Is Pauline Hanson failing to fully comply with state and federal electoral laws - again?

It almost beggars belief. Is Pauline Hanson failing to fully comply with state and federal electoral laws – again?

ABC News PHOTO: Pauline Hanson stands in front of the plane that former One Nation members say Bill McNee funded. (Supplied: One Nation)

The Saturday Paper, 29 April-5 May 2017:

One Nation risks deregistration in Queensland following the failure of Pauline Hanson to advise the Electoral Commission of Queensland about a botched incorporation that has left it with a noncompliant constitution. The party secretly switched legal structures last November without telling members, using a draconian clause in its superseded governance rules that allowed One Nation state executive members to do whatever they chose without question. Former insiders have said a principal purpose for the incorporation was to put in place a corporate veil so the entity rather than members of the executive would be the subject of legal action.

The method of incorporation and the failure to consult is consistent with a trend of centralising all of One Nation’s power in Queensland, which has in the past been illustrated by attempts to close branches across the country through the use of proxies to forcibly remove “troublesome” state leaders, attempts to close bank accounts over which the One Nation national committee had no authority, and the initiation of complaints to police to intimidate a sub-branch in the Northern Territory.

At the same time, the party neglected to observe mandatory rules contained in Commonwealth and Queensland electoral laws, which must be included in its constitution for One Nation to be a political party with legal standing. Breaches of provisions that specify which clauses must appear for a constitution to be compliant under law are grounds for the cancellation of a party’s registration under Section 78 of Queensland’s Electoral Act.

Neither Senator Hanson nor the deputy registered officer – party treasurer and Hanson’s brother-in-law Greg Smith – informed the electoral commission of the changes in legal structure of the entity. There were two reporting deadlines missed by One Nation – notification of the changes should have been delivered seven days after December 31 and March 31. 

News of One Nation’s constitutional high jinks follows revelations over the past six months related to the party’s preselection and disendorsement processes during the West Australian election, questions about its compliance with goods and services tax legislation, and doubts about the donation and declaration of an aeroplane to Pauline Hanson for campaigning purposes.

It also follows a network-wide ban of the ABC, announced in a Facebook video posted by Hanson after the April 3 airing of a Four Corners report that highlighted a range of issues faced by One Nation. The program, criticised by Hanson and her colleagues as a media “stitch-up”, has resulted in a formal investigation by the Australian Electoral Commission, related to the donation of the two-seater plane.

Pauline Hanson’s One Nation is the business name of One Nation Queensland Division Incorporated, which was an unincorporated association since it registered on January 23, 2001. That changed last year when the entity was incorporated with the same ABN. 

The entity is regarded as the same for tax purposes and the name of the unincorporated body has transitioned into the incorporated form……

Crikey.com.au, 5 April 2017:

And that’s where the law comes in. The facts as we know them are that Ashby has a plane, in which he flies Hanson around the country on what is clearly One Nation business. Hanson herself has made numerous public statements, including on the party website, asserting that the plane belongs to One Nation. It is literally plastered with her name and face.

One Nation is a registered political party. The Commonwealth Electoral Act requires each party, and each of its state branches, to lodge an annual return with the Australian Electoral Commission, within 16 weeks after the end of each financial year. The annual return must include disclosure of all amounts received by, or on behalf of, the party from any single source totalling more than $13,000 (for the 2015-2016 year).

Donations are expressly defined as including the value of a gift. There is no room for doubt that, if a generous supporter gave an aeroplane to an official of the party, so that that official could fly the leader of the party around the countryside on party business, then the gift of the plane (or the cash to buy the plane, if that’s what happened) would be required to be disclosed in the party’s next annual return to the AEC.

Queensland has its own political donation disclosure laws, which are tougher than the federal regime. Returns are required to be lodged six-monthly, all gifts over $1000 must be disclosed, and any gift worth more than $100,000 has to be reported within seven business days.

One Nation’s Queensland Electoral Commission return for the relevant period in 2016 discloses nothing about the aircraft purchase or gift, but it does include an expenditure item of $1187.09 paid by the party to “Jabiru Aircraft Service”. There are numerous payments to Ashby’s companies for printing services, totalling some $17,000 in the same period. Who was paying for the running costs of the aircraft is a mystery.

But it’s pretty simple, really. Whoever paid for Hanson’s plane — however they paid for it and who legally or beneficially owns it — it was, in form and substance, a gift to the direct benefit of her eponymous political party, and she has treated it and talked about it as exactly that for the past two years…..

The Australian, 2 May 2017:

One Nation’s Senator Hanson shifted her story again on Monday night and said a $106,000 plane “came from” party donor Vicland’s Bill McNee to be used by her chief of staff James Ashby, but it was not a donation.

“So the plane came from Bill McNee, but it was not for the party it was to James for his business?” Sky News’ Andrew Bolt asked.

“Correct,” she answered……

Last night Senator Hanson said the Victorian businessman had allowed Mr Ashby to use the plane.

“He didn’t donate the plane to James Ashby. Having met James, they became friends,” Senator Hanson told Sky News.

“Bill’s a developer and he actually has a lot of business that he does in Queensland, and Bill was continually looking around for a plane.

