Crispin Hull

The ACT Government is screaming, “We weren’t told.” ActewAGL which runs the ACT’s water supply has been saving its pennies for some time now to deal with the water-supply catastrophe that is about to befall Canberra this summer. The Government says it has not been told about this.

I get the sense that someone is being set up to be blamed for the hellish summer of garden death that awaits us. And it may as well be ActewAGL.

ActewAGL has thought since 1998 that a major bushfire in the Brindabellas could make water from Bendora and Corin Dams in the Cotter catchment unusable without major new filtration equipment. In that year it prudently asked the Independent Competition and Regulatory Commission to increase water charges to do that. The time frame ends next year. It will take $40 million and 15 months to bring the Cotter catchment back on line.

So we have only Googong to rely upon.

The problem is that there is plenty of water – but there are not many drops to drink. Right now, Googong Dam on its own has enough water to supply Canberra for a year without any rain. But there is not enough pumping and treating capacity too get water out of Googong, filtered and sent to Canberra to keep up with summer demand.

From now to the first day of summer the rain can come down in God’s good time till dams fill o’er top and we’ll still be rooned with a lack of capacity to treat enough water for Canberra’s thirsty gardens. Alas, we have a unitary system of water supply so all water delivered to Canberra households has to be treated to drinkable level even if it is destined for gardens.
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The Full Family Court appeared to pluck jurisdiction from the air this week when it ordered the release from Baxter Detention Centre of five Pakistani children.

Many people who detest mandatory detention have applauded the decision. I do not. I am saddened by it. It is yet another corrosive effect of this damnable policy.

It has already corroded the fundamental role of the public service to give fearless and honest advice. Now it is corroding the rule of law.

The Family Court had no business with these children. There is no legal or constitutional base for its decision. The High Court is going to overturn it, as inevitably as anyone can state when it comes to the law. It seems to me that the Family Court has morally been pressured into stepping way beyond its jurisdiction to do something about the dreadful consequences of the mandatory-detention policy. Strict legalism has gone out the window. The precious rule of law has been corroded.

This week’s decision had two stages. The first was whether the Family Court had jurisdiction to make orders with respect to these children. The second was, if it had jurisdiction, what was the best interests of the children.

On the second leg, the court made the obvious decision. No, it was not in the best interests of these children to be locked up in the hellish immigration detention centre with its violence, isolation and primitive response to the educational and social needs of children. And as someone acting in the place of a parent, the Minister for Immigration was in no position to play a role. Any submission of his that the children were better off in custody was easy to reject.

On the first leg, however, the court was on impossible ground. Did it have the jurisdiction to enter the fray? I think not, but it contrived the law in order to rescue these children.

This is how the Family Court contrived the law. Let’s go back to the Constitution. It says the Commonwealth Parliament has power to make laws with respect to, “Divorce and matrimonial causes; and (italic) in relation thereto (italic), parental rights, and the custody and guardianship of infants.”

Note the critical words, “in relation thereto”. Are the parents of these children getting divorced? Do they have a matrimonial dispute? No. Could they even contrive such a dispute to attract the jurisdiction of the Family Court? No. The Family Court can only hear matrimonial disputes between citizens, those domiciled here or those ordinarily resident here. If you are an illegal immigrant, it is a bit hard to fit those categories.

In this case the court relied on Section 67ZC of the Family Law Act. This says, “In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children. In deciding whether to make an order . . . a court must regard the best interests of the child as the paramount consideration.”

It sounds sweeping, but it is cast in the overall context of a contest over the residency of children when parents are in dispute and in any event is subject to the constitutional requirement that the laws on custody and guardianship be connected to divorce and matrimonial causes.

To the extent that the states have referred power to the Commonwealth over guardianship, it has been done in the context of ex-nuptial children being the subject of what are essential matrimonial disputes.

The fundamental point is that the Family Court has never had an overarching jurisdiction with respect to the welfare of all children in Australia. Its jurisdiction has always been constrained to sorting out matrimonial and quasi-matrimonial brawls. That was its constitutional bedrock.

