Crispin Hull

Lawyers and law students have always had access to judgments of the nation’s courts and statutes of its parliaments. They have been available in the law reports in the university, practitioners’ and court libraries throughout Australia and have included details of Family Court jugdments, with names and details of custody and property settlements.

I recall one Family Court case that went to the High Court, for example, involving a constitutional wrangle based upon some salacious details. The woman was asserting that the child whose custody was disputed was in fact fathered by someone other than the husband case. She said it was not a child of a marriage and therefore the Commonwealth’s Family Court had no constitutional power to hear the case. The Constitution restricts the Commonwealth’s power over custody of children to those in relation to marriage and divorce. The woman said the case should go to the state supreme court (which unlike the Family Court at the time) had power to order a blood test which might prove the issue. The man (who did not want paternity challenged biologically) wanted the custody case to be heard by the Family Court.

In those days, the press were not allowed in the Family Court, but they were allowed into the High Court. Fearing embarrassment for the child later, Justice Deane (now Governor-General) had the wit and humanity to suggest a suppression order on the names, and the case is now listed as something like F v F, but in many routine Family Court jugdments in other cases the identity can be deduced by lawyers and law students from reading the jugdments.
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The Spindler-Kennett tiff is an excellent example…..

The failure of federal and state politicians to deliver the gun control laws that the vast majority of the population so palpably want is another example of what Sir Ninian Stephen called the democratic deficit.

Sir Ninian, who is chair of the Constitutional Centenary Foundation used the term to describe Australia’s treaty-ratification process and the way the Executive negotiates and signs whatever treaties it wants irrespective of parliamentary or popular will.

The gun-law “”democratic deficit” is slightly different. It is not a tussle between the parliament and the executive but one between the people and the parliament. Parliaments in all states and territories and federally (with the exception of the ACT) have refused to enact the people’s will. How can they be forced to do so? People feel powerless in the face of guns. This is a democracy and when a majority of people want something which is of obvious benefit to the whole community they should be able to get it.
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The Government and the National Farmers Federation are mistaken if they think a few amendments to the Native Title Act can be banged through and pastoralists can sleep securely in their beds in the knowledge they will never be bothered by the issue again.

They have to recognise that native title is immensely complex, that it will not and cannot be made to go away, and that will require time and resources to sort out. This week the National Farmers’ Federation came away from talks with the Government well-pleased at the direction of government policy; whereas Aboriginal groups are feel quite the opposite.

It is true superficially to say that the Native Title Tribunal has cost a lot of money to date and has not resolved any of the 220 claims made to it with a final confirmation of title. But it is nonsense to say the tribunal has cost $42 million, as the NFF asserts, though I suppose it might come to that if you add all the white consultants, lawyers and advisers fees. But it is more like $14.2 million … less than a dollar a head.
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Within the next week or so the Government will be putting its new industrial relations legislation before the Parliament. It has stated that it will be a major priority and Parliament will sit through until it is dealt with … presumably either by being passed with only acceptable amendments or rejected in a way that will enable it to be a triger for a double dissolution.

The legislation will change the industrial-relations climate of the country, and it needs changing. But the Government should not take the country from one extreme to the other: from the extreme of union domination and inflexibility to the extreme of employer domination and flexibility that results in erosion of fundamental rights.

The Coalition has been right to signal industrial relations as a key inhibitor of efficiency and improved economic performance. And in proposing reforms it has been right to point to large centralised unions and overly detailed award provisions as blocking changes in workplaces that would bring greater productivity and therefore greater wealth to both employers and employees. Many union officials will not like that. They have built careers out of requiring vast detail in awards so they will have a role in dealing with any workplace change, however trivial, often to the detriment of the workers they purport to represent.
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John Howard was elected not just to run an economy, but also to govern a community. This should be an important consideration when the Government considers what changes, if any it should make to Medicare.

This week, in the silly semantic juggling that goes on between journalists and politicians, the Minister for Health Dr Michael Wooldridge, “”refused to rule out” a co-payment for visitors to the doctor, which are now cost-free to the patient who goes to a bulk-billing doctor.

Medicare is a very large part of government expenditure and medicine in general is a very large segment of gross national product … a little over 8 per cent at present, and not many items would match that. It is subscribed to by nearly all tax-payers and nearly every Australian is a part of the scheme. It is thus both a significant part of the economy and a significant part of the community. The latter is more important than the former.
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Australia has a unique public broadcasting system. Unlike nearly all others it restricts advertisements to self-promotion in the case of the Australian Broadcasting Tribunal and to top or tail advertisements in the case of SBS.

