Quentin Bryce to speak on Young Women and Leadership

The Sir Zelman Cowen Centre at Victoria University has established a Governors-General Lecture Series to allow current and past holders of that high office to share their insights into Australian society. The next event in the program will be on Thursday, 10 September 2015, and features the Honourable Dame Quentin Bryce AD CVO, who will address the audience about Young Women and Leadership before taking questions from the floor. Interested students should submit an application form by 21 August.

Online form simplifies family violence intervention order process

On ABC’s Law Report this week, staff at the Neighbourhood Justice Centre discuss its new online application process for family violence intervention orders.

The standard application form for an intervention order in the Magistrates’ Court is 12 pages long and requires some legal knowledge to complete correctly. The NJC’s Louise Bassett said, “I’ve got to point out, I’ve got a law degree and I’m in the system, and when I first encountered this I didn’t know what to tick on the front page.”

The new form is interactive, so it reduces confusion by only including questions that are relevant to the applicant. It guides the user through the process, and uses plain English and examples to explain the information that is requested. It also provides security advice and contact information for relevant community organisations.

Magistrate David Fanning says the information generated by the form is more useful in court: “Well, the information that it generates for me when I’m looking at the matter is that it highlights risks and high risk. So therefore, a busy court, as all courts are, having that there straight in front of me makes it readily available. … [I]t’s both a better [time] economy and it also brings to the forefront immediately the level of risk.”

The new form is currently available for residents of the City of Yarra for a six month trial period, after which it is expected to be expanded to other areas.

Australia’s top precedent cases identified

 

A new study has identified the most frequently cited precedents in Australian law. Unsurprisingly, “[t]he top ten positions are occupied by High Court decisions.”

The number one decision, “significantly cited by over 1,200 later judgments”, was House v The King, a 1936 decision about when an appeal should be allowed. It established that “a result should be reviewed by an appellate court if a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect them, mistakes the facts or does not take into account some material consideration”, or “if the original judgement is ‘unreasonable or plainly unjust'”.

The results were determined by the team behind the case citator FirstPoint. A case citator is a tool that tracks the connections between legal precedents, such as when they are applied, distinguished or overturned. This allows lawyers and judges to identify relevant precedents and determine whether they are binding or persuasive.

US non-profit organisation sued for re-publishing the law

Public.Resource.Org is a nonprofit organisation that is attempting to digitise and publish copies of all public domain government records in the United States. Its owner, Carl Malamud, believes “the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves.”

The State of Georgia is suing Malamud for publishing a copy of the Official Code of Georgia Annotated (OCGA), claiming it is a breach of the government’s copyright. Its statement of claim accuses Malamud of a “strategy of terrorism” by publishing copies of the law. Georgia does not publish a copy of the law itself, and instead refers its citizens to for-profit law publisher LexisNexis.

On the government side of the argument, the formatting and annotations of the OCGA may be subject to copyright. However, Malamud argues that because Georgia has designated the annotated version of the law as the official version, they must be in the public domain.

Many of the annotations in the OCGA (such as the history of amendments to a section) are a standard feature of the official versions of Australian laws. The Commonwealth and Victorian governments provide free PDF copies of all laws and regulations, and also allow groups such as AustLII and Jade to republish the documents. Jade adds additional annotations and owns the copyright to those.

States given one more year to end Sex Discrimination

In 2013, the Commonwealth Sex Discrimination Act 1984 was amended to extend its protection to sexual orientation, gender identity, and intersex status. An exemption was granted to all Commonwealth, State and Territory laws for one year, so that they could be reviewed and amended to comply with the new protections. In 2014, the exemption for Commonwealth laws was removed after a review determined they complied. The deadline for State and Territory laws has been extended again until 31 July 2016. When the exemption ends, State and Territory laws that conflict with the new provisions of the Sex Discrimination Act will be invalid to the extent of the inconsistency, due to the operation of section 109 of the Constitution.

