No Way Bob Day!

[[TRANSCRIPT]]

 Bob Day’s barrister, Peter King, received a warning from Chief Justice French on the third of may against making speeches with politically charged references in front of the high court. He was responsible for presenting, the cross-bencher, Bob Day’s constitutional challenge about electoral change for the upcoming election process to the High Court.

Mr. King is helping Senator Day launch a constitutional case against the Australian Parliament contesting the electoral reforms designed to prevent independents running for a position in the Senate who don’t represent the Australian general public from receiving a seat. Day complains that the new system would unfairly skew the thousands of votes for minor parties as the votes would quickly be thrown away under the new regime. His fears are that it would only grow Australia’s two-party government issues.

Policy discussions - best reserved
for university lecture halls?

King’s scolding arose when he compared the laws, as equal to dissuading signs out the front of polling places. Chief Justice French rose to action warning King to “go to the nitty gritty rather than have speeches that are best made outside of this place.”

 Legal challenges are very serious and formal affairs. In the entirety of Australia’s history, there have been less than one hundred constitutional challenges. Since the high court opened in 1903, the number of cases the court has seen are incredibly small averaging sixty a year since commencement. Again, the number of constitutional challenges are even lower, meaning they are marked down in Australia’s history for special consideration. The minuscule amount of challenges only leaves more room for humiliation as it is certain that Mr. King’s scolding in front of the high court won’t be quickly forgotten.

The policy reform, which is the subject of the legal challenge, is trying to prevent small senators from creating preference deals with other parties to win the seat in Parliament through the preferential voting system. This voting system works so that political groups can show voters how to choose senators that best support this policy in descending order. The plan was put forward after it was debated in Parliament for forty hours, revealing just how contentious this decision is.

The challenge in the high court has prevented the South Australian electoral officer and federal government from issuing the next round of ballot papers needed for the Senate election, which was scheduled to be held on July 2.

In detail, the new policy intends to eradicate the process requiring below the line voters to place their preference for each listed and instead choose their top twelve favorites for the seat. Party logos would also be included in the paper simplifying the process for less politicized individuals. It was seen in a previous election that taglines printed on group voting papers can be very misleading, this will be eradicated by printing logos onto the ballot paper.

Prime Minister Malcolm Turnbull has argued that the new legislation was good for democracy as it will encourage voters to vote for at least six senators above the line individually. But if their preferred candidates are unsuccessful then their votes will be entirely unsuccessful.

If anything the new policy makes
brilliant brunch conversation!

As beneficial as the changes may appear senators are warning that these changes violate the principle of representative government. Day body proclaims that voter’s rights were taken away and today no one is a step closer to restoring those rights. This bold claim adds a frightening spin to the turn of events but in reality, Commonwealth solicitor-general Justin Gleeson has criticized the senator for speaking out and dismissed his arguments as having a considerable weakness.

Gleeson has pointed out that if Day’s case is accepted that it would invalidate all voting since 1984. Following that train of logic then Australia would not have had voted in a valid Senate since the last election before 1984. This would put Australia’s legal and political system in serious jeopardy as it would invalidate all legislation.

According to the Constitution, no law can be passed except on agreement by both houses – therefore is the Senate is eradicated so is all of the laws that have been passed in the last thirty years!

Additionally, the case outlines that the policy interferes with section seven of the Australian constitution that claims senators shall be composed of senators for each state chosen directly by the people of the state and that this means that every person’s vote must directly go towards selecting one candidate.

Constitutional law experts from the University of New South Wales have applied legal reasoning and have clarified that governments are allowed to use a range of electoral systems to satisfy direct election. Day’s loss is that the constitution is ambiguous about by what means the voting has to be direct. As a consequence, he cannot claim that one form of voting is more direct than the other as long as they’re both direct.

To be honest, I think we should all
just have a calming cup of tea.

Overall, it seems that King has set himself up for an uphill battle as he failed to present an outline of his argument to the High Court before his presentation.

The courts are still examining the case as we speak, and I look forward to hearing more about this constitutional challenge…as unlikely as Senator Day’s success may be. 

Congratulations Australia!

