John Ward September 28, 2016 at 3:34 pm

The genius of the Australian Constitution lies in a little subsection called section 75(5). It gives the High Court original jurisdiction in which any person, citizen or non citizen seeks mandamus, prohibition or an injunction against an officer of the Commonwealth. As a result of that tiny little subsection, ministers of the federal government, federal public servants, their agents and others acting on their behalf may be compelled to perform their Constitutional and legal duty and may be restrained from acting in excess of their constitutional or legal power. The section, like lamingtons and Australian Rules Football, is all our own; our own peculiar genius. Not surprisingly, governments of both sides have sought from time to time to cut down the operation of that little subsection; and equally not surprisingly, High Court has resisted their attempts every time. That little subsection is quite unique. It has no equivalent, as far as I know, in any other Constitution. Certainly it has no equivalent in the United States of America. And it is only because America hasn’t got that equivalent provision that we have that legal black hole known as Guantanamo Bay.

In other words our constitution allows ordinary folks to seek the third arm of government the (Judiciary, High court)to Order (Mandate) the Executive arm of government, to honour our treaties and stay within the bounds of those treaties, convention, international laws and declarations.

The High court will order that all responsible officers shall administer treaties, and uphold their duties according to all treaties in which the Commonwealth is a party; and international law and:

– Respond to distress calls and reports of asylum seeker vessels in danger

– Provide rescue, medical treatment, legal advocacy and assisting asylum seekers with refugee status processing in a fair and fast manner as per International conventions.

– Ensure accurate and public reporting of all asylum seeker rescue operations by the Australian Government, Customs, Border Patrol and Royal Australian Navy.

– Close all detention centres offshore; and The High Court writ will mandate all heads of Federal Public Service departments and Armed Services, their agents and others acting on their behalf, to refuse to obey unlawful commands relating to any matter arising under any treaty ; Section 75.(1.) in order to ensure the universal human right to seek asylum is upheld.



This is an edited text of Mary Gaudron’s address to the annual lunch of the Jessie Street Trust held in the Strangers’ Dining Room in the Parliament House, Sydney, on 3 March 2006. Mary Gaudron QC was the first female Judge of the High Court of Australia and served as Justice from 1987 to 2003. She was Deputy President of the Australian Conciliation and Arbitration Commission from 1974 to 1980 and Chairman of the New South Wales Legal Services Commission from 1979 to 1980. She was appointed Solicitor-General of New South Wales in 1981 and held this office until her appointment to the bench in 1987. She is currently a Judge with the International Labour Organisation (ILO) Administrative Tribunal and the member of a panel of external and independent experts who have been appointed by the Secretary-General to explore ways to redesign the system of administration of justice at the United Nations.

Remembering the Universal Declaration

By Mary Gaudron

Who will join me to challenge little mister Hunt?

Misleading and deceptive representations, leading right up to election day 2nd July 2016,

There is now clear evidence of fraud, misleading and deceptive conduct by members of Cabinet. This crookedness needs to be exposed. The sectional interests of our Government Ministers’ Corporate donors are taking precedence over the national interest, and the sustainability of financing for the Renewable Energy Industry.

In 2015,Treasurer Joe Hockey and Finance Minister Mathias Cormann directed the Clean Energy Finance Corporation to exclude investments in household and small-scale solar from the $10 billion fund in the future. The draft investment mandate called for “mature and established clean energy technologies … including wind technology and household small-scale solar” to be excluded from the Corporation’s activities.

Interestingly, the authority to make such changes can only come from the Parliament, not the Executive.

The Executive cannot change an Act of Parliament. The Parliament also authorises the Executive Government to spend public money (not the other way around).

Any change such as the revocation of a part and/or a new investment mandate to the CEFC Act 2012 may only be modified by amendments made, requested or agreed to by the Senate. Stephen Keim QC has provided advice to environmental groups about the Government’s ability to direct the CEFC. He said the Government had the power to put in place an investment mandate but it had to “tread a fairly thin line”.

During 1998, American Petroleum Institute (API), the USA’s largest oil trade association (member companies include BP, Chevron, Conoco Phillips, Exxon-Mobil and Shell) planned a “roadmap” for a climate of deception, including a plan to have “average citizens” believe that the realities of climate science were vague and uncertain.

