Ginger's howler

Today's Daily Examiner has provided its readers with another opportunity to test their spelling.

Credit: Digital edition of DEX, 21/6/2014

Australian High Court slaps down Abbott Government yet again

It would appear that the Australian Constitution and the High Court have become the only effective brakes on the policy excesses of the Abbott Government.

Yesterday, it handed down two more judgments that came hard on the heels of its 19 June ruling that the school chaplaincy program funding was unlawful.

Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor (PDF 14K) and Plaintiff M150/2013 by his Litigation Guardian Sister Brigid Marie Arthur v Minister for Immigration and Border Protection & Anor (PDF 14K).

20 June 2014

PLAINTIFF S297/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCA 24

Today the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s 85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year.

The judgment in this matter should be read with the judgment handed down today in the concurrently heard matter Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25. 

The plaintiff is a Pakistani national who entered Australia by sea at Christmas Island in 2012.  He did not have a visa and was, therefore, an unlawful non-citizen within the meaning of the Act.  He made a valid application for a protection visa.  The Refugee Review Tribunal determined that he was a refugee within the meaning of the Refugees Convention, satisfying the criterion for a protection visa under s 36(2)(a) of the Act.  However, he has been neither granted nor refused a protection visa because of an instrument signed by the Minister on 4 March 2014, which purported to determine under s 85 of the Act the maximum number of protection visas that may be granted in the financial year ending 30 June 2014.  That maximum number having been reached, the grant of a protection visa to the plaintiff in this financial year would exceed that limit.

Section 85 of the Act provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year.  Protection visas are a class of visa provided for by s 36.  Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied.  Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa.  A special case stated questions of law for determination by the Full Court.

The High Court held that the instrument was invalid.  In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year.  The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law.

• 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.

Meme of the Week

From leslienassar.com

Quote of the Week

His [Tony Abbott’s] image as a bumbling, misogynistic, homophobic, environmental vandal is now so entrenched that every time something – anything - happens his lengthy list of past stuff ups, terrible policies and wrecking ball politics comes back to haunt him. In short, everything Abbott touches now appears to turn to custard, and that’s not going to end anytime soon given the length and breadth of Abbott’s indiscretions. [New Matilda, 15 June 2014]

NSW North Coast Federal National Party MPs Kevin Hogan, Luke Hartsuyker, Barnaby Joyce and David Gillespie are supporting replacement of 61 not-for-profit Medicare Locals with commercial insurance companies?

The Abbott Government’s intention to freeze low-income earners out of access to quality medical care is foreshadowed in this article in The Sydney Morning Herald on  17 June 2014:

Lucrative contracts could be on offer to the country's two largest health insurers with the government considering outsourcing the Primary Health Networks program that will replace Labor's Medicare Local.

Medibank Private and Bupa, which collectively control about 60 per cent of the health insurance market, have both said they would consider tendering for the work.

A spokesman for Health Minister Peter Dutton confirmed the running of PHNs could be outsourced to the private sector "subject to an open tender process to identify the most suitable entities" but would not comment further. "We are not preempting that process," the spokesman said.

Labor set up 61 Medicare Locals - government funded non-profit organisations - to plan and co-ordinate services between general practitioners, allied health and hospitals around the country. The initiative was set to cost $1.8 billion over five years and employs 3000 people. The Coalition proposed a smaller number of PHNs aligned with state-run local hospital networks, which will perform a similar function. The cost of the initiative will be met from existing resources, the government said in the May budget…..

Abbott Government dismantles legislated "water trigger" protecting Australian communities from the rapacious demands of the mining industry and Nats MP Kevin Hogan fails to cross the floor as promised

First the Abbott Government dismantles the legislated “water trigger” protecting Australian communities from the rapacious demands of the mining industry and, then straight after this was voted through the Lower House it throws in an ineffectual last minute amendment of its amendments.

Federal Nationals MP for Page Kevin Hogan on the subject of amendments to the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 as reported in The Northern Star 17 June 2014:

PAGE MP Kevin Hogan says he has strengthened laws protecting groundwater from coal seam gas drilling with two amendments added to Federal legislation last night.

The legislation makes changes to the former Labor Government's "water trigger" bill, which required all gas drilling operations in Australia to prove they would not harm the water table before being approved by the Federal Environment Minister.

The new legislation transfers authority for the "water trigger" bill from the Federal Government to the state.

By peeling back the need for both tiers of approval, the coalition government hopes to "simplify" the approvals process for business by getting rid of duplication and creating faster decisions.

Mr Hogan said his two amendments would strengthen the national environmental law and help protect Australia's water resources.

The first amendment would mean all state governments and territories would have to seek independent scientific advice when assessing projects for the water trigger.

The advice would come from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).

The second amendment would give the Federal Government power to request advice from the independent committee, including to what extent a state or territory had considered the scientific advice.

The Federal Environmental Minister would be able to overrule the approval if not satisfied with the process…..

