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.

Bias concerns force Qld Chief Justice to withdraw

Turmoil in the Supreme Court of Queensland continued yesterday, with Chief Justice Tim Carmody dramatically withdrawing from a case, and the President of the Court of Appeal Margaret McMurdo declaring she “cannot sit with him again on any court.” The Chief Justice’s appointment was controversial from the outset, with senior lawyers and judges expressing concern that he is politically biased and underqualified for the the role. Those concerns have not subsided.

Retiring Justice Alan Wilson gave a speech accusing Carmody CJ of calling other judges “snakes” and “scum”. The speech also condemned his work ethic: “The Chief Justice has not sat in an actual hearing since the 15th of February this year. He has withdrawn himself from all published court calendars so nobody knows when or whether he intends sitting again.” In response, Carmody CJ sought to prove he had a busy schedule by publishing his calendar of engagements.

This revealed he held a private meeting with child protection campaigner Hetty Johnston in April. At the time, he was one of three judges considering an appeal by Brett Cowan over his sentence for the rape and murder of 13-year-old Daniel Morcombe. In the wake of Cowan’s conviction, Johnston spoke to the media arguing that he “should not be released”: “These offenders are released from our courts on a daily basis and it must stop.” Her organisation, Bravehearts, formed a partnership with the Daniel Morcombe Foundation.

When McMurdo P discovered the meeting, she became concerned about the possible perception of bias, and asked the Chief Justice to disclose the meeting to the parties. An exchange of letters between the court and the lawyers followed, and ultimately Cowan’s legal team argued that due to the perception of possible bias, Carmody CJ should withdraw from the appeal bench. He told them they would need to be “armed to the teeth” to remove him, so they argued he should not make that decision himself as he appeared to have prejudged the matter.

At that point, Carmody CJ called a mention hearing and announced that while the application was “unmeritorious … it is in the best interests of this Court and overall public confidence in the administration of justice that I withdraw instead of prolonging this bizarre sideshow”.

He also released further correspondence that showed the depth of disagreement within the Court. McMurdo P said she was “deeply concerned” about the meeting with Johnston; Carmody CJ said his colleague’s investigation of the matter was an “exceptional interference with the ordinary judicial process”. Ultimately McMurdo P wrote to the Court registry: “I regret to inform you that following an extraordinary memorandum yesterday from the Chief Justice in relation to R v Cowan, I cannot sit with him again on any court. Please ensure in future that I am not listed to sit with the Chief Justice.”

The Court now needs to decide whether the remaining two appeal judges can deliver their decision, or if the appeal needs to be heard fresh by a new bench. The family of Daniel Morcombe are understandably upset by the delay and uncertainty; however, given the concerns about perceptions of bias were shared by lawyers and the President of the Court of Appeal, it is important that they be carefully addressed: “Not only must Justice be done; it must also be seen to be done.”

Victoria and Queensland debate statutory bills of rights

The Victorian Government’s Review of the Charter of Human Rights and Responsibilities Act 1996 (Vic) has begun with a call for public submissions. Attorney-General Martin Pakula said, “We’re inviting all Victorians to play a role in shaping how their fundamental rights are upheld by Government into the future.” The Review has published a background brief and discussion paper to frame the discussion, and has requested even brief submissions. Meanwhile, in Queensland, independent MP Peter Wellington offered support for Labor’s minority government on condition that it would investigate introducing a statutory bill of rights modelled on the Victorian Charter. Although he has subsequently said this is a low priority, civil libertarians have begun to agitate for change. James Cook University’s Kate Galloway says she has changed her mind and now supports a bill of rights, in part because Queensland’s unicameral parliament provides fewer checks and balances on the government of the day. It is unlikely a similar debate will occur at the national level; in 2009, Tony Abbott argued, “Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.”

Anzac tweet sacking prompts free speech debate

On Anzac Day, SBS sports journalist Scott MacIntyre made a series of posts on his personal Twitter account, criticising the historical behaviour of Australian soldiers, and people who celebrate the day. While his comments reflected the views of some historians, he was nevertheless sacked by SBS for breaching its social media policy. The president of the Australian Human Rights Commission, Gillian Triggs, explains that while the High Court has recognised an implied Constitutional freedom of political communication, it “is not a personal right for citizens. Rather it is a constitutional limit on the legislative powers of Parliament.” Therefore, an employment contract can restrict speech. Human Rights Commissioner Tim Wilson argues it is “absurd” to see this as “a free speech violation”, because “[n]o one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation”, even if that behaviour is outside the workplace. Swinburne University’s Jason Wilson says this “classical liberal” approach to human rights is flawed, because “it makes little practical difference if it’s your boss or the state telling you to shut up”. He argues the current system “puts the wealthy firmly in charge of the lower orders, without any pesky democratic interference.” (While the High Court has not directly addressed this issue, in 2013 a Federal Court judge ruled that the implied freedom “does not provide a licence to breach a contract of employment”.)

