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.

Reunion blues

1B 1960

Last weekend I flew down to Sydney partly to attend the 50th anniversary party for the Class of ’65 from Harbord Primary School on the northern beaches. Many old school photos were exchanged, including the one above showing me (circled in red) at the age of seven.

The function was at Manly Bowls Club in the heart of Tony Abbott territory and the night went pretty much as I imagined it would.  Some of us have lived fairly happy and prosperous working lives, others less so, and a surprising number are dead.

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How not to wedge an opponent – a beginner’s guide

clpadThe Northern Territory Country Liberals’ early start to election campaigning looks to be just as chaotic as the rest of its term of government. The last month of taxpayer-funded blatantly party political advertising doesn’t seem to have had much of an impact on voters, except perhaps to reinforce existing perceptions of blatant “snouts in the trough” behaviour. Of course Labor did pretty much the same thing when it was in government, but arguably not quite as blatantly.  The CLP advertising fairly clearly breaches section 6 of the Public Information Act, which is contravened by “information” which “promotes particular party political interests;  includes statements that are misleading or factually inaccurate; or does not clearly distinguish a statement of facts from a statement of comments.

Historically the Auditor-General hasn’t been especially diligent in finding breaches of the Act, but this morning’s effort may change that. Demonising Labor and the Independents for daring to deny urgency to a Bill that clearly wasn’t urgent, and listing the names of those MLAs alongside those of the CLP MLAs who supported urgency is just about as clear an example of promoting particular party political interests as it is possible to imagine.

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The VCAT model – civil litigation revolution-in-progress

lawyer-no-ethicsNicholas Gruen recently posted about the high cost of civil court proceedings in Australia (and for that matter throughout the common law world):

A more promising kind of imperialism would be the application of simple economic principles to the way various social systems are managed. HECs and managing child support within the tax system are examples of this kind of reform. We should apply it more widely to our system of civil law which, as it stands is a scandal – available to the rich and those poor enough to access legal aid, but only otherwise to those willing to risk a large part of their life savings.

I can see what Nicholas is saying, and it’s a powerful indictment of a legal system whose traditional design may (perhaps) deliver Rolls Royce justice but also at Rolls Royce prices. Moreover, well-intentioned reforms based on the recommendations of the UK Woolf Committee from the 1990s, the most frequently adopted approach to achieving more accessible and affordable civil justice, have at best had mixed success.  Woolf-style reforms have been implemented to varying degrees by courts throughout Australia, arguably most fully in the Northern Territory’s Supreme Court.

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Abbott’s secret war on Australian workers

This is the second of two posts musing about Labor’s failure to deal with the full implications of the neoliberal revolution that the Hawke-Keating government unleashed from 1985.  That revolution was significantly easier for the Coalition to embrace, because extreme classical liberal ideology was already a part of its policy gene pool.

For Labor, however, neoliberal policies were almost wholly antithetical to the party’s history, culture and raison d’etre.  Although Paul Kelly’s conception of the Australian Settlement is a bit simplistic, it provides a useful framework to understand the extent of the shock to Labor values.  The White Australia Policy had already been swept away in the 1960s and replaced by multiculturalism by the Whitlam government.  But the aftermath of the Arab oil shocks and the collapse of Bretton Woods convinced Hawke and Keating, no doubt under heavy tutelage from Treasury and Finance bureaucrats, to jettison the other two major pillars of the Australian Settlement: tariff protectionism and completely centralised wage fixing by way of arbitrated awards.

It was argued at the time that Australian wages and conditions had been featherbedded by protectionism and the arbitration system, we had become internationally uncompetitive and would soon become a “banana republic” or the poor white trash of Asia if radical action wasn’t taken.  Deregulation, especially of the labour market, was the answer.  I remember (but can’t now find the quote) someone from the newly formed HR Nicholls Society commenting that their aim at least was to restore competitiveness by engineering a situation where every worker would be motivated because they would come to work every day afraid they might lose their jobs unless they toed the line.

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Unions, neoliberalism and the royal commission

The furore of the last few days over the Trade Union Royal Commission and revelations about serious and illegal underpayment of workers (especially foreign students) by 7-Eleven, Australia Post and others have brought into sharp focus a wider political question.  This article deals with the first of them, and I’m aiming to write a post about the second over the weekend.

It is increasingly clear that neither the political nor industrial wings of the Labor movement have come to terms with the full implications of the neoliberal revolution that Bob Hawke and Paul Keating embraced and set in motion from 1985 onwards.  Labor is far more interested in discrediting Royal Commssioner Dyson Heydon at just about any cost than in confronting the evident systemic problems that its hearings have revealed.

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Re-imagining a Labor election manifesto

Despite the fact that Federal Labor has consistently led in opinion polls over the last year or so by between four and six percentage points, most pundits (including the writer) have very little confidence that Labor will win the next election. In fact I expect they will more than likely lose.

