Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Monday, 11 June 2018

The Turnbull Government is about to decide what is in the "public interest" and what is "fair and accurate reporting"...


And how the Turnbull Government couches these definitions in relation to national security and classified information may decide if a whistleblower or journalist ends up spending two years in an Australian gaol.

Excerpts from National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 currently before the Parliament of Australia:

122.4 Unauthorised disclosure of information by Commonwealth officers and former Commonwealth officers
 (1) A person commits an offence if:
(a) the person communicates information; and
(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth  entity; and
(c) the person is under a duty not to disclose the information; and
(d) the duty arises under a law of the Commonwealth.
           Penalty: Imprisonment for 2 years.
(2) Absolute liability applies in relation to paragraph (1)(d)
Note: A defendant bears an evidential burden in relation to the matters in 10 this subsection (see subsection 13.3(3)).

122.5 Defences
Powers, functions and duties in a person’s capacity as a 4 Commonwealth officer etc. or under arrangement……
Information communicated in accordance with the Public Interest Disclosure Act 2013
(4) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information in accordance with the Public Interest Disclosure Act 2013.
Note: A defendant bears an evidential burden in relation to the matters in 24 this subsection (see subsection 13.3(3)).
Information communicated to a court or tribunal
(5) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information to a court or tribunal (whether or not as a result of a requirement).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Information dealt with or held for the purposes of fair and accurate reporting…
(6) It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that the person dealt with or held the information:
(a) in the public interest (see subsection (7)); and
(b) in the person’s capacity as a journalist engaged in fair and accurate reporting. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......


SECRECY OFFENCES - DEFENCES AND OTHER MATTERS

Recommendation 26
5.87 The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:
§ proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,
§ proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,
§ proposed section 122.5(5) – relating information provided to a court or tribunal, and
§ proposed section 122.5(8) – relating to information that has been previously communicated. 

Recommendation 27
5.90 The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.
The Committee also recommends that the Government consider further refinements to the proposed defence in order to
§ make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,
§ ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and
§ allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

The Australian Attorney-General and Liberal MP for Pearce Christian Porter sent out this media release on 7 June 2018:

Attorney-General, Christian Porter, welcomed the release today of the Parliamentary Joint Committee on Intelligence and Security on the Government’s National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

"This is a major step forward in securing passage of this critical legislation and protecting Australia’s democratic systems from Foreign Interference, and it is my expectation that the Bill will be considered and passed during the next sitting period later this month," the Attorney-General said.

"The Committee has made 60 recommendations, the large majority of which are minor changes to definitions and drafting clarifications. The most substantive changes are those that adopt the Government’s proposed amendments which I submitted to the Committee as part of its deliberations earlier this year.

"Those Government amendments expanded the public interest defence for journalists and created separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments were designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations.

"In addition to minor drafting amendments and the adoption of the substantive Government amendments that I provided earlier this year, the additional substantive changes now recommended include that:

*There be a reduction to the maximum penalties for the proposed new secrecy offences, and to require the consent of the Attorney-General to any prosecution under these proposed new secrecy offences;
* That all secrecy offences in other Commonwealth legislation are reviewed; and
* Clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation.

"Even in the time that it has taken to consider the Espionage and Foreign Interference Bill, the threat environment has changed and become more acute. As senior ASIO officials have said repeatedly in recent months, we now live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more tradecraft to engage in espionage and foreign interference than at any time since the Cold War."

"Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant recommendation of the report is that the Bill be passed."

The Attorney-General said this Bill and the Foreign Influence Transparency Scheme Bill were both critical to modernising our national security laws as part of the Turnbull Government’s commitment to keep Australians safe and the Attorney-General wanted to make particular note of the hard work of the Committee in the last two weeks to produce this most recent Report.

"Safeguarding Australia’s national security will always remain the Turnbull Government’s number one priority and the Committee’s role in considering and making amendments to national security legislation is at the centre of a process that has seen ten tranches of national security laws passed since 2014, with the Government accepting 128 recommendations of the Committee, resulting in 293 Government amendments," the Attorney-General said.

