Flambeau flip flopping and flapping -back posting on GBA site
Flambeau4,322 Posts. 138730/10/2210:22Post #: 64479677ShareAfter Asset amended itsoriginating application to include: "the former Prime Minister was notvalidly appointed". I gave the arguments another review, particularly theWilliam Gommow former high court judge and Kim Rubenstein, professorof constitutional and citizenship law at the University of Canberra,arguments.Justice William Gommow'sarguments:The crux of his argument isthis: “Two provisions point against the effectiveness of clandestineappointments under section 64. One provision, section 75(v), is concerned withthe relationship between the executive and judicial branches, and the other, inthe balance of section 64 itself, with that between the executive and thelegislative branches and the doctrine of responsible government." TheAustralian law journal, v. 96, no. 8 (2022). & https://www afr com/politics/morrison-s-extra-roles-invalid-former-high-court-judge-20221012-p5bp35Section 64: "Ministers ofState. The Governor-General may appoint officers to administer such departmentsof State of the Commonwealth as the Governor-General in Council mayestablish. Such officers shall hold office during the pleasure of theGovernor-General. They shall be members of the Federal Executive Council,and shall be the Queen's Ministers of State for the Commonwealth. Ministers tosit in Parliament. After the first general election no Minister of Stateshall hold office for a longer period than three months unless he is or becomesa senator or a member of the House of Representatives." -COMMONWEALTH OFAUSTRALIA CONSTITUTION ACT - SECT 64.Section 75(v): "In which awrit of Mandamus or prohibition or an injunction is sought against an officerof the Commonwealth: the High Court shall have originaljurisdiction." COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT75(v).My understanding of Gommow's arguments is that during the time ScottMorrison was appointed to DISER:Scott Morrison was irresponsibly immune to Section 75(v), and could not be accountable to the high court as section 75(v) requires. In other words, a clandestine appointment contradicts section 75(v) of the constitution.Secondly, Gommow points out that the meaning of the phrase "may appoint" is guided by the "light of the text" and "structure of the Constitution". In other words, Gommow is trying to suggest there are reasons why "may" is used, and if the "light of the text" and "structure of the constitution" points to an unworthy appointment, the Governor General "may" not, appoint. Gommow then goes on to explain the "central strut" suggests they must become a member of the senate/house of representatives. This means it must be "known" that they became a senator/member of the house of representatives (responsible Government checks). Then if you are an officer of the Commonwealth, we circle around back to argument 1 that suggests as far back as Ferrando v Pearce [in 1918] officers of the Commonwealth have had their powers reviewed by the judicial branch. In other words... The constitution requires the appointment to disclose if they become or are a senator/member of the house of representatives and if they do they are then accountable to section 75(v).KimRubenstein's arguments:The cruxof her arguments is this:“I think there is an argument that when responsible government isbreached to the point that it is undermining of representative democracy, thatmight be a sufficient catalyst for a court to be more prescriptive of somethingbeing unlawful – because it is a significant breach of responsible government,”she says.”“the words missing from the Morrison instruments and suggests there is adifference between administering a portfolio and holding an office.” And “Rubensteinsays Morrison “is identified as having responsibility for administering thedepartment but not being the ‘responsible’ minister”, arguing this is becausehe didn’t have the s65 power – the point that is contested among legal mindsand as yet untested in court.” And “That then raises a question as to whetherhe had the power under the act to make the decision because the actspecifically refers to the ‘responsible’ minister, and he wasn’t ‘theresponsible minister’.”“If her interpretation is right, either through the argument around abreach of responsible government or the s65 point – something only the courtcould decide”.Source: The Saturday Paper, AUGUST 27 – SEPTEMBER 2, 2022 | No.414, Exclusive: Morrison may have acted unlawfully in secretministry, Karen Middleton. https://www.thesaturdaypaper.com.au/news/politics/2022/08/27/exclusive-morrison-may-have-acted-unlawfully-secret-ministry#hrd“Number of Ministers. Until the Parliamentotherwise provides, the Ministers of State shall not exceed seven in number,and shall hold such offices as the Parliament prescribes, or, in the absence ofprovision, as the Governor-General directs.” COMMONWEALTH OF AUSTRALIACONSTITUTION ACT - SECT 65.My understanding of Rubenstein'sarguments is that during the time Scott Morrison was appointed to DISER:· Responsiblegovernment was breached because it was a clandestine appointment which obfuscatedaccountability as required by s75. Rubenstein also suggests this underminesrepresentative democracy, which I guess is true.· As forthe s65 argument, it is referencing a part of the constitution which isdiscussing how many ministers you can have and what they do. The instrument “referenced”s65, but didn’t use adequate wording according to Rubenstein, I just can’tsupport this argument, I believe this is a weak argument.Otherthings of interest I discovered whilst reading up on this:"Morrisonhas acknowledged that the Resources decision was political." and"...would explain the secrecy surrounding them." The SaturdayPaper, AUGUST 20 – 26, 2022 | No. 413, Inside Scott Morrison’s shadowgovernment, Karen Middleton."WhenMorrison reshuffled his ministry in December 2020, the explanatory fine printon the published ministerial list contained one new sentence among the usualfootnotes. “Ministers are sworn to administer the portfolio in which they arelisted under the ‘Minister’ column,” it says, “and may also be sworn toadminister other portfolios in which they are not listed.” The SaturdayPaper, AUGUST 20 – 26, 2022 | No. 413, Inside Scott Morrison’s shadowgovernment, Karen Middleton.Conclusion: I had not read the “The Saturday Paper” article until now,as it was behind a paywall and I lost interest in, in-depth analysis of thestory at the point the article was originally published. However, the argumentsonce fully realised could be plausible. I think the s65 argument is extremelyweak, but all the other arguments may have merit (previously I didn’t view s75as a contraindication to secrecy, but I might change my mind on that). I willhave to have a think about this for future investing decisions.GBA Price at posting: 2.0¢ Sentiment: None Disclosure: Not Held UpvoteGreat analysis Report Reply00:00 of 02:32Volume 40%
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