“He found out James was a pilot (and) he thought: “Here’s a great opportunity to actually have a plane and to actually ¬use it as well.’ ”

The Australian, 3 May 2017:

Pauline Hanson’s controversial chief of staff says he has a “crossover” business relationship with the Melbourne property developer and political donor at the centre of a disclosure row over the purchase of the light plane used by the One Nation leader for election campaigning.

But James Ashby, whose iron-fisted control of Senator Hanson’s office has created ructions inside the party, insisted yesterday that he bought the $106,000 Jabiru 23-D aircraft in 2015 for recreational use and for his printing business in Queensland.

Senator Hanson raised further questions about the status of the plane on Monday when she confirmed on Sky News it had “come from” Bill McNee, but was for Mr Ashby’s firm, not her travel for One Nation.

This conflicts with the media-shy businessman’s assertion that he had no knowledge of the aircraft or how Mr Ashby acquired it. Mr McNee’s company, Vicland, is the Hanson party’s biggest donor, though in a rare interview last November he told The Australian he was stopping all political donations because “it’s something I don’t believe in any longer”.

Pressed on whether he had provided funds to Mr Ashby to buy the plane two years ago, Mr McNee said: “My God, if I am going to buy a plane, I would buy one for myself.” He hung up when contacted yesterday.

The Australian Electoral Commission is investigating whether the acquisition of the plane by Mr Ashby and its use to fly Senator Hanson to campaign events in Queensland before her re-election to federal parliament last July subverted financial disclosure laws.

BACKGROUND

The Guardian, 20 August 2003:

The fiery redhead, renowned for her garish wardrobe, had pleaded not guilty to fraudulently registering One Nation in the state of Queensland. She also denied dishonestly obtaining A$500,000 (£206,000) in electoral funds used for the campaigns of 11 politicians elected to the Queensland state parliament….

Prosecutors had accused Hanson and Ettridge of passing off a list of 500 supporters as genuine, paid-up members of One Nation in order to register the party and apply for electoral funding.

The Sydney Morning Herald, 20 August 2003:

Former One Nation leader Pauline Hanson and party co-founder David Ettridge have been jailed for three years each after being found guilty of fraud charges by a Brisbane District Court jury.

Judge Patsy Wolfe made no recommendation for parole.

           

Hanson, 49, and Ettridge, 58, had pleaded not guilty to fraudulently registering One Nation in Queensland on December 4, 1997.

Hanson had also pleaded not guilty to dishonestly obtaining almost $500,000 in electoral reimbursements after the 1998 state election.

But a Brisbane District Court jury found the pair guilty on all counts after more than nine hours of deliberations.

ABC Radio, PM, 6 November 2003:

MARK COLVIN: But first, the freeing of Pauline Hanson and David Ettridge. The One Nation co-founders have won their bid to get out of jail, after successfully overturning their convictions and their three-year sentences for electoral fraud.

Eleven weeks ago, Hanson and Ettridge were both sentenced to three years jail, after a jury found that they'd fraudulently registered the One Nation Party which they'd founded. Hanson was also found guilty of fraudulently obtaining nearly half a million dollars in electoral funding.

But they'll soon be released from jail, and family and friends were elated by the decision when it came down at Queensland's Court of Appeal this evening.

How soon will Adani go broke in the Galilee Basin?

Reading the information set out below leads me to wonder how the Federal Government and Queensland Government will cope, both politically and economically, if the Adani Group's Carmichael Mine and Rail Project leads to a massive derelict mine site with its twenty-six Australian subsidiaries under administration or in receivership.

INSTITUTE FOR ENERGY ECONOMICS AND FINANCIAL ANALYSIS (IEEFA)*:

2013

Remote Prospects: A financial analysis of Adani's coal gamble in Australia's Galilee Basin

The Adani Group is highly geared:

 Against an external market capitalisation of US$5.17bn, The Adani Group has an estimated US$12bn of net debt, a significant portion of which is US$-denominated with limited hedging.

Adani Power is of particular concern, being loss-making with net debt over 300% of its current market capitalisation.

2015

19 May The Latest Prospects for Adani's Coal Project? More Remote Than Ever

The project would require a massive and improbable infusion of debt, but a growing number of global banks key to most major coal-mining investments have eschewed it, mostly because of the risk it would pose to the Great Barrier Reef. (The 11 banks that have taken a public pass on the project include Deutsche Bank; HSBC; Royal Bank of Scotland; Barclays; Morgan Stanley; Citigroup; Goldman Sachs; JP Morgan Chase and most recently Societe Generale, BNP Paribas and Credit Agricole. In May 2015 Bank of America announced it would move to exit coal lending entirely.

15 September The Latest Prospects for Adani's Coal Project? More Remote Than Ever

With the Carmichael coal proposal commercially unviable at current or forecast thermal coal prices, the project is increasingly unbankable. Fifteen of the world's largest financial houses have either ceased working on this proposal or ruled out involvement, including both CBA and Standard Chartered, where advisory mandates have expired.

Continued momentum in technological developments underpins the scaled up commercial rollout of renewable energy and energy efficiency globally. As such, the strategic 'moment' for large-scale export-focused greenfields coal mines has passed.

2017

25 April Adani: Remote Prospects - Carmichael Status Update

Shareholders and financiers of Adani Enterprises face substantial risks due to the company's continuing development of the controversy-plagued Carmichael coal project in the face of major adverse structural shifts in market conditions.

