Month: January 1998

Prime Minister John Howard has admitted that sharing a head of state with another country is an anachronism and that changing to a position where Australia has its own unique head of state is the best argument for a republic. It is a welcome, though belated, change of position. Nonetheless is it an important change of position for the Prime Minister. It is important that he take a key role int he debate. Its timing is equally important. It means that the Constitutional Convention, which opens on February 2, will not be a debate about whether Australia should be a republic, but rather it will be a debate about what sort of republic Australia should be.

In some respects Mr Howard’s new view might seem to be contradictory. He has moved slightly towards a republican position by accepting one of the major arguments of the republicans — that we should have our own head of state because sharing the same person as head of state with Britain is symbolically inappropriate. In doing that he has sided with the view of a very large majority of the Australian people. In contrast, Mr Howard has flown in the face of popular opinion by saying that the head of state in a new Australian republic should not be directly elected by the people, but be appointed. His preferred option for appointment would be on the model proposed by former Victorian Governor Richard McGarvie. Mr McGarvie proposed that the head of state be appointed and dismissed on the advice of the Prime Minister, as is the case now. But instead of the advice being given to the Queen it would be given to a Constitutional Council of three, perhaps more, eminent Australians with constitutional experience. The positions would go, in order until filled, first to retired Governors-General; then to retired state Governors; then to retired Chief Justices; High Court justices; and then Federal Court Chief justices and Federal Court justices. If no woman was appointed to the first two positions, the third position would got to he next woman in priority. The rules would be such that membership of the council would be self-determining. State governors would be appointed, with the equivalent office holders, in the same way.
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The allegations surrounding President Bill Clinton’s sexual behaviour are getting more serious. Moreover, if sustained, they seem to reveal a pattern of behaviour — the abuse of a position of power by an older man or a much younger woman. They also follow an aspect of the Watergate scandal that brought the Nixon presidency to an end. That was the fact that the original malfeasance was not the cause of the president’s undoing. Rather it was the president’s attempt to cover up or ameliorate the original malfeasance.

In Mr Nixon’s case it was the covering up of White House knowledge of the break-in of Democrat election headquarters at the Watergate Hotel where the Democrats rather than the break-in itself that caused the damage because the cover-up involved breaches of the law and fairly solid evidence of lying.

In Mr Clinton’s case, he might have weathered the storm over the Paula Jones allegations of sexual harassment but if the new allegations are true he will not be able to weather the storm of his attempt to ameliorate those allegations.
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At least for now, major Australian companies and the Australian Government are playing down the significance of the Asian currency crisis. Whether this is whistling in the dark or taking a restrained, sensible view is hard to tell. This is because economies are vulnerable to a host of influences, the most profound of which is that most unpredictable element of all: human irrationality. It is now clear that the value of the Indonesian rupiah has been based far more on sentiment than a rational assessment of asset value. We do not know, of course, whether this is a case of the old exchange rate of 2000 rupiah to the US dollar being a gross over-valuation because of greed or whether the present rate of 16,000 to the US dollar is a gross under-valuation because of fear. Most probably both. Markets are driven far more by greed and fear than a rational assessment of value.

Market economists put far to much faith in market forces. They argue that markets ultimately correct. True. But not after some wild fluctuations during which great fortunes are lost or gained, as we are seeing in Indonesia. The result is usually a great deal of misery. More worrying is the further misery likely to be caused in affected Asian countries as international pressure is applied to what precious little spending goes on health, education and the subsidy of basic foods.

The enormous tragedy unfolding with the Asian currency crisis is that the very poor in the very poor countries are paying for the incompetence and corruption of their rulers. The ordinary people in Indonesia are suffering most as the currency crisis sends a reaction the system. Corporations which have taken out US dollars loans are now faced with a debt eight times the size. They will fail and people will be thrown out of work. Imports will be prohibitively expensive.
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The Australian Competition and Consumer Commission is holding public hearings into the mobile phone system. Those hearings are revealing that Australia has a flawed model of telephony. The flaws are not just in the mobile system, but extend to the ordinary network and to cable television.

At the hearings, Telstra objected to an idea put by the ACCC that the billion-dollar networks of Telstra, Optus and Vodaphone be opened to new players. The ACCC also wants to insist that the three networks open themselves to roaming, in effect ending the present tied system where a person has to choose a carrier and use it exclusively. Under the ACCC proposal people could choose one carrier for one call and a different carrier for the next.

All three carriers are happy to have roaming, but say it should not be mandated. New players AAP Telecommunications wants mandated roaming as do the equipment manufacturers, like Motorola and Ericsson.

On the opening up of networks to other carriers, Telstra, which has the biggest network, has the loudest objections and AAPT is the loudest proponent. Telstra points out that car companies and brewing companies are not required to open their plants to competitors. Having spent about $1 billion in creating the network, Telstra said it did not want to lose the competitive advantage that gave in getting and retaining customers.
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The proverbial Australian “”sickie” is still healthy and well according to a survey this week by Morgan and Banks. The “”sickie” is not well-defined. Some view it as taking a day off work when you are not sick at all. Others view it as a day taken off when you are only slightly off colour and you could really work with a bit of extra effort. And still others think it includes single days taken when genuinely ill. Or it can mean all three.

