Showing posts with label Australian Constitution. Show all posts
Showing posts with label Australian Constitution. Show all posts

Tuesday, 17 October 2017

High Court of Australia sitting as the Court of Disputed Returns ends federal parliamentarians eligibility to stand hearings and considers its judgment

“The Court reserves its decisions in these matters. It is hardly necessary to say that the Court is aware of the need to give its answers to these references with or without reasons as soon as possible. As counsel and instructing solicitors would appreciate, it is not always possible for the Court to do so immediately. No doubt, they will explain this to their clients.”  [Chief Justice of Australia Susan Mary Kiefel AC, 12 October 2017]

On 10-12 October 2017 the full High Court of Australia sitting as the Court of Disputed Returns heard arguments as to why five members and two former members of the Parliament of Australia should or shouldn’t be found to have been ineligible to stand for election prior to the 2016 general election and sit as an elected members thereafter.

While the country waits on the resolution of this matter, here are links to relevant documents and transcripts.

High Court of Australia Justices



High Court of Australia Transcripts

Self-styled “bounty hunter” issues penalty writs

David Barrow at

On 27 September 2017, I sued 6 current and former Senators and Mr Barnaby Joyce MP under the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth).

This provides a bounty for citizens ‘hunting down’ any Parliamentarian who has sat when disqualified.

$200 is paid for proving the Parliamentarian is caught out during the 12 months before being served with a lawsuit; and $200 is paid for every subsequent day on which he or she sat.

Any penalties I receive and personal tax benefit, I will donate to the The Fred Hollows Foundation…..

Friday, 25 August 2017

Fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

It appears that on Day One before the High Court of Australia there is to be no united defence by those sitting politicians defending their election as members of parliament and stories appear to be changing.

ABC News, 24 August 2017:

The fate of politicians referred to the High Court over the citizenship saga will not be known until at least mid-October.

The court held its first hearings on the cases in Brisbane today, and Chief Justice Susan Kiefel has ordered the matter be heard in Canberra on October 10-12.

It is not clear yet how long it could take the court to decide on the case and announce its decision on the five cases currently before it — those of Deputy Prime Minister Barnaby Joyce, former Nationals Minister Matt Canavan, One Nation's Malcolm Roberts and former Greens senators Larissa Waters and Scott Ludlam.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, had urged the hearings be scheduled in mid-September to ease any concerns about the validity of decisions made by the 45th Parliament.

In another twist, Mr Joyce's political nemesis, Tony Windsor, has been given permission to join the citizenship challenge in the High Court.

Mr Windsor will argue Mr Joyce has breached the constitution, as he was a dual citizen of New Zealand.

Mr Windsor's lawyers, appearing by videolink from Melbourne, also argued for the right to cross-examine Mr Joyce if they needed it for their case.

Solicitor-general Stephen Donaghue QC, acting for the Commonwealth, urged the court to hear the matters by mid-September.

Chief Justice Kiefel said she understood the "unusual circumstances" of the challenges, and the "high level of urgency", given it would have an impact on the current make-up of the Parliament.

However, she raised concerns whether the matters could be dealt with that quickly, particularly when Deputy Nationals leader Fiona Nash and South Australian senator Nick Xenophon's cases were awaiting formal referral to the court.

Chief Justice Kiefel asked the solicitor-general whether there was a "real practical difficulty in terms of governance" if the court waited until October to hear the cases, to which Mr Donaghue replied there was not.

Lawyers for Senator Canavan also said the Commonwealth had "underestimated the complexity of their case", given the nature of his Italian citizenship.

They also suggested the highly publicised story he had presented about his mother signing him up for Italian citizenship was "irrelevant", rather arguing that there had been retrospective changes to Italian laws that had led to the strife.

Mr Donaghue said the cases of Senator Canavan, Mr Joyce and Ms Waters were different to those of Senator Roberts and Mr Ludlam.

He argued Senator Canavan, Mr Joyce and Ms Waters had no knowledge they could be considered dual citizens under foreign law.

