Crispin Hull

The issues paper has firmly recognised the complexity of the republican question. It is not a question of crossing out “”Queen and Governor-General” and inserting “”President” _ the “”minimalist approach”. Once the Head of State is elected and removable by some other instrument than the Prime Minister (by advising _ read telling _ the Queen) the President has an independent fountain of power.

And that means if you leave the rest of the Constitution as is, you give the President very wide powers: to appoint and dismiss ministers including the Prime Minister and the power to dissolve Parliament and call and election. In other words, the so-called “”minimalist” approach becomes a “”maximist” approach.
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Sometime in the 1940s Justice Owen Dixon and Justice George Rich were overheard leaving a concert in Sydney given by an ABC orchestra.

Dixon was Australia’s most pre-eminent judge, noted for his fine powers of reason.

The conversation went something like this:

Rich: Splendid concert, wasn’t it?

Dixon (deep in thought): Oh yes, quite. But I still don’t see what it has got to do with postal, telegraphic, telephonic and other like services.
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THE natural lawyers and legal positivists have come the full circle. Last week the UN Security Council resolved to set up a permanent war-crimes court. The Security Council, of course, comprises those countries on the winning side in World War II. Between them, they set up the first war-crimes trials at Nuremburg after that war. They resparked a great debate among legal philosophers. On one side were the natural lawyers and on the other were the legal positivists.

Natural law goes back to ancient times and has taken many forms. Broadly, it appeals to some higher form of universal morality beyond church and nation. Legal positivism, a creature of the scientific age scoffed at this, arguing that the only law was the law factually promulgated and enforced by the state. The positivists argued that natural law was a lot of unprovable wool not worthy of consideration by the fine minds of the law schools of the world.
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ONE of the tribulations of journalism are “”nutters”. They telephone you and hound you with lunatic theories or obsessions based on the flimsiest link with an article in that day’s paper.

Telecom and Voltaire between them, however, have provided a solution. Voltaire is attributed with saying: “”I disapprove of what you say, but I will defend to the death your right to say it.” Telecom’s role, on the other hand, is more prosaic. It has sold me a telephonist’s headset.

You see, hanging up on “”nutters” is no good; it does not deter them. They just ring again. Rather than attempting to silence people, it is far better to let them have their say. So I just put the headset on and let the “”nutters” prattle away while my two hands are free to continue work at the keyboard on something else. I occasionally mutter a “”yes, yes, of course, certainly” every time the meaningless buzzing noise in my ears stops, or occasionally I may put the headset aside to get some files from the library while the “”nutter” prattles on.
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KATE Carnell’s populist appeal to convert the ACT Government into a town council attacks the issue from the wrong angle.

It does not matter what you call it; it is what it does and how it does it, that matters. Town councils are just as capable of spending huge amounts on their office spaces, cars, and perks of office as a cute little Westminster-style government. Moreover, a Lord Mayor is equally or more likely to fall victim of self-importance and self-aggrandisement as a Chief Minister. Indeed, one could imagine (perhaps not Rosemary, or her predecessor Trevor) but other MLAs and some of the more vain former MLAs delighting in mayoral robes and gold chains and the like.

For all of the fun poked at our cute little Westminster-style Assembly, it has several features that make it better for the people of Canberra than a town council.

Unlike some councils, none of its hearings or the hearings of its committees are held in camera. The Assembly is open.

Unlike councils, the Assembly has ministerial responsibility. Combined with a Question Time, this can be a powerful weapon. It may well be that the Opposition does not use Question Times particularly well at present, but it remains a weapon for accountability. A Minister who misleads the House is out (at least in theory). Theory or not, Ministers have to be careful at Question Time.

The Assembly has full-time paid members. Many councils are part-time. Having part-time members is not a good idea. You either get people who work at it full-time because they have other income or if you get good employed people they are invariably in a busy job and cannot devote the time needed without going mad through overwork. A raft of good people are excluded.

The Assembly has an Opposition, unlike many councils. Combined with a committee system, this can be a powerful weapon for accountability. Ministers and public servants can be grilled at committee hearings. The Opposition has an interest in exposing incompetence and chicanery. That is the avenue to office.

