Dutton's department challenges federal court's authority to order Nauru transfers

This is a small local version of a big problem in the USA.:  Does the judiciary have the right to tell the administration what to do?  Or should they stick to saying whether some existing action is legal or illegal? Clearly, they do not have any authority to run the administration but for various reasons  American politicians have not challenged the "Ultra vires" meddling of the courts -- so it is heartening to see the Australian government taking it on


 A child refugee is transferred off Nauru. The rate of medical transfer orders has ratcheted up as the health crisis worsens
The Australian government is challenging the legality of the federal court hearing applications for urgent medical transfers of refugees and asylum seekers held on Nauru.

The move comes amid a rush of transfers, and appears in contrast to claims made by Australian Border Force to those detainees that the delays are due to the Nauruan government.

Should the federal court action be successful it has the potential to void some previous orders, forcing those cases to refile in the high court.

The rate of medical transfer orders has ratcheted up as the health crisis worsens, criticism of the policy strengthens, and the Nauruans appear to have stopped attempting to block departures.

The home affairs department raised the jurisdictional challenge in a case involving a child detainee, her mother and two siblings, Fairfax Media reported.

The family have already been transferred to Australia. But lawyers for Peter Dutton’s department have continued to argue that under section 494AB of the Migration Act, the federal court cannot hear legal proceedings against the commonwealth relating to a “transitory person”. It is believed to be the first time the government has made this argument in about 50 cases relating to the transfer of people from Nauru.

On Thursday two federal court judges ordered both parties to submit their arguments in coming days for a yet-to-be scheduled expedited hearing, expected next week. The child, an 11-year-old Iranian girl, is being represented by the law firm Robinson Gill and the Human Rights Law Centre.

“This has come out of the blue, and there’s a risk it could make it much harder for desperately unwell children to get the urgent, lifesaving medical care they need,” said Daniel Webb, director of legal advocacy at the HRLC.

The challenge appears at odds with the government’s messages to detainees laying the blame for transfer delays with Nauruan authorities. Guardian Australia is aware of ABF writing or verbally suggesting to people or their lawyers that the department had approved their medical transfer but Nauru was holding up cases.

One correspondence said the government of Nauru had to approve all transfers through its overseas medical referral committee, which examined medical evidence and recommendations for treatment outside the country.

The letter claimed that it had “become apparent that the government of Nauru will no necessarily act on the recommendations of the OMR committee. Rather it will exercise a residual discretion which is being referred to as ‘uplift approval’. This discretion is being exercised by the Nauruan Secretary of Multicultural affairs personally.”

The secretary is Barina Waqa, daughter of President Baron Waqa. She was also identified as the bureaucrat who blocked the court-ordered transfer of a detainee last month.

The letter said the Australian government had a presence on Nauru in the ABF, and it was through that which the government “can attempt to achieve your clients’ transfers to Australia”.

ABF was there at the pleasure of the Nauruan government, however, which had “made it clear” it was expected to respect the OMR and uplift approval process.

It said the department would take all reasonable steps to arrange a transfer but ultimately this depended on the Nauruan government.

In many cases, doctors have recommended medical transfers for months or even years. The first known case of Nauru officials blocking transfers was in early September, and Guardian Australia understands that the practice appears to have stopped.

Australia’s government has shifted messaging in recent weeks, responding to criticism of its intransigence to calls for a mass evacuation with the claim that it has brought dozens of children off the island for medical care.

While many of the transfers have been through ABF and the OMR process, or in immediately agreeing to a legal application before it gets to the hearing stages, others have required the intervention of a federal court judge.

“Time and time again we are seeing the government force children at risk of dying to go to court at all hours of the night to get emergency, lifesaving medical care,” Webb said. “We’re talking about 52 kids who have been detained for over five years. They need an urgent, humane resolution, not more political games.”

A spokeswoman for the Department of Home Affairs told Guardian Australia the department had been “obliged to raise the matter once it became aware of the jurisdictional issue”.

