tag:theconversation.com,2011:/global/topics/high-court-1166/articlesHigh Court – The Conversation2024-02-12T09:28:03Ztag:theconversation.com,2011:article/2233392024-02-12T09:28:03Z2024-02-12T09:28:03ZFederal government hasn’t applied for any preventative detention orders for ex-detainees, saying it takes a long time<p>The federal government has so far not applied to have any of those released from immigration detention after the November High Court judgement re-detained, according to figures released on Monday. </p>
<p>The government raced legislation through parliament in December to enable it to apply to a court for preventative detention orders. </p>
<p>Under sustained opposition questioning in the House of Representatives, Immigration Minister Andrew Giles said the government’s regime was modelled on the Coalition’s high risk offenders legislation, which had seen a lengthy time for any application to be made. </p>
<p>Figures released during Senate estimates hearings showed 24 of the 149 detainees released have been arrested and charged with offences - six for breaches of visa conditions and 18 for offences under state and territory law. </p>
<p>At the end of January, 113 of the ex-detainees had been required to wear ankle bracelets. </p>
<p>Details of the ex-detainees’ offences committed before their detention were released on Monday. They showed seven had been convicted of murder or attempted murder and 37 of sexually-based offences, including child sex offences. </p>
<p>Some 72 had convictions for assault and violent offending, kidnapping, and armed robbery; another 16 had convictions for domestic violence and stalking. </p>
<p>Thirteen had convictions for serious drug offences, less than five for serious people smuggling crimes and less than five for offences described as a “low level or no criminality”. </p>
<p>Numbers include overseas offending in some cases.</p>
<p>The ex-detainees cannot be deported because no other country will take them or they are stateless.</p>
<p>The opposition unsuccessfully pressed Giles on whether any of the 36 people who were not wearing ankle bracelets had committed offences since leaving detention. In Senate estimates the government took the question on notice.</p>
<p>Giles declined to go into “operational matters”. </p>
<p>He said “the management of everyone in that cohort has been subject to the expert advice of the men and women of the community protection board”. </p>
<p>Giles repeatedly stressed the people had had to be released under the High Court decision, which would have been the case under any government. The court found they could not be indefinitely detained.</p>
<p>“Since then, we have been working around the clock to ensure the community is kept safe.</p>
<p>"We have done so by putting in place layers of protection. One of which is, of course, the regime that was the subject of legislation […] at the end of last year” providing for preventative detention.</p>
<p>Saying this was modelled on the Coalition’s high-risk offenders law, Giles pointed out “it took more than three years for the first continuing detention order application after that regime was enacted.</p>
<p>"And 10 months was the shortest period of time for an application to be made to the court under the members opposite.”</p>
<p>Opposition home affairs spokesman James Paterson said Senate processes had forced the government to “cough up” a whole lot of information. “Hopefully the government actually gets off their proverbial and makes an application to the court.”</p><img src="https://counter.theconversation.com/content/223339/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Government has been under sustained questioning in parliament after it was revealed the federal government has so far not applied to have any of those released from immigration detention to be re-detained.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2193842023-12-13T00:47:58Z2023-12-13T00:47:58ZNew laws to deal with immigration detainees were rushed, leading to legal risks<p>The release of detainees as a consequence of the High Court’s decision in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/37.html">NZYQ v Minister for Immigration</a> resulted in a frenzy of law-making, which is likely to rebound to the High Court in further constitutional challenges. </p>
<p>What are the issues and the risks?</p>
<h2>The constitutional issues</h2>
<p>In both the <em>NZYQ</em> case and previous <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/64.html">cases</a>, the High Court has held that, apart from some identified exceptions (such as mental health and infectious disease), the involuntary detention of a person amounts to punishment. According to the doctrine of separation of powers, it is exclusively the job of the courts to judge and punish criminal guilt. </p>
<p>However, the executive government, under statutory authority, can validly detain non-citizens for the purpose of processing their claims for entry into Australia and for the purpose of deporting them. </p>
<p>In <em>NZYQ</em> the court decided that if deportation was not “practicable in the reasonably foreseeable future”, then the detention was no longer for this “legitimate non-punitive purpose”. Therefore, it would be treated by default as “punishment”, which only a court can impose.</p>
<p>The High Court made its order to release a detainee, NZYQ, on November 8. In doing so, it declared that certain sections of the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s189.html">Migration Act</a> could not validly support his detention. </p>
<p>This meant these same provisions could no longer support the detention of other detainees in the same position as NZYQ – that is, non-citizens for whom there was no real prospect of being deported in the reasonably foreseeable future. </p>
<p>As governments have to obey the law and cannot unlawfully detain people, the detainees were released.</p>
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<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<h2>The first response – strict visa conditions</h2>
<p>The parliament initially responded by enacting a law to impose very strict visa conditions on this released group of non-citizens. It introduced <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/mavca2023419/">a new bridging visa</a>, which imposed restrictions on the holder’s movements, work and contact with others. It was rushed through both Houses of Parliament in just one day – November 16. </p>
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<p>When it was <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr7114_first-reps%2F0000%22;rec=0">introduced</a>, the bill permitted the minister, at his or her discretion, to impose curfews on the visa holders and electronic monitoring of them through ankle bracelets. </p>
<p>The minister <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F27181%2F0012%22">said</a> a rigorous assessment process would be undertaken to identify those individuals who posed a particular risk to the community. The individual circumstances and risk profile of the visa-holder as well as community safety would be considered.</p>
<p>By the end of the day, this provision was amended so the minister <em>must</em> impose curfews and electronic monitoring “unless the Minister is satisfied that the holder does not pose a risk to the community”. Other changes included imposing mandatory minimum sentences of a year’s imprisonment for breaches of visa conditions, and making separate offences for each day an offence continues.</p>
<h2>Criticism of the law</h2>
<p>As the bill was introduced and passed so quickly, it was not the subject of serious parliamentary scrutiny. However, a Senate standing committee later published its <a href="https://www.aph.gov.au/-/media/Committees/Senate/committee/scrutiny/scrutiny_digest/2023/Updated_Digest_15/D15_23.pdf?la=en&hash=5FE99BCC8397DC8E3B838C2EC3587DA358DDFF2D">analysis</a> of the law. This Liberal-chaired <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Committee_Membership">committee</a> criticised the speed with which the bill was passed, noting that it impeded the proper scrutiny of the serious impacts of the bill on personal rights and liberties. </p>
<p>The committee also raised concerns about the lack of procedural fairness, proportionality and clarity of the provisions. It pointed out that the automatic imposition of these visa conditions “may prove to be disproportionate responses to community risk in their application to individual circumstances and cases”.</p>
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<h2>Legal challenges to the new law</h2>
<p>At least three challenges to the validity of these visa conditions, including curfews and electronic monitoring, have been initiated in the High Court. </p>
<p>They raise the questions of:</p>
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<li><p>whether the executive government, rather than a court, can impose these restrictions on a person’s liberty</p></li>
<li><p>whether such restrictions are really for legitimate protective purposes if applied “across the board” with little or no consideration of the risk an individual may pose to the community </p></li>
<li><p>whether the imposition of mandatory restrictions on a person’s liberty, without considering their appropriateness to each individual, amounts to punishment. </p></li>
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<p>The concern that these visa conditions are being applied with little consideration of public risk or the appropriateness of their application is supported by the fact that, as at November 27 2023, 132 of the 138 people released from immigration detention were subject to electronic monitoring. </p>
<p>The minister also <a href="https://minister.homeaffairs.gov.au/ClareONeil/Pages/press-conference-27112023.aspx">said</a> in a press conference that “the curfew and electronic monitoring conditions generally would apply across the board”.</p>
<h2>The second response – preventive detention</h2>
<p>In its <em>NZYQ</em> judgment, the High Court stated that its order for the release of NZYQ would not prevent his detention “on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody”. Such laws already exist in the states. </p>
<p>It is important to note that the court did <em>not</em> say the Commonwealth Parliament has the power to enact such a law. Rather, that will depend on whether the law falls within a constitutional power conferred on the Commonwealth and whether it is consistent with the constitutional separation of powers.</p>
<p>The Commonwealth parliament nonetheless <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/maolavsoaoma2023866/">passed</a> a preventive detention regime for non-citizens who have been convicted of a serious violent or sexual offence, and for whom there is no real prospect of deportation in the reasonably foreseeable future. </p>
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<p>A state or territory Supreme Court may issue a detention order if it is “satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence”. </p>
<p>This regime is based on one that already exists in relation to terrorism offenders, and has withstood challenge. It is therefore more likely to survive a challenge based on the separation of powers. </p>
<p>But there are differences between the two regimes. </p>
<p>The terrorism one is supported by the federal parliament’s power to make laws about defence. </p>
<p>The one for non-citizens will have to rely instead on the power to make laws about aliens. This power covers matters such as deporting non-citizens or putting conditions on their entry to Australia. But is is not clear whether it can be used to make laws about criminal matters unrelated to the status of being an “alien”. </p>
<p>Another significant difference is that this preventive detention scheme applies to people who have completed their sentences and been released into the community, possibly for many years. Whether a court would regard this as undermining the “legitimate non-punitive purpose” of the law, or just a factor for consideration in deciding on the level of risk, remains to be seen. </p>
<h2>Back to the courts</h2>
<p>The great risk of passing legislation in haste in response to a court decision is that one may end up back in court with unconstitutional legislation. This may create a spiral of litigation and legislation. </p>
<p>The fact that the Senate committee could carefully and moderately analyse the problems with such legislation shows there is capacity, outside of the sound and fury of politics, for parliament to operate in a considered and effective manner. </p>
<p>If parliament listened to its committees and focused on the effectiveness, fairness and validity of its laws, rather than point-scoring, the nation would be better served.</p><img src="https://counter.theconversation.com/content/219384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and sometimes does consultancy work for governments, parliaments and inter-governmental bodies. She is also a part-time consultant at Gilbert Tobin lawyers, which does some pro bono work for refugees.</span></em></p>The Albanese government has passed a new preventative detention regime in response to a recent High Court ruling – but there are several ways it may be open to challenge.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192292023-12-07T01:16:24Z2023-12-07T01:16:24ZNobody reads T&C’s – but the High Court’s Ruby Princess decision shows consumer law may protect us anyway<p>How many times have you booked travel - like a cruise or a tour - and simply clicked that you’ve read and agreed to the terms and conditions for your trip without actually reading them? </p>
<p>What if something went wrong on your trip and it turned out the terms you didn’t read prevented you from suing in certain courts? </p>
<p>This was just one problem faced by some of the passengers on the now infamous Ruby Princess cruise ship, which was supposed to be making a pleasant trip from Sydney to New Zealand and back in March 2020, but instead became the location for one of the most well-known <a href="https://www.abc.net.au/news/2020-04-18/how-coronavirus-turned-the-ruby-princess-into-a-bastard-cruise/12158924">early outbreaks of COVID</a>.</p>
<p>Now, the High Court has found that consumers can be protected even if they haven’t fully read their terms and even if they were outside Australia when they accepted them.</p>
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Read more:
<a href="https://theconversation.com/stormy-seas-ahead-confidence-in-the-cruise-industry-has-plummeted-due-to-covid-19-152146">Stormy seas ahead: confidence in the cruise industry has plummeted due to COVID-19</a>
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<h2>Class action against cruise lines</h2>
<p>As a result of the outbreak, Susan Karpik brought a <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2023/1280.html">class action suit</a> in the Federal Court of Australia against Carnival plc and Princess Cruise Lines Ltd, the owners and operators of the ship. </p>
<p>The suit alleged that Princess had not taken appropriate safety precautions to best ensure passengers did not get COVID while on board. Karpik won her suit on her own claims, with the Federal Court finding Princess <a href="https://www.abc.net.au/news/2023-10-25/nsw-ruby-princess-passengers-win-class-action-carnival/103018412">was liable to her</a>, including for damages related to her husband’s death from COVID. </p>
<p>This was also a win for the other 2,600 passengers, who can now rely on the Federal Court’s ruling that safety precautions were not taken.</p>
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<a href="https://theconversation.com/if-you-want-to-avoid-giving-away-your-first-born-make-sure-you-read-the-terms-and-conditions-before-signing-contracts-218705">If you want to avoid ‘giving away your first born’ make sure you read the terms and conditions before signing contracts</a>
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<p>Karpik and most of the Ruby Princess passengers were subject to Australian terms and conditions for their travel. However, nearly 700 passengers were subject to US terms and conditions. </p>
<p>These terms stated that any lawsuit related to travel on the Ruby Princess could only be brought in US Federal Court in Los Angeles, California, and that passengers were not allowed to sue in a class action - known as a class action waiver. </p>
<p>This means any lawsuit could only be brought individually, something that could be very expensive for each of the passengers. Princess argued that these passengers were bound by the US terms and therefore could not be part of the Australian class action.</p>
<h2>International complications</h2>
<p>The 700 passengers were represented by Patrick Ho, a Canadian citizen who had booked his cruise through a Canadian travel agent. He argued he was not made sufficiently aware of the US terms for them to apply. He also argued the class action waiver was unfair under Australian law and so could not be enforced. </p>
<p>Judge Stewart of the Federal Court agreed with some of these arguments and found the class action waiver was unfair under the Australian consumer law and that Ho could remain in the class.</p>
<p>But Princess then appealed to the Full Federal Court, which disagreed with Judge Stewart and found Ho had sufficient notice of the US terms before taking his trip and had agreed to them. </p>
<p>The court also found no unfairness in any of the terms under Australian law. This meant that Ho - and the 700 other passengers - could not be part of the Australian class, or any other class action.</p>
<p>The passengers then appealed that decision in the High Court.</p>
<h2>What did the High Court decide?</h2>
<p>Yesterday, the High Court <a href="https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/39">unanimously ruled in favour</a> of the passengers. In so doing, it put companies doing business in Australia on notice that Australia’s consumer protection laws apply both inside and outside the country’s borders.</p>
<p>It decided the class action waiver was unfair to the passengers. This was because Australian consumer law prohibits unfair consumer contracts and because the express terms of that law apply to companies doing business in Australia, regardless of whether they are headquartered in Australia or overseas. </p>
<p>As the High Court explained, a price of a company doing business in Australia is that it must adhere to Australia’s consumer protection laws. </p>
<p>As the High Court made clear, the consumer laws exist for the protection of people who enter into contracts with companies. </p>
<p>Parts of those contracts may be considered unfair where there are terms that are one-sidedly beneficial for the company, where that benefit is not necessary to protect a legitimate interest of the company, and where the consumer is harmed in some way by the existence of the benefit.</p>
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<p>All these elements were present in the US terms as applied to Ho. </p>
<p>As the High Court found, the class action waiver was only beneficial to Princess. The only interest served was to reduce passengers’ ability to sue as a class (and therefore Princess’s need to defend itself against such a suit) and that Ho would be harmed by not being able to be a part of a legitimate Australian class action.</p>
<p>The High Court further found that since the class action waiver was unfair, there were good reasons not to enforce the additional term that all suits had to be brought in US courts in California. </p>
<p>This decision stands as a strong protection for consumers entering into agreements with companies doing business in Australia. It also makes class actions in Australian courts more available for consumers who might benefit from the protections the Australian consumer laws offer. </p>
<p>It is still a good idea to read your terms and conditions before agreeing to anything. But as the High Court has just ruled, you may not be completely out of luck if you don’t.</p><img src="https://counter.theconversation.com/content/219229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James D Metzger does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The High Court has found that consumers can be protected even if they haven’t fully read their terms and even if they were outside of Australia when they accepted them.James D Metzger, Senior Lecturer in Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
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<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2186992023-11-28T09:23:23Z2023-11-28T09:23:23ZHigh Court reasons on immigration ruling pave way for further legislation<p>After ruling on November 8 that indefinite immigration detention is unlawful, the High Court today delivered its <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">reasons</a> for the decision that upturned 20 years of precedent. Its ruling has required the release of some 140 people from immigration detention so far, and set off a political scramble to legislate in response to the outcome.</p>
<p>The judgment, the first made by the court under new Chief Justice Stephen Gageler, was unanimous. It largely turned on questions of constitutional law and the limits of executive power. </p>
<p>The court made it clear that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future. Previously, there was no limit to the length of time people could be detained in immigration detention in Australian law. In fact, people could legally be detained for the rest of their lives without ever being found guilty of a crime. </p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<p>The decision overturns the much-criticised 2004 Al-Kateb v Godwin case, where a 4-3 majority ruled that, provided the government maintained an intention to eventually remove a person from Australia, the Constitution allowed them to be detained indefinitely until that removal took place. </p>
<p>The court’s reasons in this case indicated that other laws allowing detention, such as continuing detention orders, could apply to people released because of the decision. Continuing detention orders are a mechanism that enable people to be detained once they have served their sentence for a crime. </p>
<p>However, those orders are only available if the person is considered to pose an “<a href="https://www.legislation.gov.au/Details/C2023C00283">unacceptable</a>” risk of reoffending and only in relation to specific, serious crimes. Such orders can only be made with the support of expert evidence and with judicial oversight, as detailed below. </p>
<h2>Implications of the decision</h2>
<p>The decision has significant ramifications for the rapidly drafted legislation that was passed by parliament in response to the case, before the High Court had released its reasons. </p>
<p>In response to the release of the reasons for the decision, the federal government <a href="https://www.theage.com.au/politics/federal/high-court-publishes-reasons-for-indefinite-detention-decision-20231128-p5ena0.html">indicated</a> it would legislate again before parliament rises for the year.</p>
<p>Laws rushed through parliament earlier this month included curfews, high levels of monitoring of people released from detention and severe mandatory prison sentences for infringements of release conditions. The first package of laws has <a href="https://www.theguardian.com/law/2023/nov/22/labor-immigration-detention-laws-high-court-challenge">already been challenged</a> in the courts by a Chinese refugee known as S151, on the basis they are “punitive”. More challenges are anticipated. </p>
<p>With this decision, the court has revealed an intention to exercise much greater scrutiny of the parliament and executive in ensuring constitutional limits on power are respected. </p>
<p>In this way, this judgment can be seen as representing a turn from more permissive approaches to limits on parliamentary legislative power.</p>
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<h2>The challenge and decision</h2>
<p>The challenge was brought by a <a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">stateless Rohingya man</a>, given the pseudonym NZYQ, who had fled his home country of Myanmar and arrived in Australia by boat in 2012. He spent just over a year in immigration detention on arrival. </p>
<p>Soon after he was released into the community, he was convicted of sexual intercourse with a minor and was sentenced to a maximum of five years imprisonment. While in prison, he applied for refugee status. He was found to be owed protection but, due to his criminal history, was not granted a protection visa. On release from prison, he was immediately re-detained in immigration detention.</p>
<p>Both international and Australian law prohibit sending people back to places where they are at risk of persecution, as NZYQ had been found to be. </p>
<p>The <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s196.html">Migration Act</a> requires “unlawful non-citizens” to be held in detention until they are removed from Australia, deported or granted a visa. </p>
<p>NZYQ’s appeal focused on two questions. Did the detention provisions authorise the potential indefinite detention of non-citizens in circumstances where there were no real prospects of removal? If so, was this constitutionally valid?</p>
<p>The High Court answered the first question in the affirmative, in essence agreeing with the majority in Al-Kateb that relevant legislative provisions authorised detention until a detainee was removed, deported or given a visa, no matter how long that might take.</p>
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<p>But on the second question, treading a course it said “should not lightly be taken”, the court reopened and overruled the constitutional holding in Al-Kateb, finding that detention provisions contravened the separation of powers in the Constitution. That is, detention is generally punishment, which can only be ordered by courts, not the government. </p>
<p>There are limited exceptions to this rule for immigration detention. Detention will not be punishment as long as it for the purpose of deportation or enabling an application for a visa to be made.</p>
<p>In NZYQ, the High Court stated that ongoing detention – where there is no reasonable prospect of the removal of the plaintiff from Australia in the reasonably foreseeable future – would not meet this test. </p>
<h2>What does it mean?</h2>
<p>With this judgment, the court unanimously rejected the ability of the parliament to define its own limits for detention. In doing so, it brings Australia into line with international law and practice. No other country allows for, let alone requires, indefinite mandatory immigration detention. </p>
<p>While the court did not engage directly with international law arguments, the outcome and reasoning reaffirm international principles of reasonableness and proportionality, set out in a <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Memo_Explusion_Non-Citizens.pdf">memo</a> by international refugee law expert Professor Guy S Goodwin-Gill. This formed the basis of Kaldor Centre’s <a href="https://www.hcourt.gov.au/assets/cases/08-Sydney/s28-2023/NZYQ-MICMA-IntHRLCKaldor.pdf">intervention</a> with the Human Rights Law Centre in the case. </p>
<p>In terms of when an individual will be required to be released from detention, the court makes clear that the onus is on the government to show there is real prospect of removal in the reasonable future. This means deportation has to be a real possibility – it is not enough for the government to say it is trying without showing there is a real prospect it can be achieved.</p>
<p>This decision also will have broader ramifications for <em>habeas corpus</em> in Australian courts. This is the requirement that any person detained by the government has the right to challenge that detention. When challenged, the government must demonstrate the basis for the detention. With this judgment, the court has made it clear that inquiries will be rigorous, not merely considering the surface arguments made by detaining authorities. </p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-a-government-in-a-big-hurry-gives-opposition-some-wins-on-ex-detainees-217912">Grattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees</a>
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<h2>Preventive detention</h2>
<p>The court acknowledged that people released from immigration detention because of its decision could be re-detained under other laws, such as continuing detention provisions. These allow for the ongoing detention of people who are considered to pose an unacceptable risk of reoffending. This would need to be for reasons exclusively connected to the risk that is posed, not to their immigration status.</p>
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<p>Such provisions already exist for some sex or terrorism crimes. However, for such orders to be made, there must be clear evidence the individual poses an unacceptable risk; merely having committed a crime before is not adequate. Most importantly, these decisions are generally made by the courts, and not the government.</p>
<p>The High Court’s decision was clear – only the courts have the power to deal out punishment. The risk is that any further blanket restrictions on individual liberty that are not subject to judicial oversight will be similarly overturned by the courts.</p><img src="https://counter.theconversation.com/content/218699/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project. He is the Deputy Director of the Kaldor Centre for International Refugee Law, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p><p class="fine-print"><em><span>Anna Talbot receives funding from the Australian government as a PhD scholar at the Kaldor Centre for International Refugee Law, University of NSW, Sydney, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p>The High Court judges unanimously held that a person must be released from immigration detention where there is no real prospect of them being deported in the foreseeable future.Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW SydneyAnna Talbot, PhD Candidate, Kaldor Centre for International Refugee Law, UNSW Sydney, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2187242023-11-28T09:09:28Z2023-11-28T09:09:28ZGovernment readying to rush through more legislation on ex-detainees<p>The government will urgently legislate to enable some of those released from immigration detention to be preventatively detained.</p>
<p>This follows the High Court on Tuesday outlining its reasons for its decision that indefinite immigration detention was unconstitutional. The judgment indicates the decision was unanimous.</p>
<p>Home Affairs Minister Clare O'Neil told parliament late Tuesday: “We are moving quickly to finalise a tough preventative detention regime before parliament rises. The safety of Australian citizens is our utmost priority.” </p>
<p>This is the last full week of the House of Representatives for the year. Next week the Senate sits with the house only due to come back on Thursday to deal with final legislation. </p>
<p>The opposition has been calling for a preventative detention regime.
