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Conservative Governments in Europe have welcomed the victory of Jacques Chirac in the French presidential election. Leftist Governments in Europe sent polite congratulations. The reaction on this side of the world has been more uniform. Conservatives, centrist and left political leaders alike have expressed concern at Mr Chirac’s promise that he would resume nuclear testing in the Pacific. It is a justifiable concern.
Mr Chirac’s predecessor, Francois Mitterrand, ended testing in 1992. The Cold War had ended. There was no appreciably nuclear threat to France or anywhere else that required further nuclear-weapons testing. That is true today. The only possible nuclear threat is from nascent nuclear powers or from terrorists with very low-grade weapons. Neither of these threats can be met any more effectively with improved weapons. They cannot be met with present stocks and they cannot be met with more sophisticated stocks. Indeed, the way to security from nuclear weapons lies in all nuclear nations reducing and eliminating their stocks and in preventing their spread to other nations.
The only possible reason for a resumption of testing is as a macho demonstration to show who is boss. Whatever it might do for Mr Chirac’s popularity at home, it will not make France popular in the Pacific.
Fortunately, Mr Chirac’s nationalistic noises on the election campaign trail have been qualified after the event. It now appears that Mr Chirac will seek advice as to whether the testing is necessary. If good sense prevails the idea will be dropped. Nuclear testing is environmentally destructive and militarily unnecessary. The Australian and New Zealand Foreign Ministers have rightly said that any resumption of testing would strain relations with France.
Testing aside, Mr Chirac’s election ends a period of “”cohabitation” government in France under which a Socialist President had to “”cohabit” with a rightist Parliament and Prime Minister. It was not a very satisfactory arrangement. Nor would it be if the situation were reversed, as it may well be in the next few years if the Socialists do well in parliamentary elections.
The essential problem is that while both the Prime Minister through the elected Parliament and the directly elected President have a claim to a popular mandate there is no formal structure for resolution of conflict between the two. The election of Mr Chirac has ended “”cohabitation” for now, but the underlying potential for instability remains.

Paul Keating likes to break new ground. He was at it again on Sunday night. There he was on Kerry Packer’s television station accusing Packer of stealing from the Australian taxpayer about seven or eight billion dollars through lowering the value of Telecom with his Optus pay-TV deal. He likened this “”scam” to a scam by convicted former NSW Chief Magistrate Murray Farquhar’s reported attempt to take the gold reserves from the Philippines National Bank.

Why was this breaking new ground?

Well, it is grossly defamatory and every newspaper in the country reported it without having to think twice. I’ll leave aside for the fact that Keating was talking on Packer’s own station and Packer is unlikely to sue himself. But as a general principle if you call someone a grand-scale thief on national television you could expect to go down in a defamation action for lots of money. Also any newspaper that repeated the report would also go down, so newspapers would be wary of repeating the defamation.

Any decent defamation lawyer would have extracted the imputation that Packer was a thief from what Keating had said, especially as Keating had likened Packer to Farquhar. The new ground is that the imputation was published widely and nothing will come of it.

This is because of last year’s High Court ruling that the Federal Constitution carries an implied freedom of political communication. The court said this was because the Constitution set up a parliamentary democracy and for that to run properly the people have to have freedom of political communication. It meant, in the case before the court, that Bruce Ruxton could make some fairly barbed remarks about a Federal MP in a letter to a Melbourne newspaper. It meant the West Australian could make some barbed remarks about MPs going on overseas trips.

The new ground Keating is breaking is when the comments go the other way _ from the MP about other people.

A lot of discussion over the years about free speech has been about public figures. In America the constitutional written guarantee of free speech centres around a public figure test (though it is weaker now than it was). The basic theory is that you can say things about public figures if you have an honest and reasonable belief they are true, even if they turn out later to be false or unproved. Australian politicians have shied away from that approach. After all, they are public figures and they would not want to be singled out as a special defamation target. So we have had the strict approach of “”prove it’s true or pay up” _ until last year at least when the High Court gave us this freedom of political communication.

Thinking about Keating’s remarks, I suspect that the freedom of political communication runs to the republication of anything the Prime Minister says. Any fair and accurate report of what he says would be immune from a defamation action. So if you accurately report his defamatory utterances about Kerry Packer, or John Smith, you cannot be sued, even if they turn out to be false _ and we can presume here that Packer is not a thief on a grand scale. And it is too bad for Packer and John Smith.

It may well be that the High Court’s freedom rule runs to the communication by the media of anything any MP. The rules outside the Parliament may be about the same as the rules inside. Of course, logic and commonsense would have dictated that this should have been the case, but it has taken a long time coming.

