Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Sunday 10 February 2019
And now for some good news......
David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the
proper application of the law. The climate contention as a ground for refusing
this mine was innovative; the first time climate change has been addressed this
way in an Australian court using the concept of a carbon budget as its basis.
Like so many great ideas – its strength was its
simplicity. While there was lots of necessary evidence and discussion about the
carbon budget, geopolitical climate policy and Australia’s legal framework for
climate change, ultimately our argument was simple: if you accept
the science, then the local legal framework compels you to refuse the mine
because it’s clearly not in the public interest to increase emissions.
As Professor Steffen said “it’s one atmosphere,
it’s one climate system, it’s one planet - and so we need to start thinking
more carefully about the net effect of wherever coal is burnt, or oil or gas…
The project’s contribution to cumulative climate change impacts means that its
approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]
The
Sydney Morning Herald,
8 February 2019:
When Planning
Minister Anthony Roberts intervened a year ago to give a coal miner
the unusual right to challenge its project's refusal in court, neither would
have countenanced Friday's outcome.
Instead of settling the
future of Gloucester Resources' controversial Rocky Hill coal mine near
Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining
in general.
The miner had thought it
was merely challenging the Department of Planning's rejection of the mine's
impact on visual amenity in the bucolic valley around Gloucester.
Instead, the
Environmental Defenders Office, acting for residents opposed to the mine,
grabbed the opportunity to join the appeal.
In what EDO chief David
Morris describes as a "delicious irony", the court got to hear about
the project's detrimental impact on climate change and the town's social fabric
- despite Gloucester Resources arguing such intervention would be a
"sideshow and a distraction".
Future generations will
wonder why it took so long for any court in the land to hear such evidence when
considering a coal mine project.
But Justice Brian
Preston didn't just allow the EDO to provide expert evidence of the role
greenhouse gas emissions play in driving climate change. He also accepted it as
part of the critical reasons to reject the mine. "The decision forms part
of what
is a growing trend around the world on using litigation to fight
climate change," Martijn Wilder, a prominent climate lawyer from
Baker & McKenzie, says. "While early on some of this litigation was
not successful, increasingly it is."
Gloucester
Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.
Labels:
Berejiklian Government,
climate change,
coal,
court,
law,
mining,
New South Wales
Thursday 31 January 2019
Australian High Court rejects NSW Berejiklian Government's 2018 electoral funding reforms
In May 2018
the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental
groups, and churches at a maximum of $500,000.
The Electoral Funding
Act 2018 No 20 came into force on 1 July 2018.
In December
2018 five unions joined
Unions NSW in challenging these laws in the High Court of Australia.
Australian
Financial Review,
29 January 2019:
In July 2018, the
Berejiklian Government reduced the amount that unions and other third parties
could spend in the six months before an election from $1.05 million to
$500,000. A political party and it candidates, however, can spend up to $22.6
million if it stands candidates in all 93 seats.
The High Court said NSW
proved that aiming to "prevent the drowning out of voices in the political
process by the distorting influence of money" was a legitimate purpose.
However, it said
"the reduction in the cap applicable to third-party campaigners was not
demonstrated to be reasonably necessary to achieve that purpose".
The court did not accept
NSW's argument that $500,000 was still a substantial sum that would allow third
parties to "reasonably present their case".
The lead judgement of
Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said
"no enquiry as to what in fact is necessary to enable third-party
campaigners reasonably to communicate their messages appears to have been
undertaken".
The reforms also sought
to ban third parties from acting "in concert" by pooling money into
multi-million-dollar campaigns, such as the "Stop the Sell-off"
campaign against energy privatisation for the 2015 poll. Those who breach the
act would have faced up to 10 years' jail.
Former Commonwealth
solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the
five unions which also signed up for the challenge.
