By Bob Rafto
The political parties are incorporated businesses which makes them subject to the laws of the ACCC.
A political party is an organisation that offers a service of governing the country and a selection of candidates of that party are put forward to win the contract of governing, being a 3 year term.
There is a mystique around political parties that is mired in BS and spin that elected candidates of the parties can mislead and deceive the people who awarded them the contract at will.
Statutory definition of misleading and deceptive conduct
“a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive”.
As a case study, if one looks at the statements made by Abbott prior to the 2013 election, he publicly stated that there would be no cuts to Health and Education.
The 2014 budget included cuts to Health and Education.
This is a clear case of Misleading and Deceptive Conduct which was evidenced by the major public backlash to the cuts. Mr Abbott knew the only way to get the people’s contract was by deception. This is a serious breach of the ACCC law and the LNP would have incurred a substantial penalty, however, I’m of the view it was deliberate fraud and should have been dealt in the criminal court.
Representations as to future matters
A representation that something will occur in the future may be misleading and deceptive conduct if the person making the representation does not have reasonable grounds for making the representation.[15] Representations to the effect that:
- a loan will be repaid with interest,[16] or
- that changes in government spending will positively affect the business,[17]
have been held to constitute misleading and deceptive conduct as to future matters.
Another case study that should be examined.
It has been claimed continuously by the LNP that the Adani mine will create 10,000 jobs, even though a representative of Adani stated only 1,400 jobs would be created. Again, this is a misleading statement designed to deceive to procure a $1 billion loan to Adani being against the people’s wishes.
I’m sure there are enough case studies generated by the LNP to keep the ACCC busy for years, however, any organization that is incorporated that operates in the political arena are also subject to the ACCC laws, such as unions and lobby groups.
The people have had a gut full of being misled and it shows in the polls.
A single complaint to the ACCC won’t cut it. It will be ignored. It will take an estimated 50,000 names and signatures.
This hasn’t been tried before but it would be interesting to see how the ACCC would react to receiving 50,000 complaints, or would political pressure be applied to the ACCC to fend off the complaints with spin. Insufficient evidence is the most common spin offered by the cops.
Before you dismiss me as looney – although I do admit of having bouts of it infrequently normally around the full moon – I researched planning legislation, TPA and the criminal law on and off for 2 years.
I was sick and tired of expensive property lawyers and I came across a statute that enabled me to sue the BCC for $2.2 million for damages … a statute that had never been used before, no precedent anywhere, and it was watertight.
I took it all the way up to the High Court representing myself for a cost of around $5K and they weren’t going to allow me to win because of the scandal that would have erupted in ‘why the Council had to pay out a $2M sum’ and in no doubt would have seen the jailing of Campbell Newman, the BCC CEO and 2 planners plus others. It was a conspiracy by the Bligh Govt, Newman’s Council, the police, the CMC and the Queensland Ombudsman to pervert the course of justice on a grand scale, and covering up extortion and fraudulent certificates. And if one reads the court transcripts they will reveal the corrupt decisions of the judges.
Just to give a taste of the court of appeal transcript: Supreme Court Judge admits that a court registrar attempted to stand over me to withdraw my claim but it was of no consequence as he was dismissing my claim. And dismissing a crime as well. I also caught out a Council solicitor for perjury and the judge turned a blind eye to that and it’s all in the transcripts.
From my experience I believe that my ACCC argument has legs and the capacity of keeping the bastards honest.
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sorry u r barking up the wrong tree. the High Court has already determined that politicians are not subject to the misleading and deceptive conduct provisions in consumer or trade practices law. see the greiner case on appeal from nsw. in that case a woman took nsw premier elect nick greiner to court on the grounds you suggest and lost. when she appealed to the high court that court said those laws dont apply to politicians because they are not in ‘business’. the only recourse the australian public have against politicians who lie during electoral campaigns is to vote them out at the next election. thats what the court actually said. consequently australian politicians can lie all they want during an election campaign and because there is no requirement for a specific mandate and no impeachment arrangements to address their lies, politicians in aust are free to lie as much as they want. thats the inadequate system we have in place here. very little accountability. a charade for a democracy. neither of the major parties will address it because it suits them. thats why you should OPPOSE THE MAJOUR PARTIES.
the accc will be bound by the high court decsion in the greiner case. you wont get satisfaction there.
That is the pretend Barrister Bob in the pic.
A barrister acquaintance who was aware of my court actions told me he was learning from me and also stated he would have received the same corrupt treatment if he represented me.
In a way I’m glad I didn’t have half a mil to splurge on the lawyers as that would have been how much it would have cost to get to the high court and only to find that justice is denied by the courts.
I even had costs of $50K awarded against me and I dared Council to try and get them and guess what they didn’t dare.
OPPOSE THE MAJOUR PARTIES
One could argue that the decision of the High Court was an error in law.
