The Drum 5 March 2013 from Peter Black on Vimeo.
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Tonight I was on The Drum on ABC News 24 discussing the news of the day, including the Coalition's leaked plan for 100 dams across Australia, Wayne Swan's refusal to rule out an income tax rise, and how far does the British royal family's right to privacy extend?
The Drum 14 February 2013 from Peter Black on Vimeo.
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There are no shortage of rankings in the higher education sector at the moment, however there are relatively few rankings that consider law - and law schools - as a specific area of scholarship and/or teaching. In September, I blogged about the QS World University Rankings for law, where 12 Australian law schools made the list of the top 200 law schools worldwide (including, I might add, the Queensland University of Technology). Today the Australian Research Council released the Excellence in Research for Australia 2012 National Report that outlines how the quality research undertaken by Australian universities stacks up against a rigorous evaluation process.
The Excellence in Research for Australia ranks Australian universities across 22 different fields of research, including law. In each field of research, Australian universities are ranked on a five -point rating scale. The rankings for the field of law (FoR 1801) are as follows.
5: well above world standard:
4: above world standard:
3: at world standard:
2: below world standard:
No universities were ranked "1: well below world standard" in law, but 11 law schools were not assessed due to low volume.
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My colleague John Pyke raised an interesting question with me by email tonight; namely, whether one of the organistions that would be investigated as part of the proposed Royal Commission into institutional child sexual abuse, would bring a constitutional challenge arguing that the Commonwealth doesn't have the constitutional power to set up such an inquiry. Following the High Court's decision in Williams v Commonwealth earlier this year, I think such a challenge would certainly be arguable. That said, for public relations reasons alone, I can't see any organisation actually being willing to bring such a challenge.
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As you may be aware, I've experimented with various different podcasting apps over the years - Audioboo, Posterous and Ipadio - but I am currently using SoundCloud to post the audio of my radio appearances, as well as the occasional thought or rant:
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Tonight I was on The Drum on ABC News 24 discussing the news of the day, including asylum seekers and the future of News Limited and Fairfax:
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These are some of the things I've been tweeting about today:
Follow me on Twitter @peterjblack.
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Earlier in the week I blogged about the decision of the LNP Government to strip the Queensland Association for Healthy Communities (QAHC), Queensland's only LGBT health and wellbeing organisation, of $2.6 million in Government funding.
Unfortunately the Government still seems to be committed to this deeply disappointing, short-sighted and ultimately counter-productive decision. However, it is important than as many people as possible take the time to write or contact the Health Minister, Lawrence Springborg, Premier Campbell Newman and your local member of Parliament to call for the funding to be reinstated.
Mathew Burke, one of the hosts of the Gay Savvy radio show and podcast, has made available the excellent letter he wrote to the Government objecting to the defunding of QAHC. In his letter he clinically disects the Government's stated reasons, showing that the decision had been made "in haste, without basis and possibly for politically motivated reasons". He also poses a series of highly pertinent questions to the Health Minister about this decision.
You can read the letter below or online here:
Open Letter Objecting to the Defunding of Queensland Association for Health Communities
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Yesterday I blogged about the decision of the LNP Government to strip the Queensland Association for Healthy Communities (QAHC), Queensland's only LGBT health and wellbeing organisation, of $2.6 million in Government funding. QAHC says it will mean an end to their health promotion work with gay men, LGBT awareness training, drug and alcohol services, and the loss of 26 of its 35 staff.
Now Paul Martin, the executive director of QAHC, has just posted to Facebook the following:
Just been notified by Queensland Health they are removing LGBT awareness training funding and alcohol, tobacco & other drugs funding. If it's about rising HIV numbers, why cut these projects as well?
This is another very troubling policy development. Moreover it just reinforces the idea that these decisions are politically motivated and have very little to do with improving the health and wellbeing of LGBT people. Indeed, when coupled with the impending decision on civil unions, it is hard not to think that the Government is waging a vendetta against the LGBT community.
This is not the LNP I voted for. Nor do I believe that this is the LNP the majority of Queenslanders want as their Government. Please, Campbell Newman, it is not too late to do the right thing by LGBT Queenslanders.