"This process was conducted squarely in the national interest and represented a real fulfilment of Australians expectations for cooperative bipartisan conduct when serious national security issues are at stake. On this point I would like to personally thank the Chair Andrew Hastie MP, the Shadow Attorney–General, the Hon Mark Dreyfus QC MP, and Deputy Chair, the Hon Anthony Byrne MP, for their skilled and good faith dealings with my office to deliver recommendations which ultimately improve the Bill."

It goes without saying that incorporated community organisations, grassroots activists and social media bloggers/commentators are not afforded the protection of any detailed set of defences set out in the bill or in report recommendations.

On 8 June 2018 this was how the Australian Conservation Foundation (ACF) and World Wildlife Fund - Australia saw their position under the provisions of this bill and review recommendations:

WWF-Australia and the Australian Conservation Foundation say charities who hold the Australian Government to account on its environmental record, could be charged under proposed foreign interference and espionage laws.

Both groups say changes recommended by a bipartisan committee, to address “overreach” concerns with the Bill, don’t go far enough.

“We could still be charged with espionage just for doing our job, which is a ridiculous situation,” said WWF-Australia CEO Dermot O’Gorman.

Charities such as WWF-Australia and ACF are often sought out by international bodies to provide independent analysis and a scientific assessment on the Australian Government’s environmental performance.

If either organisation briefed the International Union for the Conservation of Nature (IUCN) on failings to address threats to endangered species they could be charged with espionage. 

Or if they gave evidence to the Organisation for Economic Co-operation and Development (OECD) on shortfalls in Australia’s record on the environment they could face espionage charges. 

“Providing independent analysis is core business for environmental organisations trying to save Australia’s forests and threatened species,” Mr O’Gorman said.
“Would the 2050 Plan to save the Great Barrier Reef have happened without attention from UNESCO?”

ACF Acting Chief Executive Officer, Dr Paul Sinclair said: “Protests and advocacy may make some politicians uncomfortable, but they are essential ingredients of a vibrant democracy and healthy environment.

“Our security is of course important. But restricting civil society advocacy in its name is dangerous and would limit the community’s ability to hold the powerful to account for any damage they cause to our clean air, clean water and safe climate.

“All parties must work to rewrite this bill to strengthen protections for the public oversight, free expression and peaceful protest that makes our democracy strong.”

These conservation organisations have some reason to be concerned as committal for trial for an espionage or foreign interference offence is essentially a political decision taken by the Attorney-General, given s93.1 of National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 requires consent from the Attorney-General to proceed.

Given the antipathy displayed by the Abbott and Turnbull Coalition Governments towards any form of organised political, social or environmental activism, it is not hard to imagine a scenario in which a federal government would act maliciously against those opposing its policy positions or actions and use the provisions in this bill to effect such an act.

Friday, 8 June 2018

Being political tzar of all one surveys does not always mean that the world will bow down before you


There is no disputing that since becoming the ministerial head of that new 'super' federal government department, the Department of Home Affairs, Minister for Immigration and Border Protection Peter Craig Dutton has enjoyed a level of political power not shared by his ministerial colleagues. 

However he is obviously not happy that this power does not intimidate Australian courts and tribunals.

Perhaps this is because his Migration and Refugee Division and Character Assessments and Cancellations Branch are not always winning Dutton's war against orphans, refugees and those under threat of torture.

Administrative Appeals Tribunal decisions1 in 2018:

The Department of Immigration and Border Protection refused the applicant’s Protection visa. The applicant claimed he could not return to Malaysia due to his homosexuality as he would be subject to discrimination and abuse. The Tribunal set aside the decision. 

An application made by a family of three for Protection visas was refused by a delegate of the Minister for Immigration and Border Protection. The applicant seeking protection claimed he was at risk of torture if returned to Pakistan. The Tribunal remitted the decision with the direction that the applicant satisfied section 36(2)(aa) of the Migration Act 1958.

The review applicant sought two Orphan Relative visas for his younger siblings on the basis that their only existing carer, their mother, was incapacitated and could not care for them. The applications were refused by a delegate under section 65 of the Migration Act 1958 and the Tribunal remitted the applications for reconsideration with the direction they met the criteria for the visas.


