Crispin Hull

The virtually certainty that the election of Jackie Kelly in the electorate of Lindsay on March 2 is to be over-turned reveals a defect in the Australian Constitution. Ms Kelly’s election is to be over-turned on what can only be described as an anachronistic technicality. She is to be disqualified because at the time of the election she was serving as a member of the armed forces and held both Australian and New Zealand citizenship.

Because she was in the armed services she offended Section 44(4) of the Constitution which says: “”A person who holds any office of profit under the Crown or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth shall be incapable of being chosen or of sitting as a senator of members of the House of Representatives”.

It means that public servants (federal and state) must stand aside while they contest the election. The reason the provision was included in 1900 was to retain the independence of the legislature from the executive arm of government and thereby retain the separation of powers. Conditions have changed since 1900 and the provision is no longer appropriate. Its folly can be demonstrated by asking why should a public servant be ineligible one day but the next day, after his or her organisation has been corporatised, be eligible? What possible reason is there in 1996 for insisting that members of the armed services stand aside while they contest an election? There can be no question of divided loyalties or the Crown somehow suborning new members of parliament. There is an argument that, after election, members should not engage in work for the executive government and be forced to resign from the public service or armed services, as presumably Ms Kelly has done.
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The tax-free status of clubs is apparently being rorted the ACT. The status is grants because clubs are non-profit and return all of their earnings back to the club or to worthwhile community aims.

The trouble is there will always be a few willing to apply the letter of law and not its spirit. They can divert the profits of what is on its face a community-based club to personal dividends. This is done by the “”club” paying very high rents for premises with the landlord being someone related to the rort. Another way is to pay directors annual fees well over what their work would warrant. So funds are milked out of the club and there is little difference between the club and a for-profit company, with the notable exception that the latter pays tax.

The Government has a major political difficulty. It could end the tax-free status of all clubs and replace it with community grants, which admittedly would be more expensive to administer. But if it is seen to clamp down on the tax status clubs it will be seen as heartlessly snatching benefits from junior sport and various ethnic communities, rather than sensibly cutting out a rort. Further, it requires federal help, because company tax is a federal matter and it will need federal co-operation to retrieve the tax to finance the grants.
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The Government appears to be going soft on the promise to hold a people’s convention on whether Australia should become a republic. We have had several months of broken and bent promises from the Howard Government, so one more would not make much difference. Indeed, although John Howard has made much of the need to keep his word with the Australian people, there is so much obfuscation with the precise terms of various promises and the fiscal conditions they were predicated upon, that he would be better off doing what is best for the country irrespective of what he said before the election. And on the republic and elected people’s convention would be an expensive waste of time. It is bound to be contentious because some delegates will be appointed and thus the results will be a target for the criticism that they are undemocratic. It is bound to be more costly than the better option of a non-binding plebiscite to gauge public feeling about what sort of republic if any should be put to a later binding referendum. This is because a convention would cost both the vote and the talkfest; whereas a plebiscite would cost just the vote.

If Mr Howard were to abandon his convention he could still fulfil the spirit of his promise which was to ensure the people had a say on what sort of republic they want before something gets put to them at a binding referendum. You cannot get a wider say that a nationwide vote.

It is necessary to have the vote in two stages if people are to get some say in what sort of republic they want. The Constitution demands that changes to the Constitution be made through a simple Yes/No vote on specific word changes to the existing document. It is not possible to have a two-stage vote or a preferential vote that is binding.
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The national inquiry into workers’ compensation has had to balance some difficult competing interests. At present, the various public and private sectors in the eight states and territories have inconsistent regimes for dealing with people injured in the course of their employment. This week the Heads of Workers’ Compensation Authorities’ interim report made some recommendations to overcome inconsistencies and to increase efficiencies. Efficiency is important to ensure that enterprises are not unduly burdened with unfair costs so that they may employ more people, pay higher wages and be more profitable. However, justice and decency demand that people injured in their employment are covered by a sensible compensation scheme.