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If the $2.6 million funding from Queensland Health is revoked, QAHC says it will mean an end to their health promotion work with gay men, LGBT awareness training, drug and alcohol services, and the loss of 26 of its 35 staff.
This is a very disappointing decision indeed, and together with the LNP's position on civil unions, just reinforces the notion amongst LGBT people in Queensland that our Government is not supportive and inclusive of our community. While I have been prepared to give the LNP the benefit of the doubt up until now, I am beginning to feel quite concerned about the LNP's position on LGBT issues. Indeed, on the same day the LNP announced this funding cut to QAHC, there was a story leaked to The Sunday Mail reporting that the Attorney-General will in the next few weeks bring proposals to Cabinet to amend the civil union legislation.
The LNP's decision
What is particularly concerning about the announcement by the Health Minister, Lawrence Springborg, to cut the funding to QAHC, is that the Minister's reasons are so weak and demonstrate a fundamental misunderstanding of the issues and the role QAHC plays in our community. A reading of the Minister's media release suggests there were two main reasons behind this decision.
HIV diagnosis rates
First, is the claim that QAHC has been failing in reducing HIV diagnosis rates:
Health Minister Lawrence Springborg said annual HIV diagnosis rates had doubled in the last decade: from 2.7 per 100,000 population in 2000, to 5.4 in 2010.
Mr Springborg said the HIV diagnosis rates represented an alarming failure in public health policy and public health outcomes over the last decade; and said he had been advised the diagnosis rates represented the highest levels in Queensland since figures became available in 1984.
“When it comes to health, unlike Labor, I refuse to throw good money after bad and I refuse to turn a blind eye to what are obviously ineffective campaigns at reducing HIV diagnosis rates,” Mr Springborg said.
“This clearly indicates that the campaigns and strategies, and the way those campaigns and strategies have been provided, is in need of urgent review and re-direction,” he said.
As is pointed by QAHC in their Response to Media Release by Minister Springborg and other material on their website, blaming QAHC for this is misguided for several reasons:
QAHC and political issues
The second main reason advanced by the Minister is seemingly the suggestion that QAHC has become a political organisation:
Mr Springborg said he would immediately move to re-direct over $2.5 million in government grants that had, until now, been channeled through the Queensland Association for Healthier Communities to conduct AIDS/HIV awareness and prevention strategies.
“Instead of this funding being administered by QAHC, which has published its intention to move the core of its activity away from AIDS/HIV to more general, political issues, it will be moved into the control of an expert panel - a Ministerial Advisory Committee on HIV/AIDS.
While I would hope that the Government's announcement today was not politcally motivated, you cannot help but wonder whether this is - at least in part - political retaliation for the leading role a variety of LGBT community groups - including QAHC - have taken with respect to LBTI rights, especially civil unions and gay marriage, political positions that are currently supported by the LNP. Regardless of whether these political undertones are real or just perceived, the Minister's gratuitous comment about QAHC engaging in "political issues" is unfair. This is because QAHC's current service agreement with Queensland Health requires them to deliver advocacy on LGBT health issues:
Funded Service Type: Advocacy.
The organisation will represent consumers and/or consumer groups to advocate for theirhealth and wellbeing needs within the community as required.The organisation will target service providers and community organisations to promote community awareness of the needs and issues of consumers. The organisation will provide consultancy advice and support to health and communityservices on LGBT health and wellbeing issues.
If the Government was concerned about any advocacy activities currently carried out by QAHC, it would always amend that current service agreement to reduce or cut eliminate that role. That said, I think it is important that all health organisations - not just QAHC - are able to provide public policy advice to government. As Paul Martin says:
We are concerned that the defunding of Healthy Communities sends a message to other Queensland Health funded organisations that they are not allowed to provide public policy advice togovernment or the community. This is a series threat to the independence of the non-government 20 May 2012For immediate release ealth sector and future reform of our health system.
More specifically on the issue of QAHC's advocacy for civil partnerships and marriage equality, stable relationships, facilitated by civil partnerships and/or marriage is good for people’s health, including same-sex couples. This is also the position of the Australian Medical Association:
6.6 The AMA is supportive of legislation that proscribes discrimination and provides of same-sex unions and families as this will lead to legal, societal, financial and healthcare equity within the community.
As such, you would expect QAHC to advocate for civil partnerships and marriage equality.