The Department of Immigration and Border Protection refused the visa applicant's Student visa. The visa applicant was a child residing in Somalia and both of his parents were deceased. His maternal aunt, an Australian citizen, was his carer and was attempting to return home to Australia to her family with the child. The Tribunal set aside the decision. 


Footnote:

1. "The review of decisions to refuse or cancel a visa on character grounds is a small component of the broad range of decisions about visas reviewed by the AAT, and an even smaller component of the overall caseload managed by the AAT. 
To put these matters in context, in 2016–17, the Tribunal finalised 42,224 reviews, of which 168 decisions (or less than 0.4 per cent), related to visa cancellations and refusals on character grounds
In considering and deciding these matters, Tribunal members are bound to apply Ministerial Direction No. 65 which sets out three primary considerations which must be taken into account. These include protection of the Australian community; the best interests of minor children in Australia; and expectations of the Australian Community.  The Direction also sets out five ‘other considerations’ which must also be taken into account, including: international non-refoulement obligations; the strength, nature and duration of ties; impact on Australian business interests; impact on victims; and the extent of impediments if removed.  These decisions are routinely published and contain an explanation of the Members’ evaluation of each of these considerations." [AAT appearance at Senate Estimates, 25 May 2018]

Monday, 28 May 2018

Office of Environment and Heritage v Clarence Valley Council (2018)


Clarence Valley Local Government Area covers approximately 10,441 square kilometres with nine heritage conservation precincts and official heritage listings as long as your arm.

It processes up to $100.5 million worth of development applications in a financial year.

With so much environmentally sensitive land, so many nature reserves, large swathes of native title, state forests and national parks, ancient cultural sites, unlisted historical burials, heritage buildings/bridges/cemetaries, quarries and a good many planning decisions to make, there is also a possibility that something will go awry.

This entry in the NSW Online Registry - Court Lists indicates that all is not well:

Land and Environment Court, Sydney
Justice T Moore
Office of Environment and Heritage v Clarence Valley Council
Case Number: 2018/00119684
Jurisdiction: Criminal
Class 5 Directions Hearing on 25 May 2018.

According the NSW Office of Environment and Heritage website; Proceedings in Class 5 involve summary criminal enforcement proceedings, usually by government authorities prosecuting offences against planning or environmental laws and Class 5 prosecutions are heard by a judge without a jury.

This matter probably began its journey through the court in mid-April 2018 (or perhaps earlier) but it is unlikely council will tell the Clarence Valley electorate what event led to this court case anytime soon, as even a minimum degree of transparency concerning litigation is often missing in action.

Friday, 18 May 2018

Federal Circuit Court on Thursday sentenced Trek North Tours owner operator to 12 months' prison and fined him $67,000


Leigh Alan Jorgensen, Financial Review, 13 May 2018

In the continuing matter of A.C.N. 156 455 828 Pty Ltd & Anor.

Fair Work Ombudsman, media release, 14 May 2018:


Jail term imposed in Fair Work Ombudsman’s first contempt of court case

A Northern Queensland business operator has been jailed – and then released pending the outcome of his appeal – as a result of the Fair Work Ombudsman’s first contempt-of-court action.

On Thursday May 10, the Federal Circuit Court sentenced Leigh Alan Jorgensen - the owner-operator of a Cairns company trading as Trek North Tours – to a 12-month jail term and fined him $84,956 for committing contempt of court by contravening a freezing order that applied to funds in his company’s accounts.

The Court ordered that Jorgensen’s jail term be suspended after he had spent 10 days in jail on the condition of payment of the fine.

Jorgensen sought an urgent stay of the orders in the Federal Court and lodged an appeal against his conviction and sentence. In accordance with her model litigant obligations, the Fair Work Ombudsman agreed to the stay on conditions. On May 11, the Federal Court ordered that his sentence be stayed and Jorgensen be released from jail on conditions, pending the outcome of his appeal.

