About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

Perverting the course of justice?

(NB See my previous post on this important NT Supreme Court decision). News that CLP Attorney-General John Elferink has referred the Delia Lawrie matter to the Director of Public Prosecutions is hardly a surprise, given adverse comments about her behaviour in a Supreme Court judgment last week. In a realpolitik sense it’s the governing party’s job to put the heat on the Opposition whenever possible, and vice versa:

Northern Territory Opposition Leader Delia Lawrie has been referred to the Director of Public Prosecutions (DPP) by her political rivals after a Supreme Court judge said she knowingly made false allegations. …

“The fact that you have the Leader of the Opposition colluding to put information in front of a Supreme Court, ultimately to encourage it to make the wrong decision, is a very serious matter indeed,” he said.

“I’m asking the question as to whether or not an affidavit that potentially contains false information may become a breach of the Oath Act or ultimately a breach of the criminal code.”

Another news story suggested that Elferink was asserting that Lawrie and her lawyers may have engaged in a conspiracy to pervert the course of justice.

But what are the prospects that the DPP would decide to lay charges, or that they might succeed? I am not a criminal law expert nor do I have a complete knowledge of the facts in Lawrie v Lawler nor access to the relevant court documents. However, as an administrative law expert and very experienced general civil litigation lawyer I can make a few tentative observations. (warning – may be a bit dry and legalistic for some tastes)

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Snatching defeat from the jaws of victory?

The old, heritage-listed Stella Maris Seamen's Mission in Darwin's CBD

The old, heritage-listed Stella Maris Seamen’s Mission in Darwin’s CBD

Northern Territory Labor Opposition Leader Delia Lawrie is a fearsome political warrior, a divisive figure who seldom compromises or takes a backward step. In many circumstances those are great qualities for a politician, but not always.  For my money the wise politician’s central credo was best summarised by the great Kenny Rogers:

You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run …

Every gambler knows
That the secret to survivin’
Is knowin’ what to throw away
And knowin’ what to keep
‘Cause every hand’s a winner
And every hand’s a loser
And the best that you can hope for is to die
in your sleep

Kenny’s words of wisdom were never so important for Delia Lawrie as now, when she’s contemplating whether to hang in as Labor leader in the face of an adverse Supreme Court decision, and whether to appeal that decision.

Many observers find it quite puzzling as to why Ms Lawrie decided to embark on those Supreme Court judicial review proceedings in the first place. After all, few if any Territorians even registered the fact that the Lawler Commission of Inquiry had even taken place let alone made somewhat adverse findings against Delia Lawrie. Certainly the general media and political view was that the Lawler Report was something of a damp squib that had sunk almost without trace, doing little or no damage either to Ms Lawrie or Labor in general.

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The power and passion of privatisation

Grossly offensive political ads about the alleged dangers of Chinese purchase of electricity “poles and wires” during the last week of the New South Wales election campaign say much more about the Labor-affiliated unions who placed them than they do about the Baird government’s privatisation plans. It seems that Richo’s “whatever it takes” political philosophy remains alive and well in the ALP.

As for the power privatisation policy they were seeking to demonise, my own attitude is succinctly summarised by Ross Gittins:

I’m never sure who annoy me more, the business types who are certain every business is better run if privately owned, or the lefties who oppose every sale of government-owned businesses on principle.

As a general rule, privatising a natural monopoly is a dumb idea, because the monopolist will extract monopoly rents and prices paid by consumers almost inevitably rise. However, as Gittins points out, the situation is different with power in Australia because of the tight regulatory regime surrounding the industry:

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More metadata musing

In answer to my post earlier today about the data retention bill, frequent commenter Patrick Fitzgerald made a rather important point about the data retention zeitgeist:

Embrace the panopticon Ken, buy yourself a webcam, attach it to your head and stream live 24×7. Plus for good measure get a fitbit with GPS and stream that live 24×7 too – that way at least your friends will know as much about you as your enemies, and you may kill at least one enemy through boredom ;)

As it was, I had already made pretty much the same point earlier in the day on Twitter in answer to a tweet from FOI guru Peter Timmins linking an article about the US situation regarding metadata retention.


