Crispin Hull

Rather than selecting their judges from the ranks of long-practising lawyers, they train them specially for a judicial role virtually from the moment they leave law school. Combined with the investigative method in courtrooms, it tends to get to the truth of cases more surely, quickly and cheaply than our adversary system. European judges ask a lot of questions of witnesses and even call witnesses, unlike Anglo-Saxon ones who leave it to the lawyers to put their case and sit mute while critical questions go unasked, usually for tactical purposes which are detrimental to the search for the truth.

It may be all right when both sides have equal legal strength, either from their own or the state’s resources. If not, the outcome is likely to be unfair.

This is one of the troubling things about Gary Humphries’ proposal to bring back lawyers into the planning appeals process, by attaching the Land and Planning Appeals Board to the Administrative Appeals Tribunal. The previous Government set up a lawyer-free system where each party came and presented its own case to the appeals board. Lawyers were not permitted represent parties. The trouble was that the bench was virtually lawyer-free, too. It meant appeals were heard devoid of legal input; injustice, inconsistency and procedural unfairness were inevitable.
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The ACT Government squibbed it with compulsory third-party car insurance. Rather than look at how the scheme works, it merely passed on the extra costs to motorists. They amount to $74 a year _ a 40 per cent increase.

The Law Society calls the action “responsible”. Perhaps that is because its members have so much to gain by the present system.

Under the present scheme everyone pays a $252 premium to insure themselves against legal liability from injuring someone on the roads. That liability flows from proof of fault and proof of damage. Establishing that proof is done by lawyers either by negotiation or in court.
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Here’s three chairs for tall young women Second-last par cuts. Make sure last par stays column ex CRISPIN HULL Thank heavens for all those very tall, young women in their early 20s. It means I can put aside earlier thoughts of lodging a complaint for sexual and disability discrimination. It sounds a bit weird, but let me explain. My disability is having exceptionally long thigh bones and generally being taller than most people. It has meant that for years I have rarely been able to find a comfortable chair.

At work there has been little difficulty. The glories of the computer revolution and occuptational-health-and-safety committees with nothing else to do has meant workplaces have been armed (pardon the pun) with chairs that ride up and down on ozone-depleting gas with backs and arms that would make a contortionist comfortable. At home, however, it is different. Lounge furniture is impossible. I have sat on a thousand lounge chairs in a hundred shops in the past two decades and not one has been comfortable. About 10 years ago, though, I found a lounge suite in a furniture-maker’s shop with a huge base. But the back was impossibly low, so I got him to make one of the chairs with a very high back for me. Bliss. But it was a nightmare for various short guests who disappeared into the back of the lounge along with old biros, two-dollar coins, remote-control duvalackeys and the ever-lost spare set of keys. These guests’ legs dangled like Humpty Dumpty’s.
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The big Budget losers are people on incomes between $46,500 and $66,500. The transfer from tax cuts to superannuation hits them _ to the advantage of low-income earners. People on incomes over $66,500 lose all of the tax cuts promised in the second round of One Nation. And people on incomes between $46,500 and $66,500 lose the promised benefit on a sliding scale. People at the other end are major beneficiaries, as the graphs show. In rough terms $1000 a head goes from the middle- and high-end to the lower end. It sounds fine in theory, but it appears to happen every Budget. Moreover, the Government justified the now-abandoned tax cuts for middle incomes because the lower incomes had had their turn in the first round and in earlier Budget measures. Also, people on very high incomes did well in the early days of Labor when marginal rates came down from 66 per cent to 50 per cent.

The one time middle income earners appeared to get a break has now been taken reversed. Overall the tax and superannuation changes will put more money in government coffers and less in taxpayers’ pockets. The shift happened as follows. One Nation promised a second round of tax cuts. The timing was not set, but was tentatively set for 1998-99. People on $20,700 to $40,000 would have had their marginal rate cut from 34 per cent to 30 per cent. People on $40,000 to $50,000 would have had their marginal rate cut from 47 per cent to 43 per cent. People over $50,000 would have still had a marginal rate of 47 per cent, but would have benefited from the lower rates applying to that portion of their income earned between $20,700 and $50,000.
Continue reading “1995_05_may_winlose”

