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.