A Court date has not yet been set for the appeal hearing but an order has been made that it be expedited.

The matter is the first time the Fair Work Ombudsman has commenced a contempt of court action and the first time a jail term has been imposed as a result of the Agency’s actions.

Judge Salvatore Vasta imposed the jail term after finding Jorgensen had committed contempt of court when he contravened a freezing order the Fair Work Ombudsman secured against his company in 2015. 

Freezing orders were imposed in the Federal Circuit Court in 2015 preventing any dispersion of Jorgensen’s and his company’s assets until such time as they complied with penalty and back-payment orders resulting from the Fair Work Ombudsman taking legal action against them for underpaying five back-packers on 417 working holiday visas in 2013 and 2014.

The relevant orders from that legal action, imposed by the Federal Circuit Court in June 2015, were for Jorgensen to pay a $12,000 penalty and his company to pay a $55,000 penalty and back-pay the backpackers in full, all by 17 July, 2015.

The Fair Work Ombudsman took the step of securing freezing orders against both Jorgensen and his company after both failed to pay the amounts owed by the due date and receiving information that gave rise to concerns that Jorgensen would divert company assets to avoid payment of the penalties and back-pay.

At the time, Jorgensen’s communications with the Fair Work Ombudsman suggested he was prepared to ‘bankrupt’ his company to avoid paying the penalties and back-pay order.

Jorgensen had also previously told Fair Work inspectors investigating the underpayments that the backpackers ‘would not get a cent’ in back-pay.

After the freezing orders were imposed, Jorgensen paid the penalty imposed on him personally into Court, resulting in the freezing order against him being lifted.
However, Jorgensen’s company failed to pay its penalty and failed to back-pay the workers, resulting in the freezing order against his company remaining in place.

The Fair Work Ombudsman commenced legal action against Jorgensen for contempt of Court last year, alleging that Jorgensen committed the offence of contempt of court in August 2015 when he contravened the freezing order against his company by transferring a total of $41,035 from two frozen accounts into his family trust account.
Judge Vasta found that the Fair Work Ombudsman had presented evidence to prove, beyond a reasonable doubt, that Jorgensen committed the offence.

Pending the outcome of his appeal, the Federal Court has released Jorgensen on conditions including that he surrender his passport, remain in Queensland and report to Police twice a week.

Fair Work Ombudsman Natalie James says that the commencement of these proceedings demonstrates that her Agency is prepared to use every tool at its disposal to ensure justice is served.

“We will use every lever open to us to ensure the integrity of the administration of justice and compliance with court orders imposed under the Fair Work Act 2009.
“This includes taking unprecedented new actions available to us across the legal framework such as this one.”

BACKGROUND

Australian Securities and Investments Commission (ASIC), media release, 6 February 2017:

17-023MR Former company director charged with making false or misleading statements

Former company director Leigh Alan Jorgensen, of Cairns, Queensland, has been charged with making a false or misleading statement to ASIC.

In February 2016, Mr Jorgensen lodged with ASIC a Form 6010 to voluntarily deregister A.C.N 156 455 828 Pty Ltd (ACN 156 455 828), in which ASIC alleges that Mr Jorgensen falsely and misleadingly claimed the company had no outstanding liabilities. At the time, ACN 156 455 828 had an outstanding liability owing to the Commonwealth and Mr Jorgensen was the sole director.

The charge was brought against Mr Jorgensen following an ASIC investigation into his conduct as a director of the company.

Mr Jorgensen is due to appear at the Cairns Magistrates Court on 21 March 2017.
The Commonwealth Director of Public Prosecutions is prosecuting the matter.

Background

The matter was brought to ASIC's attention by the Fair Work Ombudsman (FWO), who initiated legal proceedings against Mr Jorgensen and ACN 156 455 828 for unpaid employee entitlements. The FWO obtained judgement against ACN 156 455 828 which, in part, required the company to pay the Commonwealth a pecuniary penalty of $55,000. The order was obtained by the FWO before Mr Jorgensen lodged the Form 6010 to deregister ACN 156 455 828.