The challenge had not impacted any medical transfer cases, she said, and all would be dealt with in the usual way until the matter was resolved.

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The annual war on Christmas by spoilsports has begun. Pressure from another Melbourne council forces closure of popular Christmas lights display that has raised thousands for charity over 18 years

Another Christmas lights display in a Melbourne suburb has been cancelled due to pressure from an unhelpful local council.

Despite raising thousands of dollars for charity since 1999, the lights display in St Helena will not be staged this year.    

It comes just weeks after the popular Xmas lights display in Narre Warren was also cancelled by council due to astronomical costs associated with traffic issues.

Frustrated organisers of the Allumba Drive event in St Helena, a suburb in north-east Melbourne, say relentless pressure from Banyule City Council over the past few years resulted in the outcome, leaving the local community seething.

On the event's Facebook page, it is described as one of Melbourne's 'biggest and brightest' light displays which has been running for just under two decades.

The event draws huge crowds each December and has collected almost $20,000 for the Make A Wish Foundation.

An organiser of the light display in St Helena explained why the difficult decision was taken.

'Putting up the Christmas lights is the easy part – dealing with the council and compliance is the difficult part and we just don't have the time or the money to do it any longer,' he told 3AW.

'On the back of the lack of co-operation from Banyule City Council, we decided we would not submit an application for the Christmas period of 2018.

'We are tired of the drama the (light) display causes and our decision to not go ahead this year is final.'

The organiser did encourage people to continue to donate to the Make-A-Wish Foundation, which grants wishes to children diagnosed with critical illnesses.

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No end in sight to electricity consumers paying for poor policy

We were staying in a Queensland country town a few weeks ago. I got talking to the owner of the local bakery. He was looking at his latest ­financial statement that the ­accountant had sent through. And there it was in black and white. His annual power bill last financial year was $114,000. It had been a tad over $30,000 two years before.

He employs 30 people, some on a part-time basis. Business seemed to be brisk but it’s hard to put up the price of pies and buns too much without demand dropping.

It’s easy to concentrate on the impact of rising electricity prices on households. And let’s be clear on that score. In real terms, the ­average retail price of electricity over the 10 years ending in 2017-18 rose by 51 per cent and the average retail bill rose by 35 per cent (people have used less electricity, in part because of the higher prices).

But for many small and med­ium-sized businesses, the increase in their electricity bills has been higher again. Many are exposed to the full variations in wholesale ­prices, which have risen from less than $40 a megawatt hour to more than $100/MWh before settling around the $70 to $80/MWh mark. This threatens the viability of a number of businesses.

It’s hardly surprising the federal government has decided to focus on getting electricity bills down. Let’s be clear about reduced emissions and the commitment the government has made to the Paris climate agreement — the target in respect of electricity will be met by the early 2020s. Every participant in the industry ­acknowledges this.

It’s one of the reasons why the emissions reduction target that was part and parcel of the now ­defunct national energy guarantee was superfluous. Note also there was considerable manipulation going on of the precise details of this target to suit the activist ambitions of those promoting the NEG. The only part of the NEG now worth saving relates to the ­reliability obligation, which is ­likely to become binding much sooner than generally expected.

For those who complain about a decade of energy policy paralysis, the truth is there has been a constant and active government policy position over that time. Renewable energy sources have been massively promoted, favoured and subsidised.

The renewable energy target, which remains in force until 2030, has spun off subsidies to renewable energy generators to the tune of about $80/MWh (the value has been higher in the past) through large-scale generation certificates. The value of these LGCs is expected to drop but not for several years.

In addition, there have been the interventions of reverse auctions run by state governments and the ACT that provide guaranteed cash flow for renewable energy projects. There are also the rules in the National Energy Market that give preferential dispatch to renewable energy generators. And there are the mountains of subsidies available through bodies such as the Clean Energy Finance Corporation and the Australian Renewable Energy Agency.

