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)

Continue reading

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.

Continue reading

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:

Continue reading

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.

Continue reading

The Peris Affair: perhaps ethically dubious but not legally

I don’t have a particularly high opinion of Senator Nova Peris. I certainly don’t think Prime Minister Julia Gillard should have effectively sacked long-standing and well regarded Senator Trish Crossin to get her into Parliament. Moreover, even if it was reasonable to aim at getting new blood into the Senate and do so by introducing a capable Aboriginal woman, retired Territory Minister Marion Scrymgeour would have been a much better bet.

However, none of those factors justifies publication of the story about Senator Peris’s romantic liaison with international superstar Ato Boldon, at least with the slant it was given. Let me be clear. I certainly don’t take the Pollyanna attitude that the salacious emails should not have been published at all. Whatever some may assert, I suspect there wouldn’t be a single newspaper editor anywhere in Australia who would have refrained from publishing those emails if he/she had them and had obtained them lawfully (or at least without any specific knowledge about how they were obtained).

If they had merely been published as an avowedly prurient exercise in boosting tabloid circulation (as gossip magazines do on a weekly basis), I would have no problem at all. However, the Northern Territory News attempted to dress up its publication with an element of “public interest” which is almost certainly spurious.

Continue reading

Bogan sheilas and stupid men with beer guts

496696.1.highKevin Rudd’s announcement yesterday of a Special Economic Zone in the Northern Territory surely comes very close to the silliest election promise of the last decade, matched only by Tony Abbott’s almost identical promise a couple of months ago.

The only positive aspect of either policy is that as far as one can tell neither Rudd nor Abbott is actually serious.  They are merely producing shiny but worthless policy baubles in the hope that they might impress a few gullible voters in the highly marginal seat of Solomon.

The problem is that both of them are not only insulting the intelligence of Territorians but our memories as well. They must think we have a collective dose of Alzheimer’s Disease. They certainly wouldn’t have tried it 15 years ago, maybe not even a decade ago, because back then there were still too many Territorians with quite fresh memories of the financial fiasco that had occurred last time a “free trade zone” was tried as a magic bullet solution to the Territory’s chronic underdevelopment.

Continue reading

How much does it cost to make sure income support recipients don’t waste their money?

Nobody knows exactly how much it costs to administer Income Management. But government estimates suggest that it could be as high as $150 a week per person in remote areas. According a recent report from the Australian National Audit Office:

… departments were aware that providing income managed services to people in remote areas would be more costly than providing services to those in rural and urban areas. The estimated costs were:

  • remote areas—between $6600 and $7900 per person, per annum;
  • rural areas—between $3900 and $4900 per person, per annum; and
  • urban areas—between $2400 and $2800 per person, per annum.

The estimated cost in urban areas works out at around $50 per week per person. The same amount welfare advocates want government to add to the single rate of Newstart Allowance. Continue reading

Darwin’s property market – a case study in muddled public policy

My post on the Territory’s recent mini-budget has resulted in an interesting comment box discussion about Darwin property prices.  At first blush general Troppo readers might not find it all that absorbing, but in fact the dynamics of Darwin’s property market provide an instructive example of the interplay between government policies and actions, market forces, demographics and a range of other factors.

Are Darwin real estate prices anomalously high?  How about rents, which haven’t really figured at all in the comment box discussion? This article examines those questions in some depth, and then explores possible public policy solutions.

Continue reading

Hairy palms and letters to the editor

I haven’t been posting on Troppo much lately, mostly because I’m pretty fully occupied establishing with partners a new private legal practice in Darwin, Melbourne and Adelaide by early January.

However I haven’t been able to restrain myself from indulging in the first sign of madness, namely writing letters to the editor of the local Northern Territory News.  They mostly seek to debunk its current lowest common denominator populist crusade against the entirely responsible economic policies of the new Mills CLP government.  The NT News currently sees itself as the propaganda arm of the ousted Labor regime, which is rather bizarre given the biases of the Murdoch press elsewhere in Australia.  Unfortunately the editor didn’t see fit to publish my last effort, and he probably won’t publish this one either, so I’ll post it here instead:

Dear Sir

Although there are valid concerns about some individual spending cuts announced in the Mills CLP government’s mini-budget, its overall direction and settings are in my view modest, responsible and appropriate. As many would know, I am anything but an uncritical CLP apologist.

Continue reading