Review of the Four Major Banks (First Report) published 24 November 2016

House of Representatives Standing Committee Review of the Four Major Banks (First Report), November 2016, opening lines of Chair’s forward:

Banking regulation should have two key goals: promoting financial stability and achieving strong outcomes for consumers. Financial stability is critical – but so is ensuring that consumers get a fair deal from the banking sector.

Due to Australia’s strong regulatory framework and the banking sector’s prudent management of financial risk, no Australian bank regulated by the Australian Prudential Regulation Authority (APRA) has ever failed. We need only consider the economic impact of bank failures in other nations to understand the importance of a stable banking system.

However, while they have remained financially strong, Australia’s major banks have let Australians down too frequently in too many other ways.

Australians turn to banks for assistance when making some of the most important decisions and facing some of the most serious challenges of their lives: borrowing to buy their first home; investing to support their retirement; and, in some cases, accessing insurance policies that they had hoped they would never need.

Australians should be able to trust that their bank will act in their best interests when they turn to them for help. It is clear that in some cases this has not happened….

Financial Review, graphic, 24 November 2016:

America begins to gird for battle against Trump's ideological excesses - Part 2

STATEMENT, 15 November 2016:

As scholars of Jewish history, we are acutely attuned to the fragility of democracies and the consequences for minorities when democracies fail to live up to their highest principles.  The United States has a fraught history with respect to Native Americans, African Americans and other ethnic and religious minorities.  But this country was founded on ideals of liberty and justice and has made slow, often painful progress to achieve them by righting historic wrongs and creating equal rights and opportunities for all.  No group has been more fortunate in benefiting from this progress than American Jews.  Excluded by anti-Semitism from many professions and social organizations before the Second World War, Jews in the postwar period became part of the American majority, flourishing economically and politically and accepted socially.  There are now virtually no corners of American life to which Jews cannot gain entry.  But mindful of the long history of their oppression, Jews have often been at the forefront of the fight for the rights of others in this country.

In the wake of Donald Trump’s electoral victory, it is time to re-evaluate where the country stands. The election campaign was marked by unprecedented expressions of racial, ethnic, gender-based, and religious hatred, some coming from the candidate and some from his supporters, against Muslims, Latinos, women, and others.  In the days since the election, there have been numerous attacks on immigrant groups, some of which likely drew inspiration from the elevation of Mr. Trump to the presidency of the United States.

Hostility to immigrants and refugees strikes particularly close to home for us as historians of the Jews.  As an immigrant people, Jews have experienced the pain of discrimination and exclusion, including by this country in the dire years of the 1930s. Our reading of the past impels us to resist any attempts to place a vulnerable group in the crosshairs of nativist racism.  It is our duty to come to their aid and to resist the degradation of rights that Mr. Trump’s rhetoric has provoked.

However, it is not only in defense of others that we feel called to speak out.  We witnessed repeated anti-Semitic expressions and insinuations during the Trump campaign.  Much of this anti-Semitism was directed against journalists, either Jewish or with Jewish-sounding names.  The candidate himself refused to denounce—and even retweeted--language and images that struck us as manifestly anti-Semitic.  By not doing so, his campaign gave license to haters of Jews, who truck in conspiracy theories about world Jewish domination.

We condemn unequivocally those agitators who have ridden Trump’s coattails to propagate their toxic ideas about Jews. More broadly, we call on all fair-minded Americans to condemn unequivocally the hateful and discriminatory language and threats that have been directed by him and his supporters against Muslims, women, Latinos, African-Americans, disabled people, LGBT people and others. Hatred of one minority leads to hatred of all. Passivity and demoralization are luxuries we cannot afford. We stand ready to wage a struggle to defend the constitutional rights and liberties of all Americans. It is not too soon to begin mobilizing in solidarity.

Mika Ahuvia, University of Washington
Allan Amanik, Brooklyn College of CUNY
Karen Auerbach, Brandeis University
Leora Auslander, University of Chicago
Eugene M. Avrutin, University of Illinois

And 193 more signatories

***********

Jonathan Greenblatt, director of the Anti-Defamation League (ADL)

              ***********

You Do Not Represent Us: An Open Letter to Donald Trump

UPDATE: click here to read about media coverage and impact of this open letter.

