Will the Turnbull Government finally eliminate those overgenerous superannuation tax concessions for the wealthy?

Is talk of make superannuation policy fairer just part of the political spin in the lead-up to this year's federal election spin or will the Turnbull Government genuinely commitment to removing overgenerous superannuation tax concessions for the wealthy?

In 2015 Australian Treasurer Scott Morrision put superannuation tax concessions for the high-income earners on the table - signalling the possibility of cuts to tax concessions for this group.

By January 2016 Morrison was holding to this position with qualifications.

Public expectation began to build that the Turnbull Government would at last address those tax loopholes in the national superannuation scheme which allows high-income earners to use super as a form of tax avoidance or as estate planning, but leaves ordinary workers paying higher levels of tax on their own super.

An article in The Australian on 3 February 2016 contained this information on government policy relating to tax breaks for the wealthy and the current public mood:

More than 60 per cent of voters support increasing the tax on superannuation contributions for high-income earners in a Newspoll that will buttress plans by the Turnbull government to strip back the generosity of tax breaks on compulsory savings…..

Treasury estimated last week that the tax breaks on superannuation contributions would cost the government $16.2bn in tax revenue this year, or almost half the projected budget deficit. The concessional treatment of superannuation earnings costs the budget a further $13.6bn…..

Treasury has been pressing for a tightening of superannuation tax concessions since 2008. It estimated that in 2012-13, people on the top tax bracket were gaining concessions on contributions worth an average of $4900 a year while people on the bottom two tax rates got concessions of $320.

The response from the Turnbull Government was expected to fall in with the public mood and further announcements were anticipated.

Unfortunately, by 5 February an unnamed source in Canberra had let it be known that the government also has the Super Guarantee in its sights and intends to permanently halt increases in the amount of compulsory superannuation contributions paid by an employer into a worker's superannuation account.

If this comes to pass then an est. 11.5 million workers (based on 2015 figures) currently below retirement age will have less money to live on in their eventual retirement years and their employers with potentially more money in their own personal retirement kitty.

Broken down by gender that's an est. 6.1 million men and 5.3 million women (including in excess of est. 90,000 couples) with less retirement savings in their pockets to meet their living expenses when their working life ends. 

Prime Minister Turnbull has since denied there will changes to the Super Guarantee - or did he?

Mr Turnbull tried to distance himself from the proposal saying “the Government has got no plans to change the rise in compulsory super.”

However he did not deny the move was up for discussion, saying: “What is happening at the moment is that we’re having a very lively debate about tax and economic reform and so all sorts of proposals are swirling around.”

Somehow I'm not feeling confident this denial will last because I'm not sure that this particular federal government understands the real meaning of 'a fair go for all'.

Tony Abbott and his captain's picks continue to haunt Australia

It would appear that when he was prime minister the MP for Warringah, Tony Abbott,  was not only telling political lies of omission and commission to Australian voters – he may also telling them to his own government.

The Australian, 1 February 2016:

Sharp tensions between Tony Abbott and Foreign Minister Julie Bishop were exposed yesterday with the revelation of a rock-solid pledge in writing by Mr Abbott to back former New Zealand leader Helen Clark as the next UN secretar­y-general.

The Australian has obtained the late-2014 exchange of letters between the then Australian prime minister and New Zealand Prime Minister John Key in which Mr Abbott commits to a joint strategy between the two countries to try to make Ms Clark the successor to Ban Ki-moon.

Ms Bishop signalled last week that the Turnbull government felt its options were open to support former Labor prime minister Kevin Rudd if he nominated for the post and that no firm commitment to any other candidate had been made by the government.

Yet Mr Abbott had made such commitments and the assurances offered by Ms Bishop were wrong.

It emerged last night that Ms Bishop as Foreign Minister, dealing with the UN on a regular basis, was not informed by Mr Abbott­ of his 2014 commitment to back Ms Clark for the post.