It’s not the politician you prosecute but the organisation which is in the business of providing candidates to win a government contract of governing the country. So the organisation cops the fines and would no doubt put pressure on their men and women to tell no lies.
Money changes hands like the payout to the LNP and Labor Parties, around the $20M each I vaguely remember and they’re engaged for a 3 year term and that is a Contract of a business deal.
OPPOSE THE MAJOUR PARTIES
Just to add more weight to my argument here is the Web sites at liberal.org.au operated by the Liberal Party of Australia (ABN 15 217 882 958)
Notice the ABN an acronym for Australian Business Number and I’m certain the Libs can’t argue that they’re not a business. which gives them standing to be sued and taken to task by the ACCC.
It can also be argued that the public are consumers of the governing services the political party provides and in that regard being misled or being deceived by the party’s representative(s) is in breach of the ACCC law.
The IPA is also an incorporated business as with Hanson et al, GetUp could have a field day every day of the week with these lot. And this is worth reading http://www.abc.net.au/news/2012-02-24/hamilton-the-shadowy-world-of-ipa-finances/3849006
Class actions could also be brought to bear against any political party.
political parties are just associations and groups of politicians essentially. the court would say they arent in business either. they dont exist to make profit but to allow others with similar political views to express their legal political points of view in various ways. i agree with ur comments though and sympathise with your situation. abuse is rampant in crts and politics. aust people are completely hoodwinked by all these crooks who hold public office. your situation is the same that many find themselves in in this shameful country. a sham of a democracy. no accountability at all.
sorry u r barking up the wrong tree. the High Court has already determined that politicians are not subject to the misleading and deceptive conduct provisions in consumer or trade practices law.
Here you have a case of the lawyer taking his client for a ride.
Did Greiner have an ABN to operate as a politician the answer to that is no therefore he is not in business but his party is and one could argue that the party has a responsibility for its representatives to abide by the ACCC laws that it is bound to like any other incorporated company.
political parties are just associations and groups of politicians essentially. the court would say they arent in business either.
You’re wrong there political parties are incorporated and have ABN numbers and that’s all the standing you need to take action.
I believe I am correct. The Court would rule that, like politicians, political parties are not engaged in trade and commerce as politics is not business and therefore the actions you seek are not attracted to them. Here’s a brief summary of the Greiner case. See Durant v. Greiner (1990) ASC S156-100. Parents of children attending a primary school unsuccessfully sued
Premier Greiner for misleading or deceptive conduct when, during an election campaign, it was alleged that the Premier had misleadingly stated that the school would not be closed. The Court rejected the plaintiff’s submission that, because a person was a professional politician, necessarily he was engaged “in trade or commerce”. The words
“trade or commerce”, said the Court, described the activity in which a person is engaged and not the status of the
person engaging in the activity. Politics was held not to be a business or commercial activity and politicians were thus
held not to be engaged “in trade or commerce”. It must be added in fairness to Premier Greiner that, whilst he
successfully defended the claim on the above basis, he was also found, on the facts, not to have engaged in misleading
or deceptive conduct in any event. To the writer’s knowledge, no cases have yet been mounted against priests alleging
misleading or deceptive conduct because of an inability to prove the existence of God but, clearly enough, prie
In other words…you’ve got as much chance as none and buckley’s. Standing will only get you to the court room and maybe give you a right to be heard…it doesn’t mean you have an arguable case. In this instance you don’t.
I think the most important way to keep the big Parties honest is to have public only funding of elections with limits on their expenditure. As the proverb goes – he who pays the piper picks the tune. That change would mean we pick the tune.
Obviously we would also need measures to ensure that media barons or the media baron could not provide free PR for the party of their choice.
Politics was held not to be a business or commercial activity and politicians were thus
held not to be engaged “in trade or commerce
I agree with the above but if you read my previous comment it’s not the politician you pursue it’s the party who are responsible for their representatives and if the party is not in business why bother being incorporated or have an ABN?
Let me make this point again the Libs after the last election were given $20 odd mil of government money, it didn’t go to the politicians but to the party therefore it’s the party that is responsible for the conduct of its members.
Arthur Sinodinos dodged a bullet with the ICAC finding on Australian Water Holdings but after his performance he may have trouble renewing his driving licence.
can you imagine :
Traffic Cop : Driver why did you shoot that red light ?
Arthur : I have no recollection of that of which you speak.
Bit of a worry !
bobrafto
I don’t think that you are looney at all. You have provided another demonstration of how those privileged with wealth and power will do whatever it takes to keep them.
They will never give them up voluntarily. They must be taken. Unfortunately, we no longer have the ability to do that.
I am under no disillusion as to who will be the first to be cast aside after their system of ponzinomics has poisoned and sucked the life out of most other living things. It will be us.
Forget politics and the rigged system that it has created. They are not the solution and never will be. Plan to take care of yourself and be there when it is time to rebuild. The privileged are the least likely to have the necessary skills to survive. That will be your sweet revenge.
