Showing posts sorted by relevance for query gleeson. Sort by date Show all posts
Showing posts sorted by relevance for query gleeson. Sort by date Show all posts

Tuesday, 29 November 2016

The real reason Australian Attorney-General George Brandis was determined to oust Commonwealth Solicitor-General Justin Gleeson


Finally the truth is out concerning the extraordinary behaviour of Attorney-General and Liberal Senator for Queensland, George Brandis.

Exhibit A surfaced as the principal reason Brandis wanted to force the then Solicitor-General of the Commonwealth of Australia, Justin Gleeson, from office…..

HIGH COURT OF AUSTRALIA, judgement summary, 16 May 2016:

BELL GROUP N.V. (IN LIQUIDATION) v WESTERN AUSTRALIA;
W.A. GLENDINNING & ASSOCIATES PTY LTD v WESTERN AUSTRALIA;
MARANOA TRANSPORT PTY LTD (IN LIQ) v WESTERN AUSTRALIA
[2016] HCA 21

Today the High Court unanimously held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) ("the Bell Act") is invalid in its entirety by the operation of s 109 of the Constitution because of inconsistency between its provisions and provisions of the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953 (Cth) (collectively, "the Tax Acts").

In November 2015, the Parliament of Western Australia enacted the Bell Act "to provide a legislative framework for the dissolution, and administration of the property, of The Bell Group Ltd ACN 008 666 993 (In Liquidation) and certain of its subsidiaries and for related purposes". The Bell Act was enacted to deal with a list of companies, each defined in the Bell Act as a "WA Bell Company" and each either in liquidation or deregistered. The Commonwealth is a substantial creditor of a number of WA Bell Companies in respect of taxation liabilities.

The purported legal operation and practical effect of the Bell Act is that the State of Western Australia ("the State") collects, pools, and vests in a State authority, the property of each WA Bell Company. The State then determines in its "absolute discretion" who is paid an amount or has property transferred to or vested in them out of the pooled property (if anyone). To the extent that the State chooses not to distribute the pooled property of the WA Bell Companies, the surplus vests in the State.

In each proceeding, the parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law include whether the Bell Act (or certain provisions of the Bell Act) is invalid by the operation of s 109 of the Constitution because of inconsistency with one or more provisions of the Tax Acts.

By majority, the High Court held that the Bell Act purports to create a scheme under which Commonwealth tax debts are stripped of the characteristics ascribed to them by the Tax Acts as to their existence, their quantification, their enforceability and their recovery. The rights and obligations which arose and had accrued to the Commonwealth as a creditor of the WA Bell Companies in liquidation, and to the Commissioner of Taxation, under a law of the Commonwealth prior to the commencement of the Bell Act are altered, impaired or detracted from by the Bell Act. That alteration or impairment of, or detraction from, the Tax Acts engages s 109 of the Constitution which operates to render the offending provisions of the Bell Act invalid. It was not possible to read down offending aspects of the Bell Act nor were the offending provisions able to be severed from the rest of the Bell Act. The Court held, therefore, that the Bell Act is invalid in its entirety. That being so, the Court found it unnecessary to consider other challenges to the validity of the Bell Act.

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.

And the mainstream media filled in the blanks in what is looking increasingly like an abuse of ministerial power on the part of the Attorney-General as well as a behind the scenes attempt to flout the Australian Constitution……

Yahoo! News, 25 November 2016:

A secret political deal between the Federal and State governments to let WA claw back $1 billion from Alan Bond's collapsed Bell Group was torpedoed by submissions made by Solicitor-General Justin Gleeson on behalf of the Australian Tax Office.

It is understood Mr Gleeson's submissions were critical in events that led to his resignation last month.

A senior Federal source told The West Australian that Attorney-General George Brandis verbally instructed Mr Gleeson earlier this year, as counsel for the A-G, not to run a particular argument in the High Court when a Bell creditor and its liquidator challenged the constitutionality of WA's attempt to take control of the group's $1.8 billion.

The West Australian understands Senator Brandis told Mr Gleeson an understanding had been reached between the Federal and WA governments to finally end more than two decades of litigation stemming from the group's collapse.