The proposed mine, in Australia's remote Galilee Basin, remains a high-cost, high-risk project that is reliant on substantial public subsidies for it to be remotely financially viable. Even with concessional loans, IEEFA analysis shows the project is likely to be cash flow negative for the majority of its operating life.

Shifts in Indian energy policy and pricing have materially increased the risk of Carmichael becoming a stranded asset. Legal challenges and community opposition to the project persist and are likely to escalate if the project moves to construction.

With a market capitalisation of just US$1.9bn and net debt of US$2.5bn, Adani Enterprises Ltd will struggle to contribute equity for this A$5bn project. The project risks over-extending the balance sheet of Adani Enterprises to an extreme degree, creating a high level of financial risk to both shareholders and potential financiers……

In the years since Adani purchased the lease for the Carmichael mine, Indian government energy policy has shifted radically. Energy Minister Piyush Goyal has stated repeatedly that it is government policy to cease thermal coal imports—a policy that brings into question the very point of the proposed mine…..

* The Institute for Energy Economics and Financial Analysis (IEEFA) conducts research and analyses on financial and economic issues related to energy and the environment. The Institute's mission is to accelerate the transition to a diverse, sustainable and profitable energy economy.

The Institute for Energy Economics and Financial Analysis receives its funding from philanthropic organizations.  We gratefully acknowledge our funders, including the Rockefeller Family Fund,  Energy Foundation, Mertz-Gilmore Foundation, Moxie Foundation, William and Flora Hewlett Foundation, Rockefeller Brothers Fund, Growald Family Fund, Flora Family Fund, Wallace Global Fund,  and V. Kann Rasmussen Foundation.

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The Hindu, 5 May 2016:

"PSU banks are owed about Rs 5 lakh crore by corporate houses and of this roughly Rs 1.4 lakh crore are owed by just five companies, which include Lanco, GVK, Suzlon Energy, Hindustan Construction Company and a certain company called the Adani Group and Adani Power," he said.

The amount owed by this group "called the Adani Group" both in terms of its long term and short term debt on Thursday is around Rs 72,000 crore, he added quoting reports.

"Yesterday it was mentioned that the entire amount that the farmers need to pay as crop loans is Rs 72,000 crore. The Adani Group itself owes to the banks Rs 72,000 crore," he said.

The Hindu, 8 May 2016:

The billionaire Gautam Adani's Adani group, with Rs 96,031 crore debt [est. AUD $1.9 billion], is under pressure to sell its stake in the Abbott Point coal mines, port and rail project. The Adani Group's debt stands at Rs. 72,000 crore [est. AUD $1.4 billion]. Last year, Standard Chartered bank had recalled loans amounting to $2.5 billion as part of its global policy of reducing exposure in emerging markets. Global lenders have backed out from funding the $10-billion coal mine development project. State Bank of India has also declined to offer a loan despite signing an MoU to fund the group with $1 billion. An Adani spokesperson declined to offer any comments on the issue.

India Infoline News Service, 19 May 2016:

S&P Global Ratings revised its outlook on Adani Ports and Special Economic Zone Ltd. (APSEZ) to negative from stable. 

ABC News, 22 December 2016:

The business behind the planned Carmichael coal mine in North Queensland is facing multiple financial crime and corruption probes, with Indian authorities investigating Adani companies for siphoning money offshore and artificially inflating power prices

Companies under scrutiny for the alleged corrupt conduct include Adani Enterprises Limited — the ultimate parent company of the massive mine planned for the Galilee Basin.

Two separate investigations into allegations of trade-based money laundering by Adani companies are underway — one into the fraudulent invoicing of coal imports and the other into a scam involving false invoicing for capital equipment imports.

"They are very serious allegations and they are being conducted by the premier Indian government agency investigating financial crime," Australia's foremost expert on money laundering, Professor David Chaikin of the University of Sydney, told the ABC.

"The allegations involve substantial sums of money with major losses to the Indian taxpayer."

Adani denies wrongdoing.

Rediff, 10 January 2017:

For the past year, Adani Power has been undergoing an overhaul for its debt, including measures such as equity infusion and refinancing. These have helped the company survive the rough times since proceeds from the compensatory rates are yet to come by. 

The firm expects its recent equity infusion, debt refinancing and the compensatory rate to lead to a turnaround in its financial position….

On December 6, the Central Electricity Regulatory Commission granted a compensatory rate for Adani Power's Mundra unit on the grounds of changes in Indonesian coal policy and shortage of domestic coal. 

In the address to analysts, after the September quarter results, the management said: "Once we have clarity in the form of CERC orders, we would obviously have the reason to work with the rating agencies and then we will make our plans."

The CERC order, however, has not led to any change of credit ratings so far for the company as its implementation hinges on the required Supreme Court approval for the same. 

CatchNews, 14 February 2017:

Earlier this year, the State Bank of India reportedly approved a loan of around $1 billion (Rs 6,600 crore ) for the company's coal mine in Australia. However, after much hue and cry in the media due to the highly stressed balance sheet of the public sector bank, the approval was withdrawn.

Hindustan Times, 11 April 2017:

The Supreme Court on Tuesday set aside an order by the Appellate Tribunal For Electricity allowing compensatory tariff to Tata Power Ltd and Adani Power Ltd, sending down shares of both companies.