What this all means
While I am pleased that the Government is still continuing to provide the samel level of money for HIV prevention, in light of the above reasons, I do not understand why there is a need to shift the money to the control of an expert panel - a Ministerial Advisory Committee on HIV/AIDS - instead of continuing the good work by QAHC. It will create an additional, unnecessary bureaucratic body, provide further disruption in the fight against HIV, undermine the holistic approach to health issues for gay men, and greatly undermine the confidence the broader LGBT community has in the now LNP Government in Queensland. This is a deeply disappointing, short-sighted and ultimately counter-productive decision by the Government.
So what can we do?
On Facebook, QAHC has set up an event called Safe Healthy Communities. It suggests we all take the following steps:
I know I will be taking all of these steps, and I would encourage you to do the same.
More information
There is more information on the Save Healthy Communities website, including:
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Parliament House Canberra, Australia (Photo credit: Wikipedia)
The news that Peter Slipper has stood aside as Federal Parliamentary Speaker amid allegations that he misused taxpayer-funded Cabcharges (as well as that he sexually harassed a staffer), has created an unprecedent constitutional situation surrounding the office of the Speaker.
This is the statement Slipper released saying that it is appropriate for him to stand aside while the criminal allegation against him is resolved:
Some allegations have been made against me by Mr James Ashby. I emphatically deny these allegations.
The allegations include both a claim of criminal behaviour and a claim under civil law.
Any allegation of criminal behaviour is grave and should be dealt with in a manner that shows appropriate regard to the integrity of our democratic institutions and to precedent.
As such, I believe it is appropriate for me to stand aside as Speaker while this criminal allegation is resolved.
The allegation is incorrect, and once it is clear they are untrue I shall return to the Speakership...
In relation to the civil matter there will be an appropriate process that will resolve the matter in due course.
Mr Slipper says Deputy Speaker Anna Burke will act as Speaker while he stands aside.
Given that numbers on the floor of Parliament at the moment are so finely balanced, it is important to determine what it means for the Speaker "stand aside" constitutionally and in terms of parliamentary practice. In particular, now that Mr Speaker has stood aside as Speaker, will he able to speak and vote on matters before the Parliament, or is he required to stand aside from the business of the House of Representatives?
What makes this situation so unusual, is that there is no provision for "standing aside" in the Constitution. However, it must be assumed that standing aside does not mean he has resigned as Speaker, and constitutionally he must still be considered to be the Speaker. As such, he surely cannot be entitled to sit on the backbench and vote on matters before the House of Representatives.
(The only alternative here would be if "standing aside" meant he does not preside during debate but that he resumes the chair during a vote, allowing him to exercise the casting vote in the Government's favour. However, that would seem to be a farcical situation that surely could not be countenanced by the Government or the Opposition.)
The House of Representatives Standing Orders support this conclusion as they operate on the assumption that the Speaker will simply not be present in the House when the Acting Speaker, Deputy Speaker or Second Deputy Speaker. Standing Order 3(d) provides:
The power to exercise a casting vote (standing order 135) is reserved for the Speaker, Acting Speaker, Deputy Speaker or Second Deputy Speaker.
This does mean, of course, mean that if the Deputy Speaker, Anna Burke, is acting, the casting vote will be exercised in the Government's favour.
That said, it is worth noting that the House of Representatives Practice (5th edition) observe that Speakers have spoken in the past but only on Bills that particularly affect parliamentary administration (see page 176), and in the days when they had committee of the whole with a Chair of Committees in the Chair, some Speakers have voted in committee (see page 185). Both of these situations are quite different from the situation of having a Speaker who has decided to "stand aside".
In conclusion, I think it would be totally inconsistent with the position and office of the Speaker, to allow Slipper to simply return to the backbench and speak and vote on all matters before House. Indeed, such a situation would make a mockery of the office. It seems to me that Slipper has to stand aside from all business before the House of Representatives.
Of course, if Slipper decided to formally resign as Speaker, it would be a very different situation and he would be entitled to sit on the backbench and vote on matters before the House.
What this means for the Government is that there will effectively be 149 members of Parliament able to participate in debate and votes. Malcolm Farr looks at the numbers:
If Independent Andrew Wilkie supports the Government, it will have 75 vote in the House of Representatives to the Coalition’s 73. Without Mr Wilkie, the numbers will be 74-74 each.