The ATO, which at nearly $300 million was one of Bell's four main creditors, separately approached the Solicitor-General to also act as its counsel and to run the argument for it.
Despite Senator Brandis' instruction, the ATO's written submission to the High Court — authored by Mr Gleeson — used the precise legal argument that the Attorney-General had assured his State counterpart Michael Mischin would be avoided by the Commonwealth.

"Mr Gleeson advanced an argument that caused the WA Government to think the Commonwealth had acted in bad faith," the senior Federal source said.

Mr Mischin was infuriated by the ATO's move, not only because its argument in the High Court was on a basis the Commonwealth had promised not to advance, but because he thought the tone of the agency's submission professed WA's ignorance of the Constitution.

In fact, the Commonwealth was kept well abreast of the State's intentions, with WA openly discussing the constitutional issues concerning its legislation and even sharing early drafts.
WA Treasurer Mike Nahan had received personal and written assurances early last year from then Federal counterpart Joe Hockey that the Commonwealth would not oppose the State Governments move.

On the weekend of April 2-3, just two days before the High Court hearing, Mr Mischin repeatedly called Senator Brandis and Assistant Treasurer Kelly O'Dwyer to seek an agreement that would avert Commonwealth involvement in the case — but to no avail.

The ATO was heard in the High Court case with its arguments — that the WA laws were inconsistent with Federal tax law — used to effectively "kill" the State's legislation.

On April 12, five days after the High Court had heard the case, Mr Mischin and Senator Brandis had what witnesses say was a "blazing row" when the two attorneys-general met in Perth. Mr Mischin told Senator Brandis he was unhappy that the Commonwealth intervened in the case on the grounds pursued in court.

On May 16, the High Court ruled 7-0 that the legislation, which sought to elevate the Insurance Commission of WA to the front of the queue of creditors, was "invalid in its entirety".
It led to Senator Brandis believing Mr Gleeson, as the second law officer, had disobeyed instructions from him, the first law officer, the Federal source said.

On May 4, Senator Brandis issued a directive that any department or agency seeking legal opinion from the Solicitor-General must first get Attorney-General approval…..

…..Senator Brandis believed Mr Gleeson should have acted as the Government's barrister, acting within the confines of the Attorney-General's instructions, Mr Gleeson appears to have seen his role differently.

During a recent parliamentary inquiry, Mr Gleeson said the Solicitor-General was both independent and a key element of the government.

"The Solicitor-General is independent. The independence is protected by the statute," Mr Gleeson said.

"The Solicitor-General has an important role in assisting ... the Government to uphold the rule of law for the benefit of the whole community."

In his written submission to the inquiry, Mr Gleeson said it was "critically important" that those seeking advice from the Solicitor-General do so in an "uninhibited fashion and in respect of questions framed by them and not by others".

Mr Gleeson's view was supported by previous solicitors-general Dr Gavan Griffith QC and Sir Anthony Mason, a former High Court chief justice, and upheld by the majority report of the parliamentary inquiry. At a Senate estimates hearing in October, the tax office second commissioner Andrew Mills said it would have been strange if the ATO had failed to be part of the High Court action.

"In fact, the basis on which the litigation was being undertaken by that creditor relied on parts of the Tax Act, so it would seem strange for us not to be involved," he said.

Mr Mills said that when the ATO became aware of the details of the legislation, it believed it had a responsibility to see if the laws were constitutional and to "protect the position of the Commonwealth".

News.com.au, 25 November 2016:

WA Attorney-General Michael Mischin has denied he had a deal with his federal counterpart to keep the Commonwealth out of the state government's bid to claw back $1 billion from Alan Bond's collapsed Bell Group.

His denial comes despite WA Treasurer Mike Nahan telling parliament the day after the High Court shot down the Bell Group legislation in May that the state government thought it had a deal.

It's time for Prime Minister Malcolm Turnbull to retire this Abbott-era attorney-general to the back bench, from where he can be constrained and so do less harm to the nation.

