Recently I visited Malaysia on an exchange program organised by the Australia-Malaysia Institute, an initiative of the Department of Foreign Affairs & Trade (DFAT).
That visit included meetings with a variety of political, cultural and religious groups and institutions. Our first visit was on held on the morning of Monday 19 June 2006 to the Human Rights Commission of Malaysia (known under the Bahasa Malay acronym of SUHAKAM).
My notes of the visit included information provided by SUHAKAM Commissioners and staff. This may be summarised as follows:
[01] We were first taken through a presentation of SUHAKAM’s objects by SUHAKAM’s head of Policy & Research. We were then briefed by a number of SUHAKAM Commissioners, including Dato’ Siva Subramaniam from Malaysia’s minority Indian community.
[02] SUHAKAM was founded by a 1999 Act of the Malaysian Federal Parliament as a statutory body. It plays a variety of roles, including education on human rights issues and advising the government and parliament on the human rights implications of Bills. Many (if not most) SUHAKAM staff have legal backgrounds.
[03] SUHAKAM does not have powers of execution. It can only recommend changes to legislation or regulations. It cannot enforce its decisions. It does, however, have substantial powers to hold inquiries. This includes the power to summons law enforcement and government officials.
[04] SUHAKAM receives referrals from NGO’s and from walk-in clients. It often finds itself having to turn people away whose matters do not come within its limited terms of reference. Within these terms, SUHAKAM is largely free to set its own agenda.
[05] It often proves difficult to promote human rights principles in a country which has signed itself up for so few international human rights treaties. The complications are compounded by the complex nature of Malaysia’s multi-ethnic and multi-religious society.
[06] SUHAKAM must deal with many human rights issues facing indigenous communities in Sarawak and Sabah. These include land rights, housing and education. There is some provision in Sabah for courts to enforce indigenous customary law.
[07] Among SUHAKAM’s educational activities are: the production of school books on human rights which are now part of the state school curriculum, as well as leadership programs to instil human rights values in older students.
[08] SUHAKAM is publicly opposed to the controversial Internal Security Act (ISA) which allows for extra-judicial detention without meaningful judicial oversight. Much of SUHAKAM’s work involves highlighting the excesses arising from the implementation of ISA.
[09] SUHAKAM has been asked to oversee the conduct of campus elections.
[10] SUHAKAM officials are concerned about the anti-terror laws in Australia and their possible impact on Muslim communities. However, of greater concern to them is the treatment of indigenous peoples.
[11] SUHAKAM also investigates mistreatment of foreign workers including Indonesians, Pakistanis and Filipinos. It also deals with cased involving attempts to tear down houses of worship (including mosques) by roads and other infrastructure/planning authorities. Generally, such cases involve houses of worship built without proper planning approvals obtained.
© Irfan Yusuf 2006
Thursday, June 29, 2006
Wednesday, September 21, 2005
David Hicks - Defending the Indefensible
Poor Philip Ruddock has an unenviable job. This small “l” liberal lawyer is being forced to defend what has to be one of the most outrageous show-trials in modern legal history. And what makes things worse is that the accused is an Australian citizen.
The Howard Government cannot claim the most spotless record when it comes to protecting the interests of Australian citizens caught in a spot of legal bother overseas. There are numerous scandals involving Australians wrongfully detained and/or deported.
But the Hicks trial is particularly significant for a number of reasons. We have some details of the conditions at the Guantanamo Bay facility from former detainee Mamdouh Habib. Through his then lawyer, Stephen Hopper, Mr Habib was able to paint a coherent picture of conditions at the facility.
Those conditions included the regular and systematic use of torture, beatings other forms of physical and mental deprivation. The United States Military denies the allegations, as does the Australian government.
Yet both countries implicitly admit the charges by strenuously insisting that the Geneva Conventions against the torture of prisoners of war do not apply to Guantanamo detainees. Such insistence should be unnecessary if in fact no torture or mistreatment was taking place.
And it seems that a US military officer appointed to represent David Hicks is more concerned about the welfare of this Australian citizen than our Attorney General.
Major Michael Mori believes that the Hicks trial should be adjourned to allow the defence more time to prepare. Further, the entire process of military commissions is again the subject of appeal in the US Supreme Court.
But Mr Ruddock is insisting that the trial proceed and supports the lifting of the stay. Despite his legal background and training, Mr Ruddock sees no injustice in the process continuing.