Town councils are notorious hotbeds of corruption and mismanagement. In the NSW the Government regularly has to dismiss a council and appoint an administrator to sort things out. The Independent Commission Against Corruption has unfolded numerous instances of corruption in councils.

The corruption and incompetence is obviously not purely a function of the system of government at that level. Other factors come in to play. However, in town councils a closeness builds up between councillors and administrative staff that make corruption easier and indeed a closeness builds up among councillors as a group that enables the blind eye to be turned.

With a formal Opposition and an open committee system it is not as easy.

Moreover, with a Westminster-style system, the ACT has taken on board a raft of administrative law that helps keep government open and clean. The Freedom of Information Act may have been blunted by bureaucratic manipulation, high fees and legalistic exceptions, but every ACT Government bureaucrat is aware of at least the possibility that a determined journalist or community group can prise the can of worms open using FOI. The potential of it must have an effect on keeping things clean.

The Administrative Appeals Tribunal enabled the review of administrative action by ACT bureaucrats.

This system is far more accessible to community groups than a council. Community groups have more weak spots to find and more weapons with which to attack. Some community groups are dismissed as NIMBYs and self-servers by people in government. However, they have had some modest successes in changing what government does and how its does it since self-government _ probably a lot more success than if we had a council.

Moreover, a Westminster-style government legislates, not merely administers other people’s legislation, as with a council. Ministers and departments are bound by the legislation. The separation of these functions is another element of accountability.

The ACT is not immune from incompetence and corruption. The Assembly system is not perfect. The points outlined above can be abused, misused, circumvented or ignored, either deliberately or through neglect. However, it is better to have the safeguards of a Westminster-style government to deal with the huge range of state and local functions than to have a council, even if it costs a little more.

These points as aside from those made by Trevor Kaine that a town council would not have a seat in the Loans Council or the Heads of Government meeting where the key decisions are made on ACT funding.

Our mini-House of Commons has many faults, but at least they are obvious. A council would have many more faults. And more sinisterly, we would probably not know about them.

Ms Carnell should forget about a town council and concentrate on using the weapons at hand to improve the governance of Canberra.

AN EXTREMELY important piece of research at Oxford has revealed that while the vast ruck of humankind are like to be shielded from heart attack by taking asprin, Libras and Geminis are more likely to be harmed by taking it.

The importance of the research was to demonstrate the idiocy of a proposal before the US Congress to demand that the National Institutes of Health include women and members of minority groups in all clinical research and that results be broken down to show how each group is affected.

It excepted obvious sex-based research.

The grounds for the amendments are that minorities and women have been arbitrarily left out in the past. The wicked Oxford research damns the proposal because it shows that much larger and therefore more costly samples will be needed to get results that can be relied upon. If a reliable sample divided by 12 produces aberrations, a sample divided by the number of ethnic groups in the US is liable to be much worse.

Presumably, the Oxford people feared that the US politically-correct movement was contagious, and like all American diseases likely to infect the whole English-speaking world so they thought they would demonstrate its folly before someone in Britain thought it a good idea.

The gender-and-race-equality movement in the US is not just a Clinton phenomenon. It was rife in the Bush years, but behind the scenes. It got to the stage where appointments were made on the basis of sex and race rather than merit.

Initially, I thought Australia had already been infected with the announcement by our Attorney-General, Michael Lavarch, to appoint more women and non-Anglos to the Bench. But he has added a rider which gives his proposal some force.

He said that while selecting more women and non-Anglos, selection would none the less remain on merit.

At first blush, that appears illogical. You can’t say you are going to select more women and non-Anglos and at the same time say that the merit principle will continue. To be logical you either have to say you are going to change the present merit system to pick more women and non-Anglos or you have to say that the present system is not a merit system at all and that you will start applying a merit system that will result in more women and non-Anglos being appointed.

Lavarch appears to be taking the latter approach.

It seems almost inescapable that we have not had a merit system for selecting judges in Australia since 1903. The system we have has thrown up the following result: one or seven High Court judges is female; one of 33 Federal Court judges and seven of 51 Family Court judges. If you leave out half the population, you couldn’t possibly be picking on merit.