BACKGROUND

Financial Review, 16 June 2016:

At issue is a move by Senator Brandis – a few days before the election was called – to stop Solicitor-General Justin Gleeson, SC, from providing advice to any arm of the government without Senator Brandis giving him approval.

The advice of a solicitor-general can be crucial in politically contentious issues faced by the government – such as on asylum seeker policy. But it  also provides advice directly to a range of government entities from the office of the Governor-General to the Australian Taxation Office.

On May 4, Senator Brandis's office sent Mr Gleeson a letter outlining directions that were tabled in the Senate that day, with immediate effect, and which ruled that no one in government, including the Prime Minister, could seek the Solicitor-General's advice without getting permission from Senator Brandis.

What made the direction more disturbing for the legal bureaucracy of Canberra was that a range of officials – including the Office of Legal Services Coordination in the Attorney-General's Department -  were instructed not to consult the Solicitor-General or his office, or to notify him of the change.

The Office of Parliamentary Counsel – which has the job of putting the government's legal wishes into legislative form – raised concerns with Senator Brandis's department that neither Mr Gleeson nor his office had been consulted about the move and this might not be consistent with the Law Officers Act 1964 which sets out the Solicitor-General's responsibilities.

What was more, it emerged that officials within the Australian Government Solicitor's office had also not been consulted and had concerns about how the new directive might work in practice.

The Australian Financial Review has been briefed on an extensive record of correspondence, meeting minutes and reports about the behind-the-scenes meetings about the directive..
Senator Brandis told the parliament in the explanatory memorandum accompanying the new restrictions that Mr Gleeson had been consulted about the new guidelines.

But it has now emerged that Mr Gleeson wrote a letter to Senator Brandis on May 11 – via an email to two of Senator Brandis's advisers and to a departmental liaison officer - that was widely copied within the bureaucracy noting that he did not accept that he had been consulted, as Senator Brandis had asserted.

The letter effectively meant the Solicitor-General was warning the Attorney-General that he had misled parliament……

Legal sources say the move comes at a time when it has also become the practice that senior counsel in the Attorney-General's department has been working to an instruction that advice should only be provided to the Attorney-General's office in draft form, so it can be asserted advice has never been formally received – an extension of a tendency by Senator Brandis to intervene in the independence of agencies within his portfolio.

There are plenty of theories about why the relationship between the two men is frosty, ranging from Mr Gleeson's advice to the ATO on a High Court challenge to West Australian Government legislation, to altercations over same sex marriage and citizenship laws, to advice over the proroguing of parliament.

The High Court case involved Barnett government legislation that would have allowed a government agency to take control of the assets of the Bell Group (in liquidation).

In a submission in the case lodged on behalf of the ATO (a Bell creditor for $300 million in unpaid taxes), Mr Gleeson argued the drafter of the state's Bell Group seizure laws either forgot about federal tax law or "decided to proceed blithely in disregard to its existence".

The High Court overturned the WA legislation on May 16.

Friday, 7 October 2016

Australia's two most senior legal officers square off


Attorney-General George Brandis is making the news again for all the wrong reasons.

The Sydney Morning Herald, 5 October 2016:

Attorney-General George Brandis is facing calls to resign after the government's top legal adviser accused him of misleading Parliament, in a dramatic escalation of a toxic row between the country's two most senior legal officers.


Documents released at a Senate inquiry on Wednesday suggest same-sex marriage laws and a proposal to strip dual nationals involved in terrorism of Australian citizenship were flashpoints in a simmering feud between the two men.

Mr Gleeson, the government's top legal adviser, said in an explosive submission to the inquiry that he had not been consulted about a change requiring all ministers – including the prime minister – to obtain the written approval of Senator Brandis before seeking his advice.

Senator Brandis claimed in Parliament Mr Gleeson was consulted about the legally binding change, made days before the election.

Mr Gleeson said he had taken steps to have the change "withdrawn and for a proper consultation process to commence" but they had "proved futile".

"Had I been consulted ... I would have made a submission to the Attorney-General, in the strongest terms, that [the change] should not be made," Mr Gleeson said.

Legal experts have expressed concern the change is a power grab that restricts the independence of the Solicitor-General.

