Month: August 2000

I wouldn’t be Queen for a hundred pounds,” said Alice.

A predictable public outrage followed the announcement this week that ACT MLAs are to get a pay rise. Most of the fury was directed at the fact that the Chief Minister is to get a pay rise of 24 per cent. It was the tall-poppy syndrome in full flight. It is never a good time for politicians’ pay rises, in the eyes of the public.

However, good governance requires reasonable salary levels for the job done. Good people are not going to seek the job unless the pay is reasonable. Pay is not everything. Many thing motivate people to go into a particular job or vocation. Altruism, fame, lifestyle, excitement, security are among a range of reasons for doing a job, in addition to money. However, money will always be a significant factor. Very few people, other than the independently wealthy, will do a job for nothing. Also, there will always be both self-aggrandising people and people acting with the best motives willing to stand for public office even if the pay is poor.
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Presidential candidates usually pick their running mates with only one thing in mind: how will it help them get elected. Often the vice-presidential candidate is chosen to patch up a weakness in the presidential candidate’s offering to the public, or to add balance. Sometimes the vice-presidential candidate is chosen to give the campaign more geographic spread, or to add youth where there is maturity or to add maturity where there is youth, such as George H. Bush’s selection of Dan Quayle or John Kennedy’s selection of Lyndon Johnson. Or to give Washington expertise when the main candidate is an outsider, such as Ronald Reagan’s selection of George H. Bush or now George W. Bush’s selection of Richard Cheney.

The selction by Vice-President Al Gore of an Othodox Jew, Senator Joseph Lieberman, seems to be as a counterpoint to what has been seen as the moral weakness of the Clinton White House and an attempt to give some georgraphic spread. The fact of Senator Lieberman religion seems not to have been a big factor. Jews tend to vote Democrat anyway and those who would be inclined not to vote for a Jew on that ground alone, would be unlikely to vote for Mr Gore anyway. Rather, Senator Lieberman’s selction seems to be a tactic by Mr Gore to distance himself from President Clinton, esepcially as Republicans have tried to link Mr Gore with President Clinton, particularly Mr Clinton’s relationship with White House intern Monica Lewinsky. Senator Lieberman was the leading Democrat critic of Mr Clinton’s behaviour.
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Outcry greeted the verdict in the Saudi diplomat murder case. Attorney-General Gary Humphries went so far as to wonder whether we should have appeals against jury acquittals, or to put some fresh and different charges against the accused and to review the Evidence Act. But the precious jury system did not get attacked. Opposition Leader Jon Stanhope defended the jury saying he had no doubt they reached the correct decision on the evidence.

The accused have been acquitted, despite one wanting to plead guilty of manslaughter and the fact that an informant is serving a jail term after pleading guilty to being an accessory after the fact of murder.

Accessory to what, the public asks.

Well, the accused have been found not guilty by a jury and that is that, but we should start questioning the jury system.

Bear in mind Justice Terence Higgins withheld a lot a evidence from the jury, including quite a few witnesses to whom one of accused allegedly confessed. A lot of other evidence was not led because the Director of Public Prosecutions knew it would not be allowed.
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Prime Minister John Howard gets himself into all sorts of difficulties when he mentions “”states’ rights” in the same breath as any moral issue. Matters like fertility treatment, euthanasia, gambling, pornography, drugs, discrimination and so on do not sit easily on the boundaries of state and federal heads of power.

Howard is not alone in this. Other politicians fall into the same trap: describing something as a matter of states’ rights or federal obligation to justify their stand, but Howard seems to have been inconsistent more often over a shorter period than most.

Most recently, he argued that the states have a right to prevent lesbians and single mothers from access to IVF fertility programs. Victoria had passed a law banning them from access to its state-funded program. The effectiveness of that law was successfully challenged because it was inconsistent with the federal Sex Discrimination Act. Under the Constitution, if a valid Commonwealth law conflicts a state law, the state law is inoperative while the Commonwealth law remains on the books. Howard said he would like to change the Sex Discrimination Act so that the Victorian law would become operative.
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It was denounced as the “”Politicians’ Republic” and defeated. Its central proposition was that the Governor-General/President/Head of State should be selected by a two-thirds majority of the Federal Parliament.

With the defeat of the “”Politicians’ Republic” we continued with the present set up. And this week, the Prime Minister – that quintessential politician – decided to extend the term of the Governor-General by six months. He did not refer to any state leader or any other major political party. He did not have to refer to anyone in his own party. All he had to do was ring up the Queen to inform her. She could not, as a matter of practice, object. In truth, it is the politicians’ constitutional monarchy.

