Two of the undercurrents lurking in the Fingelton saga are the increasing politicisation of court appointments and the increasing willingness of judicial officers to go public.
We published a piece yesterday by Senator Joe Ludwig, who was is Federal ALP Justice Spokesman, suggesting alternative, transparent approaches to the essentially political ones we use now for appointing judges to the High Court. The same arguments apply to state courts.
There is no doubt that the process has become increasingly politicised. In early 1982 the Queensland Liberal Party seriously considered leaving the Coalition because of political interference in the appointment of a judge. Premier Joh found out that the preferred candidate – Mr Justice James Douglas – had voted Labor at one time. He allegedly got the information from Don (Shady) Lane, a Liberal Minister, who had somehow seen the ballot paper when the candidate had used a postal vote. He was vetoed.
When I was asked for my advice back then I said that the public didn’t care one way or the other and you couldn’t win an election on it. That would still be my advice today. That doesn’t mean that it didn’t, and doesn’t, matter.
When Matt Foley was state Attorney-General there was a slew of appointments made on what were widely regarded as political and gender grounds. Di Fingelton is one, but there were others. This has led to critism and defence of her from both sides based on political allegiances and friendships rather than the facts. The result of this comment and argument is the undermining of confidence in the judicial system.
It is also undoubtedly partly to blame for John Jerrard, an Appeals Court Judge, publicly attacking the Chief Justice of the Supreme Court, Paul de Jersey, his superior. Jerrard did this in an op-ed published in the Courier Mail where he confesses to being a friend of Fingelton. This conflict of interest should have been enough for a judge to abstain from the argument, not join it. And his op-ed has done nothing to further the prestige of the judicial process.
However Jerrard may not have joined the argument if de Jersey hadn’t been on the airwaves and in the papers defending his colleagues against criticism. This is in itself unusual judicial behaviour, possibly reflecting the increasing tendency for judges to accept a public profile (see the case of Justice Michael Kirby), or the fact that in the past the Attorney-General would have been defending the court himself. Again, this has the tendency to bring the judiciary into disrepute, no matter who accurate and well-intentioned the comments.
I don’t necessarily agree with Ludwig’s solutions, but there is need for a better system of selection than we have at the moment. Not only that, but there is a need, particularly at the lower court levels, for a system of reviewing the performance of judicial officers. On a day when Australians are protesting against changes to “unfair dismissal” laws there is one class of Australian employee that is virtually immune from dismissal of any sort, and that is judges.
There are good reasons why they should be virtually impossible to sack, but with the current haphazard system of appointment, and the proliferation of judicial officers, there are many who are making more serious errors of law, and with more far-reaching consequences, than the one that sent Di Fingelton to jail. How just is that?
June 30, 2005 | Graham
Judicial officers lose their majesty
June 29, 2005 | Graham
Fisycian heal thyself
In all the Wagnerian sound and fury as Di Fingleton swoops on the Queensland legal and political establishment blaming everyone but herself for her conviction and incarceration I have yet to hear anyone ask one of the more basic questions. If the High Court’s intepretation of the relevant section in the Magistrate’s Act is so obvious, how is it that the Chief Magistrate herself never raised it as a defence?
And if all the rest of the judiciary is incompetent for not seeing it, how competent is she? And how could she even think about suing her legal team for not seeing this defence, when as a qualified legal practitioner and the person charged with administering the act, she appears not to have thought about it herself?
And if she regards all these other people as being incompetent for a fault she shares with them, how could she possibly expect the government to reinstate her to her former position?
After the High Court judgement Fingleton started with a well of public sympathy. She appears to me to be emptying it at a prodigious rate. I would have thought that it might have crossed her mind to wonder whether she had ever on the bench made a “wrong” decision that had unjustly sent someone to jail and that she might therefore show some humility. If it can happen to the Chief Magistrate, who is there it can’t happen to?
Instead she has been publicly demonstrating her capacity to be an insensitive bully – the character defect that led directly to her charge in the first place. The fact still stands that if I or anyone else had done what she did, we would have gone to jail, and deservedly so. The High Court has merely found a loophole which allows an exemption to Magistrates. Why this ought to be so is unclear, and if the government had not changed the act so as to take the disciplinary powers over other magistrates away from the Chief Magistrate, they would have had to seriously consider changing the act to ensure that Chief Magistrates aren’t “above the law”.
June 23, 2005 | Graham
A climate model worth studying
Those who paid attention to The Hitchhiker’s Guide to the Galaxy will know not just that 42 is the answer to the meaning of life the universe and everything, but that the earth is actually a giant super-computer whose purpose is to determine that very answer.
