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.

Independent to move private member’s bill on abortion

The independent MP for Frankston, Geoff Shaw, has announced his intention to introduce a private member’s bill on abortion. Abortion was decriminalised in 2008 on the recommendation of the Victorian Law Reform Commission. Shaw’s proposals include “end[ing] the obligation for anti-abortion doctors to refer women to specialists who performed the procedure”, requiring “doctors to provide pain relief for fetuses during procedures, and for doctors to resuscitate babies who survive abortion attempts. He also wants counselling for families and informed consent included in the Act.” In an interview on ABC radio, Shaw struggled to explain why the changes were necessary.

Fairfax staff go on strike over job cuts

Journalists and photographers at Fairfax Media, which publishes newspapers including The Age and the Sydney Morning Herald, have gone on strike for 24 hours. They are protesting against the company’s decision to cut costs by laying off another seventy workers. Under the Fair Work Act 2009 (Cth), industrial action is a “protected” right only when negotiating a new employment agreement after the old one has expired (usually every 3-4 years). Strikes outside this bargaining period are unlawful, even if they are directly related to changes in employment conditions, and participants can be penalised. Fairfax is threatening to sack staff who do not attend work today.

UN demands Vic Gov take responsibility for rogue police

The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.

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.”

If pension age rises, should judges work longer?

The Abbott Government has confirmed its plan to increase the pension age from 67 to 70, with Treasurer Joe Hockey stating, “We should also not see someone’s life ending when they turn 65 or 70. They should work as long as they can.” Professor Brian Opeskin has asked whether the same logic should apply to judges, who are forced to retire at 70: “Just as the government is now asking us to accept that the retirement age for the pension should increase, we should ask whether the same thing should be considered for judges. Seventy is now quite young and many judges have a lot to contribute.” The judicial retirement age was enshrined in section 72 of the Constitution by a successful referendum in 1977, because the separation of powers makes it difficult to remove judges who are affected by advanced age. It would require another referendum to change the age.