BACKGROUND
HIGH COURT OF
AUSTRALIA, Judgment
Summary, 18 December 2018:
UNIONS NSW & ORS v
STATE OF NEW SOUTH WALES [2013] HCA 58
Today the High Court
unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure
and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because
they impermissibly burden the implied freedom of communication on governmental
and political matters, contrary to the Commonwealth Constitution.
Section 96D of the EFED
Act prohibits the making of a political donation to a political party, elected
member, group, candidate or third-party campaigner, unless the donor is an
individual enrolled on the electoral roll for State, federal or local
government elections. The EFED Act also caps the total expenditure that
political parties, candidates and third-party campaigners can incur for
political advertising and related election material. For the purposes of this
cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral
communication by a political party and by any affiliated organisation of that
party. An "affiliated organisation" of a party is defined as a body
or organisation "that is authorised under the rules of that party to
appoint delegates to the governing body of that party or to participate in
pre-selection of candidates for that party (or both)".
Each of the plaintiffs
intends to make political donations to the Australian Labor Party, the
Australian Labor Party (NSW Branch) or other entities, and to incur electoral
communication expenditure within the meaning of the EFED Act. The second, third
and sixth plaintiffs are authorised to appoint delegates to the annual
conference of the Australian Labor Party (NSW Branch) and to participate in the
pre-selection of that party's candidates for State elections. A special case
stated questions of law for determination by the High Court.
The High Court
unanimously held that ss 96D and 95G(6) burdened the implied freedom of
communication on governmental and political matters. The Court held that
political communication at a State level may have a federal dimension. The
Court accepted that the EFED Act had general anti-corruption purposes. However,
the Court held that the impugned provisions were not connected to those
purposes or any other legitimate end.
·
This statement is not intended to be a substitute for the reasons of the High
Court or to be used in any later consideration of the Court’s reasons
Tuesday 29 January 2019
Wangan and Jagalingou people's fight against foreign mining giant Adani continues into 2019
ABC
News, 25
January 2019:
The United Nations has
asked the Australian Government to consider suspending the Adani project in
central Queensland until it gains the support of a group of traditional owners
who are fighting the miner in court.
A UN committee raised
concerns that the Queensland coal project may violate Indigenous rights under
an international convention against racial discrimination if it goes ahead,
giving Australia until April to formally respond.
Meanwhile, a public
interest legal fund backed by former corruption fighter Tony Fitzgerald has
stepped in with financial backing for a federal court challenge to Adani by its
opponents within the Wangan and Jagalingou (W&J) people.
The Grata Fund, which
boasts the former federal court judge as a patron, agreed to pay a
court-ordered $50,000 bond so W&J representatives can appeal a court ruling
upholding a contentious land access deal secured by the miner.
The UN Committee on the
Elimination of Racial Discrimination last month wrote to Australia's UN
ambassador to raise concerns that consultation on Adani's Indigenous Land Use
Agreement (ILUA) "might not have been conducted in good faith".
These allegations
"notably" included that members of the W&J native title claim
group were excluded, and the committee was concerned the project "does not
enjoy free, prior and informed consent of all (W&J) representatives"….
UN committee chair
Noureddine Amir in a letter told Australia's UN ambassador Sally Mansfield the
committee was concerned ILUAs could lead to the "extinction of Indigenous
peoples' land titles" in Australia.
Mr Amir said it was
"particularly concerned" by 2017 changes to native title laws to
recognise ILUAs not signed by all native title claimants, "which appears
to be in contradiction" with an earlier landmark Federal Court ruling.
"Accordingly, the
committee is concerned that, if the above allegations are corroborated, the
realisation of the Carmichael Coal Mine and Rail Project would infringe the
rights of the Wangan and Jagalingou people, rights that are protected under the
International Convention on the Elimination of All Forms of Racial
Discrimination," Mr Amir said.
The committee gave
Australia until April 8 to outline steps taken to ensure proper consent
"in accordance with Indigenous peoples' own decision-making
mechanisms".
It asked Australia to
"consider suspending" the Adani project until consent was given by
"all Indigenous peoples, including the Wangan and Jagalingou family
council".
