Month: January 1995

I know the name of the person against whom a sexual harassment charge was made that resulted last week in the ACT Liberal Party getting an injunction against media organisations to prevent the publication of the name or of any details of the case. I also know the name of the person who made the allegations. So, too, do at least 10 of my media colleagues, nearly all members of the House of Assembly and their staffers and several lawyers in town. And I have little doubt that many of them have told many of their professional colleagues. The reason we know and you don’t is because journalists, politicians and lawyers _ through their training and life experience _ are more responsible, non-judgmental and fair than people in the community at large. Why should the public have the same information? Bus drivers, electricians, welders, accountants and dentists, for example, are less well-educated or have narrower educations, and clearly could not be trusted with the same range of information that journalists, politicians and lawyers have access to. The electricians and dentists are far more likely to jump to prejudicial conclusions than the rightly privileged select few journalists, politicians and lawyers who are in the know.

It is important therefore that strong measures are in force to stop the information from getting into the wrong hands, or wrong heads. It is important that the information should be denied the mass of the ill-educated, narrow, ignorant and stupid people who make up the occupations bus driver, electrician, social-welfare recipient or house carer, for example. Notice that Liberal and Labor MLAs are at one on this; so it must be right. If anything, its seems the $5000 maximum fine under the ACT Discrimination Act for imparting the dangerous information is too light. It is only at a similar rate as the far less dangerous crimes of negligent driving and speeding. I suppose the basic problem with giving this information to the masses is that they are incapable of drawing a distinction between mere allegations and proof.
Continue reading “1995_01_january_column24jan”

I was having a wine over the New Year break with a Sydney friend who berated me for the failings of Australia’s media. In particular, he wanted to know why hadn’t anyone written the story about where the Australian economy would be if Hewson had won the 1993 election. He said we were facing taxes and interest rates far worse than the GST.

“”You’re from Canberra you must have the inside knowledge. What will the government do?” he asked. I told him he was inconsistent in blaming the media for not running the full story, but seeking some inside knowledge from someone in the Canberra media as if that was a fountain of wisdom. None the less, he should not rely on the predictions of Canberra-based journalists, nor rely on the predictions of market economists _ you know those guys who said the All Ordinaries would hit 2500 last year. As this was not very helpful, I also suggested the following rule of thumb: Governments say they are in the business of smoothing out the economic boom-bust cycle. It is in their interest, therefore, to predict things will be smoother than they are likely to be. They want to look good. It is also true that governments invariably are not as good as they would like to make themselves out to be. Therefore you could safely add one or two percentage points to any prediction made by government. This is for both boom and bust statistics. So coming out of the cycle, as we are now, you could add a couple of percent to Budget forecasts for growth, business investments, inflation and interest rates. “”But what about tax rises?” he asked. They are baying for them in Canberra, I told him. And they may have to happen because _ short of a Maciavellian rope trick _ because the government has given itself no out. My friend glumly took another sip of his wine: “Why?” he asked. “”Because of that,” I said, pointing to the wine. “”I don’t follow.” I explained that tax changes people’s conduct.
Continue reading “1995_01_january_column17jan”

Swedish legalisation of homosexual marriages and the call for greater recognition of homosexual relationships by the Chief Judge of the Family Court, Alistair Nicholson, sent me scurrying to the Constitution. How could it be done in Australia? The Constitution grants the Federal Parliament power to make laws with respect to “”marriage”. Is this enough to give Federal Parliament power to make a law recognising homosexual marraiges and to regulate divisions of property and custody and access rights to any adopted or artifically conceived chidlren? Or would it remain a state matter. It depends on what is meant by the word “”marriage” and the question is an excellent example of how the Constitution works.

The Constitution passed the British Parliament in 1900. But the meaning of the words are not frozen at that time. Let’s pretend that the Constitution gave the Federal Parliament power to make laws with respect to “”aircraft”. In 1900 that would have meant hot air balloons and kites. In 1915 the biplane would have been added. In 1945 the rocket and in the 1950s the jet. The connotation of the word “”aircraft” is things that fly in the air. In 1900 the denotation of the word meant balloons and kites and the denotation widened ever since. Then in 1998, say Queensland wanted to launch a spacecraft to the moon. Would it be an “”aircraft”? Does it fit the connotation “”aircraft” or is it a “”spacecraft”? It is the same with the words “”postal, telegraphic and other like services”. As time goes on more things come within their ambit.
Continue reading “1995_01_january_column10jan”

Apparently small-ticket items like airport noise and woodchips prevented the Government from responding last year to the Australian Republic Committee’s report, but judicious leaks published last week suggest Paul Keating is to get to it first thing this year.

