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

Sunday, 10 February 2019

And now for some good news......



David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the proper application of the law. The climate contention as a ground for refusing this mine was innovative; the first time climate change has been addressed this way in an Australian court using the concept of a carbon budget as its basis.
Like so many great ideas – its strength was its simplicity. While there was lots of necessary evidence and discussion about the carbon budget, geopolitical climate policy and Australia’s legal framework for climate change, ultimately our argument was simple:  if you accept the science, then the local legal framework compels you to refuse the mine because it’s clearly not in the public interest to increase emissions.
As Professor Steffen said “it’s one atmosphere, it’s one climate system, it’s one planet - and so we need to start thinking more carefully about the net effect of wherever coal is burnt, or oil or gas… The project’s contribution to cumulative climate change impacts means that its approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]

The Sydney Morning Herald, 8 February 2019:

When Planning Minister Anthony Roberts intervened a year ago to give a coal miner the unusual right to challenge its project's refusal in court, neither would have countenanced Friday's outcome.

Instead of settling the future of Gloucester Resources' controversial Rocky Hill coal mine near Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining in general.

The miner had thought it was merely challenging the Department of Planning's rejection of the mine's impact on visual amenity in the bucolic valley around Gloucester.

Instead, the Environmental Defenders Office, acting for residents opposed to the mine, grabbed the opportunity to join the appeal.

In what EDO chief David Morris describes as a "delicious irony", the court got to hear about the project's detrimental impact on climate change and the town's social fabric - despite Gloucester Resources arguing such intervention would be a "sideshow and a distraction".

Future generations will wonder why it took so long for any court in the land to hear such evidence when considering a coal mine project.

But Justice Brian Preston didn't just allow the EDO to provide expert evidence of the role greenhouse gas emissions play in driving climate change. He also accepted it as part of the critical reasons to reject the mine. "The decision forms part of what is a growing trend around the world on using litigation to fight climate change," Martijn Wilder, a prominent climate lawyer from Baker & McKenzie, says. "While early on some of this litigation was not successful, increasingly it is."


Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.

Thursday, 31 January 2019

Australian High Court rejects NSW Berejiklian Government's 2018 electoral funding reforms


In May 2018 the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental groups, and churches at a maximum of $500,000. 

The Electoral Funding Act 2018 No 20 came into force on 1 July 2018.


Australian Financial Review, 29 January 2019:

In July 2018, the Berejiklian Government reduced the amount that unions and other third parties could spend in the six months before an election from $1.05 million to $500,000. A political party and it candidates, however, can spend up to $22.6 million if it stands candidates in all 93 seats.

The High Court said NSW proved that aiming to "prevent the drowning out of voices in the political process by the distorting influence of money" was a legitimate purpose.

However, it said "the reduction in the cap applicable to third-party campaigners was not demonstrated to be reasonably necessary to achieve that purpose".

The court did not accept NSW's argument that $500,000 was still a substantial sum that would allow third parties to "reasonably present their case".

The lead judgement of Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said "no enquiry as to what in fact is necessary to enable third-party campaigners reasonably to communicate their messages appears to have been undertaken".

The reforms also sought to ban third parties from acting "in concert" by pooling money into multi-million-dollar campaigns, such as the "Stop the Sell-off" campaign against energy privatisation for the 2015 poll. Those who breach the act would have faced up to 10 years' jail.

Former Commonwealth solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the five unions which also signed up for the challenge.

BACKGROUND

HIGH COURT OF AUSTRALIA, Judgment Summary, 18 December 2018:

UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2013] HCA 58

Today the High Court unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because they impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution.

Section 96D of the EFED Act prohibits the making of a political donation to a political party, elected member, group, candidate or third-party campaigner, unless the donor is an individual enrolled on the electoral roll for State, federal or local government elections. The EFED Act also caps the total expenditure that political parties, candidates and third-party campaigners can incur for political advertising and related election material. For the purposes of this cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral communication by a political party and by any affiliated organisation of that party. An "affiliated organisation" of a party is defined as a body or organisation "that is authorised under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both)".