Dear Mr. Trump:

At the Wharton School of the University of Pennsylvania, students are taught to represent the highest levels of respect and integrity. We are taught to embrace humility and diversity. We can understand why, in seeking America’s highest office, you have used your degree from Wharton to promote and lend legitimacy to your candidacy.

As a candidate for President, and now as the presumptive GOP nominee, you have been afforded a transformative opportunity to be a leader on national and international stages and to make the Wharton community even prouder of our school and values.

However, we have been deeply disappointed in your candidacy.

We, proud students, alumni, and faculty of Wharton, are outraged that an affiliation with our school is being used to legitimize prejudice and intolerance. Although we do not aim to make any political endorsements with this letter, we do express our unequivocal stance against the xenophobia, sexism, racism, and other forms of bigotry that you have actively and implicitly endorsed in your campaign.

The Wharton community is a diverse community. We are immigrants and children of immigrants, people of color, Muslims, Jews, women, people living with or caring for those with disabilities, and members of the LGBTQ community. In other words, we represent the groups that you have repeatedly denigrated, as well as their steadfast friends, family, and allies.

We recognize that we are fortunate to be educated at Wharton, and we are committed to using our opportunity to make America and the world a better place — for everyone. We are dedicated to promoting inclusion not only because diversity and tolerance have been repeatedly proven to be valuable assets to any organization’s performance, but also because we believe in mutual respect and human dignity as deeply held values. Your insistence on exclusion and scapegoating would be bad for business and bad for the American economy. An intolerant America is a less productive, less innovative, and less competitive America.

We, the undersigned Wharton students, alumni, and faculty, unequivocally reject the use of your education at Wharton as a platform for promoting prejudice and intolerance. Your discriminatory statements are incompatible with the values that we are taught and we teach at Wharton, and we express our unwavering commitment to an open and inclusive American society.

Signed by 4,028 members of the Wharton community as of 6 November 2016. 

This letter reflects the personal views of its signatories only and is not affiliated with the Wharton School. The Wharton School takes no political position and does not comment on its students, alumni, or faculty.

Democratic Congresswoman for 5th District of Massachusetts Katherine Clark, media release, 17 November 2016:

Washington, D.C. -- Congresswoman Katherine Clark has introduced legislation to ensure that U.S. Presidents are required to resolve any conflicts of interest with regard to financial interests and official responsibilities. Current law prohibits federal office holders from engaging in government business when they stand to gain profit. The President and Vice President are currently exempt from this statute. 

Clark’s Presidential Accountability Act removes this exemption and requires the President and Vice President to place their assets in a certified blind trust or disclose to the Office of Government Ethics and the public when they make a decision that affects their personal finances. 

This issue has been elevated to greater importance as concerns of conflicts of interest have surfaced in the first week of the President-elect’s transition period. From the Trump Organization’s federal contract to operate the President-elect’s hotel in the Old Post Office Pavilion in Washington, D.C. to the scale of his debt to foreign banks, the President-elect’s business interests present an unprecedented level of conflict. Trump has also appointed his children to serve in leadership positions on both the President-elect’s transition team and his businesses. 

Clark’s Presidential Accountability Act prohibits the President from engaging in government responsibilities from which they or their families can benefit financially.

“The President of the United States has the power to affect how our tax dollars are spent, who the federal government does business with, and the integrity of America’s standing in a global economy,” said Clark. “Every recent president in modern history has taken steps to ensure his financial interests do not conflict with the needs of the American people. The American people need to be able to trust that the President’s decisions are based on the best interests of families at home, and not the President’s financial interests.”

Previous American presidents including Lyndon Johnson, Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama have all used some form of blind trust or placed their assets in an investment vehicle over which they had no control.

Full text of H.R. 6340 can be found here.

The Hill, 23 November 2016:

A number of Democratic Electoral College electors are planning to use their votes to undermine the election process in opposition to President-elect Donald Trump,

Politico is reporting.

