Crispin Hull

A Rosemary Follett-led Labor-Green “”allegiance” government is not out of the question for the ACT, as scrutineers suggested yesterday that Paul Osborne is not getting a significant flow of preferences. Mr Osborne has said he would support as Chief Minister the leader of the party with the most votes, which would be Kate Carnell. First preference counting was virtually finished yesterday, with only some postals, declaration and pre-polling votes to go.

The small amount of counting yesterday did not change the overall position on first preferences. However, the Electoral Commission did a lot of rechecking of votes. The odds are still in favour of Liberals 7, Labor 6, Greens 2, Moore 1 and Osborne 1. However, if the fifth Brindabella seat goes to the Greens instead of Mr Osborne it would give a Labor-Green “”allegiance” a majority of nine to eight in the Assembly. If Mr Osborne gets it, Michael Moore would hold the balance. Informed sources suggest he would favour Mrs Carnell as Chief Minister, not wanting to be seen as allowing the Labor Party to continue in Government after the voters had rejected it. But he is on record as saying it would depend on the personal make up of both the parliamentary party and the potential ministry of each party. Everything will depend on preferences, distribution of which is expected to begin on Saturday. In Brindabella, it is still a tall order for the Greens to beat Mr Osborne.
Continue reading “1995_02_february_count23”

Michelle/Jack: I think we should run a correction on this. We had earlier quoted Bill Wood as “”a senior Labor source” saying the party was silly choosing between Vitab Sue and Whiteboard Sally for the Canberra by-election (Bachelard story). The story also said Standen was a former Kelly staffer. Standen unfortunately let that pass uncorrected. Alas I reasonably, but wrongly, concluded that she was in Kelly’s office at the time.

Sally Standen worked for Ros Kelly from December 1988 and March 1992 and had no part in the Sports Rorts Affair as suggested in an article in News Review yesterday (saty).

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.