implement the legalisation of cannabis for medical purposes. In the issues paper that began the public consultation process, the VLRC noted that the decision to legalise the drug had already been made, and the “terms of reference do not invite the Commission’s views on [the merits of] this policy”.

The VLRC received 98 submissions from lawyers, doctors, academicsactivists, community groups, and members of the general public — including one from the possibly pseudonymous Leaf van Amsterdam, who volunteered to be “a willing guinea pig” on the effects of medical marijuana.

The second reading debate on the bill will continue in the Legislative Assembly on Tuesday, 9 February.

Welcome back for 2016

Welcome to another exciting year of Legal Studies!

One of the most interesting things about the VCE Legal Studies course is the way it engages with current issues and controversies. This blog will help you identify issues and reforms that are relevant to the course, give you a brief summary, and link to news and commentary for further detail.

The best way to keep up to date is to subscribe to the email list, which will send you a copy of any new posts. You can also follow the blog on Facebook, Twitter or Tumblr.

I also try to categorise the posts according to how they fit in to the Study Design. On the right-hand-side of the site you can see the list of categories, and clicking on those will take you to all of the posts related to that topic.

All the best with your studies this year!

High Court rules donation bans, caps compatible with free speech

The High Court last week made an important decision on the implied constitutional freedom of political communication. Jeff McCloy, a property developer, challenged the validity of NSW restrictions on political donations. The High Court’s ruling was important because it upheld the laws, clarified the test to be applied in “implied freedoms” cases, and confirmed that equality of participation in democracy was a “grand underlying principle” of the Constitution.

In its 2013 Unions NSW v New South Wales decision, the High Court ruled that a ban on all non-voters making political donations was an impermissible restriction of the implied freedom of political communication. While the government claimed it was aimed at eliminating corruption, the Court held there was no clear link between the challenged provisions and that purpose, and therefore the law failed the Lange test.

This prompted McCloy to challenge provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which bans property developers from making political donations. Applying the logic of the precedent, he argued there was no reason to believe property developers were more likely to make corrupt donations than other people, therefore there was no rational connection to anti-corruption purposes.

However, a majority of the Court firmly rejected this argument, finding that “Property developers are sufficiently distinct to warrant specific regulation”, referring to “recent history” in NSW including a number of reports by the Independent Commission Against Corruption (ICAC). The law was therefore appropriately adapted to the legitimate purpose of preventing corruption or the appearance of corruption.

(The Court’s reliance on ICAC was interesting because the plaintiff’s illegal donations to Liberal Party MPs were uncovered through an ICAC investigation. In his testimony, McCloy said, “They all come to see me for money, I feel like a walking ATM, some days.”)

The Unions NSW case also struck down a combined cap on election spending by political parties and any affiliated industrial organisations. Although the law did not specify any particular target, the plaintiffs pointed out the Labor Party had maintained affiliation with trade unions for more than a century. Hayne J expressed concern this may have been the true target of the law, asking the NSW Government’s counsel, “Is there any other party to which 95G(6) presently has application? … Are we to ignore 100 years of history in this country, Mr Kirk? Are we to shut our eyes to what has been observed over the last decades?” The Court again held there was no rational link to an anti-corruption purpose, so the combined spending cap was unconstitutional.

McCloy sought to expand on this precedent, taking aim at the Act’s general cap on political donations. He argued “that the ability to pay money to secure access to a politician is itself an aspect of the freedom and therefore the subject of constitutional protection”. The High Court majority emphatically rejected this argument, holding that donation caps “are not only compatible with the system of representative government; they preserve and enhance it.”

They noted that in the absence of limits on donations, wealthy citizens may have a greater influence over our political system than others. The majority explicitly held that “Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.” Professor Graeme Orr argues this is the most significant aspect of the decision, because it balances the competing values of liberty and equality.

Another significant aspect of the decision was the Court’s attempt to clarify the second limb of the Lange test, which requires that a law is “appropriately adapted” to achieve its purpose. However, over a series of cases there was disagreement about how to judge this, and in particular whether this was a test of “proportionality”. In August this year, Sir Anthony Mason (who was Chief Justice from 1987-1995) gave a speech on Proportionality and its Use in Australian Constitutional Law, in which he identified three competing versions of the concept emerging from past High Court precedents.

