Crispin Hull

1995_03_march_refres

The attached table shows the final result of the referendum on the hare-Clark electoral system that was run in conjunction with the February 18 election. The Act Electoral Commissioner, Phil Green, gazetted yesterday the fact that the formal Yes vote was greater than 50 per cent of the people on the roll.

Under the Federal Act Self-Government Act a referendum has to get 50 per cent of those on the roll, not merely of the formal vote, to pass. In practice it means about 60 per cent of those who vote. The result entrenches the key elements of the Hare-Clark system so it can only be changed by a two-thirds majority of the Assembly (in effect, with support of both major parties) or by further referendum. It also entrenches compulsory voting.
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1995_03_march_plan

The ACT Labor Government may have gone, but they are still slugging it out in the suburbs over some of its planning policies. A case came up in Yarralumla last week in which both sides can perhaps claim to be victim, and there are probably more to come. It may sound like a boring little microcosm, but there are wider lessons. It may well be that a lot of people voted against Labor because they saw its planning policies wrecking their neighbourhoods, but the fall-out goes beyond the election result because decisions on the ground have to be made according to the law as it was at the time of the application. A new government can only act prospectively.

In Yarralumla, residents objected to the redevelopment of a block that contained one dwelling (a single-storey semi-detached) by adding two more dwellings. The development was proposed by the superannuation fund of Maureen Dwyer, her sister Patricia Scanlan and Roger Phillips. They made their application when planning laws were swayed in favour of urban in-fill. The policy was to increase densities and reduce urban sprawl. Part of it would enable people to build granny flats to keep families together _ the acceptable face of redevelopment. Certainty was a key part of the policy: if your proposal fitted the building “”footprint” it would be approved. The balance was in favour of developers and against amenity of existing residents and as developers took unforeseen advantage of it, residents kicked up an almighty fuss and the Government changed the rules and the application of the rules in favour of residents, several times. Each time arguably achieving a better balance. Ultimately it did not save the government, and there is probably still work to be done to get the balance right. None the less it leaves people who applied under the old rules in a pickle.
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1995_03_march_nugnews

Former Reserve Bank and Commonwealth Bank governor H. C. “”Nugget” Coombs has condemned Australian Government policy since 1986 for allowing Australian assets to be sold overseas to people who had no responsibility or care for Australia. He said the wisest thing Paul Keating had said was that unless Australia changed it would become a banana republic. But that was in 1986 and he had not put in place the policies that would stop it.

“”We are persuaded to go further into debt, to sell what we still own so we can go on and we don’t have to sacrifice anything,” he said. “”All we are doing is progressively selling the ownership of Australian assets to people overseas. We balance our payments by the sale of our assets and that’s the basic trouble and it is partly because we do not think it is necessary for us to save personally on the scale that is necessary to avoid having to sell things.”
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1995_03_march_nugget

A tinge of red has touched the leaves of the pin oaks in Turner near the Australian National University so it is time for Nugget Coombs to go north. At 89, the Canberra winter is too hard. More importantly, in Darwin where he spends the winter, he is closer to Aboriginal people whose cause he has argued for decades. But there is something of greater moment on Nugget Coombs mind at the moment _ the loss of Australian assets to overseas control. He says it is of greater moment because he is optimistic that Aboriginal Australians will ultimately fix their own problems in their own way; whereas the solution for the loss of Australian assets, if any, is more elusive. In articulating warnings about the loss of Australian assets he has an unusual ally from his own generation in Billy Wentworth _ unusual because they have disagreed for so long and so fundamentally about Aboriginal affairs (see below). Wentworth, at 86, is standing as an Independent in the by-election for John Hewson’s seat of Wentworth next Saturday (april).