Your story reminded me of Freya Newman who leaked the details concerning Frances Abbott’s scholarship. Who got shafted in that one? There are not enough with principles like yours and hers.
I admire your principles and your effort. It was a good fight.
“History is littered with the regimes of despots and powerful elites that have willingly sacrificed the lives and well being of ordinary people in order to pursue their ideological beliefs and protect their personal interests.” — Graeme Henchel
Stop spelling it Majour this isn’t France mate and they don’t spell it that way either
Harquebus
Thank you for vouching for my sanity but are you qualified to make that call? lol
OPPOSE THE MAJOUR PARTIES
In other words…you’ve got as much chance as none and buckley’s. Standing will only get you to the court room and maybe give you a right to be heard…it doesn’t mean you have an arguable case. In this instance you don’t.
Are you a lawyer? A judge? a Jury? to have tried and dismissed me in 2 lines. I don’t believe so.
My case is not meant for the courts it’s a matter of using a government agency like the ACCC to go after the mongrels but the case could very well end up in the courts.
There is no precedent for what I proposed, however if it can be established that political parties are in the business of providing governing services, they are providing a service full stop being a business dealing (that’s the party not the elected official) then that changes the whole landscape and then it all depends who has the better argument to sway the judge if it does end up in court.
OPPOSE THE MAJOUR PARTIES
political parties are just associations and groups of politicians essentially. the court would say they arent in business either.
You’re really out of touch.
Political parties like the ALP & LNP also own real estate, more than likely have a share portfolio, they also have subsidiaries like polling research companies that their sitting members use for personal polling information and these sitting members claim it as an office expense, a nice little earner for the party from the govt. coffers and what was your description again?
They’re multi million dollar corporations and should be accountable to the corporation laws and liable for any misrepresentations by their members.
bobrafto – Too bloody right! I preach this same issue to everyone I meet everyday. But as the saying goes, don’t whinge about a problem unless you see the solution. Your noble action is the path. These people do not deserve power because the whole of humanity stands at the edge of an abyss and they are talking about jobs and growth whilst still allowing people to get mortgages for coastal land that is destined to be reefs in the next 50 years.
OPPOSE THE MAJOUR PARTIES you are already boxed in with limited solutions. This is the helpless mentality they want the well educated to succumb to. At least the foundation has been laid and you can see there is a problem.
The system is broken. As OPPOSE THE MAJOUR PARTIES states the politicians are subject to the party and not the electorate. This is treason of the highest order. To have an opposition in parliament is treason – they are all public servants of the Australian nation and the interests of the nation must trump the party. What we have is a dog eat dog democracy. The best solution is to aim at this with GOD’s laws (Group Organised Democracy) with decision based elections administered through merit based positions. This will remove the personal politicising agendas of the current democratic system, and if you do bad job you need to find one that you are good at. I propose http://WWW.WWW (world wide walkout. world without waste) and the establishment of liquid GOD administration.
bobrafro – When you go for it can I help? I have a law degree and could serve as your clerk.
Sorry but -www.www- is not a http website. The network automatically turned it into a link.
Barry Williams you’re flattery is welcome
For you to act as my clerk would mean that I was a qualified lawyer, I’m no such thing, and if there was a thing as a stink pile of careers, the legal profession would harbor the bottom spot in my view.
This exercise would be more suited to GetUp and other associations that have a voice.
“The political parties are incorporated businesses which makes them subject to the laws of the ACCC.”
You may be interested to know that political parties are specifically excluded from the ACCC legislation. The following is dated but, to my knowledge, the situation has not changed.
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp13
The number of Acts that parties are specifically excluded from is extraordinary. Whilst I love the sentiment, another way must be found.
Thank you bob rafto and commenters. Take care
Kyran
Thanks for that however there’s 2 points, the second being the link you provided.
1.
41. Political Exemption
Exemption for registered political parties, political acts and practices
41.7 A ‘registered political party’—defined
as a political party registered under Part XI of the Commonwealth
Electoral Act[8]—is
specifically excluded from the definition of ‘organisation’ and, therefore, is
exempt from the operation of the Privacy Act.[9] In addition, political acts and
practices of certain organisations are exempt.[10]
These organisations include:
http://www.alrc.gov.au/publications/41.%20Political%20Exemption/exemption-registered-political-parties-political-acts-and-pract
2.
Truth in Political Advertising Legislation in Australia
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp13
The first point is that political parties are exempt under the Privacy Act, there’s no mention of the ACCC legislation so here I believe is an opening.
Secondly
This deals with the issue of political advertizing and it doesn’t quite fit with a polly publicly issuing a false statement.
The first one is scary, take political acts and practices are exempt, the LNP have entrenched the practice of lying and deceit so we have to accept it as a normalcy.