Mr Ruddock is a former President of the NSW Young Liberal Movement, an organisation which until recently known for its small “l” liberal credentials. He also proudly wears an Amnesty International badge on his lapel when appearing in public functions.
How a lawyer and member of a respectable mainstream human rights organisation could support such show trials being used to try (and most likely convict) an Australian citizen is certainly beyond my understanding.
But Mr Ruddock is not the only Member of the Commonwealth Parliament to support the trials. Former lawyers John Howard and Peter Costello are also known to support the position of the United States Government.
The Federal Opposition has also been somewhat reluctant to be seen to be too supportive of the Hicks family. It seems that, at least in Labor and Liberal circles, Mr Hicks has already been pronounced guilty.
How a Parliament full of lawyers and law graduates cannot come together to defend an Australian citizen against being tried in such circumstances says a lot for the quality of lawyers that sit in our Parliaments. Perhaps there is some truth to the common joke amongst practitioners that all the failed lawyers seem to end up either in gaol or in Parliament.
Australian citizens and their families deserve better than to be treated like political guinea pigs. But in the current environment of near-hysteria, it seems all you have to do to deprive someone of rights is to label them a terror suspect.
The author is a Sydney lawyer who is completing his Masters in International Law at the Australian National University. iyusuf@sydneylawyers.com.au
© Irfan Yusuf 2005
The Howard Government cannot claim the most spotless record when it comes to protecting the interests of Australian citizens caught in a spot of legal bother overseas. There are numerous scandals involving Australians wrongfully detained and/or deported.
But the Hicks trial is particularly significant for a number of reasons. We have some details of the conditions at the Guantanamo Bay facility from former detainee Mamdouh Habib. Through his then lawyer, Stephen Hopper, Mr Habib was able to paint a coherent picture of conditions at the facility.
Those conditions included the regular and systematic use of torture, beatings other forms of physical and mental deprivation. The United States Military denies the allegations, as does the Australian government.
Yet both countries implicitly admit the charges by strenuously insisting that the Geneva Conventions against the torture of prisoners of war do not apply to Guantanamo detainees. Such insistence should be unnecessary if in fact no torture or mistreatment was taking place.
And it seems that a US military officer appointed to represent David Hicks is more concerned about the welfare of this Australian citizen than our Attorney General.
Major Michael Mori believes that the Hicks trial should be adjourned to allow the defence more time to prepare. Further, the entire process of military commissions is again the subject of appeal in the US Supreme Court.
But Mr Ruddock is insisting that the trial proceed and supports the lifting of the stay. Despite his legal background and training, Mr Ruddock sees no injustice in the process continuing.
Mr Ruddock is a former President of the NSW Young Liberal Movement, an organisation which until recently known for its small “l” liberal credentials. He also proudly wears an Amnesty International badge on his lapel when appearing in public functions.
How a lawyer and member of a respectable mainstream human rights organisation could support such show trials being used to try (and most likely convict) an Australian citizen is certainly beyond my understanding.
But Mr Ruddock is not the only Member of the Commonwealth Parliament to support the trials. Former lawyers John Howard and Peter Costello are also known to support the position of the United States Government.
The Federal Opposition has also been somewhat reluctant to be seen to be too supportive of the Hicks family. It seems that, at least in Labor and Liberal circles, Mr Hicks has already been pronounced guilty.
How a Parliament full of lawyers and law graduates cannot come together to defend an Australian citizen against being tried in such circumstances says a lot for the quality of lawyers that sit in our Parliaments. Perhaps there is some truth to the common joke amongst practitioners that all the failed lawyers seem to end up either in gaol or in Parliament.
Australian citizens and their families deserve better than to be treated like political guinea pigs. But in the current environment of near-hysteria, it seems all you have to do to deprive someone of rights is to label them a terror suspect.
The author is a Sydney lawyer who is completing his Masters in International Law at the Australian National University. iyusuf@sydneylawyers.com.au
© Irfan Yusuf 2005
Saturday, September 17, 2005
804 Words of Wisdom
The War Report – Part 2
The federal government told lies to justify its war in Iraq. Is the government telling porky pies to push through its industrial agenda?
According to the Vice-President of the NSW Industrial Relations Commission, yes. In a speech to an IR conference at Sydney University, Justice Michael Walton said that the federal government’s IR plans were unfounded.
The comments were made around 3 weeks ago, and were reported in the Weekend Financial Review on 27-28 August 2005. They might seem like old news, but the message springs eternal.
