tag:theconversation.com,2011:/id/topics/federal-court-770/articlesFederal Court – The Conversation2024-02-13T04:51:44Ztag:theconversation.com,2011:article/2217492024-02-13T04:51:44Z2024-02-13T04:51:44ZIf challenged in court, Australia’s system of negative gearing might not survive<figure><img src="https://images.theconversation.com/files/574886/original/file-20240212-29-muszla.png?ixlib=rb-1.1.0&rect=207%2C400%2C2715%2C1472&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/canberra-feb-22-2019high-court-australia-1330636346">Shutterstock</a></span></figcaption></figure><p>While Labor <a href="https://www.afr.com/politics/federal/pm-slaps-down-greens-on-negative-gearing-demands-20240212-p5f43q">resists</a> calls to change Australia’s system of negative gearing and the Greens <a href="https://greens.org.au/news/media-release/negative-gearing-cgt-discounts-help-buy-firing-line-greens-say-system-stacked">push for changes</a>, there’s a chance change could come from somewhere else altogether – Australia’s legal system.</p>
<p>As surprising as it might seem, the legal precedent that allows <a href="https://www.ato.gov.au/about-ato/research-and-statistics/in-detail/taxation-statistics/taxation-statistics-2020-21/statistics/individuals-statistics?anchor=IndividualsStatistics#Table8Individuals">one million</a> Australians to negatively gear investment properties can be challenged.</p>
<p>That challenge could come from Tax Office, which in my view could launch a test case to clarify what at the moment is a pretty wobbly foundation.</p>
<p>Negative gearing is what happens when an investor (usually a property investor) makes a loss on the investment (usually by paying out more in interest and other costs they receive in rent) and then uses that loss to reduce their salary or wage for taxation purposes in order to pay less tax.</p>
<p>Much of its apparent legality relies on a 1987 <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1987/317.html">Federal Court ruling</a> in a case brought by the Tax Office against a family trust controlled by a Victorian surgeon.</p>
<p>In saying that it is open to challenge, I acknowledge that negative gearing as practiced has been regarded as legal for some time, and that the Tax Office issued a <a href="https://www.ato.gov.au/law/view/pdf/pbr/tr1995-033.pdf">binding ruling</a> saying so in 1995.</p>
<p>I’ll explain why I think the precedent is ripe for a challenge, and then discuss the political and other difficulties the Tax Office would face in mounting such a challenge – difficulties I think could be overcome.</p>
<h2>The problematic precedent</h2>
<p>The legality of negative gearing for income tax purposes currently rests on the interpretation of the <a href="https://www.legislation.gov.au/C2004A05138/latest/text">general deduction</a> section of the Income Tax Act, as well as the fact that the so-called <a href="https://classic.austlii.edu.au/au/journals/eJlTaxR/2005/4.html">loss quarantining rules</a> that specifically prohibit negative gearing apply only to small marginal businesses.</p>
<p>The general deduction section allows taxpayers to deduct from assessable income any loss or outgoing to the extent that “it is incurred in gaining or producing your assessable income”.</p>
<p>This means that losses unrelated to the pursuit of an income can’t be deducted.</p>
<p>Where such expenses are only partly related to gaining income, the section allows that part of them be deducted, with the rest not.</p>
<p>The 1987 case used to establish that losses on rental properties can be used to reduce wages and salaries for tax purposes is known as <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1987/317.html">Commissioner of Taxation versus Janmor Nominees</a>.</p>
<h2>How Janmor Nominees played out</h2>
<p>The case related to a residential property purchased by a family trust with a large borrowing, in circumstances where the trust rented the property to the controller of the trust (a surgeon) for his family to live in.</p>
<p>In court, the Tax Office argued that the loss shouldn’t be allowed as a deduction because the property wasn’t really rented out. The “rent” was just a familial contribution to costs. </p>
<p>The Tax Office made other arguments as well, among them that the interest expense was private or domestic because the trust was just a mechanism to provide the surgeon and his family with a home to live in.</p>
<p>Naturally, the court’s focus was directed at responding to the Tax Office’s arguments. It held that the rent was a market rent and allowed the deduction.</p>
<p>This meant it didn’t deal with the more important question of whether negative gearing losses were incurred in gaining or producing assessable income.</p>
<h2>Losses need to be in pursuit of income</h2>
<p>My respectful opinion is that the judgment can’t govern negative gearing as it is usually practiced today, and for that matter, could not have governed it as it was usually practiced back in 1987.</p>
<p>In the standard negative gearing situation, the taxpayer who incurs a rental loss after deducting rental expenses is seeking <a href="https://www.ahuri.edu.au/research/final-reports/130">three things</a>:</p>
<ul>
<li><p>rent </p></li>
<li><p>capital growth for the purpose of making a profit</p></li>
<li><p>use of the loss to reduce other taxable income to reduce tax owed.</p></li>
</ul>
<p>In other words, the advantage sought is not limited to the rent.</p>
<p>The first of the three advantages (to obtain rent) satisfies the deduction test – it is connected to the pursuit of an income. The second and third do not.</p>
<p>Regardless of purpose, the courts have held that, to be deductible, expenses need to be objectively “<a href="https://www8.austlii.edu.au/au/other/rulings/ato/ATOTD/1995/TD9560.pdf">incidental and relevant</a>” to earning income.</p>
<p>Again – objectively – interest expenses are only partly directed at obtaining rent; they are also directed at obtaining tax deductions and capital growth. </p>
<p>After all, who would spend money in order to obtain a smaller amount of money unless some other advantage was being pursued?</p>
<p>That means interest expenses ought to be separated into their deductible (negatively-gearable) and non-deductible portions.</p>
<p>The problem is there seems not to have been a case that considered and decided on these questions. Janmor didn’t, and I know of no other case that did.</p>
<h2>The Tax Office ought to seek a ruling</h2>
<p>If the Tax Office wanted to be certain about whether negative gearing is legal as it is presently practiced, it could bring a test case in an attempt to obtain a definitive judgment. </p>
<p>It would need to convince a majority of the Full Federal Court (which comprises three or five judges), and perhaps the High Court.</p>
<p>It would face considerable challenges. The first has little or nothing to do with the law; it is political. The Tax Office would get complaints.</p>
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<strong>
Read more:
<a href="https://theconversation.com/how-albanese-could-tweak-negative-gearing-to-build-more-new-homes-222739">How Albanese could tweak negative gearing to build more new homes</a>
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<p>Politicians may even accuse the Tax Office of stepping into politics, but this would be a baseless claim because all it would be doing is testing the scope of the law.</p>
<p>The Tax Office regularly tests the boundaries of deduction provisions by bringing cases to the courts, even where political sensitivities are involved. </p>
<p>Tax advisers might also complain. Their criticism would be along the lines of “why didn’t you bring this earlier”? </p>
<p>It is a criticism to which the Tax Office might not have a ready answer.</p><img src="https://counter.theconversation.com/content/221749/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dale Boccabella 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 Tax Office should prepare a test case to establish the limits of negative gearing. It might be more limited than has been widely assumed.Dale Boccabella, Associate Professor of Taxation Law, UNSW 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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<p>
<em>
<strong>
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>
</strong>
</em>
</p>
<hr>
<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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<p>
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<strong>
Read more:
<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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</em>
</p>
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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>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1732225633080488004"}"></div></p>
<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/2104032023-08-01T22:18:06Z2023-08-01T22:18:06ZTrump indicted in Jan. 6 case – but his three upcoming trials may not keep him off the campaign trail<figure><img src="https://images.theconversation.com/files/539607/original/file-20230726-19-fgr8xo.jpeg?ixlib=rb-1.1.0&rect=11%2C5%2C3982%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former U.S. President Donald Trump on June 13, 2023, after being arraigned in Miami. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-visits-the-versailles-news-photo/1258668339?adppopup=true"> Stephanie Keith/Getty Images</a></span></figcaption></figure><p>Most commentators who have discussed Donald Trump’s pending criminal trials in New York, Florida and – with the late-day revelation on Aug. 1, 2023, that he has been <a href="https://www.nytimes.com/live/2023/08/01/us/trump-indictment-jan-6">indicted by a Washington, D.C., grand jury</a> – in the nation’s capital, have concluded that those trials would require his presence. And that would compromise his ability to campaign vigorously for the Republican nomination and the presidency. </p>
<p>The U.S. Constitution protects <a href="https://supreme.justia.com/cases/federal/us/470/522/">defendants’ rights</a> to be present at their criminal trials, prohibiting the government from holding trials against a defendant in the defendant’s absence. This rule differentiates the United States from other democracies that allow criminal trials to be held in the absence of the accused. For example, <a href="https://www.npr.org/sections/thetwo-way/2013/08/26/215756246/amanda-knox-wont-attend-new-italian-trial-lawyer-says">Italy tried and convicted Amanda Knox without her presence in Italy</a> for the murder of her roommate Meredith Kercher. The conviction was later reversed.</p>
<p>And in federal prosecutions, a <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">federal rule of criminal procedure</a> appears to require the defendant to attend the entire trial. But that still doesn’t mean a defendant will turn up in court day after day. </p>
<p>In Trump’s case, it raises the question: Could the former president boycott his trials?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit talks at a lectern in the front of a meeting room, with an American flag behind him." src="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Manhattan District Attorney Alvin Bragg at an April 4, 2023, press conference following the arraignment of former U.S. President Donald Trump on state charges.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/manhattan-district-attorney-alvin-bragg-speaks-during-a-news-photo/1250778290?adppopup=true">Kena Betancur/Getty Images</a></span>
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<h2>Federal prosecutions</h2>
<p>According to <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">Rule 43 of the Federal Rules of Criminal Procedure</a>, the defendant “must be present” at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at sentencing. This rule embodies the defendant’s constitutional right to be present at trial. And under U.S. <a href="https://supreme.justia.com/cases/federal/us/506/255/">Supreme Court precedents that interpret Rule 43</a>, a defendant absolutely must be present at the commencement of a federal criminal trial.</p>
<p>But after a trial begins, many courts have recognized the defendant’s right to voluntarily “be absent” from the rest of the trial by waiving their right to be present. At the very least, several courts have acknowledged that the trial judge has the discretion to permit the defendant’s absence. These decisions address the defendant’s knowing waiver of his constitutional right to be present at his trial. </p>
<p>In addition, they interpret an exception to federal Rule 43 <a href="https://www.federalrulesofcriminalprocedure.org/title-ix/rule-43-defendants-presence/">that allows defendants to waive their rights</a> to be present at a trial “when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial.” </p>
<p>At least one federal court <a href="https://casetext.com/case/united-states-v-sterling-10?__cf_chl_tk=9S3Qt_Ap17Qy49CSCp1KSLtG8qMTzHrD20dh8LxeTpI-1690483077-0-gaNycGzNDhA">has held</a> that a federal trial begins no later than the day of jury selection. </p>
<p>So as long as Trump knowingly waives his right to be present at his own criminal trial, the presiding judge may agree that his unique circumstances – running for the presidency – constitute sufficient grounds to acknowledge and approve a waiver.</p>
<h2>State prosecutions</h2>
<p>Similarly, where Trump faces state charges, in <a href="https://case-law.vlex.com/vid/people-v-epps-894221707">New York</a> and potentially in <a href="https://casetext.com/case/pennie-v-state">Georgia</a>, both states allow for a voluntary waiver by the defendant of their right to attend their criminal trial. The Georgia and New York state constitutions and both states’ laws protect a defendant’s right to be present at all stages of a criminal trial. They also allow for the defendant to waive this right, as long as the waiver is undertaken voluntarily. </p>
<p>That means Trump could not hold up a criminal trial by refusing to attend, since courts typically continue such trials in the public interest even in the voluntary absence of the defendant.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Five people sitting on one side of a table with papers on the table in front of them." src="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump with his attorneys inside the courtroom during his arraignment at the Manhattan Criminal Court on April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-appears-in-court-at-the-news-photo/1250772070?adppopup=true">Seth Wenig/POOL/AFP via Getty Images</a></span>
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<h2>Potential damage</h2>
<p>Any time a defendant refuses to attend his own criminal trial, however, there may be consequences. </p>
<p>For example, the sentencing judge may interpret a defendant’s refusal to attend as an act of disrespect for the court. Or, in the case of a jury trial, jurors may be rankled by the defendant’s voluntary absence. </p>
<p>As <a href="https://search.asu.edu/profile/3033197">a scholar of constitutional law</a>, I have no doubt that Donald Trump’s lawyers will advise him to attend. But none of these factors may matter to the former president, who seems focused most intently on delegitimizing the prosecutions as <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">politically driven persecutions</a>. </p>
<p>Trump may not be able to sit through day after day of a criminal trial. Given <a href="https://www.axios.com/2017/12/15/report-nato-altering-meeting-to-fit-trump-attention-span-1513302313">what is known about his</a> short attention span, such an outcome seems highly unlikely. </p>
<p>Even if he is able to absent himself from one or more of his pending trials voluntarily, he could and likely will argue that he faces a Hobson’s choice: attend the trial and lose the presidency, or boycott the trial and lose his freedom. </p>
<p>Many of his supporters will reject either outcome.</p><img src="https://counter.theconversation.com/content/210403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump has been indicted for crimes in connection with his efforts to overturn the 2020 election. A legal scholar looks at the law to determine whether he can boycott his upcoming trials.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2015422023-04-02T11:46:42Z2023-04-02T11:46:42ZHow a Canadian judge erred in ordering the repatriation of suspected ISIS members<figure><img src="https://images.theconversation.com/files/517997/original/file-20230328-2416-9jv03h.jpg?ixlib=rb-1.1.0&rect=30%2C0%2C6669%2C4426&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman and a child stand in a detention camp in northeast Syria in 2022. Tens of thousands of ISIS-affiliated foreign nationals are in the camps, including four Canadian men. </span> <span class="attribution"><span class="source">(AP Photo/Baderkhan Ahmad)</span></span></figcaption></figure><p>In a January 2023 <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522819/index.do?q=boloh">Federal Court decision</a>, the government of Canada was ordered to request repatriation of four suspected ISIS members <a href="https://www.cbc.ca/radio/thecurrent/canadians-accused-of-joining-isis-could-soon-come-home-1.6724477">currently being held</a> in Syria.</p>
<p>Lawrence Greenspon, who represents three of the detainees, <a href="https://www.cbc.ca/news/politics/government-appeal-court-order-repatriate-1.6744096">said the decision “covered all the bases and covered them well”</a> and that an appeal would therefore be difficult for the government to pursue. Similarly, <a href="https://socialistproject.ca/author/matthew-behrens/">socialist activist</a> Matthew Behrens <a href="http://homesnotbombs.blogspot.com/2023/01/federal-court-orders-repatriation-of.html?m=1">described the decision</a> as an “important ruling with global human rights implications.” </p>
<p>Nonetheless, the federal government <a href="https://www.reuters.com/world/americas/canadian-government-appeals-order-repatriate-canadians-syria-2023-02-10/">is appealing</a> the decision and oral arguments <a href="https://www.cbc.ca/news/politics/one-day-federal-court-of-appeal-hearing-men-detained-syria-1.6792201">were recently held at the Federal Court of Appeal in Toronto. </a></p>
<p>With the appeal ongoing, what are the chances that Justice Henry Brown’s ruling is upheld? Does the decision actually cover all the bases, and does it truly have important global human rights implications?</p>
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<p>Not so fast.</p>
<p>In the process of interpreting Canada’s <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/resources-ressources.html#copy">Charter of Rights and Freedoms</a> through the lens of international law, Brown illegitimately expands Canada’s existing human rights obligations.</p>
<h2>Human rights obligations</h2>
<p>The precedent established by the decision threatens Canada’s national security now and into the future, and it sets up a potential showdown between the judiciary and the government. </p>
<p>Here’s why.</p>
<p>Brown <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/522819/1/document.do#page=50">correctly notes</a> in the decision that subsection 6(1) of the Charter should be “presumed to provide at least as great a level of protection” as Canada’s international human rights obligations. </p>
<p><a href="https://laws-lois.justice.gc.ca/eng/const/page-12.html#h-44">This Charter provision establishes</a> the right for citizens “to enter, remain in and leave Canada.” It makes sense to interpret the Charter, including the “right to enter” provision, in a manner that is consistent with existing human rights requirements.</p>
<p>The decision also <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/522819/1/document.do#page=37">correctly relies</a> on the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a> as the primary instrument establishing Canada’s international law obligations. </p>
<p>The covenant, in turn, <a href="https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf#page=6">provides</a> that no person “shall be arbitrarily deprived of the right to enter his own country.”</p>
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Read more:
<a href="https://theconversation.com/is-it-more-dangerous-to-let-islamic-state-foreign-fighters-from-the-west-return-or-prevent-them-from-coming-back-112588">Is it more dangerous to let Islamic State foreign fighters from the West return or prevent them from coming back?</a>
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<h2>The heart of the covenant</h2>
<p>No issues so far. But Brown fails to consider the central jurisdictional clause of the covenant while interpreting the Charter in light of international law.</p>
<p>That provision of the covenant <a href="https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf#page=3">requires a country</a> to respect and ensure “to all individuals <em>within its territory</em> and <em>subject to its jurisdiction</em> the rights recognized” in the treaty. Suspected ISIS members being held in Syria, of course, are not on Canadian territory or subject to Canadian jurisdiction.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A sign that says Federal Court in French and English" src="https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518011/original/file-20230328-806-ef102g.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">Federal Court Justice Henry Brown’s ruling was inconsistent with Canada’s international legal obligations.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
</figcaption>
</figure>
<p>This deficiency in Brown’s reasoning is not remedied by his reliance on <a href="https://www.canlii.org/en/ca/scc/doc/2013/2013scc47/2013scc47.html">prior precedence</a> established by the Supreme Court of Canada <a href="https://www.canlii.org/en/ca/fca/doc/2009/2009fca21/2009fca21.html">or other</a> <a href="https://www.canlii.org/en/ca/fct/doc/2009/2009fc580/2009fc580.html">federal court decisions</a> — none of which imposed on the government an obligation to apply Charter rights as a matter of international law to people who are beyond Canadian territory and jurisdiction.</p>
<p>Brown does so in his decision, which is inconsistent with Canada’s international legal obligations. </p>
<h2>National security implications</h2>
<p>One especially concerning aspect of Brown’s decision is that the government has no obligation to implement it — even if the ruling survives the appeal. It is undoubtedly <a href="https://www.scc-csc.ca/court-cour/events-evenements/quebec2022/scc-csc-eng.html#role">the role</a> of the Supreme Court of Canada — and, by extension, lower courts as well — to “interpret and provide guidance on Canada’s laws.” </p>
<p>However, the judiciary has no authority to create international law obligations while interpreting the Charter or any other aspect of domestic law. Although a significant degree of political risk would be involved, the government may refuse to implement a judicial decision that creates a domestic legal obligation from a non-existent requirement in international law. </p>
<p>Even more concerning are the national security implications at stake. As suggested by my colleague, international affairs professor Leah West, <a href="https://globaljustice.queenslaw.ca/news/human-rights-and-citizenship-abandoned-in-ne-syria-a-special-issue-of-the-global-justice-journal#Shortsighted">there are several sensible options the government can take</a> to mitigate the potential public safety concerns associated with repatriating suspected ISIS fighters and their family members.</p>
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<p>The government has the resources needed to make these calculations and to act accordingly. The same cannot be said for Brown or any member of the judiciary or, for that matter, the general public. </p>
<p>Although West’s conclusion that “repatriation is in the best interests of Canadian national security” is certainly reasonable, the government is in the best position to make that determination in practice. </p>
<p>Aside from the potential public safety concerns involved with requiring the government to seek repatriation, it’s difficult to predict the full scope of national security implications inherent in expanding Canada’s human rights obligations across the globe as Brown’s decision mandates.</p>
<p>Such unconstrained territorial reach is inconsistent with the jurisdictional components of international human rights instruments — and for good reason.</p>
<h2>The world is watching</h2>
<p>For better or worse, Brown’s ruling set a global precedent. It was <a href="https://www.justsecurity.org/85049/repatriating-alleged-isis-linked-men-from-northeast-syria-the-start-of-judicial-responses-to-the-political-stalemate/">recently described</a> on the <a href="https://www.justsecurity.org/about-us/">progressive blog Just Security</a> as a “landmark decision” in large part because of the “rights-based perspective” implemented by Brown.</p>
<p>A co-author of that Just Security article is Fionnuala Ní Aoláin, <a href="https://www.ohchr.org/en/special-procedures/sr-terrorism/ms-fionnuala-d-ni-aolain">a current</a> United Nations special rapporteur whose <a href="https://www.ohchr.org/sites/default/files/documents/issues/terrorism/sr/2023-01-25/Letter-Canada-repatriations.pdf">representations</a> on this case <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/522819/1/document.do#page=51">feature prominently</a> in Brown’s decision.</p>
<p>Because UN special rapporteurs bear no political responsibility for representations they make to governments, these positions have essentially <a href="https://www.ohchr.org/en/calls-for-input-listing?deadline_status%5Bstate%5D=all&field_coi_stage_value%5Bstage_1%5D=stage_1&field_coi_stage_value%5Bstage_2%5D=stage_2">taken on the role</a> of high-profile global social justice activists. But their assertions carry no actual legal authority. </p>
<p>Although Ní Aoláin invokes Canada’s international human rights obligations, she doesn’t address relevant jurisdictional limitations. This isn’t surprising given she’s advocating for a particular outcome, but it is not a basis for a policy approach that balances competing governmental interests.</p>
<p>Brown found her representations to be compelling, but judges considering the pending appeal should take a more balanced approach. The world is watching, and significant national security considerations are at stake both at home and abroad.</p><img src="https://counter.theconversation.com/content/201542/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian L. Cox 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>A Federal Court justice ruled four men, suspected ISIS members, must be repatriated to Canada from a Syrian detention camp. Here’s why the decision is flawed and an ongoing appeal is justified.Brian L. Cox, Visiting scholar, uOttawa Faculty of Law; Doctoral candidate lecturer, Cornell Law School, L’Université d’Ottawa/University of OttawaLicensed 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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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>