In McCloy, the High Court majority confirmed that “proportionality analysis of some kind is part of the Lange test”, and clarified what this meant in the Australian context. They said it did not simply “involv[e] matters of impression, such as whether the legislative measures go too far, or not far enough”. Specifically, “there are at least three stages to a test of proportionality. … [T]hey are whether the statute is suitable, necessary, and adequate in its balance.” That final stage requires the Court to consider whether the burden on an implied Constitutional right outweighs the benefit of the law.

Critics of “judicial activism” argue that this allows unelected judges to interfere with the power of the Parliament to determine priorities and legislate accordingly. However, the High Court majority explicitly rejects this criticism: “The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker. … However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessments by courts of the public interest and benefit in a piece of legislation are commonplace. … To say that the courts are able to discern public benefits in legislation which has been passed is not to intrude upon the legislative function.”

Professor Anne Twomey suggests the decision may prompt legal change in jurisdictions around Australia:  “the High Court has opened the way for more comprehensive reform of political donations at the state and federal level. The excuse that it ‘might be unconstitutional’ no longer has legs.”

Northern Territory to resume push for Statehood

The Council of Australian Governments (COAG) “supported the Northern Territory Chief Minister’s resolve for the NT to become Australia’s seventh state by 1 July 2018,” which would be the 40th anniversary of self-government in the NT.

Section 121 of the Constitution allows the Commonwealth Parliament to establish new States. It can impose conditions on the new State, including setting different rules for its representation in the Commonwealth Parliament. Given that the NT’s current population is under 250,000, this would likely be necessary. While Tasmania is over-represented compared to its population, the minimum of 5 lower-house seats required by section 24 only applies to Original States.

In 1998, a referendum was held within the Northern Territory. However, it achieved only 48.1% support, largely because the NT’s significant Indigenous population was concerned about the possible impact on their land rights without the protection of the Senate’s review functions. The NT has a unicameral parliament.

Professor Rolf Gerritson of Charles Darwin University said the same issue was likely to be a sticking point in the new campaign: “I don’t think the proposal has a snowball’s chance in hell of getting up. … I expect the land councils would oppose the repatriation of the Land Rights Act. They have in the past. I think that would be a huge stumbling block in negotiations for statehood.” However, his colleague Ken Parish proposes overcoming this obstacle by establishing an Indigenous advisory body that would have the power of veto over amendments to land rights legislation.

This would need to be included in a new constitution for the NT. At present, its legislative, judicial and executive powers are delegated by the Commonwealth under the Northern Territory (Self-Government) Act 1978 (Cth), but this is not truly a Constitution as it can be amended by an ordinary bill in the Commonwealth Parliament — as it was in 1997 to remove the NT’s power over euthanasia laws. The NT will hold a Constitutional Convention system to consult with the public over the development of a new constitution.

COAG was established in 1992 to allow for intergovernmental discussions about issues of national importance. Its members are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.

Charter Review calls for tougher enforcement of rights

The Victorian Attorney-General, Martin Pakula, has tabled in parliament the report of the 2015 Review of the Charter of Human Rights. The review was conducted by Michael Brett Young, and took into account over 100 public submissions from individuals and community groups.

The most significant recommendations relate to enforcement of the Charter. Brett Young says the current Charter is “flawed” because it “does not include an ability to enforce the standards that it sets”. He notes: “Providing for human rights without corresponding remedies sends mixed messages to the public sector and to the community about the importance of those rights.”

One proposal is to create a stand-alone cause of action for breaches of the Charter. At the moment, section 39 allows people to raise a breach of the Charter only as part of a separate legal proceeding. People who can’t “piggy-back” their human rights case on top of a separate claim are left out. The Review recommends giving legal standing to “any human being who claims a public authority has acted, or is proposing to act, incompatibly with their human rights.”

The Review also recommends expanding the remedies that VCAT and the courts can provide for breaches of the Charter. It recommends they “should have power to grant any relief or remedy that [they] considers[] just and appropriate, excluding the power to award damages”. The focus should be on practical remedies, such as injunctions, that would improve compliance with Charter rights.

