Another how low can they go moment courtesy of the Catholic Church in Australia

The Sydney Morning Herald, 12 February 2018:

The Catholic Church in Australia is worth tens of billions of dollars, making it one of the country’s biggest non-government property owners, and massively wealthier than it has claimed in evidence to major inquiries into child sexual abuse.

A six-month investigation by The Sydney Morning Herald has found that the church misled the Royal Commission into Institutional Responses to Child Sexual Abuse by grossly undervaluing its property treasures in both NSW and Victoria while claiming that increased payments to abuse victims would require cuts to its social programs.

The investigation was based on intricate data from local councils that allowed more than 1860 valuations of church-owned property in Victoria. That showed that across 36 municipalities - including nearly all of metropolitan Melbourne - the church had land and buildings worth almost $7 billion in 2016.

Extrapolated nationally, using conservative assumptions, the church owns property worth more than $30 billion Australia-wide.

This put the Catholic church among the largest non-government property owners, by value, in NSW and Australia, rivalling Westfield’s network of shopping centres and other assets. It dwarfs all other large property owners.

"These figures confirm what we have known; there is huge inequity between the Catholic Church’s wealth and their responses to survivors," said Helen Last, chief executive of the In Good Faith Foundation.

"The 600 survivors registered for our Foundation’s services continue to experience minimal compensation and lack of comprehensive care in relation to their Church abuses. They say their needs are the lowest of church priorities.’’…..

Monetary payments to abuse survivors have averaged just $49,000 under Towards Healing, the national compensation system established by the church in 1996……

The church also has extensive non-property assets including Catholic Church Insurance and its own internal banks - often known as Catholic Development Funds - with nearly $1 billion in assets in Sydney alone.

And it has other investments, including in superannuation, telecommunications and in the stock-market. A Church-owned fund manager has more than $1.4 billion under management.

Falling biodiversity, degradation of productive rural land, intensification of coastal & city development, and the threat of climate change require Australia to produce blueprint for a new generation of environment laws

“The next generation of environmental laws will need to recognise explicitly the role of humanity as a trustee of the environment and its common resources, requiring both care and engagement on behalf of future generations.”  [APEEL, Blueprint for the Next Generation of Environmental Law, August 2017]

The Guardian, 6 February 2018:

Environmental lawyers and academics have called for a comprehensive rethink on how Australia's natural landscapes are protected, warning that short-term politics is infecting decision-making and suggesting that the public be given a greater say on development plans.

The Australian Panel of Experts on Environmental Law has launched a blueprint for a new generation of environment laws and the creation of independent agencies with the power and authority to ensure they are enforced. The panel of 14 senior legal figures says this is motivated by the need to systematically address ecological challenges including falling biodiversity, the degradation of productive rural land, the intensification of coastal and city development and the threat of climate change.

Murray Wilcox QC, a former federal court judge, said the blueprint was a serious attempt to improve a system that was shutting the public out of the decision-making process and failing to properly assess the impact of large-scale development proposals.

"We found the standard of management of the environment is poor because everything is made into a political issue," Wilcox said. "Nothing happens until it becomes desperate.

"We need a non-political body of significant prestige to report on what is happening and have the discretion to act."

The legal review, developed over several years and quietly released in 2017, resulted in 57 recommendations. It was suggested by the Places You Love alliance, a collection of about 40 environmental groups that was created to counter a failed bid to set up a "one-stop shop" for environmental approvals by leaving it to the states. The panel undertook the work on the understanding it would be independent and not a piece of activism.

Review report can be found here.

The American Resistance has many faces and these are just some of them (19)

Successful resistance at state level.....

Chicago Tribune, 4 December 2018:

President Donald Trump has signed an executive order disbanding his voter fraud commission.

A White House statement is blaming the decision on numerous states that have refused to provide voter information to the Presidential Advisory Commission on Election Integrity.

White House spokeswoman Sarah Huckabee Sanders says that, "Rather than engage in endless legal battles at taxpayer expense," Trump has signed an order to dissolve the commission and asked the Department of Homeland Security to determine the administration's next steps.

Critics saw the commission as part of a conservative campaign to strip minority voters and poor people from the voter rolls, and to justify unfounded claims made by Trump that voter fraud cost him the popular vote in 2016.