Whatever the precise meaning, the survey reveals to Australia’s shame that one in eight respondents said none of their “”sickies” were genuine. Monday followed by Friday were the days with the highest number of “”sickies”.

Morgan and Banks estimated the “”sickies” cost industry $2.5 billion a year. But they rightly pointed out that it was not always the worker’s fault. Often inflexible work practices meant that workers, particularly, women had to take “”sick” days to attend to other business, particularly the related to children.
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The best thing about the latest proposals for a political settlement in Northern Ireland is that they are imaginative. They are the second significant break by new British Prime Minister Tony Blair from a stale, deadlocked position held by the previous British Government under John Major. Whether they achieve peace in Northern Ireland is another matter.

The plan put by the British and Irish Governments would include a elected Assembly for Northern Ireland. It would be elected on proportional representation to ensure representation according to support across the province. There would also be a cross-border administration with ministers from the Northern Ireland Assembly and the Irish government, and it would be accountable to both. This should please republicans as it would make links with Ireland closer.

The plan also calls for a “”Council of the Isles,’ which would include representatives from all parts of Britain and Ireland, a measure designed to appeal to Protestants as it would ensure continued British involvement.
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Indonesia is facing its greatest crisis since the 1960s insurgency. Its aging president faces a failing currency which in turn jeopadises price stability and foreign investment. These in turn threaten Indonesia’s spectacular economic progress in the past decade and could threaten social stability.

The real test is whether Indonesia’s aging President Suharto has the wherewithal to deal with the crisis. For to deal with it successfully he will have to change his whole way of thinking. Hitherto, Suharto, like other despots in the region, have cited the need for developed nations to understand the Asian way of development. Typically this has meant no effective dissent against the ruling regime and certainly no development of mechanisms whereby power could be peacefully transferred from government to opposition.

Part of the reason for that is Suharto came to power by crushing an insurgency and has feared political instability as an impediment to economic progress. There may have been some excuse for that in the late 1960s. But it does not hold in the 1990s. The Asian way is falling apart. The only question for Indonesia is whether Suharto has the strength to acknowledge it and do something about it.
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The ridiculously high cost of defamation actions has been highlighted by an action taken by Sir Lenox Hewitt against a Queensland newspaper over an article in 1992.

The action highlights the pressing need for both reform of the law and reform of the procedures to ensure defamation law does what it is supposed to: balance freedom of speech against rights to reputation and to remedy unjustified attacks on reputation. At present the law does neither. As the Hewitt case illustrates, the defamation jurisdiction is a lawyer’s field day with legal costs out of all proportion to the grievances under dispute.

Sir Lenox was awarded $80,500 for what was a significant defamation for which the newspaper refused to apologise. It erred in saying that Sir Lenox faced criminal charges over an unpaid credit card debt incurred while he was a non-executive director of Christopher Skase’s Qintex Pty Ltd. In fact it was a mere civil dispute.

None the less, $80,500 is an absurdly large amount of money when compared with compensation cases where people sustain real physical injury. As it happens, Sir Lenox enjoys a good reputation irrespective of one item in a newspaper.
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Independent MLA Michael Moore wants to have his cake and eat it too. He said this week that he would accept a Cabinet position in a new ACT Government provided the major parties would relax the normal Westminster conventions on Cabinet solidarity.

He said he would pledge to vote for the Government’s Budget and vote against any no-confidence motion in the Government if he were a Cabinet Minister, but he would reserve the right to vote against Cabinet decisions on the floor of the Assembly.

Mr Moore’s plan is imaginative and has no instant legal impediment, but it is rife with practical difficulties.

The central difficulty is that an “”independent” Cabinet Minister would quickly take the honour and glory of popular decisions without wearing the opprobrium of unpopular decisions. Such a minister would be able to disown decisions long after the event if they went sour.
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It is a great shame that Justice Michael Kirby of the Australian High Court got up before an international audience to condemn a range of academics and present and former Australian politicians over their comments on the Australian judiciary.

The shame, of course, is not that of Justice Kirby, but in the fact that things have come to pass in Australia that a High Court judge has seen it necessary to launch such a defence of the judiciary. The shame is that hitherto the judiciary has been able to remain appropriately silent in the face of attack for two reasons. The first is that, hitherto, attacks on the judicial arm of government have been of an intellectual nature. Disagreements have been over the reasoning or substance of decisions, not over imputed motives for judicial decisions or on the quality and personality of the people who make them. The second is that, hitherto, when the fortunately rare attacks have been made on the personality or motive of judges, they have been appropriately defended by the people who should defend them — political leaders and, more particularly, the Attorney-General.

Alas, that has not been the case in the past couple of years.

The court and its judges have come under sustained attack by people in positions of leadership. There is nothing wrong with a sustained intellectual attack upon court judgments. However, there is much wrong with some of the hyperbole coming from the mouths and pens from some of these people.
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