BBC Our World: Australia and New Zealand Troubled Neighbours

[BAM]

There is no bill of rights in Australia. Neither legislative nor constitutional. Dutton's huge portfolio has certainly accrued him a lot of power and political empire. I was very relieved that his leadership challenge wasn't rewarded with an unelected Prime Ministership.
He had his wings clipped a little (lost the immigration portfolio to Coleman).

Australian bill of rights aren't really necessary due the numerous decisions of the High Court stating those types of rights are implied constitutional protections.

 

[Ruprecht]

Australian bill of rights aren't really necessary due the numerous decisions of the High Court stating those types of rights are implied constitutional protections.

Too easily changed by legislation like the "Bikie laws" introduced by the states which would conflict with rights of free assembly and association.

 

[BAM]

Too easily changed by legislation like the "Bikie laws" introduced by the states which would conflict with rights of free assembly and association.

There was a case in 2014 at the High Court about that issue. However the solicitor for the bikie put the wrong question to the court. The freedom of association ground went untested.

 

[Ruprecht]

I don't fully agree with the above. There are real protections such as the ability to seek a judicial review of an administrative decision. Arbitrary decision making is a ground to undo a decision

But, where the Australian gov can be a bit harsh is when they revoke a visa and throw you indefinitely into an immigration detention centre while you go through the court process.

It could be better.

The arbitrary bit is what exactly will disqualify you from passing the Character Test and when such grounds will be applied. It's at the discretion of the minister, which fails to maintain separation of powers, and the minister refused to abide by the tribunal which was supposed to act as a check and balance.

 

[Ruprecht]

There was a case in 2014 at the High Court about that issue. However the solicitor for the bikie put the wrong question to the court. The freedom of association ground went untested.

We've seen the same thing time and again, including with arbitrary detention and technological surveillance. The whole raft of politically motivated hyperlegislation over terrorism laws would have been curtailed if there were a bill of rights.

 

[BAM]

The arbitrary bit is what exactly will disqualify you from passing the Character Test and when such grounds will be applied. It's at the discretion of the minister, which fails to maintain separation of powers, and the minister refused to abide by the tribunal which was supposed to act as a check and balance.

Actually, what you wrote isn't technically true.

The Tribunal in that matter was undertaking a merits review and was thus acting with executive power, as enabled by the legislature. The Minister then set that decision aside which the legislation allows him to do.

Then the matter was taken to judicial review which is the power of the courts which did act as a check on his power, as envisaged.

 

[BAM]

We've seen the same thing time and again, including with arbitrary detention and technological surveillance. The whole raft of politically motivated hyperlegislation over terrorism laws would have been curtailed if there were a bill of rights.

A bill of rights just for citizens or a bill of rights inclusive of non citizens?

Re serveilance, there isn't a right to privacy. Is privacy in your bill of rights? That could be handled with local legislation, and usually is.

 

[Renard]

Crime types for character cancellations over the last 12 months

Oh boy, missing out on all those wonderful non-citizen pedos, kidnappers, murderers, wife beaters, rapists...

 

[Ruprecht]

Actually, what you wrote isn't technically true.

The Tribunal in that matter was undertaking a merits review and was thus acting with executive power, as enabled by the legislature. The Minister then set that decision aside which the legislation allows him to do.

Then the matter was taken to judicial review which is the power of the courts which did act as a check on his power, as envisaged.

Well, you can say the Tribunal wasn't well designed as a check and balance by the legislature then, because of the legal provision to set the decision aside. As I understand it that only applies to character tests which the minister themself (a minority of cases) "suspects of failing". Dutton was pushing for a review of even those Tribunal powers. That's not usually the case with the Administrtive Appeals Tribunal.

 

[Ruprecht]

A bill of rights just for citizens or a bill of rights inclusive of non citizens?

Re serveilance, there isn't a right to privacy. Is privacy in your bill of rights? That could be handled with local legislation, and usually is.

It would basically be an update and reinforcement of the privacy act. I believe it was included in the bill of rights proposed last year.

Right to protection from arbitrary interference

Every person has the right to:

(a) protection of privacy, family, home and correspondence from arbitrary or unlawful interference; and

(b) protection from unlawful attacks on honour and reputation.

In particular it would have dampened the National Security Amendment Bill, freeing us from the onerous possibility of a $50,000 fine or 5 years jail for failing to provide access to private information without even being suspected of a crime.

 

[BAM]

Well, you can say the Tribunal wasn't well designed as a check and balance by the legislature then, because of the legal provision to set the decision aside. As I understand it that only applies to character tests which the minister themself (a minority of cases) "suspects of failing". Dutton was pushing for a review of even those Tribunal powers. That's not usually the case with the Administrtive Appeals Tribunal.