Each of the plaintiffs intends to make political donations to the Australian Labor Party, the Australian Labor Party (NSW Branch) or other entities, and to incur electoral communication expenditure within the meaning of the EFED Act. The second, third and sixth plaintiffs are authorised to appoint delegates to the annual conference of the Australian Labor Party (NSW Branch) and to participate in the pre-selection of that party's candidates for State elections. A special case stated questions of law for determination by the High Court.

The High Court unanimously held that ss 96D and 95G(6) burdened the implied freedom of communication on governmental and political matters. The Court held that political communication at a State level may have a federal dimension. The Court accepted that the EFED Act had general anti-corruption purposes. However, the Court held that the impugned provisions were not connected to those purposes or any other legitimate end.

· This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons

Tuesday, 29 January 2019

Wangan and Jagalingou people's fight against foreign mining giant Adani continues into 2019



ABC News, 25 January 2019:

The United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners who are fighting the miner in court.

A UN committee raised concerns that the Queensland coal project may violate Indigenous rights under an international convention against racial discrimination if it goes ahead, giving Australia until April to formally respond.

Meanwhile, a public interest legal fund backed by former corruption fighter Tony Fitzgerald has stepped in with financial backing for a federal court challenge to Adani by its opponents within the Wangan and Jagalingou (W&J) people.

The Grata Fund, which boasts the former federal court judge as a patron, agreed to pay a court-ordered $50,000 bond so W&J representatives can appeal a court ruling upholding a contentious land access deal secured by the miner.

The UN Committee on the Elimination of Racial Discrimination last month wrote to Australia's UN ambassador to raise concerns that consultation on Adani's Indigenous Land Use Agreement (ILUA) "might not have been conducted in good faith".

These allegations "notably" included that members of the W&J native title claim group were excluded, and the committee was concerned the project "does not enjoy free, prior and informed consent of all (W&J) representatives"….

UN committee chair Noureddine Amir in a letter told Australia's UN ambassador Sally Mansfield the committee was concerned ILUAs could lead to the "extinction of Indigenous peoples' land titles" in Australia.

Mr Amir said it was "particularly concerned" by 2017 changes to native title laws to recognise ILUAs not signed by all native title claimants, "which appears to be in contradiction" with an earlier landmark Federal Court ruling.

"Accordingly, the committee is concerned that, if the above allegations are corroborated, the realisation of the Carmichael Coal Mine and Rail Project would infringe the rights of the Wangan and Jagalingou people, rights that are protected under the International Convention on the Elimination of All Forms of Racial Discrimination," Mr Amir said.

The committee gave Australia until April 8 to outline steps taken to ensure proper consent "in accordance with Indigenous peoples' own decision-making mechanisms".

It asked Australia to "consider suspending" the Adani project until consent was given by "all Indigenous peoples, including the Wangan and Jagalingou family council".

It invited Australia to seek expert advice from the UN experts on Indigenous rights and to "facilitate dialogue" between the W&J and Adani.

Friday, 4 January 2019

Australian Home Affairs Minister Peter Dutton demonstrates his incompetence yet again


During the less than one term he served as Australian prime minister Liberal MP for Warringah Tony Abbott rushed through amendments to the Australian Citizenship Act 2007 in 2015.

Given that the Minister for Home Affairs and Liberal MP for Dickson Peter Dutton has used these amendments to strip Australian citizenship from twelve individuals, the most recent being the revocation of citizenship of a Melbourne-born man currently gaoled in Turkey which now leaves him statelessand, as the minister has referenced the Citizenship Loss Board in his decision making perhaps it is time to recall the sketchy details known about this board.

The Guardian, 22 July 2018:

The identity of officials on one of the most powerful government boards in Australia – which has the effective power to strip Australians of citizenship – has been revealed for the first time.