Estimates put the value of the subsidies paid to the renewable ­energy sector at between $2 billion and $3bn a year, paid by consumers and taxpayers. That’s not policy paralysis; that’s policy promotion of a particular sector. If we ignore the decimation of the business models of dispatchable power generators and the much higher electricity prices we have had to pay, arguably the policy has worked. It is estimated that $2bn was invested last year in renewable energy generation — a record amount. And this year the boom has been even bigger.

The Clean Energy Regulator has released information that 34 renewable energy power stations with a combined capacity of 667MW were accredited last month, which was the largest single month of solar and wind ­capacity since April 2001. Nearly 2800MW has been accredited so far this year, compared with the previous annual record set last year of 1088MW.

The CER also notes about 1600MW of rooftop solar will be installed this year — the six panels every minute scenario mentioned by Audrey Zibelman of the Australian Energy Market Operator — which is up 44 per cent on last year. There are now more than three million small-scale installations. Note there are also about 40,000 commercial solar systems.

Now, if renewable energy could provide reliable electricity at ­affordable prices, these trends would be great. But even on the most optimistic estimates of the boosters of renewable energy, wind can produce at most 50 per cent of the time and solar at 30 per cent. This produces a very large shortfall that has to be covered by firming capacity. Batteries and pumped hydro don’t come close to filling the gap and are unlikely to do so for many years.

And here’s another thing that needs to be considered when ­observing the boom in renewable energy investment: 10 coal-fired power stations with a total ­capacity of more than 5000MW have left the grid since 2012. None of these stations has been replaced.

What is beginning to emerge is a crisis affecting the grid that makes up the National Electricity Market, which covers South Australia, Victoria, NSW, Queensland, Tasmania and the ACT. This is being recognised by AEMO, which worries about the reliability of the grid in general and the possible shortfall of power in South Australia and Victoria at certain times during the coming summer.

The NEM electricity grid has always been long and skinny. It is now longer and skinnier, with far too much unreliable renewable energy and far too little firming ­capacity. This is the principal reason why federal Energy Minister Angus Taylor is so focused on getting more firming capacity into the system to back up the runaway ­investment in renewable energy.

It is also why he has decided to take a resolute line with the large “gentailers” — think AGL, Origin and Energy Australia — whose ­behaviour has contributed to the growing fragility of the system as well as to rising prices. The companies are quite capable of manipulating the market while promising to invest in firming ­capacity but never quite following through with their plans.

Of course, in a normal competitive market government should always refrain from intervening to force down prices. But the electricity market is not a normal market. Apart from the fact electricity is an essential service, the high ­degree of market concentration almost certainly means prices are higher than they should be. The egregious behaviour of the retail divisions of the gentailers, by dudding loyal customers in particular, indicates they cannot be trusted. Just ignore their howls of complaints about the downsides of regulation. By setting a reference price for standing offers, this will force down prices more generally, and the companies know it.

By bringing more dispatchable power into the system as quickly as possible — another focus of Taylor — wholesale prices will hopefully fall, bringing further price relief for customers. The truth is the gentailers have been feasting on high wholesale prices. Surely no one will complain if the government offers the same cost of capital to new dispatchable power plants that is available to ­intermittent ­renewable energy plants?

With all this new renewable ­energy coming into the market, there is a real question mark over the commercial viability of some of the projects. When the wind is blowing and the sun is shining, wholesale prices can be driven to low levels. Clearly, the backers of these projects are basically betting on the election of a Labor government to impose a higher emissions reduction target and a reinstituted RET. In this scenario, we would expect electricity prices to resume their upward trajectory.

The NEM is in disarray, but let’s not kid ourselves that this is because of policy paralysis. This is because of incredibly poor policy where the consequences in terms of price and reliability were completely foreseeable. The challenge for the federal government is how to pull us back from this abyss.