Opposition home affairs spokesman James Paterson said the High Court reasons had removed the government’s “final excuse not to act”. It was “crystal clear” that a preventative detention regime “is necessary and lawful”. </p>
<p>“If the government introduces one as we have recommended we’ll be highly likely to support it,” Paterson said. </p>
<p>Refugee lawyer David Manne said the court did not suggest there was a need for a new legal regime. </p>
<p>“The High Court makes it clear there are already laws for preventative detention to manage serious risks to the community in relation to people reoffending”, Manne said.</p>
<p>Constitutional expert George Williams, from UNSW, said it would be very difficult for the government to legislate for the whole cohort, but the judgment indicated individuals could be detained under other provisions. This would require a case-by-case approach. </p>
<p>The court says in its judgment a person could, for instance, be detained “under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.”</p>
<p>The government has released 141 people. One is now missing, and being sought by authorities.</p><img src="https://counter.theconversation.com/content/218724/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government will urgently legislate after the High Court on Tuesday outlined its reasons for its decision that indefinite immigration detention was unconstitutional.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2174382023-11-10T07:14:08Z2023-11-10T07:14:08ZThe High Court has decided indefinite detention is unlawful. What happens now?<p>This week, the High Court of Australia <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the release of a Rohingya man from immigration detention where he had been for the last five and a half years. </p>
<p>Commentators and human rights groups have been <a href="https://x.com/KaldorCentre/status/1722171447702077881?s=20">celebrating</a> this decision, which indicates the court will overturn a 20-year-old precedent.</p>
<p>The court has stated it will release its decision at a later time. It is important to wait for that judgement to determine the full implications of the decision and how it may limit the government’s power to detain non-citizens. </p>
<p>But here’s a brief rundown on the background of the case and some considerations of what could happen next.</p>
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Read more:
<a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">'I have no rights': what happens to stateless people in Australia after the High Court's ruling?</a>
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<h2>What laws did the case focus on?</h2>
<p>The laws in question are in the Migration Act, which <a href="https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s189.html">states</a> a non-citizen who does not hold a visa must be detained. </p>
<p>Currently people in immigration detention do not have the right to have a court determine whether their detention is necessary, reasonable, and/or proportionate. These assessments are undertaken by departmental officials and the minister. </p>
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<p>The law considers detention mandatory, irrespective of the individual’s circumstances. </p>
<p>In the case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/37.html">Al-Kateb v Godwin</a>, the chief justice of the High Court described the need for detention:</p>
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<p>A person […] might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.</p>
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<p>The detained person must remain so until granted a visa or is removed. </p>
<p>Removal, if it’s needed, must occur as soon as “reasonably practicable”. </p>
<p>Over the years, many cases have tested these laws, and until now, the High Court has upheld them.</p>
<p>The lack of time limits on detention, and the inability to challenge it, have made Australia an outlier internationally.</p>
<p>The laws have also been <a href="https://reliefweb.int/report/australia/new-un-report-torture-urges-changes-australian-refugee-policy#:%7E:text=The%20Committee%20noted%20a%20number,%2Dtreatment%20and%20suspicious%20deaths%E2%80%9D.">heavily criticised</a>, both domestically and globally. </p>
<p>Such has been the egregious nature of the system that the High Court allowed the UNSW Kaldor Centre for International Refugee Law and the Human Rights Law Centre to argue the <a href="https://www.kaldorcentre.unsw.edu.au/news/indefinite-immigration-detention-unlawful-high-court-rules">international human rights</a> dimensions of the case.</p>
<p>Despite this, the policy has had bipartisan political support for decades. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<h2>Who was at the centre of the case?</h2>
<p>The Rohingya refugee at the centre of the case is referred to as “NZYQ”. He’s around 30 years old.</p>
<p>As a Rohingya, he had <a href="https://www.hrw.org/news/2023/11/09/landmark-australian-ruling-rejects-indefinite-immigration-detention">not been able to</a> obtain citizenship of Myanmar and was stateless. </p>
<p>He had arrived in Australia by boat in 2012. He had been granted a temporary visa, but this was cancelled in 2015 after he committed <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">a criminal offence</a> and was sentenced to a term in prison. </p>
<p>Still unable to get a visa, he was transferred to immigration detention once he’d served his sentence. </p>
<p>Australia accepted the man could not be sent to Myanmar, and instead tried unsuccessfully to have a number of other countries take him via their refugee or humanitarian programs. </p>
<p>Having found there was no country he could be removed to in the “reasonably foreseeable future” and his visa refused, the man was facing the prospect of remaining in detention indefinitely. </p>
<p>In light of this, the High Court found his ongoing detention was unlawful and they ordered his immediate release from detention.</p>
<h2>Law that comes with a cost</h2>
<p>There is an increasing number of people in detention who remain there for long periods of time. Some are stateless, and others who can’t be returned to their home countries due to risk of persecution.</p>
<p>Over the past five years, the average length of detention has increased from <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2017.pdf%20to%20708%20dayshttps://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">445 days</a> to <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>. Some people have been detained for more than 10 years. </p>
<p>One of the many criticisms levelled at this system is that it’s extremely expensive.</p>
<p>Between 2020 and 2021, the <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">average cost</a> to the Australian taxpayer for one person in an immigration detention facility was $428,542.</p>
<p>That’s not to mention the significant physical and mental health toll on people.</p>
<p>There have been close to <a href="https://www.refugeecouncil.org.au/detention-australia-statistics/10/">3,000 incidents of self-harm</a>, real and threatened, in detention over the past five years.</p>
<h2>So what happens in the short term?</h2>
<p>As a first step, the government may be facing the prospect of releasing a number of people who have been detained for several years. </p>
<p>It is estimated there may be <a href="https://www.theguardian.com/australia-news/2023/nov/08/australia-high-court-indefinite-detention-ruling-government">92 people</a> impacted by the judgement. </p>
<p>The government has stated the Rohingya man in the case has been released <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">on “strict conditions”</a>, but we don’t know what sort of visa he might be on.</p>
<p>It is not clear what those conditions are, but legally, a person can be released from detention on a temporary “bridging visa”. </p>
<p>The Department of Home Affairs can impose conditions on a bridging visa which could include: </p>
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<li><p>where the person lives</p></li>
<li><p>reporting regularly to the Department of Home Affairs</p></li>
<li><p>that the person “not engage in criminal conduct”</p></li>
<li><p>that they comply with a specific “Code of Behaviour”.</p></li>
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<p>This, of course, should be accompanied by a range of psychological and social support services, which are currently <a href="https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/status-resolution-support-services">very limited</a>.</p>
<p>There will need to be consideration for better pathways to more visa certainty and permanent residency, especially for <a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">stateless people</a>.</p>
<h2>Legislative reform on the cards</h2>
<p>We need to wait for the judgement to determine what, if any, legislative reform may be needed, but the government will be considering a number of options. </p>
<p>We should use this opportunity to ensure our laws comply with our human rights obligations.</p>
<p>International standards specify that a person detained for immigration purposes must be brought before a judicial authority “promptly” and that their detention must be subject to “regular periodic reviews”. </p>
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Read more:
<a href="https://theconversation.com/new-immigration-detention-bill-could-give-australia-a-fresh-chance-to-comply-with-international-law-188519">New immigration detention bill could give Australia a fresh chance to comply with international law</a>
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<p>There is a substantial <a href="https://www.kaldorcentre.unsw.edu.au/publication/immigration-detention-australia">body of evidence</a> demonstrating that hasn’t been the case for far too long.</p>
<p>A key legislative reform should be to make detention discretionary instead of mandatory. People should also have access to independent review of their detention.</p>
<p>There has been a wealth of <a href="https://www.aph.gov.au/binaries/house/committee/mig/detention/report/fullreport.pdf">inquiries</a>, <a href="https://idcoalition.org/cap/">submissions</a> and examples from overseas which the government could look to, for a start. </p>
<p>More will be revealed about this case in the coming weeks and months, but there are many things the government can start doing immediately to better balance this unfair and punitive system.</p><img src="https://counter.theconversation.com/content/217438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received funding from the Australian Research Council and sitting fees from the Department of Home Affairs</span></em></p>This week, the High Court made an order which overturns the laws on which much of Australia’s immigration system is based. What happens to the law, and those most affected by it, now?Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173632023-11-10T00:18:22Z2023-11-10T00:18:22Z‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?<figure><img src="https://images.theconversation.com/files/558737/original/file-20231109-17-q814h2.jpg?ixlib=rb-1.1.0&rect=21%2C50%2C4803%2C3168&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stateless-word-dictionary-concept-1155404044">Shutterstock</a></span></figcaption></figure><p>The decision by the High Court of Australia this week <a href="https://www.abc.net.au/news/2023-11-08/indefinite-immigration-detention-ruled-unlawful-by-high-court/101569082">overturning the legality</a> of indefinite immigration detention marks a watershed moment in Australian legal history. </p>
<p>For almost two decades, stateless people have faced the prospect of spending their lives behind bars. </p>
<p>Now, a stateless <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">Rohingya refugee</a> has been released from detention.</p>
<p>With no “stateless” visa category or pathway to permanency, stateless people will continue to face a life of uncertainty in the Australia community, begging the question; what next?</p>
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Read more:
<a href="https://theconversation.com/government-must-use-trauma-informed-approach-to-end-uncertainty-on-refugee-visa-applications-203758">Government must use trauma-informed approach to end uncertainty on refugee visa applications</a>
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<h2>Overturning decades of precedent</h2>
<p>This week the Australian High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the immediate release of the stateless refugee, known as “NZYQ”, from immigration detention.</p>
<p>He’d been held there for more than five years. </p>
<p>The Court found that because there was no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”, his detention was unlawful.</p>
<p>This decision is highly significant, overturning almost twenty years of legal precedent established in <a href="https://eresources.hcourt.gov.au/showCase/2004/HCA/37">2004.</a> </p>
<p>In that case, the High Court upheld the ability of the Australian government to detain people for an unlimited period. </p>
<p>That looked to be the fate of the man at the centre of this week’s case.</p>
<p>Having had his visa cancelled due to a <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">criminal conviction</a> and unable to be returned to Myanmar as a stateless refugee, he faced potentially being detained for the rest of his life.</p>
<p>Australia’s system of mandatory indefinite detention, a bipartisan policy introduced in 1992, is unique, even when compared with countries with similar legal traditions, such as the UK. </p>
<p>Available <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">government statistics</a> indicate there are currently over 1,000 people in immigration detention, 31 of whom are stateless.</p>
<p>The average length somebody is detained in Australia is a staggering <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>.</p>
<p>More than 100 people have been held for more than five years. </p>
<h2>What does is mean to be stateless?</h2>
<p>There is little understanding of statelessness in Australia, despite the fact it affects millions of people globally. </p>
<p>A stateless person is someone with no nationality. Legally speaking, they are recognised as “belonging” to no country in the world. </p>
<p>While the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4460454/Statelessness_overview_factsheet_Feb_2023.pdf">causes of statelessness</a> vary, the dominant root cause is usually discrimination of one kind or another, including on the grounds of gender, race or religion.</p>
<p>The legal definition of statelessness does not do justice to the lived reality. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-migration-review-could-close-some-disability-discrimination-loopholes-but-not-for-people-already-waiting-or-refused-visas-215894">A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas</a>
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<p>Statelessness has the potential to impact almost every aspect of a person’s day-to-day life.</p>
<p>It can inhibit freedom of movement, access to education, housing, employment and medical care. </p>
<p>In Australia, these challenges are compounded by an often overwhelming sense of uncertainty about the future and the ever-present threat of detention.</p>
<p>The lived reality of statelessness is perhaps better understood in the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of Amir</a>, a stateless father living in Australia:</p>
<blockquote>
<p>Being stateless has been a huge source of sadness for me in my life. At times it has made me question my very existence and made me wonder why my parents chose to bring me into this world. I’ve never felt like I have a future. Wherever I’ve gone, I have no rights.</p>
</blockquote>
<p>We must never forget that behind legal judgements are the lives of real people. Many stateless families we work with in the <a href="https://law.unimelb.edu.au/centres/statelessness/engage/stateless-children-legal-clinic">Stateless Legal Clinic</a> have spent years in immigration detention, including Australian-born children who marked their <a href="https://firstdogonthemoon.com.au/cartoons/2014/11/12/baby-ferouzs-first-birthday/">first birthdays</a> behind the wire. </p>
<p>The ongoing health impacts of detention, especially on children, have been <a href="https://humanrights.gov.au/our-work/2-findings-and-recommendations#:%7E:text=The%20Commission%20makes%20the%20general,prolonged%20detention%20on%20the%20mental">well documented</a>.</p>
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<h2>A lack of legal protections means an uncertain future</h2>
<p>Along with the harmful effects of detention is the gap in legal protections stateless people experience in the Australian community. </p>
<p>Australia doesn’t have a distinct visa category for stateless people or pathway to permanent residency. </p>
<p>Many live with crippling prohibitions on their ability to build a secure life for themselves and their children. Access to some of the basic rights many of us take for granted – such as education - can be challenging. In the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of stateless mother Nur:</a></p>
<blockquote>
<p>Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not […] our eldest child, Iman started kindergarten this year. It was so difficult trying to enrol him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future.</p>
</blockquote>
<p>Australian law does not adequately protect the rights of stateless people in this country. </p>
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Read more:
<a href="https://theconversation.com/why-the-governments-plan-to-overhaul-the-asylum-system-is-a-smart-use-of-resources-and-might-just-work-215061">Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work</a>
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<p>This week’s High Court decision is a critical first step in protecting stateless people from being indefinitely deprived of their liberty. What happens next is just as important. </p>
<p>In the absence of being recognised as citizens of any country in the world, Australia can – and must – do more to offer stateless children and adults a life of certainty in this country.</p><img src="https://counter.theconversation.com/content/217363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Katie Robertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overturning of almost 20 years of legal precedent allowing indefinite detention is a watershed moment. But stateless people in Australia have few rights and little say over their futures.Katie Robertson, Director - Stateless Legal Clinic, The University of MelbourneMichelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2169082023-11-06T22:59:48Z2023-11-06T22:59:48ZHigh Court, then what? NT remote housing reforms need to put Indigenous residents front and centre<p>The relationships between tenants and landlords are often fraught, but it’s fair to expect a house to meet basic standards, like having a back door.</p>
<p>That wasn’t the case for an Aboriginal woman in a remote community, who was part of a successful class action to sue the landlord for failing to provide a habitable house.</p>
<p>Last week, the High Court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/31">ruled</a> residents of the community of Santa Teresa (Ltyentye Apurte) could be compensated for the “distress and disappointment” caused by the poor state of their government-managed houses.</p>
<p>So how can such housing be better managed? And what needs to be done to ensure houses in remote communities do not just meet the legal standard, but exceed it?</p>
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Read more:
<a href="https://theconversation.com/no-back-door-for-5-years-remote-communitys-high-court-win-is-good-news-for-renters-everywhere-216821">No back door for 5 years: remote community's High Court win is good news for renters everywhere</a>
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<h2>Big result, but ongoing problems</h2>
<p>Seventy public housing residents in Santa Teresa commenced the legal action against their landlord, the NT government, in <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nt/NTCAT/2019/12.html">2016</a>.</p>
<p>By the time the High Court decision was handed down in 2023, both lead applicants had died. Just as remote housing tenants must wait prolonged periods for repairs, the lengthy delay for housing justice outlasted them. </p>
<p>Elsewhere in the NT, residents of Laramba have also been pursuing compensation for the landlord’s failure to undertake housing repairs, and arguing for a right to safe drinking water in their homes. </p>
<p>In October this year, the <a href="https://arena.org.au/safe-drinking-water-in-nt/">NT Supreme Court</a> found the landlord, the NT government, is responsible for ensuring safe drinking water at those premises. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1652427646574243840"}"></div></p>
<p>The Santa Teresa High Court decision is <a href="https://theconversation.com/no-back-door-for-5-years-remote-communitys-high-court-win-is-good-news-for-renters-everywhere-216821">potentially significant</a> for tenants across the country. </p>
<p>However, a right to seek compensation for distress and disappointment is not a silver bullet for housing justice. </p>
<p>The challenge is to maintain housing and essential services at such standards that render these types of lawsuits unnecessary.</p>
<h2>When your landlord is the government</h2>
<p>The NT government has not always been responsible for remote community housing.</p>
<p>Most remote communities are located on Aboriginal land owned under the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/alrta1976444/">Aboriginal Land Rights (Northern Territory) Act 1976</a>. </p>
<p>Through the NT Intervention, the Commonwealth government compulsorily acquired five-year leases over entire communities. </p>
<p>A policy of “secure tenure” made subsequent housing and infrastructure investment contingent on long-term remote community leases to governments. </p>
<p>Indigenous Community Housing Organisations were effectively <a href="https://www.sciencedirect.com/science/article/pii/S0016718522001944">dismantled</a>, and the introduction of “mainstream” tenancy arrangements under a public housing system followed. </p>
<p>One of the unanticipated consequences of this change was the ability of tenants to use the <a href="https://legislation.nt.gov.au/en/Legislation/RESIDENTIAL-TENANCIES-ACT-1999">Residential Tenancies Act</a> as a “<a href="https://search.informit.org/doi/10.3316/INFORMIT.062772924394473">tool of empowerment</a>”.</p>
<p>Residents could now push back against <a href="https://www.academia.edu/44672286/2021_Housing_waste_in_Remote_Indigenous_Australia_In_The_Temporalities_of_Waste_Out_of_Sight_Out_of_Time_eds_F_Allon_R_Barcan_K_Eddison_Cogan_75_86_Routledge_New_York_and_London">entrenched low expectations</a> for the timeliness and quality of remote housing repairs.</p>
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Read more:
<a href="https://theconversation.com/think-private-renting-is-hard-first-nations-people-can-be-excluded-from-the-start-192392">Think private renting is hard? First Nations people can be excluded from the start</a>
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<h2>Current programs falling short</h2>
<p>In response to the cases at Santa Teresa and Laramba, the NT government has sought to reform its remote housing maintenance program. </p>
<p>In 2021, the NT government introduced its <a href="https://tfhc.nt.gov.au/housing-and-homelessness/healthy-homes">Healthy Homes</a> program. It aims to prioritise cyclical and preventive maintenance to improve the quality of houses as well as health outcomes for tenants.</p>
<p>The reforms reflect many <a href="https://www.niaa.gov.au/resource-centre/indigenous-affairs/remote-housing-review">reviews</a> that have recommended such measures.</p>
<p>If implemented effectively, Healthy Homes can improve <a href="https://www.healthabitat.com/">housing hardware</a> and increase the lifespan of existing housing.</p>
<p>An <a href="https://www.menzies.edu.au/page/Research/Indigenous_Health/Preventive_health/Healthy_Homes_Monitoring_and_Evaluation_Project/#:%7E:text=Healthy%20Homes%20is%20framed%20as,undertake%20'healthy%20living%20practices'">evaluation of Healthy Homes</a> found the average maintenance spend per house to be about $6,000 per year.</p>
<p>While seemingly significant, this is much less than is spent <a href="https://www.ahuri.edu.au/research/final-reports/368">by Housing SA</a> on housing on the Aṉangu Pitjantjatjara Yankunytjatjara Lands in northwest South Australia, where expenditure in 2021 exceeded $10,000 per house.</p>
<p>The key mechanism that underpins the NT’s Healthy Homes is a yearly condition assessment requirement, generating maintenance work without relying on tenant reporting. </p>