41.10 On the other hand, at the time of the
introduction of the Bill, Malcolm Crompton, the then Privacy Commissioner, stated
that the exemption for political organisations was inappropriate. Rather, he
stated that political institutions ‘should follow the same practices and
principles that are required in the wider community’.[16] These sentiments were echoed by
Senator Natasha Stott Despoja, when she introduced a Private Member’s Bill in
June 2006 to remove the exemption for political acts and practices:[17]
Politicians should be included in the rules that we expect
the public and private sectors to abide by. We cannot lead and represent
Australians when we do not adhere to the rules that we have made for them, as
this merely plays into the notion that politicians cannot be trusted.[18]
bobrafto
Jus’ my opinion.
You fight the good fight and that tells me a lot about your character.
I agree with bobrafto on August 4, 2017 at 2:57 pm
I agree with Barry Williams, bob.
I want to help you get this up and running too. Let me know, if you want my help. I too, have a law degree.
Harquebus don’t get me wrong I appreciated your comment.
Jennifer thank you for offering help.
My vision is that someone like GetUp to take the running of this and they have the membership to produce 50,000 or more complaints and perhaps more input like Kyran’s can shape an argument to where there is full confidence in the proposal.
specifically excluded from the definition of ‘organisation’ and, therefore, is
exempt from the operation of the Privacy Act.
Need to clarify the above:
It has to be noted that organisation is excluded and not the corporate body therefore the corporate body is accountable however it could be argued that the corporate body is part of the organisational body and to counter that?
I would put forward that the word incorporated should also be prescribed along with organisation in the legislation as they are 2 distinct items and because of this omission complaints can be made against the corporate body of the party.
Can anyone add to this debate?
Don’t mind being proven wrong.
My bad, Mr Rafto. The Privacy Act exemption for political parties is in the Privacy Act. The political party exemption from the Trade Practices Act is actually buried in the Electoral Act. Whilst they are both exemptions for political parties, the mechanism used to achieve that exemption is different. Whilst I agree with the distinction, I think my fundamental point remains. They are exempted.
With regard to the Privacy Act, Ms Stott-Despoja, as chair of the senate committee overseeing the drafting and implementation of the first Privacy Act, was simply brilliant. She was ‘blind-sided’ by the political parties seeking an 11th hour exemption.
With regard to your second point, whilst I agree much of the link is associated with the advertising aspect, I don’t see a distinction between advertising and spin doctoring. In 2017, this is called ‘policy formation’.
Whilst the TPA would be a good place to start, assuming a corporate covenant exists, it seems as likely of success as pursuing the directors and office holders of the parties under the ‘fit and proper person’ provisions buried in the ASIC legislation.
Whilst I am in furious agreement that our politicians and their back room apparatchik’s should be accountable, I am a tad less confident of using the legislation created by the pollies against them. The fix is in.
Thanks again. Take care
Kyran,
the fix might appear to be in, the remedy need not be. Don’t let those Lib/Lab flipflops see you acquiescing to their self-glorified supremacy which they purport to be out of our democratic and legal reach.
It is NOT.
Thanks again Kyran
Can you provide me with a link to the electoral act as I can’t find it, however I did stumble over this:
COMMONWEALTH ELECTORAL ACT 1918 – SECT 329
Misleading or deceptive publications etc.
(1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.
(4) A person who contravenes subsection (1) commits an offence punishable on conviction:(a) if the offender is a natural person--by imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, or both; or
(b) if the offender is a body corporate--by a fine not exceeding 50 penalty units.
It doesn’t explicitly exempts politicians.
I had a bit of a think of the above act and using the Abbott case I put forward this scenario:
I allege:
Sect 329
Misleading or deceptive publications etc.
(1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.
Prior to the 2013 election Abbott was interviewed on SBS television where he promised the voters that there would be no cuts to health and education knowing that these 2 policy issues would sway an election vote. Mr Abbott wilfully set out to deceive the people knowing that his promises were false and caused the publishing of the broadcast of the interview and the causing of the transcript of the interview to appear in newspapers and other media.
The 2014 budget contained cuts to all the promises Mr Abbott made and with that left a nation stunned by his massive deception.
There can be no doubt that Mr Abbott is in breach of Sect 329 and deserving of the maximum penalty.
It’ll never happen as long as little AFP Andrew Colvin is up Abbott’s arse.
Tap, tap, tap
Kyran can you be so kind and give me the link to The political party exemption
(I used the tap, tap, tap in an email to a Police Minister who was trying to bury a complaint and it worked in getting back spin of insufficient evidence and this was after 3 months of waiting)
bobtafto. u r not a lawyers ass yet your arogance and sense of self importance is astounding. the accc is a commission not a court. it would be bound by the existing decisions of courts and has no jurisdiction to hear an appeal or application on the ground of error of law as it would make determi ations of fact only and only if or when it applies the law erroneously could an appeal be made against its decision to a court. how do you know i am not a lawyer? you conclude i am not on no facts. are u aware that by robing as a barrister you may in fact be committing a criminal offence. matey u havent got a fcking clue. go and get a law degree and stop passing yourself off as a legal wizard. lay wannabes like u r a dime a dozen.
