So who destroyed any credibility left to NBN Co. and the Australian Federal Police?

On 19 May 2016 it was reported that the Australian Federal Police (AFP) used warrants to search an electorate office occupied by former Communications Minister and current Shadow Minister for Defence Senator Stephen Conroy and the home of one of Shadow Minister for Communications Jason Clare’s staffers looking for evidence of a whistleblower involved in leaking NBN Co. documents, which outlined cost blowouts as well as planning and delivery failures in the rollout of Prime Minister Malcolm Bligh Turnbull’s faster, cheaper, sooner national broadband network.

The ABC sighted a warrant and reported that it named Labor Senator Stephen Conroy, staffers, technology bloggers, and four major media organisations including the ABC and that It required the people subject to the warrant to hand over all documents relating to those people and organisations.

A number of NBN employees were also interviewed in relation to this matter on 19 May according to the AFP.

This is a redacted copy of the letter sent to AFP Manager Crimes Operations after the raid on Conroy's Melbourne office and the Brunswick home of a Labor staffer:

Letter (1) by Orietta

So who was this mysterious civilian “seconded assistant” who apparently snapped over 30 images of documents over which parliamentary privilege had been claimed and, sent them on to various employees of NBN Co?

An un-redacted screenshot was displayed on Twitter in the early evening of 20 May for those who missed the hint In The Australian the first time around:

On the same day this set tongues wagging on Twitter:

So the cat is allegedly out of the bag and it is rumoured that the man at the centre of the political furore at the end of Week Two of the federal election campaign is a former Frankston detective senior constable, former partner in a furniture business, former head of security at a casino and current works in security at NBN Co.

However, this rumour remains unconfirmed because neither Team Turnbull, NBN Co. nor the federal police are about to name names. Transparency and accountability are not concepts that would normally be associated with these three.

The AFP stated in a 20 May 2016 media release that the federal government and opposition were appropriately notified and advised of operational activity regarding this matter after it commenced yesterday.

The current Minister for Communications and Senator for Victoria Mitch Fifield has admitted that he knew about the complaint to the AFP and the subsequent investigation but denies knowing of the warrants or tipping off the media to the night raids.

Sky News reported that Malcolm Turnbull said he first became aware of the raids when notified by Justice Minister Michael Keenan on Thursday, after the minister had been briefed by the AFP chief.

To date Attorney-General George Brandis is not on the record as to what he knew.

As the raids on both Steven Conroy and one of two Labor staffers were filmed by mainstream media there remains a suspicion that a person within government or police circles told the media about the when and where of these searches (second raid seen in this video).

When it comes to the exact type and status of those documents allegedly improperly distributed by the AFP/”Mr.Steere”, one will have to wait and see what any post-federal election Senate inquiry on the parliamentary privilege claim reveals or if Labor makes a formal complaint to the Commonwealth Ombudsman or commences legal action.

UPDATE

First leaked 12 page document from NBN Co titled Overbuilding Optus and marked Commercial Confidential,second leaked 12 page power point presentation CTO Briefing: Fibre to the distribution point and marked Internal Use and Scale the Deployment Program – Fttx Design and Construction. Copy of NBN Corporate Plan 2013 not yet found.

1617 Warrant - redacted Australian Federal Police warrant to search premises dated 18 May 2016 by clarencegirl

The Register, 22 May 2016:

The staffer has been identified as Simon Lee-Steere, nbnTM's general manager for security investigations, although in the only public document (below) his name has been redacted…..

Later, in defense of the staffer's actions, nbnTM corporate communications executive Karina Keisler Tweeted that the company's staffer was acting with the authorisation, and under the instruction, of AFP officers.

Business Insider, 23 May 2016:

NBN Co has stood down two of its employees over alleged involvement in the leaking of documents which resulted in last week’s AFP raids on Labor offices.

A spokesperson for the company confirmed that two employees had been stood aside while the AFP investigation was taking place. NBN Co did not name the employees or wish to comment further.

This news follows a dramatic few days for the government and the NBN, after police raided the offices of Labor senator Stephen Conroy, the homes of Andy Byrne and Ryan Hamilton as well as two staffers of shadow communications minister Jason Clare…..

The Australian Federal Police no longer have access to seized documents after the Labor party claimed parliamentary privilege.

AFP commissioner Andrew Colvin confirmed that the documents seized have now been sealed, and can’t be accessed until the matter goes before the Senate….