<p><a href="https://www.menzies.edu.au/page/Research/Indigenous_Health/Preventive_health/Healthy_Homes_Monitoring_and_Evaluation_Project/#:%7E:text=Healthy%20Homes%20is%20framed%20as,undertake%20'healthy%20living%20practices'">The evaluation</a> found that from July 2021 to February 2023, only 1,315 such inspections had been undertaken across a total of 5,498 houses included in Healthy Homes.</p>
<p>This is equivalent to an inspection of only 23.9% of houses. </p>
<p>The Santa Teresa case also laid bare significant issues with the NT government’s record-keeping, which don’t appear to have been fixed.</p>
<p>The evaluation found:</p>
<ul>
<li><p>NT government datasets cannot distinguish between preventive and responsive maintenance</p></li>
<li><p>reporting requirements mean maintenance data is unreliable for determining how quickly repairs were undertaken</p></li>
<li><p>a significant proportion of maintenance work is coded miscellaneous, meaning it is not possible to determine the proportion of works by trade type.</p></li>
</ul>
<p>The combination of these factors makes it very hard to assess whether and how approaches to remote community maintenance might be improving.</p>
<h2>Bringing remote housing up to scratch</h2>
<p>So a High Court case has reaffirmed the rights of Santa Teresa tenants and the current remote housing maintenance program is inadequate. What happens to NT remote housing now?</p>
<p>The <a href="https://www.niaa.gov.au/indigenous-affairs/land-and-housing/national-partnership-remote-housing-northern-territory-2018-23#:%7E:text=On%2030%20March%202019%2C%20the,for%20Aboriginal%20Territorians%20in%20remote">National Partnership for Remote Housing Northern Territory</a> expired in July 2023.</p>
<p>Commonwealth funding was extended for another year. A new agreement is currently being negotiated.</p>
<p>To meet the needs of remote communities, this agreement must be tripartite. The peak body <a href="https://ahnt.com.au/">Aboriginal Housing NT</a> and Northern Territory land councils require rights to determine funding allocations and policy directions, as well as the territory and federal governments.</p>
<p>This is necessary for the meaningful participation and empowerment of those Aboriginal organisations in key decision-making under the agreement, and to enshrine their place as equal partners in the ongoing governance of remote housing in the NT. </p>
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Read more:
<a href="https://theconversation.com/aboriginal-housing-policies-must-be-based-on-community-needs-not-what-non-indigenous-people-think-they-need-162999">Aboriginal housing policies must be based on community needs — not what non-Indigenous people think they need</a>
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<p>Federal funding of remote housing is required into the long term. A ten-year funding agreement should support all of remote communities, town camps and homelands.</p>
<p>Because of historical underfunding and neglect, this funding also needs to increase and the Commonwealth Government must remain on the hook.</p>
<p>The Santa Teresa case has shown the ongoing legacy of underinvestment and neglect. </p>
<p>Aboriginal residents of remote communities and their representative organisations must be supported to play a central role in determining the future of the places they call home.</p><img src="https://counter.theconversation.com/content/216908/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liam Grealy receives funding from the Australian Research Council, the Australian Housing and Urban Research Institute, and the NT Department of Territory Families, Housing and Communities. He is affiliated with Menzies School of Health Research and the University of Sydney. Details related to specific projects are available on his public profiles. </span></em></p><p class="fine-print"><em><span>Kyllie Cripps receives funding from the Australian Research Council, the Australian Government and State Governments to conduct research and evaluations. Details related to this are on her public profiles.</span></em></p>Last week, the High Court ruled the community of Santa Teresa could be compensated for the “distress and disappointment” caused by their poor housing. So how can such housing be better managed?Liam Grealy, Research fellow, Menzies School of Health ResearchKyllie Cripps, Professor, Director Monash Indigenous Studies Centre, School of Philosophical, Historical & International Studies (SOPHIS), School of Social Sciences (SOSS), Faculty of Arts, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168962023-11-02T03:48:42Z2023-11-02T03:48:42ZIs a terrorist’s win in the High Court bad for national security? Not necessarily<p>Yesterday, Abdul Nacer Benbrika, perhaps Australia’s most notorious convicted terrorist, <a href="https://www.theguardian.com/australia-news/2023/nov/01/abdul-nacer-benbrika-australian-citizenship-convicted-terrorist-wins-high-court-battle">won in the High Court</a>. </p>
<p>A six-one majority of the court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/33">struck down</a> a ministerial power to revoke the Australian citizenship of certain terrorist offenders. </p>
<p>Benbrika’s citizenship had been revoked as a result of his <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2009/21.html">conviction</a> in 2008 of a range of terrorism offences, including directing the activities of a terrorist organisation for which he was sentenced to 15 years in prison. </p>
<p>Following the court’s decision, Benbrika remains an Australian citizen. So will he go free? And what does this mean for national security?</p>
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Read more:
<a href="https://theconversation.com/should-new-australians-have-to-pass-an-english-test-to-become-citizens-175324">Should new Australians have to pass an English test to become citizens?</a>
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<h2>Unconstitutional punishment</h2>
<p>This was not the first time the High Court had stopped the minister for home affairs revoking the citizenship of someone involved in terrorism. </p>
<p>Delil Alexander was a dual citizen of Australia (by birth) and Turkey (by descent) when he entered Syria in 2013 with the terrorist organisation ISIS. </p>
<p>In 2021, the minister revoked Alexander’s Australian citizenship because Alexander had engaged in certain terrorist conduct which demonstrated he had “repudiated his allegiance to Australia”.</p>
<p>Revoking his citizenship was, the minister reasoned, in the public interest. </p>
<p>At that time, Alexander was in prison in Syria and could not be contacted by his family or lawyers. His sister, Berivan, challenged the citizenship-stripping law on his behalf and <a href="https://www.hcourt.gov.au/cases/case_s103-2021">won the case</a>. </p>
<p>In Benbrika’s case, the situation was a little different. </p>
<p>Unlike Alexander, Benbrika (a dual national with Algeria) had actually been convicted of terrorism offences, which gave the minister a basis on which to strip his Australian citizenship. </p>
<p>Yet the court’s reasons for striking down the citizenship-stripping powers were similar in the two cases. </p>
<p>First, the court acknowledged that loss of one’s citizenship is at least as serious as detention. </p>
<p>Second, the court interpreted the law as being designed to punish the person for their conduct. </p>
<p>Under the separation of powers, which the Constitution protects, imposing punishments for wrongdoing is generally the work of courts and should follow a criminal trial and finding of guilt. </p>
<p>In this case, the minister was essentially – and unconstitutionally – trying to go around the courts by punishing these individuals outside the criminal process. </p>
<h2>What now for Benbrika?</h2>
<p>The consequence of Alexander remaining an Australian citizen is that it remained Australia’s responsibility to, for instance, take steps to find out where he was, re-establish contact with him, and provide consular assistance. </p>
<p>Alexander may even need to be brought back to Australia where he would be dealt with under our own laws and justice system (it is, after all, a serious federal offence to join ISIS). </p>
<p>Benbrika, on the other hand, has served his sentence for terrorism offences and won his fight to maintain his Australian citizenship. </p>
<p>So will he walk free? Is it only a matter of time before he is radicalising more young people and inciting further hatred and violence?</p>
<p>Whatever lies ahead for Benbrika, it is unlikely to be any sense of freedom. </p>
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Read more:
<a href="https://theconversation.com/as-new-aussie-citizenship-rules-kick-in-the-fair-go-finally-returns-to-trans-tasman-relations-208739">As new Aussie citizenship rules kick in, the ‘fair go’ finally returns to trans-Tasman relations</a>
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<p>Australia has more extensive counterterrorism law than anywhere else in the world. A <a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">recent count</a> put the tally at almost 100 laws enacted since the 9/11 attacks in 2001.</p>
<p>Many of those laws tweak the usual rights given to people as they move through the criminal justice system. </p>
<p>This includes the option of post-sentence imprisonment – “continuing detention orders” – for those who are assessed to pose an unacceptable risk of committing national security offences. </p>
<p>Such an order can be made for up to three years and there are no limits on renewal. </p>
<p>Not only has Benbrika already been subject to those orders but, in 2021, he lodged an unsuccessful High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/4.html?context=0;query=benbrika;mask_path=au/cases/cth/HCA">challenge</a> to those laws. </p>
<p>For as long as Benbrika is assessed to pose an “unacceptable risk” to the community, he will remain in prison. </p>
<p>But what if he satisfies a court that his release no longer poses an unacceptable risk? </p>
<p>Under Victorian law, Benbrika could be subject to an extended “supervision order”, which can be made for up to 15 years (with a possibility of being renewed for a further 15 years). </p>
<p>On top of this are federal “control orders”. </p>
<p>This is the kind of order imposed on <a href="https://www.abc.net.au/news/2007-12-21/hicks-control-order-granted/994358">David Hicks</a> on his return from Guantanamo Bay, and on <a href="https://fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-marshall/marshall-j-20070906#:%7E:text=Issuing%20of%20the%20Control%20Order,on%20Mr%20Thomas'%20personal%20liberty.">Joseph “Jihad Jack” Thomas</a> after his acquittal for terrorism offences. </p>
<p>Control orders allow for an extremely wide range of restrictions and obligations to be imposed on a person if those conditions are “reasonably necessary, appropriate and adapted” to protecting the community from terrorism. </p>
<p>Control orders last for up to 12 months, but there are no limits on their renewal.</p>
<p>Under a supervision order or control order, Benbrika could be required to:</p>
<ul>
<li><p>stay at a certain address</p></li>
<li><p>be subject to curfews (even amounting to home detention) </p></li>
<li><p>wear a tracking device</p></li>
<li><p>not use the internet, a phone or other devices</p></li>
<li><p>not contact certain people or go to certain places </p></li>
<li><p>undertake education, counselling or drug testing </p></li>
<li><p>or any number of other restrictions or obligations deemed necessary for community protection. </p></li>
</ul>
<p>Breaching one of these orders is punishable by five years imprisonment. </p>
<h2>But wouldn’t it be better to deport him?</h2>
<p>There is a symbolic attraction to taking away the citizenship of someone who has acted in a way that shows no allegiance to – and even a violent disregard for – Australia and basic community values. </p>
<p>Indeed, the one judge who upheld the citizenship-stripping laws, Justice Simon Steward, did so on the basis that citizenship-stripping was not designed to punish. </p>
<p>Instead, he argued it was merely an acknowledgement that the person themselves had severed their ties to Australia.</p>
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Read more:
<a href="https://theconversation.com/what-does-being-australian-mean-under-the-constitution-38889">What does 'being Australian' mean under the Constitution?</a>
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<p>A <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0010/2771452/11-Pillai-and-Williams.pdf">study</a> looking at counterterrorism citizenship-stripping in the United Kingdom, Canada and Australia found the laws were serving this symbolic role. </p>
<p>But symbolism is a thin shield for national security. </p>
<p>When it comes to actually protecting security, the evidence shows that citizenship-stripping comes up short. </p>
<p>People have been stripped of their citizenship and committed terrorist acts elsewhere. Khaled Sharrouf, Australia’s most notorious foreign fighter, is one such person. </p>
<p>In a globalised world, people stripped of citizenship can still serve a pivotal role in recruitment and radicalisation, especially on the internet. </p>
<p>Kept in Australia, as an Australian, the full weight of our vast security laws can be brought to bear on Benbrika. </p>
<p>Stripped of his citizenship, Benbrika would have been beyond the reach of those laws, and it would be naïve to think that simply making him not-Australian would negate the risks he may present.</p><img src="https://counter.theconversation.com/content/216896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Convicted terrorist Abdul Nacer Benbrika yesterday won the right to remain an Australian citizen. So will he go free? And what does this mean for national security?Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168212023-11-01T19:25:15Z2023-11-01T19:25:15ZNo back door for 5 years: remote community’s High Court win is good news for renters everywhere<p>It took seven years, but a tiny remote community in the Northern Territory had a major legal win yesterday.</p>
<p>People in the town of Santa Teresa, southeast of Alice Springs, won the right to compensation for the substandard housing they’re forced to live in.</p>
<p>For more than five years, one resident lived without a back door.</p>
<p>The High Court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/31">ruled</a> their landlord, the Northern Territory government, must pay them for the “distress and disappointment” they endured as a result. </p>
<p>So what does this mean, not just for the Aboriginal community leading the charge, but for tenants’ rights more broadly?</p>
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<strong>
Read more:
<a href="https://theconversation.com/aboriginal-housing-policies-must-be-based-on-community-needs-not-what-non-indigenous-people-think-they-need-162999">Aboriginal housing policies must be based on community needs — not what non-Indigenous people think they need</a>
</strong>
</em>
</p>
<hr>
<h2>A long path to legal victory</h2>
<p>The fight for better housing conditions in Santa Teresa has been making its way through the courts for years.</p>
<p>In 2016, a group of residents launched a <a href="https://www.abc.net.au/news/2019-02-27/santa-teresa-community-wins-housing-class-action-against-govt/10853674">class action</a> against the NT government for not providing habitable homes.</p>
<p>Three years later, some of the residents in the action were successful in the NT Civil and Administrative Tribunal in their efforts to sue.</p>
<p>But the government has fought every step of the way. </p>
<p>It appealed to the Supreme Court, which then sided with the tenants by awarding them <a href="https://www.abc.net.au/news/2020-09-09/northern-territory-santa-teresa-residents-supreme-court-fight/12641354">further compensation</a>.</p>
<p>The NT government appealed that, too. The Court of Appeal found the government was in breach, but held the tenants were not entitled to all the compensation ordered.</p>
<p>So the tenants appealed, bringing the matter to the High Court.</p>
<p>In a <a href="https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/31">majority ruling</a>, the court found the government had breached the Residential Tenancies Act by not providing one of the residents with a back door.</p>
<p>But that part isn’t surprising. The new part is that the court decided the government was liable for compensation.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1719508920111358263"}"></div></p>
<h2>What was the case around compensation?</h2>
<p>Here’s where some common law principles come into play.</p>
<p>The NT government argued that while it breached the tenancy act, it didn’t owe compensation as a result.</p>
<p>The devil is in the detail, namely the words “disappointment or distress”.</p>
<p>Those are non-economic losses. That means they didn’t directly cost the residents money.</p>
<p>Under common law, there’s no entitlement to compensation for most non-economic losses. </p>
<p>There are some exceptions, though: if the disappointment comes from being physically inconvenienced, or from being expressly promised enjoyment, compensation may be required.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-need-to-design-housing-for-indigenous-communities-that-can-withstand-the-impacts-of-climate-change-171203">We need to design housing for Indigenous communities that can withstand the impacts of climate change</a>
</strong>
</em>
</p>
<hr>
<p>An example of this is when people sue cruise companies for being disappointed by <a href="https://www.australiancontractlaw.info/cases/database/baltic-shipping-v-dillon">their holiday</a>.</p>
<p>In this case, the High Court has decided that those restrictive principles don’t apply to compensation for breaches of tenancy rights under residential tenancies legislation.</p>
<p>It found when it looked at the overall intent of the territory’s <a href="https://legislation.nt.gov.au/en/Legislation/RESIDENTIAL-TENANCIES-ACT-1999">Residential Tenancy Act</a>, including its compensation provisions, the residents were entitled to compensation.</p>
<p>So the Supreme Court’s previous compensation order is restored.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/think-private-renting-is-hard-first-nations-people-can-be-excluded-from-the-start-192392">Think private renting is hard? First Nations people can be excluded from the start</a>
</strong>
</em>
</p>
<hr>
<p>But two High Court judges wrote a minority judgement. </p>
<p>Interestingly, they agreed the tenants should be compensated, but for a different reason. </p>
<p>They thought a tenancy promised enjoyment, so compensation for “disappointment and distress” would be allowed by those common law principles.</p>
<h2>What does this mean for renters nationally?</h2>
<p>The case has been referred to as a <a href="https://www.abc.net.au/news/2022-02-04/nt-supreme-court-finds-for-santa-teresa-public-housing-tenants/100804718">landmark one</a>, and in many ways it is.</p>
<p>A group of Aboriginal public housing tenants organised, fought for their rights, and won. They changed the law.</p>
<p>There are many barriers to tenants fighting for what they’re entitled to, so it’s a remarkable result. </p>
<p>The two leaders of the litigation died before the High Court handed down its decision. It is a memorial to them.</p>
<p>The High Court’s decision refers specifically to the NT’s residential tenancies legislation. It did not decide whether those restrictive common law principles about compensation are excluded from tenancy laws in other states and the ACT. </p>
<p>That question will have to be answered by the tribunals and courts in each other state and territory. </p>
<p>Given the legislation across the country are on a broadly common model, it seems likely the result would be similar, but that’s up to the courts to decide.</p>
<p>At any rate, the case has demonstrated that remote communities in the Northern Territory are legally entitled to safe, habitable living conditions, and the government is liable if it fails to provide them.</p>
<p>And tenants around Australia can take heart from the example of the Santa Teresa tenants.</p><img src="https://counter.theconversation.com/content/216821/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Martin receives funding from the Australian Research Council, the Australian Housing and Urban Research Institute, the Tenants' Union of NSW and Tenants Queensland Ltd. He is affiliated with the Eastern Area Tenants Service, as a member of its management committee.</span></em></p>The tiny remote community of Santa Teresa spent seven years fighting for compensation for poor public housing. Now that the High Court has ruled in their favour, what does it mean for other renters?Chris Martin, Senior Research Fellow, City Futures Research Centre, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2159922023-10-25T03:54:46Z2023-10-25T03:54:46ZNational road-user charges are needed – and most people are open to it, our research shows<figure><img src="https://images.theconversation.com/files/555716/original/file-20231025-23-x7jo6h.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5501%2C3667&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The <a href="https://www.theguardian.com/law/2023/oct/18/why-the-high-court-struck-out-victorias-ev-tax-and-the-ripple-effects-of-the-decision#:%7E:text=Victoria%20introduced%20a%20distance%2Dbased,2.3c%20for%20each%20kilometre.">High Court</a> ruled last week that Victoria’s road-user charge for electric vehicle (EV) drivers is unconstitutional. Because the court decided it’s an excise, only the <a href="https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/30">Commonwealth</a> can now impose such a tax. </p>
<p>The Victorian government introduced the <a href="https://www.abc.net.au/news/2023-09-27/ombudsman-victoria-electric-vehicle-road-user-charge-unfair/102905834">controversial</a> distance-based charge in 2021. The court decision will likely derail similar <a href="https://www.smh.com.au/environment/sustainability/electric-vehicle-court-ruling-ups-pressure-for-federal-approach-20231018-p5ed55.html">plans by other states</a>. </p>
<p>Current road taxes are blunt instruments that don’t reflect the <a href="https://fbe.unimelb.edu.au/newsroom/why-we-should-be-taxing-australian-drivers-differently">true costs of driving to society</a>. The fuel excise does not properly account for traffic congestion or emissions. It makes no allowance for people’s ability to pay. Car registration fees are also not related to the amount of travel, congestion or emissions produced by driving. </p>
<p>Hence the need for road-user charges. To understand public attitudes to such charges in Australia, we surveyed more than 900 people in Melbourne and Sydney. The results of <a href="https://imoveaustralia.com/education/phd-student-profile/tariq-munir/">this research</a> showed a good appetite for road taxation reform in the nation’s two largest cities. </p>
<p>Only about a third of respondents opposed road-user charges to reduce traffic congestion in their cities. And support increased when they were told the revenue would be used to improve traffic infrastructure and public transport. The findings offer insights into how road-user charging could be rolled out successfully across the nation.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1714840040088490178"}"></div></p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-good-the-high-court-overturned-victorias-questionable-ev-tax-but-theres-a-sting-in-the-tail-215985">It's good the High Court overturned Victoria's questionable EV tax. But there's a sting in the tail</a>
</strong>
</em>
</p>
<hr>
<h2>What do people think about road-user charges?</h2>
<p>For our research, we surveyed a representative sample of 929 people (373 in Melbourne and 556 in Sydney) in April 2022 (Melbourne) and November 2022 (Sydney). </p>
<p>A majority of respondents (70% in Sydney and 65% in Melbourne) supported the introduction of measures to reduce traffic congestion in their respective cities. </p>
<p>When specifically asked if they would support road-user charges, only 32% of respondents in both cities opposed the idea. Around 29% of respondents in Sydney and 34% of respondents in Melbourne were undecided. </p>
<p>They were then told the revenue raised would be used to improve all forms of transport infrastructure and services. Levels of opposition and uncertainty fell. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Stacked bar chart showing percentages supporting, opposing or undecided about road-user charges depending on where revenue is invested." src="https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555728/original/file-20231025-23-8y2az3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>In particular, respondents in both cities were most supportive of road-user charges if the revenue raised was used to improve public transport. Opposition fell to 20% in Sydney and to 23% in Melbourne. The percentage of undecided respondents fell to 24% in Sydney and to 30% in Melbourne. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pie charts show percentage of respondents supporting, opposing or undecided about road-user charges if revenue is spent on improving public transport" src="https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=443&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=443&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=443&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555731/original/file-20231025-19-xutsw1.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Around 96% of respondents in Melbourne owned a private car, compared to 90% in Sydney. These cars were the main means of transport for most respondents (75% Melbourne, 64% Sydney). Average vehicle occupancy was 1.25 people per vehicle in Melbourne and 1.27 in Sydney. </p>