It this case it has reached out for something that sadly was not there: an overarching law that requires the application of human decency.

We do not have it in Australia. We do not have a Bill of Rights.

It was counter-productive on several grounds for the Family Court to attempt to extract something from the existing law to rescue these children from detention.

First, it is corrosive of the rule of law to manufacture jurisdiction where it does not exist.

Secondly, the High Court is almost certain to overturn it.

Thirdly, the children in the middle of the case will be shuffled from pillar to post and even if this family gets a one-off a reprieve under cynical media-management requirements, others like them will not.

Besides, this week’s case was decided on its own circumstances. Even under the Family Court’s contrived view of the law, there first had to be a requirement that these children faces indefinite detention — because of the circumstances in Pakistan. That will not be true in most other cases. So assumptions that every child in custody will be freed is just cruel hyperbole.

It would have been better in the long run (if not for this family) for the Family Court to have acknowledged that under existing law the Minister for Immigration has the power to imprison children — and the for us as a society to acknowledge that we need limits to executive power in the form of a Bill of Rights applied by an independent judiciary that simply would never have allowed the imprisonment of children in the first place.

A one-off suspect decision that corrodes the rule of law to rescue one family is of little use. Applaud as you might, three judges’ view of morality twisting the law to get a result in one case is a dangerous path.

The only good this case will do is highlight the general weakness of Australian human-rights law. When the High Court inevitably chucks out the Family Court’s reasoning, maybe we’ll wake up to it and maybe do something about it.

Just lift the veil for a moment. Forget the black hair and dark brown eyes. These five kids were aged 15, 13, 11, 9 and five. We all know kids this age. How could we have allowed our government to have put kids of this age behind barbed wire for nearly three years – for more than half the lifetime of the youngest child? We all know kids of this age.

The number of matters filed in the High Court exploded in the last financial year to almost unworkable proportions.

In 2001-02, 922 matters were filed. Last financial year that more than trebled to 2925.

The blow-out has mainly been caused by immigration matters. This has been fuelled by changes to the Migration Act under which the Federal Government attempted to oust the jurisdiction of the courts, particularly the Federal Court, to hear appeals on the merits from the Refugee Review Tribunals. The only avenue left for those dissatisfied was to take their case straight to the High Court whose jurisdiction could not be taken away totally in immigration by legislation because the jurisdiction is founded in the Constitution. So people who get refused in the tribunal can go directly to the High Court seeking a constitutional writ for review.

In 2001-2, there were 300 applications for constitutional writs in immigration cases. In 2002-03 this had shot to 2131 applications – a sevenfold increase. Usually there are about 20 to 30 applications for constitutional writs, mainly non-immigration matters.

Another reason for the blow-out is a large increase in self-represented cases. These have been fuelled by new rules granting people with financial hardship exemptions from fees, and a new-found belief that the High Court can solve every perceived injustice irrespective of merits.

Most of these are hopeless causes. In face the expression, “Tell ‘em they’re dreamin’,” comes immediately to mind. That expression comes from the movie The Castle. It is a very funny movie but helps perpetuate a myth that people can dash of to the High Court and all will be well.
Continue reading “2003_08_august_forum for saturday high court”

Yes, we are all bushfired out, but this is a bit different.

The lesson from the bushfires is not only on how to cope with future fires. It is also about learning how to learn.

Let’s look beyond fire. We could learn from Darwin. In its rebuilding after the 1974 cyclone, Darwin made a big mistake. It was obsessed and paranoid with its disaster. Everyone who rebuilt had one object in mind: to make their new home absolutely cyclone poof.

They built strong brick houses on cement slabs. The cyclone took nearly all the stilted fibro places with their timber decks, and they were not replaced. Those places, built before air-conditioning was common were suited to the climate. The hot air went up and the breeze came in from under the house. They had a tropical charm. They had an indoor-outdoor interaction that helps residents live in the environment. The new brick and slab bunkers required air-conditioning that cost as much in summer as heating costs in a Canberra winter.