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<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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<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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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/1799642022-03-29T00:25:26Z2022-03-29T00:25:26ZAustralia’s environment law doesn’t protect the environment – an alarming message from the recent duty-quashing climate case<p>The Federal Court recently <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0035/_nocache">quashed a duty of care</a> owed by the environment minister to Australian children, to protect them from the harms of climate change. </p>
<p>The duty was attached to Australia’s federal environment law, the Environment Protection and Biodiversity Conservation (EPBC) Act. In reversing the decision <a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/minister-for-the-environment-v-sharma/vid-389-of-2021-filed-documents/judgment-2021FCA560.pdf">that had established the duty</a>, the new judgment shone a spotlight on the EPBC Act’s limitations. Or at least, it should have.</p>
<p>Much of the commentary around the judgment focused on lamenting the hands-off position the court took in its unwillingness to delve into so-called political territory. </p>
<p>Less attention was paid to a key take-home message: the EPBC Act gives the minister power to approve coal projects, even if they’ll have adverse effects. </p>
<p>It doesn’t, in a general sense, protect the environment from these effects. It doesn’t protect the public from consequent harm, even if deadly. And it doesn’t, actually, tackle climate change at all. </p>
<p>Alarmed? You should be.</p>
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Read more:
<a href="https://theconversation.com/todays-disappointing-federal-court-decision-undoes-20-years-of-climate-litigation-progress-in-australia-179291">Today's disappointing federal court decision undoes 20 years of climate litigation progress in Australia</a>
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<h2>Why the duty was quashed</h2>
<p>The appeal was heard by three judges, each with a different opinion on why there shouldn’t be a duty. </p>
<p>One key problem was that the class of victims won’t just include the children represented in the case. Currently unborn children will be affected too. The judges also found issues with the minister’s relationship with the children given the intervening steps that will lead to climate change, extreme weather events, and future harm. </p>
<p>To help resolve novel disputes, courts look to previous cases. One case that featured prominently was about protecting the public from contaminated oysters. In <a href="https://jade.io/article/68366?at.hl=Graham+Barclay+Oysters+Pty+Ltd+v+Ryan+%255B2002%255D+HCA+54;+211+CLR+540">that case</a>, a council <em>wasn’t</em> liable for failing to prevent water pollution that caused hepatitis infection. In <a href="https://jade.io/citation/1337856">another case</a>, where there was no way of identifying the source of asbestos fibres that caused mesothelioma, it was found that whoever materially increased the risk of harm <em>could</em> be liable for it.</p>
<p>The fact these were considered the most relevant cases just goes to show how unprecedented the problem of climate change is. There was no case directly on point, which could help with the complex and cumulative cause-and-effects. </p>
<h2>The problem of ‘incoherence’</h2>
<p>Another important problem for two of the three judges was that the duty wasn’t coherent – meaning consistent or compatible – with the EPBC Act. That’s because the EPBC Act doesn’t squarely address climate change or human safety, and yet the duty concerns precisely those two things.</p>
<p>For decades, it’s <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/NL7/300/05/IMG/NL730005.pdf?OpenElement">been recognised</a> that humans depend on the environment for survival, and that a stable climate system is <a href="https://www.ipcc.ch/report/ar6/wg2/">necessary for life as we know it</a>. </p>
<p>The third judge thought the minister’s obligations, embedded in an environment protection framework, could therefore sit side by side with a duty of care. Our environment, he said, “is not just there to admire and objectify.”</p>
<p>But the other two were dissuaded by their view that the EPBC Act doesn’t in fact protect the environment in a general sense. Nor does it explicitly aim to mitigate climate change. It operates in a piecemeal way, rather than concerning ecosystems as a whole, or our dependency on them. </p>
<p>Can this really be how the EPBC Act operates in practice? Well, yes. </p>
<p>We heard this same message just recently via the ten-yearly, independent review of the legislation. It concluded that the EPBC Act is <a href="https://epbcactreview.environment.gov.au/resources/final-report">outdated, and not fit for the purpose of environment protection</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/454855/original/file-20220328-17-1flcrj7.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">The EPBC Act operates in a piecemeal way, rather than concerning ecosystems as a whole, or our dependency on them.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>What does the EPBC Act do, then?</h2>
<p>For the most part, the EPBC Act is an impact assessment law. It’s triggered when specific environmental matters, like individual threatened species, are likely to be harmed by a proposed project (such as a coal mine). When it’s triggered, it sets in motion a procedural process that requires the minister to consider whether to approve the project given its impacts.</p>
<p>Year after year, nearly every single project that is put forward is <a href="http://epbcnotices.environment.gov.au/publicnoticesreferrals/">approved</a>. In fact, the coal mine that was the subject of the case was approved even before the appeal went to court. This explains why so many, <a href="https://epbcactreview.environment.gov.au/resources/final-report/executive-summary">including the independent review</a>, feel the EPBC Act doesn’t really do enough to adequately safeguard against environmental loss. </p>
<p>The review recommended the introduction of science-backed <a href="https://epbcactreview.environment.gov.au/resources/final-report/appendix-b">environmental standards</a>. If this happened, it may be easier for courts to judge ministerial decisions, with a legal reference point for what’s considered politically acceptable. It also <a href="https://epbcactreview.environment.gov.au/resources/final-report/recommendations">recommended</a> decision-making incorporate climate scenarios.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1503512537379196936"}"></div></p>
<h2>A call to action</h2>
<p>Back in 2020, I <a href="https://theconversation.com/these-aussie-teens-have-launched-a-landmark-climate-case-against-the-government-win-or-lose-itll-make-a-difference-145830">wrote that</a> whether the children win or lose, their case would make a difference. </p>
<p>Although not over yet (they have two more weeks to lodge an application to appeal to the High Court), it already has. It’s drawn attention to the fact that Australia doesn’t have a climate law to protect its children. That it has no law to protect against harmful floods and fire that have <a href="https://theconversation.com/one-of-the-most-extreme-disasters-in-colonial-australian-history-climate-scientists-on-the-floods-and-our-future-risk-178153">already manifest</a> since the case began. And it’s forced the Federal Court to acknowledge the uncontested risks of climate change. </p>
<p>Let’s look at this case as a call to action. The Federal Court has essentially said it can’t act. Reading the judgment closely, there are hints to suggest the High Court might be able to, and that eventually, the law will have to evolve to manage complex causation. </p>
<p>But the decision certainly doesn’t mean the government can’t act. In fact, that’s exactly who the judges indicated must. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/a-major-report-excoriated-australias-environment-laws-sussan-leys-response-is-confused-and-risky-154254">A major report excoriated Australia's environment laws. Sussan Ley's response is confused and risky</a>
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<img src="https://counter.theconversation.com/content/179964/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Schuijers 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 Federal Court has essentially said it can’t act. But the decision certainly doesn’t mean the government can’t act. In fact, that’s exactly who the judges indicated must.Laura Schuijers, Deputy Director, Australian Centre for Climate and Environmental Law and Lecturer in Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1750382022-01-16T10:18:42Z2022-01-16T10:18:42ZWhy Novak Djokovic lost his fight to stay in Australia – and why it sets a concerning precedent<p>Many sports stars are, rightly or wrongly, held up as role models. In the case of Novak Djokovic, we have a set of powerful factors at play. </p>
<p>On one side is a tennis superstar who is unvaccinated and has raised concerns about receiving the vaccination. On the other side is a government which believes Djokovic’s presence in Australia will have a serious negative effect on public health orders and future vaccination levels. </p>
<p>Today, the full Federal Court, in a unanimous judgement, dismissed Djokovic’s application to overturn the cancellation of his visa. It is not surprising he lost his case. Although the evidence used by the immigration minister to cancel the visa was not overwhelmingly strong, the breadth of his powers under the <a href="https://www.legislation.gov.au/Series/C1958A00062">Migration Act</a> made it very difficult to successfully challenge his findings.</p>
<p>But the legal issues raised by this case do not end here. What are the broader implications of the government’s approach in future cases involving high-profile “anti-vaxxers” or people who may be seen as a risk to Australia’s social order? </p>
<p>Although the government may be very happy about this result, I would question whether this is a workable precedent to set for other sportspeople, or indeed anyone, who may be seen as posing a risk to the public interest of Australia.</p>
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<h2>What the government claimed</h2>
<p>The immigration minister has the power to cancel a visa if he or she is satisfied a person’s presence in Australia <em>might</em> be a risk to the health, safety or good order of Australia and the cancellation is in the public interest. </p>
<p>The use of the word “might” is important – the minister does not need to show Djokovic <em>would</em> pose a risk, only that he <em>may</em> do so.</p>
<p>When cancelling Djokovic’s visa on Friday, <a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/djokovic/filed-documents/Sealed-Affidavit-Bannister-1512022.pdf">Immigration Minister Alex Hawke</a> reasoned the tennis player’s conduct and stance against vaccination may encourage others to emulate him by reason of his high profile and status. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/novak-djokovic-has-long-divided-opinion-now-his-legacy-will-be-complicated-even-further-174531">Novak Djokovic has long divided opinion. Now, his legacy will be complicated even further</a>
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<p>There were two issues with the ministerial statement which were discussed at some length in the full Federal Court:</p>
<ol>
<li><p>Hawke did not seek the views of Djokovic on his present attitude to vaccinations. Instead, the minister cited material that made clear Djokovic has publicly expressed antivaccination sentiment. This included a <a href="https://www.bbc.com/news/world-59897918">BBC article</a>, which Djokovic’s lawyers argued was not sufficient to make a judgement about his vaccination views. </p></li>
<li><p>Hawke explicitly referred to the effect Djokovic’s presence would have on public health and social order. What the minister did not consider, however, was the other side of this argument. That is, Djokovic’s deportation might lead to an increase in anti-vax sentiment and/or civil unrest. </p></li>
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<h2>What Djokovic claimed</h2>
<p>Djokovic’s lawyers made some very compelling <a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/djokovic/filed-documents/sealed-Applicants-revised-Submissions-1512022.pdf">arguments</a> about Hawke’s reasoning. Put simply, the lawyers said the minister had two choices: </p>
<ol>
<li><p>to cancel the visa and deport Djokovic </p></li>
<li><p>not cancel it and let him stay. </p></li>
</ol>
<p>They argued it was irrational for Hawke to only question the effect Djokovic’s presence would have on anti-vax sentiment in Australia and not the effect his deportation would have.</p>
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<em>
<strong>
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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<p>Djokovic’s lawyers also argued the minister’s findings lacked sufficient evidence to support the contention that his presence in Australia might pose a risk to the health or good order of the Australian community and the contention Djokovic had a “well-known stance on vaccination”. </p>
<p>Djokovic’s lawyers conceded Djokovic had previously said he was opposed to vaccinations. However, they pointed out in the BBC article he </p>
<blockquote>
<p>later clarified his position by adding that he was ‘no expert’ and would keep an ‘open mind’ but wanted to have ‘an option to choose what’s best for my body’. </p>
</blockquote>
<p>It is important to note this qualifying passage was not extracted by Hawke in his statement - a point Djokovic’s lawyers made in the hearing.</p>
<figure class="align-center ">
<img alt="Supporters of Novak Djokovic hold Serbian flags." src="https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/440956/original/file-20220116-28-11x9wet.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&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">Supporters of Novak Djokovic hold Serbian flags outside the Federal Court building in Melbourne.</span>
<span class="attribution"><span class="source">Tom Moldoveanu/AP</span></span>
</figcaption>
</figure>
<h2>Why Djokovic’s case failed</h2>
<p>In response, the government argued it was reasonable to conclude Djokovic is opposed to vaccination based on his previous public statements and the fact he is known to be unvaccinated. </p>
<p>The government also said Hawke was not only concerned with Djokovic’s current views on vaccination, but the <em>public perception</em> of his views.</p>
<p>Further, the government said Hawke did not have to show Djokovic’s presence <em>has</em> fostered anti-vaccination sentiment or necessarily <em>will</em> foster it. All he needed to show was his presence in Australia <em>may</em> foster anti-vax sentiment – a relatively low threshold to reach.</p>
<p>Presumably, this is why Djokovic’s case failed. Although there were questions about the evidence used by Hawke, the Migration Act powers are very broad and it is difficult to challenge them based on unlawfulness.</p>
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<h2>Implications for the future</h2>
<p>While the Federal Court’s decision may be viewed as legally justified given the breadth of the cancellation powers in the Migration Act, some thought must be given to the future implications of these powers and what this means for the ability of the government to cancel other people’s visas.</p>
<p>The basis of Hawke’s findings seemed to be it was enough to show Djokovic is an iconic sports star who is perceived as being anti-vaccination and therefore may foster anti-vax sentiment in Australia.</p>
<p>I have a number of concerns with this.</p>
<p>First, it is unfair if the perception or actions of others can determine someone’s eligibility to remain in a country. A person may wrongly be viewed as having a particular belief and still be subject to a visa cancellation.</p>
<p>Second, the minister relied on Djokovic’s claimed status as a “role model” and his capacity as a high-profile sportsperson to apparently influence society. What if a sportsperson is unvaccinated, but not high-profile?</p>
<p>Third, and this is the most concerning point, if we extend this logic to other people, it could justify the cancellation of any individual who is seen as a “role model” and who may be perceived as causing social unrest or protests. </p>
<p>As <a href="https://twitter.com/Kate_Seear/status/1482568831264768009?s=20">legal commentators such as Kate Seear pointed out</a>, </p>
<blockquote>
<p>This kind of logic - that athletes are role models and role models can influence society […] could be extended to other athletes wanting to come here in the future, including those with diverse political views, such as supporters of Black Lives Matter and defunding police.</p>
</blockquote>
<p>Lastly, the idea a person can have their visa cancelled because their views might affect the health, safety or good order of the Australian community raises issues for freedom of expression. </p>
<p>A wide cancellation power allows the government to stop international visitors who may have an important message to tell Australians. That would pose significant concerns for political debate in Australia.</p><img src="https://counter.theconversation.com/content/175038/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maria O'Sullivan previously received funding from the Commonwealth Attorney-General's Department to undertake research on automated decision-making. She also serves on the Human Rights Legal Advice Panel for the Queensland Parliament.</span></em></p>The ruling could justify the future visa cancellation of any individual who is seen as a ‘role model’ and who may be perceived as causing social unrest.Maria O'Sullivan, Associate Professor, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1616502021-05-27T07:12:45Z2021-05-27T07:12:45ZIn a landmark judgment, the Federal Court found the environment minister has a duty of care to young people<figure><img src="https://images.theconversation.com/files/403054/original/file-20210527-23-mebc92.jpg?ixlib=rb-1.1.0&rect=7%2C28%2C4735%2C3121&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP Image/James Gourley</span>, <span class="license">Author provided</span></span></figcaption></figure><p>This morning, the Australian Federal Court delivered <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0560">a landmark judgement</a> on climate change, marking an important moment in our history.</p>
<p>The <a href="https://theconversation.com/these-aussie-teens-have-launched-a-landmark-climate-case-against-the-government-win-or-lose-itll-make-a-difference-145830">class action case</a> was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley. </p>
<p>Their aim was to prevent Ley from possibly approving the <a href="https://whitehavencoal.com.au/federal-court-judgment-vickery-extension-project/">Whitehaven coal mine extension project</a>, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health or death, and economic losses.</p>
<p>The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.</p>
<p>Before making those orders, the court found a new duty it never has before: the environment minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change.</p>
<h2>‘Australia will be lost’: the court’s moving findings</h2>
<p>The court considered evidence in the case from the Intergovernmental Panel on Climate Change, CSIRO, the Bureau of Meteorology, and globally renowned ANU climate scientist Will Steffen. </p>
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<p>In a tear-jerking moment during the Federal Court’s live-streamed summary, the court found that one million of today’s Australian children are expected to be hospitalised because of a heat-stress episode, that substantial economic loss will be experienced, and that the Great Barrier Reef and most of Australia’s eucalypt forest won’t exist when they grow up.</p>
<p>It found this harm is real, catastrophic, and – importantly from a legal perspective – “reasonably foreseeable”. In <a href="https://pursuit.unimelb.edu.au/articles/climate-change-in-court">decades past</a>, courts have considered climate change to be a “speculative”, “future problem”. </p>
<p>That is no longer the case. The court concluded, in <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0560">a moving paragraph</a> from the written judgment:</p>
<blockquote>
<p>It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well. </p>
<p>The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. </p>
<p>Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. </p>
<p>None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next. </p>
<p>To say that the children are vulnerable is to understate their predicament.</p>
</blockquote>
<h2>Establishing a new duty of care</h2>
<p>The children took a novel route in asserting the federal environment minister owed them a duty of care. A duty of care means a responsibility not to take actions that could harm others. A duty of care is the first step in a claim of negligence. </p>
<p>A similar duty <a href="https://www.urgenda.nl/en/themas/climate-case/">was found</a> in the Netherlands in 2015, as a global first. In 2019, the Supreme Court upheld that duty – the Dutch government owed its citizens a duty to reduce emissions in order to protect human rights. </p>
<p>Other cases around the world were inspired by that success, including the one decided in Australia today.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-wake-up-call-why-this-student-is-suing-the-government-over-the-financial-risks-of-climate-change-143359">'A wake-up call': why this student is suing the government over the financial risks of climate change</a>
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<p>The court today didn’t say the minister has a duty to stop all coal projects of any size, as it was only considering the Whitehaven extension project. But this is still hugely significant. </p>
<p>Australia has been repeatedly criticised on the global stage for its stance on new coal and climate change more generally. Now, we may find the decisions made by its environment ministers could amount to negligent conduct.</p>
<h2>The buck doesn’t stop at governments</h2>
<p>Back in the Netherlands, something else significant happened this week — the world learned the buck doesn’t stop at governments. </p>
<p>In what’s <a href="https://www.reuters.com/business/sustainable-business/dutch-court-orders-shell-set-tougher-climate-targets-2021-05-26/">been described</a> as “arguably the most significant climate change judgement yet”, a court in The Hague ordered Royal Dutch Shell, a global oil and gas company, to reduce its carbon dioxide emissions by 45% by 2030 compared with 2019 levels, via its corporate policy. </p>
<p>This could have <a href="https://www.afr.com/companies/energy/shell-loses-climate-case-that-may-set-precedent-for-big-oil-20210527-p57vhe">far-reaching consequences</a> for oil and gas companies all over the world, <a href="https://www.abc.net.au/news/2021-05-27/climate-environment-shell-chevron-exxon/100169518">including in Australia</a>.</p>
<p>So now we have a dual momentum — governments need to be careful what they approve, and fossil fuels companies need be careful what they propose. </p>
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<h2>Putting the minister on notice</h2>
<p>It’s important to recognise Ley hasn’t made a decision yet to approve the coal mine extension. The young Australians were seeking to stop her from approving it, and in that they didn’t succeed. </p>
<p>However, her responsibility to young people has now been formally recognised by the court. </p>
<p>Today’s children are vulnerable to climate change and they depend on the environment minister to protect their interests. We don’t know yet if the minister will approve the mine extension, or if she does, whether that means she has breached her duty to the children. But we do know how significant the harm from climate change will be. </p>
<p>In 2019, a NSW court <a href="https://jade.io/article/633699">confirmed</a> now is not the time to be approving new coal, and every coal mine counts. </p>
<p>Today’s judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians. </p>
<p>But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.</p>
<p>Short-term financial gain can have detrimental impacts on the health and economic wellbeing of those who can’t vote yet. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
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<p><em>This story is part of a series The Conversation is running on the nexus between disaster, disadvantage and resilience. It is supported by a philanthropic grant from the Paul Ramsay foundation. You can read the rest of the stories <a href="https://theconversation.com/au/topics/disaster-and-resilience-series-97537">here</a>.</em></p><img src="https://counter.theconversation.com/content/161650/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Schuijers 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 court described climate change as ‘the greatest inter-generational injustice ever inflicted by one generation of humans upon the next’.Laura Schuijers, Research Fellow in Environmental Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601032021-05-16T19:54:59Z2021-05-16T19:54:59ZA Victorian logging company just won a controversial court appeal. Here’s what it means for forest wildlife<p>Australia’s forest-dwelling wildlife is in greater peril after last week’s court ruling that logging — even if it breaches state requirements — is exempt from the federal law that protects threatened species. </p>
<p>The Federal Court upheld an appeal by VicForests, Victoria’s state timber corporation, after a <a href="https://theconversation.com/the-leadbeaters-possum-finally-had-its-day-in-court-it-may-change-the-future-of-logging-in-australia-139652">previous ruling in May 2020 found</a> it razed critical habitat without taking the precautionary measures required by law.</p>
<p>The ruling means logging is set to resume, despite the threats it poses to wildlife. At particular risk are the Leadbeater’s possum and greater glider — mammals <a href="https://www.pnas.org/content/115/20/5181">highly vulnerable to extinction</a> that call the forests home.</p>
<p>So let’s take a look at the dramatic implications for wildlife and the law in more detail.</p>
<h2>Why is this ruling so significant?</h2>
<p>The Federal Court agreed VicForest’s logging <a href="https://www.theguardian.com/environment/2021/may/10/logging-exempt-from-environment-laws-despite-destroying-threatened-species-victorian-habitat-court-finds">failed to meet</a> its environmental legal requirements. In fact, the Federal Court dismissed every single ground of appeal but one. And it takes only one to win. </p>
<p>The ground that won the case was that the federal environmental law designed to protect threatened species — the Environment Protection and Biodiversity Conservation (EPBC) Act — did not apply to the logging operations due to a forestry exemption.</p>