Mate. as for ‘majour’ being mispelt. get yourself a decent dictionary idiot. you will find it is obsolete spelling but still correct. and that is precisely the reason i use it to get idiots like u irritated. lol.
so is it ‘labour’ or ‘labor’? we have the uk ‘labour’ party and the australian ‘labor’ party. the australia mob took the ‘u’ out of ‘labour’ while the uk mob kept it. the actions of the aust mob are very symbolic of their policies me thinks. they have taken ‘you” out of their platform. lol.
Mate. spelling ‘majour’ without the ‘u’ is the recent americanised version. ‘majour’ with the ‘u’ is true genuine historically correct english not french. god some people who fancy they have some degree of intelligence are really as thick as pig’s swill.
Minority
Thanks for the insults, one has to take what one gives.
You’re quite correct that I’m not a lawyer or a barrister but you’re wrong about the pic it is a reminder of the corrupt judicial system spread throughout the nation.
If I give an air of self importance you are misrepresenting it for the gutful I’ve had with our politicians, and I’m looking for a way using the law to bring them to account. If you have issue with that then you’re part of the problem of accepting the behaviour of our politicians who with impunity can lie, mislead and deceive at will.
According to the above statute they’re not allowed to do that at election time so why should it be any different between elections? And can you find me a statute that explicitly excludes politicians from misleading and deceiving?, I don’t believe you’ll find one.
So on that score I’ll keep on digging and besides just to bring you up to the ages, many decades ago the law statutes were translated from legalese to plain english so even the dumbest of us could understand and all the laws in the land are at one’s fingertips.
Cheers
just for the record in the greiner case i refer to above the court also said politicians who state a policy during an election campaign and then change it after being elected are not being deceptive or misleading on the facts as australian governments are not given a specific mandate to govern but a broad one. hence, if, when taking gov upon first being elected, a politician finds that the state of things in the nation are not what the former gov had reported then they can change their policies and drop their promised programs. note that this is what howard and the abbot governments did in raising false claims of debt so they could then renig on their election promises. this is the LNP standard stategy. the court actually said the only recourse the aust people have in that situation is at the ballot box in the next election. thete are no mechanisms for impeachment of politicians in australian political arrangements or in the consitution. with that in mind, how do you propose to prove with evidence that a politician or their party lied or deceived the public given that you would need to prove that they knew the real situation was not what it was when they made the promises and statements alleged to be false and misleading? you would need to prove the accused politician or party had knowledge that a different situation existed than the incumbent had represented when the accused made the promise. good luck with that but i consider that once again for that u have buckleys.
Just for the record:
‘DEFINITION
majour
An alternate form of “major” derived from hipster Americans who are trying to be British. This does not work the same as “colour” or “flavour” does in British spelling. It is “major” in American English and British English.
“I’m like a majour fan of Bape.”‘
OTMP,
Abbott made unequivocal promises to the Australian People that he would not reduce funding to education or health. It is worth Bob’s time to plan how such unequivocal promises can be interpreted as misleading and deceptive conduct because Abbott did not include any disclaimers on the chance that things may not have been as they seemed.
Mr Rafto, by way of disclosure, I have no legal qualification whatsoever. As such, my comments should be classified as opinion rather than advice.
Your quotation from the Law Reform Commission left out a bit;
“41.7 A ‘registered political party’—defined as a political party registered under Part XI of the Commonwealth Electoral Act[8]—is specifically excluded from the definition of ‘organisation’ and, therefore, is exempt from the operation of the Privacy Act.[9] In addition, political acts and practices of certain organisations are exempt.[10] These organisations include:
• political representatives—namely, MPs and local government councillors;
• contractors and subcontractors of registered political parties and political representatives; and
• volunteers for registered political parties.[11]
41.8 Acts and practices covered by the exemption include those in connection with: elections held under an electoral law;[12] referendums held under a law of the Commonwealth, a state or a territory; and participation by registered political parties and political representatives in other aspects of the political process.[13] Some other Commonwealth laws also provide for the collection and use of personal information by registered political parties and political representatives.[14]”
My reading of this (which is no more than my opinion and should be treated accordingly) is that, whilst a political party is an incorporated body, that body is generally exempted from the ASIC provisions as the body is registered under the auspices of the Commonwealth Electoral Act (which I incorrectly referred to as the Electoral Act). It is due to that anomaly in the registration of an incorporated body that the exemptions generally flow.
The reason there was a specific exclusion in the Privacy Act, as far as I can tell, is that there were so many other Acts that had ‘overlaps’, it was easier to put the exemption in the Privacy Act than amend all of the other Acts.
With regard to your reference to the penalties under the CEA for what is referred to in the TPA as false and misleading conduct, it is interesting to note the penalty is up to six months imprisonment for an individual.