A freedom of information request by Guardian Australia for minutes of the Citizenship Loss Board’s first meeting in February shows the panel is made up of senior departmental secretaries from across government. The secretariat of the committee is Hamish Hansford, an assistant secretary of the immigration department. 

He previously served as the national manager of the intelligence branch of the Australian Crime Commission.

The department of the prime minister’s counter-terrorism co-ordinator, Greg Moriarty, is also on the board, as are Gary Quinlan, from the Department of Foreign Affairs and Trade, Katherine Jones, from the Attorney-General’s Department, and Christopher Dawson from the Australian Crime Commission.

The immigration department has by far has the largest number of representatives with five officers: Rachel Noble, Michael Manthorpe, Maria Fernandez, Michael Outram and Pip De Veau.

The Australian federal police and defence department’s members are unknown. Both declined to participate in the February meeting for undisclosed reasons.

The Australian Security Intelligence Service (Asis) and Australian Security Intelligence Organisation (Asio) each have a member. Neither officer is named, listed only as a “representative”.

The Citizenship Loss Board has the de facto power to strip dual nationals of their citizenship under the federal government’s legislation introduced last year.

Although the law was touted as an anti-terrorism tool, it left open the possibility that people who damaged commonwealth property or even national security whistleblowers could have their citizenship revoked. Legal experts have argued it could create a tier of second-class citizenship.

Although the Citizenship Loss Board appears to be the effective arbiter of this exceptional power, there is no reference to it in the legislation. None of its members are parliamentarians or members of the judiciary. It operates in a legal vacuum. Its recommendations go to the immigration minister with no clear legal mandate.

In theory the board does not have the express power to revoke citizenship. The laws were built to withstand judicial scrutiny, describing the key mechanism to remove citizenship as one of “revocation by conduct” – the argument is that if the law is “self-executing” this could head off judicial review.

The board’s official role is to consider cases where an individual’s behaviour meets the criteria to have citizenship revoked under the law.

This mechanism has been described by University of New South Wales dean of law George Williams as a “legal fiction”. He has previously outlined concerns about the board and the basis for its power. [my yellow highlighting]

Footnote

1. Eligibility requirements for Fijian citizenship which this individual does not currently meet.


Citizenship by registration covers six categories of individuals:

The first category covers children born outside the Fiji islands on or after 10th April 2009 if at the date of the child’s birth either of the child's parents was a citizen – section 8(1) of the Citizenship of Fiji Decree 2009.

The second category covers children under 18 years of age of a foreign nationality that are adopted by Fiji Citizens – section 8 (2) of the Citizenship of Fiji Decree 2009.

The third category covers children who were under the age of 18 when either parent became a Fiji citizen – Section 8(3) of the Citizenship Decree 2009.

The fourth category covers persons who would have qualified under the previous three categories but they have reached the age of 18 years. These applicants cannot be granted citizenship unless they have been lawfully present in Fiji for a total of three (3) of the five (5) years immediately before the application – Section 8(5) of the Citizenship of Fiji Decree 2009.

The fifth category provides for former adult Fiji citizens who wish to regain their Fiji citizenship. With the introduction of the multiple citizenship policy former citizens wishing to regain their Fiji citizenship need NOT renounce their other citizenship – Section 8(6) of the Citizenship of Fiji Decree 2009.

The sixth category provides for spouses of Fiji citizens. Applicants must have been lawfully present in Fiji for a total period of three of the five years immediately before the application – Section 8(7) of the Citizenship of Fiji Decree 2009. (refer to below checklist for fees and other requirement).

Fijian Government position:

"Neil Prakash has not been or is a Fijian citizen. For a child of a Fiji citizen born overseas, the parent has to apply for citizenship for the child to become a Fiji citizen. The department has searched the immigration system and confirms that he has not entered the country nor applied for citizenship since birth." [Head of Fiji's Immigration Department, Nemani Vuniwaqa, quoted in ABC News, 2 January 2018]

Tuesday, 18 December 2018

Scott Morrison's secretive new public sector corruption division with no teeth - not even a set of badly fitting dentures


Alan Moir Cartoon

A federal statutory body, the Australian Commission for Law Enforcement Integrity (ACLEI) has been in existence since December 2006 and is headed by the Integrity Commissioner. The current Integrity Commissioner is Michael Griffin AM.