The Abbott Government further amendments (to the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014) introduced by Mr. Hogan can be found in the Hansard record for 16 June 2014 at Pages 103-105.

The Federal Labor Member for Richmond Justine Elliot responding to Kevin Hogan on the floor of the House of Representatives on 16 June 2014 – Hansard Pages 105-106 :

Mrs ELLIOT (Richmond) (20:20): I too support the amendments moved by the member for Page, but can I point out to him it is too little too late. There is no point putting a bandaid on a gaping wound, and that is what you are proposing to do today. The fact is that you and your party are huge supporters of coal seam gas mining on the North Coast of New South Wales, and this does nothing to allay the fears of people in your community and in my community and the extent of concerns about unconventional gas mining. In fact, just last weekend at the National Party conference, which I am sure the member for Page was at, he would have heard the Leader of the Nationals and the Deputy Premier slag off at people that were protesting at Bentley. That is what you and your party think of people who oppose coal seam gas mining. The fact is that you are a member of a party that proactively pushes coal seam gas mining right across the North coast of New South Wales. There are changes being made to water down the water trigger. What we put in place when we were in government was a very important initiative to protect water resources throughout the country. The actions we took

in extending the water trigger were very important to people in my electorate and indeed to people in your electorate, member for Page. What you voted for tonight took that away. You took away the provisions in terms of looking at water and coal seam gas mining. This bandaid does not repair that at all. In fact, it does nothing—it

makes it worse. Tonight you have voted to hand all of those environmental powers to state governments or—God forbid—some councils. You made reference to Bentley. We all know that Bentley is in Richmond Valley shire. We know that the National Party mayor of Richmond Valley Council is full-on keen for coal seam gas mining. What you voted for tonight means either your pro-CSG National Party state government or your pro-CSG Richmond Valley Council is going to give a big tick to coal seam gas mining at Bentley. So keep in mind what you voted for, and disregard the bandaid amendments that you have put forward. If you want to talk about Bentley, we know that the decision on an exploration licence is going to be made by 25 June. That is pretty close in terms of the decision making and the impacts there. We saw thousands of people at

Bentley come out to protest the exploration licence there and we are going to see thousands again. So I think that you need to be true to your constituents who are very worried about the exploration licence at Bentley and what that means.

These amendments are not actually going to secure anything. You have taken away so much by voting for this bill tonight. By voting to actually delegate approval responsibilities to the states and the councils as well, you have taken away the capacity for national oversight across a whole range of very important issues. Your attempt to put a bandaid response in this legislation is not going to have any effect at all in stopping harmful coal seam gas mining or in having any oversight of it. We have to look at all of those particular factors within the context of this bill. You cannot vote for something and then pretend that the couple of minor, little amendments that you have moved mean that somehow it is not that bad. Well, it is that bad. It is that bad because you have effectively voted to hand over approval powers to a state government who, quite frankly, we know are environmental vandals. The New South Wales state government are environmental vandals; everyone knows that. It is a real concern in terms of their actions, from allowing shooting in national parks right across to their pro coal seam gas mining agenda. Their vandalism is very widespread. It includes some of their rezoning and not protecting koala habitats. There are

a huge array of issues on which the state government has failed the people of New South Wales. I think that in our area and in others they will be held to account come the state election next March. The member for Page has tonight voted to say, 'Yes, you're environmental vandals but we'll give this power to you or we'll give it to the councils.' Now, most councils just do not have the resources to be able to deal with issues such as this. They just do not have the staff, the scientists, the bureaucrats and the encompassing framework that the federal government has to look at all of these particular ramifications effectively. So it is irresponsible to hand it to them as well. Potentially, as I said, we could see some councils making decisions in relation to coal

seam gas mining or even uranium mining. For goodness sake, how irresponsible is that? The member for Page can stand here tonight and move as many amendments as he likes. The fact is that what he voted for is absolutely destructive. Your constituents—and I know what they want because they are my constituents too—want you to stop unconventional gas mining and any unconventional mining on the North Coast, but you and your party continue to pursue it. We saw your leader at the conference on the weekend denigrate and ridicule those of us who stood against it. The fact is the National Party are pro coal seam gas mining and you confirmed it by voting for this bill tonight.

Federal Greens MP for Melbourne Adam Bandt responding in the House of Representatives on the same day – Hansard Pages 106-107:

Mr BANDT (Melbourne) (20:30): This is a piece of choreographed theatre of which Andrew Lloyd Webber would be proud. This is astounding. The government has come in and said the existing national protections that apply at the federal level against things like coal seam gas mining are about to be taken away once and for all. Instead, under the legislation, we are going to allow state or even local governments to approve projects that would normally be assessed against federal standards. Then, in a rearguard action—because the government knows that the community is breathing down its neck about coal seam gas—it comes in and says: 'I'll tell you

what we'll do. We won't keep those high levels of protections—we're still going to remove them all, but we'll just add in one little one that takes you about a third of the way to where we were before. 'When you consider this amendment together with the legislation that we are about to pass, what it will mean is this: yes, a state minister has to obtain advice, but it is now going to be the case that that very same state minister gets to determine whether those conditions have been met. It might even be a local government that gets to determine it, and that might even be the case where the state government is the one conducting the proposal—the proponent. In other words, under this amendment and the legislation, when you read the two together, a state

government can come along and say: 'We are the proponent for this coal seam gas project, and we are going to determine whether it meets federal standards, and the only obligation on us now is to go and seek some advice. Well, we sought it and we're going to approve it, and there's nothing you can do.' If you are really concerned about protecting the community against the adverse impacts of coal seam gas, then

you would keep the existing legislation and the water trigger that is embodied in it. These amendments, as choreographed as they are, make a bad piece of legislation slightly better, and so they will be supported. But anyone who really cared about protecting the water table and protecting the community from the impact of coal

seam gas would be voting against this piece of legislation in the first place. I think everyone knows that these amendments would not be here, were it not for the wide cross-section of Australians from all walks of life who are coming out and saying, 'Hang on, this government we voted for is not representing us when it comes to protecting our farmland and is not representing us when it comes to protecting us against the adverse impact of coal seam gas.' This is a choreographed attempt to hold at bay some of that support, but I can tell you, Mr Deputy Speaker,

the communities right across this country, who are campaigning to protect their land and their water against the impacts of coal seam gas and unconventional gas, know that this is not good enough and they know that the only reason that this is happening is they are out there day after day fighting to protect their land and their water. The

Greens will continue to stand with them and continue to condemn this coalition government for voting to strip away federal protections, including the water trigger, and hand over to state and local governments the power to determine whether coal seam gas and unconventional gas mining can go ahead.

Lock The Gate media release:

 

Nationals gut water trigger: Hogan abandons promise to cross the floor

Posted by Georgina Woods  on June 19, 2014

The Federal National Party has walked away from its commitments to protect the national water trigger on Coal Seam Gas (CSG) mining, and voted last week to allow it to be handed back to the states.

The Federal National member for Page, Kevin Hogan, had promised to cross the floor on the CSG issue if necessary, but instead last week turned his back on iron-clad commitments made to his electorate.

"Last week in Parliament, the National Party voted to allow the Federal water trigger to be handed back to the states, rendering it completely meaningless" said Phil Laird, National Co-ordinator for Lock the Gate Alliance.

"This trigger was introduced because of the severe risks to water supplies posed by CSG and the abject failures of the states to properly assess or protect important, nationally significant water sources.

“Self interested state governments can’t be trusted to properly regulate nationally important water resources that cross state boundaries such as the Murray Darling Basin or the Great Artesian Basin.

"Voting this trigger down is a huge betrayal of farming communities and our environment.  LNP figures who vowed publicly that the water trigger would not be touched if they were elected, should now hang their heads in shame" he said.

"Despite iron-clad guarantees to his electorate, last week Kevin Hogan voted to allow the Federal water trigger to be handed back to the states" said Michael McNamara, spokesperson with Gasfield Free Northern Rivers.

"Before the last election, Hogan made a specific commitment not to support Federal environment powers being handed back to the states and threatened to 'cross the floor' on CSG. 

"However, last week in Federal Parliament that commitment lay in tatters, and Kevin Hogan voted for the Bill which has gutted the water trigger on CSG mining.  He had his one big chance to 'cross the floor', and he blew it.

"Kevin Hogan staked his candidacy for the seat of Page on the CSG issue, and the people of the electorate deserve to know they have been abandoned. If this new Bill passes the Senate, Federal decisions on CSG water impacts will effectively be history" he said.

Background

Commitments on the Water Trigger before the 2013 Federal Election.

In a candidates survey before the election last year, Kevin Hogan was asked:

"If elected to office, will you pledge to promote the following policies within your party and in public, and to vote to implement them via new or amended Federal laws:

1.    Retention of current Federal environment powers, ruling out devolving them to the states and opposing any fast-tracking of coal or gas developments?"

His answer:  'Yes'.  Full response from Kevin Hogan available on request.

During a tour with Kevin Hogan of the Page electorate in the lead-up to the Federal election last year, Joe Hockey stated that "Our policy is to continue the CSG policies that are in place, it's no different......Would we water down the water trigger amendment, I don't think so".

Northern Star, August 30 2013

Video footage of Kevin Hogan assuring 700 Lismore residents earlier this year that he had gained a guarantee from the National Party not to reverse the water trigger is available on request.

The Bill Passed Last Week

The Bill which passed the lower house of Federal Parliament last week is titled the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014. 

As a result of Schedule 3, Part 1 of the Bill, state governments will take back sole decision-making power relating to water impacts for CSG and coal where a 'bilateral agreement' is in place.  Draft bilateral agreements have already been developed for NSW and Queensland.  The water trigger will still exist on paper, but it will be rendered completely meaningless.