<p>To understand the significance of these issues, it’s important to know a bit about the context. </p>
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<p>In the 1980s and ‘90s, forestry was passed to the states to regulate. So-called regional forest agreements (RFAs) were struck between federal and state governments. The idea was that forestry would be conducted under these state-led RFAs, avoiding federal scrutiny. </p>
<p>This was meant to streamline procedures, and offer a compromise between sometimes conflicting objectives: conservation and commercially profitable forestry. </p>
<p>However, states weren’t necessarily meant to have absolute control, and a check-and-balance system was put in place. If a logging operation doesn’t follow the RFA requirements, then the federal law is called in. </p>
<p>That way, states have control, but there’s a backup safety net for threatened species (which the federal government has an obligation to protect under international law). </p>
<p>This backup safety net is what the original case was testing. Friends of the Leadbeater’s Possum sued VicForests, arguing the logging operations breached the Victorian RFA, and <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0704">the organisation won the case</a>.</p>
<p>In response to the original decision against VicForests, Nationals Senator Bridget McKenzie <a href="https://www.smh.com.au/politics/federal/nationals-senator-s-logging-bill-chops-down-environment-minister-s-powers-20210419-p57kgh.html">introduced</a> a private members bill, seeking to strengthen logging’s exemption from federal scrutiny. </p>
<p>If passed, the bill would make forestry activities within RFA areas exempt from scrutiny under the EPBC Act, <em>regardless</em> of whether they follow RFA rules. </p>
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Read more:
<a href="https://theconversation.com/the-leadbeaters-possum-finally-had-its-day-in-court-it-may-change-the-future-of-logging-in-australia-139652">The Leadbeater's possum finally had its day in court. It may change the future of logging in Australia</a>
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<p>Both the court decision and the bill respond to a need for industry certainty and seek to minimise opportunities for legal action against logging under the EPBC Act. But they remove any certainty for environmental protection.</p>
<h2>What does this mean for wildlife?</h2>
<p>RFAs were <a href="https://www.agriculture.gov.au/forestry/policies/forest-policy-statement">established with the best of intentions</a>. But unfortunately, they haven’t been working to protect wildlife — a point made clear in the EPBC Act’s recent <a href="https://epbcactreview.environment.gov.au/">ten-year independent review</a>. </p>
<p>As former competition watchdog chair Professor Graeme Samuel, who led the <a href="https://epbcactreview.environment.gov.au/resources/final-report">review</a>, said in his final report: </p>
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<p>there are fundamental shortcomings in the interactions between RFAs and the EPBC Act.</p>
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<p>The RFAs haven’t been updated as they were meant to be, despite dramatic changes in the environment, such as from <a href="https://www.nature.com/articles/s41559-020-1251-1">mega-fires</a>, and the warming and drying climate. These factors totally change the game for forestry and forest-dependent wildlife, such Leadbeater’s possum and the greater glider, which are <a href="https://www.pnas.org/content/115/20/5181">declining dramatically</a>.</p>
<p>We are currently experiencing a <a href="https://www.weforum.org/reports/the-global-risks-report-2021">global mass extinction event</a>, and Australia is a <a href="https://www.abc.net.au/news/science/2017-10-26/australia-biodiversity-loss-conservation/8987696">global extinction leader</a>. Australia is responsible for <a href="https://www.abc.net.au/news/2015-08-19/fact-check-does-australia-have-one-of-the-highest-extinction/6691026">35% of all modern mammal extinctions globally</a> and has seen an <a href="https://tsx.org.au/tbx2018/#/">average decline of 50%</a> in threatened bird populations since 1985.</p>
<p>Cutting down trees may seem insignificant to some, in the scheme of things. But small effects can accumulate into huge declines, like a <a href="https://www.pnas.org/content/118/2/e2023989118">death by a thousand cuts</a>. </p>
<p>Both Leadbeater’s possum and the greater glider depend on large old trees with hollows (<a href="https://www.nespthreatenedspecies.edu.au/media/gmffqp5p/3-3-2-hollow-bearing-trees-findings-factsheet.pdf">that take more than 100 years to develop</a>) for shelter. Without many of these trees, they cannot survive. </p>
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Read more:
<a href="https://theconversation.com/comic-explainer-forest-giants-house-thousands-of-animals-so-why-do-we-keep-cutting-them-down-106708">Comic explainer: forest giants house thousands of animals (so why do we keep cutting them down?)</a>
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<p>Logging in Victoria has led to a decline in the number and extent of these particular trees, and reduces future large tree numbers. This makes the animals more vulnerable. </p>
<p>To avoid extinctions, we can’t afford to lose more ground by continuing practices that damage or remove habitat.</p>
<h2>The writing is on the wall</h2>
<p>But things could be changing soon. The Victorian government plans to <a href="https://www.abc.net.au/news/2019-11-06/native-timber-logging-in-victoria-to-be-phased-out-by-2030/11678590">ban native timber harvesting from 2030</a>. This happens to be the same year a decades-old contract with a wood pulp and paper company expires, currently <a href="https://www.legislation.vic.gov.au/in-force/acts/forests-wood-pulp-agreement-act-1996/001">binding the state</a> to provide pulp logs by a legislated supply agreement. </p>
<p>After 2030, paper, pulp, and timber products would be logged from plantations rather than native forests. The writing is already on the wall. </p>
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<a href="https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters in a forest" src="https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399929/original/file-20210511-17-964lgl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&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">An anti-logging protest in Toolangi State Forest in response to VicForests winning their appeal in the federal court.</span>
<span class="attribution"><span class="source">Kira Whittaker</span></span>
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<p>Whether it’s the federal or state governments in charge, forest management needs to be scientifically robust, with strong compliance, enforcement and governance. Otherwise, as we’ve seen, there’s a significant risk of slippage and loss of trust. </p>
<p>Even before the mega-fires of 2019-20, most Australians <a href="https://www.abc.net.au/news/2018-12-09/forestry-survey-rejects-native-forest-logging/10597490">didn’t support</a> native forest logging. After the fires, their worries <a href="https://australiainstitute.org.au/wp-content/uploads/2020/12/Polling-January-2020-bushfire-impacts-and-climate-concern-web.pdf">increased</a>, with a majority expressing concerns that Australia’s unique environment might never be the same.</p>
<p>And as a result of rising community expectations on how the environment is treated, some businesses have pivoted. </p>
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Read more:
<a href="https://theconversation.com/logged-native-forests-mostly-end-up-in-landfill-not-in-buildings-and-furniture-115054">Logged native forests mostly end up in landfill, not in buildings and furniture</a>
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<p>Many companies now see being associated with environmentally poor outcomes as risky. <a href="https://www.bunnings.com.au/media-centre">Bunnings</a>, for example, has already banned VicForests’ native timber. The World Economic Forum <a href="https://www.weforum.org/agenda/2021/01/building-resilience-in-the-face-of-dynamic-disruption/">places biodiversity loss</a> in the top five risks to the global economy. And a global <a href="https://tnfd.info/">taskforce</a> is being established that could eventually see environmental disclosures as a new norm.</p>
<p>It’s clear the status quo has led to an alarming rate of species decline. This decline will only be locked in further if legal exemptions make it impossible to hold law-breakers to account.</p><img src="https://counter.theconversation.com/content/160103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brendan Wintle receives funding from The Australian Research Council, the Victorian State Government, the NSW State Government, the National Environmental Science Program, the Ian Potter Foundation, The Nature Conservancy, and the Hermon Slade Foundation. </span></em></p><p class="fine-print"><em><span>Laura Schuijers receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Sarah Bekessy receives funding from the Australian Research Council, the National Health and Medical Research Council, the Ian Potter Foundation and the National Environment Science Program.
</span></em></p>Timber company VicForests won its appeal last week and logging is set to resume. Let’s take a look at the dramatic implications for wildlife and the law.Brendan Wintle, Professor in Conservation Ecology, School of BioSciences, The University of MelbourneLaura Schuijers, Research Fellow in Environmental Law, The University of MelbourneSarah Bekessy, Professor in Sustainability and Urban Planning, Leader, Interdisciplinary Conservation Science Research Group (ICON Science), RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1606242021-05-10T09:49:51Z2021-05-10T09:49:51ZPart of the legal challenge to the India travel ban has been comprehensively defeated — here’s why<figure><img src="https://images.theconversation.com/files/399694/original/file-20210510-18-10icbd7.jpg?ixlib=rb-1.1.0&rect=40%2C40%2C5422%2C3055&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman and child on a bus in New Delhi.</span> <span class="attribution"><span class="source">Manish Swarup/AP/AAP</span></span></figcaption></figure><p>One part of a legal challenge to the <a href="https://www.abc.net.au/news/2021-05-04/scott-morrison-defends-india-covid-travel-ban-australia-jail/100113848">Commonwealth’s India travel ban</a> was <a href="https://www.abc.net.au/news/2021-05-10/federal-court-judge-throws-out-part-of-india-travel-ban/100129520">comprehensively defeated</a> in the Federal Court on Monday evening. </p>
<p>Justice Thawley rejected all the arguments made by the applicant, <a href="https://www.9news.com.au/national/india-travel-suspension-arrival-ban-pause-legal-challenge-court-greg-hunt/ff8741b2-289c-4a41-bdb6-cbd9971739dd">Gary Newman</a>, a 73-year-old Australian citizen who has been in India since March 2020. </p>
<p>Newman’s challenge was divided into two stages. </p>
<p>The first stage was heard and dismissed by the Federal Court on Monday. This leaves open the possibility Newman will proceed with the second stage, which is a constitutional challenge. However, there may be no time to do so, assuming that the ban is lifted on Friday 15 May, <a href="https://www.pm.gov.au/media/resumption-indian-repatriation-flights-howard-springs">as proposed</a>.</p>
<p>What arguments did Newman make and on what grounds did the judge find that they failed?</p>
<h2>Did the minister fail to satisfy the requirements of the Act?</h2>
<p>Newman’s first argument was the health minister (in this case, Greg Hunt) had failed to satisfy the conditions imposed in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ba2015156/s477.html">section 477</a> of the Biosecurity Act on the exercise of his power. It was argued Hunt had failed to consider the impact of the potential spread of COVID throughout prisons if people breached the travel ban and returned from India with COVID and were immediately placed in prison, without bail or quarantine. </p>
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Read more:
<a href="https://theconversation.com/is-australias-india-travel-ban-legal-a-citizenship-law-expert-explains-160178">Is Australia's India travel ban legal? A citizenship law expert explains</a>
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<p>Justice Thawley was quite dismissive of this argument suggesting there was no serious possibility this would occur. </p>
<p>Newman also argued the minister had not considered other less intrusive and restrictive measures. However, Justice Thawley pointed out the minister had set out some exceptions to the ban in his <a href="https://www.legislation.gov.au/Details/F2021L00533">determination</a>, including for medical evacuation flights and for members of Australian medical assistance teams. The minister had therefore turned his mind to how he could reduce the intrusive effect of the ban.</p>
<p>Another technical argument was that the law was “extraterritorial” in its application because it operated outside Australia and this was not permitted under the Biosecurity Act. But Justice Thawley rejected this, noting no offence occurred under the minister’s determination until a person actually entered into Australian territory. So it was not extraterritorial in its application. </p>
<h2>Was there a breach of a fundamental common law right?</h2>
<p>The second main argument by Newman was that the right of an Australian citizen to enter Australia is a fundamental <a href="https://law.uq.edu.au/files/27798/Statute%20and%20Common%20Law%20%28Final%29.pdf">common law</a> right. This was accepted by the Commonwealth government. </p>
<p>It was also accepted that fundamental common law rights cannot be limited by legislation unless the parliament does so with “irresistible clearness”. This is known as the “<a href="https://www.ruleoflaw.org.au/the-principle-of-legality/#:%7E:text=The%20principle%20of%20legality%20is,by%20clear%20and%20unambiguous%20language.">principle of legality</a>”. It means parliament has to take full responsibility for any restriction on fundamental common law rights, and this can only be done if it acknowledges clearly in its legislation what it is doing. </p>
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<img alt="Qantas plane landing in Darwin in October 2020." src="https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399699/original/file-20210510-5702-zzp5xq.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">All flights from India have been suspended until May 15.</span>
<span class="attribution"><span class="source">Charlie Bliss/AAP</span></span>
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<p>While Justice Thawley agreed this was the relevant principle, he thought it was clear the Biosecurity Act was intended to permit the restriction of fundamental common law rights, including the movement of citizens in and out of Australia. He reached this conclusion by looking at various other provisions in the Act which showed an intention to limit the movement of people into and out of Australia. </p>
<p>Justice Thawley also noted section 477 of the Act is deliberately drafted broadly because it was intended to deal with emergencies which could not be anticipated in their scale and effect. He noted that even though it gave a very broad power to the health minister, it could only be exercised when certain conditions were satisfied. </p>
<p>First, there needed to be a “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ba2015156/s475.html">human biosecurity emergency</a>” — which requires an assessment of a severe and immediate threat or harm to human health on a nationally significant scale. </p>
<p>Second, section 477 includes detailed matters of which the minister must be satisfied before making a determination. This includes that it is no more restrictive or intrusive than necessary. These limitations were included to ensure that the minister’s very broad power, which included the potential to limit fundamental common law rights, is not exercised in an abusive manner. </p>
<p>Newman’s argument therefore failed.</p>
<h2>What happens now?</h2>
<p>The failure of Newman’s arguments means there are really only two practical courses left. First, there could be a separate hearing of the constitutional points. They are that (a) there is an implied constitutional right of a citizen to enter Australia; and (b) there was no constitutional power to enact section 477. </p>
<p>Second, there could be an appeal from Justice Thawley’s judgment on the first part of the case to the Full Federal Court. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-not-surprising-indian-australians-feel-singled-out-they-have-long-been-subjected-to-racism-160179">It's not surprising Indian-Australians feel singled out. They have long been subjected to racism</a>
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<p>The difficulty, however, is timing. If the minister’s determination ceases to operate on May 15, as planned, then there would be no “matter” to be determined by a court, leaving the issue moot. </p>
<p>So it is unlikely, at this stage, that the proceedings will continue, unless the travel ban affecting citizens is extended, or a new travel ban is implemented.</p><img src="https://counter.theconversation.com/content/160624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>There could still be another challenge on constitutional grounds, but there may not be time before the ban ends anyway.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1570572021-03-17T18:56:46Z2021-03-17T18:56:46ZFederal Court rules insurance companies have to behave decently. That’s a big deal<figure><img src="https://images.theconversation.com/files/389711/original/file-20210315-21-jspegn.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2400%2C1695&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>It almost reads like a John Grisham novel. </p>
<p>Self-employed woman contracts cancer. Claims under her income-protection insurance policy. Insurer cancels the policy after investigation reveals omission of unrelated health condition (depression) on her original application. She is accused of acting in bad faith and threatened with having to repay the money (A$24,000) already received. Her story comes to national attention. A dramatic court battle ensues. Justice is finally served.</p>
<p>Last week just such a narrative concluded in the Federal Court, when chief justice <a href="https://www.fedcourt.gov.au/about/judges/current-judges-appointment/current-judges/allsop-cj">James Allsop</a> found TAL Life, one of Australia’s biggest life insurers, had breached its duty to act with “<a href="https://asic.gov.au/about-asic/news-centre/find-a-media-release/2021-releases/21-042mr-court-finds-that-tal-life-limited-breached-its-duty-of-utmost-good-faith-royal-commission-referral/">utmost good faith</a>” by cancelling a sick woman’s income-protection policy through the questionable practice of “retrospective underwriting”. </p>
<p>The Federal Court case was initiated by the Australian Securities and Investments Commission in December 2019. This followed evidence from the banking royal commission in 2018 showing the lengths TAL went to in seeking to void insurance policies. </p>
<p>Justice Allsop ruled TAL’s actions – including not informing the claimant she was under investigation, reaching a wrong conclusion, failing to give her a chance to respond, and threatening to pursue her for money – lacked “<a href="https://www.insurancenews.com.au/life-insurance/court-rules-tal-breached-duty-of-utmost-good-faith-in-handling-ip-claim">decency and fairness</a>”.</p>
<p>However, he did not agree with the corporate regulator that TAL’s actions amounted to false or misleading conduct. Guilt on that charge would have meant a fine. </p>
<p>The ruling carries no financial penalty, apart from TAL having to keep its end of the contract. The judgment is nonetheless significant. It puts insurance companies on notice about the use of retrospective underwriting, scrutinising insurance applications only when a claim is made, and covertly trawling through applicants’ medical and financial records to find any excuse to void the policy.</p>
<h2>What is underwriting</h2>
<p>Let’s briefly recap what insurance underwriting means. </p>
<p>It is the process of assessing an applicant’s risk and pricing a life insurance policy (which includes a policy such as income protection) accordingly. </p>
<p>If you have, for example, a history of hypertension, you have a higher risk of stroke. This is something an underwriter wants to know, to accurately assess your actuarial risk. They may increase the premium you pay, or exclude from the policy claims for strokes, or decline cover altogether.</p>
<p>Insurance application forms typically require you to declare “yes” or “no” to a list of the most common medical conditions or circumstances, with an open-ended question about other “relevant” conditions. </p>
<p>Usually the underwriting process is straightforward. Insurers accept declarations in good faith, and approve applications (and collect the premiums) as quickly as possible. </p>
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<img alt="Rubber-stamping documents does not happen literally, of course, but it is a powerful visual metaphor for the process of approving an application with insufficient due diligence." src="https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390048/original/file-20210317-23-l72c5s.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">
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<span class="caption">Rubber-stamping documents does not happen literally, of course, but it is a powerful visual metaphor for the process of approving an application with insufficient due diligence.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<h2>Retrospective underwriting</h2>
<p>But that changes when you make a claim.</p>
<p>Then insurers are unwilling to accept anything in good faith. They typically require you to authorise access to your financial and medical records, including records you may not have seen – such as your doctor’s notes. </p>
<p>A doctor might note observations about a patient seeming depressed. It’s not an explicit diagnosis. But an insurer may retrospectively consider this undisclosed evidence of “depression”.</p>
<p>Finding “relevant” information not declared in the original application gives the insurer an excuse to “retrospectively underwrite” the policy – determining what policy it would have offered (if at all) had that information been known. </p>
<p>Retrospective underwriting usually favours insurers as it is done with the knowledge of an existing claim. The federal <a href="https://www.legislation.gov.au/Details/C2019C00115">Insurance Contracts Act</a> allows insurers, under certain conditions, to cancel policies within three years of inception due to relevant non-disclosures or misrepresentations in applications.</p>
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Read more:
<a href="https://theconversation.com/very-risky-business-the-pros-and-cons-of-insurance-companies-embracing-artificial-intelligence-106536">Very risky business: the pros and cons of insurance companies embracing artificial intelligence</a>
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<h2>TAL at the royal commission</h2>
<p>Appearing before the banking royal commission in September 2018, TAL senior executive Loraine van Eeden <a href="https://financialservices.royalcommission.gov.au/public-hearings/Documents/transcripts-2018/transcript-14-september-2018.pdf">agreed</a> the company’s approach had lacked empathy. She acknowledged it was wrong to not tell the claimant she was being investigated, and wrong to not give her a chance to respond to the reason for the retrospective underwriting.</p>
<p>TAL had approved the woman’s income protection insurance in October 2013, asking detailed medical questions, including those of mental health. In mid-December she was diagnosed with cervical cancer. She lodged her policy claim on January 3 2014.</p>
<p>TAL accepted the claim on 7 January and made monthly payments until May. In June it cancelled the policy, on the basis her medical records revealed undisclosed mental health issues it said would have changed the initial underwriting. Perhaps, one suspects, not offer cover. TAL did not suggest she was dishonest.</p>
<h2>Practical implications</h2>
<p>In our experiences it is not unusual for insurers to use a claims process to retrospectively underwrite. Often claimants only become aware of this when they’re told there is information giving the insurer the right to cancel the policy. </p>
<p>Under the life insurance industry’s voluntary <a href="https://fsc.org.au/resources/1695-life-insurance-code-of-practice-with-appendix">Code of Practice</a>, insurers are meant to explain why they’re requesting information relevant to a claim.</p>
<p>The corporate regulator and consumer advocates have long held <a href="https://financialservices.royalcommission.gov.au/Submissions/Documents/Round-6-written-submissions/POL.9006.0001.0192.pdf">concerns</a> the three-year window to cancel policies encourages insurers to go on “fishing expeditions”.</p>
<h2>No more spying</h2>
<p>Since January 1 the rules giving insurers three years to cancel a policy have been tightened – one of the <a href="https://www.theguardian.com/australia-news/2021/jan/19/banking-royal-commission-most-recommendations-have-been-abandoned-or-delayed">27 of 76 recommendations</a> from the banking royal commission the federal government has implemented. </p>
<p>Insurers now may only “avoid a contract of life insurance on the basis of non-disclosure or misrepresentation if it can show that it would not have entered into a contract on any terms”.</p>
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Read more:
<a href="https://theconversation.com/ideology-triumphs-over-evidence-morrison-government-drops-the-ball-on-banking-reform-153529">Ideology triumphs over evidence: Morrison government drops the ball on banking reform</a>
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<p>The Federal Court ruling puts life insurers on further notice. It clarifies what the “duty of utmost good faith” required by the Insurance Contracts Act means.</p>
<p>They don’t need to behave dishonestly to breach that duty. Not meeting community expectations of decency and fairness is enough. That doesn’t leave much room for lesser signs of excessive suspicion, let alone “deep-dive” operations to dig for dirt. That’s all but been declared illegal.</p><img src="https://counter.theconversation.com/content/157057/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Benjamin Koh was the chief medical officer and whistleblower at Comminsure, the life insurance division of the Commonwealth Bank. He has contributed to the parliamentary inquiries into whistle-blowing protections and life insurance. He has also assisted financial advisors and insureds in claims dispute resolutions and is currently on a short paralegal contract with Maurice Blackburn Lawyers, but not in its insurance division.