The solicitor-general but suggested Senator Roberts and Mr Ludlam knew or should have known.

Lawyers for Senator Roberts criticised the initial timing of the full hearings, suggested by the Commonwealth.

They also took issue with the Attorney-General's offer to get the same British QC enlisted to give expert evidence on other citizenship cases to also draft a report about Senator Roberts' status.

The argument was that they should have the chance to brief the legal expert themselves, and have the opportunity to find their own experts if they did not agree. [my highlighting]

The Australian, 24 August 2017:

Barrister Robert Newlinds SC, for India-born Senator Roberts, said his client did not concede to being a citizen of any country other than Australia.

However, Mr Newlinds said Senator Roberts made contact with the British Home Office before the election, but received no response. He then sent another email before the election and “renounced” any foreign citizenship.

However, Senator Roberts did not receive any acknowledgement from the Home Office until after the election, the court has heard, when they sent him a renunciation form to fill out.

He later was told by the Home Office that his renunciation of British citizenship had been accepted – but Mr Newlinds said it was not clear whether that acceptance was in relation to the pre-election email or the post-election form……

Attorney-General George Brandis says the government is “grateful” the High Court agreed to hear all eligibility cases in the one hearing.

Senator Brandis said the hearing, to be held in the first fortnight of October, was scheduled as early as possible, despite the government asking for an earlier date on the 13th and 14th of September.

“We are very grateful that the High Court has listed the matter at the next practicable opportunity, we were pressing the court to hear it even earlier in September but it just wasn’t practicably possible particularly since the matter was going to be set down for three days,” Senator Brandis said.

“By the standard of listing matters in the High Court it is a very swift hearing, it gives all the parties a full opportunity to be ready, to present both written submissions and of course oral argument….. [my highlighting]

Matters for judgment by the High Court sitting as the Court of Disputed Returns:

Wednesday, 16 August 2017

Members and Senators of the Australian Parliament: you had one job to do.......



                   Any person who:

                      (i)  is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

                     (ii)  is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

                    (iii)  is an undischarged bankrupt or insolvent; or

                    (iv)  holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

                     (v)  has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

                   But subsection (iv) does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. [AustLII, Commonwealth Consolidated Acts, An Act to constitute the Commonwealth of Australia, July 1900]

When nominating to stand as a candidate at a federal general election or a by-election the Australian Electoral Commission supplies all prospective candidates with a 51 page handbook, titled “Candidates Handbook: Federal elections By-elections”.

The intent of this handbook is to explain the steps you will need to take to qualify as a candidate and to comply with the law before, during and after an election.

On Page 8 of the May 2016 edition of the handbook candidates are supplied with a “Checklist”.

The third point on that 15 point checklist is:

I have confirmed that I am qualified to nominate.

Pages 13 to 14 clearly set out “Disqualification under the Constitution” and states:

You are required to sign a declaration on the nomination form that you are qualified under the Constitution and the laws of the Commonwealth to be elected to the Commonwealth Parliament. If you have any doubts as to your qualifications under the Constitution, the AEC recommends you seek your own legal advice. The AEC does not provide legal advice to prospective candidates.

On 14 August Member for New England, Leader of the National Party of Australia, Deputy Prime Minister and Minister for Agriculture and Water Resources, Barnaby Joyce, became the fifth sitting member to announce that he had only now discovered he holds dual citizenship.

According to Michelle Grattan writing in The Conversation on 15 August 2017 Joyce’s dual citizenship came to light after two lines of inquiry in New Zealand: questions from Fairfax Media, and a blogger, to the Department of Internal Affairs, and questions on notice from [NZ] Labour MP Chris Hipkins, following his conversation with Shadow Foreign Minister Penny Wong’s chief-of-staff Marcus Ganley, who’s a Kiwi.

Besides being exposed as the fifth dual citizen sitting in federal parliament, Joyce is now the third parliamentarian and second member of the Turnbull Government to refuse to resign even though he has been ineligible to stand as a candidate at every federal election held since his birth.

