Month: April 2002

There is a good argument that the Senate is being obstructionist by blocking the Government’s changes to unfair dismissal laws after they had been on the table over two elections. However, that does not mean that the Government’s proposals have any great merit.

The Government wants to exclude people employed by small businesses from access to federal unfair-dismissal laws. The proposal is bad in principle and practice. It offends the principle of equality before the law, creating two classes of employees with different rights, according to the size of their employer. If the unfair-dismissal provisions are job-destroying, expensive, cumbersome or otherwise bad, they should be scrapped or amended across the board.

This week two opposing views of the effect of the laws were put. Employer representatives say the number of claims is rising. The Council of Small Business Organisations says, “”If we can’t fire we don’t hire.” Australia Business says the latest NSW figures rose from 3337 in 2000 to 4137 in 2001, but these were in the NSW state jurisdiction and federal claims were also rising.
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The Auditor-General highlighted this week some shortcomings in the way the Government has gone about privatising the banking services of the federal bureaucracy. In doing so the Auditor criticised the conduct of the Department of Finance.

The Opposition has seized upon the Auditor’s report saying that it shows the government wasted $151 million of taxpayers money. Finance Minister Senator Nick Minchin explained – probably correctly – that that was not the case, nonetheless some taxpayer money has been lost – probably to the big banks, due to procedures which could have been more carefully implemented and monitored.

Senator Minchin, however, was sensible enough to acknowledge the shortcomings identified by the Auditor and to adopt his recommendations for their rectification.
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Prime Minister John Howard has warned that if the Senate knocks back his proposals to change the unfair dismissal laws and to privatise the remainder of Telstra he will put up the Bills again and again.

Mr Howard has a right to feel frustrated at the Senate obstruction. It is easy for the Opposition to argue that more than 95 per cent of legislation goes through, but it is not a numbers game. Much legislation is uncontentious. Much gets passed but details in it are obstructed because the Government agrees with the amendments with reluctance rather than see the legislation get defeated. The remaining legislation is often the legislation that really matters. It is the contentious stuff that distinguishes the parties. So despite the numbers, there is an argument that the Senate is being obstructive. Moreover, it is being obstructive in the face of at least a tacit approval of the legislation by the people. The Government was voted back in while this legislation – defeated in the previous Parliament – was on the table.

On the other hand, it would be difficult for the Opposition Labor Party to allow the legislation through without admitting that the Senate is no longer a weapon to defeat critical parts of Government policy that it feels abhorrent to its constituency. It would be letting its supporters down.
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The federal Government was probably right is stopping any further taxpayers’ money going to assessing the very fast train project between Melbourne and Brisbane via Sydney and Canberra, or, indeed, a single Canberra-Sydney link. Very simply it would cost too much. It is still open to private enterprise to do a completely privately funded venture if the thing is so good.

More likely, though, the high cost and low population density of Australia would make the thing unprofitable and a bigger burden on the Australian community than it is worth.

Much the same could be said about the Alice Springs-to-Darwin standard railway. It is a pity that the Government did not do an about turn on that one as well, but the political fallout would be immense, given the closeness of the Northern Territory’s two federal seats.
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Australia has been blessed with a strong democratic tradition; respect for the rule of law and respect by the courts, legislatures and the executive of people’s rights. At least until recently.

With politicians thumping law-and-order campaigns; populist moves to cap damages or remove rights to sue for injury and moves by the Federal government to introduce laws that would enable people to be detained incommunicado for up to 48 hours all in the name of security, it is time to consider whether there should be some higher constitutional law endorsed by the people and amendable only by the people to prevent the erosion of what have been hitherto been considered basic rights.

The sorts of rights include things like, right to trial by jury for serious offences; freedom of speech and assembly (which would perforce include freedom of religion); no search or seizure without warrant; freedom from arbitrary arrest; no compulsory acquisition of property without just compensation and so on.
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Prime Minister John Howard has agreed not to ban the use of embryos left over from in-vitro fertilisation for use in stem cell research. He had little choice in the matter after the Victorian and NSW Governments announced that they would not accept any federal ban and would permit the research to go ahead. Some of Mr Howard’s colleagues and the some churches would have preferred a ban or at least a moratorium. Mr Howard has read the public mood correctly. For the Fedral Government to attempt a ban would have upset a lot of people who have pinned their hopes on this research to help treat and perhaps cure a range of diseases.

Several years ago, when the popular perception of embryonic stem-cell research was that it was aimed at making cloned humans, the public was rightly horrified. But has information slowly percolates through the community, people are realising the promise that this research offers for treatment and perhaps cures for diseases like diabetes, Parkinson’s disease, dementia and a host of other degenerative diseases. Moreover, more people are realising that the embryos for the stem cells sought for research are already in existence, having been created during in-vitro fertilisation programs. Those embryos are destined for destruction anyway after five years under legislation in most states. If the embryos are gong to be destroyed anyway it seems absurd – even cruel — to deny researchers the opportunity to seek cures and treatments that will relieve a lot of human suffering. The case for allowing the research is compelling.
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Act Chief Minister Jon Stanhope is probably bashing his head against a brick wall- at least in the short term – when it comes to broadening the search to find solutions to the ACT’s and Australia’s heroin problem.

Mr Stanhope is to write to Prime Minister John Howard urging a government-endorsed heroin trial, under which some hare-core addicts would get heroin on prescription in the short-term coupled with support programs that would help them kick the habit altogether. While being given the prescription heroin, the hope is that they would not revert to a life of crime in order to pay for enough heroin to support their habit. And that would give them the breathing space to break the habit. Moreover, the heroin received on prescription would be of a known grade, thus reducing the propensity for overdose.
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A missive To The Householder arrived in the mailbox yesterday. On one side was an extract from the Canberra Street Directory (presumably they had copyright permission). My place is right in the centre of the map.

The missive had the ACT crest on it, so I presumed it was from the Government, and therefore here to help me. The other side was ominously headed Symonston Periodic Detention Centre Upgrade and Temporary Remand Centre, with initial capital letters like a 1930s newspaper to indicate the matter was Very Important. Under the heading was a note that the ACT Government is considering an upgrade of the Periodic Detention Centre at Symonston – just the other side of Hindmarsh Drive from my suburb. Was this the thin end of the wedge which would make it inevitable that the prison would be built nearby – as in right in my back yard?
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The High Court ruled yesterday that did not have to rule on whether Victoria’s ban on IVF treatment to single women breached the Federal law that prohibits discrimination against single women.

The upshot is that doctors in Victoria can give single women in Victoria this treatment despite a Victorian law banning it because a Federal Court judge ruled the Victorian law invalid because it was inconsistent with the federal anti-discrimination law and the High Court refused to entertain appeal arguments against this ruling because none of the original parties wanted to pursue an appeal.
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Finding cases are a treasurer trove of legal issues. The dispute over the treasure trove found in a Perth garden proves the point.

Non-lawyers usually seek a simple answer. Is it finders keepers? Who gets the treasure?

In Perth, a gardener, Cliff Anderson, uncovered $19,000 in cash when dig the rose garden. The house-owners Eunice and Joseph Borges are claiming finders keepers. The previous owners, the Konior family, say the stash is part of the money their widowed Russian mother, Anna, stashed away for hard times. She died suddenly in 1997. Her three children searched for the stash, but eventually sold the house and split the proceeds. They reported the matter to the police and the Director of Public Prosecutions.
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