This is based on the Government continuing to have the backing of cross bench independents Tony Windsor and Rob Oakeshott, and Green MP Adam Bandt.
In the case of a tied ballot the acting Speaker, Anna Burke, would have the casting vote and it is accepted practice that she would vote for the stats quo, and not against the Government on a confidence motion.
Things are likely going to get very interesting for the Government indeed. Fortunately, Parliament is now not sitting now until Tuesday 8 May, which gives everyone a few weeks to resolve the constitutional and political issues surrounding this situation.
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Brisbane Central MP Grace Grace at Labour Day on 7 May 2007, Fortitude Valley and Bowen Hills, Brisbane, Queensland, Australia. (Photo credit: Wikipedia)
Over the past few days, several members of the Legislative Assembly in Queensland who lost their seat in the election on Saturday expressed an interest in running in the upcoming local government elections. In particular, Grace Grace, who had been the Labor member for Brisbane Central, was hoping to nominate for the Central Ward in the Brisbane City Council election, and Rob Messenger, who had been the Independent member for Burnett, was hoping to nominate for Lord Mayor of Bundaberg. However, both were apparently told yesterday that they could not stand for local government until results in the state poll are officially declared by the Electoral Commission later this week. Having looked at the relevant legislation this morning, this seems to me to be plainly wrong.
I assume the Electoral Commission reached this conclusion based on s 155 of both the Local Government Act 2005 and the City of Brisbane Act 2010, which provide the following:
155 Disqualification because of other high office
(1) A person can not be a councillor while the person is a government member.
(2) A government member is—
(a) a member of a Parliament of the Commonwealth or a State (including Queensland); or
(b) a councillor of a local government of another State.
(3) A person automatically stops being a councillor when the person becomes—
(a) a government member; or
(b) a candidate for election as a member of the Legislative Assembly.
However, s 26(3) of the Local Government Electoral Act 2011 makes it clear that members of the Legislative Assembly are able to nominate for local government as long as they resign on becoming a candidate:
(3) To remove any doubt, it is declared that, a person is not disqualified from being nominated as a candidate, or for appointment, as a councillor only because the person is amember of the Legislative Assembly or a local government employee.
Example—A person who is a member of the Legislative Assembly may nominate as a candidate for election as a councillor but must resign on becoming a candidate.
Therefore, as long as Grace Grace, Rob Messenger and anyone else resign from the Legislative Assembly before becoming a candidate, they are able to run in the upcoming local government elections. I am not aware of anything that would prevent them from resigning today.
(I have posted this very quickly to get the relevant law part of the conversation. It is possible I have overlooked something. I can also explain my legal reasoning in considerably more detail if necessary.)
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Tonight I was on The Drum ABC News 24 discussing the news of the day, including Clive Palmer, a constitutional challenge to the mining tax, celebrity diplomancy and US politics:
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Image via Wikipedia
I have a piece up at The Conversation on the High Court's decision in Wotton v Queensland:
When a prisoner has served their time, it’s difficult to understand why they would be stopped from engaging in public debate or communicating with the media. But a new precedent has been set by the High Court with serious implications for freedom of speech.
The court found against a Palm Island man, Lex Patrick Wotton, who was charged with inciting in a riot on Palm Island following the death in police custody of Mulrunji Doomadgee. He was convicted, and on his release his parole conditions stated he was not allowed to speak to the media and needed to gain permission before he could attend public meetings on Palm Island. Wotton challenged the constitutional validity of the laws underpinning these conditions in the High Court.
This case highlights how limited Australia’s constitutional protection of free speech is, and how restricted our legal rights really are.
Read the full piece here.
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Today's posts to Election Blackout, my blog on the Queensland election:
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Today's posts to Election Blackout, my blog on the Queensland election:
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Today's posts to Election Blackout, my blog on the Queensland election:
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Today's posts to Election Blackout, my blog on the Queensland election:
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Tonight I was on The Drum ABC News 24 discussing the news of the day, including unemployment numbers, the week in federal politics, the Queensland election, cooperatives and racism in TV soaps:
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Media Release: Senator Scott Ludlam, Wednesday January 18th, 2011
As Wikipedia goes on strike to protest the proposed ‘Stop Online Piracy Act’ (SOPA) currently before the US Congress, the Greens have called on the Australian Government to take a stand in defence of Australian internet users and protect the viability of the medium.