 

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Ahead of the zeitgeist on metadata

Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.

I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:

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Debt and deficit emergency half-full glass

That Tony Abbott should have been forced this week to concede defeat on fiscal reform by declaring partial victory over “debt and deficit” (“the glass is half full”) is both ironic and fitting. As I discussed in a fairly recent post, Abbott was responsible for bringing to destructive perfection the toxic mix of “small target” strategy and relentless negativity that both major parties now employ when in Opposition. Tony has now been hoist with his own petard, brought undone by his own success in convincing the electorate to believe erroneously that governmental debt and deficit are universal evils that can never be justified. He finds himself just as helpless to achieve a budget surplus in the foreseeable future as his ALP predecessors, and for essentially the same reasons: unexpectedly slow recovery of revenue in the wake of the Global Financial Crisis; progressive collapse of iron ore and coal prices; and a recalcitrant Senate with an opportunistic Labor Opposition gleefully intent on being just as relentlessly negative towards Abbott as he was towards them.

Peter Hartcher had quite a good article in yesterday’s Fairfax media (which I can’t now find) outlining the recent history of tit-for-tat political bastardry that has brought Australia to our current situation of almost complete governmental paralysis on fiscal policy. However, the cycle of retaliatory fiscal mischief goes back decades. I would date the phenomenon back at least to Paul Keating’s cynical and unprincipled demolition of John Hewson’s Fightback policy in the lead-up to the 1993 election, a tactic that Keating pursued relentlessly notwithstanding that he himself had advocated a GST only a few years previously and that John Howard by contrast had had the guts and integrity (not words that most on the Left would associate with him) to support most of the Hawke/Keating government’s necessary deregulatory, market-based reforms over the previous decade.  The gloves were off on fiscal policy from that moment on.

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Lost the party leadership? Consider yourself lucky …

Amidst all the depressing events of last week’s failed leadership coup in the Northern Territory, there was at least one redeeming feature, at least for constitutional lawyers. Adam Giles’ refusal to resign as Chief Minister, despite losing the confidence of the majority of his party room (albeit in a dodgy unofficial meeting), gave rise momentarily to an occasion for exercise of the Administrator’s reserve powers.

Chief Minister “elect” Willem Westra van Holthe asserted to the assembled media at Government House that Giles’ refusal to sign a resignation letter was just a momentary glitch in his plans to be sworn in as the new Chief Minister by Administrator John Hardie.  They would simply need to prepare an “instrument of termination” for the Administrator to sign.

Unfortunately for van Holthe and his majority coup plotters, the Administrator didn’t agree. He indicated (no doubt after consulting the Solicitor-General) that it was a matter for the Legislative Assembly. In the circumstances that existed last week, that was clearly the case. The conventions of responsible government indicate that an Administrator/Governor should only exercise his reserve powers by dismissing a Chief Minister/Premier/Prime Minister contrary to the incumbent’s advice and appointing a successor in his or her place if it is completely clear that the incumbent has lost the confidence of Parliament and that the claimed successor now enjoys that confidence. Usually that will require the contenders’ numbers to be tested on the floor of Parliament. However, what happens if the claimed successor is able to produce clear written evidence that he/she now enjoys the support of a majority of members of Parliament? Wouldn’t that be sufficient justification for exercise of the reserve powers?

Of course that wasn’t the situation in the Northern Territory last week. Van Holthe had the support of only nine out of the 25 members of the Legislative Assembly i.e. a clear majority of the governing party but not of the Parliament itself. Accordingly, there is no doubt that the Administrator was correct in his interpretation of reserve powers. The only way to resolve the situation was for the contenders to test their support on the floor of the Assembly.  The Administrator no doubt would have exercised his reserve power to recall the Legislative Assembly urgently had the CLP Parliamentary Wing not resolved its leadership dispute (in however bizarre manner) a few hours later.