This article was cowritten by Liam Hanlon who is a lawyer working in Maurice Blackburn’s superannuation and insurance practice. He acts on behalf of claimants in total and permanent disablement, income protection and general insurance claims and litigation, as well as on behalf of consumers in financial advice disputes.
Liam Hanlon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article beyond his role at Maurice Blackburn Lawyers. He is a member of the Australian Lawyers Alliance.
</span></em></p>The Federal Court has all but made it illegal for insurance companies to dig for dirt and exploit the practice of retrospective underwriting.Benjamin Koh, Honorary Associate, Faculty of Business, School of Management, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1458302020-09-10T05:01:06Z2020-09-10T05:01:06ZThese Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference<figure><img src="https://images.theconversation.com/files/357355/original/file-20200910-18-1yz4aev.JPG?ixlib=rb-1.1.0&rect=56%2C74%2C6174%2C4072&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Five of the eight young plaintiffs. From left: Ava Princi, Izzy Raj-Seppings, Ambrose Hayes, Veronica Hester, Laura Kirwan</span> <span class="attribution"><span class="source">Equity Generation Lawyers</span></span></figcaption></figure><p>On Tuesday, <a href="https://equitygenerationlawyers.com/cases/sharma-v-minister-for-environment/#students">eight young Australians aged 13-17</a> filed a class action seeking an injunction to prevent federal Environment Minister Sussan Ley approving a new coal project expansion. </p>
<p>They are bringing their case to the Federal Court. They argue if Whitehaven’s <a href="https://whitehavencoal.com.au/our-business/our-assets/vickery-extension-project/">Vickery coal mine expansion</a> in New South Wales is approved, it will contribute to climate change which endangers their future. </p>
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Read more:
<a href="https://theconversation.com/a-wake-up-call-why-this-student-is-suing-the-government-over-the-financial-risks-of-climate-change-143359">'A wake-up call': why this student is suing the government over the financial risks of climate change</a>
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<p>Saying the environment minister owes the young plaintiffs a duty of care is a novel approach. In their view, signing off on a new coal project will breach that duty. Such an approach to a climate change case has not been tested before in Australia, and would chart new territory if successful. </p>
<p>Although a legal victory would appear difficult on these grounds, the implications of this case are already significant. They show young people, determined to fight for action on climate, will continue to find new ways to hold powerful people to account. </p>
<h2>What is the case about?</h2>
<p>The case concerns a proposal to construct an open-cut coal mine, about 25 kilometres north of the NSW town of Gunnedah. It’s an extension project, meaning it will expand a mine that has already been approved, increasing its coal production <a href="https://www.abc.net.au/news/2020-08-12/ipc-approves-whitehaven-vickery-coal-mine-expansion/12548826">by about 25%</a>, and emissions by <a href="https://www.theguardian.com/australia-news/2020/aug/12/whitehaven-vickery-mine-expansion-to-extract-250-more-coal-approved-by-nsw">100 million tonnes</a> of greenhouse gases over the life of the project. The coal would be exported.</p>
<p>Like many mining proposals, this one has been divisive. Farmers <a href="https://www.abc.net.au/news/2020-08-12/ipc-approves-whitehaven-vickery-coal-mine-expansion/12548826">worry about competing for water</a>, and the local community has <a href="https://www.smh.com.au/national/nsw/whitehaven-wins-nod-for-plan-to-double-vickery-s-annual-coal-output-20200812-p55kw6.html">expressed concern</a> over the environmental record of the coal company. </p>
<p>Yet in August, the NSW Independent Planning Commission <a href="https://majorprojects.planningportal.nsw.gov.au/prweb/PRRestService/mp/01/getContent?AttachRef=SSD-7480%2120200812T053800.936%20GMT">approved the proposal</a>, finding the expansion is in the public interest, given the forecast jobs and revenue. It has not yet received federal approval.</p>
<h2>What are the teenagers arguing?</h2>
<p>The young plaintiffs are not bringing their case under environmental law, which would be the traditional way to launch a legal challenge objecting to a coal mine. </p>
<p>Environmental law invites government decision-makers to balance competing concerns — such as economic benefits versus environmental impact — with no clear stipulation as to how much weight to give each relevant factor. </p>
<p>There is limited recourse to argue a decision is wrong because the positive and negative impacts were not given particular priority by a minister. This means decision-making on major projects is largely within the political realm.</p>
<p>Instead, the plaintiffs are arguing the environment minister shouldn’t approve the coal proposal because doing so would breach a duty of care owed by the minister to protect them from the harmful impacts of climate change. This includes more frequent extreme weather events, and destruction of the natural systems that support human life. </p>
<p>The case has parallels with a landmark <a href="https://www.urgenda.nl/en/themas/climate-case/">Dutch case</a>, where it was successfully argued in 2019 that the Dutch Government breached its duty of care to its citizens through inadequate action on climate change.</p>
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Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
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<p>For the Australian case to succeed, the Court will first need to consider whether a duty of care exists in Australian law. There is no statutory duty (under laws created by the parliament), so the Court would need to “find” the duty as existing in common law.</p>
<p>Then, the plaintiffs would need to establish that the duty would be breached by the environment minister signing off on the coal project. </p>
<h2>Will it succeed?</h2>
<p>Establishing both these things is likely to be very difficult in our legal context. From past cases, we know Australian courts have been reluctant to find a causal link between climate change and individual projects, even large mines. However, <a href="https://www.jade.io/article/633699">this link</a> was found in a NSW case last year.</p>
<p>The court is likely to look closely at the particular relationship between the minister and the vulnerable young people, who will be strongly impacted by climate change but have no voting rights. It will consider whether they represent a particular class of individuals, in relation to which the minister has a responsibility. </p>
<p>One of the plaintiffs’ lawyers recently <a href="https://www.abc.net.au/news/2020-09-09/class-action-against-environment-minister-coal-mine-approval/12640596">highlighted</a> a case that potentially paves the way to support this idea. In 2016, the Federal Court found the immigration minister Peter Dutton <a href="https://kaldorcentre.unsw.edu.au/publication/plaintiff-s992016-v-minister-immigration-and-border-protection-2016-fca-483">owed a duty</a> of care to a vulnerable refugee with a history of trauma, who was detained on Nauru. </p>
<p>One thing in the current case’s favour is that, similar to the Dutch case, the plaintiffs are not seeking monetary compensation. If they were, the difficulty for the courts to determine what future obligation the government might have to pay out young people would, almost undoubtedly, prohibit success. </p>
<p>What’s also interesting about this case, unlike the Dutch case or the famous Juliana case that was recently <a href="https://www.nytimes.com/2020/01/17/climate/juliana-climate-case.html">quashed in the US</a>, is that it’s not asking the government for broad-scale policy action on climate change. It’s only concerned with one coal mine approval. This is a more straightforward remedy which a court could be more willing to grant. </p>
<h2>Beating the odds</h2>
<p>If the case successfully established a duty and that it was breached, this would open up the possibility future coal approval decisions would also breach the duty — somewhat of a Pandora’s box. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1303651849229103109"}"></div></p>
<p>Although we will have to wait and see what the Court says, the suit will draw attention to the government’s climate policies, whether or not it succeeds.</p>
<p>If the case succeeds, it might compel the government to stop approving any coal mines that would significantly contribute to climate change. If it doesn’t, it will remind us that it’s up to the government to respond to the threats climate change poses, rather than the courts. </p>
<p>Either way, the teenagers in this case are part of a growing number of people willing to find creative avenues to pursue action, even if it means taking a long shot. And beating the odds is exactly how the law tends to evolve.</p>
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<strong>
Read more:
<a href="https://theconversation.com/be-worried-when-fossil-fuel-lobbyists-support-current-environmental-laws-138526">Be worried when fossil fuel lobbyists support current environmental laws</a>
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<img src="https://counter.theconversation.com/content/145830/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Schuijers 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>These teens are finding creative avenues to pursue action, even if it means taking a long shot. And beating the odds is exactly how the law tends to evolve.Laura Schuijers, Research Fellow in Environmental Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1450982020-09-02T05:01:27Z2020-09-02T05:01:27ZHow Clive Palmer could challenge the act designed to stop him getting $30 billion<figure><img src="https://images.theconversation.com/files/355982/original/file-20200902-18-2k7n52.jpg?ixlib=rb-1.1.0&rect=21%2C25%2C2842%2C1850&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dan Peled/AAP</span></span></figcaption></figure><p>The West Australian government recently took the extraordinary step of <a href="https://theconversation.com/the-wa-government-legislated-itself-a-win-in-its-dispute-with-clive-palmer-and-put-itself-above-the-law-144360">passing legislation</a> to try to stop mining magnate Clive Palmer from collecting about $30 billion in damages from the state. </p>
<p>As Premier Mark McGowan argues, such a hefty bill <a href="https://www.watoday.com.au/politics/western-australia/liberals-line-up-to-blast-mcgowan-s-claim-palmer-lawsuit-would-close-hospitals-schools-20200814-p55lqv.html">risks bankrupting WA</a>. </p>
<p>While the so-called “<a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43095.htm/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Amendment%20Act%202020%20-%20%5B00-00-00%5D.html?OpenElement">Mineralogy Act</a>” passed state parliament in <a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">just two days</a>, it is far from straightforward. </p>
<p>It raises a host of questions that are likely to be tested in courts in the months - and possibly years - ahead. </p>
<h2>What is this dispute about?</h2>
<p>Palmer is <a href="https://www.smh.com.au/national/what-are-the-disputes-involving-clive-palmer-and-the-wa-government-about-20200819-p55ndk.html">no stranger to litigation</a>. Recently, he has also been fighting the WA government over <a href="https://theconversation.com/federal-court-finds-border-closures-safest-way-to-protect-public-health-in-clive-palmer-case-145038">COVID border closures</a>. </p>
<p>But this particular dispute dates back to 2012 and concerns an iron ore project in the Pilbara. </p>
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Read more:
<a href="https://theconversation.com/federal-court-finds-border-closures-safest-way-to-protect-public-health-in-clive-palmer-case-145038">Federal Court finds border closures safest way to protect public health in Clive Palmer case</a>
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<p>Palmer has argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government, under former premier Colin Barnett. He is reportedly seeking about <a href="https://www.abc.net.au/news/2020-08-18/clive-palmer-seeking-tens-of-billions-documents-reveal/12570338">$30 billion</a> in damages.</p>
<h2>The Mineralogy Act</h2>
<p>In mid-August, the state government <a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">passed the Mineralogy Act</a> to terminate the damages claims against it.</p>
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<img alt="WA Premier Mark McGowan" src="https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=482&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=482&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=482&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">The McGowan government says the legislation is needed to protect the ‘interests’ of WA.</span>
<span class="attribution"><span class="source">Richard Wainwright/AAP</span></span>
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<p>Before this, Palmer and his companies, including Mineralogy, had been pursuing these claims through arbitration - a dispute resolution process that happens outside the courts. This arbitration was about whether the WA government properly dealt with proposals Palmer’s companies made under a <a href="http://classic.austlii.edu.au/au/legis/wa/consol_act/iopplaa2002502/sch1.html">2002 agreement</a>. </p>
<p>Last week, after the act passed, Palmer declared he would sue McGowan and Attorney-General John Quigley for “<a href="https://www.abc.net.au/news/2020-08-26/clive-palmer-suing-mark-mcgowan-john-quigley-in-new-legal-action/12596538">contempt of the High Court of Australia</a>”.</p>
<p>This is likely to be one of many salvos in a protracted legal battle.</p>
<h2>Does Palmer have a claim for contempt of court?</h2>
<p>Contempt of court means acts that interfere with or undermine the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/3.html?context=1;query=witham%20v%20holloway;mask_path=">authority, performance or dignity</a> of the courts.</p>
<p>The Mineralogy Act seeks to terminate the arbitration for the reported $30 billion claims. </p>
<p>It also invalidates existing arbitral awards, which are decisions determining parties’ rights and liabilities. Given that arbitrations are not court proceedings, these aspects of the act do not establish contempt of court.</p>
<p>However, where a party does not comply with an arbitration award, the award can be registered with the courts and then enforced as if it were a court judgment. </p>
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<img alt="Dumper truck in the Pilbara." src="https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.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">
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<span class="caption">This dispute is over an iron ore project in the Pilbara.</span>
<span class="attribution"><span class="source">Kim Christian/AAP</span></span>
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<p>Before the act was passed, Palmer had registered <a href="https://www.theguardian.com/australia-news/2020/aug/13/clive-palmer-says-queensland-court-action-makes-wa-move-to-avoid-damages-unconstitutional">two arbitration awards</a> in the Queensland Supreme Court. The act seeks to remove the basis for these claims. There is <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicSC/1995/510.html?context=1;query=Dagi;mask_path=">precedent</a> that this may constitute contempt of the Queensland court (although contrary to Palmer’s assertions, not the High Court). </p>
<p>However, even if Palmer establishes contempt of the Queensland court, that would not invalidate the Mineralogy Act. Any penalty imposed by the court would also be modest in comparison to the $30 billion damages claim.</p>
<h2>Can the WA parliament pass a law that takes away rights without compensation?</h2>
<p>Apart from the contempt issue, Palmer may argue the WA parliament cannot pass a law that takes away individual rights without compensation. </p>
<p>In this regard, state laws that take away rights are unusual, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/7.html?context=1;query=durham%20holdings;mask_path=">but not new</a>. </p>
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Read more:
<a href="https://theconversation.com/the-wa-government-legislated-itself-a-win-in-its-dispute-with-clive-palmer-and-put-itself-above-the-law-144360">The WA government legislated itself a win in its dispute with Clive Palmer — and put itself above the law</a>
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<p>The <a href="https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2015/hca-13-2015-04-15.pdf">High Court</a> and <a href="https://www.queenslandjudgments.com.au/case/id/501587">Queensland</a> and <a href="https://insidestory.org.au/the-ghost-of-lang-hancock/">WA supreme courts</a> have previously treated state laws that remove rights of particular persons without just compensation as valid. </p>
<p>While the WA parliament has not previously amended a state agreement with a mining company without consent, this was found to be valid in <a href="https://www.queenslandjudgments.com.au/case/id/501587">Queensland</a>. This approach is consistent with the principle that the present parliament can generally amend existing laws.</p>
<p>As a political, rather than legal matter, politicians have found that laws targeting mining rights <a href="https://www.theguardian.com/australia-news/2017/mar/14/wa-nationals-leader-brendon-grylls-loses-seat-to-labor-after-attack-from-mining-lobby">can be hazardous</a>. </p>
<p>Whether public opinion will ultimately support the Mineralogy Act remains to be seen. But the <a href="https://www.watoday.com.au/national/western-australia/mark-mcgowan-for-pm-wa-punters-might-want-it-but-does-labor-20200805-p55ix6.html">current popularity</a> of the WA government over its handling of COVID-19 and the <a href="https://www.watoday.com.au/politics/western-australia/wa-premier-s-populism-makes-palmer-a-legal-pariah-but-why-20200812-p55l51.html">potential popularity</a> of “saving” the state’s finances will undoubtedly influence perspectives. </p>
<h2>Are parts of the Mineralogy Act unconstitutional?</h2>
<p>Palmer may also argue parts of the Mineralogy Act are unconstitutional.</p>
<p>Parliaments can pass laws about matters involved in ongoing legal disputes. They can even target particular cases or parties. But based on Chapter III of the <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/%7E/link.aspx?_id=1A4B10F0E0C645D68D16DC6953E7CE52&_z=z">Constitution</a>, they can’t compromise the court’s integrity by telling a court how to decide. This constitutional line is often tricky to draw. </p>
<figure class="align-center ">
<img alt="Clive Palmer at a press conference on the Gold Coast." src="https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.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">
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<span class="caption">Clive Palmer says he will sue the WA government over the Mineralogy Act.</span>
<span class="attribution"><span class="source">Dan Paled/AAP</span></span>
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<p>The act does not entirely remove the court’s power to examine the legality of government actions. But it does try to stop courts from giving remedies that are unfavourable to WA.</p>
<p>So, it doesn’t quite tell courts how to decide, but it does restrict what they can do, which is getting into uncertain constitutional territory. </p>
<p>The WA government <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">has described</a> the Mineralogy Act as “unprecedented,” containing a number of measures that are “not usual”. </p>
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<p>but Mineralogy and Mr Palmer are not normal and these measures are needed to best protect the interests of the state and the community.</p>
</blockquote>
<p>However, even necessary laws must be constitutional.</p>
<h2>Does Palmer really stand to gain $30 billion in damages anyway?</h2>
<p>Palmer has said the widely reported $30 billion price tag is “<a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">bullshit</a>”. But Quigley <a href="https://www.abc.net.au/news/2020-08-18/clive-palmer-seeking-tens-of-billions-documents-reveal/12570338">tabled details </a>in parliament last month showing the total damages sought by Palmer and his companies in relation to the iron ore project was at least $27.75 billion.</p>
<p>Palmer’s <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">damages claims</a> focus on the loss of opportunities to develop and sell the project to Chinese state-owned enterprises. </p>
<p>But core principles for assessing damages for breach of contract - which in this case is a <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43096.htm/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Act%202002%20-%20%5B00-c0-01%5D.html?OpenElement">2002 agreement</a> between Mineralogy and the state government - may stand in the way.</p>
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<strong>
Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
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<p>The state’s improper delay in approving the project must have caused the loss - but it is <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">not clear</a> this is the case. There may have been other reasons for the losses, including the <a href="https://www.ft.com/content/b33b2fc8-cd8d-11e4-9144-00144feab7de">post-GFC mining slump</a>.</p>
<p>Also, the value of what Palmer has lost needs to reflect the likelihood the project would have occurred without the delay, and so is likely to be much lower than $30 billion. </p>
<p>Palmer must also have taken reasonable steps to minimise his loss. This might mean following the standard industry practice of <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">amending the development</a> proposals to meet state government conditions, noting the Mineralogy Act still leaves this possibility open.</p>
<h2>What happens now?</h2>
<p>Palmer has a potential claim that the passage of the Mineralogy Act constitutes contempt of the Queensland Supreme Court. It is also possible parts of the act, such as those that restrict the remedies available to courts, are unconstitutional. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/mineral-wealth-clive-palmer-and-the-corruption-of-australian-politics-117248">Mineral wealth, Clive Palmer, and the corruption of Australian politics</a>
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<p>However, even if Palmer succeeds in these claims, it is not clear how much he will actually gain financially, or if his claim is really worth $30 billion.</p>
<p>The Mineralogy Act is so unusual, it would be foolish to predict outcomes to these complex legal questions. Over the coming months, we will start seeing answers to these questions as Palmer brings lawsuits and proceedings work their way through the courts. </p>
<p>The answers will provide profound insights into the decision-making powers of states.</p><img src="https://counter.theconversation.com/content/145098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson has previously received funding from the International Mining for Development Centre (IM4DC).</span></em></p><p class="fine-print"><em><span>Ian Murray has previously received funding from Rio Tinto, BHP Billiton and the Minerals Council of Australia for research relating to Indigenous benefits management structures.