<p>Sydney had a higher proportion of public transport users (27% Sydney, 16% Melbourne). Around 7% of respondents in both cities preferred walking and <a href="https://theconversation.com/banning-tiny-vehicles-would-deny-us-smarter-ways-to-get-around-our-cities-113111">micro-mobility</a>, such as bikes and scooters, as their main means of getting around.</p>
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<a href="https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Horizontal bar chart showing preferred forms of transport (by percentage of respondents) in Melbourne and Sydney" src="https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555739/original/file-20231025-29-rz5mbp.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-high-court-decision-on-electric-vehicles-will-make-charging-for-road-use-very-difficult-216107">The High Court decision on electric vehicles will make charging for road use very difficult</a>
</strong>
</em>
</p>
<hr>
<h2>Savings affect willingness to pay road-user charges</h2>
<p>We found willingness to pay a road-user charge varies with the level of expected savings. </p>
<p>Around 66% of respondents in both cities were willing to pay a road-user charge if it saved them up to $800 a year on registration fees and fuel taxes. Another 13% of respondents in Sydney and 11% in Melbourne were willing to pay the charge if savings exceeded $800 a year. </p>
<p>Around 55% of respondents in Sydney and 46% in Melbourne would be willing to pay a congestion charge if it cut their total daily travel times by 10 to 30 minutes. Another 18% of respondents in both cities would pay the charge if it cut travel times by more than 30 minutes. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/yvPowPkFrhg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Jonas Eliasson, architect of Stockholm’s congestion pricing scheme, explains how subtly nudging just a small percentage of drivers to stay off major roads can end traffic jams.</span></figcaption>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/will-drivers-who-paid-victorias-electric-vehicle-tax-be-able-to-get-their-money-back-216021">Will drivers who paid Victoria's electric vehicle tax be able to get their money back?</a>
</strong>
</em>
</p>
<hr>
<h2>Why oppose road-user charges?</h2>
<p>Many <a href="https://www.mdpi.com/2071-1050/13/21/12048">factors</a> influence public opposition to road-user charging. These include <a href="https://www.sciencedirect.com/science/article/abs/pii/S0965856419313175">distrust</a> in governments, uncertainty about <a href="https://www.sciencedirect.com/science/article/abs/pii/S0967070X10000326">benefits</a>, and concerns over <a href="https://link.springer.com/article/10.1007/s11116-013-9459-4">equity</a>. Other barriers include <a href="https://www.hindawi.com/journals/jat/2020/4242964/">understanding</a> how the scheme works, <a href="https://www.sciencedirect.com/science/article/abs/pii/S0967070X19307450">complexity</a> of implementation, and uncertainty about how <a href="https://www.sciencedirect.com/science/article/abs/pii/S0967070X10000326">revenues</a> will be used.</p>
<p>In our survey, the undecided respondents said they needed more information to better understand the user-pays approach and its benefits. International <a href="https://www.mdpi.com/2071-1050/13/21/12048">studies</a> have reported the same response. </p>
<p>Information campaigns to demystify road-user charging and highlight its benefits can win over undecided people. </p>
<h2>Road tax system is broken</h2>
<p>The road taxes in place today – which include fuel excise and motor vehicle ownership taxes – are near <a href="https://www.afr.com/policy/economy/no-choice-broken-taxes-must-be-fixed-20220210-p59vc7">breaking point</a>, according to political, policy and business leaders. <a href="https://www.carexpert.com.au/car-news/australias-best-selling-electric-cars-so-far-in-2023">Soaring electric vehicle sales</a> will hasten the decline in fuel excise revenues. </p>
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<p>Victoria’s <a href="https://www.legislation.vic.gov.au/bills/zero-and-low-emission-vehicle-distance-based-charge-bill-2021">levy</a> of 2.8 cents for each kilometre travelled (2.3 cents for plug-in hybrids) was intended to raise revenue from drivers who don’t pay fuel excise. The High Court decision has prompted <a href="https://www.theguardian.com/environment/2023/oct/18/victoria-ev-tax-australia-state-taxes--revenue-electric-vehicles-cars-states-high-court-ruling">warnings</a> of major hits to state coffers.</p>
<p><a href="https://www.afr.com/politics/tax-review-rudd-cautioned-on-road-user-charges-20100113-iw75b">Tax reviews</a>, peak bodies such as <a href="https://www.infrastructurevictoria.com.au/project/research-transport-network-pricing/">Infrastructure Victoria</a> and experts have long called for road-user charges to replace current road taxes. </p>
<p>Aside from the decline in revenue, another problem with fuel excise is that drivers with different travel patterns pay the same tax. There will be drivers who travel in regional Victoria or in an outer suburb of Sydney for local shopping or school drop-offs who pay the same excise as a driver who travels into the city centre or other congested areas. This means fuel excise is less effective for reducing traffic congestion and emissions than road-user charges.</p>
<p>But to be effective and fair, these must be applied to all vehicles as part of a holistic national approach. It will help to manage travel demand, cut emissions and raise revenue to maintain transport infrastructure.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/distance-based-road-charges-will-improve-traffic-and-if-done-right-wont-slow-australias-switch-to-electric-cars-150290">Distance-based road charges will improve traffic — and if done right won't slow Australia's switch to electric cars</a>
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</em>
</p>
<hr>
<h2>The road ahead</h2>
<p>The High Court decision has placed road taxation reform squarely on the national agenda. But any road-user charging scheme that targets <a href="https://www.drive.com.au/news/treasurer-electric-car-tax-fuel-excise-revenue/">only electric vehicles</a> would be a missed opportunity for <a href="https://australiainstitute.org.au/post/worlds-worst-ev-policy-scrapped-by-high-court/">meaningful reform</a>.</p>
<p>Our survey findings show Australia is ready for a rational and transparent discussion about road-user charging on all vehicles, not only electric vehicles. </p>
<p>The findings show a majority of people would support such charges if they are transparent, equitable and replace or reduce other road taxes. Support would increase if the public is assured the revenue will be used to improve all transport infrastructure, not only roads. </p>
<p>If well planned and implemented, a national approach to road-user charges can raise enough revenue to replace the fuel excise tax. It will also ease congestion, promote sustainable transport and help achieve Australia’s targets for cutting transport emissions.</p><img src="https://counter.theconversation.com/content/215992/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hussein Dia receives funding from the Australian Research Council, the iMOVE Cooperative Research Centre, Transport for New South Wales, Queensland Department of Transport and Main Roads, Victorian Department of Transport and Planning, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, and Beam Mobility Holdings.</span></em></p><p class="fine-print"><em><span>Hadi Ghaderi receives funding from the iMOVE Cooperative Research Centre, Transport for New South Wales, Queensland Department of Transport and Main Roads, Victorian Department of Transport and Planning, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, IVECO Trucks Australia limited, Innovative Manufacturing Cooperative Research Centre, Victoria Department of Education and Training, Bondi Laboratories, Australian Meat Processor Corporation, 460degrees and Passel.</span></em></p><p class="fine-print"><em><span>Tariq Munir acknowledges the financial support received in the form of a PhD scholarship from Swinburne University and the government of Pakistan. He also acknowledges the PhD top-up scholarship received from the iMOVE CRC and supported by the Cooperative Research Centres program, an Australian government initiative.</span></em></p>Support for road-user charging strengthens when people are assured that revenue goes into reducing traffic congestion, maintaining transport infrastructure, improving public transport.Hussein Dia, Professor of Future Urban Mobility, Swinburne University of TechnologyHadi Ghaderi, Associate Professor in Logistics and Supply Chain Management, Swinburne University of TechnologyTariq Munir, PhD Candidate, Centre for Sustainable Infrastructure and Digital Construction, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2159852023-10-19T03:33:23Z2023-10-19T03:33:23ZIt’s good the High Court overturned Victoria’s questionable EV tax. But there’s a sting in the tail<figure><img src="https://images.theconversation.com/files/554655/original/file-20231019-27-68bc4l.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5483%2C3663&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>For anyone concerned with the need to decarbonise transport – or with sound economic policy – <a href="https://www.hcourt.gov.au/assets/publications/judgment-summaries/2023/hca-30-2023-10-18.pdf">yesterday’s High Court ruling</a> might seem like good news. </p>
<p>The court ruled Victoria’s tax on road use for zero- and low-emissions vehicles was unconstitutional, after two electric car drivers challenged the state’s ability to impose excise-type levies. </p>
<p>But given the High Court’s previous track record on constitutional interpretation, there’s a grave danger this decision will be extended to rule out any kind of road user charge. It threatens <a href="https://www.afr.com/policy/tax-and-super/high-court-rejects-victoria-tax-on-evs-20231017-p5ecze">many other state levies</a> too, from luxury cars to mining royalties. </p>
<h2>Why was Victoria’s tax so bad?</h2>
<p>EV drivers don’t buy petrol or diesel, which means they avoid the fuel excise that other drivers pay – and which pays for road maintenance. That’s why Victoria introduced its <a href="https://www.vicroads.vic.gov.au/registration/registration-fees/zlev-road-user-charge">EV road user charge</a>, which cost owners about two cents per kilometre driven.</p>
<p>Despite this plausible-sounding rationale, the road user charge was terrible policy, both environmentally and economically. A tax specific to electric vehicles could only slow their adoption, at a time when early adopters need to be encouraged.</p>
<p>And in economic terms, the policy rested on a misunderstanding of economics. The tax was supposed to address a “distortion” in the incentives generated when electric vehicle drivers paid less to use the roads than internal combustion engine vehicle drivers.</p>
<p>But the government’s reasoning didn’t take into account a central principle of economic policy – the <a href="https://www.cambridge.org/core/books/abs/course-in-public-economics/theory-of-the-second-best/FDB9BEB1C6F95B9C715EE98CE18C791A">theory of the second-best</a>. </p>
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<a href="https://theconversation.com/victorias-electric-vehicle-tax-and-the-theory-of-the-second-best-150936">Victoria's electric vehicle tax and the theory of the second-best</a>
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<p>Drivers who fill up with petrol, gas or diesel don’t bear the social and environmental costs of their choices in the form of carbon dioxide and other pollutants emitted, or the cost of the damage done to our lungs. </p>
<p>So by taxing EVs, you make traditional car drivers better off – and that leads to worse social outcomes overall.</p>
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<a href="https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a red and blue car in a showroom" src="https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554683/original/file-20231019-15-5uy8w4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Taxes can change what we buy – another petrol car, or your first electric one?</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>Three years ago, I finished a critique of the policy <a href="https://theconversation.com/victorias-electric-vehicle-tax-and-the-theory-of-the-second-best-150936">on a positive note</a>, suggesting it opened the door to broader road user charges based on kilometres travelled. </p>
<p>Sadly, it seems my assessment was premature. </p>
<p>In recent decades, the High Court has been taking ever more expansive interpretations of <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s90.html">Section 90 of the Constitution</a>, which prevents state governments from “imposing duties of customs or of excise”.</p>
<p>In the first decades after federation, “excise” was interpreted to refer to taxes levied on goods manufactured in Australia, just as customs duties are levied on imported goods. </p>
<p>Over many years and many High Court decisions, the concept was broadened to include any tax or fee that increases the costs of goods for consumers. </p>
<p>The last remaining obstacle was the <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1974/9.html">“Tobacco Tax” decision</a> in 1974, which excluded consumption taxes from Section 90’s scope. </p>
<p>But that, too, is now gone. Despite some <a href="https://www.hcourt.gov.au/assets/publications/judgment-summaries/2023/hca-30-2023-10-18.pdf">scathing dissenting opinions</a>, a 4-3 majority overturned the 1974 precedent and expanded the scope of Section 90 even further. </p>
<p>In doing so, they have created large headaches for state and territory leaders, who have propped up state finances with an assortment of taxes, excise schemes and other charges that could now be subject to legal challenge. </p>
<h2>Did the High Court just kill road user charges entirely?</h2>
<p>Victoria’s law was a bad one. But other road user charges can be very useful, as a way to discourage overuse of private vehicles, charge heavy drivers more, or speed up the shift to clean, quiet EVs. </p>
<p>The reasoning of the High Court majority – which held that the Victorian charge wasn’t related to the cost of providing roads – leaves some hope that a broader road user charge might pass muster. </p>
<p>But to the extent that different kinds of vehicles were charged differently, it seems entirely possible the court might rule that road user charges are an unconstitutional excise. And the recent tendency of the court has been to push logical consistency up to, and beyond, the limits of reason. </p>
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<a href="https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a busy melbourne freeway seen from above" src="https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554679/original/file-20231019-17-qcoxum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A tax on electric vehicles could act to keep internal combustion cars on the roads longer.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>We saw this with the <a href="https://theconversation.com/the-section-44-soap-opera-why-more-mps-could-be-in-danger-of-being-forced-out-116955">saga over Section 44</a>. Early decisions ruled dual citizens were not eligible to stand for parliament. Later, the court’s interpretation expanded to cover people who had lived their entire lives in Australia but who could theoretically be eligible for another citizenship. The end result was that as many as half of all Australians were ineligible to serve in parliament. </p>
<p>We can hope the current decision will not be stretched in the same way. But nothing is guaranteed. </p>
<p>It may be that the only way to replace our current fuel taxes with road user charges will be through a uniform charge imposed by the Commonwealth. </p>
<p>There may be some creative alternatives. One way to resolve the problem might be to turn all roads into “virtual” toll roads, charging drivers based on use and converting state transport departments into government business enterprises. </p>
<p>For the moment, we can be grateful the Victorian government’s misguided and muddled tax policy has been scrapped – and a barrier to EV uptake is gone. But the High Court’s decision has flagged the need for urgent action at the national level to work out a consistent policy.</p>
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Read more:
<a href="https://theconversation.com/distance-based-road-charges-will-improve-traffic-and-if-done-right-wont-slow-australias-switch-to-electric-cars-150290">Distance-based road charges will improve traffic — and if done right won't slow Australia's switch to electric cars</a>
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<img src="https://counter.theconversation.com/content/215985/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Quiggin is a former Member of the Climate Change Authority.</span></em></p>Taxing electric vehicles was always a bad idea. But the High Court’s ruling against Victoria’s law could make state-based road user charges impossible.John Quiggin, Professor, School of Economics, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2134522023-09-13T07:35:40Z2023-09-13T07:35:40ZHigh Court ruling vindicates sacked Qantas workers but doesn’t stop the outsourcing of jobs in the future<p>Qantas faces a potentially huge compensation payout to sacked workers, in a further knock to the carrier’s already diminished reputation.</p>
<p>On Wednesday the airline <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/27.html">lost its bid</a> to have the High Court overturn a ruling that it unlawfully outsourced the jobs of around 1,683 ground crew, including baggage handlers, cleaners and tug drivers.</p>
<p>The ruling was the culmination of a long road for the Transport Workers’ Union, and the impacted employees, whose belief that their jobs were outsourced because Qantas wanted to avoid negotiating with them over their future pay and conditions was vindicated by the High Court.</p>
<p>In November 2020, at the height of the pandemic, Qantas made the outsourcing decision which made the ground crews across ten airports redundant, and saved Qantas an estimated $100 million a year in operating costs.</p>
<h2>The workers turn to the courts</h2>
<p>The <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/873.html">union took action</a> in the Federal Court of Australia, arguing the decision was made to avoid bargaining with those same workers for a new enterprise agreement, and to stop them taking protected industrial action. </p>
<p>In July 2021, Justice Lee in the Federal Court found that Qantas could not show it had not made the workers redundant for the reasons alleged by the union. Because the right to bargain and take industrial action are workplace rights under the Fair Work Act, this meant Qantas had taken adverse action against those employees in breach of the Act.</p>
<p>Justice Lee’s decision was upheld by the Full Federal Court of Australia in <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2022/71.html">May 2022</a>, and on Wednesday was unanimously upheld by the High Court. </p>
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Read more:
<a href="https://theconversation.com/qantas-chief-alan-joyce-quits-early-amid-customer-fury-at-the-airline-212845">Qantas chief Alan Joyce quits early, amid customer fury at the airline</a>
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<p>Qantas will now be required to pay compensation to the employees concerned and penalties for breaches of the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s340.html">Fair Work Act</a> – with those amounts to be determined by Justice Lee in the Federal Court.</p>
<p>While the workers have been vindicated, the ruling does not mean employers cannot make outsourcing decisions, or that those former Qantas employees will get their jobs back. It doesn’t even mean Qantas will suffer substantial harm beyond what is likely to be a hefty bill.</p>
<p>As demonstrated after its 2011 worldwide lockout and shutdown, Qantas seems willing and able to absorb both financial pain and substantial damage to its reputation in pursuit of its industrial objectives. </p>
<h2>So, what does the ruling mean?</h2>
<p>It is important to understand that the case turned on very narrow principles of law and findings of fact. </p>
<p>When making a decision that affects an employee, an employer must not make that decision because the employee has workplace rights, or to prevent the employee exercising their workplace rights. </p>
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Read more:
<a href="https://theconversation.com/will-it-be-greener-pastures-for-qantas-as-alan-joyce-takes-off-212848">Will it be greener pastures for Qantas as Alan Joyce takes off?</a>
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<p>The Fair Work Act does not prevent employers making business decisions. Qantas was lawfully able to make a decision to outsource its ground handling staff. And it was entitled to base its decision on legitimate business grounds, including factors such as cost, profit and convenience. </p>
<p>What it was not entitled to do was to include, as a reason for the outsourcing decision, seeking to avoid engaging in collective bargaining with those employees or to avoid them exercising their right to strike. </p>
<p>Qantas could not prove this was not an operative or substantial part of its reasoning.</p>
<h2>A rare win for the unions</h2>
<p>The High Court case is significant, but not because it makes a precedent that employers cannot outsource their workforces.</p>
<p>It is significant because the union won. And these cases are notoriously hard to win. Because they turn on the subjective reasons of the decision maker, which can be very difficult to challenge in practice. </p>
<p>Furthermore, it is hard to get injunctive relief to prevent decisions taken for prohibited reasons before they can be implemented. </p>
<p>In the Federal Court, the union sought reinstatement of the workers impacted by Qantas’s unlawful actions. </p>
<p>But the egg was already scrambled – the workers had been made redundant, and the work outsourced to external providers and their employees (with less generous industrial arrangements). Third-party interests had got involved. So, the Federal Court refused the reinstatement request. </p>
<p>This leaves the compensation and penalties payments that Qantas now faces potentially as just a cost of doing business.</p>
<h2>So what has come out of this ruling?</h2>
<p>The lessons we can draw from the decision are threefold.</p>
<p>First, the laws that protect our workers in the exercise of their rights need to be strengthened so the victory of the Transport Workers’ Union does not stand as an anomaly. </p>
<p>Second, early injunctive relief in these cases should be easier to access so workers rights are preserved, and courts are not left attempting to compensate workers once the damage is done and cannot be undone.</p>
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Read more:
<a href="https://theconversation.com/what-will-putting-the-interests-of-qantas-ahead-of-qatar-airways-cost-1-billion-per-year-and-a-new-wave-of-protectionism-of-legacy-carriers-212495">What will putting the interests of Qantas ahead of Qatar Airways cost? $1 billion per year and a new wave of protectionism of legacy carriers</a>
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<p>Third, this decision won’t prevent businesses outsourcing to avoid negotiating enterprise agreements with their workers – not where they can show legitimate business reasons for their actions that do not involve any substantive prohibited reasons. </p>