MPs and senators all had one straightforward task to complete prior to every federal election at which they stood as candidates and it is becoming increasingly obvious that very few of them actually did so.

They deserve no sympathy for this failure on their part.


The Sydney Morning Herald, 17 August 2017:

A third Turnbull government minister has been caught up in the dual citizenship crisis that has rocked parliament, with Nationals senator Fiona Nash advising she is a British citizen by descent.

Just moments before parliament rose for a two-week break, the deputy Nationals leader told the Senate that she had received preliminary advice from the British Home Office on Monday that she had received dual-citizenship at birth through her Scottish-born father…..

Prime Minister Malcolm Turnbull convened an urgent cabinet meeting just after 6pm, where it was decided, based on advice from the Solicitor-General, that Senator Nash did not have to resign from either the Senate, or lose her cabinet spot as minister for rural health.

An hour later, the deputy Nationals leader told the Senate that she had become the fourth government member to fall foul of section 44's dual-citizenship rule and would refer herself to the High Court when parliament resumed next month.

The Sydney Morning Herald, 17 August 2017:

Twenty-one people sit in the Nationals' Party room in Canberra.

Four of them – just shy of one fifth of the party room – now face questions about the constitutional validity of their election to the Parliament…..

Barnaby Joyce and Nash, National leader and deputy, Matt Canavan – a senate rising star – all face citizenship challenges, while king-making senator Barry O'Sullivan faces questions over family business dealings with the Commonwealth.

Friday, 28 July 2017

One Nation Senator Malcolm Roberts' British citizenship renunciation timeline not clear

On Sunday 8 May 2016the Prime Minister announced there would be a federal election on 2 July that year.

Writs were issued on 16 May and the rolls closed 23 May 2016.

At 12 noon on Thursday 9 June 2016 close of nominations for both House of Representatives and Senate candidates occurred.

Early voting commenced on 14 June and Election Day ended at 6pm on 2 July 2016.

According to One Nation Senator Malcolm Ieuan Roberts as reported in The Age on 27 July 2017; he wrote to the British authorities on May 1 last year to ask them whether he was a British citizen, given he was born to a Welsh father in India.
He says he got no response so he wrote a further email on June 6 - three days before nominations closed - saying that if he was a citizen he fully renounced. He subsequently nominated as a candidate and won a Queensland Senate seat.

However, this tweet by Chief Political Correspondent, Sydney Morning Herald & The Age, James Massola, throws Malcolm Roberts assertion that he was not a British citizen at the time of nomination into doubt.

It appears that U.K. authorities and Mr. Roberts may possibly have different views of when he ceased to be a British citizen.

I strongly suspect that the High Court of Australia would be inclined to accept the word of the U.K. Government over that of Malcolm Roberts if this difference is confirmed.

Wednesday, 26 July 2017

Liberal Senator Matt Canavan reveals he has dual citizenship but refuses to resign from the Australian Parliament

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 44, Disqualification, “Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; “

Liberal Senator for Queensland Matthew “Matt” Canavan has admitted to Prime Minister Malcolm Turnbull that he held dual citizenship when he was nominated for the Australian Senate in 2013.

His mother Maria and he, along his brother and sister, were registered as Italian citizens in January 2007. He would have been 26 years of age at the time.

Mr. Canavan knew that his mother was an Italian citizen but would have the world believe that he was unaware that he was so registered until 18 July 2017.

This is the official spin the Turnbull Government is offering the national electorate:



Transcript of Statements on Senator Canavan’s Citizenship, Brisbane

25 July 2017 

ATTORNEY-GENERAL: Yesterday afternoon, Senator Canavan approached the Prime Minister, the Deputy Prime Minister and me to tell us that he had received advice from the Italian Embassy that, according to their records, he was registered as an Italian citizen.   