Ian is also on a working group with the Minerals Council of Australia and the National Native Title Council focussed on Indigenous economic development. </span></em></p><p class="fine-print"><em><span>John Southalan has previously worked with a land council, assisting clients in proceedings against Mineralogy companies. Nothing from that work has informed, nor is relied on, in this article.</span></em></p><p class="fine-print"><em><span>Dr Natalie Brown has received funding from National Centre for Groundwater Research and Training, Centre for Mining Energy and Natural Resources Law (UWA) for PhD research. </span></em></p><p class="fine-print"><em><span>Sarah Murray has received funding from the Australian Institute of Criminology and the WA Public Purposes Trust.</span></em></p><p class="fine-print"><em><span>Julie Falck 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 legislation designed to stop Palmer claiming huge damages against WA raises a host of questions.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaIan Murray, Associate Professor, The University of Western AustraliaJohn Southalan, Global Faculty (Centre of Energy, Petroleum and Mineral Law & Policy), University of DundeeJulie Falck, Lecturer, The University of Western AustraliaNatalie Brown, Lecturer in Administrative and Property Law; PhD in WA iron ore State agreements, The University of Western AustraliaSarah Murray, Professor specialising in public law and less-adversarial justice, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1450382020-08-25T07:01:54Z2020-08-25T07:01:54ZFederal Court finds border closures safest way to protect public health in Clive Palmer case<figure><img src="https://images.theconversation.com/files/354527/original/file-20200825-23-9ba6k9.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/Dave Hunt</span></span></figcaption></figure><p>Clive Palmer’s legal challenge to the Western Australian border closures seems less likely to succeed after <a href="https://www.abc.net.au/news/2020-08-25/wa-loses-bid-for-fresh-trial-in-clive-palmer-hard-border-battle/12592524">findings made by the Federal Court</a>. </p>
<p>Palmer started his case <a href="https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/">in the High Court</a>, arguing the Western Australian border closure breached <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s92.html">section 92 of the Australian Constitution</a>, which says trade and commerce among the states and the movement of people across state borders shall be “absolutely free”.</p>
<p>But it’s not as simple as that. </p>
<p>The High Court has previously recognised that laws that are reasonably necessary to achieve another legitimate end, such as protecting public health, may impede the movement of people or goods across state borders. Most people will be familiar, for example, with having to dispose of fruit at state borders to stop the spread of fruit flies.</p>
<p>Stopping the spread of COVID-19 is certainly a legitimate end, so the question is whether a border closure is reasonably necessary to achieve this purpose.</p>
<p>Because the parties in Palmer’s case could not agree on the relevant factual matters, the Federal Court was given the task of hearing the scientific and governmental evidence and making findings on the facts. The matter will then return to the High Court, possibly in October, so it can decide the constitutional issue. </p>
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Read more:
<a href="https://theconversation.com/states-are-shutting-their-borders-to-stop-coronavirus-is-that-actually-allowed-134354">States are shutting their borders to stop coronavirus. Is that actually allowed?</a>
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<p>Justice Darryl Rangiah in the Federal Court has now handed down his decisions on the facts and on an application to have the matter re-heard. He <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1220">rejected the argument</a> that the Commonwealth’s <a href="https://www.abc.net.au/news/2020-08-02/government-removes-support-for-clive-palmers-push-to-open-border/12515948">withdrawal from the case</a> meant he had to start again. As Palmer had said he would adopt the Commonwealth’s evidence and call the Commonwealth’s witnesses in any new hearing, Justice Rangiah thought this would be pointless. He proceeded on the basis of the evidence as presented by all parties and interveners, including the Commonwealth.</p>
<p>Despite favouring Palmer in rejecting the argument for a re-hearing, Justice Rangiah’s <a href="https://www.judgments.fedcourt.gov.au/__data/assets/pdf_file/0006/591513/J201221.pdf">separate judgment</a> on the risks and probabilities of the spread of COVID-19 is a cautious one, which appears to favour the Western Australian position. </p>
<p>He accepted that the state’s border restrictions have been effective in reducing the probability of COVID-19 being imported into Western Australia from interstate. He ranked the risks of persons from different states importing COVID-19 into Western Australia if the border restrictions were partially or completely removed. He considered those risks were high for people from Victoria, moderate for those from New South Wales, low for visitors from South Australia, the ACT and the Northern Territory, very low for Tasmanians and uncertain for people from Queensland, given recent outbreaks. But, overall, he ranked the risk of the spread of COVID-19 in Western Australia as “high” if the state’s border restrictions were completely removed. </p>
<p>Critically, Justice Rangiah concluded that replacing border restrictions with mandatory hotel quarantining was not practical because Western Australia could not safely manage such numbers in hotel quarantine. He also thought other public hygiene measures such as mandatory face masks and testing would be less effective than border restrictions in preventing COVID-19 from being imported into Western Australia.</p>
<p>He was critical of the “hot spot” approach used by Queensland and the Northern Territory, finding it was also less effective than border closures. He concluded that due to the uncertainties involved, including predicting human behaviour, and taking into account the potentially serious consequences, a “precautionary approach” should be taken to decision-making about protecting the community. </p>
<p>Where does this leave matters?</p>
<p>When the High Court considers the constitutional issue, it will take broader matters into account. Justice Rangiah confined himself to risks to public health. He expressly did not take into account broader economic, social or other matters. </p>
<p>The High Court is not so constrained and has previously taken into account economic matters when considering the application of section 92. </p>
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<strong>
Read more:
<a href="https://theconversation.com/wa-border-challenge-why-states-not-courts-need-to-make-the-hard-calls-during-health-emergencies-143541">WA border challenge: why states, not courts, need to make the hard calls during health emergencies</a>
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<p>Another wild card factor is that the factual situation keeps changing. By the time the High Court hears this case, the situation is likely to have changed again. The risk levels, as assessed by Justice Rangiah, may no longer be applicable. </p>
<p>High Court Chief Justice Susan Kiefel has previously raised a concern that the findings on the facts may be “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2020/108.html">stale</a>” by the time the court gets to decide the matter.</p>
<p>But the important aspect of the Federal Court’s ruling is the assessment about whether other approaches could equally protect public health while still allowing the movement of people across state borders. Once you remove hotel quarantine and hot spot exclusions as effective alternatives, this really only leaves the “travel bubble” idea of permitting entry of people from those states or territories where the risk of transmission of COVID-19 is low or very low.</p>
<p>The assessment of such risks is a moving feast. Not even Justice Rangiah, who is based in Queensland, could give an assessment of Queensland’s risk status at the moment, labelling it as “uncertain”. This makes it very difficult to apply such a risk assessment as a basis of constitutionality.</p>
<p>Of course, all of this is a matter for the High Court, taking into account a range of additional factors. But the Federal Court’s judgment is very helpful in providing a factual base from which to proceed.</p><img src="https://counter.theconversation.com/content/145038/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has previously received funding from the Australian Research Council and sometimes does consultancy work for governments and inter-governmental bodies.</span></em></p>With Justice Rangiah finding the border closures are safer in stopping the spread of COVID-19 than alternatives, Palmer will now take his challenge to the High Court on constitutional grounds.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1387272020-05-21T01:42:50Z2020-05-21T01:42:50ZWhy it is “reasonable and necessary” for the NDIS to support people’s sex lives<figure><img src="https://images.theconversation.com/files/336269/original/file-20200520-152315-erjfk4.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6484%2C4339&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>One major theme of COVID-19 <a href="https://www.washingtonpost.com/lifestyle/2020/04/16/sex-touch-quarantine-lockdown-social-distance-coronavirus/?arc404=true">media reporting </a>has been stories of individuals craving physical contact and struggling with loneliness. </p>
<p>But for some people with disability, this isn’t just the byproduct of a pandemic, it’s their everyday existence. </p>
<p>A recent <a href="https://www.theguardian.com/australia-news/2020/may/12/ndis-funds-pay-sex-workers-court-rules">Federal Court ruling</a> has given hope to National Disability Insurance Scheme (NDIS) participants that they might be able to use the scheme to access sexual support services.</p>
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Read more:
<a href="https://theconversation.com/miss-hugs-touch-forms-bonds-and-boosts-immune-systems-heres-how-to-cope-without-it-during-coronavirus-137612">Miss hugs? Touch forms bonds and boosts immune systems. Here’s how to cope without it during coronavirus</a>
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<p>But the federal government - which has been fighting this push - suggests it may keep trying to stop public funds being used in this way. </p>
<p>This is a worrying development for Australians with serious disabilities, who also have the right to a sex life. </p>
<h2>How did we get here?</h2>
<p>Last week, the <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0079">Federal Court ruled</a> the use of a specially trained sex therapist was a “reasonable and necessary” support to be funded under the NDIS. </p>
<p>The applicant in the case was a woman in her 40s who lives with multiple sclerosis and other health conditions, which means she cannot have sexual release without help. </p>
<p>This decision follows the woman’s lengthy battle for sexual support since she was accepted as an NDIS participant in mid-2016.</p>
<p>Last year, her case went to the <a href="https://www.theguardian.com/australia-news/2019/jul/11/woman-wins-right-to-ndis-funding-for-sexual-therapy">Administrative Appeals Tribunal (AAT)</a>, which also found in her favour, but the outcome was challenged by the National Disability Insurance Agency (NDIA). </p>
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Read more:
<a href="https://theconversation.com/finally-the-ndis-will-fund-sex-therapy-but-it-should-cover-sex-workers-too-120284">Finally, the NDIS will fund sex therapy. But it should cover sex workers too</a>
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<p>Noting there is a difference between a <a href="https://theconversation.com/finally-the-ndis-will-fund-sex-therapy-but-it-should-cover-sex-workers-too-120284">sex worker and a sex therapist</a> (who does not touch the client), the federal government has argued that funding for sexual services are not in line with community expectations. </p>
<p>Directly after the Federal Court decision, <a href="https://www.theguardian.com/australia-news/2020/may/12/ndis-funds-pay-sex-workers-court-rules">a spokesperson for NDIS Minister Stuart Robert</a> told Guardian Australia the government was considering its response, “including possible changes to legislation”. </p>
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<p>While the government respects the court’s decision, the government does not believe that use of NDIS funds to pay for the services of a sex worker is in line with community expectations. </p>
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<p>On Wednesday, an NDIA spokesperson confirmed the agency was “considering its response to the decision”.</p>
<h2>What about human rights?</h2>
<p>Australia is a signatory to the Convention on the Rights of Persons with Disabilities (CRPD). The <a href="http://www.austlii.edu.au/au/other/dfat/treaties/2008/12.html">CRPD stresses</a> that people with disability have the right to enjoy the highest standard of health without discrimination, including sexual health. It also calls on countries to eliminate discrimination when it comes to relationships. </p>
<p>Disability advocates <a href="https://pwd.org.au/landmark-decision-for-the-right-of-people-with-disability-to-have-sex/">also stress</a> that people with disability have the right to enjoy “rich and fulfilling lives equal to others in society”.</p>
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Read more:
<a href="https://theconversation.com/the-ndis-is-changing-heres-what-you-need-to-know-and-what-problems-remain-127223">The NDIS is changing. Here's what you need to know – and what problems remain</a>
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<p>The reality is people with disabilities face a wide array of different inequities across health, employment, education and other domains. And they also face significant inequities when it comes to accessing the right to a sexual life. </p>
<p>The woman at the heart of the Federal Court case reported that her disability makes it impossible to find a partner. This situation - also highlighted by the 2012 film <a href="https://www.imdb.com/title/tt1866249/">The Sessions</a> - is all too often experienced by single people with disability. </p>
<p>This case also highlights the physical limitations experienced by some people with disabilities. As the woman said in a written statement:</p>
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<p>without the assistance of a professional sex worker I am not able to achieve sexual release and am effectively denied the right to sexual health, pleasure and well-being.</p>
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<p>Other people with disabilities might seek similar services, not because they are single, but because they and their partner are <a href="https://www.abc.net.au/news/2019-07-11/ndis-to-pay-for-sex-therapist-after-landmark-ruling/11298838">unable to achieve intimacy</a> due to their impairments and require support for this. </p>
<h2>What is the NDIS here for?</h2>
<p>The threshold for accessing NDIS funding is high, as participants must have a permanent and significant disability. </p>
<p>It is estimated that about <a href="https://www.ndis.gov.au/understanding/how-ndis-works">10%</a> of Australians with disability will receive individual funding from the NDIS at full roll-out. Then, having established a person’s eligibility, the NDIS will only fund services and supports that are “reasonable and necessary”. </p>
<p>Over the relatively short life of the NDIS we have seen a <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/j.1839-4655.2016.tb00363.x">number of debates</a> concerning the precise meaning of these terms. </p>
<p>But the <a href="https://www.legislation.gov.au/Details/F2017L00209/Html/Text">legislation</a> that underpins the NDIS would seem to support access to sexual support services. </p>
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<p>People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. </p>
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<p>The NDIS was intended to be a way of providing people with disability better choice and control in terms of how they live their lives. </p>
<p>If individuals indicate that experience of sexual intimacy is an important priority for them, then this should be considered to be as significant a need for companionship and well-being as someone else’s choice to go along to the football or a concert. </p>
<h2>The community is more supportive than you may think</h2>
<p>While the federal government has repeatedly said funding sexual services via the NDIS is not consistent with “<a href="https://www.theguardian.com/australia-news/2019/jul/22/we-are-sexual-beings-why-disability-advocates-want-the-ndis-to-cover-sexual-services">community expectations</a>,” a recent survey suggests this is not the case. </p>
<p>The <a href="https://www.statedisabilityplan.vic.gov.au/application/files/5415/7526/0530/University_of_Melbourne_Community_Attitudes_Final_Report_19.06.19_-_PDF.PDF">2018 Victorian government study</a> of community attitudes found 76% of respondents agreed with the statement “people with disability have the right to sexual relationships,” with only 6.5% disagreeing. </p>
<p>Disability advocates also point to a history of <a href="https://dpoa.org.au/joint-position-statement-a-call-for-a-rights-based-framework-for-sexuality-in-the-ndis/">state-based schemes</a> (pre-NDIS) and <a href="https://www.theguardian.com/australia-news/2019/jul/22/we-are-sexual-beings-why-disability-advocates-want-the-ndis-to-cover-sexual-services">accident compensation schemes</a> supporting people with disability to have a sex life. </p>
<h2>So what’s the government’s problem?</h2>
<p>The government has also suggested that funding sexual therapy services could lead to a <a href="https://www.couriermail.com.au/news/queensland/ndis-sex-bomb-minister-scrambles-to-headoff-sex-worker-bill-crisis/news-story/e15bdb4810ebd74651bbcf9547de7fd7">financial blow out of the NDIS</a>, prompting tabloid headlines about an “NDIS sex bomb”. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/336307/original/file-20200520-152302-1qqxo8r.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">NDIS Minister Stuart Robert has argued the NDIS should not be used to fund sex therapy services.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<p>But both the AAT and the Federal Court dismissed the NDIA’s actuarial evidence here, saying it was based on a “<a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0079">worst case scenario</a>”. </p>
<p>There is also a strong argument that funding sexual support services could improve participants’ <a href="https://www.tandfonline.com/doi/abs/10.1080/09687599.2016.1139488">well-being</a>, reducing demand for other types of services and supports. </p>
<p>Countries such as <a href="https://www.theguardian.com/australia-news/2019/jul/22/we-are-sexual-beings-why-disability-advocates-want-the-ndis-to-cover-sexual-services">Denmark and the Netherlands</a>, fund access to sex workers for people with disabilities on the basis that it is a human right and leads to better overall well-being. </p>
<p>It is hard to find a solid policy argument against expanding NDIS support to help people have a sex life. And it would appear the federal government’s opposition to sexual supports under the NDIS is more political than policy-based. </p>
<p>But if the government succeeds in blocking sexual supports as part of the NDIS, this could see some Australian citizens denied the right to live a fulfilling sex life.</p><img src="https://counter.theconversation.com/content/138727/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Dickinson receives funding from ARC, NHMRC and the Victorian and Commonwealth governments. </span></em></p><p class="fine-print"><em><span>Catherine Smith 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 federal government keeps fighting attempts to allow people on the NDIS to access sexual supports. But what about their rights to have a rich and fulfilling life?Helen Dickinson, Professor, Public Service Research, UNSW SydneyCatherine Smith, Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1365042020-04-17T05:53:05Z2020-04-17T05:53:05ZExplainer: what does the Federal Court decision on the Tamil asylum-seeker family mean?<figure><img src="https://images.theconversation.com/files/328606/original/file-20200417-192715-131o4ci.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/hometobilo.com</span></span></figcaption></figure><p>The Sri Lankan family that had been living in Biloela, Queensland, before being held in detention on Christmas Island has had a <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0495">partial victory in the Federal Court</a>, with a ruling that the youngest child was not granted “procedural fairness”. </p>
<p>This is not yet a decision about whether the family will be allowed back into the community, but leaves the way open for the family to continue its bid to stay in Australia.</p>
<h2>What was the judgment?</h2>
<p>The case involves a two-year-old girl, Tharunicaa, born in Australia to Sri Lankan Tamil parents. (The couple also has a four-year-old daughter, Kopika.) The family have been in immigration detention on Christmas Island since a dramatic <a href="https://www.theguardian.com/australia-news/2019/sep/19/biloela-tamil-family-deportation-case-asylum-seekers-expected-to-learn-fate-today">injunction</a> stopped their deportation back to Sri Lanka in August 2019. </p>
<p>The <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0495">judgment</a> made today by Justice Moshinsky found Tharunicaa was not given “procedural fairness” when her request for permission to apply for a protection visa was rejected. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-biloela-tamil-family-deportation-case-highlights-the-failures-of-our-refugee-system-123685">How the Biloela Tamil family deportation case highlights the failures of our refugee system</a>
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</em>
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<p>Tharunicca’s parents and sister had previously had their claims for protection refused. Appeals to the courts about the fairness of the process in their cases were not successful. </p>
<p>Tharunicaa was born after her parents had made their visa application. Even though she was born in Australia, her parents’ arrival in Australia by boat as asylum seekers means the law designates her to be an “unauthorised maritime arrival”. Legally, this means she is not able to make an application for a protection visa unless the minister for immigration personally allows her to under <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s46a.html">section 46A of the Migration Act</a>.</p>
<p>Lawyers for Tharunicca argued the minister should allow her to make that application and have her own claims for asylum considered as there were significant concerns she and her family would face persecution if returned to Sri Lanka.</p>
<p>In exercising the section 46A power, the judge stated, the minister has to consider whether to exercise his power to “lift the bar” to allow her to apply. The question in this case was whether he had to observe procedural fairness in carrying out that power. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-morrison-and-dutton-block-their-ears-and-grit-their-teeth-over-tamil-family-122866">View from The Hill: Morrison and Dutton block their ears and grit their teeth over Tamil family</a>
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<p>Evidence provided by the Department of Home Affairs and lawyers for Tharunicaa was examined in detail. </p>