A further point about the High Court’s ruling is its practical on-the-ground effect. While the academics await the next round of judgments from various courts to see how far it runs, media organisations and their lawyers are dealing with it on the ground.

One of the big factors in weighing up whether to publish something you “”know” is true but would not be able to prove under the common-law’s asinine evidence rules is the hurdles (practical and legal) that might face the person suing you. If you add to those hurdles the possibility of a “”freedom-of-political-communication” defence _ laced as it is with uncertainty and expense _ it moves the balance towards publication and away from self-censorship. The Keating exercise on Sunday _ calling Packer a thief and getting away with it _ raises the height of that hurdle and the cause of free speech.

It is about time Paul Keating did something useful with his big mouth.

I cannot think of a less deserving class of people than the one which cleaned up after the Federal Court’s decision on copyright last week _ union officials.

At stake were the royalties for copying newspaper articles in educational institutions and government departments. The people who missed out were school-children, parents, taxpayers and the people who paid for the creation of the works under dispute in the first place _ the newspaper proprietors.

The dispute has been going on for five years and has been marked by union greed, inaction and protection of mates by the Federal Government and utter incompetence by the media proprietors. The seeds of the strife go back to the 1960s when the key section in the Copyright Act was enacted. Generally copyright goes to authors of works, but if they are in employment then it goes to the employer. An exception was made for journalists working on newspapers and periodicals _ just in case they wanted to produce a book of their works.

The law said that the employer got the copyright for publication in any newspaper or periodical or broadcast, but “”not otherwise”. This was drafted before photocopiers were invented. The “”not otherwise” was meant to refer to books, not photocopying or electronic storage. In the typically dilatory way Federal Parliament deals with copyright, nothing was done about it. Later the Copyright Act gave goverment bodies and educational institutions the right to copy any material provided they paid copyright owners. A sampling and levy scheme has been set up run by the Copyright Agency Ltd (CAL). It samples copying, collects fees and distributes them to copyright owners.

The journalists union thought it could put its snout in the trough by claiming to represent all journalists and collect on their behalf. The money would be given to any individuals who claimed (precious few) and the rest would go on the union’s pursuit of copyright issues _ pleasant junkets to Berne and elsewhere for union officials. The gutless Federal Government refused to update the law for fear of upsetting a union. So the media proprietors who pay the journalists’ wages and provide them with research resources could do nothing to collect money when articles from their papers were copied. This money built up very quickly and is now several million dollars a year.

The proprietors then launched a foolhardy action in the Federal Court asserting they owned at least part of the copyright and to prevent CAL from distributing it. Inevitably it failed. The union was not a party, but it will get the bulk of the spoils. CAL intends to distribute the bulk of the fees collected for newspaper copying to the union because it has asserted (in my view spuriously) that it has copyright in the journalists’ work by virtue of membership rules. And of course the richer a union the harder time it can give the employer who passes the resulting the costs to you, dear reader and advertiser. It gets worse. If the law were changed so the proprietors (like every other employer) got the copyright, the proprietors say they would waive copyright royalties for educational institutions. Instead, money goes from struggling schools to undeserving union officials.

As for the royalties from government copying of newspapers, it is a great big freebie going from taxpayers to a union that contributed not one whit to the intellectual or economic input that created the works. The proprietors bungled. They knew this was coming several years ago and should have insisted that all new journalist employees sign a copyright agreement before getting a job. With fairly high turnover, they would own much of the copyright by now. What is to be done? Individual journalists should join CAL (phone 008 800875) and demand they be paid individually so the money does not go to the undeserving union. They can then use the money for some suitable educational purpose.

I figured this fiasco was coming two years ago and did precisely that. I got $500 last year. Money that morally belongs to The Canberra Times, so I bought a CD-ROM drive to make legal research for articles easier. If Parliament won’t do it, you have to take the law into your own hands.

Eleven of the 74 ACT election candidates were eliminated yesterday and their 3000 preferences distributed, not substantially affecting the outcome.The elimination began after a check of first preferences and the spill of preferences from the only two officially elected candidates: Kate Carnell and Rosemary Follett.

In Brindabella, one excluded independent’s 105 preferences went largely to other independents, 40 per cent to Paul Osborne, but it is only shrapnel.

In Molonglo, the Greens and Michael Moore appeared to pick up the bulk of non-Labor preferences and the preferences from Labor’s excluded Silvia Zamora appeared to stay with Labor. Greg Cornwell has eliminated the remote possibility of losing his seat to any fellow Liberal.