Senator Canavan will explain circumstances in which he came to be registered as an Italian citizen. In brief, it occurred in 2006 when Senator Canavan’s mother, who is of Italian heritage, registered both herself and members of her family, including Senator Canavan, with the Italian consulate in Brisbane as an “Italian Resident abroad,” which is a form of citizenship. Senator Canavan, who was an adult at the time, did not authorise this to be done on his behalf. The first he became aware that she had done so was when she raised the matter with him on 18 July. He then sought urgent advice from the Italian embassy, which was only confirmed yesterday afternoon.

In the meanwhile, the Government has taken advice from the Solicitor-General and we are in the process of taking advice from experts in Italian citizenship law. It is the Government’s preliminary view that, because the registration was obtained without Senator Canavan’s knowledge or consent, that he is not in breach of s. 44 of the Constitution. Nevertheless, in view of the legal uncertainty concerning the matter, when the Senate convenes on Tuesday week, the Government will move to refer the matter for determination by the High Court.

MINISTER CANAVAN:  Well thank you, George. As George has outlined I have become aware that according to the Italian Government, I am a citizen of Italy. I was not born in Italy, I’ve never been to Italy and, to my knowledge, have never stepped foot in an Italian consulate or embassy. Until last week, I had no suspicion that I could possibly be an Italian citizen. In 2006, my mother lodged documents with the Italian consulate in Brisbane to become an Italian citizen. In doing so, it would appear that she made an application for me to become an Italian citizen as well. I was 25 years old at the time. My mother was born in Australia but was able to obtain Italian citizenship through her parents, who were both born in Italy. While I knew that my mother had become an Italian citizen, I had no knowledge that I myself had become an Italian citizen, nor had I requested to become an Italian citizen.

Following the reporting of Senator Ludlam and Senator Waters last week, my mother raised with me, the possibility that I was in fact an Italian citizen, on Tuesday evening. I have, since then, taken steps to check my citizenship status with the Italian authorities and that has confirmed that I was registered as an Italian citizen in January 2007. The Italian authorities have confirmed that the application for Italian citizenship was not signed by me. To my knowledge, until this week I have not received any correspondence from the Italian authorities about my citizenship status and they have not been able to provide any such records.

In the short time available, I have not been able to obtain definitive legal advice as to whether my registration as an Italian citizen, without my knowledge or consent, was valid under Italian law. I am seeking to obtain that advice presently. On the basis of the advice the Government has obtained, and that George outlined, it is not my intention to resign from the Senate. However given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as the Minister for Resources and Northern Australia. I have informed the Prime Minister of that course of action. Thank you.

The bottom line for Mr. Canavan is that by 2013 when he nominated for the Australian Senate he had known his mother was an Italian citizen for at least five years and he did not take reasonable steps to discover if her citizenship by descent had any impact on his own citizenship status.

Matt Canavan should do the honourable thing and resign from parliament immediately as other members of parliament have done before him.


The Courier Mail, 26 July 2017:

It also emerged today that Senator Canavan discussed Italian citizenship with his mother almost a decade ago.

It has also been alleged that the Italian Government has sent him voting forms for the last ten years.

Wednesday, 2 November 2016

Senators falling like skittles in Canberra

On 1 November 2016  it was the announcement that it was the intention of the Turnbull Government and  Australian Parliament to challenge the validity of the election of Family First Senator for South Australia Bob Day in the High Court on the basis of a potential non-direct pecuniary interest through Fullarton Investments Pty Ltd.

One day later and a similar announcement is made concerning One Nation Senator for West Australia Rod Cullerton in relation to a criminal conviction for larceny prior to the 2016 federal election.


Senator Rod Culleton
Last Saturday, I wrote to the President of the Senate, the Hon Stephen Parry, to draw to his attention an Opinion which I had received from the Solicitor-General concerning the election of Senator Rod Culleton as a Senator for Western Australia.  I received the Opinion late on Friday, 28 October 2016.  I also provided a copy of the Opinion to Senator Culleton.

The opinion was sought by me on 13 October 2016 in view of issues raised in proceedings commenced in the High Court against Senator Culleton by Mr Bruce Bell. 

