Modern Man Discovers Financial Gravity

When Sir Isaac Newton sat under his favourite apple tree, or so the conventional story goes, he dozed off only to be rudely woken by a maturing apple clonking down on his head. it is the sharp resulting pain that it is said led to his sudden realisation, simple though it may sound, that "what goes up must inevitably come down", from which the great man went on to contemplate that a force "magnetic like" was in the earth which attracted everything to it including man. Inevitably this force had the power to attract everything leaving the planet's surface back to it - the force we now call gravity.

This got me thinking that in recent times there have been some gravity defying events, for example, the  GFC which saw most of the world economies fall but in defiance saw most of the worlds wealthy escape unscathed, unlike the less wealthy who become even less wealthy, loosing jobs, getting less interest from banks. When it comes to the rich I think gravity is defied, wealth heads in an upward direction building on its self and seldom comes down as the rich are favoured by governments, banks and most institutions in society. Government of the conservative type has even been said to say that "we should favour the rich as wealth will trickle down"! Indeed and if one considers it right that some should drink from the glass while others, the majority, are forced to wait for a trickle then that theory works.

So if a modern equivalent of Newton sat under a fruiting money tree in a modern free market plutocracy such as exist in the modern world today the modern Newton story might look like this:

                             

NSW v Kable: Detention and False Imprisonment

In the recent decision NSW v Kable [2013] HCA 26 (delivered on 5 June 2013) the High Court of Australia has ruled on the validity of claim for damages grounded in abuse of process, false imprisonment and malicious process against the State of NSW.

In the case the High Court ruled unanimously to allow an appeal by NSW holding that a detention order made by a Supreme Court judge of that State under legislation subsequently held to be unconstitutional was a defence to a claim for "false imprisonment".The order it was found by the High Court valid until it was later set aside on appeal.

Background

The respondent (Mr Kable) was detained in custody for six months in 1995 pursuant to an order of the Supreme Court made under the Community Protection Act 1994 (NSW) s 9. Mr Kable unsuccessfully appealed against the detention order to the Court of Appeal NSW and after Mr Kable was released from his detention, he successfully appealed to the High Court which ordered that the detention order be set aside on the basis that the Act was unconstitutional and therefore,invalid.

As a result of the Court of Appeal decision Mr Kable commenced proceedings in the Supreme Court, claiming damages against the State of NSW for abuse of process, false imprisonment and malicious prosecution. In those proceedings the Supreme Court allowed the appeal in part, holding that Mr Kable should have judgment against the State of NSW for damages assessed on his claim for false imprisonment.

Result

By way of a special leave appeal the State of NSW appealed to the High Court of Australia which unanimously allowed the appeal concluding that the detention order under which Mr Kable was detained was valid until it wad set aside. As such it provided lawful authority for Mr Kable's detention. The original orders dismissing Mr Kable's claims were reinstated.

Financial Recognition of Local Government: Constitution Alteration (Local Government) 2013 Bill

The Constitution Alteration (Local Government) 2013 Bill was introduced into the House of Representatives on 29 May 2013 and Wednesday (5 June 2013) was passed by the lower house. The Bill proposes to amend the Commonwealth Constitution s96 to make specific provision in relation to the granting of financial aid to local government bodies of which there are currently 565 many of whom struggle finically while trying to meet a growing list of funding demands .

Background

The Attorney-General in speaking to the Bill said that in August 2011 the federal government had appointed an Expert Panel on Constitutional Recognition of Local Government chaired by former Chief Justice of the Supreme Court of NSW, the Hon James Spigelman AC QC (the Expert Panel) to identify options for the constitutional recognition of local government.

In December 2011 a majority of the Expert Panel members concluded that financial recognition of local government by amendment of the Commonwealth Constitution s 96 was a viable option within the 2013 election timeframe and led to the Commonwealth Parliament establishing a Joint Select Committee on Constitutional Recognition of Local Government to inquire into and report on the majority finding of the Expert Panel in November 2012. It subsequently supported the findings of the Expert Panel that a referendum on financial recognition of local government be held at the 2013 federal election.

Whistle Blowers get a Harsh Deal

In an article in SMH (5 June 2013) it is reported that informing a regulator like Australian Securities and Investments Commission (ASIC) of corruption may not be as easy as it might at first seems: "[i]f you've come across something rotten in the organisation you work for and are thinking of blowing the whistle to the corporate regulator, think twice".

