Tag Archives: Law & Justice

Dyson Heydon judges himself

The Australian Council of Trade Unions (ACTU) will ask the royal commissioner into trade union corruption, Dyson Heydon, to disqualify himself – an application he will hear today.

If the move is unsuccessful, the unions will appeal to higher courts.

Professor Nicholas Cowdery QC thinks Justice Heydon can be impartial in judging himself. You see, it’s the training of the legal mind. Continue reading Dyson Heydon judges himself

Remembering the Magna Carta

Miriam Webster defines the Magna Carta as “a charter of liberties to which the English barons forced King John to give his assent in June 1215 at Runnymede”.

June 15, in fact, 800 years ago today. Lord Denning describes it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”. Continue reading Remembering the Magna Carta

Abbott and the law

David Marr has turned his considerable forensic and rhetorical skills on Abbott in an article Tony Abbott running from the law in The Saturday Paper, the weekly version of The Monthly.

(You might be able to get free access to three articles a week by signing up. I took out a three-month sub to see how it goes.)

Rather than running from the law in then usual sense, Marr’s basic point is that Abbott has no feel for the law. In pursuit of political ends he actually shows contempt for it:

Abbott doesn’t set out to break the law. That’s not the point. But when the law stands between him and a quick win, he shows contempt for its values, its customs and the part they play in national life. (Emphasis added)

Abbott is pragmatic rather than principled – he does what it takes to win the contest at hand. What we expect from Abbott is:

minimum scrutiny by the courts, maximum power to government and close to nil concern for individual rights as Canberra pursues refugees in boats and lone wolf terrorists.

An example is the amendment last year of the Maritime Powers and Migration acts.

The amendment shreds our obligations under the Refugee Conventions and hands godlike powers to immigration ministers to decide the fate of refugees.

Malcolm Fraser called the bill: “The perverse creation of a government prepared to tear up the rule of law for its own political ends.”

Abbott’s attitude to the law can be seen in his response to a US court finding that there was no legal basis for holding David Hicks in Guantanamo Bay for five years:

“Whatever the legalities … he was up to no good.”

On several occasions now Abbott has ignored due process in declaring lone wolf terrorists guilty, using the most florid language. Within hours last September Abbott declared Omarjan Azari guilty of plotting random “demonstration killings” at the direction of a senior Islamic State figure linked to Australia.

Azari’s solicitor Steven Boland has attacked Abbott for “unprecedented intrusion by a sitting PM into criminal proceedings” and complained of “irreparable prejudice” caused to his client’s case. Abbott, he says, “has deliberately or otherwise spread misinformation that has no support in the evidence”.

The resu;t could well be Azari’s acquittal.

About a month ago Omar Al-Kutobi and Mohammad Kiad were arrested for planning a terrorist attack in Sydney with a knife and a machete. Immediately they were tried and found guilty by Abbott in parliament:

“I do not think it would be possible to witness uglier fanaticism than this, more monstrous fanaticism and extremism than this, and I regret to say it is now present in our country,” he told the house.

Marr says that respect for the law is a conservative value. Abbott is no conservative. PMs normally bridle at the restraints of the law.

Abbott has been willing to a remarkable degree to push the law aside to appease populist fears and populist contempt for human rights.

In responding to Gillian Triggs Abbott failed to recognise that the Human Rights Commission is one of the pillars of our justice system. Abbott descended into street-brawling mode in an attempt to win the point. In Abbott’s world inquiries are for stitching up an opponent. He thought he was being stitched. Forget the fact that children in detention are being damaged by public policy.

He forgets too, says Marr, that judges are trusted more than politicians. Abbott is playing to his base but with respect to the centre it looks like a losing strategy.

What Business Spectator thinks of our refugee policy

On Maundy Thursday, the Business Spectator lead story was this telling article on the Rudd/Abbott refugee policy by Rob Burgess.  The article starts with:

As many Australians prepare for a holiday marking the most important Christian festival of year, it’s worth remembering that Jesus of Nazareth began life as a refugee, taken to Egypt to escape King Herod’s slaughter of male infants.  

The refugee family eventually went home, so there was no need to transfer the infant to an offshore detention facility – I mean, who’d even think of doing that?”