Sect 44 of the Constitution has been topical of late.
“44. Any person who –
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or”
This may sound hopelessly naïve, but a politician’s only stock in trade is their honesty or their integrity. That we have so many so completely barren of these attributes is an indictment on the system. Having said that, should a politician or their political party lie, a breach of their primary duty, the only penalty applied doesn’t even render them incapable of standing again on their release.
Like other commenters, there is nothing I would like to see more than these miscreants being held accountable for their actions. Ms Meyer-Smith’s observation sums up my pessimism, to the extent that I believe these miscreants are largely above the laws that they wrote. This is based on an old legal maxim; there will only be enough law made to hold the loopholes together.
This should not be confused with acquiescence. To plagiarise Ms McManus, when the rules are wrong, they need to be fought, they need to be changed. Ms Triggs stated she had become radicalized in her job, by the humanity of her job.
At the very least, we need an ICAC. Maybe I have been radicalized, but I also believe we have to throw out the rule book and start again. Too far? Ah well, I can dream.
Thanks again. Take care
Oh dear, Kyran,
I was trying to be positive and encouraging of Bob to persevere with his endeavours. 🙁
At the very least, we are discovering the obvious loopholes that need plugging.
Please replace the ‘u’ in ‘majour’. It is correct spelling! Only a semi-illiterate moron would complain and I don’t heed the points of views of morons.I am entitled to post under any user name I chose as others do on this site. I chose the one I do. This is bias and harrasment!
‘DEFINITION
majour
An alternate form of “major” derived from hipster Americans who are trying to be British. This does not work the same as “colour” or “flavour” does in British spelling. It is “major” in American English and British English.
“I’m like a majour fan of Bape.”‘ I did say a good dictionary. Seems this is a dictionary invented by Rossleigh and is not in general circulation hence the reason why there is no reference. But it is correct in one sense…it is a legitimate alternative form of spelling the same english word. So stop butchering the language and replace the ‘u;’ Furthermore, stop discriminating against hipsters!
Jennifer Meyer-Smith ‘because Abbott did not include any disclaimers on the chance that things may not have been as they seemed’. Abbot was under no obligation to offer any disclaimer as he was not in business or engaged in trade and commerce. He only needed to allege, after being elected, that the state of the nation was not as the ALP had represented before the election and as he believed when he made the promises. Hence, the debt claims of Abbott and Hockey which allowed the LNP to change and withdraw their promises about cuts to education and the ABC. He simply had to say ‘well we have got more debt than we were lead to believe when we were in opposition and when we made the promises so in the interests of the nation we cannot now implement our no cuts policy and need to change our policy’. Exactly what Howard and Costello did as well. Their strategy is based upon the Greiner case I refer to above. That’s the law in Australia and why lying is endemic in Australian politics…its a general lack of accountability in the political system set upo by an inadequate Constitution.. Both major parties utilise this principle. Sad but true. If you want to change it you need to OPPOSE THE MAJOUUUUUUR PARTIES!
This is a complaint about the spelling of the user name ‘Rossleigh’ I find it offensive as it misleads a reader into thinking that the person only has one name and is a wacko rosecurian when in fact that person is actually Ross Leigh and the words should be separated. I find rosecurians offensive as they are propagators of rascism and advocates of discrimination particularly against hipsters. Hence the ‘u’ that has been removed from ‘Oppose the Majour Parties’ above should be re- inserted.
Just as I thought Rossleigh’s dictionary reference above is the highly reputable ‘online urban dictionary’ (irony intended) in common use most likely among rosecurians. That’s a very authorative source. Thanks Rossey. http://www.urbandictionary.com/tags.php?tag=majour
here’s one that makes no reference to hipsters but also indicates that the spelling is correct but obsolete…which is not the same as incorrect.https://en.wiktionary.org/wiki/majour
OTMP,
Abbott (amongst all politicians) was under the common law expectations of fiduciary duty and public trust and he contravened both flagrantly.
See http://theconversation.com/politicians-forget-what-public-trust-means-we-must-remind-them-34981
and according to this site ‘majour’ is correct and ‘major’ may not be correct at all. Hence those that have complained have no valid basis to do so other than their own ignorance – and that is not reasonable. Hence re-insert the ‘u’ please. http://wikidiff.com/majour/major
Majer
I’m aware of most of the cases you brought up and there’s no harm in trying to find an angle where an agency like the ACCC can take them to task. Someone once said ‘Seek and you will find way’ and if that doesn’t work a way has to be found where the politicians are forced to repeal the laws giving them carte blanche to be above the law when it suits them.
the accc does not have any of that power or jurisdiction.The only way to do that is to propose a re-interpretation of the Constitution and the only court that can do that is the High Court. Alternatively, you may wish to consider seeking criminal sanctions. That may achieve some of what you want.