Some electors are lobbying their Republican counterparts to vote for someone other than Trump in an attempt to deny him the 270 votes required to elect him, according to the news outlet.

They are also contemplating whether to cast their votes for someone other than Hillary Clinton, like Mitt Romney or Gov. John Kasich (R-Ohio).

With at least six electors already vowing to become "faithless," the defection could be the most significant since 1808, when six Democratic-Republican electors refused to vote for James Madison, choosing vice presidential candidate George Clinton instead.

The electors acknowledge that it is unlikely that they will be able to block Trump from gaining office, Politico reported, but they are optimistic that their effort will raise enough questions about the Electoral College to reform or abolish it.

"If it gets into the House, the controversy and the uncertainty that would immediately blow up into a political firestorm in the U.S. would cause enough people — my hope is — to look at the whole concept of the Electoral College," one of the electors told Politico.

It’s unclear how many, if any, Republicans have signed on to the effort.

Twenty-nine states legally require their electors to obey the results of the popular vote in their state.

The Washington Post, 25 November 2016:

An election recount will take place soon in Wisconsin, after former Green Party presidential candidate Jill Stein filed a petition Friday with the state’s Election Commission, the first of three states where she has promised to contest the election result.

The move from Stein, who raised millions since her Wednesday announcement that she would seek recounts of Donald Trump’s apparent election victories in Wisconsin, Pennsylvania and Michigan, came just 90 minutes before Wisconsin’s 5 p.m. Friday deadline to file a petition…..

Trump secured a total of 1,404,000 votes in Wisconsin, according to the commission; Clinton had 1,381,823.

In the end, Stein, who secured 31,006 votes in Wisconsin, was not the only presidential candidate to demand a recount. Roque “Rocky” De La Fuente, the Reform Party nominee who got 1,514 Wisconsin votes, also filed a recount petition, according to the state’s Election Commission.

To be on the safe side, the group of experts urged a recount — but it was Stein’s campaign that ended up demanding one, soliciting at first $2.5 million and later up to $7 million to fund the recounts. As of Friday evening, Stein’s campaign reported taking in over $5.25 million in recount-related donations — the most by a third-party candidate in history.

Wisconsin has the first deadline of the three states in question. If Stein’s campaign wishes to file recount petitions in the other states as promised, she must do so by Monday to meet Pennsylvania’s deadline, and Wednesday to meet the Nov. 30 deadline in Michigan.

In a statement, Wisconsin Elections Commission Administrator Michael Haas guessed that the cost and complexity of the recount would be in excess of the state’s last recount in 2011, which carried a price tag of more than $520,000. In that recount over a state Supreme Court seat, the commission had to recount 1.5 million votes — about half the 2.975 million ballot votes that were cast during the 2016 presidential election.

Jill Stein website as of 30 November 2016:

Congratulations on meeting the recount and legal costs for Wisconsin and Pennsylvania! Raising money to pay for the first two recounts so quickly is a miraculous feat and a tribute to the power of grassroots organizing.

Now that we have completed funding Wisconsin's recount (we filed on Friday) and fundraising for Pennsylvania's voter-initiated recount (due Monday), we will focus on raising the needed funds for Michigan's recount (due Wednesday). The breakdown of these costs is described below!

Iluka Development Application No. SUB2015/0034: "The Bob Jelly Gazette" decides it always knew it would happen

In March 2016 the Ratepayers Association of Iluka Inc. published its regular newsletter in which its president, real estate agent Graeme Lynn, stated the following:

Eight months later and the story has changed – now we’re told there was always going to be a major revision of the development application:

As  for those ordinary people who “suddenly became town planners and without any knowledge were telling everyone the design was poor and needed redoing”.

Well it appears that the “experts” are not as disdainful as Bob Jelly & Co, because this turned up in one of the documents being submitted to the Northern Joint Regional Planning Panel on behalf of the developer:

So   congratulations to all those locals at Iluka who took the photographs, did the geo-plotting and otherwise supplied information for the Thursday, 16 June 2016 blog post

A remnant Coastal Cypress Pine Forest in Iluka, New South Wales.

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.