 And ends with:

While the nation spends a long weekend celebrating the life of the world’s most famous refugee, political leaders might take time to sniff the wind again and realise we’re standing out in our region for all the wrong reasons.

As Fraser sums it up: “Whatever else our refugee policy is, it isn’t Christian.”

In the middle there was a well argued article with useful supporting data that included:

“In years to come, people will look back at the Abbott Government’s practice of locking innocent children up on remote Pacific islands and shake their heads with disbelief,” said Hanson-Young on Wednesday.

It may not take years. Other nations, including key trading partners, are already shaking their heads at Australia’s offshore processing regime…….

” At this year’s human rights dialogue between China and Australia, vice-minister of foreign affairs Li Baodong said China had concerns “especially on the protection of refugees and asylum seekers, the right of the children of refugees in education and other rights … We have also asked about whether these refugees will be illegally repatriated to other countries….”

While the Greens have long used moral arguments to condemn Labor’s and the Coalition’s policy, economic and strategic concerns give added weight to opprobrium from our trading partners.

Recent history shows how quickly a latent dislike of Australia can become manifest – the fury on the streets of Indonesia during the recent phone-tapping scandal was fed by negative stereotypes of Australians that stretch back through the 20th century.

Not only are we remembered as the lucky country that ran the white Australia policy, but our political leaders of the past have (often unfairly) been seen as colonialists seeking to impose a Western order on peoples who, from their own domestic perspective, were throwing off the shackles of a colonial past.

Whatever the roots of our negative image within the region, Australia’s national interest lies in the paring away of stereotypes, not augmenting them with stories of babies flown to Pacific Island prisons.”

Think about how those who used to be excluded by the White Australia policy must see us now:  Here is a country getting all agitated about 18,111 protection visa applications from boat people in 2012/13 despite having a strong economy and an estimated 2013 net immigration of 234,000.  A country that claims to be all about a fair go but thinks its OK to send refugee children to concentration camps in breach of a refugee convention that Australia signed.  A country where both Abbott and Rudd are very public, white Christians being nasty to refugees who mostly aren’t Christian and who would have been blocked from entry under the white Australia policy.

Having an Attorney general who has stated that it is “OK to be a bigot” doesn’t help either.

Progress is being made whenever an important, Murdoch owned business blog is saying, in effect, that our refugee policy is not only non-Christian but also bad for business and our relationship with our neighbours.

Enjoy your Easter.

Appendix:  Refugee Council of Australia’s data on Australia’s refugee performance compared with the 10 best countries:

Graph for Australian self-interest through Asian eyes

His Honour v Herr Kommandant

Last week Qld premier Campbell Newman told the state’s legal fraternity to “come out of your ivory towers” and realise the only reason the government introduced a raft of tough new laws because the “system was failing”.

He said members of the legal industry who had publicly questioned the legislation and queried whether the government was blurring the lines between the judiciary and the executive were out of touch.

Last year 400 people committed offences while out on bail in Queensland, Mr Newman said, adding that Phillip Graeme Abell was out on bail when he killed Gold Coast policeman Damian Leeding.

“They [the legal fraternity] are living literally in an ivory tower,” Mr Newman said.

“They go home at night to their comfortable, well-appointed homes, they talk amongst themselves, they socialise together, they don’t understand what my team and I understand, and that is Queenslanders have had enough.”

On the separation of powers

Mr Newman said he believed it to be “more of an American thing, I should say”, but said he understood parliament to be “supreme” because it was “the manifestation of the will of the people”.


“It would be absolutely inappropriate for us to interfere in the workings of a specific court or case. That is where the separation of powers comes in. I don’t tell judges what to do, neither does the Attorney-General, nor do we now.

“What we are saying is, the community says enough is enough, they are not being protected, we are saying, here is a new set of laws to try and protect Queenslanders.

“If Queenslanders don’t like it, they’ll vote us out.”

Now Queensland Supreme Court judge Justice George Fryberg questioned whether he should hear a submission from the Director of Public Prosecutions asking the Supreme Court to review the decision to grant bail to 25-year-old alleged Bandidos member Jarrod Kevin Anthony Brown who police allege was one of the Bandidos involved in a public bikie brawl on the Gold Coast last month. Continue reading His Honour v Herr Kommandant