Australian Federal Police and the Construction Forestry Mining and Energy Union (CFMEU) in 2016

The Australian Federal Police (AFP) are not covering themselves with glory in relation to one Australian union.......

This article in The Guardian on 16 April 2016 appears to indicate that, in subsequent interactions with Construction Forestry Mining and Energy Union (CFMEU), the Australian Federal Police did not forget that the union had successfully defended itself in court in 2015:

A complaint from the construction union to the commonwealth ombudsman paints an extraordinary picture of heavy-handed tactics by special police taskforces, including a police officer allegedly warning one unionist he knew his children’s names and what time he dropped them off to school.

The letter, sent by the Construction Forestry Mining and Energy Union (CFMEU) on Tuesday, complains that police repeatedly attempted to question witnesses without their lawyers present and, in one case, demanded a junior employee grant access to union headquarters during a raid without first showing her a warrant.

The union’s complaint alleges that when the Australian federal police searched the ACT branch’s headquarters on 25 August, one officer told the branch secretary Dean Hall, “I do know about your family things”, to explain how he knew his wife’s name.

“Like, I know your kids’ names and their ages and where they go to school and when you drop them off,” the officer is said to have told Hall. “What do you expect? I am profiling you.”

The union’s lawyer, Phillip Pasfield, told the ombudsman these alleged statements were intimidatory, unwarranted and designed to threaten Hall, who was “extremely upset” about the incident.

In December the Australian Capital Territory supreme court ruled that the raid was unlawful because police withheld information from the magistrate in order to get the warrant.

The CFMEU complained that the officer in charge of the raid told building industry participants that he would prefer to make workplace agreements with the Master Builders Association, not the CFMEU…..

The union claimed the AFP deliberately misled a Fairfax Media journalist by saying a CFMEU official had been “raided” on 2 December then changed its story to say the raid related to the official but was not a raid on his or her property. This was done to “destroy the reputation of the official involved”, it said.

In another incident, the CFMEU said the union police taskforce provided false information or failed to correct journalist Stephen Drill, who incorrectly reported Victoria police’s union taskforce Heracles had raided the CFMEU’s Victorian headquarters…..

While this report in The Guardian on 9 May 2016 raises serious concerns about the conduct of the federal police:

Union officials have launched an extraordinary attack on the Australian Federal Police, accusing the force of adopting an "unbalanced and aggressive" approach to union activities and executing the Turnbull government's union-busting ambitions.

Sparking a flare-up of simmering tensions this week, a Victorian union safety officer has become the subject of a criminal investigation after he tested the stability of a guard rail during a site visit and it immediately collapsed.

A letter from the AFP, seen by Fairfax Media, details the allegation of property damage against the Construction, Forestry, Mining and Energy Union's Peter Clarke. 

The union said the case was "bizarre" and added to serious concerns that police were responding to political pressure to become more heavily involved in industrial relations matters.

"This is a bizarre use of AFP resources that ought to be used to deal with the serious criminality that goes on in the community," union secretary Dave Noonan said.

"It's clear to us that senior officers of the Australian Federal Police are directing some kind of campaign against the union and its officials."

The case is the latest example of what the CFMEU claims is unjust, heavy-handed treatment of its members and officials in Victoria, the ACT and Queensland by the federal police. Slater & Gordon, the union's legal firm, has filed a formal complaint against the AFP with the Commonwealth Ombudsman.

Video footage of the alleged property damage incident shows Mr Clarke – a safety officer with the union's Victorian branch – approaching the guard rail during a safety inspection at a Canberra construction site in February. It appears to show him momentarily shaking the railing before a large section collapses.

Mr Clarke has been called in for interrogation over the incident.

"During the course of the investigation, Mr Clarke was identified as being responsible for damaging a guard rail at that location," AFP acting Commander Robert Wilson said in the letter.

"The allegation against Mr Clarke is property damage ... Police wish to speak to Mr Clarke in relation to the matter in the form of a record of interview."

The union said falls from heights were a leading cause of workplace injury and death, and every safety official was expected to check the stability of guard rails during site inspections. Statistics from Safe Work Australia shows the nation's construction industry accounts for almost 40 per cent of fall-related deaths.

"The fact that this rail was so flimsy it didn't survive a light shake shows it would have been completely ineffective in preventing a fall, and completely fails to comply with the relevant codes of practices," Mr Noonan said.