The problem we have with the entire IR debate is that it has been hijacked by extremes. On the one hand, you have the unions trying to maintain every bit of the status quo. On the side, the only voices we ever hear are from the government and from employer unions.
Apart from a few squeaks from farmers against incorporation, we never seem to hear from employers who really count. The majority of employers do not belong to an employer union. And it is these employers who will be most affected by the changes.
Choice for workers is fantastic. But as the fiasco with superannuation choice is proving, it often comes at a high price. And usually it is smaller employers who pay the price.
There is absolutely no shred of evidence to show that smaller employers will fail to put on workers just because of unfair dismissal laws. Those in the big employer unions making this claim have obviously never bothered to consult with smaller employers on this matter.
But then again, members of big employer unions are too busy driving their competitors out of the markets. They are too busy testing the boundaries of Parts IV, IVA and V of the Trade Practices Act and driving our smaller competitors.
When owners of large shopping centres or massive retailers start pontificating for smaller business, it all sounds like a joke. Smaller shop-owners who are forced to sign leases making them account for profits to their landlords are hardly going to regard these same people as speaking with any integrity on such issues.
So what are the smaller businesses saying? And who is listening to them? What would they think if the existing state jurisdictions were replaced with one federal system? Would they agree to take on the added paperwork and red tape of incorporation just to be part of simplified industrial relations?
Anyone who thinks the battlelines of IR are clearly drawn must be kidding themselves. Business is not just worried about unfair dismissal. There is more to the business expansion equation than just the ability to sack people more easily.
In fact, most employers don’t hire people so that they can sack them. Arguing in this vein is like arguing that you get married to just get divorced more easily. It is a fallacious argument, and makes about as much economic sense as Das Kapital.
Moreover, the government has not thought through the legal difficulties of the whole arrangement. Personally, it is this aspect of IR reform that makes me very excited. I will have enormous amounts of work arising from small business people wishing to understand and comply with the new laws. I can quite legitimately tout for work from now.
“Are you ready for the new industrial laws? Do you understand your rights and responsibilities? For the cost of an arm and a leg, you can consult us about how the laws affect you. Give us a call today.”
Industrial lawyers will have plenty of work from the new changes. But their smaller clients will probably miss out on the expertise.
The government will probably respond with plenty of plain English guides to educate small business. But how small and concise can such booklets be when the new system will have to address a variety of matters as:
1. workers compensation?
2. occupational health & safety?
3. procedures for new workplace agreements?
4. which leave provisions go and which stay?
5. discrimination law changes?
6. changes in Commission procedures and roles?
7. unfair contract?
8. unfair dismissal and its exceptions?
9. the role of independent contractors?
10. exceptions and interpretation of the 100 employee cap for unfair dismissal exemptions?
Yep, sounds as simple as unreal numbers.
Industrial relations law as it stands is very complex. But unless the federal government is prepared to come clean with its detail on the new laws, business has every right to presume that the IR reform proposals will add even more complexity, red tape and a bigger compliance and legal bill.
On behalf of my colleagues, I wish to thank Mr Howard for his new system. On behalf of my small business clients, I would like to potentially welcome Mr Beazley to the Lodge at the next election.
© Irfan Yusuf 2005
The federal government told lies to justify its war in Iraq. Is the government telling porky pies to push through its industrial agenda?
According to the Vice-President of the NSW Industrial Relations Commission, yes. In a speech to an IR conference at Sydney University, Justice Michael Walton said that the federal government’s IR plans were unfounded.
The comments were made around 3 weeks ago, and were reported in the Weekend Financial Review on 27-28 August 2005. They might seem like old news, but the message springs eternal.
The problem we have with the entire IR debate is that it has been hijacked by extremes. On the one hand, you have the unions trying to maintain every bit of the status quo. On the side, the only voices we ever hear are from the government and from employer unions.
Apart from a few squeaks from farmers against incorporation, we never seem to hear from employers who really count. The majority of employers do not belong to an employer union. And it is these employers who will be most affected by the changes.
Choice for workers is fantastic. But as the fiasco with superannuation choice is proving, it often comes at a high price. And usually it is smaller employers who pay the price.
There is absolutely no shred of evidence to show that smaller employers will fail to put on workers just because of unfair dismissal laws. Those in the big employer unions making this claim have obviously never bothered to consult with smaller employers on this matter.
But then again, members of big employer unions are too busy driving their competitors out of the markets. They are too busy testing the boundaries of Parts IV, IVA and V of the Trade Practices Act and driving our smaller competitors.
