Tuesday, March 09, 2010

Rights bill is still a threat

By James Allan, Garrick professor of law at the University of Queensland

NEXT Wednesday, Frank Brennan is due to speak to the Labor Party caucus. Brennan chaired the Attorney-General's committee that came out in favour of a statutory bill of rights.

Brennan was described, when that committee was set up, as a fence-sitter, a disinterested person. Of course that label was nonsense. Before being appointed, Brennan had been on the record more than once as being in favour of Australia enacting a statutory bill of rights. In fact Attorney-General Robert McClelland didn't appoint a single known bill-of-rights opponent or sceptic.

Still, public opposition to this statutory bill of rights proposal, including among a big chunk of the Attorney-General's Labor Party colleagues, has been such that we learned a fortnight ago that cabinet was not treating a statutory bill of rights as a high priority. That's a polite way of saying nothing will happen before the next election.

Enter Brennan and the invitation offered to him by Labor Party proponents of a bill to speak to caucus. Presumably the hope is that Brennan will stiffen the spine of the government and get it to think again. Let's hope not. I'm a long-time opponent of these anti-democratic instruments and the Rudd government was brave to stand up to the chardonnay-sipping lawyers' wing of the party over this.

But what will Brennan say to caucus this Wednesday? Here's my bet. He will tell them that unless Australia enacts a statutory bill, our jurisprudence and judges' decisions will no longer be referred to by top judges in Canada, New Zealand, Britain and Europe. (Americans rarely refer to foreign precedents.)

He'll paint the spectre of isolation and urge caucus to think again. Here's why they should ignore Brennan.

To start, the claim about being isolated jurisprudentially on rights issues if you lack a bill of rights is largely false. When you buy a bill of rights, all you're really getting is the views of unelected judges rather than of elected legislators. But there's no reason judicial views should be more morally attuned or rights-respecting than those of elected legislators.

Take free speech. People in Australia have more freedom to say what they want than do Canadians. Look at hate speech or campaign finance rules or defamation regimes. Canada, which for 28 years has had one of the strongest bills of rights, has noticeably more restrictions on speech than we do here.

In fact, last year Canada's Supreme Court referred specifically to our High Court's views in changing their defamation law. The case was called Torstar. It hardly showed Australia being isolated on issues of free speech.

But if, for the sake of argument, the cost of not having such a bill of rights is that Australian top judges feel a tad isolated when next they jet off to international conferences, that's frankly a cost that is worth bearing. After all, we're talking about transferring power to unelected judges. We're talking about inroads into democratic decision-making.

That's true no matter how often proponents prevaricate and pretend that a statutory version won't make any difference, leaving us to wonder why they would expend so much effort.

The sensible wing of the Labor Party here looks as though it has killed off any explicit enacting of a statutory bill of rights. But the Brennan committee foreshadowed a back-up strategy that the lawyers' wing of the Labor Party just might try.

The ploy here will be to insert one of the key provisions of a statutory bill of rights, known as a reading-down provision, into another statute, probably the Acts Interpretation Act. This transplanted provision will do the same work of authorising judges to interpret all other statutes in a new-age way as it would in a real bill of rights. It will allow them to read other statutes in a way they, the judges, happen to think is more rights-respecting.

A similar provision in Britain has resulted in the judges saying they can ignore the clear meaning of other statutes and the clear intentions of parliament. Put one of these in some other statute and you get a bill of rights in all but name. Watch to see if this secondary ploy is being foisted on the sensible wing of Labor.


Greer rubbished

You may also have read this week that the playwright Louis Nowra has written an essay in The Monthly magazine, published yesterday, to mark the 40th anniversary of The Female Eunuch, Germaine Greer's 1970 treatise. Nowra flays Greer and rubbishes her book.

She just didn't get women, Nowra reckons. Women, he says, still want romance and marriage and children and all the "fripperies" - frocks and make-up and cosmetic surgery - that Greer urged them to give up. (Many surely do.) They "love shopping more than ever". (My daughters certainly do.) Botox injections, says Nowra, have become "virtually a woman's rite of passage". (Mmmm? Maybe around Kings Cross, where he lives. He should get out more.)

Nowra says of Greer: "Her notion that women would use power differently from men was hopelessly idealistic." Perhaps, but so is this from Nowra: "One is immediately struck by how much the Western world has changed for women, who now run corporations and are heads of government bureaucracies, as well as being business leaders, film directors and soldiers. Few occupations are denied women … When Greer wrote her seminal book only 4 per cent of American wives earned more than their husbands; now this figure is verging on 20 per cent."

Wow! In Australia, we read this week, less than 2 per cent of ASX200 companies have a woman at the helm. One in 12 directors is a woman. Women earn 82.5 per cent of men's pay - worse than in 1985. Combat roles for female soldiers are severely restricted. Woman's Day, meanwhile, strikes a blow for the sisterhood by publishing a photo of a teenage Lara Bingle in the shower, taken in 2006 by her then lover, the footballer Brendan Fevola, and the mag reasons it was going to come out anyway. And Bingle was a "home-wrecker". Ding-dong, the witch is fair game. And happy International Women's Day for Monday.

All that said, Nowra's essay is a great read, a brutal but thoughtful and sometimes fair critique of The Female Eunuch and of Greer: the daughter embittered by her narcissistic mother's emotional abuse; the powerful polemicist who inspired women to leave their husbands but who wrote off gays as "faggots"; the fantasist who reckoned mothers could live in farmhouses in Italy where a revolving door of friends, relatives and local peasants would care for their children; the acid-tongued mauler of other prominent women; the woman who imagined herself as the wife of the Bard ("I'd f--- Shakespeare except that he especially asked that his bones not be disturbed"); the author of "dull and graceless" and "increasingly daft" prose; the attention seeker on Celebrity Big Brother; and, ultimately, the "irrelevant noise of a shock jock few people listen to any more".