Past studies have found voter fraud to be exceptionally rare. [my yellow highlighting]

 BACKGROUND

The Hill, 3 January 2018:

It was established months after Trump claimed without citing evidence that millions of people voted illegally in 2016, depriving him of a popular-vote victory against Democratic presidential nominee Hillary Clinton.

Vice President Mike Pence and Kansas Secretary of State Kris Kobach, a vocal supporter of voter ID laws, led the commission. It was made up of Republicans and Democrats.

The panel met twice, but was quickly bogged down amid states’ unwillingness to comply with its requests and lawsuits alleging it did not follow federal record-keeping laws.

The Government Accountability Office announced last October it was opening an investigation into the commission at the request of three Democratic senators who said the panel did not properly disclose its work.

Democrats and civil-rights groups described the commission as part of a broader conservative effort to deprive minorities of voting rights and a cover to back up the president’s claims.

"The claim of widespread voter fraud in the United States is in fact, fraud. The demise of this commission should put this issue to rest," Michael Waldman, president of the liberal Brennan Center for Justice, said in a statement.

Senate Minority Leader Charles Schumer (D-N.Y.) celebrated the panel's end, calling it a "front to suppress the vote, perpetrate dangerous and baseless claims" that "was ridiculed from one end of the country to the other."

Some leading Republicans, including Speaker Paul Ryan (R-Wis.) and Sen. Lindsey Graham (R-S.C.), also urged Trump last year to drop his claims of widespread fraud.

President Trump still doesn't have outright victory for his policy of banning Muslim entry to USA and the legal fight opposing these bans enters its second year

The legal fight against President Donald J. Trump’s Muslim travel bans ended 2017 with another victory for the State of Hawaii et al and the fight now enters its second year on 3 February 2018.

United States Courts of Appeals – Ninth Circuit, STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs-Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, 22 December 2017:

For the third time, we are called upon to assess the legality of the President’s efforts to bar over 150 million nationals of six designated countries1 from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President’s power to curtail entry of foreign nationals in this appeal of the district court’s order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”).

The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well.

Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

On these statutory bases, we affirm the district court’s order enjoining enforcement of the Proclamation’s §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States…..

For all of these reasons, we affirm in part and vacate in part the district court’s preliminary injunction order. We narrow the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 137 S. Ct. at 2088. In light of the Supreme Court’s order staying this injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought,” we stay our decision today pending Supreme Court review. Trump v. Hawai‘i, No. 17A550, — S. Ct. —, 2017 WL 5987406 (Dec. 4, 2017). Because we conclude that Plaintiffs have shown a likelihood of success on their statutory claims, we need not reach their constitutional claims.

Video of closing argument on behalf of Plaintiffs-Appellees:

https://www.c-span.org/video/?c4701602/hawaiivtrump3closing

The matter is ongoing in 2018.

Background can be found at University of Michigan Law School, Civil Rights Litigation Clearing House.

NSW Environmental Defender's Office has served irrigator and Nationals donor Peter Harris a summons demanding he return more than five billion litres of water he is alleged to have illegally taken from the Barwon-Darling River

The Australian, 14 November 2017:

The NSW Environmental Defender’s Office has served irrigator and Nationals donor Peter Harris a summons demanding he return more than five billion litres of water he is alleged to have ­illegally taken from the Barwon-Darling River.

The incidents of alleged water theft are the subject of ICAC, Ombudsman and Office of Water inquiries, which follow the standing down and resignation of former senior NSW water bureaucrat Gavin Hanlon.

It has also been revealed that NSW Primary Industries Minister Niall Blair benefited Mr ­Harris, a cotton farmer, and other irrigators by changing the laws to pardon Mr Harris retrospectively for illegal flood works and that Mr Blair lobbied Environment Minister Gabrielle Upton to change the law to justify a decision to give Mr Harris more water trading rights.

In their action in the Land and Environment Court, the plaintiffs demand “the return of water, up to the equivalent of the total volume ... (to) occur immediately after the water is extracted from the water source and has passed through metering equipment” to measure it, but before it is stored.