Ms Bishop is astonished that Mr Abbott as prime minister was exercising his personal authority with Mr Key without ­consulting her or keeping her “in the loop”.

Abbott supporters in turn are suspicious that Ms Bishop is positioning the Turnbull government to support Mr Rudd for the post when Mr Abbott had made a formal commitment to another candid­ate through the letter.

Ms Bishop, in response, has made it clear that the decision on Australia’s support for any candid­ate will be made by the Turnbull cabinet and not by herself as Foreign Minister……

Tony Abbott was quick to deny that he had acted unilaterally in endorsing former New Zealand prime minister Helen Clark’s candidature. However, Ms. Bishop insists that “Any letter to the New Zealand Prime Minister was not shared with me, my office or my department…There was no discussion in cabinet about supporting Helen Clark …No New Zealand official ever raised this with us.”

On 3 February 2016 The Australian expanded on Abbott's motives:

Tony Abbott sought an exchange of letters with John Key to support former New Zealand prime minister Helen Clark for the top job at the UN to head off Kevin Rudd’s push to get Australia’s backing for the post…..

In November 2014, Mr Abbott was aware of Mr Rudd’s interest in Australian government support should he declare as a candidate for UN secretary-general and, after discussions with Mr Key, gave a written guarantee he would support Ms Clark if she ran.

After earlier discussions, Mr Abbott and an ­adviser approached Mr Key at Darwin Airport in early November on their way to an APEC meeting in Beijing. The two prime ministers discussed the issue, with Mr Abbott offering his support for Ms Clark and seeking an exchange of letters to formalise the agreement. On November 10, Mr Key wrote to Mr Abbott about their conversation about Ms Clark and said he would welcome “any support from the Australian government”…..

Yesterday in Wellington, Mr Key said he had discussed the matter only with Mr Abbott.

“I didn’t have any discussions with Julie Bishop,” he said. “We thought at the time there was a possibility Helen Clark would put her name forward, and I had a discussion with Tony Abbott about Helen being a very strong candidate and that the New Zealand government would back her. He said … if she put her name forward, he thought Australia would support her.”

Mr Key said the situation changed when Mr Turnbull became Prime Minister. “What I said (to him) … was once the change of prime ministership happened, we wouldn’t consider it a binding ­obligation.”

This situation poses two questions:

(1) What other previously unannounced captain’s picks by Tony Abbott will surface in the coming months and will they also have the potential to cause domestic or foreign policy difficulties?

(2) Can the Turnbull Government afford to go to a general election this year with a divisive Tony Abbott still in its ranks?

Perhaps sacking him as prime minister was only half the answer and the NSW Division of the Liberal Party needs to go further and not support his pre-selection.

The Turnbull Government continues the Abbott Government's failure to protect Australian marine life from foreign super trawlers including the Geelong Star

Image of Geelong Star (formerly FV Dirk Dirk) and position heading towards the Bass Strait on 28 January 2016

Geelong Advertiser, 2 February 2016:

THE dolphin-killing trawler Geelong Star has been cleared to return to work just days after being suspended for the deaths of seven albatross in one trip.

The Australian Fisheries Management Authority lifted its ban on the controversial fishing vessel on Sunday after authorities were satisfied the length of net cables had been reduced and made more visible.

The trawler must stop fishing “immediately” if a seabird is killed by the cable until the authority has investigated.

Geelong Star’s management plan, updated on January 16, shows the trawler will be forced to carry an AFMA observe on “at least the next trip” if two or more marine mammals are found in the end of the net.

A full reassessment is required if any changes are made to the exclusion device, which is designed to prevent seal and dolphin deaths.

AFMA chief executive Nick Rayns said the new protection methods came on top of existing mitigation methods…..

Greens spokesman for fisheries Peter Whish-Wilson said the AFMA’s catch and release of Geelong Star risked making a mockery of the regulation.

“If a member of the public had killed seven albatross over a week they would be charged under Australian environmental laws,” Senator Whish-Wilson said.

