Month: June 2000

Industrial Relations Minister Peter Reith was crowing last week.

The High Court had just ruled that a key provision of his Workplace Relations Act was valid. It was a “”crushing blow” for the unions, he crowed. The provision was his award-stripping initiative.

It was typical of the testosterone-charged, win-lose mentality that characterises Australian industrial relations. Indeed, Reith’s reaction was exactly the opposite of the mentality that employers want to engender in the workplace. Employers want win-win arrangements. They want to remove the us-and-them mentality. True, they also want, quite reasonably, to end monopoly union power in the workplace, but it is no good replacing that with a let’s-crush-the-workers attitude. Crushing workers crushes business.

While Reith was greeting last week’s decision like a supporter of a winning Aussie rules team at siren time, employer groups were a little more subdued, but probably for the wrong reason, as we shall see. Even so, last week’s case will still put a bit of a dampener on Reith’s award-stripping project for other reasons, as we shall see.
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The feathers of the legal profession and judiciary have been ruffled in the past fortnight after the realisation that any juror can hop on to the CrimeNet site of the internet to see if the accused they are trying has a criminal record.

A Victorian Supreme Court judge aborted a murder trial because of the site. Defence counsel cited the fact that the site contained incorrect information on his client. The Victorian Attorney-General, Rob Hulls, threatened the site’s managing director, Ken Schultz, with prosecution for contempt of court and called for the site to be closed down.

Mr Schultz, who does not live in Victoria, told Mr Hulls to go jump. He pointed out that all in the information on his site was available to the public. And it is, but other than on Mr Schultz’s site it is difficult to get at because it is in paper version in libraries, or expensive because it is on subscription-based newspaper databases. Some of it is available on court records and other parts of the data are available on semi-official court internet sites.
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TWO phrases — “innocent until proved guilty” and “trial by media” — have been used frequently in discussion about allegations of sexual assault against the chair of the Aboriginal and Torres Strait Islander Commission, Geoff Clark.

Unfortunately, the phrases have distorted rather than to clarified.

At the outset, I should make clear that I am making no judgment about the veracity of the allegations. Readers should look at and the original article in the Age, Melbourne, last Saturday and make their own judgment. Rather, I make general comment.

One way to clarify the questions is to look at the way the burden of proof applies. The phrase “innocent until proved guilty” should apply only to the criminal law. The presumption of innocence puts a high burden on those who seek a criminal conviction. They have to unprove your innocence by convincing a judge, magistrate or jury beyond reasonable doubt that you are guilty. Upon that proof you are convicted and face a penalty, including imprisonment. Conviction and imprisonment are dire consequences and therefore require this very heavy burden of proof before they are imposed.
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A butterfly flaps its wings in Peru and Cairns has a summer of devastating floods. This is chaos theory. It happens with weather, and it happens also with electoral systems. There have been some good examples in recent times: the fall-out from last year’s election in Fiji; on-going strife in Papua New Guinea; the tussle over the seat over the federal seat of Hume; and earlier we had the Thatcher and New Zealand experiments.

An Australian Parliamentary Library paper published shortly after last year’s Fijian election shows how the new electoral system in the new 1998 Constitution laid the groundwork for this year’s coup. The new Constitution imposed Australian-style preferential voting. There were also 23 reserved indigenous and 19 reserved Indian seats to ensure some ethnic balance. It was done with the best will in the world. In theory it would weaken racially-based parties and help develop a two-party (or at least two-coalition) system. It was thought that the preferential system would allow an exchange of preferences between the SVT party led by the 1987 coup leader and Prime Minister, Sitiveni Rabuka, and the National Federation Party, the predominant Indian party. The Federation Party pleaded for co-operation, despite the coups.
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Last week Liberal Party MP Christopher Pyne was warmly congratulated by a his colleagues after delivering his kick in the guts for the Labor Party through the report into the integrity of the electoral roll.

In the long term, though, the Liberals might rue the day.

The setting up of the inquiry by the joint parliamentary committee on electoral matters was from the outset and exercise in embarrassing Labor. The inquiry was spawned by an earlier inquiry by Tom Shepherdson, QC, in Queensland. Shepherdson looked at Labor’s pre-selection rorts. Labor had been caught because it had earlier attempted to clean up branch-stacking by using the Commonwealth electoral roll as a new “clean” verification procedure for people voting in party pre-selection ballots to ensure they lived in the electorate. Alas for Labor, it did not anticipate the determination of rorters who then put outside people on the Commonwealth electoral roll fraudulently so that they could still rig pre-selection ballots. The Shepherdson inquiry exposed them.