The introduction of Terry Connolly’s ACT Bill of Rights Bill last week made me reflect upon Sir Joh Bjelke-Petersen’s performance at the Fitzgerald Royal Commission. The television re-enactment of that performance showed ex-Premier Joh Bjelke-Petersen flustering over the separation of powers. It is a theoretical concept, but an important one. Bjelke-Petersen, being cross-examined was asked, “”What do you understand by the separation of powers?” The blustering conversation went something like this: “”You, you, you . . . . well you tell me what it is and I’ll tell you if you are right.” Counsel: “”No; in this Royal Commission, I ask the questions and you answer them.

Do you understand the concept of separation of powers.” Bjelke-Petersen had to admit he did not. Of course, the cross-examining lawyer, in insisting that Bjelke-Petersen was answerable to the commission, had at once demonstrated that the Executive was answerable to the Legislature which had set up the commission. The importance of the separation of powers is that power is spread, diluted and counter-balancing. In the Westminster and American system of Government it means the elected representatives pass laws of a general nature; that the judiciary apply them is specific cases and that the Executive administers the laws, but is answerable to the laws at the hand of the judiciary. In short, no-one is all-powerful. No one person can pass a law, administer a law and execute that law in specific circumstances. Some people have power but no-one has absolute power. It was instructive that Bjelke-Petersen did not understand the idea that some people _ Members of Parliament _ pass the laws; that Minister administer them, but are themselves subject to them; and that the judiciary determines how the law applies in specific circumstances. He did not understand the idea of the separation of power because he thought that he had all the power and could do what he liked. He controlled Parliament and appointed the judges, so he was all powerful. He could do as he liked. So could his Ministers. They were the law. As Louis XIV said, “L’etat, c’est moi.” The state; I am the state. And so it was that several Queensland Ministers fiddled their expense accounts; ignored planning laws to build what they liked, where they liked for personal advantage; and took bribes and in return did favours to business mates. Further, they prohibited people from demonstrating. They prevented as far as possible people from joining unions.
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The definition of “”control” in the Broadcasting Services Act must be the most bizarre piece of legislation in Australia. Incredibly, it runs to 2640 words. The diversity of Australian media ownership hangs on this definition. It determines, for example, how much of the Fairfax newspaper chain television magnate Kerry Packer can devour. Its aim is to ensure that the princes of print cannot be queens of the screen _ that there is no cross-ownership of television and print in one city. Yet, despite its 2640 words, the definition contains the damning admission that the very task of defining “”control” is impossible. It says, “”Because of the complexities involved in this area, it is not possible to provide rules which will give a definite answer in all cases.” So how are we to find out whether someone has “”control” of a television station or newspaper? The Act says, “”The ABA is given a monitoring role over the broadcasting industry and suitable powers of investigation in order to reach a conclusion as to whether a person is in a position to exercise control or not.” And how does the ABA do this? In secret of course. It must not give any commercial secrets away. This week the ABA ruled that Packer’s 17.2 per cent shareholding of Fairfax does not amount to “”control” and that he is entitled to have both that shareholding and have control over Channel 9. No-one can judge whether that decision _ affecting the viewing and reading of millions of Australians _ is sound because the basis for the finding is secret. But never mind, the Minister for Communications, Michael Lee, assures us that the ABA will monitor the situation closely. Great. It took 10 weeks for the ABA to tell us that Packer’s increase of ownership from 14.9 to 17.2 per cent did not amount to taking “”control”.

The sharemarket, however, does not work as slowly. About 12 per cent of Fairfax’s shares would get turned over in that time on average trading _ let alone during a concerted bid. This law is more a mule than an ass. The trouble is that the present legal and constitutional set-up make solutions difficult, even if the political will was there. Australia has now tried several models to control media ownership. All have ostensibly aimed at providing a diverse ownership by Australians who recognise that media ownership is special and requiring a trust relationship with the public. All models so far have failed.
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Brendan Nelson, like any party gate-crasher, has made some uncomfortable comments. He brought with him to the party views he holds as president of the Australian Medical Association, calling for the end to universal bulk-billing. In John Hewson’s time the Liberal Party agreed with that. Now it has put changes to bulk-billing in the same category as the GST _ wash your mouth out. As things stand, universal bulk-billing is here to stay _ a Hewson-made untouchable. Nelson’s erstwhile colleagues dislike bulk-billing because it put competition in their ranks. While ever some doctors were willing to bulk-bill all patients, they would attract the custom. They would also save a lot of administration costs. The Nelson episode is one of several in recent times that show Australia’s health system as a jumble of fiercely competing interests and shifting alliances of convenience.