Alternatively, the defender’s office is seeking orders so that Mr Harris forfeits his entitlement to the equivalent amount of water in ­future to replenish the river.

The summons was served on Peter James Harris and Jane Maree Harris and the matter is listed for December 8.

The amount of water allegedly taken would fill more than 2000 Olympic swimming pools.

Office chief executive David Morris said the action was being taken because the NSW government was not moving quickly enough to penalise Mr Harris.

“On two occasions EDO NSW has written to the NSW government outlining concerns about potential breaches of the Water Management Act 2000 (NSW) and informing the government of intention to commence civil enforcement proceedings,” he said.

“No adequate response has been received from the government. In the face of government inaction, our client (the Inland Rivers Network) has seen no other choice but to commence proceedings in the Land and Environment Court.”

Are NSW police racially profiling young offenders?

Junkee, 26 October 2017:

A NSW Police intelligence program that uses secret algorithms to identify suspects who may commit a “future crime” is disproportionately targeting young people and Aboriginal and Torres Strait Islander people, according to a comprehensive new report.

The ‘Policing Young People in NSW’ report was published by the Youth Justice Coalition, a network of youth workers, lawyers, academics and policy experts. It was written by Dr Vicki Sentas, an academic at the University of New South Wales, and Camilla Pandolfni, a solicitor at the Public Interest Advocacy Centre.

The report is the first comprehensive look at the Suspect Targeting Management Plan (STMP), a NSW Police program that “seeks to prevent future offending by targeting repeat offenders and people police believe are likely to commit future crime”.

The STMP involves the use of “risk assessment tools” and algorithms that take into account a series of “risk factors” to identify potential future criminals. Suspects in the program are categorised on a scale from “low risk” to “extreme risk” and then targeted by police officers through regular house visits and the use of stop and search powers.

The criteria used to identify suspects is not publicly available, and individuals targeted through the STMP are not notified of the reasons behind their risk categorisation. The whole program is managed internally by the police and there are no specific laws or regulations governing its operation.

Excerpt from Youth Justice Coalition Report, Policing Young People in NSW: A study of the Suspect Targeting Management Plan:

The preliminary findings based on this research are:

* Disproportionate use against young people and Aboriginal people: Data shows the STMP disproportionately targets young people, particularly Aboriginal and Torres Strait Islander people, and has been used against children as young as ten.

* Patterns of ‘oppressive policing’ that may be damaging relationships between police and young people: Young people targeted on the STMP experience a pattern of repeated contact with police in confrontational circumstances such as through stop and search, move on directions and regular home visits. The STMP risks damaging relationships between young people and the police. Young people, their families or legal representatives are rarely aware of criteria used to add or remove people from the STMP. As the case studies show, young people experience the STMP as a pattern of oppressive, unjust policing.

* Increasing young people’s costly contact with the criminal justice system and no observable impact on crime prevention: The STMP has the effect of increasing vulnerable young people’s contact with the criminal justice system. Application of the STMP can be seen to undermine key objectives of the NSW youth criminal justice system, including diversion, rehabilitation and therapeutic justice. The research has identified several instances where Aboriginal young people on Youth Koori Court therapeutic programs have had their rehabilitation compromised by remaining on the STMP. There is no publicly available evidence that the STMP reduces youth crime.

* Encouraging poor police practice: In some instances, the exercise of police search powers in relation to a young person on the STMP have been found unlawful by the courts. The STMP may be inadvertently diminishing police understanding of the lawful use of powers (set out in the Law Enforcement Police Powers and Responsibilities Act 2002 (NSW) (LEPRA)) and thereby exposing police to reduced efficacy and civil action. * No transparency and an absence of oversight, scrutiny or evaluation: The operation of the STMP is not transparent or accountable. Criteria for placement on the STMP are not publicly available, individuals cannot access their STMP plan and it is unclear what criteria are used by police to remove a person from the STMP…..

Based on the research and findings presented here, the report recommends that:

1. NSW Police discontinue applying the STMP to children under 18. Children suspected of being at medium or high risk of reoffending should be considered for evidence-based prevention programs that address the causes of reoffending (such as through Youth on Track, Police Citizens Youth Clubs NSW (PCYC) or locally based programs developed in accordance with Just Reinvest NSW), rather than placement on an STMP.