As a result of ASIC's investigation, Mr Jorgensen has been charged with contravening section 1308(2) of the Corporations Act 2001 (Cth).

Mr Jorgensen ceased as a director of ACN 156 455 828 on 1 March 2016. A Liquidator was appointed to ACN 156 455 828 on 29 July 2016.

Editor's note 1:
Following a hearing at the Cairns Magistrates' Court on 21 March 2017, the matter was adjourned for further mention until 16 May 2017.
Editor's note 2:
Following a hearing at the Cairns Magistrates Court on 16 May 2017, the matter was adjourned for further mention on 27 June 2017.
Editor's note 3:
Following a hearing at the Cairns Magistrates Court on  27 June 2017, the matter was adjourned for further mention on 25 July 2017.
Editor's note 4:
Following a hearing at the Cairns Magistrates Court on  25 July 2017, the matter was adjourned for further mention on 22 August 2017.
Editor's note 5:
Following a hearing at the Cairns Magistrates Court on  22 August 2017, the matter was adjourned to 5 September 2017.
Editor's note 6:
Following a hearing at the Cairns Magistrates Court on  7 September 2017, the matter was adjourned for further mention on 19 September 2017. 
Editor's note 7:  
A warrant was issued for Mr Jorgensen following his failure to attend the Cairns Magistrates Court on 19 September 2017.
Editor's note 8:
Following a hearing at the Cairns Magistrates Court on  27 September 2017, the matter was adjourned to 3 October 2017.
Editor's note 9:
Following a hearing at the Cairns Magistrates Court on 3 October 2017, the matter was set down for a committal hearing on 24 November 2017.
Editor's note 10:
Following a hearing at the Cairns Magistrates Court on 24 November 2017, the matter was adjourned to 13 February 2018.

Monday, 14 May 2018

Aboriginal elders calling for NSW Berejiklian Government to commit to expanding the youth Koori court program



The Guardian, 7 May 2018:

Aboriginal elders have called for the NSW government to commit to expanding the youth Koori court program after an evaluation found it halved the amount of time young people spent in detention. The court began as a pilot project at Parramatta children’s court in February 2015 but has not received ongoing funding. A University of Western Sydney evaluation has found it cut the average number of days spent in youth detention, as well as helping address underlying issues such as unstable accommodation, lack of engagement in education and employment, and disconnection from Aboriginal culture. Elders said it reached children who had little family support and were isolated from the community. 

Sunday, 6 May 2018

Problems with the Murray-Darling Basin plan just keep mounting and the NSW Northern Rivers needs to make sure these problems don't become ours


When it comes to the Murray-Darling Basin river systems there is never any really good news - we go from reports of town water shortages, pictures of permanently dry river beds and allegations of widespread water theft to the possibility of a fundamental legal error in the master plan circa 2012.

The Guardian, 2 May 2018:

One of Australia’s foremost lawyers has issued an extraordinary warning that the Murray-Darling basin plan is likely to be unlawful because the authority overseeing it made a fundamental legal error when it set the original 2,750-gigalitre water recovery target in 2012.

Bret Walker QC, who chairs the South Australian royal commission into the Murray-Darling basin plan, issued the warning in a second issues paper. He also spelled out the far-reaching implications of the plan being unlawful.

Not only does it mean that the original water recovery target of 2,750GL was likely to have been set too low to deliver the environmental goal of the Water Act and could be challenged in court, but it also means that amendments to the plan now being debated by the Senate are likely to be invalid as well.

These include a plan to trim 70GL from the northern basin water recovery targets and a suite of projects, known as the sustainable diversion limit adjustment projects, which would be funded in lieu of recovering 605GL in the southern basin.

Both are being strongly criticised by scientists and environmentalists because they believe that they further undercut the environmental outcomes of the plan. 
The Murray-Darling Basin Authority (MDBA) says it has relied on the best available science in recommending the changes.

The new uncertainty over the validity of the amendments will make it difficult for crossbenchers to support them as the Coalition government has urged.

Walker has provided a roadmap for environmental groups or an individual affected to challenge the plan in court.