Mr Gleeson said there had been times since his appointment in 2013 when he had been asked directly by "persons, such as a Prime Minister or Governor-General" to provide confidential advice and it was "critically important" this should continue.

The Sydney Morning Herald, 5 October 2016:

Mr Gleeson wrote to Senator Brandis in November 2015, raising concerns the Australian Government Solicitor (AGS) rather than his office was consulted on a marriage equality proposal that was "under active consideration by the government".

Mr Gleeson also said he was not consulted about significant changes to a proposal to strip dual nationals involved in terrorism of Australian citizenship. Senator Brandis later made public statements that Mr Gleeson had advised there was a "good prospect" the law would withstand a High Court challenge….

The Guardian, 5 October 2016:

So what did George Brandis tell the Senate? He tabled an unequivocal statement that he had consulted the solicitor general in relation to the Legal Services Direction:

“Section 55ZF of the Judiciary Act 1903 empowers the attorney general to issue directions, which are to apply generally to Commonwealth legal work, or are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. As the Direction relates to the process for referring a question of law to the solicitor general, the attorney general has consulted the solicitor general.”

A document obtained under Freedom of Information by The Guardian newspaper demonstrates that the Attorney-General has a rather odd notion of what consultation entails.

This letter clearly highlights the fact that there had been no prior consultation on changes to Legal Services Direction 2005:

Unfortunately for Senator Brandis the current Senate Standing Committee on Legal and Constitutional Affairs' inquiry into the Nature and scope of the consultations prior to the making of the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 allows the Solicitor-General of the Commonwealth to give a full and frank explanation of the circumstances surrounding the Attorney-General's blatant power grab.

Something Justin Gleeson SC avails himself of in Submission No. 3 to the inquiry:




Evidence given at the 5 October 2016 inquiry hearing supports the contention that the Solicitor-General was only consulted about a guidance document (now superseded) not the directions document.

It  would appear that the Attorney-General has indeed knowingly mislead the Australian Parliament.

A position that sections of the mainstream media support.


Crikey.com.au, 6 October 2016:

George Brandis has blatantly misled parliament and has to resign. And his reluctance to use a better lawyer than himself for advice is behind the debacle……

Brandis has clearly, plainly misled Parliament, and on a very important issue. There’s no wriggle room or get-out clause for the provincial lawyer from Brisbane. He’s got to go.

As to a motive imputed to Brandis by the Crikey journalist - I suspect that the Solicitor-General holds a similar view although more diplomatically worded here:



Tuesday, 25 October 2016

Commonwealth Solicitor-General Gleeson decides he has had enough of Attorney-General Brandis' unedifying antics and resigns


One for the history books.

A forceful letter of resignation from the second law office of the Commonwealth of Australia tendered at the end of an unedifying power grab by Attorney-General and Liberal Senator for Queensland George Brandis, who is considered by many to be one of the less illustrious members of the legal profession. 

This letter was delivered on the same day that the legal profession is:

Venue: Banco Court, Level 13, Law Courts Building, Queens Square, Sydney
Organisation: Gilbert + Tobin Centre of Public Law and the Australian Association of Constitutional Law
Time: 6.00 pm - 7.30 pm

Date: Mon, 2016-10-24

This event celebrates 100 years since the passage of the 1916 Act.
Opening remarks will be given by Sir Anthony Mason AC KBE QC, former Chief Justice of the High Court of Australia and Commonwealth Solicitor-General, 1964-1969. A panel of the former Commonwealth Solicitors-General will discuss and debate the history, legal position and practice of the office.
The panel will be chaired by Dr Gabrielle Appleby, Associate Professor UNSW Law, Co-Director of the Judiciary Project, Gilbert + Tobin Centre of Public Law.

Justin Gleeson SC's resignation takes effect on 7 November 2016.

Resignation letter sent to Australian Attorney-General George Brandis by Solicitor-General of the Commonwea... by clarencegirl on Scribd

https://www.scribd.com/document/328676245/Resignation-letter-sent-to-Australian-Attorney-General-George-Brandis-by-Solicitor-General-of-the-Commonwealth-Justin-Gleeson-SC

Friday, 20 June 2008

How we rate our Aussie politicians

Readers Digest has its fourth annual Most Trusted Poll up online.