Well, merits review isn't a check and balance issue re constitutional law rather it's a decision refinement process. Often there are several levels of internal review prior to a tribunal being involved including peer review or panel review. The Tribunal can substitute a decision and usually that's that, but the legislation wanted the minister to have this set aside power for a reason. This multi-tiered process allows for the administrative review to occur quicker and at a lower cost to the public and the applicant, allowing better access to justice.

The court is the real check, but you don't want to jump a tier if you don't have to because it gets more expensive every tier you climb

 

[BAM]

It would basically be an update and reinforcement of the privacy act. I believe it was included in the bill of rights proposed last

In particular it would have dampened the National Security Amendment Bill, freeing us from the onerous possibility of a $50,000 fine or 5 years jail for failing to provide access to private information without even being suspected of a crime.

Edit - changing the constitution to add the bill is quite onerous. Better off amending the act itself for multiple reasons

 

[Ruprecht]

Edit - changing the constitution to add the bill is quite onerous. Better off amending the act itself for multiple reasons

I don't think it was proposed as a constitutional bill of rights.

 

[Ruprecht]

Well, merits review isn't a check and balance issue re constitutional law rather it's a decision refinement process. Often there are several levels of internal review prior to a tribunal being involved including peer review or panel review. The Tribunal can substitute a decision and usually that's that, but the legislation wanted the minister to have this set aside power for a reason. This multi-tiered process allows for the administrative review to occur quicker and at a lower cost to the public and the applicant, allowing better access to justice.

The court is the real check, but you don't want to jump a tier if you don't have to because it gets more expensive every tier you climb

That was the major criticism by the Human Rights Commission and comments from the AAT in regards to Dutton's comments and intentions.

Merits review is intended to provide a check on certain kinds of decisions by the executive to ensure robust decision-making. The current process provides the opposite: an executive check on independent tribunal decisions.

The judge said his decision would not be swayed by public or political pressure. Independent courts and tribunals acted as “checks on the exercise of arbitrary power” and resisting government pressure “may call at times for singular moral courage and depth of character”.

 

[BAM]

I don't think it was proposed as a constitutional bill of rights.

I had a look it's a Cth Act but it lacks teeth as it's not entrenched in the constitution. Further it lacks utility in a legal pov as it's drafted ambiguously and would cause more problems than it solves. Vast majority of it is redundant anyways.

Imo, amend the Privacy Act instesd

 

[BAM]

That was the major criticism by the Human Rights Commission and comments from the AAT in regards to Dutton's comments and intentions.

A Tribunal undergoing merits review is not a constitutional check. It is not a court. Rather the Tribunal member is to step in the shoes of the decision maker via the power of the executive branch. They are to not only apply the acts but ALSO executive policy in making the decision.

If they have to apply policy, they are not the check you are thinking of.

HRC is a political org more than anything. They are a bit of a joke in legal circles.

The check, by design, is the court.

 

[sweede]

@BAM and @Ruprecht thank you for interesting reading. But I´m kind of lost here, what are you arguing about? I wonder what you both think of Duttons above the law decision making. There was this case about the biker going to the highest court and won, but he still got deported.

 

[Ruprecht]

A Tribunal undergoing merits review is not a constitutional check. It is not a court. Rather the Tribunal member is to step in the shoes of the decision maker via the power of the executive branch. They are to not only apply the acts but ALSO executive policy in making the decision.

If they have to apply policy, they are not the check you are thinking of.

HRC is a political org more than anything. They are a bit of a joke in legal circles.

The check, by design, is the court.

In these cases even the high court decisions don't seem enough.

 

[Ruprecht]

@BAM and @Ruprecht thank you for interesting reading. But I´m kind of lost here, what are you arguing about? I wonder what you both think of Duttons above the law decision making. There was this case about the biker going to the highest court and won, but he still got deported.

I think Dutton's powers over immigration are(were) arbitrary and lacking in sufficient checks or balances, as a symptom of a general lack of protection of individual rights and civil liberties in Australia.
BAM disagrees.

 

[sweede]

I think Dutton's powers over immigration are arbitrary and lacking in sufficient checks or balances, as a symptom of a general lack of protection of individual rights and civil liberties in Australia.
BAM disagrees.

You mentioned he is a right wing populist. Does he have a strong backing for doing so or is he doing it by himself? What about the opposition, don´t they make any complaints? From what I could see, the New Zealand government want to take action, because they are not ok how Australia is handling these matters. After all you are neighbours and friends, and as such there should be more rights than privilege in play.