Now, Sir William Deane has done a good job a Governor-General. He has usually made suitable noises on national matters, though some might reasonably argue that he has expressed political views. And that they are contrary to those of the elected government is another sin, in the eyes of some. Personally, I agree with Deane’s view on the importance of reconciliation, but I don’t think an appointed, figurehead head of state should express views running counter to those clearly expressed by the elected government, even in the admittedly careful and restrained way that Deane has done. What if a Liberal appointed Governor-General expressed a view contrary to, say, the Hawke Governments view on multi-culturalism or increased humanitarian immigration under the guise of national unity?
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The hobby horse is a bit bleary eyed. It was utterly dismayed at being dusted off a month early for its bi-annual trot around the block. Readers who are familiar with this hobby horse will know what is coming and can turn the page.

Daylight saving.

Has there ever been a policy in Australia more riddled with petty interstate jealousy, power hunger and political grandstanding that resulted in so much inconvenience and dissatisfaction? If the power-hunger and grandstanding were put aside it would be quite easy to deliver a system of daylight saving that satisfied far more Australians and inconvenienced far fewer of them than what we have now.

This week we see the absurdity of children going to school in the dark, unnecessarily so. It seems people in this country will do anything for sport. The horror of this year’s premature daylight saving is that it will enrage people so much that any further changes (including sensible ones) will be seen as political dynamite and not touched. It was the same when then NSW Premier Neville Wran extended daylight saving into April one year to save electricity.

The political lesson is a thousand years old, as Canute explained to his followers that he could not order the waves back, but it was beyond Wran, NSW Premier Bob Carr, and Olympics Minister Michael Knight to see it: political leaders cannot change the laws of nature.’
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When The Canberra Times began publishing in 1926, the Australian Capital Territory had no representation in the federal parliament and had no elected local government of its own. It was a fiefdom ruled by a federal minister who was elected by a constituency far away and responsible to a federal government that was elected Australia-wide.

The Territory was a polity of federal public servants, for federal public servants and by federal public servants.

It was not long before things began at to change. Within a decade of the Canberra Times first publishing a Supreme Court had been established and so had an advisory council comprising a three of federal department heads, three elected members and a civic administrator.

As in any democracy, how ever nascent, the press played a fundamental role. In the case of The Canberra Times that was a dual role. In at the news columns it reported the activities of governance. In its it editorial opinion it played the role of advocate. In the 75-year history of The Canberra Times, the paper has been a consistent advocate for the democratic right and responsibility of the people of the territory to govern themselves. However, that has always been in the general context of an overriding duty and responsibility of the federal parliament to deal with the National Capital in the general interest of the Australian people as a whole.
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THE LATIN phrase habeas corpus means “”you should have the body”. For 800 years, habeas corpus has been part of the law we inherited from England.

In 1215 King John granted the right of habeas corpus to his subjects. It meant that a subject could not be imprisoned without due process of law. An imprisoned person could, by a writ of habeas corpus, be brought before a judicial officer who would inquire whether the imprisonment was justified.

So the general proposition that people should not be imprisoned without due process of law became part of the common law of Australia.

So how does Australia get away with a policy of mandatory detention for all non-citizens who do not have a valid visa, including children, some of whom had been locked up behind barbed-wire in the desert for more than a year?

The reason is that the common law can be overturned by Acts of the Parliament and by the Executive Government.

As at December last year, 2023 people were in detention in six immigration detention centres. Of them, 728 had been in detention for more than six months and half of those for more than a year. In 1999-2000, 4174 boat people were detained. Only half that number is in detention at any one time, indicating an average stay of about six months.’

But these are just figures. The Department of Immigration is fairly diligent about making its numbers public. Behind the figures lie many stories of courage, suffering and misery. Until recently these stories were contained behind the barbed wire of the desert detention centres. But thanks to Dr Aamer Sultan, an Iranian refugee who has been in detention for nearly two years, descriptions of the effects on refugees are coming out. Also a video tape has been smuggled out of the Villawood detention centre and was played on the ABC’s Four Corners this week.

One might well ask why it has taken so long to get the story out when the English legal tradition has it that there should be a freedom of communication in society to allow the media access to government institutions. Once again, though, that common-law freedom can be taken away quite easily by Acts of Parliament and by executive acts in the same way that habeas corpus rights can be taken away.

The Migration Act 1992 and the regulations under it provide for mandatory detention for all unlawful non-citizens. Any non-citizen 1/2 including a child 1/2 without a valid visa is deemed to be unlawful. The regulations enable the minister to make exceptions on compassionate, health and other grounds. So we have a reverse onus of proof where people are detained unless the minister decides otherwise. The Migration Act also gives power to the minister to determine the conditions of detention, including restricting communications between detainees and the wider Australian community.

It may be that other factors have caused the delay in getting this story out. They include a lack of interest by people in the media, the sheer cost of getting reporters to these remote places and the a lack of interest by media consumers, many of whom think these people can be dismissed as just foreign refugees 1/2 not real humans with real children and real emotions.