Thirty years later and Darwin has not had another cyclone. Only recently have smart architects attempted to capture the best of the old designs while still making them reasonably cyclone proof.
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At last some sense on cycleways – or shared paths as some prefer.

Urban Services Minister Bill Wood announced yesterday a 12-month trial encouraging cycle-path users at Lake Burley Griffin, Lake Ginninderra and Lake Tuggeranong to “keep left”.

“Keep left” will be put various points around the three lakes and their effectiveness monitored.

Wood used the term “cycle path”. But they are shared paths, used by walkers, joggers, pedestrians, roller-bladers, dog walkers and the like.

Hitherto, using the paths has on occasions been frightening. Some pedestrians walk on the right and others on the left. Others dance uncertainly between left and right as a cyclist approaches. Other groups of walkers split left and right. The uncertainty causes danger.

There were no rules. The Traffic Act 1937 merely states: “A person shall not walk upon a public street or use a wheelchair upon a public street; without due care and attention or without reasonable consideration for other persons using the street. Penalty: 1 penalty unit [A small fine].”

Nothing about keeping left.
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Caption must credit archicentre and say more information and advice is available from www.archicentre.com.au

For the bushfire Recovery supplement I have filed 22 stories

Also provided:

Table of donors sorted alphabetically and privacy vetted

Table of insured

Five insurance tables showing how Canberra fares nationally. Plus captions

Organised house design illo; electricity pics; forestry recovery pics from outside.

Aside from standard interviews, two long meetings with large groups of Recovery bureaucrats — one including CT advertising people. Negotiations with privacy-paranoid appeal trustees. Many many phone calls liaising and passing on contact details and story ideas to other contributors and organising and teeing up photographs.

At $3000 plus $300 GST you have done very well considering quality, quantity and timeliness of filing.

Shall I send a tax invoice or will you treat in the ordinary way through contributors’ bureaucracy?

Continue reading “2003_07_july_bushfires_story list”

The High Court decided this week that a surgeon should pay the cost of the upkeep of a child after a failed sterilisation operation.

Reaction has been divided and passionate.

High Court goes mad on damages. Surgeon should pay for negligence. Etc etc.

Either way, there is a great deal of comfort for Australians in this judgment.

Damages for medical negligence is a divisive issue. Differences of opinion are almost inevitable. Some can easily say that the parents have a child bringing them joy, as they admitted in the case, so why sue for the upkeep — all healthy births are a blessing. Others can say that the mother and her husband have been burdened by the failed operation and should not be out of pocket.

The High Court similarly divided. Three Justices held one way and four held the other.

The great comfort for Australians, whether they agree with the outcome or not, is the reasoning presented by the seven Justices.

Chief Justice Murray Gleeson made a pertinent point last year. In lay language he said High Court Justices should cop criticism on the chin and that they should not expect to be immune from it. But they should be able to expect that before they copped amedia bucketing for a judgment that those doing the bucketing should at least read the judgments.
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Professor Penny Sackett was six months into her five-year term as director of the ANU’s Research School of Astronomy and Astrophysics when a conflagration – small by the standards of her science – hit planet Earth.

The January 18 fires raced through the research school’s Mount Stromlo Observatory, destroying buildings, telescopes and research work. The monetary damage alone was $40 million. The school also runs the Siding Spring Observatory near Coonabarabran.

Sackett, originally from the United States, in a new job in a new country found she had to look at the recovery.

“I did remark to the Vice-Chancellor that this was not in the job description,” she said.

But much of the directing of the recovery has now been taken over by others and she can concentrate on astronomy.

One of her main tasks is the setting up of a planetary science institute at ANU.

Planets have been back in vogue in the past decade with the discovery of planets outside our solar system – first confirmed in 1995. Now more than 100 have been discovered.

“This opened up a field in astronomy which in many ways lay dormant,” Sackett says. “Our own solar system provides us with very detailed information. But if the only thing you study is your own system you can be led astray. It could be abnormal and we would never know.
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