1×02: Idle Persons and Incorrigible Rogues

In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”

1×01: Mr Trumble goes to Washington

In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”

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.”

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”.

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.”

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.

Review to question police veto over diversion

Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.

Court of Appeal guideline judgment urges CCOs over jail

In December last year, the Court of Appeal delivered its judgment in Boulton v R [2014] VSCA 342. This was the first ever guideline judgment delivered under Part 2AA of the Sentencing Act 1991 (Vic), which allows the Court of Appeal to go beyond the specific circumstances of a case and set out broad principles that should be applied in sentencing. This case considered when and how Community Correction Orders should be imposed. The Sentencing Advisory Council last year noted that CCOs were not being used as widely as parliament had expected, while sentences of imprisonment had increased. Significantly, the Court of Appeal unanimously held “the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her” and should be considered as an alternative to imprisonment. Rejecting an argument that jail should be the primary way to achieve the sentencing purpose of punishment, the Court said “a CCO … is punitive in nature, and is intended — and expected — to operative punitively for every day of its operation.”

Life without parole breaches children’s rights: UN

In 1988, two NSW teenagers were sentenced to life imprisonment for rape and murder. At the time, they could apply for release after 10 years. However, the NSW Government repeatedly changed the law to ensure they were “cemented in jail and were never to be released”, in the words of then Premier Bob Carr. The Human Rights Law Centre took their case to the United Nations Human Rights Committee, making a number of arguments about the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Their three strongest arguments were: First, that “the imposition of a life sentence without the possibility of parole in respect of a juvenile offender is incompatible” with Article 10, paragraph 3, which states: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Second, that “the imposition of a life sentence [without parole] on a juvenile constitutes cruel, inhuman and/or degrading punishment” contrary to Article 7. And third, that sentencing the teenagers to an adult sentence without giving them an opportunity to show their rehabilitation was a breach of Article 24, which requires protection of children. The Committee agreed with these arguments at paragraph 7.7. The Australian Government now has 180 days to respond to the Committee’s findings. Daniel Webb of the HRLC argues that response needs to include amendment of the NSW sentencing law.

Suspended sentences no longer an option

In a major change to Victoria’s sentencing system, “From 1 September 2014, Victorian courts can no longer impose suspended sentences. This sentencing option was progressively abolished in 2013 and 2014 by the Sentencing Amendment (Suspended Sentences and Other Matters) Act 2013.”  The Government argues that suspended sentences “allow offenders to walk free from court without any supervision”, and suggests that the new Community Corrections Orders should be used as an alternative. However, Sentencing Advisory Council statistics show that “as use of suspended sentences continued to decline [during the phase-out period], so did CCOs—while orders for imprisonment and fines continued to increase”. The SAC is calling for further research to determine why judges are not using CCOs in the way the Government had predicted. Some lawyers argue the removal of sentencing options leads to unjust outcomes by reducing the ability to tailor sentences to the individual case.