2. NSW Police make the STMP policy and operational arrangements publicly available to enable transparency and accountability.

3. NSW Police amend the STMP policy so that any person considered to have a ‘low risk’ of committing offences not be subject to the STMP.

4. NSW Police amend the STMP Policy to mandate formal notification by police to any individual placed on a STMP, including reasons for placement on the STMP and the date of next review. Subsequent notifications to individuals on an STMP should outline the outcome of the review and reasons for the STMP being maintained or discontinued.

5. NSW Police make data on the STMP publicly available through the NSW Bureau of Crime Statistics and Research (BOCSAR). Available data should include demographic information (age, Aboriginal or Torres Strait Islander status, ethnicity, Local Area Command LAC), as well as data on the length of time enrolled in the STMP and the category of risk determined.

6. NSW Police commission BOCSAR to evaluate whether the STMP is reducing youth crime.

7. NSW Police provide all police officers with formal training on the STMP which:

i. Clarifies its status as an intelligence tool;

ii. Provides guidance on the criteria for inclusion and exclusion from the program and the alternative programs available;

iii. Sets out its operational requirements, and limits; and iv. Provides guidance on the relationship of the STMP to the law. For example, training should clarify that a persons’ inclusion on an STMP cannot provide a basis for grounding a reasonable suspicion (either on its own or together with a number of other factors) under LEPRA.

8. The Law Enforcement Conduct Commission (LECC) conduct a comprehensive review of the STMP.1 The terms of reference of the recommended LECC review should include consideration of whether the STMP:

i. is effective and appropriate in dealing with the risk of offending in young people under 25 and children;

ii. is effective and appropriate in dealing with the risk of offending in adults;

iii. is effective and appropriate in relation to other vulnerable people (as defined in clause 28 of the Law Enforcement (Powers and Responsibilities) Regulation 2016), including those with impaired intellectual or physical functioning, Aboriginal and Torres Strait Islander peoples and persons from non-English speaking backgrounds;

iv. is consistent with NSW policy and practice for juvenile justice including principles of diversion from the criminal justice system as well as NSW law, including the Young Offenders Act 1997 (NSW), and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); and

v. is consistent with NSW Police policies and practices for policing children and young people, including the NSW Police Force Youth Strategy, as well as the Aboriginal Strategic Direction and Aboriginal Action Plans, the NSW Domestic Violence Strategy, the NSW Police Disability Inclusion Action Plan and all other policies and procedures regarding vulnerable persons.

In the course of the review, the LECC should consult with other professional disciplines such as mental health practitioners, Family and Community Services Managers, the Department of Justice, and community workers about best practice in diversion, crime prevention and the needs of young people.

Finally, this report is the first publicly available study about the STMP. The unjustified secrecy around the STMP has prevented appropriate, transparent, program evaluation and more thorough examination of the impact the STMP is having on young people, crime prevention and police practice. This report’s conclusion that the operation of the STMP is likely to be having damaging effects on young people is compelling grounds for further investigation and external scrutiny.

US President Donald Trump can run but can he hide?

After months of fighting to have this court case go away US President Donald J. Trump is in the process of being forced to hand over documents relating to at least ten sexual assault allegations, as part of a defamation action.

This subpoena only became public in September 2017.

Subpoena in Summer Zervos v Donald J. Trump by clarencegirl on Scribd

According to BuzzFeed on 15 October 2017:

Trump’s response to Zervos’s motion is due Oct. 31, according to Zervos’s attorney, Gloria Allred. In a statement Allred said: “We are hopeful that the court will deny President Trump’s motion to dismiss, so that we may move forward with discovery and obtain relevant documents and testimony.”

The original compliant and jury demand was lodged in the Supreme Court Of The State Of New York County Of New York in January 2017 as Summer Zervos v Donald J. Trump.

UPDATE

Trump's response has been reported in the media as characterising his allegedly defamatory statements, about private citizen Summer Zervos, as political opinion protected under the US Constitution.

Australian High Court places doubt over constitutionality of anti-protestor laws in New South Wales

In 2014 the Parliament of Tasmania enacted the Workplaces (Protection from Protesters) Act 2014 also known as the Protestors Act – an act designed to stifle even peaceful protest by individuals and groups concerned about government policy and actions by business or industry.