<p>The solution to the outsourcing problem lies in multi-employer and industry-level bargaining. It shouldn’t be significantly cheaper to outsource your workers. If all employers within a sector have to pay the same rates through multi-employer or industry-level agreements, the incentive to outsource falls away.</p><img src="https://counter.theconversation.com/content/213452/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shae McCrystal does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The embattled airline may be forced to compensate almost 2000 workers as a result of the ruling.Shae McCrystal, Professor of Labour Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2115422023-08-17T13:12:48Z2023-08-17T13:12:48ZTrees, rivers and mountains are gaining legal status – but it’s not been a quick fix for environmental problems<figure><img src="https://images.theconversation.com/files/543183/original/file-20230817-27-tw75sv.jpg?ixlib=rb-1.1.0&rect=18%2C18%2C4007%2C2999&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Whanganui River, New Zealand.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/whanganui-river-major-north-island-new-2158593181">Wirestock Creators/Shutterstock</a></span></figcaption></figure><p>As the scale and severity of environmental issues become more obvious, lawmakers are experimenting with new ways to protect nature. <a href="https://theconversation.com/rights-for-nature-how-granting-a-river-personhood-could-help-protect-it-157117">One approach</a> that has gone from blue-sky debate to meaningful reality over the past 50 years is to give elements of the natural world – trees, rivers and mountains – legal rights and allow people to go to court on their behalf.</p>
<p>In 2022, Spain’s Mar Menor saltwater lagoon became the <a href="https://www.waternewseurope.com/legal-rights-for-mar-menor/">first ecosystem in Europe</a> to be granted a limited legal status similar to a company. Meanwhile, Ireland’s recent <a href="https://citizensassembly.ie/report-of-the-citizens-assembly-on-biodiversity-loss-report-launches/">Citizens’ Assembly on Biodiversity Loss</a> concluded with a <a href="https://www.rte.ie/news/environment/2023/0405/1374285-biodiversity/">recommendation to amend the constitution</a> to include a provision on the rights of nature.</p>
<p>This idea can be traced back to the early 1970s, when American legal scholar Christopher Stone spontaneously threw it into a classroom discussion about the gradual expansion of rights, and was pleasantly surprised by the positive response it got. </p>
<p>He knew that the US Supreme Court was about to hear an important case on what lawyers call “standing” (whether or not one has the right to be heard by a court in a particular dispute), in which an environmental organisation called the Sierra Club was seeking to prevent the development of a ski resort in the Sequoia National Forest. Stone also knew that one of the justices, <a href="https://en.wikipedia.org/wiki/William_O._Douglas">William O. Douglas</a>, who was well known for his environmental sympathies, would be writing a foreword to an issue of a legal journal. </p>
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<img alt="Giant sequoia trees covered in snow." src="https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Sequoia National Forest, California.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/giant-forest-covered-by-snow-after-378711073">Panpilas L/Shutterstock</a></span>
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<p>Stone quickly wrote an article called <a href="https://huminst.red.uic.edu/wp-content/uploads/sites/412/2019/04/May-6-Stone-Should-Trees-Have-Standing.pdf">Should Trees Have Standing?</a>, elaborating on his initial thought just in time to get it into that issue. Douglas picked up the idea and endorsed it in <a href="http://cdn.loc.gov/service/ll/usrep/usrep405/usrep405727/usrep405727.pdf">his judgment</a>, saying: “The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist or a logger — must be able to speak for the values which the river represents and which are threatened with destruction.”</p>
<p>Though this did not sway the other members of the Supreme Court, it did spark a brief flurry of academic writing on the subject (the ski resort was never built anyway). Stone <a href="https://www.youtube.com/watch?v=eV9JmQwFXg0">became a media celebrity</a> for a short while before the idea of giving parts of nature legal rights faded from the public eye.</p>
<p>Fast forward to the 21st century and academics alongside environmental activists have given the idea a new lease of life. It has grown to include different schools of thought and these theories are now being <a href="http://harmonywithnatureun.org/rightsOfNature/">put into practice worldwide</a>. </p>
<p>So far, they have <a href="https://theconversation.com/when-a-river-is-a-person-from-ecuador-to-new-zealand-nature-gets-its-day-in-court-79278">not been a quick fix</a> for environmental problems. But they are leading to some successes.</p>
<p>More experiments may help identify how to make them work well effectively. But simply granting rights to nature is probably not a substitute for strong institutions and meaningful enforcement. This becomes clear when we explore the experiences of three different countries.</p>
<h2>New Zealand</h2>
<p>In 1840, the <a href="https://theconversation.com/explainer-the-significance-of-the-treaty-of-waitangi-110982">Treaty of Waitangi</a> was signed between the British crown and New Zealand’s indigenous Māori people. The treaty aimed to protect the Māori people’s right to their land and resources.</p>
<p>As part of a settlement to remedy past breaches of the treaty, both a <a href="https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-urewera-act-2014/">former national park</a> called Te Urewera and the <a href="https://www.whanganui.govt.nz/About-Whanganui/Our-District/Te-Awa-Tupua-Whanganui-River-Settlement">Whanganui River</a> have been recognised in New Zealand law as entities with their own rights (although not all the rights of a human person) since 2014 and 2017 respectively. This has involved the creation of two boards to manage the natural resources, featuring joint representation from the government and the local tribe. </p>
<p>Plans for rethinking Te Urewera are still being formulated, and representation for the Whanganui River has only recently been appointed (like many things, it was delayed by the COVID pandemic). However, a strategic plan will be developed in tandem with a NZ$30 million (£14 million) fund to support the river’s health and wellbeing.</p>
<p>Time will tell if reframing this process so that nature itself has a voice will yield better outcomes.</p>
<h2>Bangladesh</h2>
<p>In 2019, the High Court of Bangladesh <a href="https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates/legal-rights-of-rivers-an-international-trend/">recognised the Turag River</a> (and all other rivers in Bangladesh) as a living entity with legal rights and required that the government take significant action to protect it. </p>
<p>The state agency with overall responsibility, the National River Conservation Commission, has <a href="https://www.tbsnews.net/features/panorama/repeat-offenders-who-pollute-rivers-should-be-jailed-nrcc-chairman-520134">promised rapid action</a>. But, still today, many water bodies in the country are “dead” thanks to <a href="https://www.thedailystar.net/environment/pollution/water-pollution/news/river-pollution-its-now-all-over-the-country-3270451">pollution</a> caused by the widespread <a href="https://www.thedailystar.net/news/bangladesh/news/turag-turns-dumping-zone-3173131">dumping of industrial and human waste</a>.</p>
<p>The Buriganga River, which flows south-west of Bangladesh’s capital city of Dhaka, is now so polluted that its <a href="https://www.reuters.com/investigates/special-report/earth-day-bangladesh-river/">water appears black</a> outside of the monsoon season.</p>
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<img alt="An aerial view of the Buriganga River." src="https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Buriganga River has become the most polluted river in Bangladesh.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/dhaka-bangladesh-november-13-2020-top-1853982250">Sk Hasan Ali/Shutterstock</a></span>
</figcaption>
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<h2>Ecuador</h2>
<p>In 2008, Ecuador adopted a <a href="https://www.constituteproject.org/constitution/Ecuador_2011?lang=en">new constitution</a> that includes an article explicitly recognising nature’s right to “exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”. This development has enabled landowners and environmentalists to bring cases to court to protect the country’s <a href="https://theecologist.org/2020/nov/06/rights-nature-ecuador">rivers</a> and <a href="https://theecologist.org/2020/nov/06/rights-nature-ecuador">forests</a>, <a href="https://www.cambridge.org/core/journals/transnational-environmental-law/article/how-ecuadors-courts-are-giving-form-and-force-to-rights-of-nature-norms/186BBD0B99125ED2BAB3FE752C386FEA">slowly making this right a reality</a>. </p>
<p>A striking example of this unfolded in 2021 when the Ecuadorian Constitutional Court <a href="https://verfassungsblog.de/the-los-cedros-forest-has-rights/">revoked mining permits in Los Cedros</a> – a cloud forest area of great biodiversity in the Andean mountains. It asserted that these permits not only violated the rights of local residents (such as the right to clean water and a healthy environment), but also the rights of the forest itself.</p>
<p>This is a significant step with ramifications for the future. However, it also highlights a common objection: that environmental matters frequently also include some form of human interest that can serve as a basis for legal standing. Consequently, granting nature rights may be unnecessary.</p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4402290">Whether they work or not</a>, some form of rights for aspects of nature are likely to become part of most legal systems this century. Anyone with an interest in environmental protection should be aware of the idea and its development.</p>
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<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p class="fine-print"><em><span>The author does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article.</span></em></p>The idea of giving aspects of nature legal rights is gaining traction – but the results are mixed.Rónán Kennedy, Associate Professor, University of GalwayLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2053842023-05-28T20:06:27Z2023-05-28T20:06:27ZFar from undermining democracy, The Voice will pluralise and enrich Australia’s democratic conversation<figure><img src="https://images.theconversation.com/files/527618/original/file-20230523-23-trurlw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cheryl Axleby reads the Uluru Statement from the Heart outside South Australia’s Parliament in Adelaide on March 26, after SA becomes the first state to legislate for an Indigenous Voice.</span> <span class="attribution"><span class="source">Matt Turner/AAP</span></span></figcaption></figure><p>Does the proposal for a Voice to Parliament prefigure a distinctive conception of democracy for Australia? A steady drumbeat of criticism to date has been that it will, instead, undermine our liberal democratic institutions.</p>
<p>One version of this concern is that an Indigenous Voice violates the principle of <a href="https://www.theguardian.com/australia-news/2023/may/02/liberals-accused-of-flirting-with-far-right-fringe-after-sky-news-show-where-indigenous-voice-compared-to-apartheid">equal citizenship</a> and equality before the law. Another is that it introduces a divisive form of <a href="https://www.cis.org.au/commentary/opinion/voice-a-dagger-to-the-heart-of-liberalism/">racial politics</a> into our public life. Some claim it will have little impact on improving the lives of Indigenous people. Yet others say it will have <a href="https://www.youtube.com/watch?v=R7w7tgDccx0">too much power</a>. </p>
<p>A significant part of the debate has been carried out — so far, at least — in a negative tone, and even by some of its supporters. The focus has been on what the Voice won’t do and what its limits are, and less about what it can do. </p>
<p>Of course, the Yes campaign is only just beginning. And there have been powerful statements of support from different sections of the community. State governments, sporting codes, companies, and community organisations have expressed their support in various ways. </p>
<p>However, I want to place the proposal for a Voice into a broader context of democratic innovation and renewal. Taken in isolation, claims about whether the Voice should make “representations” only to Parliament, or also to “executive government”, can seem rather arcane and confusing. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-voice-isnt-apartheid-or-a-veto-over-parliament-this-misinformation-is-undermining-democratic-debate-205474">The Voice isn't apartheid or a veto over parliament – this misinformation is undermining democratic debate</a>
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<p>Concerns about judicial activism and the rule of law, detached from a broader account of how the interplay between law and politics works in a representative democracy, can be <a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">misleading</a>. We are not, for example, as a result of the Voice, on the verge of a massive transfer of power to the High Court, as just about every credible legal commentator has made clear. </p>
<p>The American democratic theorist <a href="https://plato.stanford.edu/entries/dewey/">John Dewey</a> said that “the public is a collective called forth by experience of common problems”. </p>
<p>And the way that democratic societies deal with common problems is through public conversation — through what political theorists call “public reasoning”. </p>
<p>The Australian public is being called forth through the referendum process to address the unresolved status of Indigenous peoples in our body politic. We need a richer account of democracy within which to locate the proposal for a Voice to raise the quality of our debate about it. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Minister for Indigenous Australians Linda Burney and Australian Attorney-General Mark Dreyfus react after the introduction of the bill to establish an Aboriginal and Torres Strat Islander Voice in the House of Representatives.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Distinctive qualities</h2>
<p>What is distinctive about the Voice is both its democratic pedigree and its democratic character. Although there are reasonable questions about how much more democratic it could have been, the emergence of the proposal for the Voice from community led dialogues across Australia lends it strong democratic credence. </p>
<p>And at the heart of it is a mechanism for improving the quality of decision making about matters that affect Indigenous peoples. </p>
<p>The desire to anchor the Voice in the constitution is intended both to protect it from being subject to the whims of electoral politics, and to mark the special place Indigenous peoples have in our history. </p>
<p>There is both a forward looking and remedial aspect to this form of recognition. Given the persistent gap in life prospects between Indigenous and non-Indigenous peoples over decades, we know our existing institutions are not working. But equally, given the complexity of these issues, and the ongoing legacies of colonial dispossession, we need to find ways to keep working through these challenges together. </p>
<p>The proposal is also unique globally. In Canada, <a href="https://laws-lois.justice.gc.ca/eng/const/index.html">the Constitution Act of 1982</a> recognised “existing” Aboriginal treaty rights, resulting in a long march through the courts to figure out exactly what that means. In the United States, the <a href="https://www.justice.gov/enrd/timeline-event/federal-trust-doctrine-first-described-supreme-court">“domestic dependent</a> nation status of Indian nations, formulated by the Supreme Court in the 19th century, has meant, again, that the courts have led the conversation. In New Zealand, the establishment of the <a href="https://www.waitangitribunal.govt.nz/treaty-of-waitangi/">Waitangi Tribunal</a> (a commission of inquiry, chaired by a judge) and reserved parliamentary seats for Maori, has resulted in a very different kind of political process for resolving purported breaches of the treaty. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/history-and-myth-why-the-treaty-of-waitangi-remains-such-a-bloody-difficult-subject-202038">History and myth: why the Treaty of Waitangi remains such a ‘bloody difficult subject’</a>
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<hr>
<p>The proposed Voice to Parliament, on the other hand, is seeking to anchor Indigenous perspectives in the constitution, but also at the heart of our democratic institutions. </p>
<p>So, what is the best way of conceiving of the kind of democracy that I think the Voice is calling for? </p>
<p>One of the fundamental values underpinning democracy is political equality. But what kind of political equality? The idea of equality appealed to by many critics of the Voice is too simplistic. Often, it’s a claim that equal treatment means the <em>same</em> treatment, in every circumstance. </p>
<p>But our legal and political institutions already make sense of equality in much richer ways. To treat someone equally requires that we answer at least two further questions: equal in what respect? And to what extent do their circumstances require further consideration in figuring out how to treat them equally?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">What is the best way of conceiving of the kind of democracy that the Voice is calling for?</span>
<span class="attribution"><span class="source">Lukas Koch/AAP</span></span>
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<p>There are two elements to what I’ll call <em>democratic</em> political equality. </p>
<p>The first are those rights that citizens need to protect them from the harms that both the state and society can do. These include the classic protections of freedom of assembly, of religion, of speech, of property and bodily integrity. </p>
<p>The second element, however, and too often neglected, is the positive freedoms associated with participation in public life. We can only ever truly secure our freedoms when we share equally in the power being exercised over us. Citizens need to have the opportunity to shape the laws to which they are subject; in short, they must be empowered. </p>
<p>Most importantly, as leading democratic theorists such as Jurgen Habermas and Danielle Allen have argued, these public and private freedoms are mutually dependent: you can’t fully realise one without the other. Thus democracy, on this reading, is instrumentally valuable — it protects us from harms and enables us to pursue our own interests. But it is also intrinsically valuable — it helps us lead better lives by empowering us to shape the society within which we live. </p>
<h2>‘Public reasoning’</h2>
<p>Another aspect underpinning the kind of democracy the Voice is calling for is what I referred to above as "public reasoning”. Put simply, in a democracy, you solve problems through public conversation. But the terms of these conversations — who participates and how, as well as the kinds of reasons one can or shouldn’t appeal to — matter. </p>
<p>It’s not that citizens engage as if they were in a philosophy seminar, or in a court of law. Rather, it’s that we agree to resolve our disagreements, or continue to live with them, as best we can, through dialogue. These conversations will often be difficult and frustrating, as well as incomplete and disorienting. But the spirit driving them, ultimately, must be one of mutual respect and persuasion, rather than the exercise of arbitrary power. </p>
<p>However, citizens are unequally positioned relative to each other in terms of how they can participate in these public conversations. Hence why the positive freedoms I mentioned above are so important to secure. </p>
<p>Some have more access to resources than others. Some are more eloquent or forceful than others. Majority cultures tend to shape public discussions and institutions in both explicit and implicit ways that can disadvantage minorities.</p>
<p>Thus, we need to design democratic institutions so that they are responsive to the deep pluralism of our society. We need to multiply the ways in which diverse citizens and groups can participate in public debate and policy making. This cuts against technocratic forms of rule, as well as rule by simply majority. </p>
<p>I think this is the best interpretation of what “making representations” to parliament and the executive in the draft constitutional amendment means and why it should be preserved. It’s about creating a mechanism for pluralising and enriching Australia’s democratic conversation. It’s not about identity politics. It’s not intended as a conversation stopper. </p>
<p>Finally, this way of conceiving of democracy should shape our conception of democratic citizenship. It’s not simply a legal status, and nor is it mainly about voting and obeying the law. Instead, citizenship becomes a richer, more capacious ideal. </p>
<p>According to this richer ideal, democratic citizenship also involves the development of forms of self-awareness and self-formation through a wide range of deliberations about our existing institutions. Our sense of common interests, for example, can expand as we encounter new claims, or re-interpretations of existing ones, that we were previously unaware of. Pluralising public reason creates room for democratic innovation. </p>
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<a href="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=885&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=885&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=885&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1113&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1113&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1113&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Deva Woodly, in her <a href="https://global.oup.com/academic/product/reckoning-9780197603956?cc=au&lang=en&#">brilliant analysis</a> of the emergence of the Black Lives Matter movement, uses the analogy of “swailing” — or what we know as the Aboriginal land management practice of “<a href="https://theconversation.com/painting-with-fire-how-northern-australia-developed-one-of-the-worlds-best-bushfire-management-programs-205113">cool burning</a>” — to analogise the kind of renewal that social movements generate for fragile democratic environments. </p>
<p>Woodly points out how these movements draw out the contradictions between ideals and political realities, and demonstrate that democracy is always an incomplete process. The social movements that have led to the Uluru statement — going back over decades — have provided a kind of democratic cool burning for Australian public discourse. </p>
<h2>Democratic all the way down</h2>
<p>In proposing a new mechanism for enhancing Indigenous voices in our political institutions, the Voice is appealing to the interdependence between public and private freedoms, as well as the value of government through public reasoning. </p>
<p>Note that framing the Voice in this way also offers us a means of assessing how best to design and implement the details, if the constitutional amendment is approved. </p>
<p>Democratic values cut in both directions. The way that local and regional Indigenous communities select and engage with their Voice representatives, as well as those in Canberra, will be critical. </p>
<p>The norms that govern those processes will need to reflect the broader democratic intent of the Voice. The <a href="https://ncq.org.au/resources/indigenous-voice-co-design-process-final-report-to-australian-government/#:%7E:text=The%20Indigenous%20Voice%20Co%2Ddesign,the%20Australian%20Government%20and%20Parliament.">final report</a> of the Indigenous co-design process is a good place to start for exploring these different possibilities. </p>
<p>Let’s return to some of the criticisms we began with: Is the Voice introducing division where there is unity, racial categories where there is neutrality, and inequality where there is equality? I think the answer is clearly no. </p>
<p>First, the social, economic, and political baseline we are starting from is radically unequal. Almost everyone agrees that the gap between Aboriginal and Torres Strait Islanders’ wellbeing and that of the rest of the population is shameful. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/first-nations-people-in-the-nt-receive-just-16-of-the-medicare-funding-of-an-average-australian-183210">First Nations people in the NT receive just 16% of the Medicare funding of an average Australian</a>
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<p>Second, it’s not Indigenous people who have insisted on introducing racial categories into our politics, but rather successive Australian governments and the legal and political institutions that arose from settlement. It was the High Court, after all, that drew on the Racial Discrimination Act, among other sources, to remove long entrenched legal obstacles to the recognition of native title in <a href="https://aiatsis.gov.au/explore/mabo-case">Mabo</a>. </p>