It invited Australia to
seek expert advice from the UN experts on Indigenous rights and to
"facilitate dialogue" between the W&J and Adani.
Labels:
Adani Group,
court,
human rights,
law,
mining,
Native Title,
United Nations
Friday 4 January 2019
Australian Home Affairs Minister Peter Dutton demonstrates his incompetence yet again
During the
less than one term he served as Australian prime minister Liberal MP for Warringah
Tony Abbott rushed through amendments
to the Australian Citizenship Act 2007
in 2015.
Given that
the Minister for Home Affairs and Liberal MP for Dickson Peter Dutton has used these amendments to strip
Australian citizenship from twelve individuals, the most recent being the revocation of citizenship of a Melbourne-born man currently gaoled in Turkey which
now leaves him stateless1 and, as
the minister has referenced the Citizenship Loss Board in his decision making
perhaps it is time to recall the sketchy details known about this board.
The
Guardian, 22
July 2018:
The identity of
officials on one of the most powerful government boards in Australia – which
has the effective power to strip Australians of citizenship – has been revealed
for the first time.
A
freedom of information request by Guardian Australia for minutes of
the Citizenship Loss Board’s first meeting in February shows the panel is made
up of senior departmental secretaries from across government. The secretariat
of the committee is Hamish Hansford, an assistant secretary of the immigration
department.
He previously served as the national manager of the intelligence
branch of the Australian Crime Commission.
The department of the
prime minister’s counter-terrorism co-ordinator, Greg Moriarty, is also on the
board, as are Gary Quinlan, from the Department of Foreign Affairs and Trade,
Katherine Jones, from the Attorney-General’s Department, and Christopher Dawson
from the Australian Crime Commission.
The immigration
department has by far has the largest number of representatives with five
officers: Rachel Noble, Michael Manthorpe, Maria Fernandez, Michael Outram and
Pip De Veau.
The Australian federal
police and defence department’s members are unknown. Both declined to
participate in the February meeting for undisclosed reasons.
The Australian Security
Intelligence Service (Asis) and Australian Security Intelligence Organisation
(Asio) each have a member. Neither officer is named, listed only as a
“representative”.
The Citizenship Loss
Board has the de facto power
to strip dual nationals of their citizenship under the federal
government’s legislation introduced last year.
Although the law was
touted as an anti-terrorism tool, it left open the possibility that people
who damaged
commonwealth property or even national
security whistleblowers could have their citizenship revoked. Legal
experts have argued it could create a tier of second-class citizenship.
Although the Citizenship
Loss Board appears to be the effective arbiter of this exceptional power, there
is no reference to it in the legislation. None of its members are
parliamentarians or members of the judiciary. It operates in a legal vacuum.
Its recommendations go to the immigration minister with no clear legal mandate.
In theory the board does
not have the express power to revoke citizenship. The laws were built to
withstand judicial scrutiny, describing the key mechanism to remove citizenship
as one of “revocation by conduct” – the argument is that if the law is
“self-executing” this could head off judicial review.
The board’s official
role is to consider cases where an individual’s behaviour meets the criteria to
have citizenship revoked under the law.
This mechanism has been
described by University of New South Wales dean of law George Williams as a
“legal fiction”. He has previously
outlined concerns about the board and the basis for its power. [my yellow highlighting]
Footnote
1. Eligibility requirements for Fijian citizenship which this individual does not currently meet.
http://www.immigration.gov.fj/travel-requirements/fiji-citizenship, retrieved 3 January 2018:
Citizenship by
registration covers six categories of individuals:
The first category
covers children born outside the Fiji islands on or after 10th April 2009 if at
the date of the child’s birth either of the child's parents was a citizen –
section 8(1) of the Citizenship of Fiji Decree 2009.
The second category
covers children under 18 years of age of a foreign nationality that are adopted
by Fiji Citizens – section 8 (2) of the Citizenship of Fiji Decree 2009.