The Act allowed for fines of up to $10,000 for individuals and up to $100,000 for incorporated bodies, as well as additional fines and/or gaol terms of up to 4 years for further offences.

After the January 2016 arrests in the now destroyed Lapoinya Forest of individuals there for the purpose of raising public and political awareness about the logging of the forest and voicing protest to it, two of those arrested went to the High Court.

This is the result.

Excerpt from the High Court of Australia’s 18 October 2017 judgment in ROBERT JAMES BROWN & ANOR v THE STATE OF TASMANIA:

Question 2

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

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution. [my yellow highlighting]

The NSW Government is now considering implications of this judgment with regard to its own Part 4AD-Division 3 anti-protestor provisions in the NSW Crimes Act 1900 which carry a gaol term of 7 years.

The Sydney Morning Herald, 19 October 2017:

NSW Attorney-General Mark Speakman is seeking advice from the Solicitor-General about the effect on controversial NSW anti-protest laws of a High Court decision that found similar laws in Tasmania were unconstitutional.

The decision could have ramifications for three protesters facing up to 14 years in jail after becoming the first people charged under laws introduced by the NSW government last year.

Bev Smiles, Stephanie Luke and Bruce Hughes were charged in April with rendering useless a road belonging to a mine and hindering the working of equipment belonging to a mine following a protest at Wilpinjong Coal Mine in the Hunter Valley.

Each charge carries a maximum sentence of seven years in jail.

This is an image of the Bathurst Community Climate Action Network (BCCAN) “rendering useless” the coal mine road in April 2017:

Photo: Western Advocate, 19 April 2017

Australian High Court hands down judgment at 2:15pm today concerning eligibility to sit of five current and two former federal parliamentarians

High Court of Australia, email notification of judgment, 24 October 2017:

Friday 27 October 2017 at 2.15pm

1. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator the Hon. Matthew Canavan (C11/2017)

2. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Mr Scott Ludlam (C12/2017)

3. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Ms Larissa Waters (C13/2017)

4. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Malcolm Roberts (C14/2017)

5. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning The Hon. Barnaby Joyce MP (C15/2017)

6. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator the Hon. Fiona Nash (C17/2017)

7. In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Nick Xenophon (C18/2017)

Copies of the judgment summaries will be accessible on the High Court website following the delivery of judgment.

Copies of the full judgment will be accessible on http://eresources.hcourt.gov.au/browse once uploaded.

Judgment delivered Friday, 27 October 2017:

HIGH COURT OF AUSTRALIA IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SE... by clarencegirl on Scribd

Australian politics, law, justice and eligibility to sit as a federal parliamentarian

Excerpt from Ingrid Matthews’ article in Independent Australia, Hurrah! It's Section Forty-Forganza Week!, 12 October 2017:

REPORTING POLITICS, LAW AND JUSTICE

There are two other general points to make about the media framing of this case. 

The first is the oft-foreshadowed possibility that those MPs who have not done so may be "forced to resign". This is supremely irritating, because no force is involved (unlike, say, how police handled a child here). Any resignation would be a function of the MP failing to comply with our Constitution and of the High Court doing its job.

The absence of force is important, because the biggest claim that common law liberal democracies like Australia make for our system is this: legal and political conflicts are settled in a "civilised" manner. With words, not fists. With elections, not coups. Using evidence and argument, not violence and vigilantism.

The rituals of legal process are imbued with this pretension to courteous resolution. But that is not how the law looks to Black people in prison cells and their families. Or to welfare recipients sent AFP-branded debt notices by Centrelink. We pay Barnaby Joyce over $1 million per three-year term, and thousands more in expenses, while aggressively pursuing the poorest people in society for petty or non-existent offences and debts.

This is not justice.

Similarly, the notion that the "High Court could bring down the Government" is erroneous. If Joyce is disqualified, it would be a product of Joyce’s oversight and not because the High Court exercised some previously unrealised prerogative power in a curial coup. Plus, there are crossbenchers in the Lower House. The member for Indi will support the Government on confidence and supply. Thus a shift from a majority to a minority government does not "bring down a government". Such a narrative is misleading and frankly embarrassing, given we had a minority government a mere four years ago.