<p>The judge found the department had prepared a detailed 11-page brief on the family’s background and claims for protection, which was given directly to Immigration Minister David Coleman in May 2019. The brief provided the minister with several options for him to circle. However, this was not done. </p>
<p>The judge found the minister had made no clear final decision on that brief. However, even though no decision was made, the minister was clearly still considering whether to allow the child to make a visa application. </p>
<p>In August 2019, an officer in the Department of Home Affairs wrote to the lawyers that the request for ministerial intervention had been assessed and the request did not meet the guidelines required for a referral to the minister. The department then “finalised this request without referral”.</p>
<p>Justice Moshinky found the department had not afforded “procedural fairness” to the child, in that it had not allowed her lawyers the opportunity to provide any evidence or submissions on her behalf. </p>
<p>The judge has asked the lawyers for the government and the family to discuss and agree on what orders should be made to allow Tharunicaa’s request to be considered properly.</p>
<h2>What does it mean for the family?</h2>
<p>The decision means the case is ongoing. The injunction preventing the removal of the family will continue.</p>
<p>The judge has asked that the parties agree on orders within seven days. If they can’t agree on the orders, he has asked them to provide separate submissions to him within 14 days. He will make orders after that.</p><img src="https://counter.theconversation.com/content/136504/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>The court has found the youngest child, Tharunicca, was denied procedural fairness, which means the case against their deportation will continue.Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1323052020-02-28T13:11:06Z2020-02-28T13:11:06ZWhy federal judges with life tenure don’t need to fear political attacks from Trump or anyone else<figure><img src="https://images.theconversation.com/files/317624/original/file-20200227-24676-wp0pn8.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump, left, and federal Judge Ketanji Brown Jackson, right.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Impeachment/623288fafae54215aa57946336472f14/30/0 and https://commons.wikimedia.org/wiki/File:Ketanji_Brown_Jackson_(robe_photo).jpg">Trump, AP/Steve Helber and Jackson, Wikipedia</a></span></figcaption></figure><p><em>Editor’s note: President Donald Trump has mounted <a href="https://www.nytimes.com/2020/02/15/us/politics/trump-barr-justice-department.html">attacks on the Justice Department</a> and its various branches, <a href="https://www.nytimes.com/2020/02/14/us/politics/trump-william-barr.html">on prosecutions he’s interested in</a> and <a href="https://thehill.com/homenews/administration/482694-trump-swipes-at-resigned-prosecutors-judge-in-roger-stone-case">the judges</a> presiding over those cases. He’s complained that his political adversaries – Hillary Clinton and James Comey – <a href="https://www.nytimes.com/2018/11/20/us/politics/president-trump-justice-department.html">should have been prosecuted</a> and that his friends and associates, like <a href="https://www.politico.com/news/2020/02/12/trump-roger-stone-justice-department-114684">Roger Stone</a> and <a href="https://www.reuters.com/article/us-usa-trump-russia-manafort/trump-defends-ex-aide-manafort-as-jury-weighs-verdict-idUSKBN1L20Z6">Paul Manafort</a>, shouldn’t have been.</em></p>
<p><em>The president’s complaints extended to a recent harangue against a juror in the Stone case, prompting a courtroom rebuke by federal Judge <a href="https://www.politico.com/news/2020/02/25/judge-rebukes-trump-roger-stone-jury-117442">Amy Berman Jackson</a> who said, “Any attempt to invade the privacy of the jurors or to harass or intimidate them is completely antithetical to our entire system of justice.”</em></p>
<p><em>If the attacks are meant to intimidate, there’s one class of employees in the U.S. justice system who are immune to them: federal judges, who have lifetime tenure. We asked political science professor <a href="http://scholar.google.com/citations?user=Qr1q2hUAAAAJ&hl=en">Amy Steigerwalt</a> to explain the history and logic behind the lifetime appointment of federal judges.</em></p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/sV2j129LAPE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">“I thought the whole prosecution was ridiculous,” said Trump of Stone’s prosecution. “I thought it was an insult to our country.”</span></figcaption>
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<h2>1. What is life tenure for federal judges?</h2>
<p>The vast majority of United States federal judges are nominated by the president and confirmed by the Senate, as I describe in my book, “<a href="https://www.upress.virginia.edu/title/4205">Battle Over the Bench: Senators, Interest Groups and Lower Court Confirmations</a>.”</p>
<p>These judges, known as “Article III” judges for the part of the Constitution that establishes their role, “<a href="https://www.law.cornell.edu/constitution/articleiii">hold their offices during good behaviour,</a>” which in modern parlance means they serve for life. (The exceptions are federal <a href="https://www.uscourts.gov/judges-judgeships/about-federal-judges">bankruptcy and magistrate</a> judges who serve for set terms and handle a limited set of issues).</p>
<p>The result is most federal judges serve until they <a href="https://doi.org/10.1111/j.1540-6237.2009.00665.x">voluntarily retire</a>, <a href="https://www.researchgate.net/publication/228137572_Judicial_Tenure_on_the_US_Supreme_Court_1790-1868_Frustration_Resignation_and_Expiration_on_the_Bench">die</a> or, in extremely rare cases, are involuntarily removed through impeachment.</p>
<h2>2. Why do federal judges have life tenure?</h2>
<p>In England, the king appointed judges and could remove them at will, so judges had strong incentives to issue rulings that pleased the king to keep their jobs. </p>
<p>The Framers of the Constitution instead wanted an independent judiciary able to act as a buffer against an oppressive legislature or executive. As Alexander Hamilton argued in <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">Federalist 78</a>, the Framers granted federal judges life tenure to protect them from undue political influence: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”</p>
<p>Life tenure is intended to allow judges to issue rulings that go against the majority or ruling elite without fear of retribution. And these protections are necessary: Federal judges routinely rule on the most important and controversial issues of the day and consider whether state and federal laws are constitutional, raising claims of <a href="https://yalebooks.yale.edu/book/9780300032994/least-dangerous-branch">“countermajoritarian”</a> behavior by scholars and politicians alike. </p>
<p>Public criticism of judicial decisions is also nothing new: Newly inaugurated President Thomas Jefferson vehemently derided the 1803 case <a href="https://www.oyez.org/cases/1789-1850/5us137">Marbury v. Madison</a>, perhaps the most consequential Supreme Court decision, which ultimately established the power of judicial review, or the ability of courts to strike down laws as unconstitutional. Jefferson even tried to block the court from ruling on the case by canceling the court’s June <a href="https://www.fjc.gov/history/legislation/landmark-legislation-judiciary-act-1802">1802 term</a>. </p>
<p>President Barack Obama <a href="https://www.nytimes.com/2010/01/29/us/politics/29scotus.html">famously criticized the justices of the Supreme Court</a> for their ruling in <a href="https://www.supremecourt.gov/opinions/09pdf/08-205.pdf">Citizens United v. FEC</a> while they sat silently at the <a href="https://obamawhitehouse.archives.gov/the-press-office/remarks-president-state-union-address">2010 State of the Union</a>. </p>
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<figcaption><span class="caption">At his Jan 27, 2010 State of the Union address, Obama criticized a Supreme Court decision that had been issued recently.</span></figcaption>
</figure>
<p>Present Trump has more recently criticized various federal judges for their rulings in cases addressing the <a href="https://www.washingtonpost.com/news/politics/wp/2018/02/05/the-judge-trump-disparaged-as-mexican-will-preside-over-an-important-border-wall-case/">travel bans</a>, during the trials of <a href="https://www.washingtonpost.com/local/legal-issues/trump-takes-on-judge-amy-berman-jackson-ahead-of-roger-stones-sentencing/2020/02/12/753e2a6e-4db6-11ea-bf44-f5043eb3918a_story.html">people associated</a> with his administration and 2016 presidential campaign, and just recently suggested Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from any cases dealing with the <a href="https://www.nytimes.com/2020/02/25/us/politics/trump-sotomayor-ginsburg-supreme-court.html">Trump administration</a>. </p>
<p>Concerns have been raised about Trump’s comments criticizing federal judges, including by <a href="https://www.politico.com/story/2018/11/21/supreme-court-chief-justice-john-roberts-calls-out-trump-for-his-attack-on-a-judge-1011203">Chief Justice</a> John Roberts, who said there are no “Obama judges or Trump judges.”</p>
<p>Life tenure, however, means that the targets of these attacks need not fear losing their seats on the bench.</p>
<h2>3. What are the pros and cons of this system?</h2>
<p>Life tenure allows judges to make hard and potentially unpopular decisions without fear of retribution. In all of the examples mentioned above, the judges faced nothing more than public criticism. </p>
<p>Judges without life tenure, alternatively, face the possibility of losing their jobs. Many states have chosen to implement some type of electoral system to increase accountability for judges sitting on state courts. Elected state judges must therefore make their constituents happy to ensure reelection. </p>
<p><a href="https://doi.org/10.1017/S0003055413000622">Studies have found,</a> for example, that elected state judges are more likely to rule harshly in criminal cases as elections approach to stave off criticisms of being “soft on crime.” Other studies find elected state judges change their sentencing behavior to match <a href="http://mjnelson.org/papers/2014JLC.pdf">constituent preferences</a>, and that elections may lead to <a href="https://www.jstor.org/stable/24710965">increased disagreement</a> on the courts. </p>
<p>Life tenure shields federal judges, however, from being accountable for their actions. Impeachment is the only remedy, even for blatantly discriminatory or even illegal behavior. But, systems that increase judicial accountability raise concerns about what forces may be influencing a judge’s decisions, whether that is <a href="https://doi.org/10.1177/1532673X17692325">public</a> pressures, <a href="https://journals.sagepub.com/doi/abs/10.1177/1532440017697174">campaign donors</a> or <a href="https://www.jstor.org/stable/26158391">political</a> <a href="https://doi.org/10.1177/1532673x15599839">elites</a>. </p>
<p>Another potential issue with life tenure is age. <a href="https://qz.com/1632163/human-life-expectancy-keeps-increasing-but-how-far-can-it-go/">Life expectancy has increased exponentially</a> and there is no mechanism other than impeachment to remove someone involuntarily who is showing signs of impaired judgment or decline in mental cognition. </p>
<h2>4. Is this system likely to change?</h2>
<p>Probably not. While <a href="https://heinonline.org/HOL/Page?handle=hein.journals/vanlr70&div=50&g_sent=1&casa_token=&collection=journals">states have experimented</a> with a large variety of judicial selection and retention systems, efforts to reform the federal life tenure system remain largely in the arena of academic law school debates. </p>
<p>The proposed reforms generally modify life tenure around the edges, rather than doing away with it altogether. One of the most widely supported proposals concerns a <a href="https://slate.com/news-and-politics/2017/07/should-there-be-age-limits-for-federal-judges.html">mandatory retirement age</a>. Others propose <a href="https://cap-press.com/books/isbn/9781594602139/Reforming-the-Court">term lengths</a>. </p>
<p>The foremost barrier is that changing the system requires an amendment to the Constitution, which requires a constitutional amendment be proposed by a two-thirds vote of each chamber of Congress and then ratified by three-quarters of the states. In this highly polarized time, that’s unlikely to happen.</p>
<p>What is more possible are legislative attempts to make retirement more attractive to sitting judges, such as the current <a href="https://www.jstor.org/stable/10.1086/668507">“Rule of 80”</a>, established in <a href="https://www.law.cornell.edu/uscode/text/28/371">1984</a>, which encourages retirement or partial retirement while still allowing judges to draw their full pay. </p>
<p>But, overall, independence is a defining virtue of the American federal judiciary, one that has been <a href="https://doi.org/10.1177/1065912916656277">mirrored by countries</a> around the world. </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132305/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Steigerwalt does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If President Trump’s attacks on the justice system are meant to intimidate, there’s one class of employees who are immune to that: federal judges who have lifetime tenure.Amy Steigerwalt, Professor of Political Science, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1279842019-11-28T02:35:33Z2019-11-28T02:35:33ZRobodebt failed its day in court, what now?<figure><img src="https://images.theconversation.com/files/304183/original/file-20191128-176588-1rz00cz.jpg?ixlib=rb-1.1.0&rect=888%2C152%2C1777%2C1065&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government seems not to have sought independent legal advice before demanding the repayment of debts it couldn't prove were owned.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Three years after legal experts laid out their reasons why robodebt was wrong in law and wrong in maths, the government has folded its tent, conceding all points just before trial of the test case conducted in the name of 33 year old local government employee <a href="https://www.legalaid.vic.gov.au/about-us/news/it-felt-like-guilty-until-proven-innocent-new-test-case-against-centrelinks-robo-debt-system">Deanne Amato</a>. </p>
<p>Deanna Amato found out about her alleged robodebt in January when her full tax return was intercepted and taken from her, all $1709.87 of it. Centrelink said she owed a debt of $2,754 for Austudy support it said she was overpaid while studying in 2012.</p>
<p>It had sent letters to her old address.</p>
<hr>
<p>
<em>
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Read more:
<a href="https://theconversation.com/government-makes-changes-to-error-prone-robo-debt-collection-127324">Government makes changes to error-prone robo-debt collection</a>
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</em>
</p>
<hr>
<p>A week before court orders were finalised on Wednesday, a Centrelink internal email dated November 19 advised that debts would no longer be asserted on the basis of overpayments suggested by data-matched estimates of averaged fortnightly earnings, but only by overpayments calculated on the basis of actual earnings in the relevant fortnights. </p>
<p>All past debts would be “methodically” reviewed, starting with those where people had not previously made contact.</p>
<h2>Why the government caved</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=861&fit=crop&dpr=1 600w, https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=861&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=861&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1082&fit=crop&dpr=1 754w, https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1082&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/304178/original/file-20191128-176598-1wknjwi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1082&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="attribution"><a class="source" href="https://www.comcourts.gov.au/file/Federal/P/VID611/2019/3859485/event/30114114/document/1513665">Wednesday's court order</a></span>
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<p>Wednesday’s <a href="https://www.comcourts.gov.au/file/Federal/P/VID611/2019/3859485/event/30114114/document/1513665">court order</a> makes clear why the government folded.</p>
<p>It confirms that averages provide no evidence at all, and that Centrelink cannot “reverse the onus of proof” to require people to prove they do not have a debt. It must itself establish that there is a debt.</p>
<p>There are no acceptable half measures on either point, so this should mean that robodebt has ended and all 300,000 or so alleged debts collected on this basis should be refunded with interest, and perhaps also an apology for distress caused by acting unlawfully. </p>
<p>With as much as A$660 million of ill-gotten (if not all yet collected) revenue is at stake, there are indications that government is yet properly to understand what the law requires of it.</p>
<h2>It is talking as if it hasn’t understood</h2>
<p>Instead of accepting that Wednesday’s court ruling requires that any future or past debt be based on earnings in each and every fortnight, the minister, Stuart Robert, speaks only of needing “<a href="https://cdn.theconversation.com/static_files/files/799/stuartrobert_nov_19_2019.pdf?1574903141">additional proof points</a>”, of there being “<a href="https://www.theguardian.com/australia-news/2019/nov/19/robodebt-government-abandons-key-part-of-debt-recovery-scheme-in-major-overhaul">no change</a>” to the construct of the onus of proof and of this being just another “<a href="https://www.theaustralian.com.au/nation/politics/federal-court-judge-delivers-blow-to-robodebt-system/news-story/99923f5ab10e33f1b869e02c04939dbc">refinement</a>” which affects a “small cohort”.</p>
<p>He has even talked about “continuing to use income averaging as part of a range of options to ask a welfare recipient to engage with the department of human services if there is a discrepancy”.</p>
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Read more:
<a href="https://theconversation.com/robo-debt-class-action-could-deliver-justice-for-tens-of-thousands-of-australians-instead-of-mere-hundreds-123691">Robo-debt class action could deliver justice for tens of thousands of Australians instead of mere hundreds</a>
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<p>The initial script issued to Centrelink call centre staff when fielding calls from people enquiring about past debts in light of the changes brought about by the Federal court test case are also worryingly similar to “business as usual”. They simply invite people to collect payslips and other documents to “<a href="https://www.theguardian.com/australia-news/2019/nov/20/robodebt-class-action-to-go-ahead-despite-overhaul-of-centrelink-debt-recovery">prepare for a reassessment</a>,” leaving the very clear impression that is is still up to the person to disprove the debt.</p>
<h2>It acted without outside advice</h2>
<p>It appears from press reports that the attorney general has confirmed that for over three years the government failed to obtain other than <a href="https://www.theguardian.com/australia-news/2019/nov/20/robodebt-class-action-to-go-ahead-despite-overhaul-of-centrelink-debt-recovery">in-house legal advice</a> before belatedly obtaining the external advice that revealed that robodebt was the proverbial Emperor without (legal) clothes.</p>
<p>It is to be hoped that it gets it now as it works out what is required to bring debt recovery into compliance with the law. </p>
<p>There is an old legal saying that the lawyer who advises and represents themselves “has a fool for a client”. </p>
<p>Unfortunately on this occasion robodebt has not only made the government look foolish – the kind of failures of program design, basic mathematical reasoning and legal research that would leave a failed third world state feeling embarrassed – but in the course of its life has imposed untold hardship on and trauma on some hundreds of thousands of the most vulnerable members of Australia’s community.</p>
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Read more:
<a href="https://theconversation.com/danger-election-2016-delivered-us-robodebt-promises-can-have-consequences-117191">Danger! Election 2016 delivered us Robodebt. Promises can have consequences</a>
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<p>Less than six weeks ago the UN Special Rapporteur on Extreme Poverty and Human Rights (the expat Australian Philip Alston), in a report to the UN General Assembly, warned of the risk of a “<a href="https://www.ohchr.org/EN/newyork/Pages/GA74thSession.aspx">digital welfare dystopia</a>,” citing robodebt as one of the leading examples of how much human and reputational damage can be caused by bad design.</p>
<p>The <em>Amato</em> ruling exposes the flagrant breach of the rule of law at the heart of the welfare dystopia that robodebt created. </p>
<p>Government must as a matter of urgency establish an open and fully representative oversight body to ensure justice is fully and quickly delivered to its past victims and that no future debts are asserted other than in proper compliance with Centrelink’s legal obligations, now so clearly laid out for all to see.</p><img src="https://counter.theconversation.com/content/127984/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Terry Carney for nearly 40 years was a member of the Administrative Appeals Tribunal and its predecessor the Social Security Appeals Tribunal </span></em></p>The Commonwealth has conceded that its program of automatic debt collection was unlawful. It’ll probably have to pay the money back.Terry Carney, Emeritus Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1062392018-11-14T19:04:47Z2018-11-14T19:04:47ZIn defence of ASIC: there’s more to regulation than prosecution<p>An irony of the banking royal commission is that it may end up having its greatest impact on an entity that isn’t a bank. </p>
<p>The Australian Securities and Investments Commission and its shortcomings have become a major theme of the Commission. </p>
<p>Whereas the banks have already implemented a host of changes in anticipation of the Commissioner’s final report, the future of ASIC remains in flux. </p>
<p>It is mentioned in the Commission’s interim report more often than any of the banks, apart from the Commonwealth and the ANZ.</p>
<p>ASIC has also become something of a <a href="https://www.abc.net.au/news/2018-04-23/banking-royal-commission-how-asic-went-mia/9685792">whipping boy in media accounts of misconduct</a>, frequently getting more column inches than the institutions it regulates.</p>
<h2>ASIC under the microscope</h2>
<p>The irony is deepened by the fact that many of the cases examined by the Commission came to its attention as a result of ASIC’s work. </p>
<p>In his interim report the Commissioner advocates a prosecutorial approach to regulation, going as far as to say that all breaches should be prosecuted <a href="https://financialservices.royalcommission.gov.au/Pages/interim-report.aspx">unless public interest shows otherwise</a>. </p>
<p>The Commissioner seems committed to the need to <a href="https://www.afr.com/opinion/columnists/its-not-lack-of-resources-hayne-report-shows-regulator-asic-has-been-captured-20180930-h161sk">reinvent the regulator</a> as an adversarial, proactive force. </p>
<p>Throughout the Commission hearings, ASIC has been depicted as gentle and overly fond of negotiated settlements rather than wielding the stick. </p>
<p>This week a Federal Court judge took a critical stand about a negotiated settlement reached by ASIC with Westpac bank. </p>
<p>Justice Nye Perram threw out a A$35 million settlement between ASIC and Westpac over the bank’s alleged failure to properly assess whether borrowers could meet repayments.</p>