Australian Greens communications spokesperson Senator Scott Ludlam pointed to the global blackout of online encyclopaedia Wikipedia as an example of the depth of the campaign to prevent the bill from becoming law.
“Has the Australian Government made any representation whatsoever to the US Government on this issue? Do they recognise that there will be little purpose in investing tens of billions of dollars in the NBN if the US copyright industry cripples the medium itself?
“As an example of breathtaking overreach by US copyright interests, the SOPA proposal and its cousin PIPA are hard to beat. The bills will institutionalise far-reaching, unaccountable censorship in order to protect the commercial interests of a handful of powerful media companies. The bills risk the broad-scale criminalisation of filesharing, the decimation of the open source community and tactical use of financial blockades against commercial competitors or non-commercial sites.
“SOPA would block entire non-US websites in the United States as a response to select infringing material. This includes Australian sites, and the online operations of Australian businesses.
“Under SOPA, US courts could bar online advertising networks and payment facilitators from doing business with allegedly infringing websites, bar search engines from linking to such sites, and require internet service providers to block access to such sites.”
Senator Ludlam said the bill would introduce extreme penalties for the unauthorised streaming copyrighted content.
“The bill makes unauthorised streaming of copyrighted content a criminal offence, with a maximum penalty of five years in prison for ten such infringements within six months.”
Media Contact: Giovanni Torre - 0417 174 302
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week:
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The Convergence Review is an independent review established by the Australian Government to examine the policy and regulatory frameworks that apply to the converged media and communications landscape in Australia. The Convergence Review Committee is chaired by Glen Boreham with Malcolm Long and Louise McElvogue as committee members.
Today the committee released the Convergence Review Interim Report. The report sets out the committee's vision for fundamental change to the regulatory framework of Australia's digital economy, and identifies key areas for reform:
Convergence Review Interim Report
I will try and read the report in its entirety over the next few days and post some thoughts.
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Tonight I was on The Drum on ABC News 24 discussing the news of the day, including the Cabinet reshuffle, the latest book by climate sceptic geologist Ian Plimer, the controversial Stop Online Piracy Act (SOPA), and the US Republican race:
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Image via Wikipedia
Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week.
This week we discussed whether Facebook is making us miserable, the possible regulation of social media in Australian politics, the Republican primary content in America, and federal politics, including possible constitutional recognition of Aboringal and Torres Strait Islander Peoples:
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Tonight I was on The Drum on ABC News 24 discussing the news of the day, including interest rates, the fallout from the Qantas grounding and hipsters:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed federal Australian politics, the Apple-Samsung patent battle, vegemite chips and competition law, and I defended FoxNews:
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An article I wrote on the 2010 federal election has been published by the Alternative Law Journal:
This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.
Elections 2.0: Reflections on the 2010 federal election and the future of Australian electoral law
Also, you can follow the Alternative Law Journal @AltLJ on Twitter or like it on Facebook.
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the debate over prostate cancer screening, depression and Beyond Blue, Steve Jobs, the Brisbane International Film Festival and federal politics:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed federal politics, pokies and tax reform, some US politics, Syria and Facebook (among other things):
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed 9/11, At Home with Julia, Australian politics and sport:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed WikiLeaks, some interesting people visiting Brisbane (including John Cleese, John Waters, David Sedaris and Ira Glass), pokies and the Salvation Army and the fallout from the High Court's decision on the Malaysia Solution:
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Tonight I was on The Drum on ABC News 24 discussing the news of the day, including the High Court's decision on the Malaysia Solution:
The Drum 1 September 2011 from Peter Black on Vimeo.
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed Libya, American Presidential politics, federal politics, State politics, Steve Jobs and choppergate:
(And my apologies for the bad audio. Please contact me if you have any ideas as to how I can better capture the audio each week.)