The main players are: the doctors (roughly dividing into four groups: specialists, AMA-type GPs, Doctors Reform-type GPs, and young salaried doctors); state Governments; the federal Government and the health insurance funds. State Governments want to present electors with well-run hospitals. From their perspective any unduly long waiting lists are due to: lack of federal funding; monopolistic practices by specialists whose colleges refuse to let more practitioners in; declining private insurance due to federal government policies. State Governments play various tricks against the Federal Government to extract more money (and deny all of them). They fail to give information on waiting lists. They give preference to private patients in public hospitals (or allow doctors to) because private patients pay more. They try to pressure people into going to GPs rather than public hospitals for all but catastrophic emergencies. This way the Federal Government through Medicare pays. The Federal Government wants to present electors with low-cost universal health insurance. In its view waiting lists are due to state-government incompetence in running hospitals and high medical costs are due to doctors’ greed. Only bulk billing is saving us from unbridled excess. It plays various tricks in presenting a picture of efficiency.
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The appointment of a consultant to help the Act Government meet its election commitment of shedding $32 million from the health budget and at the same time reduce waiting lists has met with a hostile reception from unions and the Opposition. The unions assert they were not consulted and question what an American company knows about Australian health care. The Opposition asserts the consultantcy is a waste and that the Government should get on with implementing the results of earlier inquiries. The Government says that the consultant, Booz-Allen and Hamilton, has been engaged by 16 major hospitals in Australia and New Zealand and has a record of reducing costs and improving care. Of course, it does not matter if the consultants are American; though in fact they are an Australian subsidiary. It is a non-issue. The important point is that the ACT gets the most for its health dollar. The public has every right to be sceptical of a new inquiry.

The history of health administration in the ACT has been one of constant cost overruns; higher costs than the Australian average; longer waiting lists and poorer service that most other states; endless promises of reform and inquiries with no result; and despite this, constant reminders of tireless, caring working by nurses and doctors as individuals who are treated express their grateful praise when they finally get through the waiting lists and in to hospital. At first blush, it would seem pointless to add yet another inquiry to the others before it. However, the Government says this consultantcy is not to identify areas of cost overruns and inefficiency because these have already been identified. The new nine-week consultantcy is to find ways of changing things so those overruns and inefficiencies can be eliminated _ across the whole system, not just administration.
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The Queensland Premier, Wayne Goss, has shot himself in the foot. In his Budget last week he announced that Queensland would half its stamp duty on share transactions from 0.6 per cent to 0.3 per cent. He hoped he would attract more share transactions to Queensland which would result in stock-brokers opening offices in his state. When the other states screamed, he said piously that he did not want to hurt them. He did not want to take away transactions from those states. Rather, he said, he wanted to attract some of the many transactions with Australian shares that took place overseas. Well, that was either underhand or naive. He must have known that by lowering the Queensland rate he would attract interstate business to the detriment of other states’ revenue. Indeed, that was more likely than attracting overseas business. This is because transactions overseas already attract a low level of stamp duty so the incentive is lower to move.

The result of Mr Goss’s move was predictable. It perhaps happened faster than one would imagine. The other states have followed suit. It now means that, in total, instead of collecting about $600 million a year on share transactions; they will collect only half that. The states will lose about $300 million. In short, money that would have gone to hospitals, roads, schools will go instead to people who trade in shares. Well done, Mr Goss. It is true that the leakage of revenue caused by people moving transactions overseas was a problem. Twenty-per cent is a high figure _ about $150 million. However, Mr Goss’s maverick approach to that problem was bound to fail. Besides which, it was selfish. Why should Queensland attempt to attract to itself all the overseas leakage? The way Queensland went about it does not sit well with modern governmental practice.
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