<p>And it was the Australian government that suspended the application of that act when it legislated the Northern Territory “<a href="https://humanrights.gov.au/our-work/social-justice-report-2007-chapter-3-northern-territory-emergency-response-intervention">Intervention</a>” in 2007. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A 2008 protest march in Sydney against the NT Intervention. The Australian government suspended the application of the Racial Discrimination Act when it legislated for the Intervention.</span>
<span class="attribution"><span class="source">Dean Lewins/AAP</span></span>
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<p>Race, in other words, has been a primary tool of the state over many years, not the social movements that have sought justice for Aboriginal people. The Voice isn’t a proposal for reintroducing racial categories into our civic identity, despite what <a href="https://www.abc.net.au/news/2023-05-22/peter-dutton-says-indigenous-voice-will-re-racialise-the-country/102378700">Peter Dutton</a> recently claimed. In fact, quite the opposite: it is an attempt to reconfigure that identity so that it no longer reflects the racial injustices of the past (and the present). </p>
<p>This democratic framing can also help us think through a deep criticism of the Voice from the left. Some have argued that nothing less than a treaty, rather than a deliberative body, is required to fully disrupt the colonial edifice of the Australian state. The Voice, on this reading, is a form of entrapment; it naturalises settler law and the colonial political order. </p>
<p>However, if we see the constitutional recognition of an Indigenous Voice in democratic terms (and assuming it can indeed reflect the diverse voices of Indigenous peoples), then it offers a practical way of working through these profound questions. </p>
<p>The Uluru statement is, after all, rooted in a claim of continuing sovereignty. Nothing about the referendum process requires a repudiation of that.</p>
<p>However, the establishment of a constitutionally recognised deliberative body puts in place a mechanism for an ongoing conversation between peoples that could, over time, reconfigure these relations.</p>
<p>It offers a means for enlarging and deepening our public reasoning about not only the consequences of the past, but our collective aspirations for the future.</p><img src="https://counter.theconversation.com/content/205384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Duncan Ivison has received funding from the Australian Research Council for projects related to the themes of this article. </span></em></p>We need a richer account of democracy within which to locate the Voice, to lift the quality of public debate about it.Duncan Ivison, Professor of Political Philosophy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2036762023-04-13T04:23:40Z2023-04-13T04:23:40ZExplainer: High Court ruling in immigration case could impact hundreds of visa decisions since 2016<p>This week, the High Court of Australia handed down a significant <a href="https://www.hcourt.gov.au/assets/publications/judgment-summaries/2023/hca-10-2023-04-12.pdf">ruling</a> in an immigration case that could affect hundreds of similar visa cases handled by the Department of Home Affairs. </p>
<p>Specifically, the ruling may call into question the legality of decisions the department has made since 2016 when it has rejected appeals for ministerial intervention in specific visa cases. </p>
<h2>What was the case about</h2>
<p>The High Court decision involved two individuals who sought to have the minister for immigration personally intervene in their cases and grant them permanent visas to remain in Australia. </p>
<p>Their requests were rejected by the Department of Home Affairs on the basis that their cases did not meet the criteria for a referral to the minister.</p>
<p>The first appellant, Martin Davis, is a citizen of the United Kingdom who had lived in Australia for around 16 years on temporary visas. His application for a permanent partner visa was refused by Home Affairs and in a subsequent review by the Administrative Appeals Tribunal. </p>
<p>The second appellant, who was referred to as DCM20 in the case, is a citizen of Fiji who had lived in Australia on a series of temporary visas for almost 20 years. She applied for a permanent visa, which was refused. Her application for review to the Administrative Appeals Tribunal was also unsuccessful.</p>
<p>Both Davis and DCM20 requested the immigration minister exercise their personal power under <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s351.html">section 351 of the Migration Act 1958</a> to override the decisions by the Administrative Appeals Tribunal and grant them permanent visas. </p>
<p>According to this section of the Migration Act, the minister may grant a visa if they think it is “in the public interest”, but they are not required by law to consider every request. This power is exercised by the minister personally.</p>
<p>The minister receives many requests to personally intervene in such visa cases. Last month, for instance, Immigration Minister Andrew Giles <a href="https://www.sbs.com.au/news/article/over-the-moon-perth-family-of-down-syndrome-boy-granted-permanent-residency-after-minister-intervenes/3noh76hjx">intervened</a> when a Perth family had their visas refused on the basis their son did not meet certain health criteria, as he was born with Down syndrome. The minister granted them permanent residency.</p>
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<h2>Guidelines will now need to be reviewed</h2>
<p>In 2016, the minister published <a href="https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention">guidelines</a> for department officials to use when reviewing such requests for ministerial intervention. </p>
<p>The guidelines say only to refer cases to the minister in cases where there are “unique or exceptional circumstances”. This includes compassionate circumstances.</p>
<p>Davis and DCM20 argued there were unique and exceptional circumstances that warranted intervention in their cases, pointing to their long periods of residence in Australia and the fact Australian relatives were dependent upon their care. </p>
<p>In both cases, a departmental officer decided their circumstances were not unique or exceptional, as required by the guidelines, and refused to refer their cases to the minister. </p>
<p>Howver, the High Court ruled that the decisions made by the department were unlawful because the power to intervene or not intervene in such cases must be exercised by the minister personally. </p>
<p>In these two cases, a departmental officer, in effect, made the decision not to intervene, not the minister. </p>
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Read more:
<a href="https://theconversation.com/why-one-man-with-god-like-powers-decides-if-novak-djokovic-can-stay-or-go-174773">Why one man with 'god-like' powers decides if Novak Djokovic can stay or go</a>
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<h2>What are the potential implications of the ruling?</h2>
<p>The immigration minister will not only now have to revisit the current guidelines, but also all decisions made using those guidelines since 2016. </p>
<p>A <a href="https://www.homeaffairs.gov.au/foi/files/2021/fa-210600394-document-released.PDF">document</a> released under the Freedom of Information Act shows that hundreds of requests for ministerial intervention were made every year under these guidelines for the period from 2017–2020. The minister personally intervened and granted around 1,000 visa cases over that time.</p>
<p>However, the document does not show how many cases were never referred to the minister for consideration. There could potentially be hundreds of
people who were affected.</p>
<p>The minister will also likely have to review other guidelines under the Migration Act, where he has a personal intervention power. </p>
<p>For instance, the minister has personal discretion under <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s48b.html">section 48B of the Act</a>. This allows asylum seekers who have been refused a protection visa to apply for a subsequent visa if the minister considers it “in the public interest” to do so. </p>
<p>But, as mentioned previously, the current ministerial <a href="https://immi.homeaffairs.gov.au/what-we-do/refugee-and-humanitarian-program/onshore-protection/protection-visa-cancelled">guidelines</a> require the department to consider whether “exceptional circumstances” exist for a case to be referred to the minister. </p>
<p><a href="https://www.homeaffairs.gov.au/foi/files/2023/fa-221200436-document-released.PDF">Statistics</a> show the minister has only intervened in less than 10% of these requests by asylum seekers in the last 10 years. </p>
<p>Asylum seekers who arrive by boat are also barred from applying for any visa unless the minister <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s46a.html">personally</a> allows them to. The High Court ruling could affect decisions made by the department not
to refer these cases to the minister, as well.</p>
<h2>The minister still has vast powers to deny cases</h2>
<p>The court was clear that the minister maintains broad discretion as to how and when to exercise their power to intervene in a case. The minister may consider all of these cases again and come to the same conclusion as the department.</p>
<p>The minister’s power is “non-compellable”, meaning they do not have to consider every case that is referred to them. And if they do consider a case, they have very broad discretion as to how to exercise their power in the public interest. </p>
<p>These have been described as “<a href="https://theconversation.com/why-one-man-with-god-like-powers-decides-if-novak-djokovic-can-stay-or-go-174773">god-like powers</a>”. Once a minister exercises their powers properly, the courts will rarely intervene.</p>
<p>Decisions made by the minister using these powers involve serious decisions and affect vulnerable people. The decision of the High Court is at least an opportunity for the government to review the ministerial intervention process to have a clearer, fairer and more transparent system.</p><img src="https://counter.theconversation.com/content/203676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previous received funding from the Australian Research Council and sitting fees from the Department of Home Affairs</span></em></p>The immigration minister still retains ‘god-like’ powers in visa matters, but the ruling is at least an opportunity to make the process clearer, fairer and more transparent.Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2031112023-04-03T20:10:12Z2023-04-03T20:10:12ZHow Clive Palmer is suing Australia for $300 billion with the help of an obscure legal clause (and Christian Porter)<p>Australian business figure Clive Palmer is suing the Australian government for almost <a href="https://www.abc.net.au/news/2023-03-30/clive-palmer-to-sue-australia-for-300b-over-iron-ore-project/102166246">A$300 billion</a> in an international tribunal, having lost a case against the Western Australian government he took <a href="https://theconversation.com/explainer-why-did-the-high-court-rule-against-clive-palmer-and-what-does-the-judgment-mean-169633">all the way to the High Court</a>.</p>
<p>The High Court is meant to be the ultimate arbiter of Australian legal disputes. But in 2019 while in conflict with the WA government Palmer moved ownership of his two main Australian firms <a href="https://www.donnarossdisputeresolution.com/wp-content/uploads/2021/07/Up-in-smoke-will-Clive-Palmers-S-ingapore-company-be-denied-standin-g-in-its-ISDS-arbitration-against-Australia-2021-64-ADR-54.pdf">offshore</a>, ultimately to a company he set up in Singapore, <a href="https://opencorporates.com/companies/au/632245599">Zeph Investments Pte Ltd</a>.</p>
<p>As a Singapore-based company, Zeph believes it is able to take action against the Australian government that Australian-based companies cannot, using an obscure provision of the <a href="https://aanzfta.asean.org/index.php?page=chapter-11-investment/">ASEAN-Australia New Zealand Free Trade Agreement</a>.</p>
<p>What makes him think it would work?</p>
<h2>Palmer lost in the High Court</h2>
<p>First, a quick look at what’s at stake. </p>
<p>In 2002, Palmer’s two companies entered into an agreement with the WA government to explore, mine and process iron ore in the Pilbara region, known as the <a href="https://mineralogy.com.au/projects/balmoral-south/">Balmoral South Iron Ore Project</a>.</p>
<p>The two sides fell out, and in 2020 Palmer sued the state for <a href="https://www.smh.com.au/national/what-are-the-disputes-involving-clive-palmer-and-the-wa-government-about-20200819-p55ndk.html">$27.8 billion</a>. In 2022 the WA government hurriedly passed <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43095.pdf/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Amendment%20Act%202020%20-%20%5B00-00-00%5D.pdf?OpenElement">legislation</a> that indemnified the state against any money it might be found to owe Palmer, meaning he would get nothing.</p>
<p>Palmer appealed to the High Court, and <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/31">lost</a> in a unanimous judgement.</p>
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Read more:
<a href="https://theconversation.com/clive-palmer-versus-western-australia-he-could-survive-a-high-court-loss-if-his-company-is-found-to-be-foreign-145334">Clive Palmer versus (Western) Australia. He could survive a High Court loss if his company is found to be “foreign”</a>
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<p>In his new guise as director of a Singapore-based company, Palmer has upped the ante to <a href="https://globalarbitrationreview.com/article/mining-magnate-launches-us200-billion-treaty-claim-against-australia">US$200 billion</a> (about A$300 billion) – an amount WA Premier Mark McGowan says is “A$11,500 for every person in Australia”. The demand includes US$10 billion for “moral damages”.</p>
<p>By way of comparison, A$300 billion is in the ballpark of the A$268 billion to $368 billion Australia is set to pay for nuclear submarines over three decades. </p>
<p>Palmer has hired former Australian Attorney-General <a href="https://www.theguardian.com/australia-news/2023/mar/30/clive-palmer-christian-porter-300bn-lawsuit-against-australian-government">Christian Porter</a> as part of his legal team. The clause Porter and the rest of the team will attempt to use is known as the Investor-State Dispute Settlement (<a href="https://www.dfat.gov.au/trade/investment/investor-state-dispute-settlement">ISDS</a>) clause. </p>
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<img alt="" src="https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518950/original/file-20230403-24-jik04h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Christian Porter, part of Clive Palmer’s legal team.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<p>Investor-State Dispute Settlement clauses allow foreign (but not local) investors to claim damages from governments if they can argue that a change in law or a government decision has reduced their future profits.</p>
<h2>Trying again, as a Singaporean</h2>
<p>ISDS clauses were originally designed in the <a href="https://www.cato.org/commentary/isds-controversy-how-we-got-here-where-next">postcolonial period</a> to compensate foreign investors from countries which claimed to have the rule of law against having their assets appropriated by developing countries countries which were viewed as having less developed legal systems.</p>
<p>But its use has expanded to include concepts such as “indirect expropriation,” “minimum standard of treatment” and “<a href="https://www.iisd.org/toolkits/sustainability-toolkit-for-trade-negotiators/5-investment-provisions/5-4-safeguarding-policy-space/5-4-5-fair-and-equitable-treatment-fet-or-minimum-standard-of-treatment-mst/">legitimate expectations</a>” which enable foreign investors to sue on the grounds that government action reduced the value of their investments or did not meet their expectations at the time they invested.</p>
<p>US tobacco company <a href="https://theconversation.com/when-even-winning-is-losing-the-surprising-cost-of-defeating-philip-morris-over-plain-packaging-114279">Philip Morris</a> tried a similar ploy when it sued the Australian government over Australia’s plain packaging law. </p>
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Read more:
<a href="https://theconversation.com/when-even-winning-is-losing-the-surprising-cost-of-defeating-philip-morris-over-plain-packaging-114279">When even winning is losing. The surprising cost of defeating Philip Morris over plain packaging</a>
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<p>Although Philip Morris couldn’t sue using the Australia-US Free Trade Agreement (which lacks an ISDS provision), it moved ownership of its Australian arm to Hong Kong and sued using a Hong Kong treaty, ultimately <a href="https://nortonrosefulbright.com/en/knowledge/publications/ded9c356/philip-morris-asia-v-australia">failing</a>. However, Australia was left with a <a href="https://theconversation.com/when-even-winning-is-losing-the-surprising-cost-of-defeating-philip-morris-over-plain-packaging-114279">A$24 million</a> legal bill, only half of which it recovered.</p>
<h2>The tool used by big tobacco</h2>
<p>Overseas, ISDS clauses have been used to enable corporations to take action against measures to reduce carbon emissions, as well as against public health measures. Denmark and New Zealand appear to have designed their fossil fuel phaseout plans specifically to <a href="https://theconversation.com/how-treaties-protecting-fossil-fuel-investors-could-jeopardize-global-efforts-to-save-the-climate-and-cost-countries-billions-182135">minimise their exposure to ISDS clauses</a>. </p>
<p>Unlike normal legal proceedings, ISDS adjudications lack safeguards including an independent judiciary (ISDS arbitrators can continue to act for clients in other ISDS cases) or the need to <a href="https://www.abc.net.au/radionational/programs/backgroundbriefing/isds-the-devil-in-the-trade-deal/6634538">consider precedents or allow appeals</a>. This means decisions lack consistency and the outcome of Palmer’s case is unpredictable.</p>
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Read more:
<a href="https://theconversation.com/corporations-prepare-to-sue-as-pandemic-reveals-trade-flaws-136604">Corporations prepare to sue as pandemic reveals trade flaws</a>
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<p>Mounting criticism of the clauses led to their exclusion from recent Australian trade agreements, including those with the <a href="https://www.dfat.gov.au/trade/agreements/not-yet-in-force/aukfta/official-text">United Kingdom</a>, the <a href="https://www.dfat.gov.au/trade/agreements/negotiations/aeufta/australia-european-union-fta-fact-sheet">European Union</a> and <a href="https://theconversation.com/suddenly-the-worlds-biggest-trade-agreement-wont-allow-corporations-to-sue-governments-123582">nations bordering the Pacific</a>.</p>
<p>Labor recently reaffirmed its<a href="https://www.trademinister.gov.au/minister/don-farrell/speech/trading-our-way-greater-prosperity-and-security"> policy</a> to exclude ISDS clauses from all new trade agreements and to review their inclusion in existing agreements. </p>
<p>Palmer’s case, and the millions of dollars and years of effort it could cost Australia even if he ultimately fails, makes removing these clauses more urgent.</p><img src="https://counter.theconversation.com/content/203111/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Patricia Ranald is an honorary research associate at the University of Sydney and the honorary convener of the Australian Fair Trade and Investment Network, a network of community organisations which advocates for fair trade based on human rights, labour rights and environmental sustainability.</span></em></p>Palmer sued Western Australia’s government in the High Court and lost. But an obscure clause in a little-known trade agreement is giving him a second chancePatricia Ranald, Honorary research associate, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005172023-02-28T05:08:20Z2023-02-28T05:08:20ZWhat happens if the government goes against the advice of the Voice to Parliament?<figure><img src="https://images.theconversation.com/files/512546/original/file-20230227-16-ef8c1p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p><em>We asked our readers what they would like to know about the proposed Indigenous Voice to Parliament. In the lead-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers <a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">here</a>.</em></p>
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<p>If the government disagrees with representations made by the Voice, the short answer is that the government prevails. Governments and parliaments are elected to represent all the people, not just one group of the people. This means they have to take into account a broad range of considerations, including how to manage the budget and the economy, ensure national security and maintain the social wellbeing of the whole country.</p>
<h2>Ensuring the government and parliament are better informed</h2>
<p>The role of the Voice, if the <a href="https://www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice#:%7E:text=On%2030%20July%202022%2C%20Prime,Australian%20people%20at%20a%20referendum.">proposed constitutional amendment</a> is passed, would be to ensure the government and parliament are better informed when making laws or decisions on matters relating to Aboriginal and Torres Strait Islander peoples. </p>
<p>The Voice could make representations about how laws and policies have unintended or perverse consequences, or how they could be made more effective and efficient if they operated in a different way. Any sensible government would take such representations seriously when considering how to make or change laws and policies, because everyone wants better results for Indigenous Australians. </p>
<p>Decisions made with the best will in the world from Canberra can always be improved by listening to the people on the ground who are affected by them. The role of the Voice would therefore be important in improving the quality and effectiveness of laws and government policies. But it could not determine what those laws and policies will be. </p>
<p>We have a democratic system for determining who makes the laws and who forms the government, and that is not going to be changed by the proposed constitutional amendment. </p>
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Read more:
<a href="https://theconversation.com/an-indigenous-voice-to-parliament-will-not-give-special-rights-or-create-a-veto-196574">An Indigenous Voice to Parliament will not give 'special rights' or create a veto</a>
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<h2>The influence of the Voice</h2>
<p>The power and influence of the Voice will not be static. It will depend on two factors – relevance and quality. </p>
<p>The proposed amendment, as currently drafted, gives the Voice a potentially wide remit. It says it may make representations to both parliament and the executive government “on matters relating to Aboriginal and Torres Strait Islander peoples”. </p>
<p>This could include laws and policies that specifically relate to Aboriginal and Torres Strait Islander peoples, such as those concerning native title or the protection of cultural heritage. It could also include laws of general application which have a particular impact upon Indigenous Australians. </p>
<p>An example might be a future law that required photo identification for people to be able to vote in federal elections. While such a law would be one of general application, it would most likely have a greater impact upon Aboriginal and Torres Strait Islander people in remote areas who are less likely to have photo IDs. It would be important for the Voice to be able to make representations to parliament about the potential impact of such a law in suppressing the votes of Indigenous Australians and to the government about ways of ensuring all Indigenous Australians are able to vote. </p>
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<img alt="" src="https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512565/original/file-20230228-2150-bq6dq3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Voice to Parliament might, for example, give advice on how best to ensure Indigenous Australians are able to vote in elections.</span>
<span class="attribution"><span class="source">Karen Michelmore/AAP</span></span>
</figcaption>
</figure>
<p>When the Voice makes representations on matters that fall within its expertise and provides insights from those affected on the ground, it will be at its most influential. If, however, the Voice were to make representations on matters that are peripheral to Aboriginal and Torres Strait Islander peoples, or that are not informed by expertise or local experience, then it is much less likely to have influence. </p>