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From a safe distance we’ll watch Tasmania’s gender folly fail

When it comes to Tasmania’s plan to become the first state to erase a baby’s gender from a birth certificate, please doff your cap to our federalist forefathers. They deserve more credit than we often give them. The federal system set down in our Constitution means one state can conduct a social experiment while the rest of the country looks on and learns.

The federal structure has the other added bonus of offering a shorter distance between the rulers and the ruled, at least on matters reserved to the states. That won’t save a state from foolish politicians, but as a matter of democratic will we cannot fault the gender-bender politics of Tasmania’s parliament. If most voters cannot agree on who should govern their state, instead opting for a motley crew of politicians more interested in social experiments than economic policy, well then, that’s democracy.

People get the politicians they deserve. And in Tasmania, the Liberal Hodgman government relies on the casting vote of a Speaker elected to the position with Greens and Labor support. The original bill is sensibly aimed at ending the need for transgender people to divorce before they can change their gender on official documents. The Greens and Labor then went further, pushing for amendments to remove gender from birth certificates, with Speaker Sue Hickey’s support.

If the bill passes, watch that other magnificent part of democracy: blowback from voters when politicians overstep the mark. And people in mainland states have the luxury of watching this social experiment unfold and the chance to harness sensible arguments so we do not follow Tasmania’s folly.

Where do you start when it comes to talking about sex and gender? I tried delving into the academic world for some clues. That was a mistake. I discovered a morass of ivory tower posturing, confusion and weird new words meant to uncover some old and apparently persistent evil. Calls to erase sex and gender as a way to topple the white/cis/hetero/patriarchal supremacy and normativity sound better suited to a horror movie than reasoned argument.

I bumped into feminists who think that transgender people who alter their gender reinforce sexist gender roles. And others who say that transgender people challenge oppressive gender norms. I found some academics who think that if you were a man, you experienced male privilege, so it is impossible for you to be a real woman. I found mind-numbing academic references to phallocractic technology and “the transsexually constructed lesbian-feminist”.

I discovered intra-feminist conflicts between women, including lesbians who feel threatened by trans activism. And I was struck by the many, many accusations of transphobia by those who brook no disagreement with their activism and their agenda.

After that entanglement with feminist theories and trans activism, I was still interested in trying to work through Tasmania’s dalliance with sex and gender politics. So, I headed closer to the ground. I read hundreds of comments from readers of this newspaper that followed the report that Tasmania may expunge gender from birth certificates. Most of the readers expressed tolerance, respect for human dignity, thoughtful ideas, a real distaste for discrimination and a great deal of common sense.

Their sentiments exposed a glaring chasm with the unintelligible tosh and intolerance common to many academics. So allow me to mention what Edmund Burke night call the gritty wisdom of unlettered men and women.

One reader, Pamela, said this is another step to take away identity — and notice it is by those people who routinely sup at the table of identity politics. She said she struggled to understand people who wish to dominate others. “If some wish to omit gender of their child (from a birth certificate), OK, but others should be allowed to do what they wish.” Many many readers echoed Pamela’s belief in freedom of choice for parents of newborns.

Many recognised the difference between sex as a biological reality and gender as a social identity that for some will differ from their chromosomal mix. One writer suggested that we keep sex on birth certificates but discard gender. That was echoed by Sandra, who suggested we “send ‘gender’ back to the grammarians and the ‘gender studies’ departments in the ivory towers”.

Gizelle saw the bright side to expunging gender from birth certificates: “this could be the end of the virtue-signalling for female quotas”. Dream on. More likely the same people who want gender banned are likely “the same people, in a different forum, calling for gender-related targets for business and politicians as well”, said another reader.

Here we go again, said Howard. “A vocal minority not satisfied with their win on same-sex marriage.” Barbara agreed, asking: why must we strip the majority of people of an important part of their identity to accommodate the agenda of a tiny minority? They both have a point.