In my view, if Joyce could discover and renounce New Zealand citizenship in 2017, he could have done so in 2004 when he nominated for the Senate, or in 2013 for the seat of New England (Wiki history here). This position is based in law and morality. To me it is simply wrong of Joyce to not ensure his eligibility to sit in the Australian Parliament when he receives such enormous largesse from the Australian public to do so. I say largesse because I can not see any value-add to the national interest, any return on our investment, in Joyce and his travels.

So yes, the politics of this case are fascinating, but not necessarily in the ways that are offered up by political reporters. Constitutional law is a serious business, and the law is not a game.

Ingrid Matthews is a sessional academic who teaches law and human rights. You can follow Ingrid on Twitter at @iMusing or via her blog oecomuse.

High Court of Australia sitting as the Court of Disputed Returns ends federal parliamentarians eligibility to stand hearings and considers its judgment

“The Court reserves its decisions in these matters. It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible. As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately. No doubt, they will explain this to their clients.”  [Chief Justice of Australia Susan Mary Kiefel AC, 12 October 2017]

On 10-12 October 2017 the full High Court of Australia sitting as the Court of Disputed Returns heard arguments as to why five members and two former members of the Parliament of Australia should or shouldn’t be found to have been ineligible to stand for election prior to the 2016 general election and sit as an elected members thereafter.

While the country waits on the resolution of this matter, here are links to relevant documents and transcripts.

High Court of Australia Justices

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

Notices

Reference by the Senate to the Court of Disputed Returns - Senator Nick Xenophon

Reference by the Senate to the Court of Disputed Returns - Senator Fiona Nash
Reference by the Senate to the Court of Disputed Returns - Senator Matthew Canavan

Reference by the Senate to the Court of Disputed Returns - Mr Scott Ludlam

Reference by the Senate to the Court of Disputed Returns - Ms Larissa Waters

Reference by the Senate to the Court of Disputed Returns - Senator Malcolm Roberts

Reference by the House of Representatives to the Court of Disputed Returns - The Hon Barnaby Joyce MP

High Court of Australia Transcripts

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 170 (24 August 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce [2017] HCATrans 171 (24 August 2017

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 199 (10 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 200 (11 October 2017)

Re Canavan; Re Ludlam; Re Waters; Re Roberts; Re Joyce; Re Nash; Re Xenophon [2017] HCATrans 201 (12 October 2017)

Self-styled “bounty hunter” issues penalty writs

David Barrow at http://andrewboltparty.com:

On 27 September 2017, I sued 6 current and former Senators and Mr Barnaby Joyce MP under the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth).

This provides a bounty for citizens ‘hunting down’ any Parliamentarian who has sat when disqualified.

$200 is paid for proving the Parliamentarian is caught out during the 12 months before being served with a lawsuit; and $200 is paid for every subsequent day on which he or she sat.

Any penalties I receive and personal tax benefit, I will donate to the The Fred Hollows Foundation…..

File this one under 'Who's guarding the guards?'

The politicians forming Australian state and federal governments assure us they are upright, ethical people with histories as pure as the driven snow. They tell us their advisors are trustworthy beyond doubt and their senior public service appointees & finance/security consultants ditto. While their big business mates like Gina, Twiggy and Co are genuinely true blue and philanthropic.

Yet, as step by step these same politicians lead us towards authoritarian governance and Big Brother mass surveillance, their feet of clay can’t help but show.

North Coast Voices readers may remember that SMEC Holdings Limited (now SMEC and Surbana Jurong) has been a favourite of Malcolm Turnbull's since he was the Minister for the Environment and Water Resouces in the Howard Government ministry.

This company provided an error-ridden desktop study for Turnbull supporting damming and diverting water from NSW North Coast river systems, with a preference for visiting this environmental vandalism on the Clarence River system.

It is now allegedly a corrupt multinational corpration.

The Age, 4 October 2017:

An arm of the company tasked with advising the Turnbull government on its signature infrastructure project, Snowy Hydro 2.0, has been banned by the World Bank for alleged bribery and corruption, prompting further calls for a federal anti-corruption watchdog……

Prime Minister Malcolm Turnbull poses for a photo during his announcement of Snowy Hydro 2.0 in March.