The third category
covers children who were under the age of 18 when either parent became a Fiji
citizen – Section 8(3) of the Citizenship Decree 2009.
The fourth category
covers persons who would have qualified under the previous three categories but
they have reached the age of 18 years. These applicants cannot be granted
citizenship unless they have been lawfully present in Fiji for a total of three
(3) of the five (5) years immediately before the application – Section 8(5) of
the Citizenship of Fiji Decree 2009.
The fifth category
provides for former adult Fiji citizens who wish to regain their Fiji
citizenship. With the introduction of the multiple citizenship policy former
citizens wishing to regain their Fiji citizenship need NOT renounce their other
citizenship – Section 8(6) of the Citizenship of Fiji Decree 2009.
The sixth category
provides for spouses of Fiji citizens. Applicants must have been lawfully
present in Fiji for a total period of three of the five years immediately
before the application – Section 8(7) of the Citizenship of Fiji Decree 2009.
(refer to below checklist for fees and other requirement).
Fijian Government position:
Fijian Government position:
"Neil Prakash has
not been or is a Fijian citizen. For a child of a Fiji
citizen born overseas, the parent has to apply for citizenship for the child to
become a Fiji citizen. The department has searched the immigration system and
confirms that he has not entered the country nor applied for citizenship since
birth." [Head
of Fiji's Immigration Department, Nemani
Vuniwaqa, quoted in ABC
News, 2 January 2018]
Labels:
#MorrisonGovernmentFAIL,
anti-terrorism,
law
Tuesday 18 December 2018
Scott Morrison's secretive new public sector corruption division with no teeth - not even a set of badly fitting dentures
Alan Moir Cartoon |
A federal statutory body, the Australian Commission for Law Enforcement Integrity (ACLEI) has been in existence since December 2006 and is headed by the Integrity Commissioner. The current Integrity Commissioner is Michael Griffin AM.
There is also
a Parliamentary
Joint Committee on the ACLEI.
The Morrison
plan for a new Commonwealth Integrity Commission (CIC) intends to retain the
ACLEI as one of two divisions within the CIC and expand the number of government agencies
within this first division’s jurisdiction from twelve (12) to sixteen (16) – otherwise
it is business as usual for the multi-agency ACLEI.
At the same
time the Morrison Government intends the over-arching CIC to have a second division
– the Public Sector Division - without the full powers of statutory anti-corruption
commissions.
It is this
division which will be charged with investigating corruption allegations based on interactions of sitting members of federal parliament and departmental
staff with corporations, lobby groups and private individuals.
Members of
the public will have no right to lay complaints or concerns before the
Deputy-Commissioner who will head this second division. Only departmental heads
and the Australian Federal Police appear to have the right to refer a matter to
the Public Sector Division.
The division
will not hold public hearings or publish the results of any secret hearings. There
will be no transparency in its processes.
This second
division represents business as usual for federal parliamentarians, as the
government of the day will be able to keep even the most egregious matters
under its adjudication by asserting the matter should be classified as a straightforward
Code of Conduct breach or a simple matter of non-compliance.
The new Commonwealth Integrity Commission is expected to have an annual budget of around $30 million. A sum which reflects its toothless status.
The new Commonwealth Integrity Commission is expected to have an annual budget of around $30 million. A sum which reflects its toothless status.
BACKGROUND
Commonwealth
Integrity Commission — proposed reforms, December 2018, excerpts:
The
Australian Government proposes to establish a Commonwealth Integrity Commission
(CIC) to detect, deter and investigate suspected corruption and to work with
agencies to build their resilience to corruption and their capability to deal
with corrupt misconduct. The CIC will consist of a ‘law enforcement integrity
division’ incorporating the existing structure, jurisdiction and powers of
ACLEI and a new ‘public sector integrity division’. Both the law enforcement
and public sector divisions of the CIC will be headed by separate deputy
commissioners, who will each report to a new Commonwealth Integrity
Commissioner. The two divisions will have different jurisdictional coverage,
powers and functions, tailored to the nature of the entities within their
jurisdiction. The law enforcement division will retain the powers and functions
of ACLEI, but with an expanded jurisdiction to cover several further agencies
that exercise the most significant coercive powers and therefore present a more
significant corruption risk. The public sector division will cover the
remaining public sector. As such, its powers and functions will be different to
those of the law enforcement division and will be appropriately tailored.