Went worth first stood in the seat named after his great grandfather explorer and publisher W. C. Wentworth in 1943. He was unsuccessful then but went on to win MacKellar for the Liberals in 1949, retiring from the House in 1972. The issues of foreign debt and foreign ownership are the main reasons for his Quixotic return to the fray. Both Wentworth and Coombs see a misallocation of economic theory. In Wentworth’s case the theory (especially the theory of trade) no longer fits the facts. In Coombs’s case the theory has been misapplied; the needs of people have been surrendered to theory. Economics no longer serves the people; the people have to serve it. Coombs says: “”Almost all Australians save to buy a house and for retirement. Neither of those are investments in the sense of adding to the productive capacity. . . . Every time we have a depression more and more mortgage the land and then they sell the land to pay off the mortgage.
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1995_02_february_column21jan

Paul Keating likes to break new ground. He was at it again on Sunday night. There he was on Kerry Packer’s television station accusing Packer of stealing from the Australian taxpayer about seven or eight billion dollars through lowering the value of Telecom with his Optus pay-TV deal. He likened this “”scam” to a scam by convicted former NSW Chief Magistrate Murray Farquhar’s reported attempt to take the gold reserves from the Philippines National Bank.

Why was this breaking new ground?

Well, it is grossly defamatory and every newspaper in the country reported it without having to think twice. I’ll leave aside for the fact that Keating was talking on Packer’s own station and Packer is unlikely to sue himself. But as a general principle if you call someone a grand-scale thief on national television you could expect to go down in a defamation action for lots of money. Also any newspaper that repeated the report would also go down, so newspapers would be wary of repeating the defamation.

Any decent defamation lawyer would have extracted the imputation that Packer was a thief from what Keating had said, especially as Keating had likened Packer to Farquhar. The new ground is that the imputation was published widely and nothing will come of it.

This is because of last year’s High Court ruling that the Federal Constitution carries an implied freedom of political communication. The court said this was because the Constitution set up a parliamentary democracy and for that to run properly the people have to have freedom of political communication. It meant, in the case before the court, that Bruce Ruxton could make some fairly barbed remarks about a Federal MP in a letter to a Melbourne newspaper. It meant the West Australian could make some barbed remarks about MPs going on overseas trips.

The new ground Keating is breaking is when the comments go the other way _ from the MP about other people.

A lot of discussion over the years about free speech has been about public figures. In America the constitutional written guarantee of free speech centres around a public figure test (though it is weaker now than it was). The basic theory is that you can say things about public figures if you have an honest and reasonable belief they are true, even if they turn out later to be false or unproved. Australian politicians have shied away from that approach. After all, they are public figures and they would not want to be singled out as a special defamation target. So we have had the strict approach of “”prove it’s true or pay up” _ until last year at least when the High Court gave us this freedom of political communication.

Thinking about Keating’s remarks, I suspect that the freedom of political communication runs to the republication of anything the Prime Minister says. Any fair and accurate report of what he says would be immune from a defamation action. So if you accurately report his defamatory utterances about Kerry Packer, or John Smith, you cannot be sued, even if they turn out to be false _ and we can presume here that Packer is not a thief on a grand scale. And it is too bad for Packer and John Smith.

It may well be that the High Court’s freedom rule runs to the communication by the media of anything any MP. The rules outside the Parliament may be about the same as the rules inside. Of course, logic and commonsense would have dictated that this should have been the case, but it has taken a long time coming.

A further point about the High Court’s ruling is its practical on-the-ground effect. While the academics await the next round of judgments from various courts to see how far it runs, media organisations and their lawyers are dealing with it on the ground.

One of the big factors in weighing up whether to publish something you “”know” is true but would not be able to prove under the common-law’s asinine evidence rules is the hurdles (practical and legal) that might face the person suing you. If you add to those hurdles the possibility of a “”freedom-of-political-communication” defence _ laced as it is with uncertainty and expense _ it moves the balance towards publication and away from self-censorship. The Keating exercise on Sunday _ calling Packer a thief and getting away with it _ raises the height of that hurdle and the cause of free speech.

It is about time Paul Keating did something useful with his big mouth.

1995_02_february_column07feb

I cannot think of a less deserving class of people than the one which cleaned up after the Federal Court’s decision on copyright last week _ union officials.