However, the Review also recommended: “Making damages a remedy under the Charter should be considered only as an incremental step once the direct cause of action is established and there is experience of it in operation. In Chapter 8, I recommend a further review of the Charter. That review should consider the inclusion of damages as a remedy.”

The long report includes a total of 52 recommendations, including strengthening the parliamentary review of bills and making the process more transparent; allowing the Minister to revoke a local council by-law that is incompatible with human rights; and ensuring that allegations of serious human rights breaches by police can be independently investigated.

It also specifically recommends the inclusion of a new Charter right: “that every person born in Victoria has the right to a name and to be registered as soon as practicable after birth.” This was in response to a campaign by the Castan Centre for Human Rights to improve the rate of birth registration in Indigenous communities

The Victorian Government has not yet responded to the recommendations.

VLA launches Independent Mental Health Advocacy

Victoria Legal Aid has launched a new service called Independent Mental Health Advocacy (IMHA). The new body is funded by the Department of Health and Human Services, and will provide assistance to people in negotiating the mental health system.

The Mental Health Act 2014 (Vic) was passed last year, and introduced a human rights-based approach to mental health services in Victoria. One major reform was the establishment of the Mental Health Tribunal, which oversees the assessment of people’s mental health and make compulsory treatment orders where necessary. Its decisions are reviewable by VCAT’s Human Rights List.

The new IMHA service will help people who are are subject to a compulsory order, who might be subject to one in future, or who have recently been discharged. It does not provide medical or legal advice, but helps people understand their rights and assists them in communicating their views to medical practitioners and agencies.

Where specialist legal advice or representation is required, IMHA will refer people to appropriate services, including Victoria Legal Aid.

 

Abbott replaced by Prime Minister Turnbull

Malcolm Turnbull has been sworn in as Prime Minister, after defeating Tony Abbott in a ballot for the leadership of the Liberal Party.

Australia has now had six prime ministers in the last eight years. The Coalition campaigned on a platform of stability in the wake of the Rudd-Gillard-Rudd years, telling voters “If you vote for the Labor party in 2013 who knows who you will end up with”, and promising stability.

However, Abbott’s leadership of the Liberal Party came under pressure due to his continued poor results in opinion polls. He survived a challenge in February after he asked for six months to prove he could improve the Coalition’s popularity, declaring that “It’s the people that hire, and frankly it should be the people that fire.”

However, the polls did not turn around, and after being informed that he was losing support, Abbott called a leadership spill. After a ballot in which he lost by 54-44, he resigned by sending a fax to the Governor-General, recommending that Malcolm Turnbull be sworn in.

The new Prime Minister promised to return to “thoroughly traditional cabinet government”, characterised by greater consultation and ministerial independence from the Prime Minister’s office.

Government considering marriage referendum

With separate private members’ bills introduced to parliament by the Greens, the Liberal Democratic Party, the Labor Party, and most recently a multi-party group,  the Coalition Government has come under pressure to allow its members a conscience vote on the issue.

After an extensive debate in caucus, the Coalition decided defer a decision on a conscience vote until after the next election. While the Coalition allows its backbench MPs to vote against party policy, the decision locks all Ministers in to opposing the bill.

During the meeting, Abbott told his colleagues he thought a referendum to settle the issue was “extraordinarily attractive“. There is speculation that his position is motivated by a belief that a “no” vote would make the reform difficult to justify, and referendums are historically unlikely to pass without strong bipartisan support.

This new position reflects a sudden change of mind on the part of the Prime Minister. In May, following Ireland’s referendum on the issue, Abbott said, “Referendums are held in this country where there’s a proposal to change the constitution. I don’t think anyone’s suggesting that the constitution needs to be changed in this respect. Under the constitution, questions of marriage are the preserve of the Commonwealth parliament.”

That view reflected the precedent established by the Same-Sex Marriage Case (2013), in which the High Court unanimously held: “the federal Parliament has legislative power to provide for marriage between persons of the same sex”.

Other Coalition members are pushing for a plebiscite, which is a non-binding national vote on an issue. In the past, plebiscites have been held on military conscription and the national anthem. According to the Australian Electoral Commission, a plebiscite held at the same time as the next election would cost $44 million to administer, and a stand-alone plebiscite would cost $158 million.