3 April 2019

CQX18 is the boat identification of an Iranian man, who applied for a visa in March 2018. This request was rejected, and that decision was reaffirmed in April. He appealed that decision in the Federal Circuit Court in July 2018. Judge Street heard the Iranian man’s appeal that day. Judge Street ruled against him, and ordered him to pay the Minister’s costs of $7328. Judge Street delivered his ruling orally. This presented a significant challenge to the Iranian man. He was not in the courtroom, but connected by video link from Yongah Hill Immigration Detention Centre.

1 April 2019

After upholding an application by the NSW Police Commissioner to prohibit a Stop Adani protest scheduled to take place in Newtown in February, the NSW Supreme Court rejected an application by the Police Commissioner that the organizer of the protest pay his legal costs for going to Court. 

The Stop Adani protest was intended to proceed along King St, Newtown on 17 February, the same day as Fair Day organized by Mardi Gras in nearby Victoria Park.  The Court considered that the level of disruption which would be caused by closing King St for the duration of the Stop Adani protest on the same day as Fair Day justified the making of a prohibition order.

26 March 2019

The High Court of Australia has refused to hear an appeal from the NSW Attorney-General in relation to trying the man suspected of murdering three Aboriginal children in Bowraville. The saga of the Bowraville murders has lasted for almost 30 years, beginning with the deaths of the children over a period of five months from 1990 to 1991. The disappearances were originally treated with minimal concern by the police, who suggested the children had gone “walkabout”. The police failure to gather evidence in the crucial early period doomed the attempt to gain justice for the children. In 1994, a man was tried for the murder of one of the children, Clinton Speedy-Duroux. He was acquitted.

According to Professor Larissa Behrendt, the police began to rebuild their credibility with the local Aboriginal community by appointing detective inspector Gary Jubelin to investigate the case. He gathered new evidence to try the same suspect, and presented it before a coronial inquest in 2004. It was regarded as compelling, and this led to a new trial of the suspect, this time for the murder of one of the other children, Evelyn Greenup. Once again, the man was acquitted. The prosecution argued for admitting the new evidence in relation to the deaths of the other children, but this submission was rejected.

21 March 2019

On 13 March, the High Court of Australia handed down what is widely considered one of the most significant cases on native title since the famous Mabo 2. The case considered the rights of the Ngaliwurru and Nungalli peoples to compensation in relation to their traditional lands in the Northern Territory.

The basic principle of native title is that where Aboriginal people can show that they have traditionally used land in a particular way, they have acquired a kind of right to that land to continue their usage. That right is called native title. Native title can be extinguished in various ways. An example of extinguishment is what happened in Timber Creek. Between 1980 and 1996, the Northern Territory government engaged in 53 acts, such as granting tenure to land, and constructing public works. These extinguishing acts occurred over 127 hectares, to which Aboriginal people up to that point had exercised their native title.

As the NSW state election approaches on March 23, and the federal election approaches in May, abortion law reform is finally on the political agenda. Most significantly, the Deputy Leader of the Opposition Tanya Plibersek announced the ALP’s National Sexual and Reproductive Health Strategy. Part of this Strategy will include tying federal health funding of public hospitals to their provision of abortion services. The effect of this will be to place significant pressure on states like NSW, where abortion is currently illegal, to provide abortion services in public hospitals. Labor has said it intends to “work closely with the states” to progress decriminalising abortion across Australia.

Queensland decriminalised abortion in October 2018. NSW is currently the only state or territory in Australia where abortion is a criminal offence. There are restrictions on when abortion is legal in other states and territories, including varying conditions on gaining the approval of doctors.

On Wednesday 27 February, at about 4 pm, the Queensland State Parliament passed its Human Rights Bill into law, by a series of vote 49 to 43. There are now three individual human rights acts in Australia: one in Queensland, one in Victoria, and one in the Australian Capital Territory.

The three acts operate in broadly similar ways. They require courts and tribunals to interpret legislation in a way consistent with human rights, except where doing so would be inconsistent with the purpose or plain meaning of the legislation. If the Supreme Court is asked to find whether a particular law or statute is incompatible with human rights, declaring that there is an incompatibility does not result in the law being struck down. The declaration simply means that the relevant Minister or Attorney General has to table a written response to this declaration in parliament. These declarations have been further defanged in Queensland and Victoria, whose human rights acts provide for their parliaments issuing override declarations. Where these are made, the human rights acts have no bearing in relation to the relevant provisions or legislation.

The New South Wales Council for Civil Liberties (CCL) has condemned the NSW Premier Gladys Berejiklian’s plan to give police powers to search people’s homes and cars without warrants.

