Menzies Research Centre evidence before parliamentary joint inquiry appears to be built on shifting sands

Liberal-National Party drone, the Menzies Research Centre, was the 66^th individual or organisation to make a submission to the Parliamentary Joint Committee on Corporations and Financial Services’ Inquiry into the Litigation funding and the regulation of the class action industry.

 This submission was written by twenty-five year-old James Mathias (shown left), Chief of Staff at the Menzies Institute and unsuccessful Liberal candidate for the seat of Holt at the 2016 feferal election.

It would appear from the evidence Mathias gave to the Inquiry that he shares an office with the Liberal Party in Canberra.

Young James is definitely not a scholar and, typical of that peculiar breed of young Liberals, he made a a mess of the submission right from the opening lines.

On 13 July 2020 The Guardian report his appearance at the first public hearing of the Inquiry:

Mathias appeared on Monday before a parliamentary committee investigating whether Australia’s class action industry needs tighter regulation…

The first line of the submission from the MRC – the Liberal party thinktank – quoted the federal court justice Michael Lee as saying in a judgment on 5 June: “The phrase ‘access to justice’ is often misused by litigation funders to justify what at bottom is a commercial endeavour to make money out of the conduct of litigation.”

It was purportedly from a judgment on class actions stemming from allegations that the Australian defence department negligently allowed toxic chemicals known as Pfas to escape from defence bases and contaminate local environments.

But Mathias, who was just 21 when he ran as a federal candidate for the Victorian seat of Holt in 2016, confirmed under questioning he had “not read the full judgment” cited in the submission as “judgments are very long – some hundreds of pages”.

O’Neill said the judgment was actually 37 pages long and “the words you quote in the very first line of your submission are nowhere, nowhere to be found in his honour’s judgment”.

The NSW senator said the only place that quote could be found was in an article in the legal journal Lawyerly on 9 June, titled “‘A significant inequality of arms’: Funding led to better outcomes in PFAS class action, judge says”…..

In Lee’s judgment of 5 June, the judge made a more qualified statement that “the term ‘access to justice’ is commonly misused, most often by some funders who fasten upon it as an inapt rhetorical device”.

He then cautioned against generalisations. While noting “litigation funding is about putting in place a joint commercial enterprise aimed at making money”, Lee went on to say that recognising that reality “does not diminish the importance of litigation funding in allowing these class members to vindicate their claims against the commonwealth”.

Referring to the alleged victims in the Pfas class actions, Lee continued: “Without litigation funding, the claims of these group members would not have been litigated in an adversarial way but, rather, they would likely have been placed in the position of being supplicants requesting compensation, in circumstances where they would have been the subject of a significant inequality of arms….

When contacted for a response to the criticism of his submission, Mathias said it was “astonishing that the Guardian would be siding with foreign backed, super-profitable litigation funders just because it does not like the politics of the MRC”.

The 5 June 2020 judgement in question GAVIN SMITH et al v COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) can be found at https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0837

*James Mathias Snapshot found on Twitter

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@cathywilcox1

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COVID-19 has returned to the NSW Northern Rivers after 48 days free of active infection

Northern NSW Local Health District, media release, 16 July 2020:

One case of COVID-19 has been confirmed in the last 24 hours in the Northern NSW Local Health District (NNSWLHD). 

This brings the total cases to 56, as at 8pm Wednesday, 15 July. 

The new case is a person who travelled to Northern NSW from Melbourne, arriving at Ballina airport on Sunday, 12 July on Jetstar flight JQ466. This person was screened on arrival at Ballina airport. 

Since arriving in Northern NSW, this person has been in mandatory 14-day self-isolation. 

Any potential close contacts are being followed up. 

Of the 56 cases in Northern NSW Local Health District, 53 have recovered. There are no cases being treated in hospital. 

NNSWLHD cases by likely source of infection: 

Overseas or interstate acquired – 52 
Locally acquired –contact of a confirmed case or in a known cluster – 2 Locally acquired – source not identified – 1 
Under investigation – 1 
Total 56 

NNSWLHD is encouraging anyone with symptoms, however mild, to self-isolate and get tested. Anyone with symptoms is also advised to refrain from visiting aged care facilities and hospitals. Everyone is also reminded to maintain physical distancing and hand hygiene. 

Anyone who is unable to practise physical distancing should wear a mask. 

More than 4,900 people have been tested during the last fortnight in NNSWLHD. 