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The Australian Financial Review this morning has a good feature story on the High Court of Australia:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the federal politics, the global economy, the Census, the tablet patent wars and the Brisbane Writers Festival:
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Earlier tonight I posted to this blog Jessie Taylor's excellent summary of what happened to the Malaysia Solution in the High Court this evening. She has now graciously given me permission to repost the "legalspeak bit" of her summary as well.
These are her notes of the proceedings before Justice Hayne this evening:
Serious questions (as put by the plaintiffs):
- Statutory obligation s 256 Migration Act to afford to a person in detention all reasonable facilities for the access to legal advice relating to their detention. This has not been complied with despite repeated requests from plaintiffs. In docs they have also said they fear persecution in Malaysia. So Ps argue they are entitled to have reasonable facilities made available.
Submits that HH use a low threshold - HH states that "serious question to be tried" is a low threshold.
- S 189(3) - ministers refusal / failure to invoke s 46A. 189(3) is a discretionary power. Such a discretion should ordinarily be exercised in accordance with rules of procedural fairness. Also relevant considerations ie health, security reasons etc. This has not occurred - there has been no discretionary judgement exercised by an officer.
- Third - offshore process - legality of process. It appears from the precedent that anyone not an unaccompanied minor will be removed unequivocally. M61/M69
- Fourth- s198A(3) confers discretion on the minister. On general principles this should be conditioned by principles of nat justice. (3)(a)(i)-(iv) list jurisdictional facts which minister must be satisfied of. Existence of those facts is capable of being reviewed. ie Malaysia arrangement is a "political statement" and is not enforceable. According to agreement the country must comply with min human right standards. This agreement demonstrates that people are given a months income and maybe housing then left to own devices. Whether capable of satisfying stat criteria?? Subs (1) discretion on officer - conditioned by proc fairness & relevant consideration, including fear of persecution for religious reasons in Malaysia.
The trial of these questions will be completely frustrated if they are removed.
Grounds for believing stat provs not satisfied - Malaysia not a sig to cat, ref conv.
HH- question re 198A is are i-iv jurisdictional facts or simply observations???? ***This is the major issue considered by HH this evening.
Donoghue for defendants:
Argues that the 198A criteria are not jurisdictional facts but simply require common sense judgment. - McKerracher J in Sadiqi
Hayne J: BHP v Balfour. Identified ministerial power as "fact finding". Held: Minister could not find a fact if common sense would not make the same finding.
Hayne J mentions Australia's duty to abide its international obligations as being an analogous question.
Ds argue that every judge asked this question has decided that they are NOT jurisdictional questions.
Submits that these are not jnl facts and if they are not, there is no question to be tried. If they are not, reference to legally enforceable protection does not arise.
Hayne J disagrees. Questions counsel- is it legally enforceable protection or protection in fact supported by legal obligation?
D: open to court to evaluate whether criteria declared to have been met have actually been met.
Ds reject argument that if Malaysia not compliant with human rights norms, minister is constrained from sending people there.
D submits that minister bound by proc fairness prior to making a declaration re a country is not valid. That submission fails to have regard to stat context of s198A.
On questioning by HH, Submits that no issue relating to possible persecution in malaysia for a convention reason.
Only issue on balance of convenience is substantial financial and non financial costs - delay: estimated $100,000 per day for staff costs and $120,000 per week for cost of charter.
Hayne: do you accept that removal will defeat the claim entirely?
D - I think that is so.
Hayne: is the declaration registrable? D: no because it's not a legislative instrument. But don't have instructions on that.
Hayne J: if it is the subject of the act it may be s 12 of legislative instruments act kicks in.
Plaintiffs' reply:
At least 2 interpretations of "the minister may declare":
One is that i-iv are jurisdictional facts
The other is the formation of a state of satisfaction by the minister.
D has argued that on basis of 2 single justice decisions they say nothing to be tried.
Jurisdictional facts - for opponent to say that ministers satisfaction is not reviewable is large indeed. Migration Act replete with explicit limitations on review. And 75(v) cannot be taken away. IS reviewable.
Submits that Mckerracher in Sadiqi was obiter.
Seeking interlocutory relief:
Inj stopping removal
Inj requiring cth to afford reasonable chance to get legal advice
Hayne J does not believe it necessary to grant the second stem of the relief, because s 265 obliges the minister to do so.