There is also a Parliamentary Joint Committee on the ACLEI.

The Morrison plan for a new Commonwealth Integrity Commission (CIC) intends to retain the ACLEI as one of two divisions within the CIC and expand the number of government agencies within this first division’s jurisdiction from twelve (12) to sixteen (16) – otherwise it is business as usual for the multi-agency ACLEI.

At the same time the Morrison Government intends the over-arching CIC to have a second division – the Public Sector Division - without the full powers of statutory anti-corruption commissions.

It is this division which will be charged with investigating corruption allegations based on interactions of sitting members of federal parliament and departmental staff with corporations, lobby groups and private individuals.

Members of the public will have no right to lay complaints or concerns before the Deputy-Commissioner who will head this second division. Only departmental heads and the Australian Federal Police appear to have the right to refer a matter to the Public Sector Division.

The division will not hold public hearings or publish the results of any secret hearings. There will be no transparency in its processes.

This second division represents business as usual for federal parliamentarians, as the government of the day will be able to keep even the most egregious matters under its adjudication by asserting the matter should be classified as a straightforward Code of Conduct breach or a simple matter of non-compliance.

The new Commonwealth Integrity Commission is expected to have an annual budget of around $30 million. A sum which reflects its toothless status.

BACKGROUND


The Australian Government proposes to establish a Commonwealth Integrity Commission (CIC) to detect, deter and investigate suspected corruption and to work with agencies to build their resilience to corruption and their capability to deal with corrupt misconduct. The CIC will consist of a ‘law enforcement integrity division’ incorporating the existing structure, jurisdiction and powers of ACLEI and a new ‘public sector integrity division’. Both the law enforcement and public sector divisions of the CIC will be headed by separate deputy commissioners, who will each report to a new Commonwealth Integrity Commissioner. The two divisions will have different jurisdictional coverage, powers and functions, tailored to the nature of the entities within their jurisdiction. The law enforcement division will retain the powers and functions of ACLEI, but with an expanded jurisdiction to cover several further agencies that exercise the most significant coercive powers and therefore present a more significant corruption risk. The public sector division will cover the remaining public sector. As such, its powers and functions will be different to those of the law enforcement division and will be appropriately tailored.

Jurisdiction 

Law enforcement division
The law enforcement division will have jurisdiction over those agencies already within ACLEI’s remit, being:

• the Australian Criminal Intelligence Commission
• the AFP • the Australian Transaction Reports and Analysis Centre (AUSTRAC)
• the Department of Home Affairs, and
• prescribed aspects of the Department of Agriculture and Water Resources (DAWR).
 Its jurisdiction will also be expanded to cover additional public sector agencies with law enforcement functions and access to sensitive information, such as the:
• Australian Competition and Consumer Commission (ACCC)
• Australian Prudential Regulation Authority (APRA)
• Australian Securities and Investments Commission (ASIC), and
• Australian Taxation Office (ATO)……

Public sector division

The public sector division of the CIC will have jurisdiction over:

• public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies and Commonwealth corporations
• Commonwealth service providers and any subcontractors they engage, and
• parliamentarians and their staff.

By extending the jurisdiction of the public sector division of the CIC to service providers and contractors, the CIC will have the capacity to oversee the integrity of entities which expend or receive significant amounts of Commonwealth funding where there is evidence of corrupt conduct that meets the relevant criminal threshold proposed. The CIC will also be able to investigate members of the public or other private entities that receive or deal with Commonwealth funds (and might not otherwise be within jurisdiction), to the extent that their suspected corrupt conduct intersects with a public official’s suspected corrupt conduct….

