These two links are a MUST READ
The first is what happened when a brave and determined woman attempted to take action on behalf of asylum seekers detained on Manus Island. LaLegale tells the story here.
Should you wish to take similar action, you can lodge a High Court Application in the registry in your state.
The second is a Guardian investigative report on how journalists who attempt to uncover and report information about asylum seekers arriving by boat since the Abbott government’s sovereign borders policy was implemented are being referred to the AFP for investigation.
No Place For Sheep 
If I read @LaLegale’s linked account correctly, it seems to be the case that the registrar exceeded his authority in refusing to file the process. The rule 6.07 he represented as being the relevant one justifying his refusal to file would appear to have required him to have filed the process UNLESS he had referredthe matter to a Justice for a direction. By his own seeming admission no Justice, as at the time of attempted lodgement, had been contacted by the registrar for a direction, and one would not be available until February!
It would appear to me that, notwithstanding his own concerns as to the vexatiousness of the filing, in the absence of such a direction from a Justice (which he claimed to be unobtainable), he was obliged to file the process.
Is the next step the serving of the registrar with a writ of Mandamus requiring him to forthwith file the process as requested?
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Have you left this info on lalegale’s blog?
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Thanks for tweeting that to her
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I thought Mandamus was one of your excellent word plays but it is actually a thing!
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It is indeed a thing. One of a class of things called prerogative writs. It may even be that a writ of Quo Warranto may also be appropriate. Presumably the HCA knows all about such things.
Just as a matter of interest, in Britain, one of the functions of the Lord Warden of the Cinque Ports was that of Keeper of the Writs. Prerogative writs being a major bulwark for maintaining the rule of law over that of executive fiat.
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Forrest, if a Quo Warranto is appropriate, would that mean the HCA would have to hold a hearing within a short time (matter of weeks)? And if this happens, am I right in thinking that the respondent would have the burden of proof? Not being a lawyer, but these things interest me. Tks.
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Not being a lawyer either, I cannot say. I am suspicious that what appears to have been the fobbing-off of @LaLegale’s attempt to have process filed may leave the respondents free to ‘get their house in order’.
That may include the time necessary to attempt to have her declared a vexatious litigant. It should be borne in mind that to all accounts the Australian Electoral Commission (or was it the Special Minister of State?) sought recently to have Matthew Landauer declared vexatious for having made just TWO FOI requests in relation to AEC vote counting programming code. Given @LaLegale’s history with respect to her former employment and the questionable manner of the obtaining of her dismissal from what is now DIBP, the government may be extremely nervous about her attempt to file process in this matter.
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Also in case things ‘disappear’:
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Just in case things ‘disappear’:
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I am not sure that I have the courage to take this step Forrest.
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I have not the courage to take this step Forrest.
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That’s the spirit!
And your other posts today..a breath of fresh air.
It’s true I know very little about the processes of the law.
But I do suspect that the law has been quite deliberately manipulated through various tactics in the interests of thwarting justice. DQ mentioned “poor drafting” as one possibility and in the USA, the appointments system derived of louche politics seems to have ensured a strange Supreme Court tainted by ideology and alibiing, perhaps even conscious corruption, involving the rolling back of what I call Habeas corpus law (an idea I’m often jumped on for ponderin on).
I also wonder at this strange idea of Legal Positivism, that seems to involve selectively assessing a given case outside of the contexts that created it. Am I right in suggesting the very latest case thrown out by the High court concerning 157 boat people (illegally?)) detained/abducted by the Oz navy could be regarded as an example of this sort of thinking?
I remarked, bit flip the other day, somewhere, that Legal Positivism seems a parallel to Economic Rationalism; something with a place in theory that has grave consequences for many people when applied by authorities with (unconsciously) myopic outlooks.
I wonder further, in the example of the Brazilian government laying into NSW for a poor result re police and a Brazilian lad tasered to death, (reminiscint of Mulrunji) hints at both a poor and isolationist culture both within the legal system and wider society, unfortunately, with a subsequent misapplication of legal doctrines due to cultural deprivation, including as to Legal Positivism itself.
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Bleak stuff, when an adult, educated citizen can’t file for an examination involving overt death and suffering without this being dismised as “vexatious”?
It has me in mind of something Norman Abjorensen alluded indirectly to elsewhere, as to where the real battlefields are and the actual battles being fought…they are fought out in committees and courts, and between academic specialists and experts, with intelocutors gradually filtering summaries out to the public.
The bad news is that governments and other powerful entities can keep humane and other forms of rational reform sidelined virtually indefinitely.