Photo: Alex Ellinghausen

Engineering company SMEC had five of its subsidiaries banned by the World Bank last week after an investigation into "inappropriate payments" linked to projects in Sri Lanka and Bangladesh. 

SMEC was chosen to undertake the $29 million feasibility study back in May and the work is due to be finished by the end of the year. The firm was selected by the state and federal government-owned Snowy Hydro corporation, which runs the current power plant.

Last year, Fairfax Media revealed the details of some of the allegations around improper payments involving SMEC, including allegedly corrupt dealings between the firm and Sri Lankan president Maithripala Sirisena when he was a cabinet minister in 2009.

Those dealings and others are still under investigation by the federal police.

This is one wealthy individual audited by the Australian Taxation Office - venture capitalist and independent consultant to business & government for over twelve years, Anthony ‘Tony’ Castagna.

The Sydney Morning Herald, 7 October 2017:

Anthony Castagna's company helps protect the cyber secrets and detect financial crimes within the world's most powerful institutions, including the Serious Fraud Office in Britain, US Homeland Security, the Australian defence force, ASIC, even the Office of the President of the US.

Now the Sydney-based co-founder and chairman of Nuix, majority owned by Macquarie Bank, faces a potential 20-year jail term after being charged with tax evasion and dealing with the proceeds of crime.

Dr Castagna, 70, has been the target of two of Nuix's major clients: the Australian Federal police and the Australian Tax Office through Project Wickenby, their long-running tax probe.

The charges relate to payments from Macquarie Bank which were allegedly channelled into offshore companies controlled by his cousin Robert Agius, who was sentenced to a non-parole period of 6 years and 8 months' jail in 2012 for operating unrelated tax avoidance schemes via his Vanuatu-based accountancy firm.

In addition to Dr Castagna's criminal charges, the ATO is pursuing him for unpaid taxes and penalties in excess of $10 million.

For decades, the tech guru has been a rainmaker for Macquarie Bank. The bank has ploughed millions of dollars into his cyber security and forensic services company Nuix. A totally owned Macquarie Group subsidiary owns more than 70 per cent of Nuix and over the last year Macquarie advisors have been talking up a billion-dollar float of Nuix on the Australian stock exchange....

Dr Castagna, who denies any wrongdoing and is vigorously defending the charges....

Facebook Inc continues to test the world's patience when it comes to privacy issues and US patience in relation to taxation matters

Worldwide Facebook Inc is estimated to have 2.01 billion monthly active users, with est. 1.7 billion of these users living outside of the USA and Canada.

Australian users comprised 17 million of these account holders in August 2017 - 12 million logging in daily.

In pursuit of profit this social media company is a ruthless data miner – collecting and collating information about every available aspect of the lives of all holders of Facebook accounts.

A fact that makes this company’s users a target of US federal government mass surveillance.

Given that Facebook Inc created a holding company Facebook Ireland Ltd in the low-taxing Republic of Ireland and it is this company which appears to legally possess the data of those est.1.7 billion users, it now finds itself before European Union courts.

Privacy activist @maxschrems, 3 October 2017:

Facebook operates its international business outside of the United States and Canada via a separate company in Ireland called “Facebook Ireland Ltd”. 85.9% of all worldwide Facebook users (everyone except USA and Canada) are managed in Dublin (Link), which is understood to be part of Facebook’s tax avoidance scheme.

Facebook currently sends all user data to its parent company, “Facebook Inc.” in the United States for processing. European law (Articles 25 and 26 of Directive 95/46/EC) requires that data can only be transferred outside of the EU if the personal data is “adequately protected”. This is in conflict with US mass surveillance laws, which “Facebook Inc.” in the USA is subject to.

Max Schrems: “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that. As Facebook is subject to both jurisdictions, they got themselves in a legal dilemma that they cannot possibly solve in the long run.”

The Data Protection Commissioner in Ireland is investigating a complaint made by Max Schrems, an Austrian student with a Facebook account. This complaint relates to the transfer of his data by Facebook Ireland to Facebook Inc. in the United States for processing - an act which is alleged to violate European fundamental rights under Articles 7, 8 and 47 of the European Charter of Fundamental Rights.