But what if the situation had been that Giles was refusing to resign but it was clear that the other 13 government MLAs supported the claimed successor van Holthe?  Could the Administrator properly have terminated Giles’ commission and appointed van Holthe without a Parliamentary motion of no confidence? It appears that the question has arisen in several Commonwealth nations with a Westminster system, including Malaysia, India and Fiji. However, the most entertaining example of such a situation is one that occurred in Nigeria. It suggests that the Queen and her advisers do not necessarily regard a no-confidence motion as being an essential requirement for dismissal. The story is recounted by prominent constitutional law academic Anne Twomey:

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Suspend NT self-government!*

*First published as “Abolish NT self-government”.  Last section now significantly rewritten.

Political chaos continues in the Northern Territory in the wake of last Monday’s failed leadership coup against incumbent Chief Minister Adam Giles. Today’s Northern Territory News reports that Giles, who earlier in the week demoted the plotters’ number cruncher, Health Minister Robyn Lambley, to the backbench in an early act of vengeance, is now about to do likewise to Alice Springs MLA Matt Conlan.

Giles is also reported to be about to remove former CLP Chief Ministers Terry Mills and Denis Burke from lucrative government sinecures, apparently as punishment for suspected sympathy for the plotters or perhaps just suspected lack of sympathy for Giles. Controversial CLP fundraiser Graeme Lewis is also rumoured to be about to be sacked from government positions including chairman of the Darwin Waterfront Corporation. I can’t help thinking that the latter looks like a courageous decision in a Sir Humphrey Appleby sense. As long-time chairperson of the CLP slush fund Foundation 51 (currently under investigation by the Electoral Commissioner), Lewis undoubtedly knows where a lot of bodies are buried, in fact he probably buried a lot of them himself. He certainly didn’t look even slightly worried as I had coffee at the table next to him in the Fannie Bay Cool Spot this morning.

This morning’s NT News story also neatly summarises the essence of the appalling conduct by Giles and his supporters which has led us to the current situation of grossly dysfunctional governance, in which the Chief Minister is gleefully wreaking vengeance on a significant number of his party colleagues because they dared to support the majority of government MLAs who have completely lost confidence in Giles’ leadership ability:

Giles retained his leadership despite not holding a vote of the caucus. It was a matter of holding on at all costs, rather than reaching a party room consensus.

Giles ultimately called the plotters’ bluff by threatening to burn the house down.

Westra van Holthe was not able to gain the 13 votes needed to demonstrate the confidence of the Parliament. And if the party didn’t return to Giles, he’d have no choice but to force the rabble to the slaughterhouse of an early election.

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Opposition to Government Strategy 101 (OGS101)

NB This post makes extensive use of the footnote plugin.  The footnote numbers are very small, but they are hyperlinks so you can jump to them by clicking.

NBB The fact that I argue below that a major reason for the demise of the Newman government was the standard template opposition strategy that I outline/discuss does not mean that I personally approve of LNP policies or performance (or those of Tony Abbott for that matter).  In fact I think the LNP richly deserved to be booted out (anti-bike laws, politicisation of judiciary etc).  However, I don’t think the ALP would have gone within a bull’s roar of winning in the absence of OGS101, nor is it obvious to me that Labor will be a significantly better government.  After all, they’re not even promising to repeal the VLAD (anti-bikie) laws, just to “review” them (in itself a classic example of OGS101 in operation).

Yesterday’s seeming electoral triumph of Annastacia Palaszczuk’s Labor rump in Queensland after a single term of LNP government underlines the extent to which the secrets of successful continuous campaigning for an Opposition party have come to be reduced to an almost foolproof formula that almost guarantees successful undermining of all but the most wily or dead lucky incumbent government, even by a telephone booth-sized Opposition with very little visible talent or experience.

The formula largely accounts for the results of the last 3 federal elections and at least the last 2 Victorian and Queensland state elections. It is found in a political spin doctor’s playbook called Opposition to Government Strategy 101 (OGS101).  The formula is well known to spin doctors on both sides of politics but has been kept secret from the general public until now.  Fortunately I have now obtained a leaked copy and reproduce the Executive Summary over the fold:

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