What the system does is pick the most meritorious barristers to be judges. It does not pick the most meritorious people to be judges.

Lavarch recognises that. The only way to have a merit system and get more women and non-Anglos on the bench is to widen the pool from the Anglo- and male-dominated Bar.

Alas, he proposes only to widen it to include solicitors and legal academics.

Maybe a more fundamental reform is needed. At present the apprenticeship for judges is years of training as an advocate in an adversary system based on the principle of winner takes all. Bizarrely, we are picking the people who are best at fighting to preside over dispute resolving. It’s a selection on merit, all right. But merit in the wrong skill. It’s a bit like picking the very best boxers to be playground supervisors.

Moreover, these highly skilled barristers are good at picking every point to fight their client’s case and good at taking technical points that have little to do with the justice of the case. When the go to the Bench they inevitably tolerate the same conduct in the fights that come before them.

Small wonder, then, that are courts are plagues by delay, cost and adversity.

Perhaps we need to train two sorts of lawyers: fighters and resolvers. And they would follow separate careers. Law schools, at present, train almost exclusively for fighting.

To some extent the sex and race imbalance and the fighter-resolver matter will be self-correcting. The law schools are bulging with women and ethos. More than half of law students are women. They will inevitably feed through the system. Moreover, law schools are producing far more graduates than there is room at the Bar. They will inevitably drift to other jobs. As they do so, there will be calls for changes to legal training to embrace things like dispute resolution, fact-finding and so on.

In the meantime, Mr Lavarch has a more glaring inequality to correct. My research reveals that among the 91 superior Federal Court judges there are four times the number of Leos than there should be, and the poor little Virgos are missing out again.

THE South Australian Attorney-General, Chris Sumner, complained last week of the media working as a secret society which ultimately won against any politicians who took them on.

Professional bodies often come under fire for being secretive and self-protective. The legal profession, especially in NSW, is attacked (often by journalists, including me) for being a closed shop. What hope has a member of the public got if a complaint about lawyers is investigated by a body largely made up of lawyers.

Journalism is in a similar boat. There is only one avenue for complaint about an individual journalist: a complaint to the journalists’ union, the Media Alliance, if the journalist happens to be a member of it (nearly all are). The union’s judiciary committees that hear the complaints are made up totally by members of the union. The committee can reprimand, fine, suspension or expulsion from the union. Complaints are rare, especially from members of the public. The public knows virtually nothing about it, and perhaps just as well. Perhaps the process should be restricted to internal journalists’ complaints against journalists: a sort of internal bitch session.
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Two years ago, Brian Howe, then Minister for Health and Housing, launched a brave new plan to get the three levels of government to co-operate in fixing Australia’s cities.

Shortly afterwards, as part of the same policy push, the Industry Commission was asked to inquire into our cities.

Australia is one of the most urbanised countries on earth. Despite our affluence, on the world scale, however, many people in the centre of our cities live in comparative squalor _ not compared to Somalia, certainly, but compared to other parts of Australia.
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Two people are to lose their jobs after a cafe in Hume closed yesterday because of what the proprietor says is the system’s failure to enforce lease-purpose clauses.

The cafe, at Hill Station, has served the workforce in the industrial suburb for three years, though it is some distance away from the main businesses in the suburb. The proprietor, Paul Smith, said that last month, a staff canteen had opened at Cannons wholesaling outlet. Since it opened his trade had slumped dramatically and he could not stay open.

One full-timer and one part-timer would lose their jobs. Another part-timer would be able to work at the Hill Station Restaurant.
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The three ACT electorates will be named Ginninderra (based on Belconnen), Brindabella (based on Tuggeranong) and Molonglo (based on central Canberra, Woden and Weston) under the provisional electoral redistribution announced yesterday.

The choice has received support from the two major parties and the independents.

The new boundaries put the Woden suburbs of Torrens, Pearce and Chifley into Brindabella to ensure one-vote, one-value as required by the Electoral Act. The Oaks Estate goes to Molonglo as do the new Gungahlin suburbs and Hall goes to Ginninderra.
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