Have a look at who rated below 50 - every politician on the 100 well-known people list and a few surprises.
I can understand Sol Trujillo an also ran at 95, Pell logged in at 75 and Keelty coming in at only 52, but Gleeson at 54? Is our High Court considered the realm of used car salesmen now?

51. Naomi Watts - Actor
52. Jessica Rowe - TV newsreader
52. Mick Keelty - Commissioner, Australian Federal Police
54. Andrew Symonds - Member of Australian cricket team
54. Murray Gleeson - Chief Justice of the High Court of Australia
56. Mick Fanning - World Champion surfer
57. Natalie Bassingthwaite - Actor, musician, TV host, So you think you can dance
58. Bert Newton - TV host
58. Karl Stefanovic - TV host, Today
60. Kerri-Anne Kennerley - TV Host, Mornings with Kerri-Anne
61. Bill Granger - Chef, TV Host and Author
62. Kevin Rudd - Prime Minister
63. Chris Lilley - Writer and comedian, Summer Heights High
64. Mel Gibson - Actor and director
65. Keith Urban - Musician
66. Jana Rawlinson (nee Pittman) - Olympic runner
67. Maxine McKew - Former journalist, Federal MP
67. Russell Crowe - Actor, businessman
69. Julia Gillard - Federal MP, Deputy Prime Minister
70. Greg Norman - Golfer
71. Lleyton Hewitt - Tennis player
72. Noel Pearson - Lawyer and activist
73. Therese Rein - Wife of Prime Minister, businesswoman

74. Janette Howard - Wife of former Prime Minister
75. Cardinal George Pell - Catholic Archbishop of Sydney
76. Peter Garrett - Federal MP, ex Midnight Oil musician
77. Lara Bingle - Model
78. Andrew Johns - Former rugby league player
79. The Chaser Boys - Comedians and satirists
80. Alan Jones - Radio presenter
81. Bob Brown - Federal senator, leader of the Australian Greens
82. Peter Holmes a Court - Businessman, owner South Sydney Rugby League Club
83. Glenn Stevens - Governor, Reserve Bank of Australia
84. Lachlan Murdoch - Businessman
85. Bob Hawke - Former Prime Minister
86. Rupert Murdoch - Media mogul
87. James Packer - Businessman
88. John Howard - Prime Minister
89. Kyle Sandilands - Radio personality, TV judge Australian Idol, TV Host, Big Brother
90. Malcolm Turnbull - Federal MP, Shadow Treasurer
91. Paul Keating - Former Prime Minister
92. Peter Costello - Federal MP, former treasurer
93. Brendan Nelson - Leader of the Opposition
94. Tony Abbott - Federal MP
95. Shane Warne - Former cricketer
95. Sol Trujillo - Telstra CEO
97. David Hicks - Confessed terrorism supporter

98. Ben Cousins - Suspended AFL player
99. Wayne Carey - Retired AFL player
100. Rodney Adler - Former director of telecommunications company One. Tel and insurance company HIH

Thursday, 25 June 2020

When a powerful 77 year-old legal figure is finally revealed as a serial sexual harasser in the workplace


The Sydney Morning Herald,  22 June 2020:

Justice Dyson Heydon arrives at the Royal Commission into trade unions in 2015 in Sydney,CREDIT: BEN RUSHTON



Former High Court Justice Dyson Heydon, one of the nation’s pre-eminent legal minds, sexually harassed six young female associates, an independent inquiry by the court has found.
Herald investigation has also uncovered further allegations from senior legal figures of predatory behaviour by Mr Heydon, including a judge who claims that he indecently assaulted her. The women claim that Mr Heydon’s status as one of the most powerful men in the country protected him from being held to account for his actions.
The High Court inquiry was prompted by two of the judge’s former associates notifying the Chief Justice Susan Kiefel in March 2019 that they had been sexually harassed by Mr Heydon.
“We are ashamed that this could have happened at the High Court of Australia,” said Chief Justice Kiefel in a statement. She confirmed that the lengthy investigation found that “the Honourable Dyson Heydon, AC, QC” harassed six former staff members.