Shares of Tata Power reversed early gains to fall as much as 6.78%, while Adani Power slumped up to 20% to its lowest since February 21.

The tribunal, in April last year, had said the two companies needed to be compensated as the change in Indonesian laws on coal export prices were outside the control of these companies.

Financial Review, 11 April 2017:

Indian billionaire Gautam Adani has told Malcolm Turnbull his company will seek a taxpayer-funded concessional loan of up to $1 billion to support his proposed $21.7 billion coal mine in Queensland......

Following a meeting with Mr Adani and his executives in New Delhi on Monday night, Mr Turnbull cautioned the loan – to help build a $2 billion railway line to link the mine to the coast – would have to be approved on its commercial merits by the independent board which administers the $5 billion Northern Australia Infrastructure Fund.

The Northern Star, 16 April 2017:

Shares for Adani Power Limited, the Adani Group subsidiary energy provider in India, were trading at 44.25 rupees (AU$0.9) on Monday, but dropped to 32.90 rupees by the end of trading on Friday.

Adani Enterprises, the subsidiary connected with the Carmichael Coal project, traded on Monday for 120.10 rupees ($AU2.46) a share, but has also dropped, reaching 116.85 by the end of Friday.

Westpac Bank, Climate Change Position Statement and 2020 Action Plan, April 2017:

….the International Energy Association’s (IEA) modelling indicates that under a two degree scenario thermal coal demand will peak in the current decade and decline thereafter…..

However, for new thermal coal proposals we will: Limit lending to any new thermal coal mines or projects (including those of existing customers) to only existing coal producing basins and where the calorific value for that mine ranks in at least the top 15% globally. We define the top 15% as having a specific energy content of at least 6,300 kCal/kg Gross As Received. This value is referred to as the Newcastle high energy coal benchmark.

THE PEOPLES DEMOCRATIC RIGHT TO PROTEST: High Court of Australia, BROWN & ANOR versus THE STATE OF TASMANIA, 2 May 2017

BROWN & ANOR versus THE STATE OF TASMANIA, High Court of Australia, Canberra on 2 May 2017 at 10.15 am before the full court:

BROWN & ANOR v THE STATE OF TASMANIA (H3/2016)

Date Special Case referred to Full Court: 13 December 2016

The issue in this proceeding is whether the Workplace (Protection from Protesters Act) 2014 (Tas) (‘the Act’), in whole or in part, contravenes the implied freedom of political communication in the Commonwealth Constitution.

The plaintiffs were each arrested and charged, purportedly under the Act, in early 2016 as a result of their onsite political protest against the proposed logging of the Lapoinya Forest in Tasmania. The respective criminal proceedings against them were abandoned by the police after the commencement of this proceeding. The plaintiffs contend that the Act is either wholly invalid or, at the least, is invalid in so far as it applies to forestry operations on forestry land as defined in s 3 of the Act.

The Act allows police officers to prevent the commencement or continuation of an onsite political protest that they reasonably believe is preventing, hindering or obstructing or is about to prevent, hinder or obstruct a "business activity" at any "business premises" or "business access area" as defined in s 3 of the Act, anywhere in Tasmania. The key provisions empower police officers to prevent the commencement or continuation of onsite political protests by directing the protesters to leave and stay away from business premises and business access areas for up to three months under pain of arrest and of criminal penalties if they do not do so.

The plaintiffs contend that ss 6 and 7 of the Act target and single out for prevention and punishment onsite political protest and protesters without any broader purpose of preserving, enhancing or protecting political communication. Further, they contend that no reasonable provision has been made in the Act to preserve or protect political communication.

The defendant contends that the Act protects (amongst other things) business activity lawfully carried out on land in the lawful possession of a business operator, and that the plaintiffs are seeking to prevent, hinder or obstruct activity of that nature. They submit that the Act does not restrict protest activity on land other than business premises or business access areas; it has a narrow operation and effect; it is compatible with the freedom and is in any event reasonably and appropriately adapted to the fulfilment of a legitimate purpose.

On 13 December 2016 Gordon J referred the Special Case for consideration by the Full Court. Notices of Constitutional Matter have been served. The Attorneys-General for the Commonwealth, Victoria, New South Wales, Queensland, and South Australia have filed Notices of Intervention. The Human Rights Law Centre has been granted leave to appear as amicus curiae, limited to submissions in writing.

The question in the Special Case is:

• Is the Workplace (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Trump's bully boys went after Twitter, then turned tail and ran

US President Donald Trump's bully boys issued a summons on 14 March 2017:

Twitter replies on 6 April with a lawsuit, TWITTER, INC. v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner, U.S. Customs and Border Protection; STEPHEN P. CARUSO, in his official capacity as Special Agent In Charge, U.S. Customs and Border Protection; and ADAM HOFFMAN, in his official capacity as Special Agent, U.S. Customs and Border Protection:

This is an action to prevent the U.S. Department of Homeland Security ("DHS"), U.S. Customs and Border Protection ("CBP"), and the individual Defendants from unlawfully abusing a limited-purpose investigatory tool to try to unmask the real identity of one or more persons who have been using Twitter's social media platform, and specifically a Twitter account named @ALT_USCIS, to express public criticism of the Department and the current Administration. The rights of free speech afforded Twitter's users and Twitter itself under the First Amendment of the U.S. Constitution include a right to disseminate such anonymous or pseudonymous political speech. In these circumstances, Defendants may not compel Twitter to disclose information regarding the real identities of these users without first demonstrating that some criminal or civil offense has been committed, that unmasking the users' identity is the least restrictive means for investigating that offense, that the demand for this information is not motivated by a desire to suppress free speech, and that the interests of pursuing that investigation outweigh the important First Amendment rights of Twitter and its users. But Defendants have not come close to making any of those showings. And even if Defendants could otherwise demonstrate an appropriate basis for impairing the First Amendment interests of Twitter and its users, they certainly may not do so using the particular investigatory tool employed here—which Congress authorized solely to ensure compliance with federal laws concerning imported merchandise—because it is apparent that whatever investigation Defendants are conducting here does not pertain to imported merchandise.

