Crispin Hull

They assumed that in a Labor town they would get a greater percentage of the vote than the Liberals and therefore get more seats. The therefore would retain government, even if in minority.

Labor might still retain government, but only after being put on the rack by the Greens and having to make concessions to them for the next three years. The seeds of the voter revolt against Labor were sown over three years _ failure to deal with the health issue. Everyone in town had a horror story or a relative’s horror story about the health system. It may not be very much worse in other states, but it was seen as bad management in the ACT, and compounded by the fact that Labor is supposed to be good at health. Indeed, it was one of the factors that saved Paul Keating. Unfortunately for Labor, health was one of the strong points of the Liberals leader Kate Carnell. She appeared to have got the message that it is a question of management. Roughly translated that meant Labor was unwilling to take on health administration and cut it down to size.
Continue reading “1995_02_february_comm19”

Last week the High Court said a mere tribunal cannot determine breaches of human rights and equal opportunity and order people to pay damages. You must have a court with independent judges do that. The ruling is likely to affect two trends. One is the search for alternative methods of resolving disputes. The other is the trend to get compliant tribunals (whose members rely on political patronage to get reappointment) to pursue political aims of the federal government. The latter trend was partially nipped in the bud decades ago when the High Court said you cannot have a tribunal mucking about with the rights of employers and employees (on pain of fines or jail) and enforcing compulsory unionism from the backdoor. But the bud grew back with the establishment in the past decade of human-rights which were granted sharper and sharper dentures. The one at stake was the power of the Human Rights and Equal Opportunities Commission to determine whether people have breached human rights and equal opportunity law and then requiring them to pay damages, reinstate people or publish apologies. The court said the Constitution required that “”judicial power” can only be exercised by a court, and the key element of a court is that it is headed by an independent judge or judges who can only be removed on proven misbehaviour or incapacity. “”Judicial power” is hard to define. But it usually involves a body determining the rights and duties of citizens according to law and having the power to enforce the ruling. Ordering fines, jail and damages typify judicial power. Declaring rights and duties of individuals is another element. To the extent the High Court has cut the power of Mickey Mouse tribunals at the knees, I say good. Rights, duties, liberty and damages should be determined by independent judges _ judges who can (and have) turned their fingers up at the Executive that appointed them. However, there is an important corollary. The High Court has in effect reasserted the monopoly of the courts in exercising judicial power. Courts, and only courts, can determine and enforce significant rights, duties, damages and penalties. Fine in theory. In practice, however, the courts have not done a very good job. Why else is everyone scurrying around looking for alternatives to dispute resolution? You don’t actively search for alternatives unless the original is defective beyond repair. You catch a bus if the car breaks down _ the ride may be rougher and you might have to slum it with the plebes, but you get there and its cheaper. Now the High Court has put the kibosh on a lot of alternative dispute resolution _ no more “”come into my user-friendly, cheap, lawyer-free tribunal and we’ll deal with X, Y or Z very smartly” _ these cases will have to be decided by courts. And I am afraid to say, Your Honours, there is not a lot of faith in the ability of courts out there to do the job. They see shonks with armies of lawyers engage in tactical (nay, strategic) delay. They see coppers so badly jaundiced by people getting off on evidence-law technicalities that they start framing people. Indeed, they wonder at the common-law twaddle that says in our system of justice it is better that 10 guilty men go free than one innocent one get convicted. More likely the 10 go free (ital) and (end ital) the innocent one gets convicted. In civil law, other than running-down cases with insurance, they see the costs so high that it is hardly worth pursuing rights. But, of course, all of that is hearsay and can safely be ignored. The poisons of justice _ cost and delay _ are not new. Numerous inquiries have recommended antidotes without success. This is because they refuse to challenge the two most assiduous suppressants of truth and justice in our system _ the arcane rules of evidence and adversary system. These are not the guarantors of freedom and justice we have been led to believe (to the contrary). Rather judicial independence is. And now that that has been properly asserted by the High Court, incidentally cutting off non-judicial alternatives, it is necessary to reform the groundrules by which those independent judicial officers exercise their power lest the legal system falls into even greater disrespect.

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.
Continue reading “1995_02_february_column21jan”

The markets did not plummet last week. There was no flight of foreign capital. The long-term bond rate did not go through the roof. There was no sudden sell-off of government bonds. This rather surprised me, because I thought all those things would have been inevitable after the Opposition leaked the details of proposals for budget cuts to the public at large. For so long we have been told that deliberations of the Treasury and Department of Finance (and indeed all departments) must be kept secret in the national interest.