The public sector division of the CIC will be responsible for investigating ‘corrupt conduct’ where the commissioner has a reasonable suspicion that the conduct in question constitutes a criminal offence. Notably, the public sector division will investigate conduct capable of constituting a nominated range of specific new and existing criminal offences that will constitute corrupt conduct in the public sector.
 ‘Corrupt conduct’ will include abuse of public office, misuse of official information and non-impartial exercise of official functions. A range of consolidated and new public sector corruption offences will be included in the Criminal Code Act 1995 (the Criminal Code). The information below under the heading ‘Amendments to the Criminal Code’ outlines a preliminary summary of ways in which amendments might be made to relevant legislative offences that will collectively form the jurisdictional basis for the CIC. 

It is intended that the public sector division will focus on the investigation of serious or systemic corrupt conduct, rather than looking into issues of misconduct or non-compliance under various codes of conduct. Misconduct that is not defined as a criminal offence at Commonwealth law is considered more appropriately dealt with by the entities where the misconduct occurs: public sector agencies for public servants; Houses of Parliament for parliamentarians; the Prime Minister for Ministers; the Special Minister of State for ministerial staff….

Powers

Law enforcement division

The law enforcement division of the CIC will have access to the coercive and investigative powers that ACLEI currently does—these are necessary because the agencies within jurisdiction themselves have access to significant coercive powers and in many cases, sensitive intelligence, personal or other information. The consequences of corruption in circumstances where public officials have access to law enforcement or other coercive powers is generally more significant than for public officials without access to such powers. Those with access to coercive powers and knowledge of law enforcement methods are better able to disguise corruption and corrupt conduct can have a greater impact (for example, where millions of dollars of illicit drugs are permitted to enter the Australian economy). 8 The law enforcement division will have the power to:

• compel the production of documents
• question people
• hold public and private hearings
• arrest
• enter/search premises
• seize evidence
• undertake controlled operations and assumed identities, and
• undertake integrity testing.

Public sector division

The powers available to the public sector division reflect the different nature of the corruption risk in the areas it will oversight. The public sector division of the CIC will have the power to:

• compel the production of documents
• question people
• hold private hearings, and
• enter/search premises.

It will not be able to:

• exercise arrest warrants
• hold public hearings, or
• make findings of corruption, criminal conduct or misconduct at large.

The extent to which the CIC public sector integrity division will have the ability to access telecommunications and surveillance device powers will be part of the consultation process on the proposed model. The law enforcement integrity division will retain all powers that ACLEI currently holds......

Referrals about parliamentarians and their staff 

The public sector division could receive a referral regarding a parliamentarian or their staff that met the CIC’s threshold for investigation from the IPEA, the AEC, the AFP or other integrity agencies. For example, if the IPEA observed potentially corrupt conduct that it reasonably suspected was capable of constituting a criminal offence, it could refer that activity to the CIC for investigation. 

The public sector division of the CIC will also be able to investigate parliamentarians or their staff where an existing CIC investigation into suspected corruption within a different part of the public sector revealed evidence that will meet the investigation threshold. For example, if the CIC was investigating suspected criminal corrupt conduct within a procurement process involving a department, and through that investigation it found evidence suggesting corrupt activity by any Member of Parliament or member of the executive government which it reasonably expected met the relevant criminal threshold, the CIC could initiate an investigation into that matter. 

The CIC will not investigate direct complaints about Ministers, Members of Parliament or their staff received from the public at large.......

Thursday, 13 December 2018

Centrelink's 'robodebt' headed to the Australian Federal Court?



9 News, 10 December 2018:

Centrelink’s robo-debt recovery scheme was intended to seek out and destroy debts, but instead it’s thrown more than 200,000 Australians into financial turmoil.

Now, Victoria’s former head prosecutor, QC Gavin Silbert, is lending his voice and fighting back against the controversial system which aims to claw back up to $4.5 billion in welfare overpayments.