@ALT_uscis weighs in:

line 45 pic.twitter.com/yj78uBVq69

— ALT Immigration (@ALT_uscis) April 6, 2017

The American Civil Liberties Union joins the fray:

On 8 April it was announced that the Trump Adminstration had withdrawn the summons.

Reuters, 8 April 2017:

The abrupt end to the dispute may indicate that Justice Department lawyers did not like their chances of succeeding in a fight about speech rights, said Jamie Lee Williams, a staff attorney at the Electronic Frontier Foundation, which advocates for digital rights.

"It seemed like a blatant attempt to censor or chill the people behind this account, or to retaliate against people who are speaking out against this administration," Williams said.

"This could have been a huge loss for the administration in court," she added.

President Trump failed to stop yet another lawsuit

https://youtu.be/vwMqf6Y7Md4

On 1 March 1 2016 Donald Trump held a campaign rally at the Kentucky International Convention Center in Louisville, Kentucky. What occurred at this campaign rally led to the United States District Court Western District Of Kentucky Louisville Division hearing KASHIYA NWANGUMA, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants (Civil Action No. 3:16-cv-247-DJH), which resulted in this 22 page Memorandum Opinion And Order.

AP News, 1 April 2017:

LOUISVILLE, Ky. (AP) -- A federal judge has rejected President Donald Trump's free speech defense against a lawsuit accusing him of inciting violence against protesters at a campaign rally.

Trump's lawyers sought to dismiss the lawsuit by three protesters who say they were roughed up by his supporters at a March 1, 2016 rally in Louisville, Kentucky. They argued that Trump didn't intend for his supporters to use force.

Two women and a man say they were shoved and punched by audience members at Trump's command. Much of it was captured on video and widely broadcast during the campaign, showing Trump pointing at the protesters and repeating "get them out."

Judge David J. Hale in Louisville ruled Friday that the suit against Trump, his campaign and three of his supporters can proceed. Hale found ample facts supporting allegations that the protesters' injuries were a "direct and proximate result" of Trump's actions, and noted that the Supreme Court has ruled out constitutional protections for speech that incites violence.

"It is plausible that Trump's direction to 'get 'em out of here' advocated the use of force," the judge wrote. "It was an order, an instruction, a command."

Plaintiffs Kashiya Nwanguma, Molly Shah and Henry Brousseau allege that they were physically attacked by several members of the audience, including Matthew Heimbach, Alvin Bamberger and an unnamed defendant they have yet to be able to identify.

Bamberger later apologized to the Korean War Veterans Association, whose uniform he wore at the rally. He wrote that he "physically pushed a young woman down the aisle toward the exit" after "Trump kept saying 'get them out, get them out," according to the lawsuit.

Heimbach, for his part, sought to dismiss the lawsuit's discussion of his association with a white nationalist group and of statements he made about how Trump could advance the group's interests. The judge declined, saying such information could be important context when determining punitive damages.

The judge also declined to remove allegations that Nwanguma, an African-American, was the victim of racial, ethnic and sexist slurs from the crowd at the rally. This context may support the plaintiffs' claims of negligence and incitement by Trump and his campaign, the judge said.

Warning sign of trouble ahead once Turnbull Government changes Native Title Act 1993?

Excerpt from Explanatory Memorandum for the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017:

21. It is not thought likely that the Bill involves the acquisition of property otherwise than on just terms.

22. The Bill does however provide for compensation to persons for acquisition of property otherwise than on just terms should this be determined to have happened as a result of the operation of the amendments.

23. These provisions provide that, in the event that it is determined that a person’s proprietary rights have been affected without compensation as a result of the Act, the Commonwealth will be liable to pay a reasonable amount of compensation to that person.

Australian Attorney-General Senator George Henry 'Soapy' Brandis finally obeys the court

For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act. [Dreyfus  and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 , 22 December 2015]

With Australia’s British High Commissioner Alexander Downer not due to step down his post until around April 2018 and no other acceptable option to mothball the Attorney-General in sight, I fear that Australian voters will have to put up with the undistinguished legal mind Senator George Henry ‘Soapy’ Brandis until at least the next federal general election due sometime between August 2018 and May 2019.

Right now he is probably acting like a bear with a sore head in the corridors of power as, once he was forced to obey legal judgment, his diary entries appear to confirm that he never bothered to consult with any legal assistance services before he took a razor to government funding to that sector.

The Guardian, 20 March 2017:

George Brandis has finally released his ministerial diary and it shows no evidence he met with anyone working in the community legal sector before their funding was cut in the 2014 budget.