When owners of large shopping centres or massive retailers start pontificating for smaller business, it all sounds like a joke. Smaller shop-owners who are forced to sign leases making them account for profits to their landlords are hardly going to regard these same people as speaking with any integrity on such issues.
So what are the smaller businesses saying? And who is listening to them? What would they think if the existing state jurisdictions were replaced with one federal system? Would they agree to take on the added paperwork and red tape of incorporation just to be part of simplified industrial relations?
Anyone who thinks the battlelines of IR are clearly drawn must be kidding themselves. Business is not just worried about unfair dismissal. There is more to the business expansion equation than just the ability to sack people more easily.
In fact, most employers don’t hire people so that they can sack them. Arguing in this vein is like arguing that you get married to just get divorced more easily. It is a fallacious argument, and makes about as much economic sense as Das Kapital.
Moreover, the government has not thought through the legal difficulties of the whole arrangement. Personally, it is this aspect of IR reform that makes me very excited. I will have enormous amounts of work arising from small business people wishing to understand and comply with the new laws. I can quite legitimately tout for work from now.
“Are you ready for the new industrial laws? Do you understand your rights and responsibilities? For the cost of an arm and a leg, you can consult us about how the laws affect you. Give us a call today.”
Industrial lawyers will have plenty of work from the new changes. But their smaller clients will probably miss out on the expertise.
The government will probably respond with plenty of plain English guides to educate small business. But how small and concise can such booklets be when the new system will have to address a variety of matters as:
1. workers compensation?
2. occupational health & safety?
3. procedures for new workplace agreements?
4. which leave provisions go and which stay?
5. discrimination law changes?
6. changes in Commission procedures and roles?
7. unfair contract?
8. unfair dismissal and its exceptions?
9. the role of independent contractors?
10. exceptions and interpretation of the 100 employee cap for unfair dismissal exemptions?
Yep, sounds as simple as unreal numbers.
Industrial relations law as it stands is very complex. But unless the federal government is prepared to come clean with its detail on the new laws, business has every right to presume that the IR reform proposals will add even more complexity, red tape and a bigger compliance and legal bill.
On behalf of my colleagues, I wish to thank Mr Howard for his new system. On behalf of my small business clients, I would like to potentially welcome Mr Beazley to the Lodge at the next election.
© Irfan Yusuf 2005
Wednesday, August 17, 2005
BOOK REVIEW: Genuine Expert Explodes Terror Myths
BOOK: Terrorism Explained: the facts about terrorism and terrorist groups
AUTHOR: Clive Williams
PUBLISHER: New Holland Publishers, Sydney, Australia
2004
Recommended Retail Price $24.95
AUTHOR: Clive Williams
PUBLISHER: New Holland Publishers, Sydney, Australia
2004
Recommended Retail Price $24.95
______________
In our post-September-11 world, every man, woman and dog is popping up as an expert on terrorism. Terrorist “experts” are being bought and sold in the market of ideas, and many are happy to sell themselves to the highest bidder. Many have little in the way of formal training and genuine hands-on expertise.
One terror expert has appeared regularly on the terror circuit, speaking across the world and even appearing in Australia as a guest of the Centre for Independent Studies.
Dr Daniel Pipes has been described by ever-perceptive Miranda Devine as an “Islam scholar”. He holds a PhD in medieval European history from Harvard University, and apparently speaks and reads fluent Arabic.
When it comes to modern Muslim political radicalism, Dr Pipes’ qualifications make him as useful to serious understanding of the phenomenon as Sheik Hilali’s extensive qualifications make him as an adviser on youth affairs to the Australian Federation of Islamic Councils.
After all, what Pipes describes as “Islamism” bears little resemblance to Medieval European or even Medieval Muslim thought. And most Muslim extremists read material written in Urdu and Farsi.
Dr Rohan Gunaratna is another fascinating study in terror expertise. When he is not engaging in group defamation of Tamils, Dr Gunaratna lambasts Western governments for … wait for it … not protecting democracy by denying Muslim communities civil liberties.
A bit like suggesting mass-floods as a solution to tsunami-ravaged areas in Tamil Nadu. Then again, given Gunaratna’s record with Tamils, we might actually be reading him suggesting this!
Clive Williams doesn’t fit into either of these categories of alleged expertise. This Australian author teaches anti-terrorism to students at the Australian National University. Before embarking on an academic career, Williams served as an Army intelligence officer and was awarded the Medal for Gallantry in Vietnam.