"Are our priorities saving workers on construction sites from getting killed, or trying to cover up for builders who cut corners on occupational health and safety and put workers' lives at risk?"

The Australian Federal Police said the investigation was ongoing and it would not be appropriate to comment.

CFMEU video footage of the alleged property damage:

https://youtu.be/9VEoTWhiO8c

The Guardian, 5 May 2016:

In separate proceedings, union official and rugby league great John Lomax will appear in the ACT Supreme Court on Friday against the AFP.

Mr Lomax was investigated and prosecuted for blackmail last year, with police alleging he attempted to force a Canberra painting company and its principal to sign a union enterprise bargaining agreement.

The prosecution was dropped in October. 

Now Mr Lomax is considering a malicious prosecution lawsuit. 

He and his lawyers declined to comment ahead of Friday's court appearance.

But CFMEU national construction secretary Dave Noonan, Mr Lomax's employer, said the former Canberra Raiders hardman's lawyers had been forced to seek a court order to access information about the investigation after requests to the federal police failed.

"The solicitors [who act for Mr Lomax] have sought various documents to ascertain whether or not our concern that there was a malicious element to the prosecution can be sustained," Mr Noonan said.

"Those documents have not been supplied.

"As the documents were not produced it's necessary to make an application in court for pre-trial discovery."

Mr Noonan said the contents of the documents would determine whether Mr Lomax would launch a malicious prosecution suit against the federal police.

"[Mr Lomax] was charged on a completely bogus charge, our QC said so at the time, they proceeded with the charge, they failed to provide any evidence to the court and the charges were dropped.

"If the AFP has got nothing to hide, why not provide the documents? If they acted in good faith, why not provide the documents?

"We think the proper thing for the AFP to do is to produce the documents."

ABC News reporting on the ACT arm of the Australian Federal Police on 22 March 2016:

A former staffer at the centre of an investigation into the office of Labor MLA Joy Burch has hit out at ACT police after it was announced the inquiry had been dropped.

Last year, allegations arose that Ms Burch's chief of staff, Maria Hawthorne, leaked sensitive details of conversations between the ACT Government and the chief of police about the conduct of officers on construction sites in Canberra, to the Construction, Forestry, Mining, Energy Union (CFMEU).

ACT Policing has announced no criminal charges would be laid but revealed that allegations also involved another former staff member.

Ms Hawthorne dismissed the allegations against her and other staff.

"ACT Policing's last-ditch attempt to implicate a second staff member should be seen for what it is – a desperate act of distraction," she said.

"The truly unprecedented event of the past three months has been an elected minister losing her job because of unfounded allegations by an unelected official."

BRIEF BACKGROUND

In this ACT Supreme Court judgment, Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 362 (2 December 2015), the Australian Federal Police are found to have abused process:

140. The fact that a second or subsequent warrant might be an abuse of process does not go to the question of the validity of any such warrant, but only if it is shown that the second warrant is actually issued for an ulterior or improper purpose or otherwise constitutes an abuse of process.

141. In my view, it could not be said, in this case, that the issue of the second warrant was an abuse of process. No prejudice to the plaintiff was identified that was outside the contemplation of the construction of the relevant provisions.

Relief

266. As I have found the seizure under the second warrant to be invalid because of the failure to disclose fully the circumstances that were required to be disclosed for the issuing officer, the learned Magistrate, to make a proper decision about whether to issue a warrant that is able to be executed after 9.00 pm, I have not found that any of the other complaints invalidated the search or the warrants.

267. In relation to the material obtained under that warrant, the material must be returned or destroyed.

268. In relation to the breaches that I have found, I have been asked to make declarations of non-compliance with the relevant sections.

269. The question of whether I had power to make declarations was not subject to any challenge by the first defendant, other than as to discretion. This is not a case such as Kennedy v Baker where such an issue arose. There is, in this Court, plenary power to make such declarations and I do not need to consider the jurisdiction further.

270. As to discretion, the only basis on which it was urged that I should not make any declaration is that a failure to do so would still leave a court, which was required to deal with any criminal proceedings on which any seized material is sought to be admitted, and which retained jurisdiction under s 138 of the Evidence Act, to deal with any impropriety or illegality then.