This past month has been full of changes, including the leadership spill – which I’m sure every Australian followed on twitter! Along with the appointment of a new Prime Minister Australia appears to have received an attitude change. Two surprising appointments of a female minister and an indigenous minister has arisen from the appointment of Prime Minister Turnbull. Additionally Tony McAvoy must be congratulated as he is appointed to the Queen’s Counsel.

It is with great pride as a young Australian lawyer that I can write about Wiri man Tony McAvoy. He was appointed as a silk on Thursday as the first indigenous member of the Queen’s Counsel. This appointment is a position of great honour and responsibility. His role in inspiring young lawyers (especially indigenous lawyers) will be insurmountable.

The term ‘silk’ is legal jargon that refers to a silk gown worn by the members of the Queen’s Counsel. It is a great honor to be elected to the Queen’s Counsel because these individuals are selected purely on their level of merit rather than their years of experience. Although briefly Australia removed the use of the phrase ‘Queen’s Counsel’ and instead QC’s were called ‘Senior Counsel’ it was restored in March 2014 to Queen’s Counsel.

During an interview with Lawyers Weekly  Mr McAvoy explained that he had an innocent start to the profession as it arose from a holiday job in the Aboriginal Legal Service. He went from strength to strength in the legal field and were recommended by Doyles Guide of Leading Native Title Barristers Australia, 2015.

Still Mr McAvoy remains grounded as he speaks of his win for the Quandamooka People of North Stradbroke Island. This claim was a sixteen-year long legal fight for the indigenous people to have their ongoing connection with the land and traditions acknowledged. The claim extended over 43 square kilometres, which is a significant acknowledgement of the traditional custodianship of their land.

Additionally Malcolm Turnbull announced Ken Wyatt as a front bencher in Australia’s federal parliament. Frontbencher is the term used to describe where ministers and shadow ministers sit in government. It is a significant role that involves being allocated a major area of responsibility.

Mr Wyatt’s responsibility will be as an assistant healthminister. Mr Wyatt is a man with Nyoongar, Yamatji and Wongi heritage who can draw on experience to support the health needs of indigenous Australians. Health is a very prominent portfolio, and Mr Wyatt’s previous experience makes him an apt choice for the pressured portfolio of health.

Mr McAvoy and Mr Wyatt are taking groundbreaking steps for Australians, as no other indigenous Australian has yet reached the recognition that they have achieved this week. Hopefully, there will be more indigenous Australians to follow and many more young indigenous Australians inspired.

Female leadership has also been uplifted in the appointment of a woman defence minister, Marise Payne. Marise Payne is a Senator for New South Wales. The Sydney Morning Herald reported that Mrs Payne had been called the best choice for the job, and Australia Defence Association Executive Director Neil James commented that she was an excellent option.

Despite concerns that the defence minister position had too many changes, Turnbull insisted on hiring Mrs Payne. He believes that she is the best choice for the party. SBS reporters commented that Turnbull, while making history, was not interested in tokenistic appointments but remained focused on building a team of hard working ministers.

The historic appointment of these three people to positions of responsibility is hopefully a sign that Australia’s conservatism is becoming a practice of the past. Just as leading Australian Human Rights Barrister Geoffrey Robertson promotes in his essay collection Dreaming Too Loud, Australia’s time for acknowledging indigenous rights is well overdue. To bring new leadership into our government is a move that should be celebrated. While it is only one indigenous minister and one female minister appointed to these prominent roles it is still a step in the direction of true racial and gender equality.

Good luck to all of you students reading my blog who are beginning your exams. I will soon be posting a blog post about designing ‘vision study board.’ These boards are fun DIYs that help you keep up the productivity through the long weeks of exam preparation. These DIYs can be altered to match any field of work including lawyers with a creative flair, looking to organise the coming weeks.

Lots of love,

The Underage Lawyer

Is the Australian compulsory-vote discriminative against protestants?

You know I love coffee shops right?

They’re great, especially for studying. I have written about why they are one of the biggest study aids in one of my previous posts ‘is this the study tool you’ve been looking for?’

They’re filled with great studying rewards and focus-encouraging atmospheres….except when you overhear a conversation that you’re desperate to join in on. Recently I was in a similar situation when I noticed a man loudly proclaiming that he didn’t have to vote under section 116 of the Australian Constitution because he was a Protestant.