Australians have been subject to fraudulent and misleading representations, regarding climate change over the past ten years by the people we elected.

The direct effect of the CEFC ‘Responsible Ministers’ acting as de facto or shadow directors of the CEFC has been to create the perception that Australian policy support for clean energy is uncertain or diminished.

These are the same negative outcomes envisaged by the American Petroleum Institute’s (API) 1998 campaign.

A third entity involved in this deception is the pressure group, the Institute of Public Affairs (IPA). The IPA was founded by a conglomerate of like-minded groups at the same time as the Liberal Party formed in 1943-44 after the break-up of the United Australia Party. The policy agenda of the Institute of Public Affairs (IPA) has been linked directly to LNP policy ever since.

To put these linkages in context: The law frowns on the abuse of authority by any elected official i.e. to act with the intention to dishonestly gain a benefit for another person and/or cause detriment to another. This behaviour is defined in law as ‘Misfeasance’ In most cases, the essentials to bring an action of misfeasance in public office are; that the office-holder acted illegally, knew he/she was doing so, and knew or should reasonably have known that third parties would suffer loss as a result.

The last Parliament (2013-2016) twice declined to allow the Executive’s Bill to Abolish the CEFC to become law. Subsequently, the Executive arm of Government had tried for two years to change the CEFC

investment mandate.

Recently, while in caretaker mode, the LNP created a different investment mandate directive (in order to appear to the electors to have authority) to modify the intent of the CEFC Act, without returning to the Parliament (which BTW no longer existed). So apparently they were preparing to seek such an alteration to the CEFC Act in (the next) the 45th Parliament.

During the election campaign Prime Minister Turnbull purported to have the authority to redistribute $1billion from the Clean Energy Finance Corporation (CEFC) to fund his new Clean Energy Innovation Fund (CEIF).

$1 billion was also set aside to finance a ‘Better Cities Fund’ announced two thirds of the way through the campaign.

And a further $1 billion ‘drawn ‘ from the “Green Bank ” to clean up the Barrier Reef ($0.6 Billion) is mentioned in an advertisement in the Australian newspaper for jobs to deliver higher water quality in farm runoff in what looks like a subsidy to sugar / ethanol industry.

$100 million was set aside to prevent the closure of the Steelworks in Whyalla SA, and the University of Tasmania’s Northern Campus in Launceston received a pledge of $150 million to be extracted from the CEFC.

These monies from ARENA are part of the proposed omnibus legislation meant to wedge the ALP. Prime Minister Turnbull is fundamentally saying to Tasmanians “you can have an expanded Northern Campus or a renewable energy industry, but you cannot have not both”.

Malcolm promised money he cannot access, with the total pledged so far being $5.6 billion.

Cabinet Ministers have conspired to remove all funds from the CEFC by pledging the total amount left in the CEFC account to other ‘good LNP causes’.

At the same time Malcolm Turnbull is subsidising the fossil fuel industry with $24 billion of taxpayer funds. This includes exploration funding for Geoscience Australia and tax deductions for mining and petroleum exploration.

Prime Minister Turnbull, Deputy Prime Minister Joyce, Former Prime Minister Abbott, Ministers Pyne, Hockey, Cormann and Hunt are attempting to falsely convince the public that the Cabinet can “re-purpose and re-direct the Act” without going back through the Parliament. These changes to the CEFC Act 2012 are still to be legislated.

Let’s consider the limits the Clean Energy Finance Corporation Act 2012 imposes on the responsible Minister’s mandate.

Section 65: The responsible Ministers must not give a direction under subsection 64(1):

(a) that has the purpose, or has or is likely to have the effect, of directly or indirectly requiring the Board to, or not to, make a particular investment; or

(b) that is inconsistent with this Act (including the object of this Act).

The object of The Clean Energy Finance Corporation Act (2012) is to facilitate increased flows of finance into the clean energy sector.

Joe Hockey and Mathias Cormann attempted to skirt around the law. If this gross ideological interference had not happened, the growth and jobs in the clean energy industry might have delivered some real balance to the downturns in other parts of the economy.