Unlike presumed experts on terrorism, Williams has been involved in defence intelligence collection and analysis for over 3 decades. He has not merely been writing columns for New York tabloid newspapers or generating editorials in multiple languages on personal websites.
And like all real experts. Williams can see all sides of the argument. He argues that major terrorist incidents will continue to occur in western countries, especially the United States. Reason? Williams writes in his Preface:
“This seems inevitable given the insensitive way in which many minority Muslim sections of the US population have been treated, the increased Muslim anger against the United States as a result of its international counterterrorism campaign post-September 11, its unqualified support for Israel and the continuing detention of alleged Al Qaeda and Taliban fighters.”
Perhaps Messrs Howard, Ruddock and Downer should take the short drive from Parliament House down to the ANU campus in Acton and learn some valuable lessons from Williams. They might wish to anonymously sit in his lectures or tutorials. Perhaps their advisers might join them in this quest for genuine knowledge.
Perhaps the most attractive aspect of Williams’ book is his resistance of the common presumption that only Muslims can be terrorists. Williams debunks this theory with 2 simple ingredients – facts and logic.
Williams does not leave definitions to innuendo and group-smear. He provides a clear definition, explanation and classification of terrorism. He then charts out the history of terrorism and its various religious, secular and other manifestations. Williams provides various categories of terrorism not as water-tight compartments but rather as aids to understanding the complexity of motivations that lead persons to call themselves and/or innocents.
In Australia, Williams’ analysis seems to have fallen on deaf ears. The Commonwealth continues to proscribe only Muslim extremist groups as terrorist organisations. This despite growing evidence of religious extremism in other communities.
The London bombings coincided with the 10th anniversary of the Srebrenica massacre by Bosnian Serb forces led by General Ratko Mladic. Some 60 people died in London, whilst over 6,000 Muslim men and boys were massacred in one of many incidents of slaughter in July 1995.
Abundant evidence exists of Australians of Serbian Orthodox and Catholic background being involved in supporting, aiding and participating in the massacres and gang-rapes and other war crimes that took place in Bosnia during the war.
Evidence also exists of certain Australians actively being involved in efforts to derail the Middle East peace process by actively supporting opponents of the Israeli government’s disengagement from the Gaza Strip. Indeed, Daniel Pipes himself has written in support of extremists and against Ariel Sharon’s peace initiative.
Williams is not afraid to name names and identify individuals and groups (Muslim or otherwise) known to be involved in terrorist activities. He also provides lucid analysis of various forms of terrorism, their sources of finance and the real extent of their threat. All this without paranoid calls for the eradication of all civil liberties and declaration of a state of emergency.
Williams’ book is certainly not written with a view to winning elections or ratings wars. Nor does it make for entertaining tabloid reading. But what Williams does do is provide a balanced account of the real threat facing Australia and other western countries.
(For a limited time, readers can obtain a copy of Clive Williams’ book for $16.50 including postage and handling to anywhere in Australia. Purchasers of 5 or more copies can pick them up for $11 each. Hurry as there are very limited copies left. For further details, e-mail sydneylawyers@yahoo.com.au)
© Irfan Yusuf 2005
One terror expert has appeared regularly on the terror circuit, speaking across the world and even appearing in Australia as a guest of the Centre for Independent Studies.
Dr Daniel Pipes has been described by ever-perceptive Miranda Devine as an “Islam scholar”. He holds a PhD in medieval European history from Harvard University, and apparently speaks and reads fluent Arabic.
When it comes to modern Muslim political radicalism, Dr Pipes’ qualifications make him as useful to serious understanding of the phenomenon as Sheik Hilali’s extensive qualifications make him as an adviser on youth affairs to the Australian Federation of Islamic Councils.
After all, what Pipes describes as “Islamism” bears little resemblance to Medieval European or even Medieval Muslim thought. And most Muslim extremists read material written in Urdu and Farsi.
Dr Rohan Gunaratna is another fascinating study in terror expertise. When he is not engaging in group defamation of Tamils, Dr Gunaratna lambasts Western governments for … wait for it … not protecting democracy by denying Muslim communities civil liberties.
A bit like suggesting mass-floods as a solution to tsunami-ravaged areas in Tamil Nadu. Then again, given Gunaratna’s record with Tamils, we might actually be reading him suggesting this!