He handed his electronic diary to Mark Dreyfus, the shadow attorney general, late on Friday.

It took three years for him to release his diary after Dreyfus made his original freedom of information request.

The move came a week after Dreyfus threatened Brandis that he would push for contempt of court proceedings if Brandis did not release the diary immediately.

“Three years since the original freedom of information (FoI) request was made, and thousands of taxpayer dollars later – George Brandis has finally handed over his diary,” Dreyfus said on Monday.

“While the capitulation represents a victory for common sense, transparency and the principles of FoI, it is also ridiculous that it took such lengths to force the attorney general to comply with an act that sits within his own portfolio.

“In order for the attorney general to fulfil a simple request, it has taken an appeal to the Administrative Appeals Tribunal, a hearing in the full court of the federal court, and the threat of contempt.

“It is absurd, and it shows once more Senator Brandis’s unsuitability for the role of attorney general and his contempt for the rule of law.

Labor has been seeking Brandis’s diary since February 2014 to discover what consultation he held before cuts to his portfolio in the 2014 budget.

Dreyfus lodged an FoI request to inspect Brandis’ electronic diary from September 2013 to May 2014.

The Labor frontbencher has had a string of legal wins, with the Administrative Appeals Tribunal rejecting Brandis’s refusal of the request in December 2015 and finding it had to be processed. In September 2016 a full federal court decision upheld the tribunal’s ruling.

But less than two weeks ago, Dreyfus’s lawyers wrote to the Australian government solicitor accusing Brandis of “continued avoidance of his obligation to process” the FoI request because he still hadn’t released his diary.

The letter said that Brandis had had six months since the full federal court decision to process the request but “has continued to behave in a manner that is contemptuous” of the decision and the FoI Act.

It threatened if Brandis did not process the request by 20 March, Labor would seek a court order to set a deadline for the attorney general, after which it could begin contempt of court proceedings.

“No explanation for this delay has ever been proffered nor have we been given any reasons why the application has not been processed,” the letter said.

On Monday, Dreyfus said the saga – which cost taxpayers tens of thousands of dollars – had been a “monumental waste of everyone’s time”.

“What a waste of of taxpayers’ money, of public servants’ time, of the court’s time just because of – apparently – the attorney general’s vanity,” he told ABC radio.

He said it was notable there was no evidence in the diary that Brandis had met with legal assistance services, including Environmental Defenders Offices and Community Legal Centres, before cutting their funding in 2014.

In September 2014 the Productivity Commission found that the federal and governments needed to inject an extra $200 million a year into legal assistance centres to better align the means test, maintain existing frontline services and broaden the scope of legal assistance services; with the majority of funding being the responsibility of the federal government.

Instead the Attorney-General has insisted on cutting funding wherever he could and the fight continues with deans of law schools joining in the push back against Brandis:

On his part Brandis denies the funding cuts and attempts to blame the former Labor federal government (which has not been in power for the last three annual budgets) as well as the states, in his speech to the Bar Association of Queensland Annual Conference on 25 March 2017:

"I've been asked this morning to say a few words about federal matters so I thought I'd take the opportunity to address a matter which I know has been of much interest to the Bar, and which was averted to briefly by the state Attorney and that is the question of the Federal Government's contribution to legal assistance funding. We should never forget that most court proceedings in Australia are conducted in state and territory courts under state and territory law. Appropriately, therefore, it is the governments of the states and territories which are the principal funders of legal assistance in Australia. That is as it should be, even acknowledging, of course, that a very large component of the budgets of state and territory governments is money provided to them by the Commonwealth Government under various Commonwealth grants.

Nevertheless, federal governments of both political persuasions have always acknowledged that there is an important role for the Commonwealth to play in supporting the states in the provision of legal assistance through direct payments to Legal Aid Commissions, to Community Legal Centres, and to Indigenous legal assistance bodies.

With that in mind, I note that in the recent past there have been a number of statements made about the size of the Commonwealth's contribution to the legal assistance sector.

So let me take the opportunity with these remarks this morning to put some facts on the table.

First, to date, there have been no cuts to payments to Community Legal Centres by the Commonwealth Government. It has been claimed by some that the Government is withdrawing $6.8 million annually. That claim is misleading.

That money, to which the state Attorney also referred, was money provided for under a four year program, announced by the previous federal government in the 2013 budget, which was deliberately designed to terminate on 30 June 2017. When that program terminates that money will no longer be available. This is what is being called by some - the "Dreyfus funding cliff".

In spite of those, and other claims, the reality of competing funding priorities and the necessity for budget repair across Government should not obscure the significant support that the Commonwealth provides and to which we are committed to continue to provide."

BACKGROUND

The Guardian, 27 March 2017:

The fight for adequate funding for community legal centres stretches back to 2013. When the Abbott government was elected in September 2013, it used its first mid-year budget update to cut $43.1m for legal assistance services over four years, including $19.6m from community legal centres.

Six months later, in its 2014-15 budget, it cut another $6m from CLCs.

A month later it made one-off grants worth $1.55m to just 14 CLCs. Then in March 2015, following intense community pressure, it reversed some of its 2013-14 budget update cuts, reinstating $12m in funding over two years for the sector.