Testing is free and available to everyone in the region, including visitors. The site locations are/can be found at: https://nnswlhd.health.nsw.gov.au/about/covid-19-clinic-information/

Will U.K. based multinational mining corporation Rio Tinto Ltd be stripped of its status as a human rights leader following its destruction of an Aboriginal sacred site showing evidence of 46,000 years of human habitation?

"The fact that nearly half of the companies assessed (49%) score 0 across all indicators related to the process of human rights due diligence is particularly alarming. These indicators focus on the specific systems the company has in place to ensure that due diligence processes are implemented to assess the real-time risks to human rights that the company poses, to act on these findings so as to prevent and mitigate the impacts, and to track and communicate those actions. Human rights due diligence is a fundamental expectation of the UN Guiding Principles on Business and Human Rights (UNGPs). The three companies that top the 2019 ranking (Adidas, Rio Tinto and Unilever) all score full points on the human rights due diligence indicators...Eleven [of the 56 extractive] companies score above 50%, with Rio Tinto, BHP Billiton, Freeport McMoRan and Repsol in the highest scoring band of 70-80%" [Corporate Human Rights Benchmark 2019 Key Findings]

The New York Times, 8 July 2020:

MELBOURNE — Aboriginal and human rights groups on Thursday called for miner Rio Tinto Ltd to be stripped of its status as a human rights leader following its destruction of an Aboriginal sacred site showing evidence of 46,000 years of human habitation. 

With state government approval, the world's biggest iron ore miner in May destroyed two sacred caves in the Juukan Gorge in the Pilbara region of Western Australia as part of a mine expansion. 

 Rio's response to blowing up the caves was "far from adequate", 35 Aboriginal and Torres Strait Islander and human rights groups said in a letter requesting the miner be suspended from the Corporate Human Rights Benchmark (CHRB). 

Netherlands-based CHRB is a public benchmark of corporate human rights performance. 

It lists Rio as the highest ranked extractives company globally on human rights issues, with a score in the second highest possible band.  

"We are calling on the Benchmark to ensure that the company's human rights ranking reflects the reality for people here on the ground," said Wayne Bergmann, a Kimberley Aboriginal leader and chief executive of Aboriginal charitable trust KRED. 

Rio apologised for the distress it caused to the Puutu Kunti Kurrama and Pinikura people and launched an independent investigation into how the destruction occurred.

Thursday's letter disputed Rio's explanation of the incident as a "misunderstanding", saying that the indigenous land owners had brought to Rio's attention on several occasions the archaeological and ethnographic significance of the site. 

Rio declined to comment on the letter......

Prior to the November release of its Corporate Human Rights Benchmark 2020 CHRB issued this:

Corporate Human Rights Benchmark (CHRB), media release, 9 July 2020: 

Due to the destruction of a 46,000-year-old Aboriginal heritage site by Rio Tinto at Juukan Gorge in Western Australia on 24 May 2020, the Corporate Human Rights Benchmark (CHRB) and the World Benchmarking Alliance (WBA) have decided to append this statement to Rio Tinto’s latest CHRB results. 

It would be inappropriate for CHRB to continue to assess and rank Rio Tinto in one of the highest-scoring bands and as the top mining company without reference to this incident. 

The CHRB seeks to provide robust and credible information on companies’ actions to respect human rights across their business, and it would be misleading not to reference this severe impact as a complement to the latest results. 

The statement appears in the homepage banding table, in the company's latest scorecard and in the latest overall dataset.

~~~~~~~~~~~~~~

"It would be inappropriate for CHRB to continue to assess and rank Rio Tinto in one of the highest-scoring bands and as the top mining company without reference to this incident....The severity of the impact and the context in which it took place, including the process that led to it and allegations of other similar impacts involving the company, raise concerns that go beyond this specific incident and point to possibly more systemic weaknesses in the company’s approach to human rights." [CHRB response to the destruction of a 46,000-year-old Aboriginal heritage site by RioTinto at Juukan Gorge in Western Australia on 24 May 2020]

~~~~~~~~~~~~~~

Hopefully this statement means that Rio Tinto Ltd will get more than a small red flag next to its ranking with a brief one line explanation for ongoing human rights issues, such as was afforded to another extractive industry high flyer, BHP Billiton.

BACKGROUND

ABC News, 5 June 2020:

Mining giant Rio Tinto was alerted six years ago that at least one of the caves it blasted in Western Australia's Pilbara region last month was of "the highest archaeological significance in Australia".  