“I think it’s illegal and I think it’s scandalous. In any other situation, you’d call it theft. I think they’re bullying very vulnerable people,” Mr Silbert told A Current Affair. 

“If debts are owed to the public purse they should be paid, they should be pursued. These are not such debts,” he said.

He’s teamed up with Melbourne-based solicitor Jeremy King to take a pro bono case to the Federal Court which, if successful, could derail the robo-debt scheme and see thousands of debts wiped.

“I hope this would set a precedent to show that the way this robo-debt scheme had been rolled out is not in accordance with the law and all of the other debts that have been sent out to people are not in accordance with the law,” Mr King said....

The Sydney Morning Herald, 2 December 2018:

Gavin Silbert, QC, who retired as the state's chief crown prosecutor in March, has accused the Department of Human Services of ignoring its legal obligations and acting like a bully towards some of the nation's most vulnerable people.

A potential legal challenge could have significant implications for future enforcement of the robo-debt program, which aims to claw back up to $4.5 billion in welfare overpayments with more than 1.5 million "compliance interventions".

Mr Silbert became embroiled in the dispute when someone he knew was issued with a demand to repay a debt of $10,230.97, which the department claimed was overpaid by Centrelink between 2010 and 2013.

He has provided pro bono advice and helped prepare correspondence to the department, which repeatedly asked for an explanation on how the debt was calculated.

However, the department's compliance branch has ignored nine letters between May and November 2018 that requested additional information. Last week, it made threats to impose interest charges on the original debt.

"Other than the bald assertion that I have a debt, I have never received any details of how the debt is alleged to have arisen or anything which would enable me to verify or understand the demand made of me," Mr Silbert's client wrote on June 7.

In another letter, Mr Silbert's client wrote: "There is not a court in the country that will uphold your demands for interest in the absence of fundamental details of how the amount is alleged to have arisen."

The dispute escalated further when the department engaged debt collection agency Dun & Bradstreet, which threatened Mr Silbert's client with a "departure prohibition order" that would prevent him travelling overseas.

Mr Silbert is keen to launch Federal Court action to test the legal basis of the robo-debt program and the government's apparent unwillingness to provide particulars.
"I'm itching to get this before a court," he told Fairfax Media.

He said legislation that regulates data-matching technology requires the department to "give particulars of the information and the proposed action" before it can recover overpayments.

The robo-debt program, introduced by the Coalition government, calculates a former welfare recipient's debt by taking a fortnightly average rather than discovering the exact amount that was claimed.

The department was forced to concede it was no longer in possession of the original claims made to Centrelink by Mr Silbert's friend, after he made requests under freedom-of-information laws.

Tuesday, 20 November 2018

Climate Change: Wallarah 2 longwall coal mine legal challenge


The Australian Coal Alliance states it is; concerned citizens of the Central Coast are worried about the impact that longwall coal mining in the Central Coast Water Catchment Valleys and beneath residential homes will have upon our drinking water catchment, and upon our health, lifestyle and properties. We will continue to demand that the government introduces legislation into the Parliament to protect the Wyong Water Catchment District, the largest drinking water resource on the Central Coast, from mineral extraction, and to protect homes from being undermined by longwall coal mining.

This is its legal battle............


EDO NSW, on behalf of the Australian Coal Alliance (ACA), argued in Court that the Planning Assessment Commission’s (PAC) decision to approve the Wallarah 2 longwall coal mine on the Central Coast was unlawful and invalid.

Barristers Craig Leggat SC and Josie Walker argued against the approval of the mine on the basis of climate change, ecologically sustainable development, impacts to water resources and flooding impacts.

The legal team: Craig Leggat SC, Josie Walker of Counsel, Brendan Dobbie, Acting Principal Solicitor and Isaac St Clair-Burns, Solicitor of EDO NSW.