See for instance,
Chapter 7, s 130 of Schedule 1 of the Commonwealth Criminal Code http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/
the Crimes Act http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/
the Public Governance, Performance and Accountability Act 2013.
http://www.austlii.edu.au/au/legis/cth/consol_act/pgpaaa2013432/
I’m hoping that’s a joke.
Why didn’t you say that earlier, OTMP?
Jennifer Meyer-Smith ‘Abbott (amongst all politicians) was under the common law expectations of fiduciary duty and public trust and he contravened both flagrantly’ This is nonsense. There are no such obligations. Abbot was not a fiduciary and the fiduciary duties are not common law but arise in equity and are not owed at large to all members of the general public but arise in specific relationships between certain types of individuals eg trustees and beneficiaries of trusts etc. They cannot be owed to the general public at large. There is no laws against breach of public trust. That is only a moral obligation and you can’t prosecute or sue on moral grounds alone unless the conduct also meets the criteria and material facts required to bring a cause of action known to law. None of what you allege in your statement confers any grounds to a cause of action or prosecution against anyone. In regard to Abbot, the best way to get him would be to get some solid facts and evidence about his eligibility to nominate for and sit in parliament. If you can find evidence that shows he wasn’t then he can be prosecuted under the Criminal Code for fraud against the Commonwealth for receiving a benefit he was not entitled to. Seems to me Turnbull could be got for this too given his company Turnbull and Partners received a payment to undertake work for the government which is prohibited under the Constitution and that would have rendered him ineligible to nominate or sit. http://www.smh.com.au/federal-politics/political-news/department-fixes-error-following-questions-about-malcolm-turnbull-election-eligibility-20161107-gsjsre.html
‘… the fiduciary duties of political officers are often impossible to enforce judicially – the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty…’. If it can’t be prosecuted judiciously then it can”t be actioned against and does not in practice exist but does so only in theory. Brennan was only one judge on a potential bench of up to 7 and if the majourity of the others on the bench did not agree with him then his statement is non binding obiter dicta.,
Ok OTMP,
I bow to your legal superiority.
However, if you want to be in the discussion and you agree that it is important to keep the bastards honest, then it would be most helpful, if you lead with your legal prowess.
Majer
Thanks for the links, however your view is on the criminal aspect which I’m not pursuing as it’s been made abundantly clear that the LNP is untouchable.
Allow me to propose this.
I trust that you agree with me that the major parties are corporations who are in the business of offering their governing services to the people.
Upon a party forming government they either change, adjust or axe the services according to their ideology and the people are the consumers of those services, do you agree?
If so, this establishes the people are afforded protection against misleading and deceptive conduct from the ACCC.
The one stumbling block is that they have excluded themselves from prosecution.
But I would argue that it is an offence to mislead and deceive as stated in the electoral act, therefore political parties should not be immune from the conduct of their members if they engage in misleading and deceptive conduct and should be subject to the ACCC laws.
To dismiss my argument would be an endorsement for politicians to flout the law.
‘To dismiss my argument would be an endorsement for politicians to flout the law.’. Rubbish! Dismissing your argument only shows that the dismissor does not think you have a chance to achieve what you want to with this particular strategy and to recognise that the ACCC is not likely and cannot give itself the jurisdiction required and further that the politicians in the form of the two majour parties have designed and implemented a system that keeps them immune from prosecution except in criminal matters. It does not mean, as you say, that one consents to politicians being unaccountable.You are confusing ‘should’ and ‘what are’. That is, a moral position with a current legal position. I agree they should be legally and morally accountable but, under the existing legal arrangements you intend to rely on, they aren’t. The ACCC does not have power make new laws, to rewrite laws or give a new interpretation of laws. It does not have power to say ‘we can now prosecute political parties for x,y or z’. Legislators and courts do that not commissions.It cannot change the legislation – only politicians in parliament can do that. At the moment the only way to achieve what u want is by the provisions I link above or by political change with parliamentarians who are willing to make the legislative changes.
See OTMP @ 4.20pm bob
I am aware of some legal complaints being drawn up against various politicians (criminal complaints) and of a petition to the Governor General and/or Queen to dismiss the current government or, alternatively, to suspend parliament until the eligibility of the current sitting members of both houses of parliament are determined – given the potential number of them. The only current legal political remedy is to vote against the majour parties as revolution is illegal in Australia and a criminal offence. Today the Eureka Stockade would be characterised as ‘terrorism’.
OTMP ?
Majir
The indemnity as far as I see it is in regard to free speech and it states below that this freedom is not absolute so it would be reasonable to suggest that there is an exception to the rule.
Implied freedom of political communication
41.16 The High Court of Australia has
established that an essential element of representative democracy is the
freedom of public discussion of political and economic matters.[24] This freedom is not confined to election periods.[25] It does not confer, however, a personal right on
individuals, but rather operates as a restriction on legislative and executive
powers.[26] The
freedom is not absolute,[27] and
must be balanced against other public interests. In determining whether a law
infringes the implied freedom of political communication, two questions must be
answered:
First, does the law effectively burden freedom of
communication about government or political matters either in its terms,
operation or effect? Second, if the law effectively burdens that freedom, is
the law reasonably appropriate and adapted to serve a legitimate end …[
As I stated somewhere here, going for a judicial fix is futility in the making and I’ve come up with another idea that still needs a bit of molding.