In Ginninderra, about 90 per cent of the excluded Green, Democrat and Smokers preferences appeared to go to the remaining Greens, Democrat and Smokers candidates respectively, telling us nothing.

The picture is likely to get clearer today or tomorrow as more candidates get excluded. The most likely result is still: Liberal 7, Labor 6, Greens 2, Moore 1, Osborne 1.

A Rosemary Follett-led Labor-Green “”allegiance” government is not out of the question for the ACT, as scrutineers suggested yesterday that Paul Osborne is not getting a significant flow of preferences.
Mr Osborne has said he would support as Chief Minister the leader of the party with the most votes, which would be Kate Carnell.
First preference counting was virtually finished yesterday, with only some postals, declaration and pre-polling votes to go. The small amount of counting yesterday did not change the overall position on first preferences. However, the Electoral Commission did a lot of rechecking of votes.
The odds are still in favour of Liberals 7, Labor 6, Greens 2, Moore 1 and Osborne 1. However, if the fifth Brindabella seat goes to the Greens instead of Mr Osborne it would give a Labor-Green “”allegiance” a majority of nine to eight in the Assembly.
If Mr Osborne gets it, Michael Moore would hold the balance. Informed sources suggest he would favour Mrs Carnell as Chief Minister, not wanting to be seen as allowing the Labor Party to continue in Government after the voters had rejected it. But he is on record as saying it would depend on the personal make up of both the parliamentary party and the potential ministry of each party.
Everything will depend on preferences, distribution of which is expected to begin on Saturday.
In Brindabella, it is still a tall order for the Greens to beat Mr Osborne. In summary: the quota is 8084. The Green-Democrat-Moore group have about 6743. Osborne can expect virtually no preferences to leak from this group to him. Some may go to Labor. On his own Osborne has 6481. The Liberal over-quota is about 2300. He needs 300 more of these preferences than the Greens to be equal to them, and then he needs to stay ahead of the Greens on the remaining 3000 preferences of the smokers and other (mainly rightist) independents.
Bearing in mind many ballots will not express preferences all the way down, it will be determined on only a handful of votes, but Mr Osborne should still squeak in. As for the Liberals, there is simply not enough over-quota from their two elected members for the remaining Liberals to stay in the race and get a third seat.
The last seat in the remaining electorates is clearer. In Molonglo, too many Liberal ballots either give Mr Moore preferences or give no preferences for Labor’s David Lamont to have any hope of overtaking him.
In Ginninderra, the Greens’ Louise Horodny should take the last seat. Too many Liberal preferences remain unexpressed for Helen Szuty to win. She would need more than half the Democrat preferences which is extremely unlikely given the preference deal they did with the Greens.
The Liberals would be unlikely to get the last seat because even if their third candidate survives until after Ms Szuty is excluded, he or she would have little chance of getting more Szuty preferences than the Greens.
Within the parties, preferences will decide between Labor’s Bill Wood and Annette Ellis and the Liberals’ Greg Cornwell and Gwen Wilcox or Lucinda Spier, with the first in each case easily the most likely. The preference race between the Liberals’ Cheryl Hill and Harold Hird in Ginninderra is neck and neck.

The rest of Australia thinks too much money is spent on Canberra and that it should be livened up, according to research commissioned by the National Capital Planning Authority.

“”On Saturday, Sunday, it was dead; it was like a morgue,” female, Perth, white collar, 20-34. Canberrans were seen as snobs.

“”The people are very uppity and hard. Not friendly. Very status conscious,” Mudgee white collar males 30-55. And they have it easy. “”They have got security of employment.”

“”They speak better English there. It’s the wealthiest city in Australia,” Darwin white collar. There was also concern about the disparity between Canberra and elsewhere. “”I felt I was entering another country to be honest. . . .I was quite shocked to see everything bigger and better than most places I’ve been to in Australia.” Female 35-55. Townsville.

The research was done in all state capitals and Darwin and in a country town (Mudgee), a regional centre (Townsville) and a remote town (Port Hedland). It was done with detailed questioning and seeking of opinions from small focus groups rather than opinion-poll style research.

Details of the research were published yesterday by the Deputy Prime Minister, Brian Howe, at the National Press Club.

The research showed that people want open spaces and the bush capital preserved.

“”Canberra’s really a beautiful city, but nothing’s ever said about it except politics.” Female, 35-55, Adelaide

They see the livening up taking place by activities more than development.