Nonetheless, the legal and political systems have a lot to answer for. Our Westminster system gives all power to Parliament. The Australian Constitution, as a general rule, does not guarantee human rights. And so, when you get a combination of Liberal and Labor MPs taking a certain position, very little can be done.

Notice that the mandatory detention provisions were enacted in the period of the Labor Government and came into force in September 1994, again in the Labor period.

It is apparent that the Westminster tradition and the common law are no longer enough to protect human rights. Before 1992, migrants without visas could only be detained on certain grounds, such as health, security or other threat. That is the approach most European countries continue to adopt, and it is one that you would expect of a liberal democracy.

How can any Australian government justify the detention for months on end of small children? How can any Australian government justify the detention of anyone 1/2 child or adult 1/2 for indefinite periods when the no crime has been committed and when no threat to national health or security is posed? It smacks of oppressive regimes like China, Zimbabwe and Malaysia. Indefinite imprisonment in Australia is usually reserved for the worst category of murderer.

And many refugees now face indefinite detention. If they are denied refugee status they cannot be sent back to places like Iraq, Iran and Afghanistan because (often under government policy) we have trade embargoes or no diplomatic representation.

We need a Bill of Rights in our Constitution. It would provide for such things as no detention without due cause and for freedom of communication to enable the media and others to monitor government performance. Without such constitutional guarantees we can see where the parliamentarians of the past decade or so might take us.

A Bill of Rights would protect us from the worst excesses of parliamentarians. Not only in the human costs from breaching rights, but also from the economic costs. More than 80 per cent of these refugees will ultimately be released and most of the others would present for deportation without detention if we developed a system of bonds from existing citizens and tightened employment procedures so they could not work without a visa. So why lock them up at a cost of $105 a day? So why add to the trauma that will make these people less useful and less grateful citizens, at great future cost in health care and lower employability? And why risk future compensation claims?

Even on the most hard-nosed view, the costs of detention are higher than the risks of release. And the cost to our jurisprudence and reputation for respecting human rights is not measurable.

Mandatory detention of all refugees is not protecting Australia from being swamped. It is a knee-jerk policy developed by fear of voter back-lash by two miserable, lazy, major parties which have not got the leadership, morality or intellect to explain how and why there is a better way.

A couple of letters to the editor this week complained about the high cost of third-party insurance. One wondered why premiums for mid-range sized motor bikes were so high. The other wondered why third-party insurance in the ACT was much higher than in other places like the Northern Territory and country NSW when the fatality rate on ACT roads was much lower.

The NRMA’s response was that intermediate-range motorcyclists are maiming and killing their pillion passengers at a greater rate. And in general in the ACT, those maimed and killed on the road tend to be a younger and earn higher salaries than those elsewhere. So when they make a claim for loss of earnings, the claim is higher. Moreover, the ACT has a generous system of compensation for motor-accident victims. It is a common law system under which the insurer of the driver at fault has to recompense all lost wages and lost earning capacity. Other places have caps

The NRMA’s message his clear. We all pay for the accidents on our roads. Unfortunately, all car owners pay equally even though we draw unequally.

The NRMA’s response to the motor-cyclist’s complaint was reasonable, but did not go far enough. Quite reasonably, the NRMA argued, motorcyclists cause more damage, so should pay a higher premium. But if that is the case, why does someone who has driven 20 or 30 years without an injury-causing accident have to pay the same premium as someone who has had a licence for only a year.
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The Australian public was audience this week to a political roller-coaster ride. Early in the week, Labor was rejoicing in the victory of Claire Martin in the Northern Territory. She had led Labor to its first win in the territory in the 26 years since self government. Suddenly, however, Labor was on the back foot again after revelations that Opposition Leader Kim Beazley had exaggerated or misrepresented the way his daughter had been treated by a Perth public hospital. He also came under fire for using his family experience to score political points. The Coalition was having a field day. But the day was short lived. On Thursday, Labor had some damaging ammunition of its own with which to attack the Coalition. It revealed that the federal electorate council for the Queensland seat of Groom held by the Minister for Small Business, Ian Macfarlane, had not dealt correctly with its GST liability on a fund-raising dinner at which Treasurer Peter Costello was the guest speaker. At best, it was a misunderstanding of the GST rules. At worst, it was this scam to not pay the GST on the function while claiming a rebate for the GST input on it. Worse still, Mr McFarlane was aware of what had happened yet told Parliament that he was unaware of anything untoward. Mr Costello, too, is in trouble. He told Parliament that as guest speaker he was not responsible for the GST payable on the function. True, but the implication was that he knew nothing about it. Afterwards he issued a statement saying that someone troubled by the way the electorate council was handling the GST had complained to his office and that his office had told Mr McFarlane to ensure that the GST obligations were probably met.
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