“If over the period of a year a member of public had killed some dolphins, some more dolphins, then some seals and finally some albatross then that person would probably end up doing jail time.

“But it is one law for the member of the public and another for the Geelong Star.

“The Geelong Star has been given a license to kill protected marine species and it’s time its license was revoked.”

Stop the Trawler and Environment Tasmania spokeswoman Rebecca Hubbard said it was time for the Federal Government to overrule the AFMA and ban the trawler outright….

Mercury, 1 February 2016:

A COALITION of environmentalists and recreational fishers has expressed alarm at a recommendation by a newly appointed scientific panel to increase the Geelong Star’s total catch.

The Stop the Trawler Alliance argues that the recommendation — disclosed at a stakeholder forum in Hobart on Thursday — had been made, despite ongoing concerns from recreational fishers and conservationists that the large factory freezer trawler could cause localised depletion of fish stocks.

“A newly appointed scientific panel is now proposing to increase the total catch from 42,000 tonnes to over 49,000 tonnes,” said Rebecca Hubbard from Environment Tasmania.

“Instead of listening to community concerns the Australian Fisheries Management Authority (AFMA) have further reduced stakeholders input into critical decision-making processes.”…..

A brief history of this super trawler owned by Parlevliet & Van der Plas Beheer B.V. and contracted to its Australian subsidiary, Seafish Tasmania, can be found here.

Marine reserves in Australian waters may also be under further threat from commercial fishing with The Guardian reporting this on 6 February 2016:

Australia’s leading marine scientists are appealing to the federal government to reject a review expected to recommend a significant reduction in the size of ocean sanctuaries and an expansion of areas permitted for commercial fishing.

Tony Abbott announced the review of the boundaries of Labor’s marine parks, counted by the former government as one of its greatest environmental achievements, during the 2013 election campaign, and said he would scrap the just-finished management plans so that the fishing industry could be given a greater say.

The leading scientists understand the review, now finally completed, recommends a sizeable reduction in some areas previously designated as closed to fishing and trawling, particularly in the Coral Sea, and say it has ignored expert scientific advice.

“If the government winds back what was already just partial environmental protection it would be terrible for the environment and send a terrible message to the world,” said West Australian marine science professor Jessica Meeuwig.

“We have no faith in this process. They haven’t spoken to marine scientists, despite our best efforts. They spent a lot of time talking to the extractive industries. 

If Malcolm Turnbull is serious about being guided by science and by evidence he will reject recommendations to reduce marine sanctuary zones,” she said.

Meeuwig is one of 10 leading marine researchers who have formed the Ocean Science Council of Australia and have published benchmarks against which the review should be judged, including:

* No further diminishment of marine national park zoning in bioregions and key ecological features should occur as these are already significantly under-represented in the 2012 plans

* The international standard for ocean protection of a minimum of 30% of each marine habitat in highly protected no-take marine national parks should be met;

* Very large marine national parks such as that proposed for the Coral Sea should be preserved.......

This is one of the areas potentially under threat:

Coral Sea Commonwealth Marine Reserve

The new Coral Sea Commonwealth Marine Reserve covers 989 842 km2 and is an important national asset in near pristine condition. The reserve will be managed for the primary purpose of conserving the biodiversity found in it, while also allowing for the sustainable use of natural resources in some areas. The reserve includes the different marine ecosystems and habitats of the Coral Sea marine region and will help ensure our marine environment remains healthy and is more resilient to the effects of climate change and other pressures.

The Coral Sea Commonwealth Marine Reserve will provide additional protection for many species listed as endangered or vulnerable under Commonwealth legislation or international agreements, including the endangered loggerhead and leatherback turtles and the critically endangered Herald petrel. The reserve also supports the world's only confirmed spawning aggregation of black marlin.

Sites of high productivity in the reserve, such as those around seamounts, are important aggregators for a range of species including lanternfish, albacore tuna, billfish and sharks. Large marine mammals journey hundreds or even thousands of kilometres to breed in the reserve, or to travel through en route to breeding areas.