It appears that the proceedings brought by Mr Bell are based on an allegation that, at the time of the last election, Senator Culleton had been convicted of an offence punishable by a sentence of imprisonment for one year or longer, and was therefore “incapable of being chosen” as a Senator under section 44(ii) of the Constitution.

The President of the Senate has written to me today to advise that he proposes to bring the matter to the attention of the Senate when it sits on 7 November 2016.  At that time, the Government will initiate a referral of the matter to the High Court pursuant to section 376 of the Commonwealth Electoral Act.

2 November 2016

Tuesday, 1 November 2016

Please tell me how Family First Senator Bob Day has the gall to remain in the Australian Senate after announcing his resignation

s44. Any person who:
(i)is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(iv) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

s45. If a senator or member of the House of Representatives:
1. becomes subject to any of the disabilities mentioned in the last preceding section; or
2. takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or
3. directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State;
his place shall thereupon become vacant.

Make no mistake, the following represents the insolvent liquidation of companies owned by Family First Senator Bob Day and family (with Bob Day as sole director) and foreshadows personal insolvency.  There are 207 houses still under construction and building work halted, an unspecified number of employees having no guarantee of full payment of wages/superannuation/holiday pay owed and, an unknown number of business creditors who will presumably meet with the liquidator in November 2016.

The Australian, 18 October 2016:

Senator Day said Home Australia and its subsidiaries in South Australia. Western Australia, Victoria and New South Wales would be liquidated by McGrathNicol.

“As I have always agreed to sign personal guarantees to creditors, this closure also has serious implications for me and my family,” he said.

“Creditor liabilities greatly exceed our assets so we will also lose our family home.
“As for my role as a Senator, I will of course resign.”

Smart Company, 18 October 2016:

Matthew Caddy and Barry Kogan of McGrathNicol have been appointed as liquidators of parent company Home Australia Pty Ltd, as well as seven wholly owned subsidiaries: Homestead Homes Pty Ltd, Collier Homes Pty Ltd, Newstart Homes (SE QLD) Pty Ltd, Ashford Homes Pty Ltd, Huxley Homes Pty Ltd, Nationwide Australian Investments Pty Ltd, and Smart Road Property Rentals Pty Ltd.

Construction on all homes being built by Home Australia has ceased and the liquidators said in a statement on Monday their “immediate objective is to work constructively with relevant insurers and customers in an effort to facilitate the orderly recommencement of construction of uncompleted homes by alternative builders”.

McGrathNicol is also accepting expressions of interest from potential buyers for the entire Home Australia business or individual parts.

The Guardian, 27 October 2016:

Family First senator Bob Day’s collapsed house building empire owes a total of $37.8m, according to their liquidator.

A spokesman for liquidator McGrath Nichol told Guardian Australia on Thursday that the seven companies owe unsecured creditors a total of $19.6m.

The figure dwarfs initial estimates that unsecured creditors were owed $12.5m.

The companies owe a total of $18.2m in secured debt, of which National Australia Bank is owed $17.5m. Those debts will take priority over the unsecured creditors.

Australian Securities and Investments Commission (ASIC) 26 October 2016:
106 443 216
Registration date:
Next review date:
External Administration
Australian Proprietary Company, Limited By Shares
Locality of registered office:
Australian Securities & Investments Commission
Notification of Appointment of Liquidator (Creditors' (505J)
Voluntary Winding Up) 

Unfortunately for parliamentary democracy, Senator Day appears to have now rethought his statement of 17 October that he was resigning from the Senate and now intends to stay indefinitely as his announcement was apparently only one of future intent.

Wellington Times, 24 October 2016:

……Senator Day issued a short statement.
"I refer Fairfax to my statement last Monday expressing an intention to resign as a result of my family company's problems," he said.
One Adelaide-based expert in receivership and company administration said it was unlikely Senator Day's companies could be wound up quickly and suggested a possible bankruptcy was at least six months away.
Parliament will return on November 7 for three final sitting weeks of the year, with the Senate expected to vote on the two bills used for trigger the July 2 double dissolution election.
Senator Day's vote will be crucial as the government seeks nine out of 11 crossbenchers to support the legislation. If he is not present for the votes, he would seek a pair with Labor.