Apparently he is convinced that the President should not be elected directly by the people, but by a special majority Parliament. This has aroused the suspicion of various knee-jerks around the place saying is a cynical grab for power by politicians.

But life is more subtle than that. If the president is chosen directly, inevitably there will be a Liberal candidate and a Labor candidate and a politician will be elected. Howver, if the president is chosen by a two-thirds majority of both Houses, for example, no Liberal or Labor politician or ex-politician will get the job. Can you imagine the necessary number of Liberal MPs supporting a Hawke candidature? Let us call this the Politicians’ Self-Veto Syndrome.
Continue reading “1995_01_january_column03jan”

Australian courts are forcing people to litigate rather than settle commercial disputes, according to Sydney lawyer Peter Keel. Mr Keel said yesterday that judges, especially in the Federal Court, were taking a very restrictive view of a principle that gave credit to parties that attempted to settle when it came to assessing costs awards. Usually if one party proposed a reasonable settlement in what is called a Calderbank letter and the other side refused to accept it and subsequently won litigation the winning side would not get costs, as would be usual for a winning side. However, judges were not giving credit for Calderbank letters unless they offered a settlement in the sorts of terms courts themselves would give. This precluded non-disclosure clauses, settlement of multiple claims and refusal to admit liability. “”This means Calderbank letters are losing the muscle they once had to force parties to settle on reasonable terms,” Mr Keel said. Parties could take advantage of this to delay paying out because it took a long time to get to court. Mr Keel cited several Federal Court cases where the “”black-letter”, legalistic approach had been taken. He called for legislation to ensure a more effective approach.

People will be able to pursue and defend small claims more easily without fear of legal costs under ACT Government plans announced yesterday to revamp the Small Claims Court. At present people have a choice with claims of up to $5000: they can go to Small Claims, where there are no costs awarded, or the Magistrates Court, where costs can be awarded. ACT Attorney-General Terry Connolly said business and large organisations, including the ACT Government, usually pursued under-$5000 claims in the Magistrates courts using lawyers where they could get costs. This exposed many ordinary people to awards for costs. Now they would be required to go to the Small Claims Court, which would be renamed the Small Claims Tribunal. The tribunal would have much less formality and less legalistic procedure. Claims under $1000 would be determined by a referee, who would be legally qualified members of the court staff. There would be only limited appeal rights (to the Supreme Court with leave), bearing in mind the relatively small amounts of money at stake. Cases which involved legal complexity could be referred by the tribunal to the Magistrates Court. Mr Connolly thought that lawyers would object to being forced to start actions for under $5000 in the Small Claims Tribunal, but he defended the move saying it would improve access to justice because people found it difficult to defend claims in the more formal atmosphere of the Magistrates Court. Further, cases could be dealt with more quickly in the tribunal and the tribunal was less adversary and more aimed at finding a solution without strict application of the rules of evidence. Comment from the Law Society could not be obtained yesterday. Mr Connolly said that to date the Small Claims Court had improved access to low-cost justice in the ACT since being set up in 1974. But the time had come to improve it. The Chief Magistrate would head the tribunal and magistrates would be members. Other legally qualified people would also be appointed members. Mr Connolly said that when relatively small amounts were involved cheapness and speed of resolution tended to outweigh some of the problems that might arise with the streamlined procedure.

The ACT Law Society has condemned a move by ACT Attorney-General Terry Connolly to force people with claims under $5000 into the Small Claims Tribunal where they cannot get costs. At present people had an option of starting cases in the Magistrates Court (where they could get costs and where formal procedures applied) or they could go to the Small Claims Tribunal. Under Mr Connolly plans all claims under $5000 would have to go to the tribunal. Society president Robert Clynes said yesterday small businesses and tradespeople would be discriminated against because if they use a solicitor they would have to bear the costs themselves, including filing fees. It was discriminatory against companies because companies had to be represented by a solicitor in court. At law company officials could not represent the company in the way individuals could represent themselves. Present small-claims legislation allowed a magistrate to remove a case to the small claims jurisdiction where justice required it, so Mr Connolly’s proposal was unnecessary. Mr Connolly argued that big organisations used the Magistrates Court and it made it threatening for people to defend cases lest they be hit with costs. Mr Clynes said Mr Connolly’s move was yet another by the ACT Government to reduce the role of lawyers. He said it was counter-productive because when people used lawyers they tended to get settlements rather than fights in court. He cited car-accident-injury cases where there was a high involvement of lawyers and 90 per cent of cases were settled.