Advice delivered to Rio Tinto and the Puutu Kunti Kurrama and Pinikura (PKKP) Indigenous people of the region six years ago was never publicly released. The ABC has been given a summary of the contents of the report, as well as earlier archaeological survey work and excavations at the sites dating back to 2004. 

The documentation of the 2014 report by archaeologist Dr Michael Slack confirmed one of the sites that was blasted, the Juukan-2 (Brock-21) cave, was rare in Australia and unique in the Pilbara. 

"The site was found to contain a cultural sequence spanning over 40,000 years, with a high frequency of flaked stone artefacts, rare abundance of faunal remains, unique stone tools, preserved human hair and with sediment containing a pollen record charting thousands of years of environmental changes," 

Dr Slack wrote. "In many of these respects, the site is the only one in the Pilbara to contain such aspects of material culture and provide a likely strong connection through DNA analysis to the contemporary traditional owners of such old Pleistocene antiquity."....

Before and After

Juukan Gorge caves, BBC News, 31 May 2020

Australia During Pandemic 2020: Portraits in Selfishness & Self-interest

Crikey, 13 July 2020:

FLIGHT CENTRE FOUNDER GRAHAM TURNER
(IMAGE: AAP/LUKAS COCH)

For some business leaders and lobby groups, the return to lockdown in Melbourne is intolerable. The most prominent is the Australian Industry Group (AIG).

Last week it condemned the Melbourne lockdown, saying “widespread shutdowns is a strategy that can be used just once.” The following day it called for the reopening of the NSW-Victorian border on the basis that the Melbourne lockdown — which it had opposed the previous day — had removed any threat of community transmission of COVID-19 outside Victoria.

The carefully chosen words of last week, though, were replaced by an altogether harsher view articulated by AIG head Innes Willox to The Australian over the weekend.

State premiers, Willox complained, were trying “to outdo, outbid and outrace each other to smother any chance of economic recovery” — a couple of days after Queensland had reopened its borders.

“Putting up artificial barriers, closing borders and turning Australians against each other is not going to get us there.”

That coincided with the head of Flight Centre, Graham “Skroo” Turner calling for Australia to “learn to live with the virus”, which would get “society and business back to a reasonable level of normality”.

After dismissing herd immunity, and the tens of thousands of deaths that would require, as “not a great option”, Turner, or his ghost-writer, suggested that Australia had embraced a “model of states, territories or governments who have no COVID-19 objectives or clear science and data-based strategies”.

Despite complaining about this alleged lack of clear objectives and strategies, it wasn’t clear what Turner’s “living with the virus” meant beyond “containment by proven health and hygiene practices, widespread testing and tracing but without hard lockdown.” Unsurprisingly for the head of a travel company, Turner wants international borders and tourism reopened as soon as possible. The Australian backed Turner in an editorial.

Turner’s “strategy” would amount to letting the virus rip, with contact tracers — let alone hospitals — rapidly overwhelmed. That’s exactly the scenario that is unfolding in places like Florida and Texas right now. Funnily enough, that’s not very good for consumer sentiment, even without hard lockdowns….. [my yellow highlighting]

Read full article here.

CEO OF THE AUSTRALIAN INDUSTRY GROUP INNES WILLOX
(IMAGE: AAP/LUKAS COCH)

The New Daily, 13 July 2020:

A group of six Victorians has been fined more than $24,000 after trying to cross the border into Queensland in a minivan. 

The group, who had lied on their border declaration forms, told police patrolling entry the state’s points that they had been working in NSW for three weeks. 

However, evidence on their phones revealed they had been in coronavirus hotspots in Victoria during the past 14 days. 

“Police intercepted a minivan on Saturday night, where all six occupants were refused entry at the M1 border control check point,” Queensland Police said. 

“On Sunday, officers intercepted the same van on Stuart Street in Coolangatta around 2pm.” 

All six in the group – two 19-year-old women and four men aged 18, 19, 23 and 28 – were fined $4,003 for failing to comply border directions and turned around immediately....

myPolice on Jul 13, 2020

NSW Police, 13 July 2020:

A man has been fined after failing to follow self-isolation ministerial directions in the state’s south west. 
 At 2.30pm on Wednesday 8 July 2020, a 24-year-old man was stopped by police on the Newell Highway at Tocumwal, as part of border enforcement patrols. 