Bill to strip citizenship from vandals and terrorists

The Abbott Government has introduced its citizenship-stripping bill — called the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 — into the House of Representatives. It applies to dual nationals, and contains three new ways they can lose their Australian citizenship: by committing certain crimes, by serving a declared terrorist organisation, or by engaging in certain conduct connected with terrorism.

Under a proposed new section 35A of the Australian Citizenship Act 2007, a dual national “ceases to be an Australian citizen” if and when they are convicted of specified Commonwealth crimes, described as “terrorist offences and certain other offences”. UNSW professor George Williams says the list of offences is too broad, and “appears to cover low-level offences that have only a very minor connection to terrorism”.

Williams points out that damaging Commonwealth property is on the list. This offence is unconnected to terrorism or sedition, and the offender doesn’t even need to know the damaged property belongs to the Commonwealth. If a dual national committed a minor act of vandalism — such as scratching a plaque on the banks of Canberra’s Lake Burley Griffin — their Australian citizenship would be forfeit.

Other parts of the Bill are more clearly tied to terrorism. Under the existing section 35, Australian citizenship “ceases” when a dual national “serves in the armed forces of a country at war with Australia”. The new version would extend this to include “fight[ing] for, or [being] in the service of, a declared terrorist organisation” (there are currently 20 organisations on this list).

The current legislation allows a dual national to apply to the Minister to voluntarily renounce their Australian citizenship. The proposed new section 33AA introduces the concept of “renunciation by conduct”: where a person “acts inconsistently with their allegiance to Australia”, this will be treated as if they had applied to renounce their citizenship. The conduct that triggers this provision ranges from supporting a terrorist organisation through to actually engaging in a terrorist act.

All of these provisions are framed as being automatic, triggered by the action of the person concerned. The Explanatory Memorandum states: “By acting in a manner contrary to their allegiance to Australia, the person has chosen to step outside of the formal Australian community”, and therefore they are effectively removing their own citizenship. However, in practical terms the person’s citizenship will continue to be recognised until the Government makes make a factual determination that the triggering conduct has occurred.

The Bill provides: “If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect at such time and to such persons as the Minister considers appropriate.” Furthermore, the Minister can decide to “rescind the notice”, and they must exercise these powers to issue and rescind notices personally.

While Immigration Minister Peter Dutton claims the law “operate[s] automatically, without a decision from the minister”, the Bill puts the Minister in the position of determining (by “becoming aware”) on behalf of the Government whether the “automatic” cessation of citizenship has occurred. This aspect of the proposal will likely come under scrutiny, as the role of the Minister in the decision-making process was the focus of Cabinet and public debate before the release of the bill.

The bill expressly provides that “[t]he rules of natural justice do not apply in relation to the powers of the Minister”. Natural justice is also referred to as procedural fairness, and generally requires an unbiased decision-maker, a right to be heard about a decision that will affect you, and a decision based on cogent evidence. Chief Justice French has said, “I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice.” Removing these basic standards raises the prospect of unfair decisions being made.

Section 39 of the Australian Security and Intelligence Organisation Act 1979 prohibits the Commonwealth from taking administrative action “on the basis of any communication in relation to a person made by the Organisation not amounting to a security assessment”. The Bill exempts the Minister from complying with this restriction, thereby allowing any information provided by ASIO to be relied upon; Bret Walker SC argues this amounts to “substituting a ministerial opinion based on untested hearsay and intelligence for the verdict of a jury”. ASIO has a history of making errors in even formal security assessments, so any move to rely on preliminary information increases the risk.

The Bill states that “[a]n instrument exercising any of the Minister’s powers under this section is not a legislative instrument.” This is designed to ensure the Minister’s notices are not covered by the Legislative Instruments Act 2003, which would require them to be presented to Parliament, and would make them susceptible to disallowance by a vote of either House.