Clive Williams doesn’t fit into either of these categories of alleged expertise. This Australian author teaches anti-terrorism to students at the Australian National University. Before embarking on an academic career, Williams served as an Army intelligence officer and was awarded the Medal for Gallantry in Vietnam.
Unlike presumed experts on terrorism, Williams has been involved in defence intelligence collection and analysis for over 3 decades. He has not merely been writing columns for New York tabloid newspapers or generating editorials in multiple languages on personal websites.
And like all real experts. Williams can see all sides of the argument. He argues that major terrorist incidents will continue to occur in western countries, especially the United States. Reason? Williams writes in his Preface:
“This seems inevitable given the insensitive way in which many minority Muslim sections of the US population have been treated, the increased Muslim anger against the United States as a result of its international counterterrorism campaign post-September 11, its unqualified support for Israel and the continuing detention of alleged Al Qaeda and Taliban fighters.”
Perhaps Messrs Howard, Ruddock and Downer should take the short drive from Parliament House down to the ANU campus in Acton and learn some valuable lessons from Williams. They might wish to anonymously sit in his lectures or tutorials. Perhaps their advisers might join them in this quest for genuine knowledge.
Perhaps the most attractive aspect of Williams’ book is his resistance of the common presumption that only Muslims can be terrorists. Williams debunks this theory with 2 simple ingredients – facts and logic.
Williams does not leave definitions to innuendo and group-smear. He provides a clear definition, explanation and classification of terrorism. He then charts out the history of terrorism and its various religious, secular and other manifestations. Williams provides various categories of terrorism not as water-tight compartments but rather as aids to understanding the complexity of motivations that lead persons to call themselves and/or innocents.
In Australia, Williams’ analysis seems to have fallen on deaf ears. The Commonwealth continues to proscribe only Muslim extremist groups as terrorist organisations. This despite growing evidence of religious extremism in other communities.
The London bombings coincided with the 10th anniversary of the Srebrenica massacre by Bosnian Serb forces led by General Ratko Mladic. Some 60 people died in London, whilst over 6,000 Muslim men and boys were massacred in one of many incidents of slaughter in July 1995.
Abundant evidence exists of Australians of Serbian Orthodox and Catholic background being involved in supporting, aiding and participating in the massacres and gang-rapes and other war crimes that took place in Bosnia during the war.
Evidence also exists of certain Australians actively being involved in efforts to derail the Middle East peace process by actively supporting opponents of the Israeli government’s disengagement from the Gaza Strip. Indeed, Daniel Pipes himself has written in support of extremists and against Ariel Sharon’s peace initiative.
Williams is not afraid to name names and identify individuals and groups (Muslim or otherwise) known to be involved in terrorist activities. He also provides lucid analysis of various forms of terrorism, their sources of finance and the real extent of their threat. All this without paranoid calls for the eradication of all civil liberties and declaration of a state of emergency.
Williams’ book is certainly not written with a view to winning elections or ratings wars. Nor does it make for entertaining tabloid reading. But what Williams does do is provide a balanced account of the real threat facing Australia and other western countries.
(For a limited time, readers can obtain a copy of Clive Williams’ book for $16.50 including postage and handling to anywhere in Australia. Purchasers of 5 or more copies can pick them up for $11 each. Hurry as there are very limited copies left. For further details, e-mail sydneylawyers@yahoo.com.au)
© Irfan Yusuf 2005
Thursday, August 11, 2005
403 Words of Wisdom
The War Report – Part 1
Industrial Relations is turning into a theatre of war. But in this war, there are no clear sides. Mr Howard always thought that it would be the unions versus the rest of the civilised world. But he is now discovering that he cannot change the system without treading on the tows of some of his traditional allies.
Take the farmers. These are the traditional support base for Country Liberals and Nationals. You’d expect the farmers to be right behind the Howard reforms. And they are. Except that to be part of any federal system, farmers might have to incorporate.
According to figures quoted in the Australian Financial Review on 3 August 2005, around 90% of our 130,000 farming entities are unincorporated. Apart from increased paperwork and incidental expenses, incorporation also takes away some key tax benefits for farmers. In times of drought, with many farmers suffering heavy losses, these benefits represent perhaps the only chance of survival on the land.
Now, the National Farmers Federation (which gave the Liberal Party such political heavyweights as Ian McLaughlin) has signalled that it won’t support any reports which leave farmers worse off.
Farmers are not the only ones screaming. Caterers and restaurant owners are also upset with being forced to incorporate. One third of the members of Restaurants and Catering Australia (RCA), an employer group representing the catering industry, are sole traders or partnerships.