The new Coral Sea Commonwealth Marine Reserve encompasses the former Coral Sea Conservation Zone, former Coringa-Herald National Nature Reserve and former Lihou Reef National Nature Reserve. Transitional management arrangements apply until a management plan for the Coral Sea Commonwealth Marine Reserve is in place.

The strange case of Julian Assange continues.....

Julian Assange has reportedly been living in the Ecuadorian embassy in London since 12 June 2012, a total of 1,328 days since he sought asylum there.

The legal matter which triggered his request for asylum remains unresolved to date.

On 5 February 2016 the Office of High Commissioner, Human Rights, United Nations, issued this statement:

The Working Group on Arbitrary Detention Deems the deprivation of liberty of Mr. Julian Assange as arbitrary

On 4 December 2015, the Working Group on Arbitrary Detention (WGAD) adopted Opinion No. 54/2015, in which it considered that Mr. Julian Assange was arbitrarily detained by the Governments of Sweden and the United Kingdom of Great Britain and Northern Ireland. In that opinion, the Working Group recognized that Mr. Assange is entitled to his freedom of movement and to compensation. The application was filed with the Working Group in September 2014. The Opinion 54/2015 was sent to the Governments of Sweden and the United Kingdom of Great Britain and Northern Ireland on 22 January 2016 in accordance with the Working Group’s Methods of Work.

Given that Mr. Assange is an Australian citizen, one of the members of the Working Group who shares his nationality recused herself from participating in the deliberations.  Another member of the Working Group disagreed with the position of the majority and considered that the situation of Mr. Assange is not one of detention and therefore falls outside the mandate of the Working Group.

In mid-2010, a Swedish Prosecutor commenced an investigation against Mr. Assange based on allegations of sexual misconduct. On 7 December 2010, pursuant to an international arrest warrant issued at the request of the Swedish Prosecutor, Mr. Assange was detained in Wandsworth Prison for 10 days in isolation. Thereafter, he was subjected to house arrest for 550 days.  While under house arrest in the United Kingdom, Mr. Assange requested the Republic of Ecuador to grant him refugee status at its Embassy in London. The Republic of Ecuador granted asylum because of Mr. Assange’s fear that if he was extradited to Sweden, he would be further extradited to the United States where he would face serious criminal charges for the peaceful exercise of his freedoms.  Since August 2012, Mr. Assange has not been able to leave the Ecuadorian Embassy and is subject to extensive surveillance by the British police.

The Working Group considered that Mr. Assange has been subjected to different forms of deprivation of liberty: initial detention in Wandsworth prison which was followed by house arrest and his confinement at the Ecuadorian Embassy.  Having concluded that there was a continuous deprivation of liberty, the Working Group also found that the detention was arbitrary because he was held in isolation during the first stage of detention and because of the lack of diligence by the Swedish Prosecutor in its investigations, which resulted in the lengthy detention of Mr. Assange.  The Working Group found that this detention is in violation of Articles 9 and 10 of the UDHR and Articles 7, 9(1), 9(3), 9(4), 10 and 14 of the ICCPR, and falls within category III as defined in its Methods of Work. 

The Working Group therefore requested Sweden and the United Kingdom to assess the situation of Mr. Assange to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention. The Working Group also considered that the detention should be brought to an end and that Mr. Assange should be afforded the right to compensation. 

SBS News, 5 February 2016:

British Foreign Secretary Philip Hammond has branded a United Nations working group report on the "arbitrary detention" of WikiLeaks founder Julian Assange as "frankly ridiculous".

Speaking at a joint press conference with his Iranian counterpart in London, Mr Hammond said Mr Assange was in fact "hiding from justice".

He spoke out after the UN working group ruled Mr Assange was being "arbitrarily detained" in the Ecuadorian embassy in London - and called for him to be paid compensation.