Earlier this week, suggestions were made that advertisements be allowed on the ABC to help the Government make up its promised cut in $8 billion in public spending. It would seem perverse, that after four decades of television and more in radio that advertisements were needed to keep the ABC afloat. The ABC and Australia have been through far worse economic times than at present yet remained advertisement-free. The suggestion to put advertisements on ABC says more about ideology and values of government than tough economic times.

Advertisements would not help a great deal. They might make about $30 million in a total ABC expenditure of $500 million. Advertisers are not interested in paying huge amounts of money for time slots in programs without huge audience reach. To take advertisements … either in general or as top and tail only … would result in little money for the huge non-financial loss of uninterrupted quality programming.
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The Commonwealth Director of Public Prosecutions, Michael Rozenes, QC, has issued an ominous warning about Australia’s criminal-justice system. He has said that the complexity and inefficiency of the system had driven up costs to the extent that it was becoming too costly to prosecute white-collar criminals. The cost and complexity had, he argued, increased the justice of the system, but it meant there was a danger that those “”with the wit and guile to commit complex crimes” and who could afford good lawyers would be able to make the cost of prosecution too great to pursue.

Mr Rozenes warning comes at a time of large cut-backs in Commonwealth funding. However, it was not a plea for extra funds or more people to do the job. Rather it was a sensible questioning of the outdated procedure and rules of evidence used in criminal trials. It is not the first time Mr Rozenes has expressed his frustration at the failure of the system to deal with white-collar crime. In the past he has criticised company regulators for enabling corporate wrong-doers to escape criminal prosecution for breaches of corporations law by letting them off with civil penalties.

Mr Rozenes’ latest warning is more profound. He says that as the system becomes more just, it also becomes more expensive, so expensive that prosecuting authorities will be unable to pursue complex white-collar crimes. One can take issue that this will merely bring the justice system into disrepute. One could argue that a system so expense to run that guilty people escape conviction is not one that is becoming more just; rather it is become less just.
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This week and next week Canberra hosts the Australian Science Festival. The timing could not be better _ a time when many people in the rest of Australia are being falsely presented with a view that Canberra is a place full of useless public servants whose pruning will save the national economy. Hundreds of visitors, mostly schoolchildren, from throughout Australia will see the city in a different light _ as a creative place, as a place that expresses national aspirations.

The festival has an extraordinary array of activities and presentations that reveal the nation as a remarkably technologically and scientifically creative one. It will help present a message (perhaps indirectly) to the national government about the importance of science. That message is one that says the national government must maintain, through the universities and other institutions, a strong pure research base. Only government can do it because the rewards are too long-term for industry to be interested.
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The Queen is 70 today. Her 70th birthday is a reminder that Prince Charles will succeed her before long, and it is a prospect that not many Britons face with great cheer. The Queen’s children have let her down badly. It is not that three of the four have separated, but the manner in which several of the parties have conducted themselves since their separations. The have turned the Royal family into an object of tabloid press entertainment. But there are serious consequences. The separation of Charles and Diana and that of Prince Andrew and Sarah Ferguson, of themselves, were not profoundly destructive. After all, Princess Anne and the Queen’s sister, Princess Margaret, separated and divorced their husbands with a semblance of quiet dignity and the two husbands, Mark Phillips and Lord Snowdon, did not engage in the destructive, public antics that Fergie and Diana have. Charles and Diana sought out friends of friends in the press to pursue their vendetta against each other. Both lost, and so did the monarchy.

As a consequence, opinion polls in Britain are showing increasing doubts about the monarchy and Prince Charles’s succession. Only 41 per cent think Prince Charles is up to the job. A majority think the monarchy will not last another 50 years. None the less a majority still favour the monarchy over its replacement by some form of republican government. That support can clearly be put down to the dignity and grace of the Queen, despite the antics of her family. That was displayed admirably in the nation’s grief over the shootings of schoolchildren in the Scottish town of Dunblane. In that instance, the Queen played the classic role of a constitutional monarch … as a symbol for the whole nation, above and apart from grubby party politics. Incidentally, the Queen’s support on that occasion came from Princess Anne and Princess Margaret, showing that divorce of itself is not the difficulty.

The Queen’s role at Dunblane was the sort of role that many Australians would like to see for an Australian Head of State, without the family baggage that goes with it.
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