Asian investors will be relieved by rejection of move to amend Australian Constitution led by leading tax lawyer Mark Leibler, but acceptance of Aboriginal superstition by Australia's judges remains a problem

 by Ganesh Sahathevan 

Australians have voted overwhelmingly to reject constitutional amendments that would have endangered investment by foreign investors. The movement led by leading tax lawyer Mark Leibler has been defeated despite a very extensive media campaign, funded by Australia's biggest companies and business people.  

Judges and the courts are however not bound by the vote, and they remain a danger to investment given their acceptance of Aboriginal myth and superstition.

Saturday, October 7, 2023

An overwhelming NO vote will help restore, in part, foreign investor confidence in Australia , which has been damaged by politicians and highly imaginative judges - Leadership of the YES vote by Australia's leading tax lawyer is also of concern

 by Ganesh Sahathevan 

 Voice proponents Mark Leibler, centre and Noel Pearson, right 

Australia's proposed constitutional amendments may cost Malaysian, Singaporean, others invested in Australian property.

In addition, the performance of Australian politicians , especially the Prime Minister Anthony Albanese, cannot but give the impression that Australian politicians will say and do anything to gain a few votes. 

The Sun Cable debacle, which saw Albanese lie  publicly  in the presence of Singapore Prime Minister  Lee Hsien Loong about the viability of the Sun Cable project just before it collapsed, is likely to have at least raised questions in this region about Albanese's judgement and honesty.

Then his friend  the former Premier of Victoria Dan Andrews cancellation of the Commonwealth Games in Victoria  brought world wide attention to Victoria and thus Australia's financial stability. Withdrawing from hosting an international event is usually associated with third world countries. 

However and  of even greater concern is the fact that Australian judges, including the former Chief Justice of Australia, Robert French, seemed to have accepted Aboriginal myths as grounds for cancelling billion dollar resources projects. Superstition and mythology is very much part of the fabric of East and South East Asia , but never given judicial notice, and certainly not on the scale now seen in Australia. 

The fact that the leaders of the Voice referendum include Australia's leading tax lawyer, Mark Leibler, is also of concern. The Voice provides Australian businesses aligned with its proponents a vehicle to structure business propositions in an exclusionary, monopolistic way, as seen in South Africa and Malaysia which have Voice like constitutional provisions.  These are not jurisdictions that are safe for foreign investors.  

Friday, April 14, 2023

Australia's proposed constitutional amendments may cost Malaysian, Singaporean, others invested in Australian property half of freehold value in extinguished native title compensation - Leading Australian tax firm outlines the problems (but says landowners should be mature enough to pay the price)

 by Ganesh Sahathevan 

Australia's proposed consitutional amendments may cost  Malaysian, Singaporean, others invested in Australian property half of freehold value in extinguished native title  compensation - Leading Australian tax firm outlines the problems (but says landowners should be mature enough to pay the price)

Australians are being asked to consider amendments, described as The Voice,  to their Commonwealth constitution similar to Article 153 of the Federal Constitution, Malaysia, from which the special Bumiputera rights derive.  

The beneficiaries in the Australian case are its Aboriginals , who can already claim native title over  much of Australia. That title can be the basis of compensation and other monetary claims, under exisiting laws (even if the claims are  not yet widespread). 

The leading Melbourne tax law firm, Arnold Bloch Leibler explained in an op-ed published in 2019 how a decision of the High Court recognised that Aborigines were entitled to compensation for their extinguished native title, calculated in that case to be half of freehold value.  The firm is also a leading  proponent of the proposed consitutional amendments, and has said in effect that paying compensation s the right, mature thing to do (see article below).

All this however can mean that  Malaysians, Singaporeans and  others invested in Australian property may soon be liable to pay  half of freehold value in extinguished native title  compensation. The Voice constitutional  amendments if passed into law are likely to mean more claims for compensation, and quite likely, a more streamlined, formal process for the payment of compensation. 

To Be Read With  

Friday, April 14, 2023

Arnold Bloch Leibler said in 2019 that landmark High Court decision awarding substantial compensation for extinguished native title " shouldn't inspire land title fearmongering"- Senior partner Mark Leibler is today one of the most vocal supporters of The Voice referendum , scolds Australians for being afraid, but has been silent about the consequences for all Australians who can be subject to native title compensation claims that could equal or exceed half of freehold value

 by Ganesh Sahathevan

                                                                      

                                            Mark Leibler, "In Support Of A Voice"

In 2019 Bridgid Cowling , a senior associate in the native title practice at Arnold Bloch Leibler wrote an op-ed published in The SMH where she explained how the High Court had provided a framework for assessing extinguished native title compensation claims, and had determined that compensation ought to be half of the freehold value.

She ended by declaring: 

Twenty-seven years after the Mabo decision and 23 after the Wik decision, surely now is the time for us to bury that old chestnut in the compost heap of useless scaremongering.