“The findings are of extreme concern to me, my fellow justices, our chief executive and the staff of the court,” said the Chief Justice.
Chief Justice Kiefel has personally apologised to the six women, five of them Mr Heydon’s associates, saying “their accounts of their experiences at the time have been believed”.
Dyson Heydon was on the High Court bench from 2003-13 and in 2014 was appointed by then Prime Minister Tony Abbott to run the royal commission into trade union governance and corruption.
Mr Heydon denied the claims via his lawyers Speed and Stracey who issued a statement.....
“Dyson Heydon was one of the most powerful men in the country,” said Josh Bornstein, the women’s lawyer and a principal with law firm Maurice Blackburn in Melbourne. “As the independent investigation makes clear, he is also a sex pest. At the same time he was dispensing justice in the highest court in Australia’s legal system, he was [engaged in] sexual harassment.”
Vivienne Thom, the former Inspector-General of Intelligence and Security, interviewed a dozen witnesses, including five former associates. Dr Thom’s report found that the evidence “demonstrates a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment” which included unwelcome touching, attempting to kiss the women and taking them into his bedroom.
Herald investigation can reveal that Mr Heydon’s predatory behaviour was an “open secret” in legal and judicial circles. Not only did he prey on his young associates during his decade on the High Court until his mandatory retirement at 70 in 2013, other females in the profession suffered at his hands.....
Read the full article here.

The Guardian, 22 June 2020:

“At the time that this sexual harassment occurred, Dyson Heydon was in his 60s, a conservative judge, a prominent Catholic and a married man,” Bornstein said. 

“The women he employed were in their early 20s and often straight out of university. He was one of the most powerful men in the country, who could make or break their future careers in the law. 

Bornstein said there was an “extreme power imbalance” between Heydon and the young women. 

There was no clear avenue for women to complain about such conduct, he said. 

“The fear of his power and influence meant that the women did not feel able to come forward until recently,” he said.

STATEMENT BY THE HON SUSAN MEFEL AC,CHIEF JUSTICE OF THE HIGH COURT OF AUSTRALIA (PDF)
UPDATE 

The Sydney Morning Herald, 24 June 2020: 

The Herald and The Age can now reveal claims about his behaviour extend to Britain where he is the subject of allegations, including inappropriate touching. 

Following his mandatory retirement from the High Court in 2013 aged 70, Dyson Heydon sought out a teaching position at the prestigious English university, where he had studied on a Rhodes scholarship in 1964. 

His three-year appointment at the Faculty of Law was greeted with excitement within the university, according to documents released under freedom of information laws...... 

Mr Heydon's lectures were scheduled to occur early each year from 2014 to 2016 inclusive. 

However, allegations about his behaviour would cast a dark shadow over Mr Heydon’s tenure. 

"My first introduction to him was that all the Australian law students at Oxford called him 'Dirty Dyson', that seemed to be the moniker he had widely," one former student said. 

One of Mr Heydon’s postgraduate students, whom the Herald and The Age have chosen not to name, was so upset and angry about Mr Heydon’s harassment of her in the Bodleian Library, that she complained to the university. 

The university decided not to renew Mr Heydon’s visiting professorship. In heavily redacted documents released to the Herald and The Age under FOI, the reason for the university's decision was not apparent. 

"The Personnel Committee has already taken a decision that Dyson Heydon should not be renewed," stated Oxford Law Faculty Dean Anne Davies in an email dated June 1, 2016. "We have written to tell him this."

The Sydney Morning Herald, 24 June 2020:

The ACT's Director of Public Prosecutions has recommended the Australian Federal Police investigate former High Court justice Dyson Heydon over allegations of sexual harassment following a damning investigation commissioned by the court.....

The Sydney Morning Herald, 25 June 2020:

Ms Coutts told the investigator she was worried that Justice Heydon "who was then a large and strong man" may try to harass her friend again. 