 “Our client ACA argued that the PAC’s decision was invalid on 10 specific grounds”, said David Morris, CEO of EDO NSW. "We focused on the PAC’s assessment of the mine’s downstream greenhouse gas emissions and impacts to the Central Coast water supply and likely flood-affected properties.”

The Wallarah 2 project is predicted to have impacts on 88 private properties, which will be exposed, in varying degrees, to increased risks of flooding. The mine has proposed various options to mitigate those impacts or, where that is not practicable, to make arrangements for the voluntary purchase of flood affected properties. The ACA questioned the legal validity of those conditions.

In addition to the predicted impacts from flooding and to the Central Coast water supply, Wallarah 2 will make a substantial contribution to greenhouse gas emissions – estimated to be more than 264 million tonnes of CO2 over the 28-year life of the mine. NSW law required the PAC to consider an assessment of those emissions when approving the mine. However, the ACA argued in Court that the PAC specifically disavowed consideration of downstream greenhouse gas emissions and therefore the approval was contrary to the law and also to the principles of ecologically sustainable development, which includes the principle of intergenerational equity.

“This case is by its very nature climate change litigation, which we’re seeing more and more in Australia. We argued that the law in this case wasn’t followed with respect to climate change impacts and the principle of intergenerational equity”, David Morris said.

Of additional interest, this was a paperless trial, one of the first that EDO NSW has been involved with, and it proceeded very smoothly.

A judgment is expected sometime before the end of May 2019.

Further detail on this case can be found here: www.edonsw.org.au/wallarah2_aca

EDO NSW is an independent community legal centre specialising in public interest environmental law and members of Northern Rivers communites can contact the EDO at any time via the hotline on 1800 626 239 for free legal advice concerning local environmental matters.


Friday, 2 November 2018

“In an unprecedented move, the Morrison government has questioned the Federal Court's authority to commence cases that allow sick children to be brought to Australia for emergency medical care.”



The Guardian, 26 October 2018:

The Australian government is challenging the legality of the federal court hearing applications for urgent medical transfers of refugees and asylum seekers held on Nauru.

The move comes amid a rush of transfers, and appears in contrast to claims made by Australian Border Force to those detainees that the delays are due to the Nauruan government.

Should the federal court action be successful it has the potential to void some previous orders, forcing those cases to refile in the high court.

The rate of medical transfer orders has ratcheted up as the health crisis worsens, criticism of the policy strengthens, and the Nauruans appear to have stopped attempting to block departures.

The home affairs department raised the jurisdictional challenge in a case involving a child detainee, her mother and two siblings, Fairfax Media reported.

The family have already been transferred to Australia. But lawyers for Peter Dutton’s department have continued to argue that under section 494AB of the Migration Act, the federal court cannot hear legal proceedings against the commonwealth relating to a “transitory person”. It is believed to be the first time the government has made this argument in about 50 cases relating to the transfer of people from Nauru.

On Thursday two federal court judges ordered both parties to submit their arguments in coming days for a yet-to-be scheduled expedited hearing, expected next week. The child, an 11-year-old Iranian girl, is being represented by the law firm Robinson Gill and the Human Rights Law Centre.

“This has come out of the blue, and there’s a risk it could make it much harder for desperately unwell children to get the urgent, lifesaving medical care they need,” said Daniel Webb, director of legal advocacy at the HRLC.

The challenge appears at odds with the government’s messages to detainees laying the blame for transfer delays with Nauruan authorities. Guardian Australia is aware of ABF writing or verbally suggesting to people or their lawyers that the department had approved their medical transfer but Nauru was holding up cases.

The Sydney MorningHerald, 24 October 2018:

The legal point was raised last week in the case of an 11-year-old Iranian girl held on Nauru who had not eaten in more than two weeks.

Medical experts gave evidence she was facing “imminent death” if she was not treated by paediatrics experts in an Australian intensive care ward.

However, lawyers acting for the Home Affairs Department argued that under section 494 AB of the Migration Act the court could not hear the case as it did not have jurisdiction because she was a “transitory person.”