Federal Workplace Relations Minister Kevin Andrews confirmed on 2 August that any new workplace relations legislation would find its legislative basis in the corporations power, not just in the conciliation and arbitration power. Basically that means that, to benefit from the federal system, an employer will need to be incorporated.
Incorporation is not cheap. There is added paperwork, accountant’s fees, auditing fees and others extra work to be done. Companies pay a lower tax rate, but in many industries employers are better off staying sole traders or partnerships. These businesses would be most keen to participate in the new federal system. But refusal to incorporate may mean they are locked out.
It is pleasing to see employer organisations not blindly towing the line of the Coalition. Sadly, when it comes to unfair dismissal, some employers still haven’t realised that keeping current legal arrangements is probably more in their interests than forcing workers to use remedies that will prove much more expensive for employers in the long run.
© Sydney Lawyers Pty Limited 2005
Industrial Relations is turning into a theatre of war. But in this war, there are no clear sides. Mr Howard always thought that it would be the unions versus the rest of the civilised world. But he is now discovering that he cannot change the system without treading on the tows of some of his traditional allies.
Take the farmers. These are the traditional support base for Country Liberals and Nationals. You’d expect the farmers to be right behind the Howard reforms. And they are. Except that to be part of any federal system, farmers might have to incorporate.
According to figures quoted in the Australian Financial Review on 3 August 2005, around 90% of our 130,000 farming entities are unincorporated. Apart from increased paperwork and incidental expenses, incorporation also takes away some key tax benefits for farmers. In times of drought, with many farmers suffering heavy losses, these benefits represent perhaps the only chance of survival on the land.
Now, the National Farmers Federation (which gave the Liberal Party such political heavyweights as Ian McLaughlin) has signalled that it won’t support any reports which leave farmers worse off.
Farmers are not the only ones screaming. Caterers and restaurant owners are also upset with being forced to incorporate. One third of the members of Restaurants and Catering Australia (RCA), an employer group representing the catering industry, are sole traders or partnerships.
Federal Workplace Relations Minister Kevin Andrews confirmed on 2 August that any new workplace relations legislation would find its legislative basis in the corporations power, not just in the conciliation and arbitration power. Basically that means that, to benefit from the federal system, an employer will need to be incorporated.
Incorporation is not cheap. There is added paperwork, accountant’s fees, auditing fees and others extra work to be done. Companies pay a lower tax rate, but in many industries employers are better off staying sole traders or partnerships. These businesses would be most keen to participate in the new federal system. But refusal to incorporate may mean they are locked out.
It is pleasing to see employer organisations not blindly towing the line of the Coalition. Sadly, when it comes to unfair dismissal, some employers still haven’t realised that keeping current legal arrangements is probably more in their interests than forcing workers to use remedies that will prove much more expensive for employers in the long run.
© Sydney Lawyers Pty Limited 2005
Saturday, July 09, 2005
Melbourne QC Supports Internment of Imams
A prominent Melbourne Queens Counsel has called upon the Australian Government to detain Imams and persons caught photographing public monuments.
In a posting to his website dated 8 July 2005, Peter Faris QC called for the implementation of wartime legislation similar to that established during the Second World War.
“Wartime legislation like this is now necessary”, wrote Mr Faris. “Mullahs or Imams or whatever who preach or violence of Jihad should be detained.”
Mr Faris is a prominent Melbourne barrister and former Chairman of the National Crime Authority during 1989-90. He is an expert in criminal and computer law. In the past, he has worked as a criminal lawyer for the Victorian Aboriginal Legal Service and is a founder of the Fitzroy Legal Service.
Mr Faris was recently quoted as suggesting that torture of terror and criminal suspects was acceptable. His comments were described by the Chairman of the Criminal Bar Association, Lex Lasry QC, as “bizarre” and a “ludicrous concept”.
More telling than Mr Faris’ comments on his website were comments made by readers supporting his stand.
One contributor under the nickname “Gravelrash” has suggested that “some ozzie Mozzies should be in Baxter, for the sake of national security”.
In a posting to his website dated 8 July 2005, Peter Faris QC called for the implementation of wartime legislation similar to that established during the Second World War.
“Wartime legislation like this is now necessary”, wrote Mr Faris. “Mullahs or Imams or whatever who preach or violence of Jihad should be detained.”