At the heart of his advice is his view that the Water Act directs the MDBA to ensure environmental outcomes are achieved when it set the environmentally sustainable level of take (ESLT) from the river system. This is the flipside of setting the water recovery target.

But instead of considering the environmental outcomes only, the MDBA applied a triple bottom line approach, giving equal weight to social and economic impacts of water recovery.

“The MDBA also appears to have approached the word ‘compromise’ in the definition of ESLT in a manner involving compromise between environmental, social and economic outcomes rather than in relation to the concept of ‘endangering’ or ‘putting in danger’ environmental criteria such as key environmental assets, and key ecosystem functions,” the SA royal commission said.

 “The commissioner is inclined to take the view that this approach to the word ‘compromise’ in s4 of the Water Act is not maintainable, or alternatively that he is presently unable to see how it is maintainable,” the paper says.

“There is also evidence that recovering an amount of water for the environment of 2,750GL does not, as a matter of fact, represent an ESLT in accordance with the definition of that term under the Water Act.”

Walker pointed to numerous reports, including a 2011 CSIRO report which said modelling based on a 2,800GL recovery target “does not meet several of the specified hydrological and ecological targets”.

There is also evidence that the MDBA received legal advice on more than one occasion, consistent with the commissioner’s concerns.

The issue of water sustainability in the Murray-Darling Basin affects not just those living in the basin and the economies of the four states this large river system runs through – it also affects the bottom line of the national economy and those east coast regions which will be pressured to dam and divert water to the Basin if its rivers continue to collapse.

One such region is the Northern Rivers of New South Wales and in particular the Clarence River catchment area and the Clarence Valley Local Government Area.

Almost every year for the past two decades there have been calls to dam and divert the Clarence River – either north into south-east Queensland or west over the ranges into the NSW section of the Murray Darling Basin.

The latest call came last month on 18 April from Toowoomba Regional Council in south-east Queensland:



The response came on 24 April via NBN News and it was a firm NO:

However, because communities in the Murray-Darling Basin have for generations refused to face the fact that they are living beyond the limits of long-term water sustainability and successive federal governments have mismanaged water policy and policy implementation, such calls will continue.

These calls for water from other catchments to be piped into the Basin or into SE Queensland are not based on scientific evidence or sound economic principles. 

They are based on an emotional response to fact that politicians and local communities looking at environmental degradation and water shortages on a daily basis are still afraid to admit that they no longer have the amount of river and groundwater needed to maintain their way of life and, are wanting some form of primitive magic to occur.

The Clarence River system is the most attractive first option for those would-be water raiders, but experience has shown the Northern Rivers region that once a formal investigation is announced all our major rivers on the NSW North Coast become vulnerable as the terms of reference are wide.

The next National General Assembly of Local Government (NGA) runs from 7-20 June 2018.

If Toowoombah Regional Council’s motion is placed on the assembly agenda it is highly likely that a number of councils in the Murray-Darling Basin will announce their support of the proposal.

Northern Rivers communities need to watch this NGA closely.

Tuesday, 1 May 2018

In incremental moves Trump is distorting rights and protections in the U.S.


The U.S. Dept. of Justice Manual contains a collection of basic manuals, guidelines, policy statement and procedures that govern the action of U.S. Attorneys working for the department.

The U.S. Attorneys’ Manual having recently been reviewed by the Trump Administration no longer contains this section for the instruction of its law officers – in PUBLIC SAFETY,  PUBLIC TRIALS, PUBLIC SAFETY & MEDIA RELATIONS sections 1-7.112 Need for Free Press and Public Trial.



Friday, 20 April 2018

A measure of justice for an Australian tweeter



The win won’t eradicate the sustained personal stress or financial difficulties that such an unfair dismissal imposed – still it was pleasing see this tweeter's actions recognised as the right to freedom of political expression.

Hopefully Comcare will not be so bloody minded as to appeal the judgement,

The Sydney MorningHerald, 18 April 2018:

A  former Immigration official sacked over tweets critical of Australia's asylum seeker policy has won a fight for compensation, after an appeals tribunal found her dismissal was unlawful and described government efforts to restrict anonymous comments from its employees as Orwellian.