The Data Protection Commissioner had been previously taken to the Court of Justice of the European Union in relation to refusal to investigate a complaint made by Mr Schrems regarding the fact that Facebook Ireland Ltd (‘Facebook Ireland’) transfers the personal data of its users to the United States of America and keeps it on servers located in that country. 

The subsequent investigation by the Data Protection Commissioner has given rise to a High Court case in Ireland (3 October 2017 judgement). The Court has now referred the issue of the validity of the European Commission’s Standard Contractual Clause decisions to the Court of Justice of the European Union for a preliminary ruling.

History of the Case according to Max Schrems:

The case is based on a complaint, filed by Mr Schrems against Facebook in 2013:

* The case is based on a complaint [PDF] brought by Mr Schrems against Facebook Ireland Ltd. before the Irish Data Protection Commissioner (“DPC”) in 2013 (4 years ago).

* The DPC first refused to investigate the complaint, calling it “frivolous”, but Mr Schrems subsequently succeeded before the CJEU, which overturned the “Safe Harbor” (a EU-US data sharing system) in 2015 [case C-362/14] and ruled that the DPC must investigate the complaint.

* After the invalidation of “Safe Harbor”, Facebook used another legal tool to transfer data outside of the EU, called “Standard Contractual Clauses” (SCCs) [Facebook’s SCCs - PDF].

* SCCs are a contract between Facebook Ireland and Facebook USA, where Facebook USA pledges to follow EU privacy principles [official EU Info Page].

* The case subsequently continued with an updated complaint [PDF] in 2015. The Irish DPC joined Mr Schrems view that the SCCs cannot overcome fundamental problems under US surveillance laws, and specifically agreed that there is no proper legal redress in the United States in such cases. Other issues raised in Mr Schrems complaint have not been investigated yet.

* The DPC refused to use its power to suspend data flows of Facebook as asked by Mr Schrems.

* Instead of only prohibiting Facebook’s EU-US data transfers under Article 4 of the SCCs, the DPC took the unusual move of issuing proceedings against Facebook Ireland Ltd. and Mr Schrems before the Irish High Court. In the procedure the DPC aims to invalidate the SCCs entirely by referring the case to the European Court of Justice (CJEU) in Luxembourg.

*The case was heard for five Weeks in February 2017. The United States Government was joined as an “amicus” to the case, along two industry lobby groups and the US privacy non-profit “EPIC”.

Facebook Inc’s "Double Irish" tax avoidance scheme and other matters also saw it before a US court in 2016, having refused to comply with a number of IRS tax summons. The court case continues to date.

The IRS 2008-2010 audit of Facbook Inc resulted in an assessment of the intangible assets transferred in those years having a value of US $13.8 billion, increasing Facebook's 2010 income by US $84.9 million and causing an income tax deficiency for the parent company.

Excerpt from United States Securities And Exchange Commission filing by Facebook Inc for the quarterly period ended June 30, 2016:

We are subject to taxation in the United States and various other state and foreign jurisdictions. The material jurisdictions in which we are subject to potential examination include the United States and Ireland. We are under examination by the Internal Revenue Service (IRS) for our 2008 through 2013 tax years. Our 2014 and subsequent years remain open to examination by the IRS. Our 2011 and subsequent years remain open to examination in Ireland. We do not anticipate a significant impact to our gross unrecognized tax benefits within the next 12 months related to these years. On July 27, 2016, we received a Statutory Notice of Deficiency (Notice) from the IRS relating to transfer pricing with our foreign subsidiaries in conjunction with the examination of the 2010 tax year. While the Notice applies only to the 2010 tax year, the IRS states that it will also apply its position for tax years subsequent to 2010, which, if the IRS prevails in its position, could result in an additional federal tax liability of an estimated aggregate amount of approximately $3.0 - $5.0 billion, plus interest and any penalties asserted. We do not agree with the position of the IRS and will file a petition in the United States Tax Court challenging the Notice. If the IRS prevails in the assessment of additional tax due based on its position, the assessed tax, interest and penalties, if any, could have a material adverse impact on our financial position, results of operations or cash flows. [my yellow bolding]