271. I accept that a court will be appropriately able to protect an accused’s interests in any such criminal proceeding by such means; see Phong v Attorney-General for the Commonwealth [2001] FCA 1241; (2001) 114 FCR 75. It seems to me, however, inappropriate to deprive such a court of my findings following what was a detailed hearing with not only affidavit evidence but cross-examination and oral submissions.

272. In the circumstances, I am prepared to make the declarations.

273. It seems to me that the plaintiff has had sufficient success to justify an order for costs. I shall permit the parties to seek another order but otherwise so order.

Baird Government creates arbitrary laws constraining the innocent as well as the allegedly guilty citizen

The Crimes (Serious Crime Prevention Orders) Bill 2016 (NSW) (the Bill) is an extraordinary and unprecedented piece of legislation with grave implications for the rule of law and individual freedoms in New South Wales.

The Bill was announced on 22 March 2016 by the Deputy Premier and Minister for Justice and Police the Honourable Troy Grant MP, joined by New South Wales Police Commissioner, Andrew Scipione.

Notice of motion for the Bill and its second reading in the Legislative Assembly occurred on the same day…..

the Bill creates a very real danger of arbitrary and excessive interference with the liberty of many thousands of New South Wales citizens. The powers to interfere in the liberty and privacy of persons, and in freedoms of movement, expression and communication, and assembly are extraordinarily broad and unprecedented, and are not subject to any substantial legal constraints or appropriate judicial oversight….. [A submission of the New South Wales Bar Association, 13 April 2016]

the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 (NSW) (the Bill) has serious implications for the rule of law and individual freedoms in New South Wales.

vii. in relation to a long duration PSO, there is no upper limit on the duration of the order; viii. in many cases, a person the subject of an order a will have no means of knowing the basis upon which a senior police officer has reached the satisfaction required by s 87R - in accordance with clause 87T(4), a statement of the reasons for making or varying a PSO must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person;

ix. there is no right of appeal to the Supreme Court in relation to a PSO which is not a long duration PSO. In the case of an appeal against a long duration PSO, the non-disclosure of criminal intelligence and other criminal information held in relation to the person, and the hearing of argument in the absence of the person and their representative (unless the Commissioner approves otherwise) is likely to render the right to appeal practically meaningless;

x. clause 87ZA creates a criminal offence of contravening a PSO carrying a maximum penalty of imprisonment for 5 years, and in contrast to 32 of the Serious and Organised Crime (Control) Act 2008 (SA), there is no defence of reasonable excuse for being within or entering a specified area; (b) there has been no public debate about the Bill, and no case made as to why such broad and far-reaching powers should be conferred on the police;….. [A submission of the New South Wales Bar Association, 2 April 2016]

On 4 May 2016 the NSW Parliament passed the Crimes (Serious Crime Prevention Orders) Bill 2016 without amendment.

On the same day it passed the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016, again without amendment.

Text of the Crimes (Serious Crime Prevention Orders) Bill 2016 can be found here and text for the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 here.

A look at this further curtailing of the rights of citizens residing in New South Wales.......

Sydney Criminal Lawyers, 3 April 2016:

The government is proposing new laws which would empower senior police officers – without permission from a court – to issue “public safety orders” banning individuals who police claim are a “risk to public safety” from attending specified public places for 72 hours.

Police cannot presently do this without a court order…..

There are concerns that police will use these new powers to target individuals who don’t ‘tow the government line’; such as leaders of protest groups and other outspoken individuals – preventing them from attending demonstrations and rallies.

The Guardian, 14 April 2016:

New police powers that could see citizens in New South Wales face bans on their employment, restrictions on movement and curfews without ever having committed an offence would set up a “rival criminal justice system” and should be scrapped, the New South Wales Bar Association has warned.

The NSW government has sought to introduce new powers called serious crime prevention orders.

The bill would give police similar powers to those they have to seek and impose control orders on terrorism suspects – but they could be applied to all citizens in NSW who are alleged to have some proximity or involvement to a serious crime, without a person ever being found guilty of an offence.

They would allow orders to be made on any citizen restricting their movement, who they associate with, who they work for and whether they can access the internet.

Even when a person is acquitted of a criminal offence police could still seek such an order.

The penalty for breaching an order could be up to five years’ imprisonment or a $33,000 fine for an individual, or $165,000 for a corporation.

In a scathing submission the NSW Bar Association criticised the government’s limited consultation with legal groups and its attempt to rush the bill through NSW parliament.