Jurisdiction
Law enforcement division
The
law enforcement division will have jurisdiction over those agencies already
within ACLEI’s remit, being:
•
the Australian Criminal Intelligence Commission
•
the AFP • the Australian Transaction Reports and Analysis Centre (AUSTRAC)
•
the Department of Home Affairs, and
•
prescribed aspects of the Department of Agriculture and Water Resources (DAWR).
Its jurisdiction will also be expanded to
cover additional public sector agencies with law enforcement functions and
access to sensitive information, such as the:
•
Australian Competition and Consumer Commission (ACCC)
•
Australian Prudential Regulation Authority (APRA)
•
Australian Securities and Investments Commission (ASIC), and
•
Australian Taxation Office (ATO)……
Public
sector division
The
public sector division of the CIC will have jurisdiction over:
•
public service departments and agencies, parliamentary departments, statutory
agencies, Commonwealth companies and Commonwealth corporations
•
Commonwealth service providers and any subcontractors they engage, and
•
parliamentarians and their staff.
By
extending the jurisdiction of the public sector division of the CIC to service
providers and contractors, the CIC will have the capacity to oversee the
integrity of entities which expend or receive significant amounts of
Commonwealth funding where there is evidence of corrupt conduct that meets the
relevant criminal threshold proposed. The CIC will also be able to investigate
members of the public or other private entities that receive or deal with
Commonwealth funds (and might not otherwise be within jurisdiction), to the
extent that their suspected corrupt conduct intersects with a public official’s
suspected corrupt conduct….
The
public sector division of the CIC will be responsible for investigating
‘corrupt conduct’ where the commissioner has a reasonable suspicion that the
conduct in question constitutes a criminal offence. Notably, the public sector
division will investigate conduct capable of constituting a nominated range of
specific new and existing criminal offences that will constitute corrupt
conduct in the public sector.
‘Corrupt conduct’ will include abuse of public
office, misuse of official information and non-impartial exercise of official
functions. A range of consolidated and new public sector corruption offences
will be included in the Criminal Code Act 1995 (the Criminal Code). The
information below under the heading ‘Amendments to the Criminal Code’ outlines
a preliminary summary of ways in which amendments might be made to relevant
legislative offences that will collectively form the jurisdictional basis for
the CIC.
It is intended that the public sector division will focus on the investigation of serious or systemic corrupt conduct, rather than looking into issues of misconduct or non-compliance under various codes of conduct. Misconduct that is not defined as a criminal offence at Commonwealth law is considered more appropriately dealt with by the entities where the misconduct occurs: public sector agencies for public servants; Houses of Parliament for parliamentarians; the Prime Minister for Ministers; the Special Minister of State for ministerial staff….
It is intended that the public sector division will focus on the investigation of serious or systemic corrupt conduct, rather than looking into issues of misconduct or non-compliance under various codes of conduct. Misconduct that is not defined as a criminal offence at Commonwealth law is considered more appropriately dealt with by the entities where the misconduct occurs: public sector agencies for public servants; Houses of Parliament for parliamentarians; the Prime Minister for Ministers; the Special Minister of State for ministerial staff….
Powers
Law
enforcement division
The
law enforcement division of the CIC will have access to the coercive and
investigative powers that ACLEI currently does—these are necessary because the
agencies within jurisdiction themselves have access to significant coercive
powers and in many cases, sensitive intelligence, personal or other information.