At stake were the royalties for copying newspaper articles in educational institutions and government departments. The people who missed out were school-children, parents, taxpayers and the people who paid for the creation of the works under dispute in the first place _ the newspaper proprietors.

The dispute has been going on for five years and has been marked by union greed, inaction and protection of mates by the Federal Government and utter incompetence by the media proprietors. The seeds of the strife go back to the 1960s when the key section in the Copyright Act was enacted. Generally copyright goes to authors of works, but if they are in employment then it goes to the employer. An exception was made for journalists working on newspapers and periodicals _ just in case they wanted to produce a book of their works.

The law said that the employer got the copyright for publication in any newspaper or periodical or broadcast, but “”not otherwise”. This was drafted before photocopiers were invented. The “”not otherwise” was meant to refer to books, not photocopying or electronic storage. In the typically dilatory way Federal Parliament deals with copyright, nothing was done about it. Later the Copyright Act gave goverment bodies and educational institutions the right to copy any material provided they paid copyright owners. A sampling and levy scheme has been set up run by the Copyright Agency Ltd (CAL). It samples copying, collects fees and distributes them to copyright owners.

The journalists union thought it could put its snout in the trough by claiming to represent all journalists and collect on their behalf. The money would be given to any individuals who claimed (precious few) and the rest would go on the union’s pursuit of copyright issues _ pleasant junkets to Berne and elsewhere for union officials. The gutless Federal Government refused to update the law for fear of upsetting a union. So the media proprietors who pay the journalists’ wages and provide them with research resources could do nothing to collect money when articles from their papers were copied. This money built up very quickly and is now several million dollars a year.

The proprietors then launched a foolhardy action in the Federal Court asserting they owned at least part of the copyright and to prevent CAL from distributing it. Inevitably it failed. The union was not a party, but it will get the bulk of the spoils. CAL intends to distribute the bulk of the fees collected for newspaper copying to the union because it has asserted (in my view spuriously) that it has copyright in the journalists’ work by virtue of membership rules. And of course the richer a union the harder time it can give the employer who passes the resulting the costs to you, dear reader and advertiser. It gets worse. If the law were changed so the proprietors (like every other employer) got the copyright, the proprietors say they would waive copyright royalties for educational institutions. Instead, money goes from struggling schools to undeserving union officials.

As for the royalties from government copying of newspapers, it is a great big freebie going from taxpayers to a union that contributed not one whit to the intellectual or economic input that created the works. The proprietors bungled. They knew this was coming several years ago and should have insisted that all new journalist employees sign a copyright agreement before getting a job. With fairly high turnover, they would own much of the copyright by now. What is to be done? Individual journalists should join CAL (phone 008 800875) and demand they be paid individually so the money does not go to the undeserving union. They can then use the money for some suitable educational purpose.

I figured this fiasco was coming two years ago and did precisely that. I got $500 last year. Money that morally belongs to The Canberra Times, so I bought a CD-ROM drive to make legal research for articles easier. If Parliament won’t do it, you have to take the law into your own hands.

1995_02_february_jansen

The Landlords Association has decided to campaign for Molonglo Liberal candidate Lucinda Spier. The association’s president, Peter Jansen, said yesterday that he had mailed his 800-odd members calling for help on polling day. Ms Spier has mailboxed how-to-vote cards in the electorate which does not mention other Liberal candidates and only mentions the fact she is a Liberal in small type. Ms Spier has seen the material Mr Jansen has put out and agrees with it. Ms Spier has been in strife with the party over issuing policy statements as the chair of the Canberra Rates Association without clearing them, as other candidates have agreed to do. Her how-to-vote cards suggest only a Spier 1 vote. They are authorised by the Liberal Party’s ACT branch president Dawn Crosby. Mr Jansen said Ms Spier was “”the only candidate who had a proven track record of standing up for the rights of ratepayers and landlords”.

