Legal positivism is dead - Even the government can't tell you what the law is
Governments in Australia are plague with an interesting problem - they are incapable of determining what the law is at a given point in time.
This makes it impossible difficult for them to comply with the law.
Some news stories on the matter.
Australians illegally charged billions of dollars in merchant fees by federal government
Australians have been charged billions of dollars in illegal merchant fees for federal government services, in a major financial scandal uncovered by the Albanese government.
Fees amounting to billions of dollars have been charged over two decades, dating back to the Howard government era, for the use of credit cards and debit cards to pay for services such as visa applications and tax bills.
Exclusive: Welfare payments cancelled unlawfully
The Department of Employment allowed the incorrect cancellation of welfare payments in the privatised employment services caseload because it failed to read properly new legislation when it began in April 2022.
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DEWR remains far more tight-lipped about a different IT error, discovered after this one was picked up in July, which also affects payment cancellations under the Targeted Compliance Framework (TCF) introduced by the Coalition government in 2018 and continued under Labor.
I don't seem to be able to find a nice news story on the Better Off Overall Test (BOOT) in employment legislation, but would note that
- In 2008, it was introduced
- had an established meaning that was understood by major employers like Coles, major unions like the SDA, and the Fair Work Commission (notably agreements all had to be registered with the FWC)
- In 2016, it was determined to have a different meaning by a full bench of the FWC, overturning all the agreements established in the intervening period
Getting a bit more sinister
An interesting variant of this problem is when someone in government produces a opinion that conduct is illegal, but is ignored either as a matter of course of as a result of wilful blindness.
The NSW Ombudsman has been asked to investigate whether the former Coalition government ignored repeated legal advice by recouping $144 million over eight years through an "unlawful" surcharge on government transactions.
Minister for Finance Courtney Houssos said customers of Service NSW had been slugged with merchant fees despite the department receiving advice from the Crown Solicitor on three separate occasions that the practice was unlawful — twice in 2016 and once in December 2022.
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In response to the allegations, former NSW finance minister from April 2019 to March 2023, Damien Tudehope said he did not recall receiving that advice but didn't rule out its existence.
An extract from Rick Morton’s Mean Streak
Not the public servants who received the original legal advice before it even became a policy proposal, advice that flatly declared the approach unlawful; not the Commonwealth Ombudsman, whose credulity was exploited by wilfully deceptive bureaucrats.
For the record, I doubt that the NSW government's surcharging was deliberately illegal, particularly given the experience of the Commonwealth. On the other hand, I definitely believe that the senior leadership of the DSS knew that income averaging was illegal.