Month: August 2001

A friend of mine at Law School had a Fiat. It was one of those tiny Fiat Bambinos which she said she could park anywhere. Indeed she was known to park it nose to the kerb squeezing between two cars in a parallel-parking street and climb out the sun roof.

Fiat also has another meaning. It is an authority given by the Attorney-General into a person or organisation to engage in court proceedings that they otherwise might be excluded because they had no standing in the eyes of the court.

This week, the Federal Attorney-General, Daryl Williams, granted a fiat to the Australian Episcopal Conference of the Roman Catholic Church to give the bishops standing to challenge a Federal Court decision over in-vitro fertilisation. Some might say it was just like my friend’s Fiat — poking its nose into places where it had no business to go. Others might argue that if you have to get out of a tight spot a Fiat can be very handy.

The granting of the fiat by Williams has given the church a special place which has not been granted to other bodies who hold a contrary view.
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Often our elected representatives set out to do something and end up doing precisely the opposite.

They proclaim that they are acting to achieve a result that is in our best interests. They then pass a law which is it put into effect often at large cost. And they use feel-good phrases, like “world’s best practice” and “”think globally, act locally”, to make us think that all is for the best in the best of all possible worlds.

Some examples are the Government’s policies on outsourcing. The aim was for greater efficiency and cost savings and we now learn that the Federal Government will lose millions in excess rent costs of buildings it so foolishly sold at under value. Governments prohibit the use of a heroin with the aim of eliminating the drug from society, and their policy has the reverse effect – – it causes an increase in heroin use.

A government funds a car race in order to promote economic activity and greater wealth in the territory. And at the result is money going from ACT taxpayers to interstate concerns diverting precious funds from a hospital which is needlessly in “crisis” when there is no war, epidemic or other health scourge.

It happens so often that Churchill’s statement on democracy in under threat.

The example in this column is more petty, but none the less a classic of our elected representatives setting out to do a worthy thing only to achieve exactly the opposite.

During the fuss over the Kyoto protocols, I was engaged in a couple of property transactions for sundry family and friends. Two were in the ACT and one in NSW.
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ACT Labor leader Jon Stanhope has put a Bill of Rights on his party’s platform for the October election.

The policy document says, “Nowhere in any the Australian jurisdiction is there a simple, clear statement of a person’s rights, or a charter against which legislation can be judged as to whether it enhances or detracts from a person’s fundamental or inherent rights.

“Labor subscribes, however, to the view that certain rights – – human-rights – – are inherent: that is, they are the inalienable birthright of all human beings . . . They cannot be taken away.”

The policy laments that fundamental rights like religion, expression, assembly and association are not guaranteed by the Australian Constitution and can be overridden at any time.

Labor is proposing to begin with legislation setting out a charter of rights by which future legislation will be judged. This follows the Canadian approach and an approach supported by most people in favour of a Bill of Rights – – that only after some experience with such a charter at the legislative level, where it can easily be amended, would it be cemented into a Constitution by referendum.
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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.
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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.
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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.
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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.

The Beazley and GST incidents add further fuel to the general public disquiet about politicians. It seems they are willing to exaggerate, mislead and deny when ever they wish to make a political gain or avoid a political loss.

The only joy from the public’s point of view is that the politicians involved were exposed and will ultimately be made accountable to the public because of the way the institution of Parliament works. In these times of public cynicism about political processes, that point should not be forgotten. Perhaps the low esteem with which people hold politicians flows from the fact that their actions are so well scrutinised. The actions of people in other more esteemed professions go less noticed.
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The ACT Legislative Assembly has decided against holding a referendum on the question of whether there should be a safe injecting room for heroin users and at whether there should be a trial to provide registered heroin addicts with heroin in a controlled environment.

The referendum and its subject matter have caused a great deal of heated debate. Indeed, the debate has been so heated and so bipolar that whatever the result, few would have changed their view.

The ACT Liberal Party has been accused of floating the referendum as a smokescreen during the election which would distract voters from the main issues of economic management, health, education, and accountability for public spending. More likely, it disguises the deep divisions within the party on heroin with a united approach on a no-risk referendum — a no-risk strategy to be seen to be doing something while having to actually do nothing. A No vote would have resulted in giving the incoming government – – whether Liberal or Labour – – an excuse to do nothing. A Yes vote would have still been met with enough resistance on the four of the Assembly and from the federal government to still result in no action.
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Suggestions that the Federal Parliament should take action on the goings-on in the ACT territory usually draw cries of foul or interference. The latest is the question of Gungahlin Drive.

On its face, it seems like a simple case of providing a road for the people of Gungahlin to get expeditiously to the other parts of Canberra. So why should the Federal Parliament or the Federal Capital Authority get involved?
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The genetically modified food industry has received a double boost in the past week or so. A Royal Commission in New Zealand brought down findings more favourable to the GM food industry than had been expected and a survey in Australia showed more people are supporting GM technology.

The New Zealand Royal Commission is significant because it was the first thorough judicial inquiry in the world on GM technology. The commission did not advocate a laissez-faire approach, but did not advocate an outright ban on the technology as was expected. The commission said a ban on GM technology would have an adverse effect on farmers, consumers, and in medicine. In the case of medicine, the commission said that a ban would mean that existing medical uses, especially the use of GM insulin by diabetics, would have to cease. The commission also expressed concern that with a ban on GM food in New Zealand there would be an exodus of scientists and other skilled people and the economy would contract.

The New Zealand approach was quite different from that taken in Tasmania. In Tasmania, the Minister for Primary Industries, David Llewellyn, is supporting the extension of a 13-month moratorium on GM crops. In Tasmania GM crops are declared a noxious weed under the state’s quarantine powers. The Tasmanian approach seems to be one of promoting a clean, green island and trying to get international competitiveness that way. New Zealand, too, has an international image as a green clean place, but its Royal Commission has found that the benefits of a GM technology are likely to outweigh the benefit of promoting the nation as a GM-free zone.
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