Month: May 1996

The reforms to Australia’s treaty-ratification process announced by the Minister for Foreign Affairs, Alexander Downer, last week, have a parallel in reform to the process of appointment of High Court judges announced by the Fraser Government. In the early 1970s the states got upset that the Federal Government appointed High Court judges and Malcolm Fraser promised to change the system. In the mid-1980s after the Tasmanian Dams case, the states got upset that the Commonwealth was signing international treaties and enacting them into domestic law. The coalition parties promised to do something about it.

The solutions are very similar. Lots of consultation, but no effective change in the power structure. Mr Fraser’s government enacted a law that said the Commonwealth must consult the states before making a High Court appointment. Mr Downer announced that in future the Commonwealth must table treaties in Parliament 15 sitting days before ratification. The effect is the same. The Commonwealth Government’s power remains as it always has been; the power of the states and the Parliament is not changed. There is no power, for example, for a majority of states or either House of Parliament to block an appointment to the High Court or the ratification of a treaty. They get consulted and can be ignored.
Continue reading “1996_05_may_leader06 treaties”

The chair of the National Library and former Chief Justice, Sir Anthony Mason, has noted some alarming threats to the flow of knowledge in Australia. He has pointed out that what might seem technical proposals to change copyright law have a profound practical effect for those who deal in knowledge and ideas.

The Copyright Law Review Committee has proposed a fee for electronic transfer of material. This has delighted creative producers, like song writers and other artists, but has alarmed libraries. Sir Anthony points out that Australia is likely to lose heavily from any changes to increase copyright protection. We already pay $1.7 billion a year overseas yet receive only $380 million. This imbalance would get worse if copyright protection were increased.

The push for greater copyright protection has come mainly from the United States and Europe, which have most to gain. They have also pushed for greater patent and trade mark protection. Moreover, they have cunningly wrapped up the negotiation of international agreements in intellectual property in the negotiations over general trade through the World Trade Organisation, rather than through the World Intellectual Property Organisation. The irony is that more restrictive rules on intellectual property are being portrayed as part of trade liberalisation.
Continue reading “1996_05_may_leader05may copyright”

Ideology and experience sems to be overriding logic and experience in the Government’s quest to devolve more responsibility over health to the states.

The Minister for Health, Michael Wooldridge, said several confusing and conflicting things this week about the plan. He said it was not primarily to save money. Overall it would be better for Australia. Duplication would be avoided. Health standards in some states would be lower than in others. Less money would be given in tied grants so the states had a greater choice in how they spent the money. After the Labor Government had handed responsibility for immunisation to the states immunisation levels fell disastrously. The reason for the fall and the concomitant 17-fold rise in measles, German measles and mumps was that Labor had failed to show national leadership in the area and was responsible for 42 childhood measles deaths.

This is a hotch-potch of nonsense and folly. No-one could doubt Dr Wooldridge’s concern over Australia’s falling immunisation rate and the resulting death and suffering caused among innocent children. As a doctor and health minister he knows that it is unacceptable in a nation as wealthy as Australia. So he we have a prime example of a health matter devolved to the states and within 10 years they have made a demonstrable hash of it, resulting in death ahd suffering. So what does the new government propose: handing more responsibilities to the states in health. Will they make a hash of them, too?
Continue reading “1996_05_may_leader04may health”

The old common-law rule that you can do what you like on your own land has rightly been modified into oblivion. Higher population densities and more noisy and noxious industries have required a limiting of the individual land-owner’s right in favour of broader community rights. In many places it has been a difficult transition. People and industry have often grown up cheek by jowl and relocation of one or the other has not come without cost. Other, newer, places have grown up with land-use regulation which has enabled industry and residential areas to be separated for the good of both. This, until recently, has been one of the joys of a planned city, such a Canberra. Before moving into a dwelling people can check the surrounding land use and be reasonably certain that the character of the area will stay the same. That has been eroded somewhat with changes in residential densities, but one can still remain confident that a service station or brickworks will not pop up next door. None the less, the potential for conflict between residential and industrial land use remains.

This week, the Minister for Urban Services, Tony De Domenico, issued new rules on truck parking in the suburbs. The new rules come after a year’s inquiry following Labor’s plan to ban all but light trucks from the suburbs. They will ban only trucks with refrigeration units, pantechnicon semi-trailers and stock trucks. Others will be allowed to operate between 6am and 10pm (or for existing trucks from 5.30am to midnight). Clearly Mr De Domenico has gone to far in favour of truck owners. In the name of supporting small business, Mr De Domenico has condemned neighbours of truck owners to noisy, offensive truck use. Suburbs are for people to live in, not to operate trucking businesses from. Business use that is incompatible with residential use should not be allowed to interfere with residential amenity. Driving in an ordinary car to an industrial site where the truck is parked should be no more onerous than for any other person driving to work.
Continue reading “1996_05_may_leader03may truck noise”

The Australian Government should be wary of cutting the $1.5 billion foreign-aid and trade promotion Budget. It sounds like a lot of money, but foreign-aid as a percentage of GDP going to foreign aid has steadily falling for more than a decade. It is an easy target.

The Foreign Minister, Alexander Downer, has ruled out cuts to aid to Papua New Guinea where Australia has a special moral responsibility, but cuts elsewhere, he has indicated, are inevitable.