Ms Coutts told the investigator called in to conduct the independent inquiry, Dr Vivienne Thom, that she informed Justice McHugh of his colleague's alleged behaviour. 

According to the report, Justice McHugh allegedly replied: "Well Sharona, it's not easy to shock me these days but you have just truly shocked me." 

Ms Coutts said the following day, after further discussions with Justice McHugh, that he left the chambers, returning later to tell her: "I've told the Chief. It's his court. He has to deal with this." 

It is not known what steps were taken by then Chief Justice Murray Gleeson about Justice Heydon's behaviour. Mr McHugh declined to participate in the investigation. When contacted by the Herald and The Age, Mr Gleeson, now retired from the bench, said: "I am unwilling to comment". Mr McHugh, also retired from the bench, did not respond to emails and phone messages..... 

A group of the most senior female barristers in NSW have lodged a complaint with the Office of the Legal Services Commissioner, following allegations of sexual harassment and indecent assault against Mr Heydon. The 14 silks took their action following the revelation in the Herald that a High Court investigation found Mr Heydon had sexually harassed six former associates of the court. None of the female barristers making the complaint allege they themselves were the subject of inappropriate behaviour by Mr Heydon. 

The statutory body, which acts as the professional watchdog, has powers to investigate Mr Heydon's alleged misconduct. It can determine whether Mr Heydon is a "fit and proper person" under the official admission rules for the legal profession. It can also take disciplinary action against a barrister, or commence disciplinary proceedings in the NSW Civil and Administrative Tribunal. In the most serious cases, a practitioner can be disbarred. 

Complaints to the Office of the Legal Services Commissioner are confidential. 

The move came as the NSW Bar Association president Tim Game SC released a strongly-worded message warning "barristers who engage in sexual harassment can be investigated and disciplined for professional misconduct".

Thursday, 31 January 2019

Australian High Court rejects NSW Berejiklian Government's 2018 electoral funding reforms


In May 2018 the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental groups, and churches at a maximum of $500,000. 

The Electoral Funding Act 2018 No 20 came into force on 1 July 2018.


Australian Financial Review, 29 January 2019:

In July 2018, the Berejiklian Government reduced the amount that unions and other third parties could spend in the six months before an election from $1.05 million to $500,000. A political party and it candidates, however, can spend up to $22.6 million if it stands candidates in all 93 seats.

The High Court said NSW proved that aiming to "prevent the drowning out of voices in the political process by the distorting influence of money" was a legitimate purpose.

However, it said "the reduction in the cap applicable to third-party campaigners was not demonstrated to be reasonably necessary to achieve that purpose".

The court did not accept NSW's argument that $500,000 was still a substantial sum that would allow third parties to "reasonably present their case".

The lead judgement of Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said "no enquiry as to what in fact is necessary to enable third-party campaigners reasonably to communicate their messages appears to have been undertaken".

The reforms also sought to ban third parties from acting "in concert" by pooling money into multi-million-dollar campaigns, such as the "Stop the Sell-off" campaign against energy privatisation for the 2015 poll. Those who breach the act would have faced up to 10 years' jail.

Former Commonwealth solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the five unions which also signed up for the challenge.

BACKGROUND

HIGH COURT OF AUSTRALIA, Judgment Summary, 18 December 2018:

UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2013] HCA 58

Today the High Court unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because they impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution.

Section 96D of the EFED Act prohibits the making of a political donation to a political party, elected member, group, candidate or third-party campaigner, unless the donor is an individual enrolled on the electoral roll for State, federal or local government elections. The EFED Act also caps the total expenditure that political parties, candidates and third-party campaigners can incur for political advertising and related election material. For the purposes of this cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral communication by a political party and by any affiliated organisation of that party. An "affiliated organisation" of a party is defined as a body or organisation "that is authorised under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both)".

Each of the plaintiffs intends to make political donations to the Australian Labor Party, the Australian Labor Party (NSW Branch) or other entities, and to incur electoral communication expenditure within the meaning of the EFED Act. The second, third and sixth plaintiffs are authorised to appoint delegates to the annual conference of the Australian Labor Party (NSW Branch) and to participate in the pre-selection of that party's candidates for State elections. A special case stated questions of law for determination by the High Court.