“No evidence has been cited as to the ineffectiveness of the administration of criminal justice by a process of trial for ‘reducing serious and organised crime’ in New South Wales,” the submission said.

“The bill effectively sets up a rival to the criminal trial system and interferes unacceptably in the fundamental human rights and freedoms of citizens of NSW.”

It said the government had failed to explain why the powers should be expanded in a manner “so contradictory to long-settled principles concerning the adjudication of criminal guilt by a fair trial”.

The police minister, Troy Grant, has said that the measures would provide law enforcement agencies with a more effective means of reducing serious and organised crime by targeting business dealings and restricting suspects’ behaviour.

Under the new provisions, the NSW police, the NSW Crime Commission and the NSW director of public prosecutions could seek orders from a judge, who must be satisfied there are “reasonable grounds” it would protect the public by restricting or preventing serious crime-related activity.

But the bar association said it was unclear why the laws were needed. While they could be applied to individuals who had been convicted of a serious criminal offence, they would also be applicable to behaviour that was considered “serious crime-related activity” without an offence needing to be proven.

The orders could also be sought on the basis of hearsay and other forms of tendency evidence that would normally be inadmissible in a normal criminal trial.

The bar association warned that the laws posed an unacceptable interference with citizens; right to freedom of expression, association and privacy. They also noted that the orders were of “doubtful constitutional validity”……

The Guardian, 7 May 2016:

Legal Aid NSW will review its policies to consider when and how Australians who face controversial new crime prevention orders will be eligible for legal assistance.

On Wednesday, a bill passed by the New South Wales upper house granted police powers to create serious crime prevention and public safety orders.....

Because the police powers are so novel and are considered to be civil, rather than criminal, they don’t fall neatly into Legal’s Aid’s existing sets of guidelines for when they will provide legal aid.

Legal Aid NSW has separate criteria for criminal and civil matters and in what circumstances it can provide legal assistance for them.

While the powers have not yet come into effect, a spokeswoman for Legal Aid NSW confirmed that it was considering how cases would be dealt with.

“Legal Aid NSW will be reviewing its policies to determine how matters brought under this bill should be dealt with,” she said.

“Any changes to policies would have to be approved by the board.

“If a matter arises before this has happened, the CEO can exercise discretion to determine applications on a case by case basis.”......

The Redfern Legal Centre warned that the new powers would essentially remove equality before the law.

The Turnbull Government and multinational tax avoidance

On 2 October 2014 the Australian Senate referred the matter of corporate tax avoidance and aggressive minimisation to the Economics References Committee for inquiry and report by the first sitting day of June 2015 and, after repeated extensions, on 2 May 2016 the Senate granted the committee a further extension to report by 30 September 2016. 

The committee’s interim reports clearly indicated that the Australian taxation system was being gamed by foreign-based multinationals using aggressive tax practices such as avoidance of permanent establishment, excessive debt loading, aggressive transfer pricing, and the use of tax havens.

On 11 December 2015 the C’wealth Multinational Anti-Avoidance Law (MAAL) came into effect and, its provisions applied from 1 January 2016 to corporations with global annual incomes of AU$1 billion and over and consolidated groups with a parent entity having a global annual income of AU$1 billion and over.

MAAL was designed to counter the erosion of the Australian tax base by multinational entities using artificial or contrived arrangements to avoid a taxable presence in Australia, adding to anti-tax avoidance measures already found in the Income Tax Assessment Act 1997.

However, less than three months later on 26 April 2016, the Australian Taxation Office (ATO) discovered that some taxpayers are entering into artificial and contrived arrangements to avoid the application of the MAAL.

On 3 May 2016 the Turnbull Government released a consultation paper on its proposed Diverted Profits Tax (DPT).

The DPT will impose a 40 per cent tax rate on corporations and consolidated groups with global annual incomes in excess of AU$1 billion that reduce the tax paid on the profits generated in Australia by more than 20 per cent by diverting those profits to low tax jurisdictions. The government hopes to have this new law in place by 1 July 2017.

According to the consultation paper both the Multinational Anti-Avoidance Law and the Diverted Profits Tax are based on Britain’s diverted profits tax introduced on 1 April 2015.

One can only hope that both these laws will be more effective than the U.K. law on which they are based. Because less than eight months after that law was introduced it was found to be ineffective in stopping large multinationals from diverting profits to low tax jurisdictions. As an example, Google with its U.K. advertising revenue held in low taxing Ireland had not had to make payments under the new diverted profits tax.