The steady fall in Australia’s foreign aid can be seen as a reflection of a fall in our generosity. This has also been exacerbated by the change in the make up of the aid. A higher proportion is going to countries with which we are building a trade relationship and a lower proportion is going to the desperately poor countries of Africa.
Continue reading “1996_05_may_leader03maa foreign aid”

Despite the affable nature of Tuesday’s ceremonial opening of Parliament and yesterday’s orderly Question Time, the underlying conflict between the newly elected Government and the combined forces of the Opposition and minor parties in the Senate remains.

Yesterday, the Government made clear its determination to bring its legislation to privatise and third of Telstra and to reform industrial relations quickly before the Parliament. Some government members put on a brave face suggesting that when push comes to shove the Senate will pass the Bills relatively intact. More realistic was National Senator Bill O’Chee who hinted that a double dissolution would be the only way to get key legislation through. That it should require this is an unfortunate aspect of Australia’s constitutional arrangements plus the rigid party discipline in the Australian Parliament.

It has been two decades since the Government has had a workable majority in the Senate. In Labor’s 13 years, though, the Government was not completely frustrated by the absence of a Senate majority. It usually got its major policy items legislated. Now, however, the Government does not merely lack a majority, but it has an actively hostile Senate. The leader of the Democrats, Senator Cheryl Kernot, has made it clear that she thinks the Democrats have a mandate to block the sale of Telstra and to block key industrial relations reform. Given the voting pattern on March 2, this is nonsense. She is turning the Senate from a house of review to a house of obstruction.
Continue reading “1996_05_may_leader02may double dissoln”

The ACT Government was right not to follow the recommendations of last year’s rates inquiry. That inquiry proposed a new rating system. Up to 50 per cent of rates would be a flat service charge and the balance would be based on property values. Chief Minister Kate Carnell has rejected that model on the grounds that it would result in an increase in rates for people with lower-valued properties and a decrease for higher-valued properties.

However, her alternative is also unsatisfactory. The Government is to increase rates by the consumer price index of 3 per cent for the next two years, as it did last year. It means that individual ratepayers can look at last year’s bill and add 3 per cent. The trouble with this approach is that it delays the day when a more rational basis for rates is set, and the longer that is put off, the greater the disparities will be between the various parts of Canberra and the greater the adjustments to fix it.

If Canberra rates are to be based on property values, then it would be better to have regular adjustments. If the rates are to be assessed by some other means, it would be better to legislate that and start imposing the rates on that basis. There is no rationale in basing rates on the property values pertaining three or four years ago plus 9 or 12 per cent … other than it satisfies a pre-election political promise. The Government has promised further analysis of the rating system, but it should not wait too long.
Continue reading “1996_05_may_leader01may act rates”

What a cosy little profession the law is. Too bad for the public.

Justices Miles, Gallop and Higgins, the three resident ACT judges, thought this week that the protection of one of their kind was much more important than protection of the public. And thus they suppressed the name of two Canberra lawyers whose is being accused by the Law Society of misusing clients’ money. The Law Society is calling on the full bench of the Supreme Court to take disciplinary action against the two lawyers.

Every lawyer in town knows who the lawyers are. So do most of the medicos and journalists.

The really sad thing about this case is that these lawyers practice in the personal-injuries area. They “”represent” mug wage earners injured at work and people injured in car accidents.

But Their Honours are not prepared to allow the public to know their names. The judges are prepared to allow them to take on new clients. Unsuspecting mug members of the public could go into the offices of this legal firm imagining nothing might be wrong.
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The Federal Government, if it were serious and determined, could ensure a tough national system of gun control.

It is a matter of politics as much as constitutional law. On the question of politics, governments are wary of the Unsworth factor. This is the myth that the promise of tighter gun laws caused the defeat of the Unsworth Labor Government in NSW because pro-gun organisations could rally a critical one or two per cent of people in marginal electorates to change their vote on that issue alone. Maybe they can, but the Unsworth government was doomed anyway. Besides, politicians are supposed to act for the overall welfare and, by and large, for majority wishes. Certainly, where they coincide (as they clearly do on gun control), politicians should act.

Superficially, gun control is a state matter. By and large, it is difficult for the Commonwealth to legislate in the area of criminal law and the actions of individuals. But it can be done. The Constitution provides a list of areas of federal power and leaves all other areas to the states. The list includes things like foreign trade, defence, foreign affairs, taxation, currency, communications (expressed in the turn-of-the-centruy phrase “”postal, telegraphic and other like services”), banking, insurance, lighthouses, divorce and in relation thereto the custory of children, industrial disputes that cross state boundaries and so on.
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Lawyers and law students have always had access to judgments of the nation’s courts and statutes of its parliaments. They have been available in the law reports in the university, practitioners’ and court libraries throughout Australia and have included details of Family Court jugdments, with names and details of custody and property settlements.

I recall one Family Court case that went to the High Court, for example, involving a constitutional wrangle based upon some salacious details. The woman was asserting that the child whose custody was disputed was in fact fathered by someone other than the husband case. She said it was not a child of a marriage and therefore the Commonwealth’s Family Court had no constitutional power to hear the case. The Constitution restricts the Commonwealth’s power over custody of children to those in relation to marriage and divorce. The woman said the case should go to the state supreme court (which unlike the Family Court at the time) had power to order a blood test which might prove the issue. The man (who did not want paternity challenged biologically) wanted the custody case to be heard by the Family Court.

In those days, the press were not allowed in the Family Court, but they were allowed into the High Court. Fearing embarrassment for the child later, Justice Deane (now Governor-General) had the wit and humanity to suggest a suppression order on the names, and the case is now listed as something like F v F, but in many routine Family Court jugdments in other cases the identity can be deduced by lawyers and law students from reading the jugdments.
Continue reading “1996_05_may_column14may net etc”