ABC News, 1 November 2016, 12:37pm:

Family First senator Bob Day has tendered his resignation, effective immediately.

Pressure had been mounting on the now-former senator to resign as his construction company crumbled.

Monday, 2 February 2015

The so-called Prime Minister for Indigenous Australia needs to organize himself - there are only twenty sitting days left before the Aboriginal and Torres Strait Islander Peoples Recognition Act expires

Australian Prime Minister Tony Abbott needs to focus on essentials when Parliament resumes on 9 February 2015.

The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 ceases to have effect on 27 March 2015.

The Aboriginal and Torres Strait Islander Act of Recognition Review Panel pointed this out when it delivered its final report to the Abbott Government in September 2014, so there is no excuse for extension of this act not being in the first order of business at the commencement of this parliamentary year.

Monday, 15 September 2014

Recognition of Aboriginal and Torres Strait Islander Peoples: review report required by legislation to be handed to federal government by 27 September 2014

Tony Abbott is determined that recognising indigenous people in Australia's constitution is a "national crusade'' that should be important to everyone…. He has promised to finalise a draft form of words for changing the constitution by September. [The Australian, 26 January 2014]

Under federal legislation, An Act to provide for the recognition of Aboriginal and Torres Strait Islander peoples, enacted by the former Gillard Government, a review committee comprising former Nationals MP & Deputy Prime Minister John Anderson, Campaign Director of Recognise Tanya Hosch and Deputy Secretary of the Department of the Prime Minister & Cabinet Mr Richard Eccles, was formed by the Abbott Government in March 2014.

This committee is under a mandatory deadline and has until 27 September 2014 to submit its report to the Federal Government on support for a referendum to amend the Constitution.

Another requirement under this legislation means that the Abbott Government must table this review committee report in the House of Representatives within 15 sitting days of receiving it - that is on or before 27 November 2014.

Thus far there has been no media release from the Minister for Indigenous Affairs concerning receipt of the report.

As has become the norm these days, Abbott & Co. appear to be briefing the media before the Australian Parliament and people:

TONY Abbott’s hand-picked panel advising on a constitutional change to recognise Aborigines has paved the way for delaying a vote as late as the 50th anniv­ersary of the highly successful 1967 “Aboriginal” referendum.
The panel is concerned that the public is not nearly ready for a recognition referendum and has raised the possibility of delaying the vote until 2017 — after the next election.
The foremost recommendation that has gone to the government is that a “council of elders” — indigenous and non-indigenous — be established to oversee and crystallise the referendum model for constitutional change.
The new council would be separate from the other inquiries and panels currently reviewing the future of the referendum.
The recommendations of the review panel, chaired by ­former deputy prime minister John ­Anderson, include the ­creation of a timeline for action as soon as possible.
Recognising that poor public awareness and ­extreme views would threaten any referendum held too soon, the review panel canvassed with the government an “outer limit” for the vote of the 50th ­anniversary of the 1967 referendum, the highest “yes” vote in a referendum in Australia’s history…. [The Australian, 12 September 2014]

Scullion also said it was unlikely the referendum would be put to voters in this term of parliament. He said it would be a “very brave” government who injected this issue into its first bid for re-election. [The Guardian, 9 September 2014]

It seems that the Abbott Government intends to allow the current recognition legislation to lapse on 27 March 2015 without there being a timetable for a national referendum or concrete details of any referendum question.

Friday, 8 August 2014

Well worth repeating: The Age editorial 'Playing Games With Religion In Schools'

Date August 1, 2014

The ancient book of Ecclesiastes teaches that there is a time and a place for everything. A time to be silent and a time to speak. There is also a time to pray, if that is what is needed. Whether there is a time and place for students to pray during school lunchtimes, however, is a matter that clearly causes some people enormous concern.