Mr Faris is a prominent Melbourne barrister and former Chairman of the National Crime Authority during 1989-90. He is an expert in criminal and computer law. In the past, he has worked as a criminal lawyer for the Victorian Aboriginal Legal Service and is a founder of the Fitzroy Legal Service.
Mr Faris was recently quoted as suggesting that torture of terror and criminal suspects was acceptable. His comments were described by the Chairman of the Criminal Bar Association, Lex Lasry QC, as “bizarre” and a “ludicrous concept”.
More telling than Mr Faris’ comments on his website were comments made by readers supporting his stand.
One contributor under the nickname “Gravelrash” has suggested that “some ozzie Mozzies should be in Baxter, for the sake of national security”.
Friday, July 08, 2005
425 Words of Wisdom
Observations on Section 106
Imagine you have been working in the same company for 20 years. You have worked unpaid overtime for at least 5 hours a week. You have developed a strong competency in your field and have worked with a range of managers, colleagues and subordinates.
Then after all this, a new owner takes over the company. There is a restructure. You are given your marching orders. You might be made to feel so uncomfortable that you will want to resign. You might be offered a fairly ordinary redundancy package.
What should you do? Who can you turn to? What remedies does the law provide to you?
One option is to claim that your employer breached its employment contract with you. It will be necessary for you to prove exactly what the contract is, how it was breached, what damages you have suffered and how these damages are connected to the breach. A tall order.
You might decide to try and claim just for the unpaid overtime. But how do you calculate it? And what records do you have of the time you worked there? Did you keep a diary for all those years? Did you work this overtime knowing that one day you might make a claim?
For long-term workers who get shafted, perhaps the best remedy is provided by Section 106 of the Industrial Relations Act. This particular remedy is broad, flexible and grants the NSW Industrial Relations Commission broad powers to remedy an unfair situation.
The unfair contracts jurisdiction has grown dramatically since it was introduced in 1959. Back then, it was used to protect the terms and conditions of contractors such as milk vendors and construction industry workers and tradesmen. Today, it is used as a general purpose remedy for a range of employment situations. In 2000-01, some 26% of the NSW Industrial Relations Commission workload was taken up with s106 matters.
Similar legislation also exists in Queensland. There are also similar provisions in the Commonwealth Workplace Relations Act, though these are somewhat more limited.
In NSW, you have to bring your claim within 12 months of your contract being terminated. This is a strict time limit and cannot be extended by the Commission. SO if you think you have been treated unfairly by your employer, the time to act is now.
The Howard Government is hoping to replace state industrial relations systems with a single federal system. This could spell the end of unfair contract claims. You therefore must act now if you think you have a claim.
Imagine you have been working in the same company for 20 years. You have worked unpaid overtime for at least 5 hours a week. You have developed a strong competency in your field and have worked with a range of managers, colleagues and subordinates.
Then after all this, a new owner takes over the company. There is a restructure. You are given your marching orders. You might be made to feel so uncomfortable that you will want to resign. You might be offered a fairly ordinary redundancy package.
What should you do? Who can you turn to? What remedies does the law provide to you?
One option is to claim that your employer breached its employment contract with you. It will be necessary for you to prove exactly what the contract is, how it was breached, what damages you have suffered and how these damages are connected to the breach. A tall order.
You might decide to try and claim just for the unpaid overtime. But how do you calculate it? And what records do you have of the time you worked there? Did you keep a diary for all those years? Did you work this overtime knowing that one day you might make a claim?
For long-term workers who get shafted, perhaps the best remedy is provided by Section 106 of the Industrial Relations Act. This particular remedy is broad, flexible and grants the NSW Industrial Relations Commission broad powers to remedy an unfair situation.
The unfair contracts jurisdiction has grown dramatically since it was introduced in 1959. Back then, it was used to protect the terms and conditions of contractors such as milk vendors and construction industry workers and tradesmen. Today, it is used as a general purpose remedy for a range of employment situations. In 2000-01, some 26% of the NSW Industrial Relations Commission workload was taken up with s106 matters.
Similar legislation also exists in Queensland. There are also similar provisions in the Commonwealth Workplace Relations Act, though these are somewhat more limited.
In NSW, you have to bring your claim within 12 months of your contract being terminated. This is a strict time limit and cannot be extended by the Commission. SO if you think you have been treated unfairly by your employer, the time to act is now.
The Howard Government is hoping to replace state industrial relations systems with a single federal system. This could spell the end of unfair contract claims. You therefore must act now if you think you have a claim.
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