The plan by the Greens and Labor to erase gender from birth certificate is part of a broader plan to erase gender identity altogether, or at least make it mighty difficult to include mention of gender if you are just a woman or a man.

The proposed amendments will prohibit the registrar of births, deaths and marriages from including information about the gender of a child, unless required by a court or an applicable federal law. A person over 16 may record their gender by statutory declaration. A child under 16 years of age would need a declaration by at least one parent and the child’s own express wish, with a magistrate deciding any disputes.

The public reasons from LGBTI activists for these changes do not match their private agenda. What LGBTI advocate Rodney Croome fails to explain is how it is discriminatory to offer parents a choice to record the sex of their newborn on a birth certificate.

Banning gender on a birth certificate does not encourage tolerance and inclusion, but stripping people of their gender at birth cements a social experiment aimed at encouraging gender fluidity.

Tasmanian Greens leader Cassy O’Connor said the current laws require that transgender people undergo invasive reproductive surgery if they want to change their birth certificate to reflect their identity.

If that is the case, have a debate about that rather than using a legal sledgehammer to remove gender from all birth certificates.

Transgender activist Martine Delaney says removing gender from birth certificates won’t harm anyone.

How can she know that? If a man is able to pass himself off as woman using a genderless birth certificate to gain entry to women’s spaces, or ends up in a women’s prison, how can Delaney know there are no risks to women’s safety?

In the debate over sex, gender and the law, women’s groups are increasingly arguing for caution and consideration of all groups, not just a transgender minority.

Delaney’s intervention is a neat reminder of her illiberal approach to open debate about same-sex marriage when she raced off to Tasmania’s Anti-Discrimination Commissioner because she was offended by a pamphlet from the Catholic Church that set out its teaching on marriage.

Expect the same intolerance with more confected claims of hurt feelings, hate speech and transphobia. That is the experience from Britain where far-reaching changes allow for self-identification, possibly with no time periods or medical advice needed. If John wakes up one morning and decides he is Jane, he can self-identify as a woman for legal purposes before the sun sets. None of this is to mock the vast majority of transgender people who endure excruciating mental and physical anguish about their sex and their gender. But to suggest there are no dangers in a radical social shift is like believing in pixies.

To shut down those who wish to raise questions, now a routine tactic among some trans activists in Britain, is worse than ignorance. It is intolerance. Writing in The Spectator earlier this year, Judith Green from Woman’s Place UK outlined physical threats, social media harassment and hate-based vilification aimed at her group and any venue where they meet to discuss the consequences of new gender laws on women, children and society as a whole.

Last week, the Speaker of Tasmania’s lower house, who will decide whether gender is erased from birth certificates in that state, said the world is changing. Hickey said we need to be open to considering things that might discriminate or harm someone. It works both ways. As one reader of this newspaper wrote last week in response, “in the not too distant future I can imagine a world where it will be almost impossible to get through a day without offending someone, or some group”.

Note again the contrast between the live-and-let-live sentiments of many readers of this newspaper and the freedom-loathing agendas of academics, bureaucracies and politicians.

Language police in Victoria ­expect public servants to use gender-neutral pronouns. Language police in the ACT Labor caucus want to remove all references to Mr, Miss, Mrs or Ms in parliament. In some Australian primary and secondary schools, social media activists funded by Facebook are instructing students that gender identity exists on a ­spectrum.

And now social engineers in Tasmania want to erase gender altogether from birth certificates: no choice, no freedom to differ, just one-size-fits-all genderless babies.

These days, the political divide is less about Right and Left and more about those who believe in greater freedom and those who don’t. History reminds us that human dignity rests on people having more, not less, freedom.

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Posted by John J. Ray (M.A.; Ph.D.).    For a daily critique of Leftist activities,  see DISSECTING LEFTISM.  To keep up with attacks on free speech see Tongue Tied. Also, don't forget your daily roundup  of pro-environment but anti-Greenie  news and commentary at GREENIE WATCH .  Email me  here