We have been told that budgetary deliberations must be kept secret until Budget day because the markets could toy with the information to the national detriment. Well, last week’s leaks should have put paid to that nonsense. The floor did not fall in. Besides, the markets toy with us anyway _ Budget leaks or not. Rather than the Opposition leaking this information, surely the Government should be publishing it as a routine part of the Budget process. Who paid the bureaucrats to piece the material together? Whose information is it, anyway? It’s the public’s.
Continue reading “1995_02_february_column14feb”

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. (small italic type.)
Internet address: 100017.412@compuserve.com

The rest of Australia thinks too much money is spent on Canberra and that it should be livened up, according to research commissioned by the National Capital Planning Authority. “”On Saturday, Sunday, it was dead; it was like a morgue,” female, Perth, white collar, 20-34. Canberrans were seen as snobs. “”The people are very uppity and hard. Not friendly. Very status conscious,” Mudgee white collar males 30-55. And they have it easy. “”They have got security of employment.” “”They speak better English there. It’s the wealthiest city in Australia,” Darwin white collar. There was also concern about the disparity between Canberra and elsewhere. “”I felt I was entering another country to be honest. . . .I was quite shocked to see everything bigger and better than most places I’ve been to in Australia.” Female 35-55. Townsville. The research was done in all state capitals and Darwin and in a country town (Mudgee), a regional centre (Townsville) and a remote town (Port Hedland). It was done with detailed questioning and seeking of opinions from small focus groups rather than opinion-poll style research. Details of the research were published yesterday by the Deputy Prime Minister, Brian Howe, at the National Press Club. The research showed that people want open spaces and the bush capital preserved. “”Canberra’s really a beautiful city, but nothing’s ever said about it except politics.” Female, 35-55, Adelaide They see the livening up taking place by activities more than development. “”Events would help to build a national pride in Canberra. You think of the Melbourne Cup _ the whole of Australia stops to listen to it . . . . Canberra needs something like that.” Female 20-24. Adelaide. The research revealed a widespread ignorance about Canberra and that young people did not give it high priority as a place to visit for a holiday. “”I think of the Gold Coast as a holiday. Canberra is never a holiday. It’s only for tourists to visit memories of all the wars.” Female 20-30 Sydney. On the other hand there was this: “”It has great museums and galleries and bush and parkland nearby.” There was a consensus that Canberra was a worthy capital for a young nation, but it needed time to evolve naturally. Parliament House was seen as a worthy departure from the “”she’ll be right mentality”. People thought buildings in Canberra should be constructed for the long term _ 100 to 200 years. Then they did not mind bearing the cost. Mr Howe said, “”The results of the NCPA research suggests that people do see Canberra as a symbol, but not necessarily of our Civic institutions. They are more likely to say that the national capital symbolises our love of the bush and our capacity for excellence.” The details report on the research showed that as Australia was a place of wide open spaces, there was nothing wrong in the capital reflecting it. “”Australia is a land of vast open spaces, so let’s scrub high-rises, too.” Male. 20-34 Darwin. “”It’s better to leave it wide open and accessible to people. They should retain the green space.” People, Darwin 35-55. Respondents were against development for development’s sake. “”I don’t think they should build anything unless there’s an absolute necessity for it,” Brisbane, female, 20-34, white collar. People were against a railway bridge across the wetlands or other development that would detract from the environment. None the less they liked the idea of shops and other commercial development along Constitution Avenue and a few more eateries in the Triangle (but they were opposed to a major take-away food outlet in the Triangle). Despite the widespread ignorance of Canberra as a planned city, the Griffins, the Triangle as a symbol and other aspects of Canberra, when told about it, people were interested and concerned that planning standards and excellence be maintained. In particular they were keen on the Triangle being completed. The research report said, “”There was a strong belief that the National Capital does and should reflect the best our country can do.” Canberra showed itself to be a city that endears itself to its visitors. Those that had been here were much more enthusiastic about it and saw it less as a just place of politicians than as a national focal point. On the other hand, many of those who had visited complained of it being difficult to navigate in because of the circles. “”Plenty of roundabouts there. You get lost and lose your sense of direction.” Female Townsville, 35-55. Canberra needed to be promoted. “”We should make much more effort to identify it as Australia’s capital. We need to think beyond the states as one nation” People, Adelaide, 60-75. Canberra was seen by some as created by Anglo-Saxons for Anglo-Saxons. “”It seems an Anglo-Saxon set-up. There’s no Aboriginal influence.” Female Townsville. 20-24. The research revealed wide ranging opinions on costs. While some thought it good Canberra was setting standards for the nation, others thought the money could be better spent on schools and hospitals in their neighbourhoods. Mr Howe said the research showed that people thought a republic was a foregone conclusion. As there were more national approaches on laws and standards he thought that Canberra’s role would naturally blossom. He tended to agree with some of the research conclusions about livening Canberra up. He said his family would be more keen on coming here if it had lively streets like some in his home suburb in Melbourne.