A few months later, in mid-2015, it signed a new five-year national partnership agreement on legal assistance services. The agreement provided Australia’s 189 community legal centres with $42.2m funding in 2016-17, but that funding drops to $30.1m in 2017-­18, $30.6m in 2018-­19, and $31m in 2019-­20.

The reduction in funding levels from 2016-­17 amounts to $34.83m over three years, 30% of CLC funding.

Turnbull and Co announce they are taking their ideological razors to the Racial Discrimination Act and Human Rights Commission legislation

During this decade there have been three cases close to the hearts of the far right of the political spectrum in Australia.

The first was Pat Eatock v Andrew Bolt and the Herald and Weekly Times Pty Ltd in the Federal Court of Australia, the second the Cynthia Prior complaint to the Human Rights Commission and, the third was the complaint against Bill Leak lodged with the Human Rights Commission.

All involved the C’wealth Racial Discrimination Act 1975.

The Federal Court found against News Corp journalist Andrew Bolt, the Commission terminated the Prior complaint on the basis it was satisfied that there was no reasonable prospect of the matter being settled by conciliation (the complainant later commencing unsuccessful litigation) and, the complaint against cartoonist Bill Leak was eventually withdrawn by Ms. Dinnison.

The Racial Discrimination Act and the Australian Human Rights Commission Act appear to have operated as intended by the original law makers in all three instances.

Yet such was the angst in Liberal Party and ‘flying monkey’ circles that an attempt to significantly alter the Act and neuter the Commission is now underway.

Excerpts from Australian Prime Minister Malcolm Bligh Turnbull statements at a joint press conference on 21 March 2017:

Good afternoon. Today I am here with the Attorney and we are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification and strengthen the protection of free speech, one of the fundamental freedoms upon which our democracy depends.

We are defending the law by making it clearer. We are defending Australians from racial vilification, by replacing language which has been discredited and has lost credibility. It has lost the credibility that a good law needs.

So the changes we are proposing to section 18C will provide the right balance between defending Australians from racial vilification and defending and enabling their right of free speech upon which our democracy, our way of life, depends.

We are also amending the law so as to ensure that the Human Rights Commission will offer procedural fairness, will deal with cases promptly and swiftly and fairly. That's very important too.

We need to restore confidence to the Racial Discrimination Act and to the Human Rights Commissions' administration of it. The changes we're proposing have been supported from all sides of the political spectrum.

Granted, there will be many critics and opponents. But this is an issue of values. Free speech. Free speech is a value at the very core of our party. It should be at the core of every party.

Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.

We’ve struck the balance right. We've done this carefully. There's been a scrupulously careful examination of this matter by the Human Rights Committee and we thank the Chairman, Ian Goodenough, and the members for their work.

What we presented today strikes the right balance. Defending freedom of speech, so that cartoonists will not be hauled up and accused of racism. So that university students won't be dragged through the courts and had hundreds of thousands of dollars of legal costs imposed on them over spurious claims of racism.

The time has come to get the balance right, to get the language right, to defend our freedom of speech and defend Australians with effective laws, clear laws, against racial vilification. That's what we're doing today. We're defending Australians with a stronger, fairer law…..

The language, the new language will better and more clearly protect people from racial vilification, in a more generic term, from harassment or intimidation because the language is clearer.

The problem with the language at the moment - using the language insult and offend – the problem is that, of course, on its face, its natural and ordinary meaning, it includes very small slights. So people have said: “Oh, well, you know, there are court cases that say it only means really serious insults.” Well isn't it better that laws actually say what they mean? Isn't it better that laws are clear? Isn't it better when you’re dealing with freedom of speech and you're dealing with protecting people from racial vilification, that the law is clear and in language people can understand? That's what we're doing.

….. you have got to remember that if you have language that does not reflect the object, or the proper object of the legislation, it has a chilling effect on free speech. So let’s be very clear. Ask this question: “What is it we that we are seeking to prohibit”?

We believe that “harassment”, “intimidation” are the better terms. They are clearer and they clearly express the type of conduct that should be prohibited, not mere slights or the taking of offence or hurt feelings. That is not what the law should be about…..

….. We believe that the law has lost its credibility. I mean, all of you have seen the criticism that has come around recent cases, the QUT and the Bill Leak case being classic examples. When a law loses its credibility, it lacks its ability to achieve any of its objectives.

So this is why it’s important to restate the language in terms that better reflect the objects of the legislation. As the Attorney said, right from the outset, if you go back decades, it better reflects the object of the legislation then, and it clearly prohibits conduct of a kind that we condemn, that we abhor, that we do not accept.

We are the most successful multicultural society in the world. It’s built on a foundation of mutual respect, and that mutual respect - that foundation - is strengthened by stronger, clearer, fairer laws.

BACKGROUND

Excerpt from a paper by the Chair of Melbourne University Law School Professor Adrienne Stone in Melbourne University Law Review 926 on the judgment in Eatock v Bolt [2011] FCA 1103 (28 September 2011):

In a short judgment following his initial finding, Bromberg J granted two remedies: the Herald Sun (published by the Herald and Weekly Times) was required to publish a ‘corrective notice’ as specified in the judgment, and Bolt and the Herald and Weekly Times were restrained from further publishing or republishing the offending articles.^[67]

The remedies are notably insubstantial. They are considerably less onerous than damages, a fact which is especially notable given it seems entirely possible that Eatock could have successfully claimed damages in a defamation action.^[68] The lenity of the remedy becomes even clearer in light of an additional order which allowed the Herald Sun to continue to make the offending newspaper articles available ‘for historical or archival purposes’, provided that the publication was accompanied by the required corrective notice.^[69] The result of this latter order is that the offending articles remain available online.^[70] The ready availability of the offending articles considerably weakens claims that Bolt has been silenced by the action, and more general claims that freedom of speech has been chilled. The ideas in his articles continue to be communicated to those who seek them out.