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<a href="https://theconversation.com/behind-the-judgment-why-the-federal-court-tore-up-a-35m-settlement-between-asic-and-westpac-over-lending-standards-106915">Behind the judgment. Why the Federal Court tore up a $35m settlement between ASIC and Westpac over lending standards</a>
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<p>He told the parties he could not approve the requested settlement because there was no contravention of the law shown in the proposed terms of settlement. </p>
<p>One of the consequences of Justice Perram’s action is that now ASIC may have to prove a contravention in relation to each and every loan where it says Westpac was in breach. Negotiated settlements avoid this extremely expensive and time-consuming use of ASIC’s resources.</p>
<h2>Regulation by prosecution?</h2>
<p>Before changes are implemented to sharpen ASIC’s teeth and commit more scarce public funds to expensive court proceedings, it’s worth reflecting on the realities of enforcement. </p>
<p>All regulators use a mix of negotiation and litigation. This includes the Australian Competition and Consumer Commission, which has been commended by the Commissioner. </p>
<p>In the financial year 2016-17, the ACCC initiated 24 new civil cases, <a href="https://www.accc.gov.au/media-release/nyk-convicted-of-criminal-cartel-conduct-and-fined-25-million">instigated one criminal conviction</a>, accepted 14 enforceable undertakings, and received payment for 11 infringement notices with a total value of A$115,200.</p>
<p>In the same period, ASIC initiated 112 new civil actions, <a href="https://download.asic.gov.au/media/4527819/annual-report-2016-17-published-26-october-2017-full.pdf">drove 20 criminal convictions</a>, accepted 16 enforceable undertakings, and issued 74 infringement notices with a total value of A$4.3 million. </p>
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Read more:
<a href="https://theconversation.com/uncomfortable-comparisons-why-rod-sims-broke-the-accc-record-105730">Uncomfortable comparisons. Why Rod Sims broke the ACCC record</a>
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<p>In the face of misconduct on display at the royal commission, talk of tackling the banks head-on is understandable. </p>
<p>The signs of a greater commitment to court proceedings are already apparent: the appointment of Melbourne-based lawyer Daniel Crennan as a new <a href="https://www.smh.com.au/business/banking-and-finance/asic-boss-comes-out-swinging-slams-government-for-stalled-legislation-20181019-p50an9.html">Commissioner responsible for enforcement</a>, more staff, closer relations with the Director of Public Prosecutions, and tough talk. </p>
<h2>Adversarial isn’t always best</h2>
<p>ASIC is at a crossroads. </p>
<p>Greater reliance on the courts may well be characterised by delay, smaller compensation for customers, ballooning costs and, as a result, a shrinking budget for detection and investigation. </p>
<p>Even with the then Treasurer Scott Morisson’s <a href="http://sjm.ministers.treasury.gov.au/media-release/turnbull-government-expands-asics-armoury/">A$70 million injection to boost enforcement</a>, ASIC’s total budget pales in comparison to the deep pockets of the big four banks.</p>
<p>Getting onto the front foot needn’t always mean going to court. </p>
<p>Negotiated settlements like enforceable undertakings with more penetrating terms can be just as effective as going to court, as can stronger surveillance and investigation. </p>
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Read more:
<a href="https://theconversation.com/the-problem-with-australias-banks-is-one-of-too-much-law-and-too-little-enforcement-103996">The problem with Australia's banks is one of too much law and too little enforcement</a>
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<p>In times with less frenzied scrutiny, enforcement outside courts wouldn’t be seen as a sign of weakness, but of judgement. ASIC ought to be judged on its results and left to exercise a mix of enforcement strategies under its independent powers. </p>
<p>Enforcement outside the court system does not mean capture or weakness. Lawyers at ten paces is not the only way to regulate the banks.</p><img src="https://counter.theconversation.com/content/106239/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dimity Kingsford Smith is a member of the ASIC External Advisory Panel and has undertaken contract research for ASIC. She was a member of the Treasury Taskforce on ASIC's Enforcement Powers in 2017. Professor Kingsford Smith was the NAB Wealth Customer Advocate from 2015-2017. She has done a small number of hours of consulting work for the CBA in 2018. </span></em></p><p class="fine-print"><em><span>Clinton Free and Hannah Harris do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>ASIC is under pressure to take every significant case to court. But that would delay justice and break its budget.Clinton Free, Professor, UNSW SydneyDimity Kingsford Smith, MinterEllison Professor of Risk and Regulation, UNSW Law; Director, Centre for Law Markets and Regulation, UNSW Law, UNSW SydneyHannah Harris, Lecturer, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1069152018-11-14T03:58:20Z2018-11-14T03:58:20ZBehind the judgment. Why the Federal Court tore up a $35m settlement between ASIC and Westpac over lending standards<figure><img src="https://images.theconversation.com/files/245471/original/file-20181114-194497-1kgyan7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justice Perram has decided that some things are more important than quick settlements.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Very rarely does a judge tear up a multimillion-dollar penalty signed up to by both the regulator and the alleged perpetrator.</p>
<p>Yet that’s what Federal Court judge Nye Perram did on Tuesday, throwing out a A$35 million settlement between Westpac and the the Australian Securities and Investments Commission over its alleged <a href="https://www.smh.com.au/business/banking-and-finance/judge-tears-up-35m-settlement-between-asic-and-westpac-in-home-loan-case-20181113-p50fon.html">failure to properly assess whether borrowers could meet their repayments before signing them up to mortgages</a>.</p>
<h2>Agreed settlements are common</h2>
<p>In commercial litigation, as in most litigation, there is an emphasis on trying to settle matters early before they are heard in court. </p>
<p>In criminal law matters the prosecutions encourage early guilty pleas in exchange for lower penalties. </p>
<p>The Australian Securities and Investments Commission (<a href="https://asic.gov.au/">ASIC</a>) has been increasingly resorting to early settlements as a means of achieving cheaper and quicker outcomes.</p>
<p>The quick win for ASIC is an <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/asaica2001529/s93aa.html">enforceable undertaking</a> and a media release. The quick win for the other party is avoiding a drawn-out court case and being able to get on with its business.</p>
<h2>Courts usually rubber-stamp them</h2>
<p>Where the alleged breach of the law is serious, necessitating a large penalty, a judge has to formally approve the settlement, in a hearing until now regarded as something of a rubber-stamping exercise.</p>
<p>As the <a href="https://financialservices.royalcommission.gov.au/Pages/default.aspx">Hayne Royal Commission into the Misconduct in Financial Services</a> has pointed out, the downside of such quick settlements can be that the facts aren’t established in court and the law isn’t tested. </p>
<p>Where they are established and the law is tested, as Justice Yates did earlier this year in <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca0930">Australian Transaction Reports and Analysis Centre versus Commonwealth Bank of Australia</a> very big penalties can be handed down - A$700 million for more than 50,000 breaches of the Anti-Money Laundering and Counter-Terrorism Financing Act.</p>
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Read more:
<a href="https://theconversation.com/commonwealth-banks-700-million-fine-will-end-up-punishing-its-customers-97918">Commonwealth Bank's $700 million fine will end up punishing its customers</a>
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<p>Along with it were landmark judgments that establish the scope of the law and tell firms what to avoid in the future.</p>
<h2>This time the court said no</h2>
<p>On Thursday Justice Perram in the Federal Court <a href="https://www.smh.com.au/business/banking-and-finance/judge-tears-up-35m-settlement-between-asic-and-westpac-in-home-loan-case-20181113-p50fon.html">sought the right to do the same</a>.</p>
<p>He rejected the joint application for settlement between ASIC and Westpac Banking Corporation for a penalty of A$35 million.</p>
<p>The problem, as he pointed out was that it was not clear from the agreed facts what actual contraventions of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nccpa2009377/">National Consumer Credit Protection Act 2009</a> Westpac had been accused of. </p>
<p>He asked ASIC and the Westpac to redraft the agreed settlement and return to court by 27 November 2018. </p>
<h2>To establish the law and what happened</h2>
<p>The case matters because the Financial Services Royal Commission has been examining the use of computer programs to determine the ability of borrowers to repay loans.</p>
<p>It is possible that many Westpac loans were approved to customers who would have been found to be unable to meet the repayments had their individual circumstances been examined, and it is possible that is in breach of the law.</p>
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Read more:
<a href="https://theconversation.com/consumers-need-critical-thinking-to-fend-off-banks-bad-behaviour-93489">Consumers need critical thinking to fend off banks' bad behaviour</a>
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<p>But without a clear judgment or a clear statement of facts for the court to examine, or a clear judgment from the court, it is impossible to tell.</p>
<p>That’s why Justice Perram said no, to establish what the law requires and what Westpac did.</p><img src="https://counter.theconversation.com/content/106915/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Adams receives funding from Australian research Council, but not in respect of this article. </span></em></p>Negotiated deals between ASIC and alleged wrongdoers leave us in doubt as to the reach of the law.Michael Adams, Professor of Corporate Law & Governance, School of Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/996572018-07-12T10:27:29Z2018-07-12T10:27:29ZAre you suddenly interested in the Supreme Court? You’re not alone<p>Every once in a while, Americans rediscover the Supreme Court.</p>
<p>With the resignation of Justice Anthony Kennedy and the nomination of Judge Brett Kavanaugh, the country is now in such a moment. When someone is <a href="https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm">nominated to the court</a>, or when the court hands down a decision that politicians and the media tell Americans will have a major impact on their lives, citizens perk up. Suddenly, <a href="https://www.poynter.org/news/say-arrrgh-historic-front-pages-explain-supreme-court-health-care-decision">the court is big news</a>.</p>
<p>That does not mean that Americans normally pay much attention to the federal judiciary and the court that stands at its apex. </p>
<p>Forty-nine percent of Americans polled by Gallup in 2017 said they approved of the way the <a href="https://news.gallup.com/poll/4732/supreme-court.aspx">Supreme Court was handling its job</a>. At the same time, a C-SPAN/PSB poll found that 57 percent of American voters <a href="http://thehill.com/homenews/media/324834-survey-only-43-percent-can-name-a-supreme-court-justice">could not name a Supreme Court justice</a>. And yet 90 percent of those polled agreed that “decisions made by the U.S. Supreme Court have an <a href="https://news.gallup.com/poll/4732/supreme-court.aspx">impact on my everyday life as a citizen.”</a></p>
<p>In other words, Americans have a vague feeling that the court is important even though they know very little about it. </p>
<p>But when events turn their attention to it, and particularly when the <a href="http://www.people-press.org/interactives/political-polarization-1994-2017/">country is seriously divided</a> about the direction in which the nation is going, the electorate rediscovers the third branch.</p>
<h2>Court profile waxes and wanes</h2>
<p>There have been a few such moments in American history. </p>
<p>In 1858, presidential hopeful Abraham Lincoln held <a href="https://www.smithsonianmag.com/history/how-lincoln-bested-douglas-in-their-famous-debates-7558180/">a series of debates</a> with Stephen Douglas, who was contesting Lincoln’s effort to become the Republican Party nominee. </p>
<p>The centerpiece of their debates was a discussion of <a href="https://caselaw.findlaw.com/us-supreme-court/60/393.html">Dred Scott v. Sanford</a>, the 1857 decision in which the Supreme Court held that black Americans could not become citizens. Lincoln’s pledge that he would not honor the decision was crucial to his nomination.</p>
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<span class="caption">Abraham Lincoln and Stephen Douglas.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Lincoln_Douglas.jpg">Wikipedia</a></span>
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<p>Much of the nation was riveted by the 1916 Supreme Court nomination of Louis Dembitz Brandeis, as I noted in <a href="https://books.google.com/books/about/Louis_D_Brandeis.html?id=-Z2RAAAAMAAJ">“Louis Dembitz Brandeis: Justice for the People”</a>; and again in 1967, by the nomination of Thurgood Marshall, who became <a href="https://www.history.com/this-day-in-history/thurgood-marshall-appointed-to-supreme-court">the first African-American</a> to sit on the Supreme Court.</p>
<p>After the Supreme Court decided <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> in 1954, the South’s massive resistance to integrated schools was accompanied by a fervent <a href="https://www.loc.gov/law/help/digitized-books/miranda-v-arizona/Save%20Our%20Republic%20Impeach%20Earl%20Warren%20Postcard.pdf">“Save America – Impeach Earl Warren”</a> movement. And, of course, the Court’s 1973 decision in <a href="https://caselaw.findlaw.com/us-supreme-court/60/393.html">Roe v. Wade</a> has remained a flashpoint in American politics to this day. </p>
<h2>Courts as check on politics</h2>
<p>What is different today, at the moment that a Supreme Court nomination has riveted the attention of citizens? </p>
<p>One difference can be traced to the presidency of Donald Trump. The country now has a president who has become a lightning rod for both supporters and opponents, and a Republican-dominated Congress that <a href="https://projects.fivethirtyeight.com/congress-trump-score/">overwhelmingly supports or declines to interfere with</a> his actions. </p>
<p>Given that situation, the president’s opponents have turned to the federal judiciary as their last hope for keeping him in check, bringing case after case in areas such as <a href="https://docs.justia.com/cases/federal/district-courts/massachusetts/madce/1:2017cv10214/186633/1">immigration</a>, <a href="https://www.leagle.com/decision/infdco20161114p76">the environment</a> and <a href="http://www.nclrights.org/wp-content/uploads/2017/08/AS-FILED-COMPLAINT_Doe.v.Trump_-1.pdf">transgender rights</a>.</p>
<p>While the 2018 elections could <a href="https://www.vox.com/policy-and-politics/2018/6/7/17426576/blue-wave-explained">change the political makeup</a> of Congress, much of what the president has done comes from his ability to exercise unilateral executive power. </p>
<p>So the country is likely to see Trump’s opponents relying on the check of the federal judiciary and particularly the Supreme Court for some years to come.</p>
<h2>Democracy’s institutions now questioned</h2>
<p>Another difference from earlier controversies about the court is that while the public may dislike, and react angrily to, specific decisions of the court, it has rarely questioned the legitimacy of the institution itself. </p>
<p>It may call for Congress to overturn decisions of the court; it may lambaste particular justices. </p>
<p>But the current controversy over the court takes place at a time when the public is being exhorted by right-wing media, lawmakers and advocates, as well as <a href="https://www.washingtonpost.com/world/national-security/in-their-courtrooms-theyre-protected-by-people-like-me-dhs-secretary-weighs-in-on-legal-dispute-over-trump-ban/2017/02/07/5e37fc4e-ed4e-11e6-9662-6eedf1627882_story.html?utm_term=.d71d892a0feb">the president himself</a> to distrust the federal judiciary. President Trump has characterized it as no more than a collection of partisan actors deciding cases on the basis of their political beliefs rather than the law. </p>
<p>“Courts seem to be so political, and it would be so great if our justice system — if they would be able to read a statement and do what’s right,” <a href="https://www.washingtonpost.com/world/national-security/in-their-courtrooms-theyre-protected-by-people-like-me-dhs-secretary-weighs-in-on-legal-dispute-over-trump-ban/2017/02/07/5e37fc4e-ed4e-11e6-9662-6eedf1627882_story.html?utm_term=.4c528cad1071">the president said</a> in 2017, when it appeared that a federal appeals court would strike down one of his immigration policies. </p>
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<img alt="" src="https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=256&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=256&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=256&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=322&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=322&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227010/original/file-20180710-70039-tispa3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=322&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">A Trump tweet, after a judge stopped his travel ban from going into effect.</span>
<span class="attribution"><span class="source">Twitter</span></span>
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<p>That same year he tweeted, <a href="https://www.lawfareblog.com/all-presidents-tweets">“The courts are slow and political</a>.” And in 2018, after a federal district court judge temporarily blocked the administration from ending the Deferred Action for Childhood Arrivals (DACA) policy, <a href="https://twitter.com/realdonaldtrump/status/951094078661414912?lang=en">the president tweeted</a>, “It just shows everyone how broken and unfair our Court System is.”</p>
<p>A 2018 Pew survey found that only 35 percent of the public have a <a href="http://www.pewresearch.org/fact-tank/2018/04/26/key-findings-on-americans-views-of-the-u-s-political-system-and-democracy/">favorable view of the federal government</a>. Only 58 percent thought that “democracy is working well.” A 2011 poll found that almost a quarter of American millennials considered <a href="https://qz.com/848031/harvard-research-suggests-that-an-entire-global-generation-has-lost-faith-in-democracy/">democracy to be a bad system</a>. According to a 2016 survey by two Harvard professors, Roberto Stefan Foa and Yascha Mounk, a mere 30 percent of Americans born in the 1980s considered it “essential” to live in a democracy, as opposed to 75 percent of <a href="http://www.journalofdemocracy.org/sites/default/files/Foa%26Mounk-27-3.pdf">Americans born in the 1930s</a>.</p>
<h2>Undermining court’s legitimacy</h2>
<p>The trend against belief in democracy is worldwide, and began before Trump became president. What is important, however, is the way the trend has been exacerbated by current rhetoric and its potential to undermine belief in the legitimacy of the Supreme Court. </p>
<p>Back in 1992, Justice Kennedy joined Justices Sandra Day O’Connor and David Souter in an abortion rights case. “The Court’s power,” <a href="https://caselaw.findlaw.com/us-supreme-court/505/833.html">they wrote</a>, “lies … in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means, and to declare what it demands.” </p>
<p>President Trump’s attacks on the judiciary and on its long tradition of independence can, however, erode this “substance and perception.” </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=945&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=945&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=945&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1188&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1188&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227019/original/file-20180710-70063-524lcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1188&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">Most of the time, the public pays little attention to the Supreme Court.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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</figure>
<p>It has frequently been noted that Americans are a religious people. In fact, it can be argued that for many, the Constitution has long been viewed as a secular version of the Bible, and the Supreme Court as the high priests who uniquely understand it. Constitutionalism is, in a way, part of the American religion.</p>
<p>Or so it has been. </p>
<p>Alexander Hamilton <a href="https://thefederalistpapers.org/founders/hamilton/alexander-hamilton-federalist-paper-78-the-judiciary-will-always-be-least-dangerous-to-the-political-rights-of-the-constitution">referred to the federal judiciary</a> as “the least dangerous” branch of government, having “no influence over either the sword or the purse.” Enforcement of the court’s decisions, Hamilton wrote, “must ultimately depend upon the aid of the executive arm.” </p>
<p>If the chief executive continues to <a href="https://www.brennancenter.org/analysis/his-own-words-presidents-attacks-courts">undermine the judiciary</a> in the public eye, or even goes so far as to refuse to honor any of its decisions, the electorate’s willingness to abide by the rule of law and follow court rulings may suffer.</p>
<p>Or perhaps the electorate will simply revert to ignoring the court. The result, in either case, would not be good for American democracy.</p><img src="https://counter.theconversation.com/content/99657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nothing to disclose.</span></em></p>Americans have rediscovered the Supreme Court, as they do periodically when it’s at the center of controversy. With a president who attacks the legitimacy of courts, will their attention be benign?Philippa Strum, Global Fellow at the Woodrow Wilson International Center for Scholars and Broeklundian Professor of Political Science Emerita, City University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/838712017-09-12T06:13:54Z2017-09-12T06:13:54ZCan a federal court case against pokies succeed where politics has failed?<p>Maurice Blackburn <a href="https://www.mauriceblackburn.com.au/about/media-centre/media-statements/2017/landmark-trial-against-pokies-industry-set-to-begin/">today launched</a> a federal court case against poker machine manufacturer Aristocrat Technologies Australia and casino owner Crown Melbourne Limited. The case could decide whether the design and operation of poker machines can deliberately deceive players about their chances of winning. </p>
<p>If this case is successful then it will have ramifications for the entire industry. While the plaintiff, Ms Guy, is not seeking damages and is targeting only one casino and one poker machine manufacturer, a precedent could be set for every poker machine in the country.</p>
<p>The gambling industry is a <a href="https://theconversation.com/gambling-lobby-gives-big-to-political-parties-and-names-names-73131">major contributor</a> to Australian political parties and has thus far defeated efforts to reform poker machines. It makes a lot of sense for those in favour of gambling reform to turn to the legal system.</p>