A Protestant is a denomination of the Western Christian Churches that follow the principles of the Reformation. They are a very traditional Christian religion that encourages its followers to adhere to some rules of life as founded within The Holy Bible. – However, please know that voting for a minister of governance in your country of residence is not against the tenants of The Holy Bible.

For those who aren’t from Australia, voting is compulsory for all registered residents over the age of eighteen. Not to vote is a criminal offence in Australia which can result in a $20 fine or prosecution in court which will increase the fine up to $170 plus court costs.

Additionally Australia is a country that bases itself on democracy, failure to vote means that you are not participating in a critical element of our country. But, if something is against constitutional law it is held to be supreme because the Australian Constitution is the creative document of our country (even though it’s an act of British Parliament.) That’s why I thought it would be a great idea to examine how and why this man thought he didn’t have to vote under section 116.

-          A brief history of the Australian Constitution 

In 1901, the Australian Constitution was given Royal Assent. Royal Assent is the title of the process that gives laws of a constitutional monarchy legal effect. Because Australia did not exist before the Constitution was enacted the constitution had to be submitted to the British Parliament for approval.

The desire to federate was led by two men, Samuel Griffith and Henry Parkes. Griffith and Parkes were the forerunners of Federation and participated in all of the conventions around Australia. The two most important meetings that achieved 

Federation were in Melbourne and Sydney.  First, in 1890 at the Melbourne conference where they made the unanimous decision to federate. Then at Sydney in 1891 where they chose to follow the American system of government and drafted the constitution. Notable figures at this convention included Alfred Deakin, the second Prime Minister of Australia and Inglis  Clark a barrister and judge who was the principal author of the Australian Constitution.

-          What is section 116 about?

Section 116 (the clause of the constitution that the guy was talking about) refers to the exclusion of power of the Commonwealth to make laws about any religion or religious activity. It has a very limited jurisdiction as a consequence of two landmark cases, Kruger v Commonwealth and Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth.

Its exact words are:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 116Commonwealth not to legislate in respect of religion                   The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

-          What was the loophole in section 116?

The guy was claiming that there was a ginormous gap in this article that allows him to escape voting. His claim was that forcing him to vote under section 116 was prohibiting the exercise of his religion. Before you all jump on board and claim to be protestant to get out of voting, I suggest that you all realise this is a very, very risky idea. It is highly unlikely that this section has such jurisdiction over voting.

First you would have to prove how is voting prohibiting the exercise of his religion.

According to him voting made him part of a political party and hence was against the beliefs of his religion. A little confusing for sure, but basically he was saying that following a political party was like worshipping an idol. This is against The Holy Bible.

-          How 116 has limited jurisdiction

This section of the Australian Constitution is probably most infamous for its role in the stolen generation. In Kruger v Commonwealth, the question was put before the court whether there could be laws made to take Aboriginal children from their families and put them with white households. They presented that the intent of section 116 was to allow the exercise of freedom of religion. Basically, they argued that the Aboriginal religion (the dreamtime) was being discriminated against by the laws of the Commonwealth.

Logically taking the children from a particular religious group and forcing them to be raised in different homes would appear to be genocide. However, the judges of the case determined (in summary) that the act was merely applied to the making of the law and not the application or administration of it. This horror verdict has managed to limit the application of this section. It was limited so severely that the man loudly proclaiming his right not to vote on account of his religion is probably going to be staring down a nasty fine in the not so distant future.

Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth further limited the authority of the clause. The lesser known case was about whether the Commonwealth could impose laws that were directly prejudiced against a single group. This had a similar decision to Krygger v Williams and both cases determined that a prejudiced law was not a contravention of section 116 if made for the purpose of the efficient defence of the commonwealth. Clearly, this case does not apply to the man in the coffee shop for Australia has never prosecuted Protestants directly under the law.

I’m not quite sure where the non-compulsory voting for Protestants arose from, but it was a good exercise in analysis of Constitutional law. I sure hope that anyone reading doesn’t try to get out of voting under this section of the Australian Constitution. It’s definitely not a loophole.

The Underage Lawyer

Has the Royal Commission been compromised? One man's personal decision creates political chaos.