The good, even the authoritarians sense that overt subversion of the system however, would render their own (already damaged) credibility and futures problematic.
So, it seems the truth can still be exposed (just), but it’s always going to be like drawing eye-teeth, as vested interests employ the law to subvert justice.
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This is so true Paul.
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Reminds me, there was a bikie gang in my suburb years ago called Mandamus..now I get the point of the name.
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I think the registrar is well within his rights to refuse.
The final part of rule 6.07 is relevant here –
“. . . or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it”.
As for the question of “standing”, it is designed to prevent a busybody from lodging actions in the Courts. So far as is currently relevant, the person lodging must be a person directly affected by a government decision. A recent example was a challenge by a Bikie to the Queensland legislation. Such a challenge may be made by a person convicted or at least indicted for an offence, but the person challenging was not so affected, just a busybody who didn’t like it.
Sorry La Legale, but you are in that category or worse; and it may potentially be an abuse of process which the registrar is quite entitled to refer to a judge before accepting it.
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I could kick myself for not doing law.
That sentence you quoted is very badly constructed who writes that stuff?
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Not me, thankfully. There are parliamentary draughtsmen who make a living out of [fucking up] writing legislation.
I don’t think anyone knows how many sections there are in the tax acts. And very few of them are literary masterpieces. 🙂
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Except that that is not what, to all accounts, rule 6.07 says! A strict reading of it allows that the registrar may, if concerned as to the prospect of vexatiousness on the part of an applicant, refer the matter to a justice for a direction, but in no way does that rule empower the registrar to refuse a filing on his own motion in the interim absent such direction.
@LaLegale, as a barrister accredited to appear in the HCA, is an officer of the High Court of Australia. It seems incredible that as such, given her concerns as to propriety of procedure, her standing should in any way be called into question on the grounds that she is claimed to have no interest in the procedings, and is labeled as a ‘troublemaker’
!
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A busybody is the preferred term. As for being accredited to appear in the High Court, so am I. But I would still be a busybody if I sought to bring such an action.
As for the reading, ask La Legale if she now agrees with me.
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Why would you be a busybody for bringing such an action?
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Well, that makes sense. If a barrister and officer of the HCA can be dismissed by a registrar as “vexatious” and a “troublemaker” perhaps things are even worse than I thought.
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It’s rather like being in Alice in Wonderland actually.
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Yes, that is my interpretation too, Forrest. In fact I am rather reeling from the attack on my integrity as an officer of the court, and as a person of conscience. In fact, is it not the responsibility of an officer of the court to do all in her power to ensure the upholding of our laws. .
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You are saying that the question of vexation should be a matter for the Justice to be considered AFTER filing?
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But the question of “standing” is for the court to decide either as a threshold issue or as part of the merits of the application, surely, and not for the Registrar to determine. Rule 6.07 does not mention “standing”.
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We are definitely on the same pages lately! 🙂
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Isn’t the term “busybody” a bit nebulous’?
Comes down to subjective viewpoint, as to who a “troublemaker” may be, at least in the matter of an accredited lawyer exploring a way of dealing with something probably against the spirit of the law?
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Referring to a person as a “trouble maker” is an example of “gaslighting”, that is, denying the others reality to assert one’s own, a condition precedent to violence, violating the person’s sensibilities. Without seeing the application, who can say whether it has merit or not, and even further, legal opinions vary, albeit on the same facts and law.
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“A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.” Gibbs J, in a 1980 High Court case, won’t bore you with the citation.
A busybody is a meddler, one who interferes in things which do not concern him.
Clive Palmer and Gina Rinehart have deep pockets and either of them may dislike hundreds of laws, regulations or actions by government, but unless they are directly affected they cannot bring a case to have said laws etc declared invalid. Thankfully.
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Oh, sorry, DQ, didn’t see this before asking my question.
This debate is interesting, a similar argument is currently going on in the US where a citizen has attempted to take legal action against the producers of citizen four, the Edward Snowden doco that has now been pulled pending this action so I can’t see it. The defendants argue the complainant has no standing and so cannot bring any action against them.
http://www.smh.com.au/entertainment/movies/citizenfour-documentary-producers-sued-for-aiding-edward-snowden-20141223-12clvh.html
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I guess that challenging an applicant’s standing is an effective first strategy for a defendant!
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Thank you Doug. In response I say that I have standing because the government is not abiding by its constitutional responsibilities to make good law for the peace and order of its constituents of which I am one, and in my name. That it’s acting in my name defines me as an affected and aggrieved person.
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