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Read more:
<a href="https://theconversation.com/three-charts-on-australias-addiction-to-poker-machines-78353">Three charts on: Australia's addiction to poker machines</a>
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<p>Australians <a href="http://www.qgso.qld.gov.au/products/reports/aus-gambling-stats/">lost A$11.59 billion</a> gambling in 2014-2015 alone. This averages out to A$633 per adult. However, the true figures are far more concerning. Only 8% of Australian adults typically use pokies regularly, meaning these regular users lose between <a href="https://theconversation.com/three-charts-on-australias-addiction-to-poker-machines-78353">A$1,500 and A$3,500 each year</a>. </p>
<p>One of the reasons that we seem to be willing as a nation to tolerate such losses – and the <a href="https://theconversation.com/pokies-sport-and-racing-harm-41-of-monthly-gamblers-survey-81486">resulting social harms</a> – is due to the idea that gambling is a free choice.</p>
<p>Our laws are largely based on this idea of informed and rational consumers who make free choices in a marketplace. But this case is being brought under <a href="http://posh.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/caca2010265/sch2.html">Australian Consumer Law</a>, which recognises that consumers are not always rational. </p>
<h2>The key arguments</h2>
<p>While you may assume that the odds are always against people who play poker machines, Maurice Blackburn is alleging that certain aspects of the design of the “Dolphin Treasure” poker machine mislead consumers as to the true nature of these odds. These include:</p>
<p>• <em>The oversized reel</em> – Maurice Blackburn alleges that when playing Dolphin Treasure all five reels on the screen appear to be the same size. However, one of the reels is actually significantly bigger than the other four, making it far less likely that it will return a high-value symbol. </p>
<p>• <em>The starving of the reels</em> – Similarly, Maurice Blackburn says the symbols are not distributed evenly across the five wheels in Dolphin Treasure. Maurice Blackburn has likened this to “playing a game of cards without knowing the deck has four aces of spades, three queen of hearts and seven tens of diamonds”. The uneven distribution of symbols makes lining them up (and therefore winning) far less likely than you would naturally assume.</p>
<p>• <em>Onscreen information</em> – Maurice Blackburn also alleges that the Dolphin Treasure machine gives players misleading information about the likely returns from playing the machine. The lawyers say the machine tells players that the returns start at 87%, but that this figure bears no relation to how much an individual might lose per spin or session. Instead, this is a theoretical statement based on the expected return over millions of spins.</p>
<p>• <em>Losses disguised as wins</em> – Finally, Maurice Blackburn is arguing that by displaying lights and sounds for a partial return on a spin, the machines mislead players into feeling as though they are winning when they have, in fact, lost money.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/losses-disguised-as-wins-the-science-behind-casino-profits-31939">Losses disguised as wins, the science behind casino profits</a>
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<h2>Why sue under the consumer law?</h2>
<p>The Australian Consumer Law provides a strong legal foundation for this case. Unlike traditional contract law, consumer law recognises that many consumers do not behave rationally, that we often make choices based on first impressions and poor information, and that businesses exploit this fact. </p>
<p>Previous cases give some idea of how the courts have applied this logic.</p>
<p>In <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2013/54.html?stem=0&synonyms=0&query=title%28%222013%20HCA%2054%22%29">one case</a> the High Court found that an ordinary and reasonable person gives only “perfunctory” attention to advertising material and, therefore, many will only absorb the “general thrust”.</p>
<p>Similarly, <a href="https://jade.io/article/509235">a recent case</a> about Nurofen “Special Pain” products focused on the impact of first impressions. While the ingredients are plainly listed on the packaging, and a consumer could have compared boxes of “back pain” and “tension headache” medication and discovered they were identical, the Federal Court found that most consumers would simply rely on the name of the product and its (unfounded) claim to target specific pain. </p>
<p>In the Nurofen case the Federal Court imposed a penalty of A$6 million and a further compensation payout of $3.5 in a <a href="http://nurofenclassaction.com.au/">class action</a> earlier this year. This indicates that consumers are entitled to rely on these first impressions and businesses do not have free rein to exploit this.</p>
<p>This is why section 18 of the Australian Consumer Law provides protection against misleading and deceptive conduct – even where consumers could have discovered the truth had they dug a little deeper. It also provides protection against unconscionable conduct, which in this case relates to the plaintiff’s claim that the poker machines are designed to be addictive.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/poker-machines-and-the-law-when-is-a-win-not-a-win-49580">Poker machines and the law: when is a win not a win?</a>
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<h2>What are the implications?</h2>
<p>While Ms Gay is not seeking damages, if her case is successful it will open the way for the ACCC to take action against the entire poker machine industry. The potential penalties from this could be significant. </p>
<p>Penalties and damages awarded in consumer law cases have traditionally been far lower than those awarded in competition law cases. However, this has changed over the last 12 months, spearheaded by the A$6 million penalty in the Nurofen case. </p>
<p>In this case, the court emphasised the importance of imposing penalties that are high enough to ensure “other ‘would-be wrongdoers’ think twice and decide not to act against the strong public interest”. The ACCC has since made it clear it intends to <a href="https://www.accc.gov.au/speech/advocacy-for-the-consumer">take up this call</a> and to ensure penalties are seen as more than just a cost of doing business. </p>
<p>In this new environment, a successful case against the poker machine industry would be one to watch.</p><img src="https://counter.theconversation.com/content/83871/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cristy Clark is a member of the NSW Greens.</span></em></p>A court case against a poker machine manufacturer and casino operator could set a precedent for every poker machine in Australia.Cristy Clark, Lecturer in Law, Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/821492017-08-07T06:13:47Z2017-08-07T06:13:47ZCartel case shows not all corporate misbehaviour goes unpunished<p>A first of its kind Australian conviction of a Japanese company for cartel conduct shows reforms in this area of the law are starting to work and these cases can be prosecuted successfully. </p>
<p>Japanese shipping company, NYK, <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2017/876.html">had been fixing</a> freight rates, rigging bids and dividing markets in shipping cars en route to Australia, over a period of more than three years. The company pleaded guilty to charges relating to this conduct, was fined $25 million by the Federal Court, discounted from $50 million for its contrition and its early cooperation as well as its promise of ongoing cooperation. </p>
<p>This cooperation means its alleged co-conspirators in the cartel – another four foreign shipping companies – are likely to go to court over this as well.</p>
<p>Cartel conduct was made a criminal offence in 2009, after a long and contested debate. Some competition lawyers and academics argued that criminal treatment of cartelists was inappropriate because their conduct was not sufficiently morally reprehensible. Others were concerned about the practical burdens of administering a criminal regime.</p>
<p>But the successful prosecution of this first case, and the damning comments by the judge in particular, will be held up by the Australian Competition and Consumer Commission (ACCC) and many others as a vindication of the reform.</p>
<p>According to the judge in this case, Justice Wigney:</p>
<blockquote>
<p>The penalty imposed on NYK should send a powerful message to multinational corporations that conduct business in Australia that anti-competitive conduct will not be tolerated and will be dealt with harshly… [it] should serve as a clear and present warning to others.</p>
</blockquote>
<p>The ACCC has long been arguing that this conduct deserves to be treated as criminal. This argument has a fundamental economic rationale. </p>
<p>Cartels distort and may even destroy the competition that drives a free market economy. They deprive consumers and businesses of the benefits and opportunities that competition would otherwise deliver and so strike at the heart of a system crucial to our economic welfare. </p>
<p>In this case, according to the sentencing judge, the cartel freight rates may well have been passed on to Australian consumers in the form of higher prices for the imported vehicles on the relevant shipping routes.</p>
<p>The company in this case, NYK, derived revenue of A$54.9 million and profit of A$15.4 million from the cartel. What’s more, the company’s senior executives appear to have shown a flagrant defiance of the rules, in a way that may be seen as morally objectionable so as to justify treating the conduct as criminal.</p>
<p>To some extent the outcome also shows that criminal enforcement of anti-cartel laws can work in Australia. More than 30 countries have already criminalised this kind of activity. However, outside of the US, the enforcement record has been patchy at best and in some jurisdictions like the UK, there have been some spectacular failures. </p>
<p>When the Australian regime was enacted in 2009, there were many doubters. The reform required the ACCC to build its capacity to investigate and, in conjunction with the Commonwealth Director of Prosecutions (an agency with which its relations had been strained in the past), prosecute serious crime. There were particular concerns about how the CDPP would apply the ACCC’s immunity policy for cartel conduct - a policy critical to the effective detection and prosecution of this activity.</p>
<p>It remains early days – contested trials involving accused individuals and potentially sceptical juries await. However, the ACCC can be deservedly proud of this result in its first crack at a criminal cartel prosecution</p>
<p>The A$25 million fine is the second largest fine imposed under our competition laws to date (the largest, a fine of A$37 million against the packaging giant Visy, <a href="https://www.accc.gov.au/media-release/accc-welcomes-record-penalties-against-visy-calls-for-stronger-cartel-law">still stands</a>). The size of the fine is significant in various ways. </p>
<p>It was a quarter (and could have been half, had it not been for the company’s cooperation) of the maximum penalty of A$100 million. This would have been 10% of NYK’s annual turnover. The court’s readiness to impose a fine of this magnitude shows courts are lifting the benchmark for <a href="https://theconversation.com/cartels-caught-ripping-off-australian-consumers-should-be-hit-with-bigger-fines-78750">financial penalties for anti-competitive conduct</a>.</p>
<p>The news that a large Japanese company has admitted to this type of egregious law-breaking is likely to do nothing to assuage public mistrust of big business and anxiety about the consequences of a globalised economy generally. However, the NYK sentencing should at least provide some assurance that there are public institutions that can and will take action to hold corporate law-breakers to account.</p>
<p>But none of the NYK executives or managers responsible for the conduct were charged, just their employer. There may be several reasons for this, including their location outside of the jurisdiction and possibly also the terms of the cooperation agreement struck between the prosecutors and the company.</p>
<p>If Australia’s criminal laws against cartel conduct are to live up to their potential in punishing but also deterring this type of conduct, individuals also need to be held to account. This will present a further challenge. However, if the handling of the proceedings against the Japanese shipping cartel is any indication, the competition cop would appear more than up to meeting it.</p><img src="https://counter.theconversation.com/content/82149/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caron Beaton-Wells receives funding from Australian Research Council.</span></em></p>The successful prosecution of the first criminal cartel case may be seen as a vindication of the decision to criminalise cartel conduct.Caron Beaton-Wells, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746192017-03-21T23:38:55Z2017-03-21T23:38:55ZProposed changes may confuse rather than clarify the meaning of Section 18C<figure><img src="https://images.theconversation.com/files/161737/original/image-20170321-9136-10hesgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Turnbull government's objectives in seeking to change Section 18C are unclear.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Turnbull government <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">has announced</a> proposed changes to <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. </p>
<p>Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.</p>
<p>There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.</p>
<p>The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving <a href="http://www.abc.net.au/news/2016-11-04/18c-racial-vilification-case-facebook-qut-thrown-out/7996580">three Queensland University of Technology students</a>, who were not contacted until 14 months after the complaint was made.</p>
<p>However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.</p>
<h2>Why does the government want to change the wording?</h2>
<p>Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws. </p>
<p>Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">most other democracies</a> don’t cover offensive and insulting acts.</p>
<p>The Federal Court has recognised the difficulties with 18C by <a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1007.html">interpreting</a> it that so it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>18C’s legal meaning is therefore different from its ordinary meaning. </p>
<p>However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">have argued</a> there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.</p>
<p>Against this, there have been concerns that any changes to 18C could send a <a href="http://www.abc.net.au/news/2017-03-21/ethnic-communities-react-to-proposed-18c-changes/8374494">problematic message</a> to minority groups and give a <a href="http://www.smh.com.au/national/scrapping-bolt-laws-would-be-a-green-light-to-racists-neil-brown-20140220-332wf.html">green light</a> to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions. </p>
<p>Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.</p>
<p>In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”? </p>
<p>It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.</p>
<p>Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">blocked by the Senate</a>. It is also unlikely to achieve its stated aims of making the law clearer and more effective.</p>
<h2>Who is the reasonable person?</h2>
<p>Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached. </p>
<p>The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonably likely</a> to have “profound and serious effects”.</p>
<p>In this regard, the Federal Court will often apply a “<a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonable person</a>” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.</p>
<p>The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.</p>
<p>The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.</p>
<p>One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.</p><img src="https://counter.theconversation.com/content/74619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson 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 not adequately explained what it is hoping to achieve by changing the wording of Section 18C.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725022017-02-15T02:15:21Z2017-02-15T02:15:21ZRegulations needed for litigation funders who can’t pay out when cases fail<figure><img src="https://images.theconversation.com/files/156699/original/image-20170214-25977-1ypmm83.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The lead claimant in an equine influenza class action managed to avoid incurring a substantial costs order being made against them.</span> <span class="attribution"><span class="source">AAP/Sergio Dioniso</span></span></figcaption></figure><p>Access to funding for litigation has become a critical component of class action cases in Australia. This is because it provides the necessary financing for this form of expensive and complex litigation.</p>
<p>Yet its unregulated nature may expose consumers to the risk of the funder becoming insolvent or simply failing to pay legal fees – or, if a class action is lost, the defendant’s costs.</p>
<p>To create regulations that cover this, the courts and regulators need to pay attention to unsuccessful class actions, where the funder is required to honour obligations to claimants to pay legal fees and the defendant’s costs. </p>
<p>But, currently, the only guidance, such as the Federal Court’s recent judgments and the Victorian attorney-general’s <a href="http://www.lawreform.vic.gov.au/projects/litigation-funding/litigation-funding-terms-reference">referral of the issue</a> to the Victorian Law Reform Commission, focuses on a successful class action where the funder is actually receiving its fee. </p>
<p>Two important regulatory pillars – licensing and capital adequacy – are missing. This is despite the Productivity Commission <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">recommending in 2014</a> that both be introduced.</p>
<p>The lack of a licensing regime means anyone or any entity can fund litigation in Australia – except for lawyers, as contingency fees are illegal. Also, without capital adequacy requirements, there is no protection for claimants (or defendants) to ensure the funder has sufficient resources to be able to pay legal fees and meet any adverse costs order. </p>
<p>This creates the potential for inadequately resourced funders to litigate for profit but avoid the costs if unsuccessful. Currently, funders can protect themselves by being based offshore and/or by using subsidiaries with limited financial resources to undertake funding obligations.</p>
<p>There is only partial protection against a funder with inadequate capital at the moment. This involves a court order for “security for costs”. This requires the funder to take steps to make funds or assets available at the beginning of litigation to pay the defendant’s costs in the event the litigation fails.</p>
<p>However, it is common practice that the amount of security a court requires to be posted is substantially lower than the costs the defendant actually incurs. So, the claimant bringing the case may be still liable for those costs.</p>
<h2>How does litigation funding work?</h2>
<p>In a typical litigation funding arrangement, the funder will enter into an agreement with one or more potential claimants. The funder agrees to pay the litigation costs – such as lawyers’ fees and expert witness fees – and promises the claimant will pay the defendant’s costs if the claim fails.</p>
<p>Litigation funding removes all of the costs exposure a claimant may have. In return, if the claim is successful, the funder will receive a fee. This is typically a specified percentage of any funds recovered by the claimants either by way of settlement or judgment. The funder will also be reimbursed the litigation costs.</p>
<p>The Federal Court has taken significant steps to reassert that court access is primarily for the people who have been harmed. It says it has the power to supervise litigation funding charges in class actions.</p>
<p>In the recent shareholder class actions against insurance giant <a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2016/148.html">QBE</a> and <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2016/1433.html">Newcrest Mining</a>, the court recognised that the funder’s fee is usually the largest single deduction from what the claimants manage to recover in funded class actions. </p>
<p>Many claimants are at a disadvantage in negotiating litigation funding agreements because they have small claims and need the funding more than the funder needs them to be part of the class action.</p>
<p>The Federal Court aims to prevent excessive or disproportionate charges to claimants. This means funders are subject to the same scrutiny that already exists for lawyers and their fees. </p>
<p>The court’s supervision of funding charges will mean funders will need to justify the fees charged. Therefore, a fee must reflect the real risks the funder assumes in facilitating access for the claimants to justice and the recoveries achieved.</p>
<h2>Examples of near-disasters</h2>
<p>The failure to regulate litigation funders is becoming more problematic. This is because more funders, particularly from overseas, are entering the market. There have been class action failures, which may become more common as more funders start to chase profits in Australia.</p>
<p>Class actions over <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/28.html">bank fees</a> and <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2016/1119.html">equine influenza</a> are two recent examples of litigation that failed.</p>
<p>The bank fees class action was a highly publicised attempt to seek repayment of overdraft and other bank fees to customers. This failed when the fees were found not to be illegal. </p>
<p>The case involved a number of hearings and multiple appeals, which led to a large liability for costs. Fortunately for the claimants (and the defendants), an Australian-listed corporation with a healthy balance sheet funded the class action. </p>
<p>The equine influenza class action dealt with claims against the federal government for failing to prevent the virus escaping from a quarantine station, which led to the infection of thousands of horses. </p>
<p>Partway through the class action, the overseas funder became bankrupt amid allegations its parent company was engaged in fraudulent activities. The class action settled for no compensation; each side bore its own costs. Justice Foster observed the settlement meant the lead claimant avoided:</p>
<blockquote>
<p>… a very substantial adverse costs order being made against them.</p>
</blockquote>
<p>Lawyers acting for the plaintiff reportedly had A$11 million in unpaid fees. The litigation funder would have been liable to protect the claimants from adverse costs orders and pay the legal fees had it not collapsed. The settlement’s terms averted a near-disaster for the lead claimant. </p>
<p>Oversight of litigation funders in victorious class actions has begun. But more action is required to regulate losing litigation funders to protect claimants and defendants.</p><img src="https://counter.theconversation.com/content/72502/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Legg is affiliated with the Law Council of Australia's Class Actions Committee, Jones Day and the Australian Pro Bono Centre. He is the director of the IMF Bentham funded Class Actions Research Initiative at UNSW Law. </span></em></p>The failure to regulate litigation funders is becoming more problematic. This is because more funders, particularly from overseas, are entering the Australian market.Michael Legg, Associate Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.