The SMH report deals with a group of "whistle blowers" at the Commonwealth Bank who contacted ASIC in October 2008 with detailed information outlining "serious flaws" in the bank's financial planning unit. But, as reported, instead of ASIC moving quickly on the serious tip-off that one of the bank's top financial planners had engaged in systemic misconduct and his files were being "cleaned up", it took ASIC 16 months to take action and even more concerning is the lack of protection offered to the whistleblowers in the case.

One of the "whistle blowers" quoted said ''We dealt ASIC the cards to take 10 tricks but they settled for six . . . My whistleblower protection consisted of advising me to 'get out with what you have left'."

Although there have been Bills for proposed laws in four states (QLD, VIC, NSW and NT) as well as the CTH aiming to protect whistleblowers are in progress in those jurisdictions none have as yet been enacted  into law and all continue to use the terminology  "whistle blower" with all the pejorative connotations that Australian society connects to the term. Reading stories like this one  it is difficult not to wonder whether if citizens who take it upon themselves to do the right thing were not referred to as "whistle blowers" words which seems to evoke the view that such a person is a "tattle-tale" or "lag" instead of being someone who did the right thing, it might not go better for the said "whistle blowers". Is it our less than splendid origins as a penal settlement that seem to favour a less sympathetic disposition to people who take the often lonely path of revealing corruption, prejudice or deficient administration or even criminal activity by blowing the whistle on it?

Whistle blowing is right not wrong? To be encouraged and supported by government, policy and integrity commissions and regulators? More so than ASIC appears to have done in this case.

Source: Blow the whistle, face the music (SMH)

New Start Bill referred to Senate Committee for Inquiry and Report

The Senate has referred the Social Seurity Amendment (Supporting More Australians into Work) Bill 2013 (the Bill) to a Senate Committee for inquiry and report. The referral has been very much supported by the Greens who have been critical of the legislation. Senator Rachel Siewert (Australian Greens spokesperson on families) saying:

"This Bill allows people on very low payments like Newstart to earn a miserly additional $19 per week before their income support begins to be affected."

Nature of the Inquiry

The Bill has been referred to the Senate Education, Employment and the Workplace Relations Legislation Committee for inquiry and report by 17 June 2013. Key measures in the Bill include:

(i) Proposed increase to the income free area applying to recipients of benefits like Newstart Allowance, Widow Allowance, Partner Allowance, Parenting Payment (Partnered) and Sickness Allowance. The increase in the income free area would increase benefits from $62 to $100 per fortnight starting from 20 March 2014 and would be subject to an annual indexation.

(ii) Proposed extension to the eligibility criteria for the Pensioner Education Supplement to single principal carer parents receiving Newstart Allowance Payments from 1 January 2014. 

(iii) Proposes provision of a 12 week extension of eligibility for the Pensioner Concession Card to single parents who are no longer qualified for Parenting Payment (Single) because their youngest child has turned eight years of age, and who do not qualify for another income support payment due to earnings - commencing on 1 January 2014.

Green's Reasoning for Inquiry

The view of Senator Siewert and the Greens is that the short Inquiry would allow the Bill to be dealt with before the end of the current Parliament in June 2013, while at the same time providing the community with the formal opportunity to respond to the measures.

Key criticisms from the Greens include:

The amount of extra casual work proposed: "That's one hour of work extra per week at the casual minimum wage. The Bill does nothing to actually help people into work or to overcome the financial pressures they are facing."

The increase in the income free area: "Such a meagre increase of the income free area - from $62 to $100 per fortnight - falls short of the $50 per week increase to Newstart that has been widely called for. The fact is people on Newstart need an increase to Newstart and an improvement in the income free area."

The timing of changes: "To compound matters, the increase does not start until March 2014, so will offer no relief whatsoever until well after the election".

Indeed the Newstart benefit in particular is agreed by most social welfare advocates to be well below where it should be to provide fair and reasonable treatment for those on it and well below a sustainable living standard even a subsistence level. For his the Greens should get credit for trying to get more. However, it perhaps should also be noted that this is the first federal government in 20 years who has moved to increase such benefits, albeit perhaps not enough?

For those interested making submissions to the Committee have been requested by 11 June 2013 and the reporting date for the Committee is 17 June 2013. Click here to see more information.