The UN Working Group on Arbitrary Detention said the Swedish and British authorities should end Assange's "deprivation of liberty" and respect his physical integrity and freedom of movement.

Assange is wanted for questioning over an alleged sex offence in Sweden but has avoided extradition by seeking refuge in the embassy, where he has been living for more than three years after being granted political asylum by the Ecuadorian government.

He claims he will be transported to the United States to be quizzed over the activities of WikiLeaks if he is extradited to Sweden. There is an espionage case against him in the US.

He filed a complaint against Sweden and the UK to the UN Working Group on Arbitrary Detention in September 2014.

But Hammond said: "I reject the decision of this working group. It is a group made up of lay people and not lawyers.

"Julian Assange is a fugitive from justice. He is hiding from justice in the Ecuadorian embassy.

"He can come out any time he chooses ... But he will have to face justice in Sweden if he chooses to do so.

"This is frankly a ridiculous finding by the working group and we reject it.".....

The Sydney Morning Herald, 6 February 2016:

And Australian human rights lawyer Geoffrey Robertson QC said the UN report showed that "the real villain is Sweden".

Sweden had misused the European arrest warrant system, he said.

"The United Kingdom should now ask Sweden to withdraw that arrest warrant," Mr Robertson said. "It can in fact refuse to act upon it because it has been declared unlawful by this UN tribunal. I think that would be the proper way."

In a statement addressed to the UN Working Group, the Swedish Ministry for Foreign Affairs said it disagreed with their opinion.

"He is not being deprived of his liberty (at the embassy) due to any decision or action taken by the Swedish authorities," they said, adding that the government could not in any case interfere with an ongoing case handled by a Swedish public prosecutor.

Assange’s country of origin, Australia, had this to say on the subject by way of its Foreign Minister Julie Bishop:

"I have now read the report and I am seeking legal advice on its implications for Mr Assange, as an Australian citizen….I have confirmed with his lawyers that our offer of consular assistance stands should he require it."

This infantile individual has followers in Australia?

Photograph of Daryush Valizadeh, date unknown*

This is the world according to very infantile Daryush “Roosh” Valizadeh creator of Return of Kings:

“1. Men and women are genetically different, both physically and mentally. Sex roles evolved in all mammals. Humans are not exempt.

2. Men will opt out of monogamy and reproduction if there are no incentives to engage in them.

3. Past traditions and rituals that evolved alongside humanity served a net benefit to the family unit.

4. Testosterone is the biological cause for masculinity. Environmental changes that reduce the hormone’s concentration in men will cause them to be weaker and more feminine.

5. A woman’s value significantly depends on her fertility and beauty. A man’s value significantly depends on his resources, intellect, and character.

6. Elimination of traditional sex roles and the promotion of unlimited mating choice in women unleashes their promiscuity and other negative behaviors that block family formation.

7. Socialism, feminism, cultural Marxism, and social justice warriorism aim to destroy the family unit, decrease the fertility rate, and impoverish the state through large welfare entitlements.” [Daryush Valizadeh]

In this world apparently rape is all the woman’s fault (with rare exceptions) and always solely her responsibility to avoid.

Daryush holding forth on this subject at Rooshv.com, accessed 1 February 2016:

I thought about this problem and am sure I have the solution: make rape legal if done on private property. I propose that we make the violent taking of a woman not punishable by law when done off public grounds.

The exception for public rape is aimed at those seedy and deranged men who randomly select their rape victims on alleys and jogging trails, but not as a mechanism to prevent those rapes, since the verdict is still out if punishment stops a committed criminal mind, but to have a way to keep them off the streets. For all other rapes, however, especially if done in a dwelling or on private property, any and all rape that happens should be completely legal.

If rape becomes legal under my proposal, a girl will protect her body in the same manner that she protects her purse and smartphone. If rape becomes legal, a girl will not enter an impaired state of mind where she can’t resist being dragged off to a bedroom with a man who she is unsure of—she’ll scream, yell, or kick at his attempt while bystanders are still around. If rape becomes legal, she will never be unchaperoned with a man she doesn’t want to sleep with. After several months of advertising this law throughout the land, rape would be virtually eliminated on the first day it is applied.

