Joe Kelly | The Australian | 3 September 2011
OFFENDED judges and magistrates have hit back at Julia Gillard's criticism of the High Court and Chief Justice Robert French, labelling her attack as "unfair" and "extraordinary".
As Labor waits for legal advice from the Solicitor-General on the High Court's decision to overturn the Malaysia Solution, the Prime Minister was yesterday forced to clarify the intention of her attack.
Ms Gillard said she had sought only to put the facts of the matter on the table because the public was entitled to an explanation and, strengthening her rhetoric, claimed the High Court had "changed the law".
"I don't resile from one word of what I said," she told Sky News.
"The simple facts are that there were precedents that obviously those advising us legally drew on.
"Some of those precedents are from the current Chief Justice of the High Court himself.
"They were part of what the legal advice to us rested on."
Ms Gillard dismissed suggestions she had challenged the separation of powers as "ridiculous" and provided a reassurance her government had accepted the court's decision.
But the Judicial Conference of Australia -- with a membership of more than 600 judicial officers across the nation -- yesterday suggested Ms Gillard had gone too far.
"Responsible criticism by one branch of government of another is a healthy sign of a free society," said the organisation's vice-president, Philip McMurdo.
"Irresponsible criticism, especially from a Prime Minister, could tend to upset the balance of separated powers which is essential to that society."
The JCA said yesterday Ms Gillard's statement that the High Court had missed an "opportunity" to smash the people-smugglers' business model fundamentally misconstrued the role of the court and was "misguided".
"It is not the court's role to look for and take 'opportunities'. Its job here was to decide whether the minister's actions were lawful, according to the statute which the parliament had enacted," the JCA said.
Ms Gillard's decision to single out Chief Justice French for special criticism was described as "extraordinary" and "unfair". "He is one of six justices who reached the same conclusion. The seventh dissented," Justice McMurdo said.
The rebuke from the legal community comes as the government prepares to receive the advice of Solicitor-General Stephen Gageler on the consequences of the Malaysia Solution for offshore processing.
The advice, expected within days, is thought to confirm his initial oral counsel to the cabinet on Wednesday night following the High Court's decision to overturn the Malaysia Solution.
Some Labor MPs believe there will be scope for offshore processing to continue despite Ms Gillard's warning that the decision could throw the practice into doubt.
While the Solicitor-General's legal advice could tie the future of offshore processing to the need for further legislation, the opposition says this step is not necessarily required.
"There is nothing in the High Court decision that outlaws offshore processing," opposition legal affairs spokesman George Brandis said.
Showing posts with label George Brandis. Show all posts
Showing posts with label George Brandis. Show all posts
Wednesday, September 7, 2011
Monday, August 29, 2011
What sort of A-G would George Brandis make?
Greg Barns | The Drum | 29 August 2011
George Brandis would no doubt like to be attorney-general, the first law officer of Australia, in the next Coalition government.
Senator Brandis is a barrister and a senior counsel, although the latter appointment was the subject of harsh criticism given it was awarded to him six years after he gave up active practice at the Queensland Bar.
But Senator Brandis's conduct in the Craig Thomson affair provides cause for concern about what sort of attorney-general he would be if the opportunity arose. Senator Brandis has pursed the ALP backbencher Thomson with a vigour that is disturbing on a number of levels.
Firstly, there are the telephone calls to ministers and police commissioners. Senator Brandis called New South Wales Attorney-General Greg Smith, a fellow Liberal, in early August. Smith says that Brandis was alerting him to a forthcoming media story which would reveal Brandis had asked the New South Wales DPP to look at the Thomson matter.
Then a couple of weeks later Brandis was on the phone again, this time to speak with New South Wales Police Minister Michael Gallacher to again alert him to the fact that Brandis would be sending a brief to the Police Commissioner Andrew Scipione. Gallacher himself alerted Scipione to look out for the Brandis brief.
Then there was Brandis's call to Australian Federal Police Commissioner Tony Negus last week. Brandis apparently wanted to clarify whether the AFP would be investigating the matter.
Even if we accept that Brandis did no more than inform his New South Wales colleagues of what he was up to, it was unwise of him to call them given the political stakes in the Thomson affair. Brandis did not need to call Smith and Gallacher, and in doing so he showed that he lacks judgment because he has allowed his political opponents to accuse him of lobbying to have the Thomson matter investigated.
George Brandis would no doubt like to be attorney-general, the first law officer of Australia, in the next Coalition government.
Senator Brandis is a barrister and a senior counsel, although the latter appointment was the subject of harsh criticism given it was awarded to him six years after he gave up active practice at the Queensland Bar.
But Senator Brandis's conduct in the Craig Thomson affair provides cause for concern about what sort of attorney-general he would be if the opportunity arose. Senator Brandis has pursed the ALP backbencher Thomson with a vigour that is disturbing on a number of levels.
Firstly, there are the telephone calls to ministers and police commissioners. Senator Brandis called New South Wales Attorney-General Greg Smith, a fellow Liberal, in early August. Smith says that Brandis was alerting him to a forthcoming media story which would reveal Brandis had asked the New South Wales DPP to look at the Thomson matter.
Then a couple of weeks later Brandis was on the phone again, this time to speak with New South Wales Police Minister Michael Gallacher to again alert him to the fact that Brandis would be sending a brief to the Police Commissioner Andrew Scipione. Gallacher himself alerted Scipione to look out for the Brandis brief.