The consequences of corruption in circumstances where public officials have
access to law enforcement or other coercive powers is generally more
significant than for public officials without access to such powers. Those with
access to coercive powers and knowledge of law enforcement methods are better
able to disguise corruption and corrupt conduct can have a greater impact (for
example, where millions of dollars of illicit drugs are permitted to enter the
Australian economy). 8 The law enforcement division will have the power to:
•
compel the production of documents
•
question people
•
hold public and private hearings
•
arrest
•
enter/search premises
•
seize evidence
•
undertake controlled operations and assumed identities, and
•
undertake integrity testing.
Public
sector division
The
powers available to the public sector division reflect the different nature of
the corruption risk in the areas it will oversight. The public sector division
of the CIC will have the power to:
•
compel the production of documents
•
question people
•
hold private hearings, and
•
enter/search premises.
It
will not be able to:
•
exercise arrest warrants
•
hold public hearings, or
•
make findings of corruption, criminal conduct or misconduct at large.
The
extent to which the CIC public sector integrity division will have the ability
to access telecommunications and surveillance device powers will be part of the
consultation process on the proposed model. The law enforcement integrity
division will retain all powers that ACLEI currently holds......
Referrals about parliamentarians and their staff
The public sector division could receive a referral regarding a parliamentarian or their staff that met the CIC’s threshold for investigation from the IPEA, the AEC, the AFP or other integrity agencies. For example, if the IPEA observed potentially corrupt conduct that it reasonably suspected was capable of constituting a criminal offence, it could refer that activity to the CIC for investigation.
The public sector division of the CIC will also be able to investigate parliamentarians or their staff where an existing CIC investigation into suspected corruption within a different part of the public sector revealed evidence that will meet the investigation threshold. For example, if the CIC was investigating suspected criminal corrupt conduct within a procurement process involving a department, and through that investigation it found evidence suggesting corrupt activity by any Member of Parliament or member of the executive government which it reasonably expected met the relevant criminal threshold, the CIC could initiate an investigation into that matter.
The CIC will not investigate direct complaints about Ministers, Members of Parliament or their staff received from the public at large.......
Referrals about parliamentarians and their staff
The public sector division could receive a referral regarding a parliamentarian or their staff that met the CIC’s threshold for investigation from the IPEA, the AEC, the AFP or other integrity agencies. For example, if the IPEA observed potentially corrupt conduct that it reasonably suspected was capable of constituting a criminal offence, it could refer that activity to the CIC for investigation.
The public sector division of the CIC will also be able to investigate parliamentarians or their staff where an existing CIC investigation into suspected corruption within a different part of the public sector revealed evidence that will meet the investigation threshold. For example, if the CIC was investigating suspected criminal corrupt conduct within a procurement process involving a department, and through that investigation it found evidence suggesting corrupt activity by any Member of Parliament or member of the executive government which it reasonably expected met the relevant criminal threshold, the CIC could initiate an investigation into that matter.
The CIC will not investigate direct complaints about Ministers, Members of Parliament or their staff received from the public at large.......
Thursday 13 December 2018
Centrelink's 'robodebt' headed to the Australian Federal Court?
9 News, 10 December 2018:
Centrelink’s robo-debt
recovery scheme was intended to seek out and destroy debts, but instead it’s
thrown more than 200,000 Australians into financial turmoil.
Now, Victoria’s former
head prosecutor, QC Gavin Silbert, is lending his voice and fighting back
against the controversial system which aims to claw back up to $4.5 billion in
welfare overpayments.
“I think it’s illegal
and I think it’s scandalous. In any other situation, you’d call it theft. I
think they’re bullying very vulnerable people,” Mr Silbert told A Current
Affair.
“If debts are owed to
the public purse they should be paid, they should be pursued. These are not
such debts,” he said.
He’s teamed up with
Melbourne-based solicitor Jeremy King to take a pro bono case to the Federal
Court which, if successful, could derail the robo-debt scheme and see thousands
of debts wiped.
“I hope this would set a
precedent to show that the way this robo-debt scheme had been rolled out is not
in accordance with the law and all of the other debts that have been sent out
to people are not in accordance with the law,” Mr King said....