Indeed, this claim of silencing is at once made and disproved by  Andrew Bolt  himself. In his response to the decision, Bolt wrote ‘Silencing Me Impedes Unity’, a commentary in which he argues that his ideas have been ‘banned’ and yet goes on to repeat, at quite some length, his argument that Aboriginal people of mixed heritage should not claim Aboriginal identity.^[71]

This irony deepens when one considers the common refrain amongst critics of 
s 18C (and the respondents in Eatock v Bolt in particular) that the complainants should have responded to the criticisms by defending themselves in public debate.^[72] This suggestion taps into an important idea in the political theory of freedom of speech that the victims of harms caused by speech ought to ‘speak back’, and that the ‘fitting remedy for evil counsels is good ones’.^[73] The irony arises because, in effect, Bolt and the Herald and Weekly Times have themselves been subject to a certain kind of ‘speaking back’.^[74] They have not been required to apologise, to pay damages, or — crucially — to remove the material from the internet. The sum total in effect of the measure imposed on them is that the articles are labelled as having infringed the RDA.

In other words, the remedy imposed inEatock v Bolt was predominantly expressive  rather than coercive. It neither required compensation nor imposed any other sanction on the respondents. Rather, the state signals its disapproval of the message conveyed — labelling it as contrary to the RDA — but does not prevent its communication. The state’s action is akin to the ‘speaking back’ that the respondents and their defenders encourage. Moreover, just as the respondents and their defenders encouraged the complainants in this case, if the respondents are troubled by being labelled in this way, they are, of course, able themselves to ‘speak back’. Therefore, one way to understand the effect of Eatock v Bolt is that it makes a contribution to the public debate about racial identity (labelling the particular contribution of Bolt as discriminatory), but does not prevent Bolt’s message from being heard.

This argument will, no doubt, not satisfy those deeply committed to a strong libertarian vision of freedom of speech — in which the role of the state is to be minimised — and who will find even expressive remedies offensive to their underlying conception of liberty.^[75] The state is an especially powerful ‘speaker’ and its intervention through expressive remedies might be cast as dangerously distorting.

However, libertarian conceptions of freedom of speech are themselves contested both in theory^[76] and exceptional in practice.^[77] So those campaigning to amend s 18C cannot simply claim to be defending freedom of speech against those who disregard it or prefer other values or interests. They are defending a particular, rather unusual, and strongly contested version of freedom of speech and they are doing so in the face of alternative conceptions that powerfully defended in theory^[78] and widely adopted in practice.^[79] By neglecting even to notice the expressive nature of the remedy, the opponents of the law have thus failed to see that it may advance, rather than chill, free speech values.

Parliamentary Joint Committee on Human Rights, Freedom of speech in Australia, Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth), 28 February 2017 Report, pp10-11:

Legal meaning of 'offend, insult, humiliate or intimidate'

2.21 The Federal Court in Jones v Scully explicitly set out the dictionary definitions of the terms 'offend, insult, humiliate or intimidate' in an attempt to establish the meaning to be given to each word individually.¹⁴ The ordinary meaning of the words provided in Jones v Scully provide some guidance, but must also be consistent with the threshold established by Kiefel J,¹⁵ in Creek v Cairns Post Pty Ltd,¹⁶ that section 18C only applies to conduct having 'profound and serious effects, not to be likened to mere slights'. This standard has been affirmed in the case law.¹⁷

2.22 It is worth noting, however, that the Court generally does not consider each term in isolation. Although in McGlade v Lightfoot the relevant conduct was found to be reasonably likely to 'offend' and 'insult', the Court made it very clear that it was not  reasonably likely to humiliate or intimidate.¹⁸ This means that the legal meaning of 'offend, insult, humiliate or intimidate' does not wholly correspond with the ordinary or 'common sense' meaning of the terms. In other words, as interpreted by the courts, conduct that is merely offensive or merely insulting will not be captured by section 18C of the RDA, but only more serious forms of conduct on the basis of race. While some submitters suggested that the words used in section 18C created uncertainty, the committee received evidence from other witnesses that the legal meaning and judicial interpretation of section 18C was well settled as applying only to conduct at the more serious end of the range.¹⁹

14 [2002] FCA 1080.

15 Kiefel J is now the Chief Justice of the High Court.

16 [2001] FCA 1007, [16].

17 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 131, [70]

(French J) (Bropho); Jones v Scully (2002) 120 FCR 243, [102]; Eatock v Bolt (2011) 197 FCR 261

at [267]-[268] (Justice Bromberg) (Eatock).

18 McGlade v Lightfoot (2002) 124 FCR 106, 120 at [61]-[62].

19 See, for example: Law Institute of Victoria, Submission 184, 4; Mr Iain Anderson, Deputy

Secretary, Attorney-General's Department, Committee Hansard, 17 February 2017, 21-22.