Daryush went on Twitter on 1 February to tell the world he was coming to Australia, hinting that he was flying out of the U.S. on 4 February 2016 – destination Canberra. He also stated that if he was denied a visa then he would smuggle himself into the country. Presumably because, having male genitalia and a U.S. passport, he shouldn’t be baulked in any way.

Australian readers will of course be amused that he presumes that Canberra is the place to be. When it is a national capital with probably the third smallest population of any capital city in Australia and, during at least two days of his alleged stay it will be empty of federal politicians, the Canberra press gallery and anyone else who might matter to his effort at self-promotion.

However, it seems that this emotional toddler may not be serious about landing on Australian shores – he had not applied for a visa as of 2 February 2016 according to the Minister for Immigration and Border Protection.

The ego at work......

Rather predictably, as the time to act on his boasts came nearer, Daryush backed down and, according to his website, is cancelling his big night out because he cannot guarantee the safety and privacy of the men who want to attend.

If his foray into Canada in 2015 is anything to go by, it's more likely that not enough men wanted to get together with him to celebrate such a bizarre and immature outlook on life.

On or about 5 February 2016 he also added a disclaimer to his year-old post on rape on private property - now calling it "satire".

It will come as no surprise to readers to learn that Daryrush is said to live in the basement of his mother's house in Silver Springs, Maryland. Needless to say there is no evidence of the shiny Mecedes Benz (that he flaunts online) in front of his mother's small  terrace house.

So yesterday came and went with no 36 year-old American braggart in spectacles standing on Australian soil and barely a person will be able to recall his name by tomorrow.

* Yes, I was naughty and picked the most unflattering photo of this pickup artist I could find.  I don’t apologize - I’m an Australian woman and rape is part of my community and family history, sadly including the abduction and rape of minors.

Tweet of the Week

Quote of the Week

Abbott  was born in England in the 1950s and he is still a creature of it. He represents a narrow strand in Australian culture which is in many ways more British than Australian, and that is part of the reason why he was unsuccessful.

[Author Aaron Patrick in The NewDaily, 29 January 2016]

Just because it is beautiful..... (2)

Image from Nature Australia

Is this a discreet way of saying that in 2014-15 up to 12,800 people tried to hide assets in order to be eligible for an Australian aged pension?

[Australian Government, Dept. of Human Services, 2014-15 Annual Report, p.22]

Labor called Turnbull Government's bluff - now ordinary voters should demand their right to know

When Dyson Heydon decided to permanently conceal from public view one volume of the report produced by the Royal Commission into Union Governance and Corruption, he did a grave disservice to the democratic process.

Opposition and cross-bench parliamentarians are starting to demand access to the secret 'facts' a commissioner (trailing apprehended bias allegations behind him) relied on, before they consider new government legislation. 

Now in this 2016 federal election year it's time that Australian voters also fight for access to a copy of this volume with individual/company/place names redacted.

It may be a hard fight as I rather suspect that Heydon's hidden hyperbole won't stand up to close public scrutiny.

The Australian, 18 January 2016:

Labor has written to the Turnbull government to formally request access to the secret volumes of the Heydon royal commission report on trade unions, as it accused the Coalition of selectively using the inquiry’s recommendations for its “immediate political interests”.

In a letter to Employment Minister Michaelia Cash, obtained by The Australian, opposition employment spokesman Brendan O’Connor says the government must provide access to all sides of parliament — “and potentially to other interested parties” — if it seeks to use the chapters “to make the case for legislation”.

It comes after The Weekend Australian revealed the government would take the extraordinary step of providing crossbench senators with redacted versions of the confidential volumes in a desperate bid to end the stalemate with the independents over its industrial relations reforms.