<p>If the Voice, for example, were to make representations on matters concerning Australia’s defence policy or its relations with China, on the basis that there was an incidental effect on exports by Indigenous groups, the government would be unlikely to give its representations much, if any, attention. Instead, it would be far more likely to be influenced by the representations of other bodies that have greater expertise on the subject.</p>
<p>The second factor is the quality of the Voice’s representations. If it makes measured, well-researched, evidence-based representations that make practical suggestions, it is likely to be influential. </p>
<p>However, if it were to spread itself too thin by making poorly considered representations about a wide variety of matters outside its expertise, or make impractical or partisan representations, then it would be less likely to be influential. So it will be a matter for the Voice itself to secure influence by ensuring the high quality of its representations.</p>
<h2>Could the courts force the government or parliament to implement the Voice’s representations?</h2>
<p>The High Court has consistently stayed out of the internal proceedings of parliament. It does not determine what parliament should or should not consider when passing laws. Due to the separation of powers, the courts cannot instruct parliament to give effect to representations by the Voice.</p>
<p>However, the courts can review a government decision that affects the interests of people if it was made in an unfair manner. If, for example, a law said the decision-maker must take into account representations of the Voice before making a certain type of decision, failure to do so would mean the decision was invalid. The court would then send the decision back to the decision-maker to be remade once the relevant representations had been taken into account. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512566/original/file-20230228-691-e8fg5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Due to the separation of powers, the High Court cannot force parliament to adopt advice from the Voice.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
</figcaption>
</figure>
<p>In these cases, the courts are only concerned with the fairness of the process – that the decision is made properly, taking into account all relevant considerations – not the content of the decision. </p>
<p>The decision-maker could remake the decision, taking into account the representation, and still not give effect to the representation. This would be perfectly valid. There is no obligation to give effect to the representation – only to take it into account, if the law requires the decision-maker to do so. </p>
<p><a href="https://theconversation.com/politics-with-michelle-grattan-frank-brennan-on-rewording-voice-question-200442">Some</a> have <a href="https://www.andrewbragg.com/five-reasons">raised concerns</a> that instead of parliament deciding whether a decision-maker has to take into account representations of the Voice in relation to certain decisions, the High Court might interpret the Constitution as requiring this in all cases. This seems most unlikely, given neither the words nor the intent of the provision support such an interpretation. </p>
<p>A former chief justice of Australia, Robert French, has <a href="https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forward-for-australian-nationhood">said</a> there is “little or no scope for any court to find constitutional legal obligations in the facilitative and empowering provisions of the amendment”. In other words, all the amendment does is allow the Voice to make representations - it does not impose legal or constitutional obligations on how the government and parliament respond to them.</p>
<p>So, if the government and parliament disagree with the Voice, they are not required to give effect to its representations. </p>
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<strong>
Read more:
<a href="https://theconversation.com/no-the-voice-isnt-a-radical-change-to-our-constitution-200056">No, the Voice isn't a 'radical' change to our Constitution</a>
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<h2>Will this leave the Voice ineffective?</h2>
<p>If neither the government nor parliament is required to do what the Voice says, does this leave the Voice ineffective? No. The point of the Voice is to use political pressure to influence parliament and the government <em>before</em> laws and decisions are made, rather than to take legal action to attack laws and decisions <em>after</em> they are made. </p>
<p>That influence will be effective if the Voice makes high-quality representations within its expertise that, if adopted, would result in better outcomes for Indigenous Australians. Achieving better outcomes is the one thing everyone wants, so if the Voice fulfils its role in contributing to that, it will be an effective and valued national institution.</p><img src="https://counter.theconversation.com/content/200517/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and sometimes does consultancy work for governments, Parliaments and inter-governmental bodies. She is currently a member of the Constitutional Expert Group advising the Referendum Working Group on the proposed referendum, but this article represents her own views and does not purport to represent those of the Expert Group or the Commonwealth Government. She has also written extensively in the past on Indigenous constitutional recognition, including drafting a number of different versions of a proposed constitutional amendment and worked with the Cape York Institute and others on an early versions of the Voice proposal. </span></em></p>The Voice to Parliament is an advisory body, which means neither parliament nor the government is legally required to give effect to its representations.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2000562023-02-22T19:05:18Z2023-02-22T19:05:18ZNo, the Voice isn’t a ‘radical’ change to our Constitution<p>Some people have criticised the draft proposal for a First Nations Voice as a <a href="https://www.skynews.com.au/opinion/peta-credlin/voice-to-parliament-a-trojan-horse-in-the-heart-of-australias-constitution/video/a2c545aa48d85dfdf4d6cd458c2542ef">radical</a> change to Australia’s Constitution.</p>
<p>This view is reflected in <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">recent calls</a> by some Liberal members of parliament for a different model that will be palatable to constitutional conservatives, and in <a href="https://www.afr.com/politics/federal/we-need-a-minimalist-voice-the-whole-country-can-support-20230207-p5cijp">concerns expressed</a> by some commentators.</p>
<p>But this is incorrect – the current model for the Voice is constitutionally conservative. </p>
<p>Here’s why.</p>
<h2>Conservative or radical?</h2>
<p>A quick reminder. The government is made up of three branches:</p>
<ul>
<li><p>the legislature (the parliament, which makes laws)</p></li>
<li><p>the executive (the cabinet — the prime minister and senior ministers — and government departments, which create policy and put laws into action)</p></li>
<li><p>and the judiciary (the High Court and other courts, which interpret laws).</p></li>
</ul>
<p>The current draft of the constitutional amendment would allow the Voice to advise both the legislature and the executive. Proponents of this <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">say</a> it’s important the Voice is able to lobby both the parliament as well as cabinet ministers and government departments.</p>
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<strong>
Read more:
<a href="https://theconversation.com/the-voice-referendum-how-did-we-get-here-and-where-are-we-going-heres-what-we-know-198299">The Voice referendum: how did we get here and where are we going? Here's what we know</a>
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<p>But some critics <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">have suggested</a> the Voice should advise parliament <em>alone</em>, and not the executive. That would help ensure the Voice doesn’t lead to High Court challenges, especially challenges to cabinet decisions that don’t properly consider the Voice’s advice.</p>
<p>The concern here is that the Voice could significantly change the country’s constitutional structure by shifting power over Aboriginal and Torres Strait Islander affairs from the executive and parliament to the judiciary. </p>
<p>Liberal Senator Andrew Bragg <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">said</a>: “No one wants a transfer of power from parliament to the High Court; we want to avoid becoming like the US.”</p>
<p>However, allowing the Voice to advise both the executive and parliament <em>is</em> the constitutionally conservative option. To put it another way, it’s the model most consistent with Australia’s current and historical constitutional practice. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1603151104195559425"}"></div></p>
<h2>A consistent change</h2>
<p>A key feature of Australia’s constitutional system is that lawmaking is an integrated process shared by the executive and parliament. Parliament publicly debates and formally enacts legislation. The executive does most of the policy formation before laws are enacted, and most of the implementation after they’re enacted. </p>
<p>The executive is also responsible for making large swathes of legislation through its delegated lawmaking powers. </p>
<p>A model where the Voice can only advise parliament, and not also the executive, presumes a clear distinction between the two arms of government that doesn’t exist in Australia.</p>
<p>To minimise disruption to the existing constitutional system, the Voice needs to be structured in a way that allows it to work with the lawmaking process as it currently operates.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1625376815337316353"}"></div></p>
<p>The <a href="https://www.pm.gov.au/media/address-garma-festival">current draft</a> of the proposed text on the Voice affirms, and in fact expands, parliament’s power. It reads:</p>
<ol>
<li><p>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</p></li>
<li><p>The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.</p></li>
<li><p>The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.</p></li>
</ol>
<p>Parliament is the institution given the power to make laws about the Voice’s constitution. This provides parliament with the ability to adapt and develop the Voice in the future, as circumstances require. This is consistent with the role parliament performs in relation to other institutions mentioned in the Constitution.</p>
<p>The draft text confers no new role or powers on the High Court, which is another way in which the Voice is constitutionally conservative. It reinforces the existing centres of decision-making on Aboriginal and Torres Strait Islander affairs – the executive and parliament – by establishing a body that gives advice to these arms of government.</p>
<p>What’s more, attempting to immunise the Voice completely from legal challenge would be far from constitutionally conservative. No part of the Australian Constitution has ever been entirely immune from litigation.</p>
<p>It’s a fundamental aspect of the rule of law in Australia that the judiciary ensures the Constitution is respected. That has been the case since federation. The current draft of the constitutional amendment reflects that fact. It leaves the judiciary to interpret the Voice’s provisions in the same way it has interpreted the Constitution’s other provisions for the past 120 years.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/young-people-may-decide-the-outcome-of-the-voice-referendum-heres-why-199599">Young people may decide the outcome of the Voice referendum – here's why</a>
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<p>Possible modifications to the text designed to reduce the chance of High Court litigation could, in fact, increase the chance of litigation and possibly take power away from parliament.</p>
<p>Say, for example, the text is changed to state that the Voice may give advice only to parliament. What if parliament later decides it wants the Voice to give advice directly to the minister for Indigenous Australians? That choice would now give rise to the prospect of litigation and invalidation. The High Court could be asked: has parliament exceeded its constitutional powers because the text of the Constitution refers only to advice to parliament?</p>
<p>Even if the text is modified in other ways, separating advice given to the executive from that given to parliament would introduce a narrow distinction into the Constitution. Those types of distinctions are a common cause of High Court litigation.</p>
<p>For those seeking a constitutionally conservative option for the Voice, the model that aligns most closely with the existing system of government is one that allows the Voice to advise both arms of government, grants parliament broad powers to regulate the Voice, and leaves the High Court’s longstanding supervisory jurisdiction intact.</p><img src="https://counter.theconversation.com/content/200056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Stephenson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The current draft wording is the model most consistent with Australia’s current and historical constitutional practice.Scott Stephenson, Associate Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932282023-01-04T19:22:25Z2023-01-04T19:22:25ZHigh, Supreme, Federal, Family, County – what do all our different courts actually do?<p>One way to understand how the courts in Australia are ranked is to imagine a pyramid and an umbrella. </p>
<p>Let’s start with the pyramid. Imagine three lines horizontally across the pyramid dividing it into four sections. Each section represents a court of each state or territory.</p>
<p>So what’s on the base of the pyramid, and what are the upper layers?</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliament-is-in-charge-not-the-courts-193017">A constitutional Voice to Parliament: ensuring parliament is in charge, not the courts</a>
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<h2>The Local or Magistrates Courts</h2>
<p>The bottom section represents the local or magistrates courts. It is biggest because it deals with the vast majority of court cases in Australia.</p>
<p>There is a single judicial officer presiding, and no jury. The bread and butter of these courts are minor crimes such as traffic offences, lesser assaults, shoplifting and possession of prohibited drugs. </p>
<p>These courts also have other roles including being children’s and coroners’ courts. They also deal with less serious civil disputes, where one person or company is suing another (under certain limits; in New South Wales, for example, that limit is A$100,000). </p>
<p>Local courts also deal with apprehended violence and restraining orders. The maximum sentence that can be handed out by a judge in a local court is generally two years imprisonment. </p>
<p>The other reason the bottom section of the pyramid is biggest is because all criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial. </p>
<h2>The District Court</h2>
<p>The next section up the pyramid represents the District Court. </p>
<p>They deal with more serious crime such as sexual assault, major drug supply and high-level violence. </p>
<p>If the person on trial doesn’t plead guilty, there is a jury to determine guilt or innocence. </p>
<p>The district court also deals with serious civil disputes, generally where the amount is up to $750,000.</p>
<h2>The Supreme Court</h2>
<p>The Supreme Court is the next layer of the pyramid. It deals with the most serious civil and criminal cases, such as murder. They mostly have a jury in criminal cases.</p>
<p>They also deal with some specialty areas such as defamation.</p>
<h2>The Courts of Appeal</h2>
<p>Finally, there is the Courts of Appeal, which are part of the Supreme Court, but sit above it.</p>
<p>They hear appeals from lower courts, and there are usually three judges sitting on each matter. </p>
<p>The really interesting aspect of the pyramid is that it represents not just more seriousness and less volume as you go up, but also the appeal process.</p>
<p>So, if you want to appeal from the Local Court, then you go the District Court, then from the District to the Supreme Court and so on.</p>
<p>The “<a href="https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/">doctrine of precedent</a>” means rulings from higher courts are binding on lower ones. </p>
<h2>The High Court and the umbrella model</h2>
<p>But what if you want to appeal from the Court of Appeal? That’s where the umbrella comes in. </p>
<p>That appeal is to the High Court, which you can imagine as an umbrella that sits over each of the state or territory pyramids. </p>
<p>There is one High Court, based in Canberra, and its decisions are final, and binding throughout all parts of Australia. </p>
<p>Fun fact: up until the 1980s the highest court for Australia was in England! Called the Privy Council, it was possible to appeal from state and federal courts and let English law lords be the final decider. But Australia got rid of that system and now the highest court in the land is the High Court.</p>
<h2>Some state-based variations</h2>
<p>Is it all that simple? Not really.</p>
<p>First, in Tasmania the Australian Capital Territory and the Northern Territory there is no District Court level at all. These are small states and territories, with not enough people to necessitate this level of the pyramid.</p>
<p>Second, sometimes appeals jump a level. For example, they may go straight from the Local Court to the Supreme Court. And in some states, there are different names for each level. In Victoria the District Court is called the County Court, and in some places like the Northern Territory, magistrates are called judges. </p>
<p>Finally, there are some specialty courts like the NSW Land and Environment Court that sit at Supreme Court level. </p>
<h2>Hang on, what about federal courts?</h2>
<p>Just when you thought you had your pyramids in a row, along comes another complication: the federal system. </p>
<p>The Constitution divides up powers between the states and the Commonwealth.</p>
<p>The best example is family law, which is allocated to the Commonwealth and so the Federal Court system deals with divorce and related matters. </p>
<p>And so there is another pyramid which works across the whole country only this time it has two levels.</p>
<p>The lowest and biggest level is the <a href="https://www.fcfcoa.gov.au/">Federal Circuit and Family Court of Australia</a>, dealing mostly with family law (but also other federal matters such as immigration and welfare law).</p>
<p>The next level up is the Federal Court, which deals mainly with corporations law, bankruptcy and trade practices as well as hearing appeals from the lower court. </p>
<p>Don’t forget the umbrella, the High Court, which also hears appeals from the Federal Court. </p>
<h2>A whole myriad of tribunals</h2>
<p>I’m sorry to have to tell you it gets even more complex from there. There are also tribunals.</p>
<p>Sitting beneath the state, territory and federal court systems is a whole myriad of tribunals which deal with non-criminal matters. </p>
<p>New South Wales, for example, has the New South Wales Civil and Administrative Tribunal (NCAT), which deals with tenancy, consumer, guardianship, strata and licensing matters. It even has its own appeal panel as well (and if people still aren’t happy, they can then appeal to the courts).</p>
<p>The members of the tribunal are not judicial officers and are appointed for fixed periods. </p>
<p>Of course, if you were to strike out centuries of history and start afresh, you would likely just have one multilayered pyramid across the country with a single tribunal at the foot, and the High Court at the top.</p>
<p>We can live in hope. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<img src="https://counter.theconversation.com/content/193228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Heilpern does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>All criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial.David Heilpern, Associate Professor and Chair of Discipline (Law), Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1771462022-08-25T04:29:37Z2022-08-25T04:29:37ZWhat the High Court decision on filming animals in farms and abattoirs really means<figure><img src="https://images.theconversation.com/files/480970/original/file-20220825-13-25o66l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Judith Prins/Unsplash</span></span></figcaption></figure><p>What do farm animals have to do with the Australian Constitution? </p>
<p>Should the public know what happens in abattoirs and farms? Do we have the right to publish footage of what happens to animals in slaughterhouses? Should governments be able to make laws criminalising it? How do we best protect the privacy of farmers and prevent trespass?</p>
<p>The High Court considered these issues in <a href="https://www.hcourt.gov.au/cases/case_s83-2021">Farm Transparency v New South Wales</a>, handing down its judgment this month. This case concerned sections 11 and 12 of the Surveillance Devices Act 2007 (NSW): section 11 prohibits the publication or communication of footage or photographs of “private activities”, including intensive farming and slaughtering operations, with penalties of up to five years in prison. Section 12 criminalises the possession of such recordings. </p>
<p>In 2015, Farm Transparency Project’s director, Chris Delforce, <a href="https://www.sydneycriminallawyers.com.au/blog/high-court-challenge-to-nsw-ag-gag-laws-an-interview-with-farm-transparency-projects-chris-delforce/">was charged</a> with publishing footage and photos depicting lawful practices at piggeries. The footage related to the use of carbon dioxide gas as a means of slaughtering animals. </p>
<p>While the charges were eventually dismissed, animal welfare organisations are concerned the legislation will obstruct legitimate whistleblowing (and public access to information) about the agricultural industry. There are also concerns the legislation may dampen the willingness of media to grapple with these issues. In turn, this may limit the ability of the Australian consumer to make informed choices about what they eat, and hinder public discussions about animal welfare due to a lack of information. </p>
<p>In that context, Farm Transparency took legal action arguing that the Surveillance Devices Act was in breach of the “freedom of political communication” implicitly protected by the Australian Constitution. In doing so, they turned an animal welfare and consumer rights issue into a constitutional issue. </p>
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Read more:
<a href="https://theconversation.com/not-just-activists-9-out-of-10-people-are-concerned-about-animal-welfare-in-australian-farming-117077">Not just activists, 9 out of 10 people are concerned about animal welfare in Australian farming</a>
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<h2>What is the implied freedom of political communication?</h2>
<p>Australia, unlike all other western democracies, does not have a federal bill of rights. This means there is no stand-alone right to free expression or speech. </p>
<p>However, freedom of political communication is implied from sections 7 and 24 of the Australian Constitution, which require that elected representatives be “chosen by the people”. </p>
<p>The courts have held previously that this implies laws should not limit our communication on political matters because that influences our choice of representative. This means state or federal laws that disproportionately “burden” communication about political matters can be struck down as unconstitutional. </p>
<p>The High Court has repeatedly emphasised that the freedom of political communication is not absolute, nor is it a personal right. Rather, laws directed at a legitimate objective that are reasonable and adapted to that objective will still be valid. </p>
<p>In this case, the question before the court was whether the Surveillance Devices Act 2007 is <a href="https://journals.sagepub.com/doi/pdf/10.1177/0067205X1804600301">“suitable”, “necessary” and “balanced”</a> in pursuing a legitimate objective. These questions have also been considered before by the court in relation to, for example, protesting, tweeting, political donations, bail conditions, and media reporting. </p>
<h2>What did the High Court decide?</h2>
<p>Four members of the court (Kiefel CJ, and Keane, Edelman, and Steward JJ) held that while the legislation did burden political communication, it also has a legitimate purpose of privacy. They also held that the offence provisions were proportionate to that purpose. Another judge (Gordon J) “read down” the reach of the provisions, which meant she thought they had limited scope and couldn’t be enforced to restrict publication of political communication. </p>
<p>Notably, two judges disagreed with the majority view (Gageler and Gleeson JJ), and found that the legislation was invalid. In their view, sections 11 and 12 impose blanket prohibitions and do so indiscriminately. In particular, Gageler J thought “The prohibitions are too blunt; their price is too high”.</p>