The decision on Monday will redirect scrutiny to the Immigration Department's dismissal of Michaela Banerji for tweeting criticisms of detention policies, and challenges Australian Public Service rules stopping public servants from expressing their political views on social media.

Ms Banerji took the government to the Administrative Appeals Tribunal after federal workplace insurer Comcare refused to compensate her for the psychological condition that developed after she was sacked in 2013 over tweets from a pseudonymous Twitter account.

The tribunal overturned Comcare's decision and found she suffered depression and anxiety that could be classed an injury under federal compensation laws.

Ms Banerji was working in the Immigration Department when co-workers learnt she was behind the tweets railing against the government's treatment of asylum seekers.

She lost a high-profile attempt to stop her dismissal in the Federal Circuit Court in 2013, a decision seen as likely to curtail other bureaucrats' use of social media when judge Warwick Neville found Australians had no "unfettered implied right (or freedom) of political expression".

In a case that Ms Banerji's lawyer Allan Anforth from Canberra Chambers said could have implications for other public and private sector employees, the AAT said Comcare's refusal was based on a dismissal that was unlawful because it intruded on her right to free political expression.

Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not disclose confidential departmental information, but an internal investigation in 2012 found she had breached the code of conduct for government employees.

In a submission to the tribunal, Mr Anforth said the tweets were posted from her own phone and, in most cases, outside work hours.

The appeals tribunal found the Immigration Department itself had identified Ms Banerji after she posted anonymously, and said guidelines stopping public servants from publicly criticising the government should not be applied to anonymous comments.

"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," it said.

"Such conclusions might conceivably be open if the comments were explicitly attributed to, say, an unnamed public servant, but that hypothetical situation does not apply to Ms Banerji."

The tribunal found Ms Banerji appeared to have taken care not to have used information which could only have been in her possession as an Immigration employee.

It lashed the government decision to sack her, saying it "impermissibly trespassed upon her implied freedom of political communication", and "with a law only weakly and imperfectly serving a legitimate public interest".

"The burden of the code on Ms Banerji’s freedom was indeed heavy – the exercise of the freedom cost her her employment.

"In our opinion, there is no significant justification available to the employer here for the law which exacted that cost."

Comcare is considering the tribunal's decision. The findings could be appealed in the full Federal Court…..

Tuesday, 3 April 2018

NSW Bar Association: “As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.”


The Australian, 29 March 2018, p.6:

As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.
Sovereignty and dispossession, recognition and representation of interests: they are different facets of the same problem. It is something that we, as lawyers, have a duty to help solve. It is because of this duty that the legal profession welcomed the government’s reference to the Australian Law Reform Commission to examine, among other issues, rates of incarceration for the indigenous.

The Pathways to Justice report of the ALRC represents a comprehensive blueprint to address the shameful over-representation of indigenous people in our prisons. Swift and decisive action is required from commonwealth, state and territory governments to ensure its recommendations are implemented.

ALRC recommendations relating to sentencing and bail regimes, the repeal of mandatory sentencing laws, an effective justice reinvestment framework, culturally appropriate community-based sentencing options, and so on, are all aimed at how substantive, not just formal, equality before the law can be achieved for indigenous people. All recommendations are supported by the NSW Bar Association as important initiatives which will contribute to addressing Aboriginal incarceration rates.

The NSW Bar is pleased the ALRC supports establishment of indigenous sentencing courts including the NSW Walama Court. The Walama Court is critical in reducing indigenous incarceration. The model involves community participation and greater supervision, resulting in reduced recidivism and increased compliance with court orders to better protect the community. It is not a “soft on crime” initiative but rather a more effective manner to supervise offenders post-sentence which would enhance rehabilitation and prevent re-offending.
At this stage the NSW government has not allocated funds to establish the Walama Court in the 2018-19 financial year, despite the fact it would have long-term economic cost savings for NSW as fewer indigenous people will be imprisoned and rates of recidivism would be reduced…..

Australian Law Reform Commission (ALRC) Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133) Final Report, published on 28 March 2018.