Australians wants a greater injection of life into the central national area of Canberra while keeping a sense of openness and space, according to most recent research. Details of the research into what people outside Canberra want from and feel about their national capital are to be released at the National Press Club on Wednesday by the Deputy Prime Minister, Brian Howe. Mr Howe will also make an address. The research shows that Australians do not point to the national flag, anthem or the Commonwealth crest when asked to express opinions about symbolism in the capital. Instead they find intangible things like peaceful coexistence, cosmopolitan society and a laid-back attitude as the most important symbols of national identity. The research was undertaken by a consultant to the National Capital Planning Authority, for which Mr Howe has portfolio responsibility. It was part of a review of the central national area _ the first review for 30 years. The research was detailed qualitative research with focus groups undertaken in each capital and a country town (Mudgee), a regional centre (Townsville) and a remote community (Port Hedland). It follows wider opinion-poll research several years ago which revealed positive attitudes to Canberra the city, especially by those who had visited it, despite some negative opinions of the occupants of Parliament House. Interested members of the public are invited to attend the lunch and can book on 2733644. It is likely that Canberra will play a major role in the lead up to and celebration of the centenary of Federation as it was created as a result of federation and one of the most potent symbols of it.

The Act Opposition has accused the Attorney-General, Terry Connolly, of hypocrisy over his suggestion that restricted liquor trading hours should be looked at for suburban areas. Mr Connolly made the suggestion of a 2am closing after police were forced to block a road at Manuka on New Year’s Eve. Opposition Leader Kate Carnell said yesterday that when the Legislative Assembly’s Select Committee on Drugs had recommended a 4am closure in May last year Mr Connolly had said it would be counterproductive. She quoted him from Hansard as saying, “”There would be a tendency for people to swill drink in the hour or so before the curfew came into force . . . At 4am or whatever time it would be, thousands of young people, probably in a fairly intoxicated state, would all be on the streets at the same time.” She said Mr Connolly had got it wrong in refusing a temporary closure of Franklin Street in Manuka for New Year’s Eve and the police had had to do it for him for public-safety reasons. His call for early closing was kneejerk, an attempt to bail himself out and cynical.

The Australian War Memorial has refused to pay the legal costs of the former director and present deputy director of the memorial in their Federal Court quest to overturn a report of the Merit Protection and Review Agency. The former director, Brendon Kelson, said he had legal advice saying it would be quite proper for the council of the memorial to fund the challenge because the advice was the MPRA inquiry into harassment at the memorial was procedurally flawed and beyond its jurisdiction and that the inquiry had directly affected the runnning of the memorial. The chair of the council, General Peter Gration, said yesterday that the council had taken advice from the Attorney-General’s Department and after careful consideration had decided it was not appropriate. The effect of the decision is that the Government gets the upper hand because it can use procedure and appeals to run up legal costs until the plaintiffs abandon their case. A recent example was Resources Minister David Bedall saying of a single-judge decision that these were routinely appealed. The deputy director, Dr Michael McKernan, is on a year’s leave working at the ANU. Sources from the council suggest the vote was very close and that some members said it would be a grave injustice not to fund the case. Other bureaucratic sources say the gist of the Attorney-General’s Department’s advice was that legal funding would be proper if the council thought the MPRA inquiry and report had been conducted improperly or beyond jurisdiction and that it would affect the management of the memorial in a way that adversely affected the ability of the memorial to perform its functions. The advice said that if the council thought that it was in the best interests of the memorial for the inquiry’s report to stand it should not fund the challenge. When asked, General Gration said the decision on the legal costs was a matter for the council and the Minister, Veterans’ Affair Minister Con Sciacca, had had no role. General Gration acknowledged that the MPRA inquiry had had an adverse effect on the memorial. Memorial sources say that at times during the inquiry up to eight people were away on stress leave.