The Bill also provides that “section 47 does not apply in relation to the exercise of [the Minister’s] powers” — exempting the Minister from the usual requirement to notify the affected person of the decision. As a result, the loss of citizenship under the Bill would be kept secret from the person concerned.

While they would retain the right to seek judicial review of the Minister’s decision to issue a notice, they would not discover this need until they sought to exercise a citizenship right and were refused. For example, a person who found themselves in difficulty overseas and sought consular assistance would be refused, and may not be in a practical position to challenge the decision. Even if they could commence a challenge, they may not know why they had lost their citizenship, and they may not be allowed to see the ASIO intelligence the Minister relied upon.

Labor has indicated it supports the general thrust of the Bill, so it is likely to be passed by Parliament. However, Opposition Leader Bill Shorten indicated he had reservations about some of the details.

If it passes, the Bill is likely to face a High Court challenge. Citizenship law expert Professor Kim Rubenstein told SBS: “The loss of citizenship is a very dramatic change in a person’s status in our democratic system and so the question is: to what extent is there a restriction on the Commonwealth’s power to remove someone’s citizenship and deprive them of their citizenship? There are questions of the separation of powers for automatic loss of citizenship.”

Reforming Chief Judge Rozenes resigns

Chief Judge Michael Rozenes has resigned from the County Court due to illness, after 13 years of service. Attorney-General Martin Pakula said, “Michael brought a warmth and generosity to the office of Chief Judge and will be sorely missed by all who worked with him. His considerable intellect and willingness to constantly improve and innovate have made the County Court a modern, progressive and more responsive institution.”

Rozenes oversaw the introduction of a number of specialist divisions and lists in the County Court, aimed at making the court more accessible to people. For example, he oversaw the adoption of the Koori Court in Melbourne after a successful pilot program in Latrobe Valley. He also created the Sexual Offences List to ensure “special attention” was given to the needs of victims and accused persons in such cases.

Other initiatives included the provision training and counselling for judges to deal with stress and trauma, and the introduction of electronic filing in civil cases in 2003 and criminal cases in 2015.

Labor to increase VCAT fees again, despite access concerns

The Andrews Government will not reverse VCAT fee hikes that caused a reduction in the number of cases it dealt with. Attorney-General Martin Pakula acknowledged that fee increases “contributed to a substantial drop-off in applications to the tribunal”, but will allow fees to increase by up to 10% for the 2015-16 financial year. He said the Government will work on a new fee structure to be implemented in the following year, as he had promised before the last election. Last year, statistics revealed that VCAT claims fell by 15-35% in lists affected by fee increases. Barrister Michelle Quigley QC warned, “Ordinary people just can’t afford it. It’s contrary to access to justice.”

Government to unveil controversial citizenship bill

The Abbott Government is expected to introduce a bill to Parliament today to allow the removal of Australian citizenship from dual citizens who fight with groups such as Islamic State. The Prime Minister says action is needed because there are “currently 120 Australians fighting with Daesh, also known as the Islamic State, with another 160 Australians supporting them through financing and recruiting”.

The issue caused embarrassment for the Government earlier this month when its preliminary discussions were leaked. Cabinet discussions are held in strict confidentiality, allowing ministers to “discuss proposals and a variety of options and views with complete freedom”. However, discussions of the citizenship proposal were revealed by the media, and six ministers reportedly expressed strong opposition to the original version of the plan. These included several whose portfolios are closely related to the issue, including the Attorney-General, the Defence Minister and the Foreign Affairs Minister.

A key sticking point was the proposal to give power to the Minister, rather than the Courts, to decide when to remove citizenship: “The deputy leader of the National Party went to the heart of the matter: ‘If you don’t have enough evidence to charge them in a court, how can you have enough evidence to take away their citizenship?’ According to participants, Dutton replied: ‘That’s the point, Barnaby. You don’t need too much evidence. It’s an administrative decision.'” Conservative constitutional expert Greg Craven described the plan as “plain dumb”: “even if this proposal ever did hit the statute books, it would last as long as a Melbourne warm spell. It would be irredeemably unconstitutional. By conferring a profoundly jud­icial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the High Court.”