This in turn led the federal government to opportunistically set-up of the inquiry that was headed by Mr Pyne. The Pyne inquiry would keep the matter of a Labour Party electoral skulduggery in the public eye for as long as possible. The coalition had not got much mileage out of the Shepherdson inquiry at the time because of the politically astute dealing with it by Queensland Premier Peter Beattie.
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This weekend, a matter as profound as the GST will be decided by the Australian Democrats. The have a choice. They either agreed to give Australians an entrée into the digital world of interactive information and entertainment on demand or to leave the nation in a digital backwater.

It is an immense decision. They must gather the courage to throw out the Government’s digital broadcasting legislation when it comes before the Senate on Monday. Unlike the GST it was not taken through an election. Unlike the GST it has no redeeming features.

The choice is stark. Under the Government’s plan we use the huge resource of new digital spectrum to present precious little more than we get already except it will be delivered (for those who can afford the new television sets) in stunning cinema-quality clarity. We would get the existing five services (three commercial, SBS and the ABC) in high definition that would enable you to put the existing TV programs on at a cinema. It is really mega-high-definition.
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Australian defamation law has been held up to a fair amount of a hatred ridicule and contempt this month. Ten days ago the chairman of the Aboriginal and Torres Strait Islander Commission, Geoff Clark, announced that he would not sue the Fairfax newspapers over very detailed allegations they published asserting that he had sexually assaulted four women in the 1970s and 1980s. He said it that his legal advice was that the trial would take between 12 and 18 months in preparation and take between four and eight weeks in court.

“I am that further advised it would be unwise for me to immediately retaliate to the gross libel by issuing legal proceedings unless I am prepared to suffer the considerable financial consequences of a legal war of attrition,” he said.

The Age reporter Andrew Rule responded by saying, “I think it’s code for I’m not going to sue because it’s too risky to do so. We here regard it as confirming our case.”
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If the Government’s Budget is defeated, it can carry on for a short time under the Treasurer’s advance from the previous year.

The likelihood is, though, that Chief Minister Kate Carnell would resign. She and Treasurer Gary Humphries have indicated that the Government would stand or fall on the Budget.

If the Chief Minister resigns, the Assembly must elect a new Chief Minister before any other business.

Usually, if a Budget were defeated, the same numbers that defeated the Budget would be used to install the Opposition as Government, with Jon Stanhope becoming Chief Minister.

But the present situation is not usual. If the Budget goes down it would be solely because independents Dave Rugendyke and Paul Osborne object to funding for the heroin injecting room. But that is being provided because a majority of the Assembly has approved legislation for the injecting room. But on the question of who should be Chief Minister, they might still prefer Mrs Carnell and a Liberal Government, especially as Mr Stanhope supports the injecting room as does all his party. (Only some of the Liberals do.)
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The system of governance in the Act continues to evolve. It would be silly to expect the dogma of the Westminster system to apply unamended to a hybrid constitutional set-up like ours.

Opposition Leader Jon Stanhope has called on Chief Minister Kate Carnell to resign following the defeat of her Budget in the Assembly early yesterday morning. The usual Westminster convention is that if the Budget is defeated on the floor of Parliament (the Lower House in bicameral systems) the Government should go. That would hold in Britain, Canada, New Zealand and most Australian states. The ACT is different. It has, in effect, a detailed written constitution, in the form of the Self-Government Act, an Act of the Federal Parliament. It lays out the rules on the making or breaking of government.

The single most important difference between the ACT and other Westminster systems is that we do not have a figurehead – a Governor, Governor-General, monarch or ceremonial president. In other Westminster systems the figurehead has evolved from the ancient principle of the divine right of kings. The king claims divine right to rule through the hereditary system and allows an elected Parliament to make law. Notionally the Prime (or Chief) Minister needs formal permission of the figurehead to dissolve Parliament and hold election or to call Parliament into session. The figurehead appoints and dismisses the Prime (Chief) Minister and signs passed Bills into law.
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Every line, line by line of the Budget was approved by the Legislative Assembly going into the early hours of yesterday morning. But when it came to voting the Budget as a whole into law it was voted down.

The trouble was that differently composed majorities voted for different lines and no majority held for the whole.

Should the Chief Minister resign or be sacked if she won’t?

The answer to that question lies in the fact that, strictly speaking, the ACT does not have a Westminster system of Government. Rather it has a detailed written constitution in the form of the Self-Government Act, an Act of the Federal Parliament. It does not provide for a figurehead — Governor-General, President, King, Governor or an Administrator — to preside over such impasses, unlike in the states or federally. Rather it provides for self-executing procedures to obviate that need. It was probably done to save money rather than to chart new constitutional waters.
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