“”Events would help to build a national pride in Canberra. You think of the Melbourne Cup _ the whole of Australia stops to listen to it . . . . Canberra needs something like that.” Female 20-24. Adelaide.

The research revealed a widespread ignorance about Canberra and that young people did not give it high priority as a place to visit for a holiday. “”I think of the Gold Coast as a holiday. Canberra is never a holiday. It’s only for tourists to visit memories of all the wars.” Female 20-30 Sydney.

On the other hand there was this: “”It has great museums and galleries and bush and parkland nearby.”

There was a consensus that Canberra was a worthy capital for a young nation, but it needed time to evolve naturally.

Parliament House was seen as a worthy departure from the “”she’ll be right mentality”. People thought buildings in Canberra should be constructed for the long term _ 100 to 200 years. Then they did not mind bearing the cost.

Mr Howe said, “”The results of the NCPA research suggests that people do see Canberra as a symbol, but not necessarily of our Civic institutions. They are more likely to say that the national capital symbolises our love of the bush and our capacity for excellence.”

The details report on the research showed that as Australia was a place of wide open spaces, there was nothing wrong in the capital reflecting it.

“”Australia is a land of vast open spaces, so let’s scrub high-rises, too.” Male. 20-34 Darwin. “”It’s better to leave it wide open and accessible to people. They should retain the green space.” People, Darwin 35-55. Respondents were against development for development’s sake.

“”I don’t think they should build anything unless there’s an absolute necessity for it,” Brisbane, female, 20-34, white collar.

People were against a railway bridge across the wetlands or other development that would detract from the environment. None the less they liked the idea of shops and other commercial development along Constitution Avenue and a few more eateries in the Triangle (but they were opposed to a major take-away food outlet in the Triangle). Despite the widespread ignorance of Canberra as a planned city, the Griffins, the Triangle as a symbol and other aspects of Canberra, when told about it, people were interested and concerned that planning standards and excellence be maintained. In particular they were keen on the Triangle being completed.

The research report said, “”There was a strong belief that the National Capital does and should reflect the best our country can do.”

Canberra showed itself to be a city that endears itself to its visitors. Those that had been here were much more enthusiastic about it and saw it less as a just place of politicians than as a national focal point.

On the other hand, many of those who had visited complained of it being difficult to navigate in because of the circles.

“”Plenty of roundabouts there. You get lost and lose your sense of direction.” Female Townsville, 35-55.

Canberra needed to be promoted.

“”We should make much more effort to identify it as Australia’s capital. We need to think beyond the states as one nation” People, Adelaide, 60-75. Canberra was seen by some as created by Anglo-Saxons for Anglo-Saxons.

“”It seems an Anglo-Saxon set-up. There’s no Aboriginal influence.” Female Townsville. 20-24.

The research revealed wide ranging opinions on costs. While some thought it good Canberra was setting standards for the nation, others thought the money could be better spent on schools and hospitals in their neighbourhoods.

Mr Howe said the research showed that people thought a republic was a foregone conclusion. As there were more national approaches on laws and standards he thought that Canberra’s role would naturally blossom.

He tended to agree with some of the research conclusions about livening Canberra up. He said his family would be more keen on coming here if it had lively streets like some in his home suburb in Melbourne.

The Australian Public Service carries a considerable amount of what many private-sector mangers would see as “”excess baggage”. This baggage comes in the form of detailed procedures for moving or dismissing staff, sometimes inflexible classifications of staff and long and costly review procedures. There are also seemingly excessive procedures for accounting for how money is spent _ sometimes more costly to execute than the amount of money at stake. Without this baggage, it is argued, the Public Service would be far more efficient. Let the managers manage, has been the catch-cry.

The latest cry of this catch came this week with the report of the Public Service Review Group. It recommended various reforms which would enable managers to move staff more easily and get rid on non-performing staff. The result would be that the Public Service would be more efficient, or so it is argued. The review recommended the end of the system of “”office” under which particular public servants are appointed to particular positions. In its place, public-service managers would be able to move people according to need. Superficially this has attractions. Modern government frequently embarks on short-term programs which do not require permanent offices.

The review recommended also that appeal procedures against dismissal be conducted through the industrial-relations system, as with the private sector. In general, the review recommended changes that would increase flexibility, such a streamlined promotions and more power to the secretary of the department to deal with personnel matters.
Continue reading “1995_01_january_leader18jan”

The tables will turn today in the United States. For more than half of the past 50 years the Congress has not been controlled by the party which has the presidency, but in nearly all of that time it has been Republican Presidents facing a Democrat-controlled Congress. Today Democrat Bill Clinton faces a Republican-controlled Congress. He faces a more difficult task on two counts. First, past Republican Presidents have been able to secure quite frequently support from a block of conservative Democrats from the South. There is no equivalent group of chamelon Republicans, though occasionally one or two liberal Republicans break ranks.