The
Sydney Morning Herald,
2 December 2018:
Gavin Silbert, QC, who
retired as the state's chief crown prosecutor in March, has accused the
Department of Human Services of ignoring its legal obligations and acting like
a bully towards some of the nation's most vulnerable people.
A potential legal
challenge could have significant implications for future enforcement of the
robo-debt program, which aims to claw back up to $4.5 billion in welfare
overpayments with more than 1.5 million "compliance interventions".
Mr Silbert became embroiled
in the dispute when someone he knew was issued with a demand to repay a debt of
$10,230.97, which the department claimed was overpaid by Centrelink between
2010 and 2013.
He has provided pro bono
advice and helped prepare correspondence to the department, which repeatedly
asked for an explanation on how the debt was calculated.
However, the
department's compliance branch has ignored nine letters between May and
November 2018 that requested additional information. Last week, it made threats
to impose interest charges on the original debt.
"Other than the
bald assertion that I have a debt, I have never received any details of how the
debt is alleged to have arisen or anything which would enable me to verify or
understand the demand made of me," Mr Silbert's client wrote on June 7.
In another letter, Mr
Silbert's client wrote: "There is not a court in the country that will
uphold your demands for interest in the absence of fundamental details of how
the amount is alleged to have arisen."
The dispute escalated
further when the department engaged debt collection agency Dun &
Bradstreet, which threatened Mr Silbert's client with a "departure
prohibition order" that would prevent him travelling overseas.
Mr Silbert is keen to
launch Federal Court action to test the legal basis of the robo-debt program
and the government's apparent unwillingness to provide particulars.
"I'm itching to get
this before a court," he told Fairfax Media.
He said legislation that
regulates data-matching technology requires the department to "give
particulars of the information and the proposed action" before it can
recover overpayments.
The robo-debt program,
introduced by the Coalition government, calculates a former welfare recipient's
debt by taking a fortnightly average rather than discovering the exact amount
that was claimed.
The department was
forced to concede it was no longer in possession of the original claims made to
Centrelink by Mr Silbert's friend, after he made requests under
freedom-of-information laws.
Labels:
#notmydebt,
Centrelink,
law,
welfare payments
Tuesday 20 November 2018
Climate Change: Wallarah 2 longwall coal mine legal challenge
The Australian Coal
Alliance states it is; concerned citizens of
the Central Coast are worried about the impact that longwall coal mining in the
Central Coast Water Catchment Valleys and beneath residential homes will have
upon our drinking water catchment, and upon our health, lifestyle and properties. We will continue to
demand that the government introduces legislation into the Parliament to
protect the Wyong Water Catchment District, the largest drinking water resource
on the Central Coast, from mineral extraction, and to protect homes from being
undermined by longwall coal mining.
This is its legal battle............
Environmental Defenders
Office NSW, 14
November 2018:
EDO NSW, on behalf of
the Australian Coal Alliance (ACA), argued in Court that the Planning
Assessment Commission’s (PAC) decision to approve the Wallarah 2 longwall coal
mine on the Central Coast was unlawful and invalid.
Barristers Craig Leggat
SC and Josie Walker argued against the approval of the mine on the basis of
climate change, ecologically sustainable development, impacts to water
resources and flooding impacts.
The legal team: Craig
Leggat SC, Josie Walker of Counsel, Brendan Dobbie, Acting Principal Solicitor
and Isaac St Clair-Burns, Solicitor of EDO NSW.
“Our client ACA
argued that the PAC’s decision was invalid on 10 specific grounds”, said David
Morris, CEO of EDO NSW. "We focused on the PAC’s assessment of the mine’s
downstream greenhouse gas emissions and impacts to the Central Coast water
supply and likely flood-affected properties.”
The Wallarah 2 project
is predicted to have impacts on 88 private properties, which will be exposed,
in varying degrees, to increased risks of flooding. The mine has proposed
various options to mitigate those impacts or, where that is not practicable, to
make arrangements for the voluntary purchase of flood affected properties. The
ACA questioned the legal validity of those conditions.