There is no way that multinationals operating in Australia will not mount legal challenges if the ATO attempts to impose penalties under provisions in MAAL and DPT. 

To some extent the loser will always be federal government revenue because, successful or otherwise, the corporate millions spent in legal fees fighting the tax man are apparently tax deductible.

When celebrities think that Australian law doesn't apply to them, there is a deep pit of humiliation awaiting

U.S. actor Johnny Depp has found out just how seriously Australia takes its own quarantine laws.

Before he and wife Amber Heard were forced to make an apology video, as part of a plea bargain for unlawfully smuggling two pet dogs into the country, he had obviously not given the matter even a passing thought.

Indeed, once out of the country he became quite defiant in the face of a possible heavy fine and/or gaol sentence for Amber.

The couple’s humbling by order of the court was probably all the more galling for their public relations team once it was realised that their apology video was to be used by the Department of Agriculture and Water Resources as an educational tool (as well as being officially posted on Facebook) and that mainstream and social media were calling boss's performance cringeworthy.

This video is their real punishment. Every molecule of star quality has been violently yanked away from Depp and Heard here. They’re sullen and slumped. They’re badly lit and shot from an unflattering angle. Their delivery is ugly and monotone. In effect, the Australian government has done to the celebrity pair what it has already done to its cigarette packaging. It’s taken something seductive and dangerous, and made it look as awful as humanly possible. It’s going to be hard to bounce back from this one. [The Guardian, 18 April 2016]

Below is a fictitious behind-the-scenes take on the making of that video which openly laughs at the celebrity couple and the situation in which they found themselves.

https://youtu.be/Y4Xh2KBI4I0

Special Broadcasting Services Corporation (SBS) not trailing clouds of glory on settlement of unfair dismissal dispute

mUmBRELLA, 11 April 2016:

Multicultural broadcaster SBS has reached a confidential settlement with its former sports reporter Scott McIntyre after he launched legal action against the broadcaster claiming it did “not follow due process” when it fired him…..

Asked what he meant by the phrase “vigilantes & hypocrites” Bornstein accused former Communications Minister and now Prime Minister Malcolm Turnbull, News Corp columnist Chris Kenny and former Human Rights Commissioner Tim Wilson of seeking to “crush” free speech.

“The vigilantes & hypocrites who sought to have Scott sacked and his freedom of speech suppressed after the event included (then Communications Minister) Malcolm Turnbull, (News Corp columnist) Chris Kenny and (Australia’s Human Rights Commissioner) Tim Wilson,” said Bornstein.

“These are people who speak loftily about freedom of speech and when it is inconvenient to them ditch it and try and crush someone whose views they disagree with. They should be ashamed of themselves.”…..

JOINT STATEMENT BY SBS AND SCOTT MCINTYRE

11 April 2016

SBS and Mr McIntyre have now resolved their dispute over the termination of his employment on 26 April 2015.

SBS acknowledges that Mr McIntyre was a well respected sports reporter with SBS for a period spanning over a decade, and SBS is disappointed that it was unable to continue with his services following his Tweets.

Mr McIntyre acknowledges that the views expressed in his Tweets on 25 April 2015 were his views and that they were contentious. Mr McIntyre regrets any attribution of his views to SBS and acknowledges that SBS was drawn into controversy following the expression of his views.

BACKGROUND

McIntyre v Special Broadcasting Services Corporation [2015] FWC 6768 (1 October 2015) – Fair Work Commission Decision:

Conclusion

[43] In this instance the respondent employer, SBS, has made a challenge to an application for unlawful termination of employment which was taken under s. 773 of the Act. The applicant had made a previous general protections application under s. 365 of the Act. The challenge to the application made by SBS relies upon the purported operation of s. 723 of the Act.

[44] I have concluded that in the particular circumstances of this case, s. 723 of the Act does not operate as a jurisdictional bar to the application, as the applicant is not a person who is entitled to make a general protections court application in relation to the conduct that he complains of. Further, I have decided that exceptional circumstances exist such that the time for the making of the application should be extended and the application permitted to proceed accordingly.

[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person’s “day in court”. In the circumstances of this case the applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.

[46] It is perhaps sadly ironic that many members of the Australian Defence Force lost their lives in the earnest pursuit of the protection of rights and freedoms such as the access to a fair hearing which the applicant is entitled to obtain.