The Department of Prime Minister and Cabinet is arranging a viewing of the secret parts of the report after independents Jacqui Lambie and Glenn Lazarus demanded to see the full document before deciding on the government’s stalled IR bills.

“If your government wants to rely on these secret volumes to make the case for legislation, the opposition is of the strong belief that the government must, at a minimum, provide them to all sides of the parliament, and potentially to other interested parties,” Mr O’Connor writes……

Royal commissioner Dyson Heydon has recommended a volume of the interim report be kept confidential to protect the physical wellbeing of 29 witnesses and their families. He has also urged for a sixth volume in the final report to remain confidential.

Mr O’Connor, who has slammed the royal commission as a “political witch hunt”, said it appeared the government “only respects the royal commission’s findings when it suits your immediate political interests”.

“A failure to provide the opposition with an opportunity to access the confidential volumes will only confirm this,” he says.

High Court judgment enables Australian Government to wash its hands of asylum seekers' fate

THE CHILDREN……

THE JUDGMENT……

High Court Of Australia PLAINTIFF M68/2015 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS [2016] HCA 1, 3 February 2016:

Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention.

The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act.

On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract").

Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by 

s 198AHA of the Act, which is a valid law of the Commonwealth.

* 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.

Transcript of full judgement can be found here. 

WHAT THE JUDGMENT MEANS…...

George Williams, Professor of Law at the University of NSW, writing in The Sydney Morning Herald on 3 February 2016:

The result was that the federal government has the power to detain people who come to our shores claiming to be a refugee. It also has the power to send those people to other countries without first determining whether their claims are correct.

Once removed, their fate is put beyond Australian law and the oversight of our courts. As Chief Justice French and Justices Kiefel​ and Nettle stated, once removed from Australia, the plaintiff is 'detained in custody under the laws of Nauru, administered by the Executive government of Nauru'.

This follows from the fact that Australian courts do not rule on what occurs within another sovereign state. This is true even if that state, as is the case with Nauru, is beholden to Australia, and has a dubious record of upholding the rule of law within its own borders. In such a case, asylum seekers can find themselves removed from Australia to what is in effect a legal black hole.

These findings of a majority of the High Court put beyond doubt the capacity of the Commonwealth to continue its offshore detention policies in Nauru.

What is striking is just how few checks now apply to these policies. There is no requirement that children are well treated, or that their best interests are safeguarded. There is also no need for asylum seekers to be treated fairly, such as by having their claims promptly and properly assessed.

By sending them to Nauru, the law enables Australia to wash its hands of such matters.

I note that the High Court ordered the Bangladeshi woman "M68" to pay the Federal Government's legal costs in this case, so not only will she and her infant be returning to an island nation of only 21 km² whose income appears to be derived in part from acting as an open-air gaol, she will go back burdened with a debt she can not possibly pay.

 

Well done, Bill Shorten!

This Cruz canard went all around the world  in January 2016:

U.S. presidential candidate Ted Cruz has claimed that Australia's 1996 firearms buyback led to a significant increase in sexual assaults on women - as the debate about gun control takes centre place in the race for the White House. Republican Senator Cruz, who is vying to win the top job, made the comments during an interview with American radio host Hugh Hewitt on January 12. And as you know, Hugh, after Australia did that, the rate of sexual assaults, the rate of rapes, went up significantly, because women were unable to defend themselves,' Cruz told the conservative radio host.

While Prime Minister Malcolm Bligh Turnbull didn’t utter a peep, Opposition Leader Bill Shorten put the record straight…………

FILE UNDER NOTHING CHANGES: Liberal & Nationals MPs poised to help out their banker mates once more

Assistant Treasurer and Liberal MP for Higgins Kelly O'Dwyer was quick to deny the content of the media release (below) concerning the Superannuation Legislation Amendment (Transparency Measures) Bill 2015: Product dashboards.