Perhaps Nowra's cheapest shot is likening Greer, a "befuddled and exhausted old woman", to "my demented grandmother". If the dead could sue, his granny surely would.


Another bungling bureaucracy

Victoria's gun safety laws in firing line

VICTORIA'S gun safety regime is under fire after a string of privacy breaches and other police gun register blunders. Shooters and traders say public safety is at risk from errors that could see information about guns fall into the wrong hands.

In one of the worst examples, one person received about 80 registration certificates for a single gun. And a gun dealer was sent five application forms for a dealer's licence it had already renewed, along with a renewal for a pistol owned by an unknown person and the private details of a second shooter. In other cases the details of guns and their owners have simply vanished from the registry.

Firearm Traders Association secretary Graeme Forbes said the State Government had failed to act on warnings sensitive information was leaking and ignored calls for an independent review.

The registry keeps track of registered firearms and to alert officers to the presence of firearms on properties they visit. Mr Forbes said the system was so bad the Police Minister had to intervene last June to allow about 100 traders to stay open as police failed to send licence renewals out on time. In December, Victoria Police was forced to remove from its website a list of licensed gun traders that included traders who had died, retired, closed, had their licences bought back by the Government or, in one case, been charged with criminal offences.

Mr Forbes said the force's only response was to promise a new computer server and to re-establish a Firearms User Group. "These are serious public safety issues," he said. "This is especially the case after the fuss the federal and state governments made about firearm laws in the late 1990s."

Combined Firearms Council president Bill Patterson said serious concerns had been passed to the Police Minister more than a year ago. "We were told the minister was very concerned and was initiating a report on the registry," he said. "It's been 14 months and we've got nothing we can point to that's being done." "That is why we have put in place the strictest gun licensing controls and tough sanctions for firearms trafficking. "We have also introduced the toughest prohibited person arrangements and the strictest regime for the controls over imitation and replica firearms."

A police spokesman said the registry relied on information provided by shooters and police were keen to enhance communications with shooter groups to address their concerns.


Retrospective land tax to hit Queensland property investors

UNLESS we can stop it, sometime soon (maybe this week) new laws will be passed in Queensland which are breathtaking in their scope and audacity. They will massively increase the cost of living and doing business in Queensland.

Under the innocuous title of the Valuation of Land and Other Legislation Bill 2010, the Queensland Government will literally rewrite history and rewrite the dictionary. It will retrospectively change the way land tax is applied in Queensland – back to June 30, 2002. Imagine, as others have observed, if the Federal Government retrospectively changed the corporate tax rate from 30 per cent to 50 per cent and back-dated the decision by eight years?

But the most serious change is to redefine "unimproved" land to actually include improvements. I know that sounds hard to believe, but the Bill will redefine "unimproved" to include the hard work of property owners, including (among other things) the buildings they have erected, the leases they have in place, business goodwill and infrastructure charges. The absurdity of this is highlighted by a clause in the Bill which states that "unimproved value" has been given "a special meaning that must be applied whether or not that definition accords with the ordinary meaning of that term". George Orwell, the author of 1984, would have been impressed with this real-life example of doublethink.

What does all this mean? It means the more successful you have been at improving the value of your land or business, the more land tax you will pay. And contrary to the Government's claim, the Bill will have an effect on residential properties by increasing the value of residential land.

While your home remains exempt from land tax, your investment property may not. Just think about this for a moment: the "benefit" you receive from rental income from an investment property will now be included in calculating the "unimproved" value of your land, which then determines your land tax bill. These effects are not restricted to property owners, with increased costs able to be passed on to tenants.

Of significant concern is the fact that this Bill was introduced after the Queensland Government lost several court cases and subsequent appeals over the past six years. The courts consistently found that the Government was not valuing land in accordance with its own legislation. Each time, the Government argued for certain interpretations of the law. Each time, its case was dismissed. Now, the Government's losing arguments have been incorporated in this Bill. Natural Resources Minister Stephen Robertson had the audacity to dismiss the opinions of many learned judges in a press release on February 11 when he said it was the Government's intention to "correct the Appeal Court's interpretation of the law".

How can business operate in Queensland with that kind of uncertainty? If the Government truly believed the courts got it wrong, it could have appealed to the High Court – the fact that it didn't speaks volumes.

I can be no clearer than this: If this Bill is passed, it will massively increase the cost of living and doing business in Queensland. It will increase costs for owners of investment properties and for all businesses, not just "the big end of town".

And, alarmingly, the Government has also changed the appeal process. It will be almost impossible to object to a valuation issued by the Government, which will have the ability to decide whether or not a land owner is allowed to take the Government to court in a valuation dispute. Effectively Caesar judging Caesar.

It is our view that this Bill has been designed solely to raise revenue from Queensland property and business owners. It is a bare-faced money grab.

The Property Council is in no doubt that the Government has not considered (or, at best, doesn't understand) the full ramifications of the proposed changes. The Government doesn't even consider them as changes. In his speech to Parliament, the Minister said "the Government's policy has always been to value land as developed".

In the past month I have not spoken to a single valuer who agrees with that interpretation. We must stop this Bill being passed because the changes will destroy property values and capital investment in Queensland.


1 comment:

Anonymous said...

The Qld Govt full well understands what it is doing with this bill. The sole purpose of the Qld Govt and all of the other labor Govts in Australia is to undermine Australians with increasingly heavier taxation and laws until this country is able to be delivered to the UN and thus to socialisation. How else to explain the massive waste of money since the Rudd Govt and all other Labor Govts came to power. Australia is well on the way to becoming a basket case nation. Copenhagen was to be a king hit to us. One World Govt has many, many powerful allies and will never give up.