In its defence, Abbott said the plan was “precisely what was recommended by the former independent national security monitor Bret Walker” in a 2014 report. That report does recommend “the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless”. However, Walker says this power should only arise “after a criminal trial”. He told the ABC, “I’d like to see something in the nature of a criminal trial. That is not conducted by a minister leafing through a manila folder with intelligence that will never be presented in a court of law to be tested.”

The Government maintains that any decision made by the Minister would be subject to judicial review. This is not the same as an appeal, and would allow people to challenge decisions on very narrow grounds relating to the process — and not including the merits of the decision. As the Immigration Minister insists, “the government’s not going to have the court second-guessing ministerial decisions”. Tony Abbott expressed a similar view this week: “They say they’ll put you on trial. Well, fair enough. But we all know the perils of that.” Supreme Court Justice Lex Lasry tweeted a riposte: “The perilous feature of putting people on trial is fairness.”

While the text of a bill has not been released, the latest version of the proposal to be floated in the media would amend the Australian Citizenship Act 2007 to make the cancellation of citizenship automatic when a person commits an act of terrorism or fights with a group such as Islamic State. This would remove ministerial discretion from the process, but would still allow an opportunity for the underlying fact to be tested in court. Section 35 of the Act already uses this system where a person serves with an enemy nation’s army — however, it has never been used, and therefore nobody has had standing to challenge its constitutionality. While Communications Minister Malcolm Turnbull insists “[t]he principles are well understood”, Charles Darwin University law lecturer Ken Parish believes it is “likely invalid”.

Ireland amends constitution to allow gay marriage; Australia debates conscience vote

Ireland has become the first country in the world to legalise same-sex marriage through a Constitutional referendum: “With the final ballots counted, the vote was 62 percent in favor of legalizing same-sex marriage, and 38 percent opposed. The turnout was large — more than 60 percent of the 3.2 million eligible voters cast ballots, and only one district out of 43 voted the measure down.”

All parties in the Oireachtas (Irish parliament) support same-sex marriage. However, Article 41 the Irish Constitution “guarantees to protect the Family”, and “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Legal advice suggested this meant the common law definition of marriage “between one man and one woman” could not be altered. Though others disagreed, the government was reluctant to simply legislate and risk the law being declared invalid.

A Constitutional Convention was established, made up one-third by politicians and two-thirds by ordinary citizens, and it recommended amending the Constitution to require (not just allow) legislation to permit same-sex marriage. Ireland’s Constitution is entrenched by a referendum process requiring a simple majority of voters to approve amendments. The weekend’s proposal was to add a line to the document: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” Following the successful vote, the Oireachtas will pass the Marriage Bill 2015, and it is expected that the change will be implemented before Christmas this year.

Tony Abbott responded by saying no referendum would be held in Australia, because “I don’t think anyone is suggesting the constitution needs to be changed in this respect”. Professor George Williams agrees, pointing out that in 2013 our High Court “described marriage in gender-neutral terms as being ‘a consensual union formed between natural persons in accordance with legally prescribed requirements'” and therefore same-sex marriage would be valid under section 51(xxi) of the Constitution.

In November, crossbench senator David Leyonhjelm introduced the Freedom to Marry Bill 2014 as a private member. The major parties are now debating internally how they should respond, and a big factor is whether the issue should be left to a conscience vote. The Coalition requires its MPs to vote against same-sex marriage, but senior members (along with Tony Abbott’s sister) are pushing for freedom to vote as they choose. Labor MPs are free to vote either way, but Deputy Leader Tanya Plibersek is pushing to require them to vote for marriage between “all adult couples irrespective of sex”. This conscience vote debate will ultimately determine whether the Freedom to Marry Bill is passed.