However Allens Linklater appears to support Industry Super Australia’s take on the new rules:

The Bill sets up (and proposes changes to) the application of the product dashboard rules as follows:

* Choice product dashboards now only need to be provided for a fund's 10 largest choice investment options by funds under management (with some exclusions) rather than all choice products. For the purposes of working out a fund's largest choice investment options, a lifecycle option should be treated as one option.

* Although a choice lifecycle option should be treated as one option for the purposes of identifying its size, a separate product dashboard is required for each lifecycle stage in the option (and this applies to both MySuper and choice lifecycle options).

* Eligible rollover funds and pooled superannuation funds are specifically excluded from the product dashboard rules.

Industry Super Australia, media release, 28 January 2016:

GOVERNMENT PROPOSALS WILL PREVENT CONSUMER “COMPARE THE PAIR”

A carve out of an estimated 72% of the bank-owned and retail super sector from requirements to disclose their investment returns, fees and costs on proposed “product dashboards” for super funds could make it nearly impossible for Australians to readily make informed choices about their superannuation, industry super funds have warned.

The new federal Government proposals carve out bank-owned super funds held through platforms and some legacy products from having to disclose details on ‘dashboards’.

Product “dashboards” are designed to provide consumers with a standardised and simple presentation of fees, all underlying costs, risk and net returns.

The proposed changes mean many bank-owned super products will not have to disclose many of their underlying investment costs.

According to independent analysis by Rainmaker, as at December 2014, 72 per cent of the $572 billion of retail superannuation assets were held via platforms.

“Australians need to be able to compare the net performance of super funds to be able to make informed choices”, said David Whiteley, Chief Executive of Industry Super Australia.

“It is unsurprising that the banks oppose having to disclose the performance of their super funds in an easily comparable and transparent manner. According to SuperRatings, industry super funds have outperformed bank owned super funds over the short, medium and long term to 31 December 2015.

The Government is also seeking to remove existing limited exemptions to choice of fund legislation introduced by the Howard government at the request of employers. It is estimated the exemptions currently cover less than seven out of a hundred Australian employees.

In submissions to Treasury, ISA has recommended that the Government not proceed with the changes until:

* The product dashboard regime includes all superannuation products and investment options with no carve outs for banks and retail funds; and

* A cost benefit analysis is undertaken of the plan to remove Howard Government choice of fund rules.

“Industry super funds support a strong default fund safety net, the ability of members to choose their own fund, and access to information to make informed decisions.

“We are concerned that these proposals have not been through a rigorous evaluation. In their current form the proposals are internally inconsistent, seeking to extend choice of fund without providing consumers with the necessary information to make informed decisions.”

“Despite very few Australians actively choosing a fund other than the default one their employer has in place, everyone needs to be able to compare the performance of funds to be able to make an informed decision. It is not good enough that the banks want to hide their chronic under-performance from consumers”, said David Whiteley.

Background

Brisbane Times, 28 January 2016:

ISA and the Australian Institute of Superannuation Trustees, the lobby group for all non-profit funds including public sector and corporate funds as well as industry funds, argued that requiring funds to produce dashboards only for their 10 largest investment options meant too many retail products would be exempt. 

In their submission to Treasury, AIST pointed to the findings of a soon-to-be-released report it commissioned by SuperRatings that showed retail MySuper fees and costs were on average 28 per cent higher than those passed on to the public by non-profit providers. 

The upcoming report will also show that in the choice market, the like-for-like fees and costs charged by retail funds were 85 per cent to 300 per cent higher than the comparable investment options from non-profit funds. 

"Members of many bank-owned super funds are being kept in the dark about high fees that will materially affect their retirement," AIST chief executive Tom Garcia said. 

All MySuper products, the no-frills funds that employers can nominate for default flows, are already required to produce a product dashboard. The new rules will extend this requirement to choice products. 

Non-profit super providers dominate the $547 billion MySuper sector with a market share of 83 per cent, while retail providers dominate the $681 billion choice sector with a market share of 64 per cent, according to the regulator's latest statistics.