Best of all I got a bit of grey matter exercise, thanks .
bobrafto, doesn’t Parliamentary Privilege allow politicians to lie their heads off to us without any penalty? The only time they can be clobbered is if they mislead parliament, but it has to be something pretty earth-shattering as they mislead parliament all the time without copping any grief over it. They all understand that they dare not do more than make a show of protesting each others’ lies because they all want to be able to use the “get out of jail free” card.
In England the rights and privileges of members are overseen by the powerful Committee on Standards and Privileges. I don’t know what the equivalent regulatory body is here in Australia.
Long ago I think I remember reading that Parliamentary Privilege came about because a rich person tried to screw over a politician using frivolous law suits. It seems like a pretty bad reason to me. Anybody can be hit by frivolous law suits, but we don’t get the same protection… for good reason. Letting everybody be immune to the laws against lying and libel would be a prescription for chaos. That’s why politicians should be held to the same standards of truth. Unfortunately they’ve rigged it so they are not.
bobrafto I must say I did get a smile on my face about your suggestions. I am a self educated CONSTITUTIONALIST and well proved my worth in various court hearings where I on 4 August 2005 comprehensively defeated the Commonwealth (AEC) about ‘averment’ (that the AEC doesn’t have to prove the charges FAILING TO VOTE. Only the next magistrate couldn’t care less and convicted me twice. I appealed very successfully on 19 July 2006 using a S78B NOTICE OF CONSTITUTIONAL MATTERS. Those who go to my blog at http://www.scribd,com/inspectorrikati will see my set out about politicians acting unconstitutional, etc. Before the litigation lawyers told me the Government lawyers would burry me, well it was the other way around. While I am now retired as a Professional Advocate I nevertheless at times still assist people. Even so I am not a lawyer I still represented/assisted lawyers in court. It is not how much you know but that you know what you need to know for the particular case and can present the matter in court with competence. If more people like you and me were to pursue JUSTICE then we might just get the politicians to take notice. I since 1982 have been conducting a special lifeline service under the motto MAY JUSTICE ALWAYS PREVAIL® and on 15 July 2016 warned all Victorian State and Federal politicians specifically about ‘Bourke Street Mall’ that it was contemplated for mass murder (see my blog) and recommended bollards, etc. to be placed. They ignored it. I repeated it on 21 December 2016 and they ignored it again. On 20 January 2017 6 people were killed. My writings are now before the coroner. While Prime minister Malcolm Turnbull and Premier Daniel Andrews were all over the media after the killings that they care, etc, well my writings proved they didn’t care less. And this is how I expose the rot of politicians. Regretfully 6 people died, and this could have been prevented and I for one welcome a person like yourself to at least attempt to expose the rot of politicians. I may correct you that political parties do not decide who shall be in government. We do not vote for any Government. The constitution provides the power to commission any Minister to the Governor-General, albeit in general it are the politicians who use the G-G as some lap dog. and to give you something to think about if your State has no citizenship legislation then you are not a citizen and s41 only allows citizens to vote who have franchise by citizenship. ‘Australian citizenship’ as I proved in court is not a nationality at all. My blog sets it all out. As for your court case in HCA I would love to get a copy of the transcript so I can read it.
I am not quite sure what you mean or intend by posting this below about the guaranteed freedom of communication on governmental and political matters implied from the clause ‘chosen by the people’ in the Constitution or i.e. the Lange/Coleman immunity or how it relates to your argument. ? That immunity only applies to representations and statements etc that relate to political matters etc and is invoked to invalidate legislation that has the effect of suppressing freedom of speech on political matters to render the impugned law inoperative to the extent that it infringes upon that freedom. Can you disclose where you got this passage because I am interested in the inclusion of ‘economic matters’ in this statement at fn [24]
Majir
“The indemnity as far as I see it is in regard to free speech and it states below that this freedom is not absolute so it would be reasonable to suggest that there is an exception to the rule.
Implied freedom of political communication
41.16 The High Court of Australia has
established that an essential element of representative democracy is the
freedom of public discussion of political and economic matters.[24] This freedom is not confined to election periods.[25] It does not confer, however, a personal right on
individuals, but rather operates as a restriction on legislative and executive
powers.[26] The
freedom is not absolute,[27] and
must be balanced against other public interests. In determining whether a law
infringes the implied freedom of political communication, two questions must be
answered:
First, does the law effectively burden freedom of
communication about government or political matters either in its terms,
operation or effect? Second, if the law effectively burdens that freedom, is
the law reasonably appropriate and adapted to serve a legitimate end …”