Chan and Sukumaran shot despite rehabilitation and pending appeals

Two Australian citizens, Andrew Chan and Myuran Sukumaran, were executed by firing squad in Indonesia overnight. They had been convicted as part of the Bali 9, who had been caught attempting to smuggle heroin to Australia.Six other people were killed alongside Chan and Sukumaran, and one woman’s execution was postponedMark Kenny argues, “By definition, jurisdictions retaining the death penalty believe some crimes are so serious that the perpetrators are beyond redemption and are of zero human value… that no rehabilitation is even possible. This is where the court’s original decision on February 14, 2006 was wrong as a matter of fact.” The pair are widely seen as models of rehabilitation: Chan became a Christian pastor and provided counselling to other prisoners, and Sukumaran established education programs earned a fine arts degree. His portraits became a focal point for campaigners against their execution: “by making his mark in paint, he has created a vivid reminder of the simple fact that real human lives are extinguished by the death penalty. … These paintings cry out against a monstrous inhumanity.” Their work made such a difference to the Kerobokan Prison that its governor appeared in court to support their plea for mercy. In recent weeks, President Joko Widodo refused to consider their individual circumstances, instead applying a blanket policy to reject clemency for drug traffickers. The Indonesian Constitutional Court has agreed to hear an appeal against this policy on 12 May. The Judicial Commission also said it would interview the Bali 9’s lawyers next week, to investigate claims the sentencing judge sought a bribe. However, these pending appeals did not halt the executions. The Australian Government is opposed to the death penalty everywhere in the world, and says there will be diplomatic consequences. It has already withdrawn its ambassador to Indonesia. However, the role of the Australian Federal Police in exposing the Bali 9 to the death penalty remains controversial.

Law Week events open the legal system to the public

Every year the legal profession runs Law Week, a series of events to engage with the community to share information and demystify the workings of the law. This year, it begins on 11 May. Some of these events are particularly useful for students, and most are free (but booking is advisable as places may be limited). Some highlights include opportunities to see how legal institutions work: the Sentencing Advisory Council will run a mock sentencing hearing, the Fair Work Commission will run a mock employment law hearing, and the Juries Commissioner’s Office will take you behind the scenes of jury selection. The Supreme, County and Magistrates’ Courts are holding an Open Day including behind the scenes tours and mock hearings. There will also be some interesting panel discussions, including experts on the media and the community’s role in violence against women, and police, lawyers and DNA experts discussing real cases in a panel on How to Get Away with Murder.

Justice Gordon promoted from Federal to High Court

Justice Kenneth Hayne will be forced by s 24 of the Constitution to retire in June when he turns 70, and the Government has announced he will be replaced on the bench by his wife, current Federal Court Justice Michelle Gordon. The appointment has been “widely applauded” by the legal profession. Justice Gordon has a very strong reputation as a lawyer and judge, and is a specialist in taxation and commercial law. Professor Andrew Lynch welcomed the decision to appoint a judge who would sit for 20 years: “There is a lot to be said for a bit of constancy.” While it is sometimes suggested that governments make such long appointments because they expect political support, only last month Justice Gordon made a high profile decision against the government. The appointment also answers concerns about gender balance on the High Court bench, restoring the proportion of women to 3 out of 7.

Is there a human right to a healthy environment?

The latest video in Castan Centre’s Have You Got That Right? series considers the right to a healthy environment. Monash University’s Associate Professor Adam McBeth says while the UN does not yet explicitly recognise it, “a new right to a healthy planet may continue to be fleshed out, emerging from our existing rights” to health, food, water, and the like. South Africa’s constitutional bill of rights includes section 24, which protects human rights “to an environment that is not harmful to their health or well-being” and “to have the environment protected, for the benefit of present and future generations”. In a decision upholding the government’s right to prevent the construction of a new petrol station, Claasen J of the South African High Court (roughtly equivalent to an Australian State Supreme Court) ruled that s 24 meant “[p]ure economic principles will no longer determine in an unbridled fashion whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future be balanced by its environmental impact…” In 2014, in a report considering the right to a healthy environment around the world, the UN’s Special Rapporteur on Human Rights and the Environment observed that “over 90 national constitutions recogniz[e] some form of the right”, including 30 African countries, but that “implementation was the major issue”.

VLRC kept busy with cannabis, while NSWLRC is gutted

The Victorian Law Reform Commission has released an issues paper on Medicinal Cannabis. The paper notes that the “terms of reference do not invite the Commission’s views on [the merits of] this policy”; instead, the Attorney-General asked it to consider how the policy could be implemented, and to ensure the expert advice of medical practitioners was taken into account. The two main questions it seeks to answer are “Who should be eligible to use cannabis for medicinal purposes?” and “How extensive should any Victorian medicinal cannabis scheme be?” The VLRC has asked the public for submissions in response by 30 April 2015, as it must report by 31 August. Meanwhile, the NSW government is scaling back their Law Reform Commission. It has not referred an issue for more than two years, and legal journalist Richard Ackland reports, “The position of chairman of the LRC has not been filled since James Wood retired over a year ago. No full-time commissioners have been appointed for over 12 months.” Furthermore, “All five of the existing LRC staff are seeking jobs elsewhere, and have been advised to do so by the department”; the Justice Department will instead take over the day-to-day administration of the LRC and allocate departmental staff when needed. Ackland suggests this may be an attempt by the executive to effectively abolish the NSWLRC as an independent body without parliament repealing the Law Reform Commission Act 1967 (NSW): “The commission, as a self-contained functioning entity, dedicated to independent investigation into legal policy issues, is finished.” (This approach has been taken before: when the Abbott Government’s attempt to abolish the Office of the Australian Information Commissioner was blocked in the Senate, it nevertheless redistributed staff to other agencies and closed the office, leaving the Commissioner to oversee the Freedom of Information system by himself, working on a laptop at home.)