There is no middle course for the ACT now. The ACT is poised for significant change one way or the other. The most likely result is Liberals 7, Labor 6, Green 2, Moore 1, Osborne 1. Labor can only retain Government in an alliance with the Greens. The Greens have said they will extract concessions from Labor before it will support Rosemary Follett as Chief Minister. On the other hand, the Liberals may take government with the support of Paul Osborne and Michael Moore. Either way, the course that the Follett Government was taking Canberra is to change. What is in store. If the Liberals take Government, they will have to rely on the support of Michael Moore which will mean some concessions on their planning policy. Under a Liberal Government, excluding any concessions to Michael Moore, the ACT can expect the following changes. Casemix funding in health, which will mean an efficiency drive at Woden Valley Hospital bringing down overspending in administration and overheads and to a lesser extent doctors and nurses. The Liberals want to spending $30 million less a year in health by the third year, through efficiencies and have 50 more beds in the first year and 1000 more beds by 2000, though greater private-sector involvement. ACTION will face competition through privatisation with $27 million a year lower spending. There will be a boost for business. Payroll tax will be cut 14 per cent (one percentage point to 6 per cent). The 3 cents a litre tax on petrol will be abolished. The Gungahlin Town Centre will be begun by the end of the year. The leasehold system will remain only in name. The Liberals have promised automatic renewal of both residential and commercial leases. Labor said commercial lessees would pay 10 per cent unimproved value to renew. Also business will benefit from lower betterment charges: 50 per cent maximum for commercial, dual occupancy and medium density. Michael Moore could be expected to resist the latter. On education, the Liberals said they would bring in free school buses and real spending steady. On the other hand a Labor Government with Green support would be very different. One senior Labor Minister said before the election, “”You can deal with the Greens provided you don’t have any extractive industries _ and in the ACT we don’t have them.” However, the Greens have a full social and political agenda. Their policies were not limited to the environment. It is likely to be a question of the Greens and Labor negotiating and the Greens getting what they can. Some that Labor could live with include their policies include increasing petrol tax and changing the form of the city through higher density living along public-transport routes and support for the light rail.

The Minister for the Environment, Bill Wood, has been forced to withdraw a request for departmental help in dealing with an election matter because of the caretaker convention. Mr Wood had sought “”factual information” to help respond to an environmental log of claims sent by the Canberra Conservation Council to the Labor Party and other parties and candidates. A departmental spokesperson said the department had prepared policy material for an incoming government in accordance with caretaker conventions, but this was not for use till after the election. The Minister had separately requested factual information in connection with the log of claims, not analysis or judgments “”and this request has now been withdrawn”. Details of the log were published last week. It contained about 100 points of conservation, planning and other policy. The president of council, Jacqui Rees, said the log of claims was a political document issued in the context of the campaign. The Minister should not have asked his department to help answer it. “”It was unambiguously for parties and candidates,” she said. “”It was not a request for specific information that required departmental input. It is an example of Mr Wood not comprehending his ministerial responsibilities. Senior bureaucrats should have immediately refused to handle it. But it was only when more junior bureaucrats contacted us that the impropriety of the request acknowledged.” Mr Wood said, “”It is an excessively fine point, but to ensure protocol is absolutely observed I have withdrawn the request.” He had only sought facts. He said he still had a request to answer media inquiries and still had a big in-tray. These would require departmental help to work out the facts of any case. Ms Rees said there was no problem with individual matters being dealt with; but the log was a general policy and political document in the context of an election campaign.

The parliamentary press gallery, political scientists and the think-tank fish love a good by-election. Remember the 1975 Bass by-election when Labor Deputy Prime Minister Lance Barnard resigned to take a plum diplomatic job? The 17 per cent swing was a portent of the heavy defeat of the Whitlam Government a year later.

Forget the 1982 Flinders by-election on the death of Phil Lynch which was supposed to be the portent of the end Labor’s reign a decade later. The Howard-led Liberals won the by-election and lost the main game. Remember the how the tea leaves were arranged around the cup in the 1988 Adelaide by-election when Labor’s Chris Hurford left for greener pastures. Some of the tea leaves swung up the right-hand side of the cup indicating a natural swing to the right when a leftist government was in power. And there was a spray of leaves around the top indicating voters were about to spit the dummy over timed local calls. And what’s this? A hard dollop of leaves at the bottom of the cup surrounded by some yellow fluid, indicating voters were crapped off with Hurford leaving for a plum job. Still, Labor won the main game. And so to Canberra. The seat of Canberra that is, not the town. (And, incidentally, what confusion will this cause among the readers of metonymic headlines in the nation used to a diet of “”Canberra slashes pensions” and “”Canberra does XYZ”. “”Canberra by-election”? Does that mean Federal Government by-election?) On March 25, craftily subsumed by the NSW state election, the people of the seat of Canberra will vote in a by-election caused by the resignation of the deeply-committed-to-Tuggeranong Ros Kelly, who has gone to live in Sydney. The election will be in a seat that has more voters than any seat in the history of federation. Still, it will be less than 1 per cent of the Australian electorate. And it will a far less-reliable guide to the state of federal politics than a good opinion poll. The reason is that a different question is being asked. At the by-election voters are being asked: “”Would you like to give a free, swift kick in the pants to the Keating Government without having to even think about whether the government will change?”
Continue reading “1995_02_february_byelect”