One of the justifications for Howard’s workplace relations changes in the area of unfair dismissal is supposed to be speculative actions encouraged by ambulance chasing lawyers to the great cost of employers.
Responding to community concern about the removal of unfair dismissal protections, Howard now plans to give dismissed employees $4000 worth of legal advice to take their employers to the AIRC.
And, as one would expect from this champion of choice and free markets, you won’t be able to pick your own lawyer or advocate. No:
Legal advice will come from a panel of legal firms selected by the Government under an annual tender process.
Roughly o/t, can anyone explain the High Court decision:
The full court of the High Court has this morning ruled against the claim lodged by ACTU secretary Greg Combet and shadow attorney-general Nicola Roxon claiming the $20 million campaign breached the constitution because the money had not been authorised by Parliament. In handing down their decision, the judges said the plaintiffs had not established any basis for their claim, namely “declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.” The judges said said it was inappropriate then to answer the question that it was wrong to withdraw money from Treasury, given that the plaintiffs had not established any basis for the release,
Huh? Come again? I also heard on the radio that it was a majority decision. How did they split?
That way, only firms with substantial billing rates will get the work, ensuring the quality of the representation and the effort expended. Top rates : top lawyers; $4000 : less than a week’s work.
The HC press release is here (.PDF) if that helps. It didn’t help me except in making “It is unnecessary to answer that question” is my new favourite phrase.
Clear as mud. Where’s Parish when you need him? It is unnecessary to answer that question.
Fantastic. Howard’s “free-market” IR reforms now include subsidies paid to crony law firms. What is this guy’s problem? He can’t launch any fecking programme without loading it up with enough pork to turn Scotland Yard into London’s fourth airport.
The AFR reports that:
The court ruled it was not appropriate for it to judge whether the campaign to publicise industrial relations proposals should be paid for by taxpayers.
So the question remains unresolved? It’s unnecessary to answer that question.
Yes, cs, the question remains unresolved. From Nicola Roxon’s media statement:
What a joke! Clearly, a conga line of judicial suckholes.
We still don’t know how the court split, either.
What’s the betting? 5/2 or 4/3?
I would bet 5/2, with McHugh and Kirby dissenting. I don’t think we know yet, because they haven’t released their full reasons.
It’s hard to say. It might even be 6/1, if they agreed that there was a technical bar to the claim. But that’s not to say the substantive decision would split the same way.
A word in your shell-like. You might like to wager rather than b*t. I don’t think the spam filter approves of such speculation – even on HC decisions.
It’ll be interesting to see the reasons – particularly since the Commonwealth Solicitor-General relied heavily on a dissenting opinion from Murphy J when a case was brought against the Whitlam government for spending money that hadn’t been explicitly appropriate.
The High Court is yet to release the full judgment.
McHugh’s last decision. Must dissent! Then again, he’s a damned stickler.
$4000 subsidy to the shoofties eh? Jesus, out of the frying pan and into the fire for small biz again!
The only thing I can think of is the pre-screen of shoofties will be quite tough to restrict the number of claims to the genuine only. Otherwise, if every disgruntled worker has easy access to $4000 worth of lawyering at the taxpayers expense, then why wouldn’t they? The legal eagles would be only too willing to indulge them. Costello will have a decent catch in there for sure.
I didn’t think you’d like it, observa. It’s typical of Howard – why he ever got a rep as a free market liberal I have no idea – he’s a big government conservative who tries to buy people off with poorly thought out handouts and rorts and lines the pockets of his cronies at the same time.
This really smacks of policy on the fly. If he’s wanted these IR changes for so long, how come he doesn’t have a more coherent plan? As usual, the “privatised” solution is more Heath-Robinson-bureaucratic than the system it replaces.
I guess it was timed for the court decision, halving and softening the oxygen fall-out if it had come down negative, or capitalising given it’s gone the other way. Just media games. Politics, more often than not, is about itself.
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I can comment once I clear the cache of cookies. Bad cookie monster.
what I want to know is, why the legal subsidy for this federal court procedure and not for any other one? Under the brave new world order, federal court proceedings are replacing common sense tribunals for everything.
just for example: if an employee is coerced into signing an AWA (that is, chooses to sign under duress rather than having to prove that she/he was dismissed because she/he wouldn’t sign it, which is pretty hard when you throw factors like being casually employed or on probation into the mix), that employee can only get redress for being coerced into signing by making a complaint and pursuing it through the federal court. IE there are no preventative measures, nobody to help you while you’re under the process of being harassed into signing, you can only complain or get penalties applied AFTER you’ve signed over your penalty rates for a crappy so-many-cents per hour raise. Then it’s a nightmare trying to fit your common experience of being forced to sign into this wierd industrio-commercial-melange version of what constitutes ‘duress’ that has informed most federal court decisions so far, so you’re not even guaranteed that after thousands of dollars spent and years of your life, you’ll get a positive verdict – much like the unlawful dismissal. So, in reality, nobody’s able to contest the offer of an AWA, or contest an unlawful dismissal, without the backing of a union or a truckload of cash of their own. So, in reality, nobody does.
although, an IR barrister I know told me that he and his colleagues were formulating a plan to take the first 200 cases of unlawful dismissal that came up pro bono and clog the court system.
testing… had the same prob Kim. fixed now.
Clogging up the court system sounds fine, but you have to be wary like the ALP and the ACTU that you don’t cop something nasty like their $200K court costs. If the probono cases are legit the govt won’t mind them being done for free. Expect the $4000 subsidy to be heavily means and assets tested.
Lawyers paid to lose cases? Sign me up!
The High Court has released it’s full reasons today. Have not read it yet but the majority was 5/2 with McHugh and Kirby dissenting.
Do I win something?
Matt, I can’t find the full text. Is it available somewhere?
In this news report, Gleeson CJ reportedly decided:
The basis of the ACTU’s claim was that the outcome was stated with such breadth that it endorsed almost anything. The High Court appears to have accepted a tremendous lack of precision in Government appropriations, which effectively gives them carte blanche to spend taxpayers’ money on whatever they like, with no real scrutiny by the Senate.
Oh, here it is.
After a quick skim read…
Gleeson CJ’s argument on the point I raised is at [7]:
In other words, the Senate should have blocked the appropriation if the wording was too vague. Of course, that’s now practically impossible, but no matter. It’s enough that people can complain after the dubious expenditure is perpetrated.
The decision of the majority is summed up at [164]:
In other words, the Government can say it intends to spend appropriated funds on one thing, but then spend them on something completely different. This undermines the idea that the Senate has any effective way to scrutinise the appropriation.
The crux of Kirby J’s decision is at [258]-[259]:
Kirby J criticises Gleeson CJ’s decision, at [272]:
He also criticised the majority (at at [288]) on the grounds that the amount but not the object of spending is (or should be) variable:
McHugh J agrees with Kirby J on this point (at [87]). He also thought the majority went too far by saying the mere fact that the ads were “departmental expenditure” was enough. At [80]:
And at [95]-[96], he says the ads don’t fit within the outcome that the Government says they do:
Frankly, I think the majority decisions are dangerous, as they gut the process of parliamentary scrutiny of appropriations. The Government can now spend money on whatever it likes, regardless of what it says the money is for at budget time.
Robert,
I agree with your analysis.
The reasoning of the majority that funds appropriated for departmental purposes don’t have to be used to achieve a particular outcome is contrary to what is understood by Government departments themselves. I would think the Department of Finance would take a particularly dim view of this theory.
I work in the Finance section of a Federal Govt department so I do have some knowledge of this area.
Anyway Chris would be pretty happy with McHugh’s judgment. He doesn’t leave anything in the shed.