Sources:

• Parliament of Australia Web Page
• Senator Rachel Siewert, Australian Greens spokesperson on families Media Release date 3 June 2013 (Chris.Redman@aph.gov.au)

Technology and the Law: Live Tweeting

The effects of modern technology on traditional professions like the law continues to be a topic of wide debate. In a speech for National Law Week Chief Justice Chris Kourakis South Australia's top judicial officer is reported by the ABC as saying that the traditional Court system "is struggling to keep up with technological change and that is hampering its effectiveness".

Further, in his speech, his Honour is quoted as saying "changes are needed to make the justice system more accessible to the public". One reform discussed in his Honours speech in this which has drawn much attention and puts technology into the spotlight is that of allowing journalists and media to use Twitter and Blogging technologies live from the court room during the hearing of cases.

His Honours speech refers to "the idea of journalists tweeting or filing stories from inside court rooms," saying . . . "[it] could become a reality in the near future, but not without restrictions". In his proposal, accredited reporters would be the only people allowed to broadcast information and tweeting would not be allowed to become "a running commentary".

An example of the controls which could be imposed given by his Honour is delaying tweeting of information to control what is reported, to cover evidence given which for legitimate reasons may need to be suppressed or corrected before its publication.

Currently the use of the Twitter techology to allow accredited journalists to file stories while in court is allowed in New South Wales, Victoria and in the United Kingdom and is likely to spread further, as the right parameters and practises are established.

In other areas of the law, Twitter is already coming in to wider usage as well, for example, if on any sitting day of the Australian Parliament you searched the hash tag #qt you'd see an online stream of thoughts, comments and reaction by observers, mostly journalists, and even the participant politicians themselves, during question time.

In the view of legal practice in SA, the Law Society can see both advantages and disadvantages to live Tweeting - its spokesman quoted as saying:

"Live Tweeting would have its challenges, but equally it's very important for the community at large to understand what happens in our courts."

Wider issues discussed by his Honour with respect to technology in his address, were the desire to see more court documents filed electronically, saving time and money; and extending the use of audio and visual technology during trials, "but not going as far as broadcasting trials .

Sources:

• Courts facing challenge of tweeting and technology (ABC)
• Plan to allow live tweeting from South Australian court proceedings (Adelaide Now)
• Tweeting from Courts (Kelly & Co)

"King Rat" not Unfair but Part of Political Vernacular

The Australian Press Council (APC) in a recent decision on 27 May 2013, has found that a digitally altered photograph of former House of Representatives speaker Peter Slipper was not highly offensive or unfair.

The person making the complainant, Jan Winstanley, said she was: "... horrified by the material and found it was highly offensive, unfair and goes against every principle that I am trying to instil in my children and in my workplace."

The photograph which covered most of the front page showed Peter Slipper MP standing at the Speaker’s Chair in the House of Representatives announcing his resignation from that office. His ears, nose and teeth digitally altered to resemble a rat, whiskers were added to his face, and a very large rat’s tail had also been appended to his body. The Daily Telegraph argued the altered depiction of Mr Slipper and the headline describing him as “King Rat” were “robust and powerful”. However it argued they were not unfair or offensive because they related to aspects of his behaviour falling within the long-established use of the term “rat” in the Australian political vernacular.

In its decision, the Council considered that the use of the term “King Rat” used in this context was not so highly unfair and offensive as to outweigh the public importance of allowing robust expressions of opinion on issues of political controversy, and in relation to digital alteration of the photograph, the Council considered that altered photographs are not necessarily to be assessed on precisely the same basis as if they were cartoons. 

This decision is yet another example of why there is little or no chance of balanced reporting in the Australian media while a situation prevails where one or two media organisation not only control most of the press but also having a large voice  regulating standards and ethics.

Another example of the same bias is the recent lampooning beyond reality and fact of the federal Minister for Communication for simply backing a mild legislative attempt to introduce some impartiality into media regulation. Legislation like that successful introduced in the UK to curb the excess caused by a media organisation run by the same company that owns the Daily Telegraph. 

Then there is the well known 2GB announcer who on an almost daily basis plays to bias and uses racist and derogatory terms to seed hatred and division. He too has fronted tribunal after tribunal and to date has profited from the experience in increased rating and thumbed his nose at any attempt to make him accountable.

Freedom of speech indeed is a most important sacred right but equally no right should be taken for granted or abused by people who hide behind it with the clear purpose of whipping up hate against those they do not like or favour.