Dyson Heydon has captured the fancy of Australians.

There are allegations against Justice Heydon claiming that his impartiality is compromised because he agreed to give a speech at a liberal dinner party. Despite these accusations, Heydon is refusing to stand down from his position on the Royal Commission. He is determined to remain on the commission as its head.

Heydon claims that he was not aware of the extent of the political connection that the Sir Barfield Barwick address had. It should be noted, that he has subsequently withdrawn his acceptance as he has not yet given the speech.

The belief that the Sir Barwick event was not connected to the liberal party is not unreasonable. Barwick was a QC and Chief Justice of Australia for 17 years making him the longest standing chief justice in history. Therefore, Justice Heydon as an esteemed retired judge of the High Court was a reasonable choice to appear at the address.

However, Barwick was a member of the House of Representatives and a part of the Liberal party. It is not unreasonable to suggest that a judge of Heydon’s caliber should have realized the possible compromise to his impartiality. Especially when he is involved in a delicate political matter as an acting head of a royal commission. It seems only reasonable that he should exercise great caution when interacting with any part of the political arena.

On the other hand how accountable can a speech make an individual? The act of speaking on a topic at a memorial dinner to commemorate the longest running chief justice in history has now constituted extreme bias that can compromise an entire Royal Commission. The calls for Heydon to withdraw the claim that this single event alone has completely jeopardized the impartiality of the entire commission. My concern is that speech at a respectful event, acknowledging the successes of a great legal mind, is not a pro-liberal placard. Somehow, the head of this Royal Commission who has made a life out of separating his personal life from his working life is being made out to have lost all credibility. The credibility is lost in the eyes of the media and political affiliates because in his own time he merely made an agreement to give a speech at a commemorative dinner.

This begs the question, are we interfering too much in peoples’ private lives?

In today's’ 24/7 society have we lost the ability to remove work related responsibilities and personas from a personal life?

We may argue that giving a speech as a retired justice of the high court has a sufficient connection with his work to constitute it as not his personal life but duties connected to work. However, I would reply that a speech, at whatever venue, does not indirectly or directly express support of those behind the veil of the event. If the primary intention of the event is to provide support, such as at a rally, then the speech itself would also exhibit that primary purpose. An even such as the one agreed to by Justice Heydon was an event that proposed to have the main purpose of recognizing the great legal career of Sir Barwick. It has been treated by the media as a liberal love-fest and not a mere commemorative dinner party.

It is hard to reach an objective conclusion given the nature of the media sensationalism surrounding this issue. I would hazard the suggestion, however, that the intentions of Heydon were as he claims, given that there were mixed intentions of the event that were not immediately apparent. Additionally the finding of evidence by the Royal Commission are not the sole discoveries of Heydon but a collective effort. Hence, the Commission cannot be sabotaged by his presence at dinner.

Justice Heydon, agreeing last year to give a speech on August 29^th has no significant influence on the findings or any implications of the evidence. Assuming that our legal system is not corrupt. A single person offering an oration, while he may hold great authority in the provision and presentation of the conclusions of a Royal Commission can still not suppress findings grounded in sound evidence.

As I have mentioned, I am hesitant to give any final form of an opinion. The media has been infamous for neglecting information in vital cases for years. I will instead return to my earlier comments on the value and separation of personal and work life. I am of the opinion that there are parts of an individual’s personal life that should affect the manner in which a person is regarded during their work life.

However, these actions are easily restricted to crimes of a significant nature such as sexual offenses, fraud or grievous bodily harm. A speech given to a group of officials commemorating the honorary Barwick as a retired member of the judiciary appears to be of a more domestic and personal nature than criminal. While the decision to give the speech is controversial, it is still the choice of Heydon to do so. I was unable to find whether he was paid for his time but assuming not there would be no personal benefit to Heydon.

Hence, it appears that while the judge may not have exercised the caution appropriate for the head of a Royal Commission, his right to give a speech at a commemorative event should not be removed. The speech while held at an event connected to the Liberal Party was not the primary intention of the event. Moreover, the royal commissioner has not sacrificed the integrity of the evidence found by the commission. This means that little argument can be made against the findings of the commission despite his actions.