The High Court unanimously held that ss 96D and 95G(6) burdened the implied freedom of communication on governmental and political matters. The Court held that political communication at a State level may have a federal dimension. The Court accepted that the EFED Act had general anti-corruption purposes. However, the Court held that the impugned provisions were not connected to those purposes or any other legitimate end.

· This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons

Sunday, 23 July 2017

Aboriginal Australia seeks more than the symbolic recognition of first peoples status on offer from the Liberal-Nationals Federal Government


“The Australian story began long before the arrival of the First Fleet on 26 January 1788. We Australians all know this. We have always known this.”


Recommendations

The Council recommends:
  1. That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum.

In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament.

In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society.

The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention.

The Council further recommends:
  1. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation.

In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.


Pat Anderson AO
Mark Leibler AC
Megan Davis
Andrew Demetriou
Natasha Stott Despoja AM
Murray Gleeson AC
Tanya Hosch
Kristina Keneally
Jane McAloon
Noel Pearson
Michael Rose AM
Amanda Vanstone
Dalassa Yorkston
Galarrwuy Yunupingu AM

The Australian, 18 July 2017:

Two indigenous Labor MPs have expressed doubts about the Referendum Council’s proposal for indigenous constitutional recognition, saying the councils’ final report, delivered yesterday, does not provide a clear line of sight to constitutional change.

Malcolm Turnbull yesterday cautiously backed what he called “a very big new idea” put forward by the Referendum Council he and Bill Shorten appointed 18 months ago, namely their sole recommendation of a special indigenous advisory body to the parliament.

But WA Labor Senator Pat Dodson said the recommendation had surprised some people, while NSW Labor MP Linda Burney said the sole recommendation was “limiting”, and most Australians would be “shocked” to learn that it has ruled out addressing race powers in the constitution.

Prime Minister Turnbull yesterday promised to consider the Referendum Council’s proposal, but indicated he was cautious about putting it to a national vote.

“We do not want to embark in some sort of exercise of heroic failure. I have some experience in trying to change the constitution and know better than most how hard it is.”

Senator Dodson said he wasn’t sure that progress is being made on the recognition of indigenous Australians.

“Unfortunately I think we’re going in circles a bit at the moment,” he told 7.30.

“I don’t think we’ve got a clear line of sight as to where any constitutional change whether it’s going to take place or not. Certainly on our side of politics we’re open to that. I’m not sure whether the government side is quite open as we are to the proposition.”

UNSW Dean of Law George Williams said a strong process would be needed to convince the Australian electorate that the Referendum Council’s proposal is worth voting for.

The Guardian, 18 July 2017:

These powers, s.51xxvi, were inserted into the constitution as part of the 1967 referendum and give the commonwealth power to make laws for “the people of any race for whom it is deemed necessary to make special laws”.

That allowed for the construction of laws such as native title and Aboriginal heritage laws but it also allowed the federal government to make discriminatory laws.
Burney said while the idea of an Indigenous voice to parliament was huge and important, it was limiting to consider it as the only option.

“I think that is very limiting,” Burney told the ABC. “I think that is more of a minimal approach when ... they don’t want us to address the issues of the race powers and recognition of first peoples in the constitution.

“I think the Australian community would be shocked to think that we are not going to deal with the archaic race powers in the constitution but that is what the Referendum Council is instructing the parliament.”

Burney underlined that it was unclear what the Indigenous voice would do, its structure or how people would be elected. 

She said the Coalition and Labor needed to consider the report. Labor’s Indigenous caucus meets on Wednesday. She warned that any idea needed to be passed in the parliament and the idea of enshrining a national body would be a “challenge for some people”.

Sky News, 20 July 2017:

Indigenous Liberal MP Ken Wyatt has expressed disappointment at the decision to abandon the push for constitutional recognition, saying the timeline for a referendum has now been pushed back to beyond this term of government.

Notes

(xxvi)  the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

Government of territories
                   The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.