After state Education Minister Martin Dixon issued a ministerial direction about the rules and procedures governing the provision of special religious instruction in government schools, a cry erupted among some Christian groups claiming the rules encroach on basic human rights. Opponents of the directive say it amounts to an attack on religious freedom and free speech, and that it is a step towards outright bans on prayer in schools.

Their rhetoric is inflammatory, and their concerns are misplaced. The government is not banning prayer in school. It is not forbidding students to pray at lunchtime, if that is what they want to do with their meal break. It is saying that prayer forums ''cannot be led'' by teachers or other school staff, by parents, volunteers or visitors. Put another way, if there are prayer groups or meetings of student religious clubs during school hours, then they must not take the form of ''instructed'' prayer. That is a world away from imposing draconian curbs on the rights to religious freedom and free speech.

The rationale is simple. Government schools are secular environments and their primary aim is education. It has been that way since the Education Act of 1872 formalised that public education in this state should be free, secular and compulsory. In 1958, the law was amended to provide an exception allowing non-compulsory religious instruction classes to be held within schools, but on certain conditions and only by accredited providers. It should be noted the law does not bar religious instruction classes being held on state school grounds outside school hours.

The 2006 education legislation states that schools must ''not promote any particular religious practice, denomination or sect'', but it nevertheless allows schools to provide classes of special religious instruction during school hours, only by accredited representatives. To allow non-accredited instructors to supervise religious sessions at lunchtime would be to subvert the system entirely. Mr Dixon's directive provides a framework for schools to ensure they are abiding by the law and not inadvertently providing non-accredited religious instruction classes.

The Age has consistently argued that beyond reading, writing and arithmetic, there is room in schools for the study of the various belief systems and for informed and informative discussion about ethical choices. Education about religion should provide students with sound information about belief structures and religious practices that help shape our world, as well as provide historical context to the role played by religion in our world. A byproduct of all that might be greater social awareness and enhanced tolerance of diversity.

That does not, however, justify a state-backed religious agenda in education. A secular school system should not impose proselytising nor actively sponsor it. If religious instruction is to be conducted at all within the secular school environment, then there must be clear boundaries and rules. Where state schools do provide special classes in religious instruction, who teaches it, how, and when it is provided should all be carefully managed.

Nothing bars students from organising their own religious groups at school; they are not impeded in practising their religion at school. Their fundamental rights are preserved. At the same time, the resources and facilities of the state education system must be directed primarily to education for all

Although the directive mentioned in this editorial applies only to Victorian schools, the debate concerning religion in schools is nation-wide.

Saturday, 21 June 2014

Australian High Court slaps down Abbott Government yet again

It would appear that the Australian Constitution and the High Court have become the only effective brakes on the policy excesses of the Abbott Government.

Yesterday, it handed down two more judgments that came hard on the heels of its 19 June ruling that the school chaplaincy program funding was unlawful.

Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor (PDF 14K) and Plaintiff M150/2013 by his Litigation Guardian Sister Brigid Marie Arthur v Minister for Immigration and Border Protection & Anor (PDF 14K).

20 June 2014

[2014] HCA 24

Today the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s 85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year.

The judgment in this matter should be read with the judgment handed down today in the concurrently heard matter Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25. 

The plaintiff is a Pakistani national who entered Australia by sea at Christmas Island in 2012.  He did not have a visa and was, therefore, an unlawful non-citizen within the meaning of the Act.  He made a valid application for a protection visa.  The Refugee Review Tribunal determined that he was a refugee within the meaning of the Refugees Convention, satisfying the criterion for a protection visa under s 36(2)(a) of the Act.  However, he has been neither granted nor refused a protection visa because of an instrument signed by the Minister on 4 March 2014, which purported to determine under s 85 of the Act the maximum number of protection visas that may be granted in the financial year ending 30 June 2014.  That maximum number having been reached, the grant of a protection visa to the plaintiff in this financial year would exceed that limit.

Section 85 of the Act provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year.  Protection visas are a class of visa provided for by s 36.  Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied.  Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa.  A special case stated questions of law for determination by the Full Court.

The High Court held that the instrument was invalid.  In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year.  The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law.
  • 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.