Let us be the civil society that the High Court of Australia believes us to be – an Australia that accepts the compensation as appropriate, fair and just, and celebrates the decision as a clear, positive way forward for the nation.

 Today, in 2023, the senior partner and. founder of that firm, Mark Leibler, has taken to public fora to lecture Australians on the error they will make if they vote to reject The Voice referendum. Instead of scolding  Australians for being afraid, he ought to explain the  consequences for all Australians who can be subject to native title compensation claims. 

To Be Read Wth 

OPINION

Timber Creek decision shouldn't inspire land title fearmongering

By Bridgid Cowling

March 21, 2019 — 11.11pm

One of my first tasks as an intern with the Northern Land Council was to source an interpreter for the Timber Creek native title case of the Ngaliwurru and Nungali Peoples.

As English is not their first language, they needed an interpreter to communicate their connection to country to the judge, and help the claimants and the legal system to understand one another.

Michael Murrimal of Timber Creek at the Gregory National Park in the Victoria River Region in the Northern Territory.

Michael Murrimal of Timber Creek at the Gregory National Park in the Victoria River Region in the Northern Territory. GLENN CAMPBELL

Fourteen years on (20 since the native title claim was first lodged), the High Court of Australia has not only understood and recognised the native title rights of the Ngaliwurru and Nungali peoples, it has found an elegant way to understand the impact of the extinguishment of those rights, and to put a dollar figure on it.

It has valued native title rights and translated the loss of connection caused by extinguishment into financial compensation.

The decision

The High Court decision in Timber Creek is a relatively uncontroversial decision that clinically interprets the compensation provisions of the Native Title Act and plainly applies the common law.

The High Court has given us a clear process for assessing compensation: What are the native title rights and interests? What acts have extinguished native title? What is just compensation as required by the Native Title Act?

The compensation will comprise the economic value of native title rights and interests that have been extinguished, plus an amount for additional, non-economic or cultural loss caused by the diminution of the native title holders’ connection to country.

In the Timber Creek case, the economic value of the non-exclusive native title rights and interests was 50 per cent of the freehold value of the land. This amounted to $320,250, with an additional amount of $910,100 interest on that sum. The award for cultural loss was $1.3 million.

What now?

Each compensation decision will be unique, dependent on the acts of extinguishment, the native title rights and interests that are extinguished, and the specific impact on the native title holders themselves. State legislation will be relevant to the analysis of the extinguishment and compensation. As the High Court emphasised, there is no one-size-fits-all approach.

There is also no magical economic analysis that can be undertaken by extrapolating the financial compensation award in Timber Creek to accurately estimate a total bill for compensation payable under the Native Title Act. Such a suggestion – and there have been many of them in the wake of the decision – should be viewed with extreme caution.

So too should statements that native title holders around the country will be inspired by the Timber Creek decision to make a flood of compensation claims. Those with long enough memories will remember that we’ve experienced this kind of unwarranted hysteria before. When native title was first, and belatedly, recognised by the High Court in 1992, "back yards are under threat" fearmongering abounded. Thankfully we’ve moved on as a country since those dark days.

Native title holders and their advisers have been working with the Native Title Act and its compensation regime for years now. If there has been a delay in making compensation claims before the courts, it is because claim groups are busy responding to future act notices, negotiating agreements and proving their native title.

It is also because, responsibly, many will have held off until there was clear guidance from the courts. As the High Court recognised in its judgement, the resources of native title claimants are limited.

The Timber Creek decision does not usher in any new law. It is a conservative judgment and extremely helpful.

As the first High Court decision of its kind, it provides much-needed guidance on a valuation process and on how the courts will approach compensation claims. Native title holders, proponents, governments and lawyers advising them will be much better able to negotiate in good faith, and accurately assess what is fair compensation.

The decision is not remotely surprising. Nor is it in any way radical. Responsible governments and proponents have been preparing for this day for decades.

Any suggestion that they have been caught unawares speaks either to poor planning or, more likely, to a disingenuous attempt to employ the “bucket loads of extinguishment” politics of fear that we saw after the 1996 Wik Decision, in which the High Court found that native title could co-exist with pastoral leases. An unworthy response that set back the cause of reconciliation by a decade or more.

Over the past 20 years, every significant reasonable gain in Aboriginal land and sea rights has been met with a corresponding outcry that the recognition of rights will be detrimental to business and/or is, for some other reason, unjust.

Twenty-seven years after the Mabo decision and 23 after the Wik decision, surely now is the time for us to bury that old chestnut in the compost heap of useless scaremongering.

Let us be the civil society that the High Court of Australia believes us to be – an Australia that accepts the compensation as appropriate, fair and just, and celebrates the decision as a clear, positive way forward for the nation.

Bridgid Cowling is a senior associate in the native title practice at Arnold Bloch Leibler

https://www.smh.com.au/national/timber-creek-decision-shouldn-t-inspire-land-title-fearmongering-20190321-p5166m.html