Hayne J: expresses no view on the merit of the arguments put before him tonight, but cannot say that they are without merit. The plaintiffs should have the limited relief they seek. "Their claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless". Injunction granted to 4.15 tomorrow or further order, and the matter will return before Hayne J at 2.15 tomorrow for further argument.
This summary was first posted to Facebook.
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In a Facebook note, Jessie Taylor posted a summary of what happened to the Malaysia Solution in the High Court tonight:
At 8pm tonight, Justice Kenneth Hayne of the High Court granted limited interlocutory (interim) relief (an injunction) to 41 plaintiffs who are people who risk being removed to Malaysia under the Malaysia solution. They are citizens of Afghanistan and Pakistan. A number of them (around 6) are children.
At the outset, Hayne J suggested that he should consider granting interlocutory relief to 4.15 tomorrow so the matter come back before him for further argument at 2.15 tomorrow.
Debbie Mortimer SC for the Plaintiffs stated that there were 16 plaintiffs scheduled for removal tomorrow at 11.30am. There has been no decision made in respect of other plaintiffs.
In order to get interlocutory relief (in this case an injunction), the applicant must prove that there is "a serious question to be tried" and that it is favourable "on the balance of convenience" that the relief sought be granted.
Counsel for the defendants (the Minister for Immigration and the Commonwealth of Australia) stated that they did not wish to put any arguments on balance of convenience, other than the fact that it costs a lot of money to delay the transport of asylum seekers to Malaysia.
So the issue was really "is there a serious question to be tried"?^ (see below for the serious questions as put by the plaintiffs and outline of argument and questioning from the bench)
There was a period of argument about that, during which Hayne J put both counsel through their paces.
In the end, the Plaintiffs were seeking two strands of interlocutory relief:
1. an injunction stopping removal to Malaysia
2. an injunction requiring the Commonwealth to afford the asylum seekers a reasonable chance to get legal advice
Hayne J did not believe it necessary to grant the second stem of the relief, because s 265 obliges the Minister to do so.
But he did grant the first strand of relief, saying that "[the asylum seekers'] claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless"
His Honour expressed no view on the merit of the arguments put before him tonight, but could not say that they are without merit. His Honour stated that the plaintiffs should have the limited relief they seek.
So there is now an injunction in place stopping removal to Malaysia until 4.15 tomorrow (or further order), and the matter will return before Hayne J at 2.15 tomorrow for further argument.
Read Jessie's summary of the complex legal issues here. You can also follow Jessie on Twitter here.
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the federal politics, anonymity online and the Brisbane Festival:
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I am interviewed about the R18+ classification for games, internet filtering and Facebook by Stilgherrian in this week's edition of Patch Monday:
An R18+ classification for computer games is long overdue in Australia and internet filtering based on the Interpol blacklist is "reasonable enough", says legal expert Peter Black. However, he does have concerns.
The decision by South Australia's Attorney-General John Rau to "re-badge" all MA15+ games as R18+ to further restrict their access in that state is "very strange", says Black. He also notes the lack of oversight of the Interpol blacklist.
Black teaches internet and media law at the Queensland University of Technology. On this week's Patch Monday podcast he discusses the many recent legal moves in Australia that affect the internet and technology, including:
- The Standing Committee of Attorneys-General (SCAG) decision to introduce the R18+ games classification;
- An inquiry into a legislated right to privacy;
- The spread of "voluntary" internet filtering against the Interpol blacklist;
- Laws relating to cybercrime; and
- Calls to bring Facebook under control.
The 2008 report into privacy by the Australian Law Reform Commission already provides a "perfectly good" set of recommendations, Black says. "The hard work has already been done for them."
Meanwhile, since our last conversation about filtering, more internet service providers have begun blocking access to child exploitation material using Interpol's "worst of the worst" blacklist.
"Certainly the Interpol list is a good list," says Black. "I am comforted by the fact that it does require at least two law enforcement agencies in two different countries to refer sites." He is concerned, though, that blacklisting could be used as leverage against recalcitrant hosting providers.
The SCAG meeting also resulted in calls for more regulation of Facebook and other social networking services, including the possibility of Facebook being restricted in Australia to those aged 18 and up rather than the existing age limit of 13, as well as the ability for parents to access their children's profiles.