In addition to the
predicted impacts from flooding and to the Central Coast water supply, Wallarah
2 will make a substantial contribution to greenhouse gas emissions – estimated
to be more than 264 million tonnes of CO2 over the 28-year life of the mine.
NSW law required the PAC to consider an assessment of those emissions when
approving the mine. However, the ACA argued in Court that the PAC specifically
disavowed consideration of downstream greenhouse gas emissions and therefore
the approval was contrary to the law and also to the principles of ecologically
sustainable development, which includes the principle of intergenerational
equity.
“This case is by its
very nature climate change litigation, which we’re seeing more and more in
Australia. We argued that the law in this case wasn’t followed with respect to
climate change impacts and the principle of intergenerational equity”, David
Morris said.
Of additional interest,
this was a paperless trial, one of the first that EDO NSW has been involved
with, and it proceeded very smoothly.
A judgment is expected
sometime before the end of May 2019.
Further detail on this
case can be found here: www.edonsw.org.au/wallarah2_aca
EDO NSW is an independent community
legal centre specialising in public interest environmental law and members of Northern Rivers communites can
contact the EDO at any time via the hotline on 1800 626 239 for free legal advice concerning local environmental matters.
Labels:
climate change,
coal,
EDO NSW,
law,
mining,
NSW Central Coast
Friday 2 November 2018
“In an unprecedented move, the Morrison government has questioned the Federal Court's authority to commence cases that allow sick children to be brought to Australia for emergency medical care.”
The
Guardian, 26 October 2018:
The Australian
government is challenging the legality of the federal court hearing
applications for urgent medical transfers of refugees and asylum seekers held
on Nauru.
The move comes amid a
rush of transfers, and appears in contrast to claims made by Australian Border
Force to those detainees that the delays are due to the Nauruan government.
Should the federal court
action be successful it has the potential to void some previous orders, forcing
those cases to refile in the high court.
The rate of medical
transfer orders has ratcheted up as the health crisis worsens, criticism of the
policy strengthens, and the Nauruans appear to have stopped attempting to block
departures.
The home affairs
department raised the jurisdictional challenge in a case involving a child
detainee, her mother and two siblings, Fairfax
Media reported.
The family have already
been transferred to Australia. But lawyers for Peter Dutton’s department have
continued to argue that under section 494AB of the Migration Act, the federal
court cannot hear legal proceedings against the commonwealth relating to a “transitory
person”. It is believed to be the first time the government has made this
argument in about 50 cases relating to the transfer of people from Nauru.
On Thursday two federal
court judges ordered both parties to submit their arguments in coming days for
a yet-to-be scheduled expedited hearing, expected next week. The child, an
11-year-old Iranian girl, is being represented by the law firm Robinson Gill
and the Human Rights Law Centre.
“This has come out of
the blue, and there’s a risk it could make it much harder for desperately
unwell children to get the urgent, lifesaving medical care they need,” said
Daniel Webb, director of legal advocacy at the HRLC.
The challenge appears at
odds with the government’s messages to detainees laying the blame for transfer
delays with Nauruan authorities. Guardian Australia is aware of ABF writing or
verbally suggesting to people or their lawyers that the department had approved
their medical transfer but Nauru was holding up cases.
The Sydney MorningHerald, 24
October 2018:
The legal point was
raised last week in the case of an 11-year-old Iranian girl held on Nauru who
had not eaten in more than two weeks.
Medical experts gave
evidence she was facing “imminent death” if she was not treated by paediatrics
experts in an Australian intensive care ward.
However, lawyers acting
for the Home Affairs Department argued that under section 494 AB of the
Migration Act the court could not hear the case as it did not have jurisdiction
because she was a “transitory person.”
Labels:
asylum seekers,
Federal Court,
law
Subscribe to:
Posts (Atom)