Then there was Brandis's call to Australian Federal Police Commissioner Tony Negus last week. Brandis apparently wanted to clarify whether the AFP would be investigating the matter.
Even if we accept that Brandis did no more than inform his New South Wales colleagues of what he was up to, it was unwise of him to call them given the political stakes in the Thomson affair. Brandis did not need to call Smith and Gallacher, and in doing so he showed that he lacks judgment because he has allowed his political opponents to accuse him of lobbying to have the Thomson matter investigated.
Senator Brandis: better get a lawyer, son
Alex Steel | The Drum | 26 August 2011
NSW police might be investigating allegations of credit card misuse by Craig Thomson as a result of a letter from the Shadow Attorney General Senator Brandis, but certainly not as a result of what the letter thinks is the law. If Senator Brandis was a law student his letter would be a clear fail. This is deeply worrying given his hope to be the nation's top law officer.
On Wed the ABC reported that Brandis's letter stated:
He said the maximum penalty for fraud was 10 years imprisonment.
Well, no. As any good law student can tell you in NSW stealing (larceny s117) only applies to the taking of physical property from the victim. It doesn't apply to electronic transfers of money or the creating of credit card debts. Neither to the acquisition of services, such as by prostitutes.
Fraudulent appropriation (s124) requires an indictment for larceny and only applies if a person has obtained physical property in a way that was not criminal but later dishonestly decides to keep it or ask for a reward. A good example is a person who finds lost property and decides later to keep it. Again, not applicable to credit card debts for services.
Larceny by clerk or servant (s156) is an aggravated from of larceny where the accused is an employee. No larceny, no fraudulent appropriation offence. It doesn't apply to credit card debts or services. So far no possible basis for a charge.
Brandis is on firmer ground when he alleges fraud may have occurred. But the offence he refers to is s192E, an offence that only came into force in 2010 - after the date of the alleged fraud. The correct offence - which had a maximum penalty of five years jail, not 10 - was s178BA which prohibited a person "by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage".
Sure it's pedantic to point this out. And there wouldn't be a problem if a member of the public made these mistakes. But for the Shadow Attorney-General to make a formal written allegation of crime to the Commissioner of Police and to allege a range of offences that could not possibly be the basis for a criminal charge is beyond sloppy.
It suggests that the Senator's staffers wrote this for him in a hurry in order to score a political point. They appear to not know the criminal law in NSW. It looks as though they looked at a copy of the Crimes Act circa 2011 and just jotted down the section titles that seemed to fit.
While none of this detracts from the gravity of the alleged misbehaviour by Craig Thomson, the Shadow Attorney General's reputation as a lawyer is diminished by this sloppy over-egging of the political attack.
Alex Steel is an Associate Professor in the Faculty of Law at the University of NSW.
NSW police might be investigating allegations of credit card misuse by Craig Thomson as a result of a letter from the Shadow Attorney General Senator Brandis, but certainly not as a result of what the letter thinks is the law. If Senator Brandis was a law student his letter would be a clear fail. This is deeply worrying given his hope to be the nation's top law officer.
On Wed the ABC reported that Brandis's letter stated:
"I submit there is a strong prima facie case that he has committed one or more offences against the Crimes Act… I draw your attention, in particular, to the offence of larceny; fraudulent appropriation; larceny by a clerk or servant; and fraud.Senator Brandis said he considered the clearest offence to be fraud, "where a person who by any deception dishonestly obtains property belonging to another or obtains any financial advantage".
He said the maximum penalty for fraud was 10 years imprisonment.
Well, no. As any good law student can tell you in NSW stealing (larceny s117) only applies to the taking of physical property from the victim. It doesn't apply to electronic transfers of money or the creating of credit card debts. Neither to the acquisition of services, such as by prostitutes.
Fraudulent appropriation (s124) requires an indictment for larceny and only applies if a person has obtained physical property in a way that was not criminal but later dishonestly decides to keep it or ask for a reward. A good example is a person who finds lost property and decides later to keep it. Again, not applicable to credit card debts for services.
Larceny by clerk or servant (s156) is an aggravated from of larceny where the accused is an employee. No larceny, no fraudulent appropriation offence. It doesn't apply to credit card debts or services. So far no possible basis for a charge.
Brandis is on firmer ground when he alleges fraud may have occurred. But the offence he refers to is s192E, an offence that only came into force in 2010 - after the date of the alleged fraud. The correct offence - which had a maximum penalty of five years jail, not 10 - was s178BA which prohibited a person "by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage".
Sure it's pedantic to point this out. And there wouldn't be a problem if a member of the public made these mistakes. But for the Shadow Attorney-General to make a formal written allegation of crime to the Commissioner of Police and to allege a range of offences that could not possibly be the basis for a criminal charge is beyond sloppy.
It suggests that the Senator's staffers wrote this for him in a hurry in order to score a political point. They appear to not know the criminal law in NSW. It looks as though they looked at a copy of the Crimes Act circa 2011 and just jotted down the section titles that seemed to fit.
While none of this detracts from the gravity of the alleged misbehaviour by Craig Thomson, the Shadow Attorney General's reputation as a lawyer is diminished by this sloppy over-egging of the political attack.
Alex Steel is an Associate Professor in the Faculty of Law at the University of NSW.
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