The interim report attempts to strike a balance, or tip the pendulum back after a century of reforms giving workers greater benefits. Last century, common-law doctrines were laced with employer bias. In particular, the doctrine of common employment stated that each employee consented to the risk of working with other employees and if they were injured by the negligence of another employee they had to sue that employee, who was usually penniless, while the employer escaped liability. The doctrine of last opportunity exonerated the employer if the worker had the last opportunity to avoid the injury, even if the general work environment was unsafe. The doctrine of contributory negligence exonerated the employer if the employee’s negligence, however slight, contributed to the cause of the injury.

These doctrines have been slowly reversed. Now courts are quick to find employers negligent. Further, the statutory workers’ compensation schemes provide compensation even if injury is caused by a genuine accident with no-one at fault. They provide compensation if the injury is caused while the worker is travelling to or from work. They provide compensation even if the workplace element is only partly to blame. And failing that, workers can get social security for injury or illness unrelated to work. In short, present systems are mainly focused on the injured worker as the basis for compensation; they are less focused on the fault of the employer in causing the injury.
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The Western Australian Premier was out of court arguing that the Prime Minister was “”childish” to use the threat of a referendum in order to get uniform laws in Australia to ban semi-automatic firearms and that the threat was a very poor political move. Western Australia was one of three states and territories that put up resistance against putting into law the sentiment of an overwhelming majority of Australians for tighter firearms control. In the face of that childish and politically poorly judged resistance, John Howard signalled that he was prepared to use the provision of the Constitution that provide for resolution of tussles of power between the federal and state levels of government … a referendum for constitutional change that would give the Commonwealth the legislative power to fulfil the people’s wishes if the states and territories are not prepared to.

Richard Court may well protest that his Cabinet in Western Australia had not been affected by Mr Howard’s determination … or to use Mr Court’s word “”threat”. He said that in the interest of co-operative federalism his state was prepared to do more giving than taking to achieve uniformity. If so, his co-operative federalism was not done with the good grace that is normally associated with the word “co-operative”. Indeed, it was done with petulance verging on the childish. Mr Court asserted that the Howard way of dealing with firearms control would result in fewer people turning in their arms and a higher number of illegal weapons being held in the community. He argued that the tighter law would result in greater civil disobedience. Surely, if he sincerely believed this he would have insisted on Western Australia allowing crimped weapons. That he did not showed that either he yielded to the referendum threat, or that he did not sincerely believe his own argument about people disobeying the tighter law.

It add up to Mr Court mouthing a lot of inconsistent drivel to satisfy pro-gun and pro-states rights people in his own constituency. Maybe that is good politics in Western Australia.
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The Indonesian Government is continuing dangerous actions that may goad its opposition into increasing disruption and violence. The latest comes with this week’s warning from the armed forces that the free-speech forum outside the headquarters of the Opposition Indonesian Democracy Party (PDI) must come to an end. The Government and armed forces seem to have no understanding that the nation’s successful economic progress over the past decade will inevitably bring with it demands for greater participation in government and demands for a more equitable share of the wealth. And that if these are not met in a reasonable manner, strikes, demonstrations and violence almost inevitably follow. Indeed, it is surprising that the symbiosis of economics and politics is lost on the Suharto regime, though perhaps it might see the relationship only in micro terms and only flowing only one way … personal economic gains following political power, rather than demands for political power following national economic gains.

Last month the government engineered it so that its own stooge has taken over the formal position of leader of the PDI from Megawati Sukarnoputri, though the broad membership still sees Megawati, daughter of founding president Sukarno, as their leader. PDI has successfully called for strikes and rallies. The trend, as evidenced by the threat to the rallies, seems for a tragic escalation of conflict. It would be better if the trend went the other way: to the institutionalisation of effective, non-violent opposition and the acknowledgement that democracy means greater and broader participation and that power can change hands peacefully from time to time.

France has very sensibly paid itself a peace dividend. It is to cut its defence forces by 38 regiments down to about 140 regiments. It will also close some air bases, military hospitals and military training establishments and it will end conscription. Units now stationed in Germany will be subjected to especially heavy cuts.