The new powers, as reported in the Daily Telegraph, would allow police to seek court authorisation to permit searches for prohibited drugs and drug paraphernalia in a person’s home or car during a two year period. These powers would operate on a pilot basis across four police commands, including Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western police districts. They are intended to target drug offenders.

NSW CCL President Pauline Wright said “The Courts act as a check on the possible abuse of the enormous powers that we give to the police. If there is a reasonable basis for a search, the courts will grant the warrant. If the police can’t show a reasonable basis for a warrant, then it shouldn’t be granted. These new powers are not needed, and offer an unacceptable prospect of being abused.”

The NSW Council for Civil Liberties condemns the appalling act of terrorism that was inflicted last Friday upon people peacefully at prayer in Christchurch.

On Friday night, President of the Council, Pauline Wright, said “Our thoughts are with the people of Christchurch in all their diversity. NSW Council for Civil Liberties supports the rights of people of faith to observe their religions, no matter whether in a synagogue, temple, church or mosque. It is a dark day for our sisters and brothers across the Tasman and our hearts go out to them.”

In December last year, Wentworth MP Kerryn Phelps advanced a bill to provide for emergency medical evacuations for people on Manus or Nauru. After negotiations with the crossbench, she agreed on amendments with independent MP Tim Storer and the Greens. These amendments were passed by the Senate with Labor’s support.

The bill provided that if two doctors agreed a person needed medical attention, they should be brought to Australia.  The Minister can refuse to do so for security reasons related to ASIO assessment. If the Minister believes that the person does not need medical evacuation, an Independent Health Advice Panel would evaluate the question. The Minister could not overrule their conclusions on medical grounds: the Minister could only refuse medical evacuation if the person was judged prejudicial to Australia’s security. The Bill also provided for 24 hour limits on each step of the process, in recognition of the medical emergency involved.

Labor and the cross-bench found sufficient common ground to achieve a significant victory for decency and humanitarian values in the Australian Parliament yesterday. The medical evacuation amendment was further amended and then passed in the House of Representatives by a vote of 75-74. It was also an historic victory in that it is the first time in 75 years that a Government has lost a substantive vote in the lower house.  

This was achieved in the face of an extraordinary and increasingly desperate onslaught by the Government.

The saga is however ongoing. The Bill must return to the Senate today. It’s passage there is not guaranteed. The Government may repeat its December tactics and filibuster to block its consideration. Derryn Hinch is reported as ‘considering his position’ on the amendments. His vote is crucial.  

It will be another tense day for supporters of the amendment.

The positives so far

Under extreme pressure the cross bench and Labor were sufficiently sure-footed to negotiate a workable amendment.

The agreed amendment remains strong enough to achieve speedy medical evacuation for those requiring urgent medical care which cannot be provided in Manus or Nauru – albeit with several caveats.

The amendment addresses the central scare-mongering Government claim- a renewed wave of asylum seeker boats – by restricting the provisions to persons on Manus and Nauru at the commencement of the legislation.

Tony Smith brought some dignity and propriety to the house and enhanced his status as a fair and non-partisan speaker by refusing what reads like an instruction from the Attorney General Christian Porter to block discussion of the amendment on constitutional grounds and by making this ‘instruction’-  and the underpinning advice from the solicitor general -  public despite a specific request from the AG to keep it private.

Some caveats

Minister Dutton retains greater discretionary power to exercise his veto on medical transfers than initially proposed in the cross-bench amendment which leaves open the possibility of misuse/abuse of the provisions.

The restriction of the provisions to only those detained at the commencement of the legislation leaves an obvious future problem if we continue with off- shore processing of asylum seekers.

We are also left with an ethical/moral issue in relation to those who will be excluded from the new provisions because they are deemed a threat to national security and have committed serious crimes. Do we think it is acceptable to allow them to die or suffer from serious illness?

Desperate government tactics

The Government ran an all-out attack on the amendment (in fact on any amendment to the existing legislation) and on Labor yesterday. There was little or no mention of the cross-benchers who were the initiators of the amendment. Though we are all familiar with disregard for truth or logic in parliamentary debates, the Government pushed the boundaries on such behaviour yesterday. Their tactics seemed to be driven both by increasing desperation about losing the vote and ‘smart’ forward thinking about effective election tactics.

As the commentators say, we are getting a preview of the pivotal role border protection will have in the forthcoming election- if the Government has its way.

The surprise of the day was the revelation by the speaker at the end of question time that he was in receipt of a letter from the AG - including advice from the solicitor general that there was an argument that the underlying amendment passed in December 2018 was unconstitutional and that the AG considered that on these grounds the speaker should not allow the amendment to be considered at this stage. And that he should keep the advice private.  

The speaker’s calm rejection of both these requests was a high point in the parliamentary day.