The LNP Cabinet is in contempt of Parliament. Its Ministers have betrayed our trust.

The LNP and the Institute of Public Affairs (IPA) are still using the same script and still following the American Petroleum Institute’s (API) line of climate deception.

In a move away from API policy, in September 2014, Shell CEO Ben van Beurden in an interview with the Washington Post said: “Let me be very, very clear. For us, climate change is real and it’s a threat that we want to act on. We’re not aligning with sceptics” (Mufson 2014), Mufson is a director of Shell USA.

Fraudulent representation means making of a false statement about a material fact, with the knowledge that such statement is false, to another person with an intention that such other person to whom that statement is made must believe it as true and must act upon it resulting in an injury to the person to whom such false representation is made.

Conclusion

There are strong connections between the API and the IPA’s disinformation and the LNP campaign aims.

The links are there. The wrongs have been done. Let us join together to promote public debate on this matter.

http://www.findlaw.com.au/articles/4433/deceptive-and-misleading-conduct-by-corporations-t.aspx

http://reneweconomy.com.au/2015/hockey-sets-impossible-targets-for-cefc-in-green-investments-62743

http://www.smh.com.au/environment/climate-change/australias-renewable-energy-investment-grinds-to-a-halt-20150414-1mkn70.html

http://www.smh.com.au/federal-politics/political-news/government-pulls-the-plug-on-household-solar-20150712-gian0u.html

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9596

AUDIO: CEFC seeks legal advice over Government mandates on wind and solar (Breakfast)

http://www.ucsusa.org/global-warming/fight-misinformation/climate-deception-dossiers-fossil-fuel-industry-memos – .V9fkLmURqEI

http://www.abc.net.au/news/2014-09-08/verrender-why-stop-at-the-mining-tax/5726276

http://www.abc.net.au/news/2015-07-13/government-accused-of-trying-to-shut-down-cefc-by-stealth/6614446

https://ipa.org.au/library/publication/1345447840_document_be_like_gough.pdf

http://www.austill.edu.au/journals/2011/i.html

http://www.abc.net.au/news/2015-07-12/government-lobbies-for-cefc-to-stop-wind-farm-funding/6613590

https://www.evernote.com/shard/s706/nl/2147483647/b1f0c299-c76c-4e8e-9121-fc2054bbc328/

http://reneweconomy.com.au/2016/turnbulls-sleight-of-hand-on-clean-energy-investment-63202

http://www.theguardian.com/australia-news/2016/jun/20/how the coalition-is-using-clean-energy-financing-as-an-election-slush-fund-australia

http://www.smh.com.au/comment/chicken-little-abbott-and-brandis-wrong-on-lawfare-20150821-gj4htj.html

http://www.themercury.com.au/news/tasmania/libs-match-utas-funding-pledge/news-story/e4b625ce3aaf58402ede3543b703452e

http://reneweconomy.com.au/2016/second-tasmania-basslink-will-need-at-least-1000mw-of-new-renewables-89558

https://www.theguardian.com/australia-news/2016/aug/08/abbott-says-lobbyists-as-liberal-party-power-brokers-could-lead-to-corruption

https://www.theguardian.com/world/2013/sep/19/clean-energy-finance-corp-could-sue

http://www.cleanenergyfinancecorp.com.au/the-public-interest-disclosure-(pid)-scheme.aspx

https://www.legislation.gov.au/Details/C2012A00104

https://www.theguardian.com/australia-news/2015/jul/12/coalition-bans-clean-energy-finance-corporation-wind-power-investment

https://www.theguardian.com/australia-news/2016/jun/13/when-you-poke-the-coalitions-great-barrier-reef-rescue-mission-it-crumbles

https://www.ucsusa.org/The-Climate-Deception-Dossiers.pdf

http://www.lectlaw.com/def/f079.htm

http://www.theenergycollective.com/gcooperrfa/227356/busting-big-oil-myths-renewable-fuel-standard-part-i

http://www.smh.com.au/federal-politics/political-opinion/abbotts-climate-change-policy-is-bullshit-20091206-kdmb.html

John Ward

johnlward010@gmail.com

03 62921211

20 Grosse Road

Gordon

Tasmania

7150