Secondly, Democrat Presidents like to initiate programs that require legislative backing whereas their Republican counterparts have, of their nature, been suspcicious of high governmental intervention in domestic policy. A Democrat President like Mr Clinton, therefore, will need more congressional co-operation than a Republican like his predecessor to achieve electoral credibility. Mr Clinton staked much on moving towards a universal health scheme. He had difficulty with a Democrat Congress on that; with a Republican Congress it will be hopeless. But it will not be all bad for Mr Clinton. For a start he will have someone else to blame and someone else to call a spoiler. Before, his own party was the spoiler and he had only himself to blame for under-achievement.
Continue reading “1995_01_january_leader04jan”

The Business Software Association of Australia announced last week that it had caught a pirate.

It got an injunction, costs and unspecified damages from Adelaide bulletin board operator Jarrad Webb in the Federal Court.

Webb was offering Aldus, Microsoft and Autodesk programs over his bulletin board. This means people with a computer and modem can dial a phone number and download the files on to their computer. People pay for the use of the bulletin board, typically sending money and receiving a password.

Some of these programs cost up to $1000 in the shops. Sure, you get a manual if you buy from the shop, but there are so many guides to major programs available in the shops that this does not matter.
Continue reading “1994_06_june_pirate”

The separate ACT Government Service will come into effect on July 1 after legislation was passed in a special sitting of the ACT Legislative Assembly last night.

The special sitting dealt with some 250 amendments to the original Bill. A move by the Opposition to postpone the Bill for more consideration was defeated when the Independents voted with the Government.

The Chief Minister, Rosemary Follett, said extra rights and equity would be granted to 14,000 ACT public-sector employees who to date had not been given the status of “”officer” in the Commonwealth service.

The new Act brings virtually all public-sector employees into the service as “”officers”, unlike the Commonwealth which excluded many blue-collar employees and employees in business enterprises.

In the ACT these people would have better career paths and choices because they would be eligible to apply for jobs on merit throughout the ACT and Commonwealth services.

She said the rights of the other 9000 until-now nominally Commonwealth officers in the ACT service had been maintained.

In getting the Bill through the Government agreed to some changes sought by the Opposition and Independents when it realised the numbers were against it.

The Legal Aid Commission is to be completely independent. The Director of Public Prosecutions and ACTEW are to come under the Bill, but be “”autonomous bodies”, which puts their chief executives in the shoes of the Public Service Commissioner for the purposes of their bodies.

The operation of autonomous bodies has been changed to give their chief executives a much greater say in employment matters which will enable greater flexibility in enterprise bargaining in ACTEW.

The merit principle is to be applied to Chief Executives more strictly than in the original Bill, though the Government argued that this might leave Ministers’ actions in appointing heads of department open to court review.

The main thrust of the Government’s Bill remains: that the vast bulk of ACT public-sector employees are “”officers” of the service; there is a uniform code of conduct and discipline; the merit principle applies; that certain base conditions apply to all employees (long-service and maternity leave, promotions and appeal rights); and that employees can find the law in one Act (unlike the Commonwealth).

The Commonwealth’s complementary legislation is yet to be passed. The Opposition and Democrats are likely to get some changes to the Federal Government’s position. It is likely that Section 50 transfers (where the Commonwealth boss wants someone from the ACT at the same level without going through the interview process) will continue for two years.

The ACT Act allows for these type of transfers from the Commonwealth indefinitely.

Both Governments have agreed that officers from either service can apply for Gazette jobs in the other service on merit, which makes ACT officers more mobile than their counterparts in the states.

The whistleblower provisions were passed, but the Assembly agreed to consider the Opposition’s stronger provisions as a separate Bill later.

The Assembly agreed to an amendment from Independent Michael Moore that the public-sector management standards be disallowable by the Assembly.

Ms Follett said she expected remaining industrial issues to be settled in the Industrial Relations Commission soon.

She said the Government was pleased at the support for the statement of values and ethics in the Bill.

“”This will give our public servants much greater guidance about our expectations of their behaviour,” she said.

The president of the Law Society, Robert Clynes, said he was pleased with the result which showed democratic processes in the Territory were working. He also praised the government for funding i the Budget a duty solicitor for those in police custody and continuing funding for legal aid for those seeking domestic violence orders.