<p>However, ultimately the majority view was that sections 11 and 12 are constitutionally valid. </p>
<p>Of significance to those interested in animal welfare is that Kiefel CJ and Keane J accepted it was “a legitimate matter of governmental and political concern”. However, in their views, the relevant provisions in this case were not directed at restricting the content of the communications, but to the manner (such as trespass) in which they were obtained. </p>
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Read more:
<a href="https://theconversation.com/can-labors-animal-welfare-plan-improve-australias-lacklustre-record-116261">Can Labor's animal welfare plan improve Australia's lacklustre record?</a>
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<h2>Why does this matter?</h2>
<p>This decision means improved conditions for farm animals needs to be achieved by legislative and policy reform. Concerned consumers must convince parliaments to improve legal protections for non-human animals. </p>
<p>The issue is unlikely to go away. Animal welfare groups are increasingly concerned about standards of care and the manner in which animals are raised and slaughtered. Consumers are savvier in the information age and prefer choice. </p>
<p>The recognition of animal sentience and animal rights may eventually curtail the ability to engage in large-scale factory farming. This in turn will contribute to overall efforts to <a href="https://journal.law.uq.edu.au/index.php/uqlj/article/view/6105/5007">mitigate climate change</a> and other environmental effects. </p>
<p>There is also the overarching issue of the legal protection offered to <a href="https://www.auspublaw.org/2016/04/public-sector-whistleblowing/">whistleblowers</a> generally and the inherent problem in restricting information necessary for meaningful public debate. </p>
<p>Individuals and organisations do have legitimate expectations of privacy. However, disclosing reasonable concerns about conduct is an important tool in maintaining good governance and advancing accountability. Protections for whistleblowers are limited in Australia and there is space for legislative reform on this.</p><img src="https://counter.theconversation.com/content/177146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Ireland-Piper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The High Court found the NSW laws were not unconstitutional – but there is still much room for reform.Danielle Ireland-Piper, Associate Professor of Constitutional and International Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1808642022-05-05T02:21:09Z2022-05-05T02:21:09ZThe federal election winner will get a big opportunity to change the face of the High Court - will they take it?<figure><img src="https://images.theconversation.com/files/457633/original/file-20220412-6515-x431dc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Will Oliver/EPA/AAP</span></span></figcaption></figure><p>The leaked <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">Roe v Wade draft opinion</a> this week has shown us the power of the legal system when it comes to facilitating (or winding back) social change. </p>
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Read more:
<a href="https://theconversation.com/the-end-of-roe-v-wade-would-likely-embolden-global-anti-abortion-activists-and-politicians-182345">The end of Roe v. Wade would likely embolden global anti-abortion activists and politicians</a>
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<p>This is why judicial appointments are so critical, and why there has been so much debate around the recent appointment of Ketanji Brown Jackson.</p>
<p>In April, Brown Jackson <a href="https://www.theguardian.com/us-news/2022/apr/08/black-lawmakers-ketanji-brown-jackson-supreme-court">made history</a> after being confirmed as the first black woman appointed to the US Supreme Court. She will take up her post in the middle of the year (and was not part of the Roe v Wade vote). </p>
<p>Despite Brown Jackson’s impressive background – she has been a judge of the US Court of Appeals – her appointment has been fraught with divisive racial politics and toxic partisan commentary. </p>
<p>In Australia, we rarely have debates of this sort. We don’t have much diversity in the judiciary, either. </p>
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<em>
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Read more:
<a href="https://theconversation.com/ketanji-brown-jackson-sworn-in-as-supreme-court-justice-4-essential-reads-180838">Ketanji Brown Jackson sworn in as Supreme Court justice: 4 essential reads</a>
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<p>Every Justice of the High Court of Australia since Federation in 1901 has been white, and all but six have been men. This is reflected elsewhere in the judicial system, where the vast majority of senior <a href="https://www.theage.com.au/national/victoria/invisible-woman-syndrome-nine-men-appointed-to-federal-court-in-victoria-since-2013-20210420-p57ktd.html">judges are male</a> and virtually all are from <a href="https://www.aala.org.au/_files/ugd/083074_24719d0f811345b8b6e324656ea8264a.pdf">British and European ancestry</a>. For any Indigenous person or person of colour who finds themselves charged with and convicted of a crime, it is almost certain their sentencing will be decided upon by a white judge. </p>
<p>With the mandatory retirement of Chief Justice Susan Kiefel and Justice Patrick Keane due in the next parliamentary term, there is a significant opportunity to make the seven-member High Court more diverse. </p>
<h2>Labor hints at change</h2>
<p>There are signs a prospective Labor government would at least consider this. </p>
<p>In a recent article for the <a href="https://www.afr.com/politics/federal/why-has-no-person-of-colour-ever-served-on-the-high-court-20211221-p59j8x">Australian Financial Review</a>, Labor MP Andrew Leigh (who is not the party’s shadow attorney-general) hinted Labor was thinking about how to improve the representation of women and other minorities on the bench. </p>
<p>As he wrote: </p>
<blockquote>
<p>In 120 years, no judge of colour has ever been appointed to the High Court of Australia […] the demography of the bench will never perfectly match the nation, but people should be able to see themselves in the faces of those chosen to dispense justice.</p>
</blockquote>
<p>In response to criticism about gender diversity in senior judicial positions, a spokesperson for Attorney-General Michaelia Cash has <a href="https://www.theage.com.au/national/victoria/invisible-woman-syndrome-nine-men-appointed-to-federal-court-in-victoria-since-2013-20210420-p57ktd.html">previously pointed</a> to the Coalition appointing <a href="https://www.hcourt.gov.au/justices/current/jacqueline-gleeson">Jacqueline Gleeson</a> to the High Court and <a href="https://ministers.ag.gov.au/media-centre/appointment-federal-circuit-court-australia-01-04-2021">Jennifer Howe</a> to Melbourne’s Federal Circuit Court in 2021. </p>
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<strong>
Read more:
<a href="https://theconversation.com/no-selection-criteria-no-transparency-australia-must-reform-the-way-it-appoints-judges-141446">No selection criteria, no transparency. Australia must reform the way it appoints judges</a>
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<h2>Ideological decision-making</h2>
<figure class="align-right ">
<img alt="Labor MP Andrew Leigh." src="https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/457634/original/file-20220412-6515-s2vlao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Labor MP Andrew Leigh.</span>
<span class="attribution"><span class="source">Joel Carrett/AAP</span></span>
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</figure>
<p>Would it really make a difference? Given the lack of diversity on the Australian benches, it is difficult to answer this question directly. However, we do know Australia’s highly politicised selection process – it is decided by the prime minister and attorney-general – results in consistently ideological judicial decision-making.</p>
<p>In a <a href="https://www.journals.uchicago.edu/doi/10.1086/716187">recent study</a> on the High Court, colleagues and I found a highly conservative High Court justice (such as Dyson Heydon) was around 30 percentage points less likely than a left-wing justice (such as Michael Kirby) to make an ideologically liberal decision. This includes being pro-civil liberties, Indigenous rights, freedom-of-information and the environment. </p>
<p>In a <a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2021.1998346">follow-up study</a>, we also looked at whether justices vote in ways that demonstrate loyalty to the prime minister who appoints them. In some ways, this is a more serious question because it concerns judicial independence from government interference. We find that where the federal government is a party in High Court cases, justices are slightly more likely to rule in favour of the government who appointed them than subsequent governments.</p>
<p>These findings are not necessarily evidence of a malfunctioning justice system. After all, prime ministers are democratically elected and justices are not simply legal “robots” – they are people too. As such, it’s only natural their background and personal experience plays a part in the courtroom. </p>
<h2>Judicial diversity outside Australia</h2>
<p>We can also look to the experiences of other countries, who have found that increased judicial diversity positively affects case outcomes for minority litigants. </p>
<p>Research shows panels of <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/j.1540-5907.2010.00437.x">US Federal Circuit Court Justices</a> with one woman and two men (as opposed to all men) are significantly more likely to rule in favour of the plaintiff in cases regarding race, colour, religion and sex discrimination. Importantly, these results held for appointees of both Democratic and Republican parties, suggesting that women’s representation can cut across ideological divides.</p>
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<strong>
Read more:
<a href="https://theconversation.com/meet-australias-new-high-court-judges-a-legal-scholars-take-on-the-morrison-governments-appointees-148982">Meet Australia's new High Court judges: a legal scholar's take on the Morrison government's appointees</a>
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<p>Similarly, the presence of a <a href="https://scholar.princeton.edu/sites/default/files/jkastellec/files/kastellec_racial_diversity_final.pdf">black judge on a judicial panel</a> was associated with a nearly 40 percentage point increase in the likelihood a court found in favour of policies that aim to increase the representation of black and other underrepresented people in government, universities, and private organisations. </p>
<p>In <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/ajps.12187">Israel</a>, the presence of an Arab judge on panels (as opposed to all Jewish panels of judges) made a sizable improvement to the prospects of Arab defendants in criminal sentencing.</p>
<h2>What happens now?</h2>
<p>Whichever party wins the federal election, an emphasis on diverse appointments could make a lasting difference to justice for marginalised groups. </p>
<p>With two High Court appointments to be made in the next three years (and others on the Federal Court), this is a huge opportunity to recognise Australia’s diversity in one of the most important systems in our society.</p><img src="https://counter.theconversation.com/content/180864/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Leslie receives funding from The Australian Research Council. </span></em></p>With the retirement of Chief Justice Susan Kiefel and Justice Patrick Keane in the next parliamentary term, there is an opportunity to make the High Court more diverse.Patrick Leslie, Research Fellow in Politics, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1810542022-04-13T00:52:21Z2022-04-13T00:52:21ZWhy party preselections are still a mess, and the courts haven’t helped<figure><img src="https://images.theconversation.com/files/457797/original/file-20220412-14-ipn8z2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Darren England</span></span></figcaption></figure><p>You join a political party. Its <a href="https://viclabor.com.au/wp-content/uploads/2021/04/Victorian-Labor-Rules-1-Feburary-2021current-rules.pdf">rules</a> are over 100 pages long. And that’s only for your state division. There’s also an overarching “federal” party <a href="https://cdn.liberal.org.au/pdf/2019%20Liberal%20Party%20of%20Australia%20Federal%20Constitution.pdf">constitution</a>.</p>
<p>Good, you think. Parties run parliament, our lawmakers <em>should</em> be be governed by rules about selecting candidates or expelling party members. But are they? Can you ask the courts to ensure your party’s powerbrokers abide by the rules that they, by and large, write?</p>
<p>It’s a simple question, but the answer to it is a mess, thanks to cases about recent high-profile interventions by national party leaders into Victorian Labor and the NSW Liberals.</p>
<p>What is going on? In part this is an historical tangle within common (in other words, judge-made) caselaw. In part, it is because the major parties have decided to upset 30 years of pragmatic acceptance of the obvious answer: serious rules, of registered parties, should be enforceable.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/preselection-and-parachuting-candidates-3-reasons-parties-override-their-local-branch-members-despite-the-costs-180125">Preselection and parachuting candidates: 3 reasons parties override their local branch members, despite the costs</a>
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</p>
<hr>
<h2>Parties as private social clubs?</h2>
<p>Ninety years ago, <a href="https://en.wikipedia.org/wiki/Edmond_Hogan">Ned Hogan</a> lost his pre-selection to stand for the Labor Party and was expelled from its ranks. Just weeks before, he had been Labor premier of Victoria. This drama – one of several splits that occasionally rend our parties – happened as the nation was divided about Depression-era austerity measures.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1185&fit=crop&dpr=1 600w, https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1185&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1185&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/457796/original/file-20220412-50132-b4wq0m.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In 19, Ned Hogan was expelled from the Labor Party- despite having served as Victorian Labor premier.</span>
<span class="attribution"><span class="source">National Portrait Gallery</span></span>
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</figure>
<p>Hogan fought his peremptory treatment all the way to the High Court. In 1934, it <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1934/24.html">ruled</a> in favour of the party. Not on the merits, but because it equated parties to any “voluntary association […] formed for social, sporting, political, scientific, religious, artistic or humanitarian” interests. Unless the squabble concerned who owned property, the court would treat it as a private stoush. </p>
<h2>Parties as semi-public bodies</h2>
<p>Thirty years ago, this ruling was side-stepped. It had long been criticised for its unreality. A clear-sighted Queensland judge, John Dowsett, <a href="https://www.queenslandjudgments.com.au/case/id/506066">reasoned</a> that whatever the mores of the 1930s, modern parties were deeply involved in public affairs. In particular, they register with electoral commissions and receive significant <a href="https://www.aec.gov.au/media/media-releases/2019/12-12.htm">public funding</a>.</p>
<p>Since 1992, a variety of Supreme Court judges, across numerous states, reinforced that finding. Party rules formed a contract, biding party members and administrators alike. </p>
<p>This didn’t mean open slather. First, non-members couldn’t insist party rules be enforced. (So parties could easily avert hostile <a href="http://www10.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/1997/6015.html">takeovers</a>). Second, only clear, usually procedural, rules were enforceable. (So statements of philosophy were treated as puffery). Internal grievance procedures had to be exhausted and members who sued late could be rebuffed.</p>
<p>Finally, the courts just interpreted rules, they didn’t re-write them. Rules might be democratic or hierarchical. With one caveat: they couldn’t completely oust any role for the courts. </p>
<h2>First they came for the union boss…</h2>
<p>In 2019, Anthony Albanese <a href="https://www.abc.net.au/news/2019-10-23/john-setka-expelled-from-labor-after-withdrawing-his-legal-bid/11631808">intervened</a> personally to urgently expel construction union leader, John Setka, from Victorian Labor. This was in apparent violation of the state party’s procedures and misconduct triggers.</p>
<p>Setka challenged in court, but Labor <a href="https://insidestory.org.au/if-setka-is-shaming-labor-is-labor-shaming-the-law/">convinced</a> a Victorian judge to revert to 1934, and not hear the matter. Few seemed to lament this judicial washing of hands. After all, Setka has attracted much <a href="https://en.wikipedia.org/wiki/John_Setka">controversy</a> in his personal, legal and union life.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/457792/original/file-20220412-11-6vug2w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In 2019, Anthony Albanese moved to have union boss John Setka expelled from the Labor Party.</span>
<span class="attribution"><span class="source">AAP/Daniel Pockett</span></span>
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</figure>
<p>Into 2021-22, the role of the courts became critical. First the national takeover of Victorian Labor was <a href="https://www.theage.com.au/national/victoria/guilty-and-innocents-alike-tramped-upon-in-labor-preselections-20211213-p59h0o.html">contested</a>. Then, a similar gambit by Scott Morrison in NSW was <a href="https://www.theguardian.com/australia-news/2022/mar/03/its-disgusting-nsw-liberal-members-irate-over-federal-imposition-of-candidates-in-prize-seats">decried</a> as “carpet-bombing”, by Liberal members both moderate and conservative.</p>
<p>In the last month, appeal courts in Victoria, then <a href="https://www.abc.net.au/news/2022-04-05/nsw-liberal-party-pre-selection-court-appeal-dismissed/100966516">NSW</a>, crafted a third way. Courts <em>should</em> hear such disputes, but <em>only if</em> they are closely connected to some electoral law requirement.</p>
<p>This new approach is very fuzzy. The Victorian court <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2022/26.html">said</a> it covered pre-selections, since parties nominate their candidates via the electoral commission. The NSW court <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2022/51.html">rejected</a> that finding completely, suggesting that only questions such as who was the party’s agent for electoral registration were necessarily within judicial purview.</p>
<h2>The High Court in a wedge</h2>
<p>In each case, party members then sought leave to appeal to the High Court. In each case, in the past week, the High Court declined to be involved. Understandably, given the imminence of the election. Sometimes the clock runs down on any useful remedies, and complex questions deserve considered reflection.</p>
<p>Also, the merits of the claims were limited. Unsurprisingly, party rules often give wide power to national executives to intervene, take over a branch, and select candidates.</p>
<p>But in Delphic hints last Friday, two High Court judges tantalisingly <a href="https://www.austlii.edu.au/au/other/HCATrans/2022/60.html">implied</a> the very narrow NSW approach was fine.</p>
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<p>
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Read more:
<a href="https://theconversation.com/politics-with-michelle-grattan-court-saves-morrisons-nsw-preselections-but-what-sort-of-campaign-will-liberals-run-180694">Politics with Michelle Grattan: Court saves Morrison's NSW preselections but what sort of campaign will Liberals run?</a>
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<h2>Membership bodies or top-down electoral brands?</h2>
<p>Where do these judicial <a href="https://twitter.com/Graeme_Orr/status/1512576732410544133?s=20&t=zQtAgfbxKqF2b4kTU8_EGw">shenanigans</a> leave us? First, until the High Court finds a suitable case to resolve the confusion, members in most states – but not necessarily the biggest two – may still seek the help of the courts. </p>
<p>Second, parties can run up costs by objecting to court hearings at will. Yet, if a party executive wants the courts involved (to suit their public agenda, or if there’s a fight between sub-factions in which the executive has no interest) it can simply not raise an objection to a hearing.</p>
<p>Finally, the law of parties in Australia is one-sided and <a href="https://theconversation.com/whos-liberal-whats-labor-new-bill-to-give-established-parties-control-of-their-names-is-full-of-holes-166088">underdeveloped</a>. Parties get benefits, from public funding through to control of <a href="https://theconversation.com/whos-liberal-whats-labor-new-bill-to-give-established-parties-control-of-their-names-is-full-of-holes-166088">party names</a> on ballot papers. </p>
<p>Yet they increasingly are constructed as mere <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354809">electoral brands</a>, disconnected from any social base.</p>
<p>Meanwhile, their dwindling band of active members – who pay up to <a href="https://viclabor.com.au/membership/join/">$225</a> a year for the privilege – have limited say in party affairs. And little reassurance the courts will help them if they feel repressed by administrators ignoring their party’s own rules.</p><img src="https://counter.theconversation.com/content/181054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Graeme Orr does pro bono and occasionally consultancy work in the law of politics, including electoral law. He is on the NSW Electoral Commission's iVote advisory panel. Last year he was on the Constitutional Advisory Board of the ARM. In the past he has given pro bono advice, on electoral law, to various small parties and independent candidates, regardless of ideology.</span></em></p>Confusing court findings have left the rules in party pre-selections in a mess, and members with little say in who contests individual seats.Graeme Orr, Professor of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1809812022-04-08T09:33:33Z2022-04-08T09:33:33ZHigh Court win for Morrison, as he prepares to fire election starting gun<p>Scott Morrison has won, in a Friday decision by the High Court, his long running battle over NSW Liberal party preselections, clearing the way for him to call the election. </p>
<p>Former Liberal party member Matthew Camenzuli – expelled from the party this week over his disruptive tactics – has been fighting through the courts against multiple preselections having been done by a committee headed by Morrison. </p>
<p>The High Court refused Camenzuli’s application for special leave to appeal, after the NSW Court of Appeal earlier found against him. </p>
<p>The court based its refusal on an insufficient prospect of the case being successful. </p>
<p>If the court had agreed to hear the case it would have complicated Morrison’s run up to the election.</p>
<p>The case most immediately focused on the preselections of three sitting members – ministers Alex Hawke and Sussan Ley, and backbencher Trent Zimmerman. </p>
<p>But if successful the effect would have extended to nine other candidates selected by the committee of Morrison, NSW premier Dominic Perrottet and a former Liberal president Chris McDiven. </p>
<p>While Morrison is keeping his counsel about the election announcement, the speculation on Friday was that he would call the election on Sunday. The two available dates are for May 14 and 21, with the latter considered more likely. </p>
<p>Pressed on Friday Morrison said the last election was on May 18 “and the next election will be held at about the same time”. The date would be known “very soon”. </p>
<p>If he delayed beyond Sunday, he would face parliament, with the House of Representatives due to resume on Monday. </p>
<p>Anthony Albanese accused Morrison of delaying an announcement so he could “continue to spend taxpayer funds on election ads in the name of the government”.</p>
<p>Campaigning in South Australia Albanese appeared alongside the popular newly elected premier Peter Malinauskas. </p>
<p>On the hustings in Victoria, Morrison said “Labor is an unknown in uncertain times”.</p><img src="https://counter.theconversation.com/content/180981/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Scott Morrison has won, in a Friday decision by the High Court, his long running battle over NSW Liberal party preselections, clearing the way for him to call the election.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.