It has required some political courage for the French Government to make the cuts, because, as in many countries, the military has deliberately stationed itself and its suppliers in regions, so that they represent a large part of a region’s economy. That usually results in a huge outcry at any suggestion of cuts and a concentrated political fall-out which often results in the governments backing off.

However, the French Minister for Defence, Charles Millon, has responded by turning swords into ploughshares. He has promised extra funding to regions that are especially affected. Further he has spread cuts where possible to limit the political damage.
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Australia’s federal and state politicians are facing a critical test at present. The test is whether they can avoid a double dissolution and a referendum on the guns issue. Both would be costly and disruptive and both should be avoidable. Prime Minister John Howard clearly left the referendum possibility open last week. And yesterday his deputy, the National Party leader Tim Fischer, said his party was ready to go to the polls in the event of a double dissolution after next month’s budget. “”We have obviously got to be alert to the possibility,” he said.

We have here a battle of wills. On the referendum question, the Western Australian, Queensland and Northern Territory Governments are pitched against the Federal Government. The states want gun laws that permit the possession of crimped semi-automatics. Mr Howard is determined against it. If those states do not give way, the only way to achieve uniform gun laws would be for a referendum to give the Federal Parliament the power to make a national gun law. Such a referendum, which would inevitably pass (barring foolish wording), would cost $50 million. It would be an expensive, distractive exercise. The leaders of those government should carefully weigh up their stand. If Mr Howard’s hand is forced, they must take the full blame for the waste.

Even if they refuse to change their minds on the grounds of national good, they might at least change their minds on the ground of electoral backlash. They might lose more votes than they gain by pursuing the pro-gun stand.
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It would be naïve to imagine that the funding cuts to the ABC announced by the Minister for Communications, Senator Richard Alston, this week were merely part of an exercise forcing all government agencies to cut back so that the federal budget can be brought into surplus for the greater economic good of the nation.

Superficially, the government, on worst estimates needs to claw back $10 billion to get into surplus. That is about 10 per cent of federal outlays. The ABC’s 10 per cent is about $50 million, or about the size of the cuts announced by Senator Alston. But Senator Alston wants that to happen in one year, not progressively over three like every other area of spending. Moreover, the government has not just cut the ABC’s Budget; it has coupled this with an inquiry into the ABC’s charter and with the appointment of a new chairman of the ABC board who appears to have been given a specific brief to change the editorial approach of the ABC.

Senator Alston set out that brief in a letter to the chair of the Remuneration Tribunal, Professor Stuart Harris, which called for a higher allowance for the chair. The letter said, “”the chair will be required to instil within the corporation the need for higher standards of professionalism and integrity to provide a greater level of public confidence in the ABC’s objectivity”.
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Independent MLA Michael Moore has long had euthanasia on his agenda. It is one of several items … including drug-law reform and planning … where he has cut out a significant political role for himself in the ACT. One of his favourite tactics has been to put up Bills that would enact stated Labor policy positions that the parliamentary party has deliberately allowed to remain dormant for fear of electoral consequences. It has caused great embarrassment among Labor and a certain amount of publicity and, indeed, voter support for himself. It is good politics. And in Mr Moore’s case where he has a genuine belief that the proposals will improve society it has been honest politics. Until now. His latest proposal on euthanasia, however, lacks straight-forward intention and lacks the integrity of his previous attempts (one successful and one unsuccessful) to change the law for the terminally ill.

His 1994 Bill (taken over and put in a slightly different form by then Labor Attorney-General Terry Connolly) gave a patient under the care of a doctor the right to maximum pain relief “”to the extent that is reasonable under the circumstances”. It is not an entirely certain law, but it gives an out to doctors who administer such quantities of drugs that it kills the patient, provided the intention of the doctor is pain relief even if there is a high risk of death.

His 1995 Bill, which failed, would have allowed active euthanasia.

His new Bill changes the 1994 Bill so that the judgment about how much pain relief is given rests with the patient. Patients would have the right to receive as much pain relief as the patient deems necessary.
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