"It's a monumentally stupid idea," Black says. "What more do you need me to say?"
Patch Monday also includes my usual look at some of last week's news headlines.
To leave an audio comment on the program, Skype to stilgherrian, or phone Sydney 02 8011 3733.
Running time: 42 minutes, 24 seconds
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the carbon tax, the News of the World controversy, Queensland state politics and the Dalai Lama:
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Meet The Ministers is a new program from 31 Digital in Brisbane that delves into the many personalities that make up our State politicians:
We know about their political agenda, but what about what got them to where they are. This show will give the viewer a more personal insight into the person behind the job.
Hosted by Shaun Bindley, the first episode of this program features Deputy Premier Paul Lucas:
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Meet The Ministers is a new program from 31 Digital in Brisbane that into the many personalities that make up our State politicians:
We know about their political agenda, but what about what got them to where they are. This show will give the viewer a more personal insight into the person behind the job.
Hosted by Shaun Bindley, the first episode of this program features Deputy Premier Paul Lucas:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we were joined by Senator Scott Ludlam from the Australian Greens to discuss the carbon tax, internet filtering and nuclear policy (among other things). After that conversation, I discussed with Andrew the News of the World saga and Google+:
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At Delimiter Renai LeMay highlights an interesting comment about the success of the NBN:
Hilarious comments over at Computerworld (click here for the full article) from Jennifer Wilson, a director at content and applications developer The Project Factory. According to Wilson, while it’s nice to talk about e-health and education outcomes from the Federal Government’s flagship National Broadband Network project, ultimately it’s all about the porn:
“The single most important factor is the porn factor because pornography has always been at the cutting edge of technology,” Wilson said. “If we cannot get porn on the NBN than we will have trouble getting consumer acceptance and uptake.”
Sounds like this is the next important line of debate about the NBN. Maybe it’s time to get the Australian Sex Party in on the national broadband discussion?
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed a few new website - The Talks, Everything is a Remix and Turntable.fm, the week in federal politics, internet filtering and some developments in the US and why they matter here, in particular Obama's troop withdrawal from Afghanistan and gay marriage in New York:
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I am interviewed about internet filtering, together with network engineer Mark Newton and Lyle Shelton from the Australian Christian Lobby, by Stilgherrian in this week's edition of Patch Monday:
Australia's mandatory internet filter is at least two years away, but Telstra and Optus are only weeks from implementing their "voluntary" equivalents. Where are we up to with this controversial issue?
Just under a year ago, right before the 2010 Federal Election, Communications Minister Stephen Conroy pushed filtering onto the back burner. At the time, I called that move a political masterstroke. I stand by that comment today.
Conroy also announced a review of the Refused Classification (RC) category of internet content — a category that we explained on Patch Monday last year — and this has since become a review of the entire content classification system that'll take at least another year to complete.
Meanwhile, three of Australia's largest internet service providers (ISPs), Telstra, Optus and Primus, had committed to introducing their own filters. So, will it work?
On Patch Monday this week, we explain what has been unfolding since Conroy's announcement last July. Peter Black, who teaches internet and media law at the Queensland University of Technology, explains the legal and political background. Network engineer Mark Newton covers the technical aspects. Both have previously pointed out problems with ISP-level filtering.
We also hear from Lyle Shelton from the Australian Christian Lobby, which has been pushing for mandatory internet filtering for years.
There's also my usual look at some of last week's news headlines.
To leave an audio comment on the program, Skype to stilgherrian, or phone Sydney 02 8011 3733.
Running time 43 minutes, 26 seconds
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the 12 month anniversary of Julia Gillard becoming Prime Minister, gay marriage, the Facebook social media strategy of the Queensland Police Service, sharia law in Australia, David Carr (@carr2n) and the documentary about the New York Times, Page One, Kevin Spacey to perform Richard III in Sydney, and an amazing story about the comedian who ran for mayor ... and won:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the week in federal politics, American politics (including Anthony Weiner), a controversial drug website, and the convicted rapist who was snubbed for a flood hero award, before a quick rant about the cricket selectors and a chat about the end of the bookstore:
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the week in federal politics, morality, HIV infection rates, Syria and the Middle East and the Brisbane Winter Festival:
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