Bill Shorten (assuming he survives as leader) is unlikely to win by continuing with his small target “me too” strategy where there isn’t a cigarette paper’s width between the policies of Labor and the Coalition on hot button issues like national security/terrorism and asylum seekers.

This article is based on the (admittedly courageous) proposition that a small target strategy is not the only way to win an election from opposition. It is possible to achieve government by winning people’s hearts and minds with an imaginative and popular positive policy platform, even though the last Opposition Leader who succeeded in doing so was Gough Whitlam in 1972. Of course I might be wrong, but here is my stab at an election policy manifesto that I reckon Shorten or his successor should adopt:

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Citizenship-stripping and the Constitution

TONY ABBOTT CITIZENSHIP PRESSERThe chorus of public concern over the constitutionality of the Abbott government’s citizenship-stripping proposal is growing.  Malcolm Turnbull has again been emboldened to break ranks with his Prime Minister while denying he is doing any such thing.

It will be ironically appropriate if the citizenship-stripping issue ends up derailing Abbott’s plans to revive his ailing leadership in the wake of the failed spill motion against him earlier this year. Abbott’s strategy ever since he achieved Liberal Party leadership in late 2009 has been squarely based on racist dog whistling and inflaming national security paranoia.

The fact that citizenship isn’t even mentioned in Australia’s Constitution flows in part from similar racist sentiments among our Founding Fathers. They couldn’t work out a plausible way to define Australian citizenship without conferring it on Chinese, Japanese and Pacific Island migrants not to mention Aborigines. As South Australian delegate James Howe put it: “the cry throughout Australia will be that our first duty is to ourselves, and that we should… make Australia a home for Australians and the British race alone.”[1] No sly Abbott/Howard-style dog whistling in those days; our forefathers were openly and proudly racist.

The solution our Founding Fathers came up with was to avoid mentioning citizenship in the Constitution, but give the new Commonwealth Parliament wide-ranging powers to make laws with respect to immigration and “aliens”.  The new Parliament proceeded to enact the White Australia policy.

This deliberate constitutional silence is one reason why it isn’t certain whether the Abbott government could now validly legislate to confer the power to strip citizenship on a Minister rather than a court.

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Stripping Australian citizenship – the illusory protection of judicial review

Human rights lawyer Kerry Murphy has a very useful explanation of the weakness of judicial review as a safeguard against new laws foreshadowed by the Abbott government which would permit arbitrary ministerial stripping of Australians’ citizenship from those accused/suspected of terrorist activity.  However, if anything the situation is even worse than Murphy says.  Citizenship is arguably the most fundamental right any Australian possesses, without which no other human rights protection is assured, even the most basic application of the rule of law. And yet our citizenship right itself is not protected by our Constitution.

We don’t actually know exactly what provisions the citizenship-stripping law proposed by Abbott and his Immigration Minister Peter Dutton will contain, but you can bet they will include the following:

  1. A subjective opinion clause;
  2. A clause requiring national security or criminal intelligence information to be withheld from a suspect and his lawyers but nevertheless to be used against him.

These provisions have become increasingly popular with governments at both federal and state levels since the “moral panic” induced by September 11.  As a result, the combination of enthusiasm for greater power and less accountability on the part of both politicians and intelligence agencies, and a relatively supine response on the part of the High Court, has had drastic adverse consequences for the freedom and human rights of all Australians.  It is hardly an exaggeration to observe that in today’s Australia the right to impartial judicial review of executive government action, which was intended by the drafters of our Constitution to be a fundamental aspect of our system of national governance, is now an optional extra that governments can effectively negate almost at will.  And yet hardly anyone knows about it.

That is probably because some of the concepts are quite difficult to explain clearly to non-lawyers.  Nevertheless, bear with me. It’s important and worth “unpacking” the argument.

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Showdown at the Supreme Court corral

Queensland’s judicial system looks to be in quite a bit of strife at present. The former Newman LNP government’s ill-advised appointment of an utterly unsuitable Supreme Court Chief Justice in Tim Carmody is continuing to cause serious problems.

Mercifully, at least Carmody CJ has been belatedly bludgeoned by his judicial colleagues into recusing himself from further hearing an appeal against conviction by Brett Cowan, who was convicted last year of the murder of Daniel Morcombe.  Carmody CJ  grudgingly admitted when pressed that he had held a private meeting with Hetty Johnson, outspoken founder of child sexual abuse lobby group Bravehearts, while considering the Morcombe appeal.  Simultaneously the DPP is appealing Cowan’s sentence as manifestly inadequate.  Daniel Morcombe’s parents apparently don’t agree, but Carmody’s colleagues may have actually done them a favour.  Had he not recused himself, there is a significant probability that an appeal to the High Court on grounds of reasonable apprehension of bias would have succeeded. The Morcombe family would have been faced with a least a couple more years of litigation pressure and lack of “closure”.

Holding private meetings with parties and their associates during court proceedings is one of the classic bases for disqualification on bias grounds. Bias decisions on this ground almost always cite McInerney J in R v. Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; (1973) VR 122:

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