He expected to man every polling booth in Molonglo. He wanted Ms Spier to “”hold the balance of power in the Assembly” _ a term usually reserved for people outside the major parties. Mr Jansen said, “”Without Lucinda the other parties will continue to “”rip off” property owners via rates and taxes. . . . The Liberals have reneged on their promise to abolish land tax.” On land tax, Ms Spier said Liberal policy was that no tax would be higher than those in NSW, so land tax should have a threshold, like in NSW. Mr Jansen said the association intended to hold a rally on February 15, which is the rates instalment due date.

1995_02_february_hccount

This view expressed by one of my colleagues the other day ignored Tom Stoppard’s pearl of wisdom: “”Democracy does not lie in the voting, but in the counting.” I explained to him that the seven-crosses system was used for the Senate before World War II with ridiculous results. Inevitably, one party got all the seats. Say you have 100,000 voters and 55 per cent vote Liberal. They all put seven crosses by seven Liberal candidates. The remaining 45,000 vote Labor and they all put seven crosses by seven Labor candidates. The result is that each Liberal candidate has 55,000 crosses and each Labor candidate has 45,000 votes. Seven Liberals are elected and no Labor. Whereas, electoral justice in those circumstances would demand say 4 Liberal and 3 Labor. “”Point taken,” said my colleague. “”So how do all these quotas and preferences work?” A simple system does not mean a fair system. Similarly a system that is difficult to understand is not necessarily unfair or should be done away with.

The Hare-Clark system is complex and fair _ if you define fair as providing seats in reasonable proportion to votes and at the same time giving some geographical representation. The ACT has been divided into three electorates: Ginninderra, based on Belconnen, with five seats; Brindabella, based on Tuggeranong, also with five seats and Molonglo, based in the centre, with seven seats. In the five-seat electorates a candidate needs one sixth of the vote plus one to get elected.
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1995_02_february_hareclar

The faction-ridden Labor Party will have to seriously re-think its pre-selection methods and how-to-vote ticket following last Saturday’s election. The irony in the position of the left’s David Lamont illustrates the point. Before the election, Labor pre-selected a ticket and issued a how-to-vote card in an attempt to overcome the Robson rotation of candidates’ names on the ballot paper. Conversely, the Liberals did not recommend an order of names. The result was that the first-preference Liberal vote was spread among its candidates more evenly (especially in Brindabella and Ginninderra, where there was no Carnell factor).

The Labor first preference, on the other hand, was much more concentrated beside the name of the person on the top of Labor’s how-to-vote card _ except in Brindabella where the two sitting members attracted a high personal vote. The lack of spread in Labor means that some minor-party and independent candidates have more first preferences than Labor’s second and third candidates. It means that as the count progresses on Saturday Labor’s second and third candidates are more likely to be eliminated than minor and independent candidates _ because elimination is determined according to a candidate’s individual first preference vote, not the party vote as a whole. In Molonglo Lamont (on 1158) is behind the first-preference count of both the leading Green (3,942) and Moore Independent (4442) and is about equal with the Democrats (1103). He may get some trickle down of Follett’s over-quota, but not enough to over-take Moore.
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1995_02_february_fronter

Tomorrow Canberrans will vote in the third election since self-government in 1989. Canberrans will vote for 17 Members of the Legislative Assembly. The Assembly has wide powers to make laws for the Act and to administer those laws. It has both state and local-government functions and therefore can affect people’s lives more profoundly than a state parliament or a local council. It is important, therefore, that Canberrans and others who live in the ACT cast their vote in an informed way. To that end The Canberra Times is publishing this eight-page guide to the election. It contains both the essentials and a more detailed looked at the election.

There is a guide to the Hare-Clark system, the for and against case for the referendum on the electoral system, a look at the policies of the major parties and leading minors and independents by Canberra Times journalists who have followed the issues over the campaign. There is also a potted form guide of the candidates and a history of self-government. At present the Assembly comprises eight Labor, six Liberal, two Moore Independents and one Abolish Self-Government MLA.
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