[47] The jurisdictional objection raised by SBS is dismissed, the extension of time for the application to have been made is granted and a certificate shall be issued pursuant to subsection 776 (3) of the Act.

COMMISSIONER

WA Parliament votes the state back into colonial era

United Nations press release, 15 February 2016:

UN human rights experts urge Western Australia’s Parliament not to pass proposed anti-protest law

GENEVA (15 February 2016) – Three United Nations human rights experts have urged the State Parliament of Western Australia not to adopt new legislation which would result in criminalising lawful protests and silencing environmentalists and human rights defenders.

Members of the regional parliament have indicated that the Bill aims at preventing protestors from locking themselves onto equipment, trees, and other objects with innovative methods in order to frustrate or delay development sites. The anti-protest Bill is scheduled to be debated on Tuesday 16 February. 

“If the Bill passes, it would go against Australia’s international obligations under international human rights law, including the rights to freedom of opinion and expression as well as peaceful assembly and association,” said the UN Special Rapporteurs on freedom of expression, David Kaye, on freedoms of peaceful assembly and association, Maina Kiai, and on human rights defenders, Michel Forst. 

  

“The Bill would criminalise a wide range of legitimate conduct by creating criminal offenses for the acts of physically preventing a lawful activity and possessing an object for the purpose of preventing a lawful activity,” they explained. “For example, peaceful civil disobedience and any non-violent direct action could be characterized as ‘physically preventing a lawful activity.’”

The experts noted that, under the proposed legislation, an offense would carry serious penalties of imprisonment of one year and a fine of 12,000 Australian dollars (US $8,540). If the offense is committed in circumstances of aggravation, the penalty for preventing a lawful activity could be as high as imprisonment for two years and a fine of 24,000 Australian dollars (US 

$17080).

“The proposed legislation will have the chilling effect of silencing dissenters and punishing expression protected by international human rights law. Instead of having a necessary legitimate aim, the Bill’s offense provisions disproportionately criminalize legitimate protest actions,” Mr. Kaye warned.

Special Rapporteur Kiai stressed that the passage of the Bill would grant police disproportionate and unnecessary powers to restrict lawful protests, primarily against environmental activists trying to raise awareness of key environmental issues. “It discourages legitimate protest activity and instead, prioritizes business and government resource interests over the democratic rights of individuals,” he noted.

“Human rights defenders have a legitimate right to promote and protect all human rights, including the right to a healthy environment, regardless of whether their peaceful activities are seen by some as frustrating development projects or are costlier for the police to address,” Mr. Forst underscored.

“Environmentalists and land rights defenders are already among the ones most at risk, and the State is obligated to protect and support them,” said the Special Rapporteur who will carry out his first official visit to Australia later this year.

In September 2014, the three UN human rights experts had urged the Tasmanian Government to withdraw a similar anti-protest bill, which also targets environmental protestors. The experts remain concerned over the implementation of the Tasmanian law.

Mr. David Kaye, Special Rapporteur on freedom of opinion and expression, Mr. Maina Kiai, Special Rapporteur on the rights to freedom of peaceful assembly and of association, and Mr. Michel Forst, Special Rapporteur on the situation of human rights defenders, are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. 

Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

The CRIMINAL CODE AMENDMENT (PREVENTION OF LAWFUL ACTIVITY) BILL 2015 went to its Third Reading  in the West Australian Legislative Council on 18 February 2016 and was returned to the Legislative Assembly to become law.

If West Australian voters would like to know who to blame for this situation, they can begin with the following upper house politicians:

Hon Martin Aldridge, Hon Kate Doust, Hon Nigel Hallett, Hon Helen Morton, Hon Ken Baston, Hon Phil Edman, Hon Alyssa Hayden, Hon Simon O’Brien, Hon Liz Behjat, Hon Sue Ellery, Hon Col Holt, Hon Martin Pritchard, Hon Jacqui Boydell, Hon Brian Ellis, Hon Peter Katsambanis, Hon Sally Talbot, Hon Paul Brown, Hon Donna Faragher, Hon Mark Lewis, Hon Ken Travers, Hon Jim Chown, Hon Adele Farina, Hon Rick Mazza, Hon Samantha Rowe (Teller), Hon Alanna Clohesy, Hon Nick Goiran, Hon Robyn McSweeney, Hon Peter Collier, Hon Dave Grills, Hon Michael Mischin.