The man was issued a direction under the Public Health Act to self-quarantine for a period of 14 days and was provided with information before being allowed to leave. 

Officers from Murrumbidgee Police District attended the man’s home in Leeton at 12pm and again at 4pm on Thursday 9 July 2020, and found the man was not home as directed in the orders. 

Police attended the home again at 5.30pm and provided the man with a formal warning in relation to self-isolation. 

About 8pm on Friday 10 July 2020, police attended the man’s home and again found he was not home. 

About 4.20pm yesterday (Sunday 12 July 2020), police attended the man’s home and issued him with a $1000 Penalty Infringement Notice (PIN) for failing to comply with a direction under Section 7 of the Public Health Act 2010 (NSW). 

Since Operation Border Closure started at midnight on Wednesday 8 July 2020, police have facilitated the movement of tens of thousands of vehicles crossing the border from Victoria into NSW. 

To date, more than 300 people have been issued with directions to self-isolate as they enter NSW.....

A Short Explanation Of 'The Dismissal': Queen Elizabeth II and her lawful representative in Australia knowingly betrayed the people of this nation

The Age, 14 July 2020:

The Palace letters have proved to be every bit the bombshell they promised to be, and neither the Queen nor Sir John Kerr emerge unscathed. In his vast, increasingly frequent letters and telegrams to the Queen, the governor-general provides the most extraordinary vice-regal commentary on the decisions and actions of a prime minister and elected government imaginable. They provide a remarkable window onto Kerr’s views of Gough Whitlam, his planning, his options, his fears, and his eventual decision to dismiss the government. 

Letter by letter, particularly from late August 1975, months before supply had even been blocked in the Senate, Kerr draws the Queen into his planning regarding the crisis unfolding in the Senate, including the possible use of the reserve powers. Kerr details options and strategies, which are then discussed with the Queen through her private secretary, Sir Martin Charteris.

These include Kerr’s concern that prime minister Whitlam might recall him as governor-general, which he discussed with Prince Charles in September 1975 in a profound breach of political and constitutional practice. Charteris writes: "Prince Charles told me a good deal of his conversation with you and in particular that you had spoken of the possibility of the Prime Minister advising The Queen to terminate your Commission with the object, presumably, of replacing you with someone more amenable to his wishes. If such an approach was made you may be sure that The Queen would take most unkindly to it." 

It is a defining feature of a constitutional monarchy that the monarch "has to remain strictly neutral with respect to political matters", that the Queen must remain above politics at all times. Hundreds of pages challenge that claimed political disinterest, as Kerr relays conversations, meetings, and events to Buckingham Palace in the context of the most intensely political situation unfolding in Australia.

On September 30, "I had an interesting conversation yesterday with the Prime Minister about the current political and constitutional problems"; on September 20, "The Prime Minister and I had a detailed and important talk … and he has told me privately that he has another tactic in mind." What is pivotal throughout these letters is that the Queen, through her private secretary, engages with Kerr on these inherently political matters, even advising him on the powers of the Senate and, critically, the existence and potential use of the contentious and contested reserve powers to dismiss the government. 

Let’s take just one example, from the first glimpse at the letters, Charteris’ letter to Kerr of November 4, 1975, on the reserve powers: "Those powers do exist … but to use them is a heavy responsibility … I think you are playing the 'Vice-Regal' hand with skill and wisdom. Your interest in the situation has been demonstrated, and so has your impartiality. The fact that you have the powers is recognised, but it is also clear that you will only use them in the last resort and then only for constitutional and not for political reasons."

Charteris followed this up the next day with the clearest suggestion that the reserve powers may need to be used which, Charteris wrote, "places you in what is, perhaps, an unenviable, but is certainly a very honourable position. If you do, as you will, what the constitution dictates, you cannot possible [sic] do the Monarchy any avoidable harm. The chances are you will do it good". He ends with a reference to the "discretion left to a governor-general". These critical letters provided Kerr with the advice and comfort he needed to feel secure that the Palace accepted the existence and potential use of the reserve powers as he moved towards dismissing the Whitlam government......

Read the full article by inaugural Distinguished Whitlam Fellow with the Whitlam Institute at Western Sydney University, Emeritus Professor at Monash University, and former Director of the National Centre for Australian Studies at Monash University, Jenny Hocking.

Read all the 'Palace Letters' at https://www.naa.gov.au/explore-collection/kerr-palace-letters.