Readers of this blog will know that I’m generally scathing of so-called climate modelling. Not because I don’t believe that there isn’t a real greenhouse effect, but because I don’t believe that the models are capable of really simulating climate change. What’s more I also suspect that there is a large element of “garbage in, garbage out” going on.
But there is one climate model that I think is worth studying – the history of climate as preserved in the earth itself is far more likely to include more of the variables and the inter-relationships than anything man can construct. Of course it won’t be a completely accurate predictor, because circumstances never exactly repeat themselves, but better than anything else available to us.
So, I was interested to receive a press release from The Australian Academy of Sciences advertising a two-day conference on the 27th and 28th June which aims “to highlight ways in which to improve the understanding and prediction of future climate change and variability in the Australasian region,” by examining “Records of climate from past millennia [which] have been extracted from laminated sediments in lakes and oceans, ice cores from glaciers and ice caps, skeletons of tropical coral reefs, tree rings and bore holes in the ground.”
The press release says “These records reveal important information about how Australasia’s climate changed before historical records began 200 years ago.” It also says that “rapid changes have taken place, even within the last two hundred years,” which I assume includes the period before heavy carbon emissions.
Media are invited, so if you can squeeze into that definition, you might like to check out their website for further details at http://www.uow.edu.au/conferences/canberra. Get there before the climate Vogons do.
June 22, 2005 | Graham
Expert predicts this could be another “mega” moment for Flannery
A few posts ago I threatened to start a database which would check on experts’ predictions after the event to see how many of them are correct. Now I’d like to make a nomination, even though I don’t yet have a database going – Tim Flannery.
Tim’s famous for a number of predictions, one of which is that because of climate change people will have to evacuate Perth as it will run out of water. Another is that aborigines were responsible for exterminating Australia’s mega-fauna.
The second is an interesting sort of prediction, because it’s speculation about what happened in the past in an environment where we didn’t have proof one way or the other. Well, we do know, and an archeological hole dug up on the Darling Downs has shown that the mega-fauna went extinct all on their own, or at least without the help of homo sapiens.
We’ll have to wait a while for his Perth prediction, but he recently made some statements about climate change which are already looking a little rocky.
Working a familiar territory he was predicting that “if” the current drought held up Sydney’s dams would be empty within 2 years. The qualifier means he’ll never be convicted for being wrong on that one. But he claimed that weather patterns had changed because of a number of global warming-induced effects.
The specific one that caught my eye was the claim that the tropics have expanded and driven the rainfall further south. It’s not the first time I’ve heard this one, and it does have some resonance with me as I think I’ve noticed a change in the summer wind patterns in Brisbane. We’ve had some stinking hot summer days, and they’ve all been the result of westerly winds. This isn’t the way it used to be, so something has definitely changed. But is it the tropics expanding?
If that were true I would have thought that the monsoons would have come further south and Brisbane might be hotter, but it would also be wetter. That doesn’t appear to have happened.
Now there’s an alternative position to Tim’s, which if you’ve got keen eyes, you will spot at the end of an article in today’s Higher Ed supplement in The Australian primarily about Hilary Charlesworth. University of NSW climatologist Matthew England has won a Federation Fellowship which would allow him to “concentrate in Australia on his work on reading the southern oceans and the influence they have on Australia’s climate.”
Professor England has been studying “a jet stream which skirts the southern Australian coast [which] has been active further south than normal in recent years, blocking rain-bearing depressions.” So it might not be global warming related at all. Could this be another “mega” moment for Professor Flannery?
June 21, 2005 | Graham
Convert don’t forgive international debt
The British push seems to have tipped the balance in favour of debt forgiveness for poor countries, with an agreement by the G8 to write off US $40 billion in debt. Is this really what is needed? To me it seems like “go away” money.
“Go away” in the sense that it will allow the western lenders to salve their consciences and walk away with putatively clean hands. And “go away” in the sense that it allows the third world debtors to get the lender off their back. But the opposite is what is really required if third world poverty is to be alleviated.
The Third World has problems of poverty largely because it has no relation with the First. No relation means no investment, no importation of know-how, no exportation of products and no growth. A lack of these factors leads too often to poor or corrupt government, sending governments deeper into the spiral.
A better solution to debt foregiveness would be debt conversion – a giant debt for assets swap which would see improvident lenders forced to try to recoup losses by making investments work. One of the problems of debt financing is that the financier is all too-often interested only in repayment, not the long-term viability of the activity his funding goes to support. Your loan funds can be diverted by a venal government from their alleged productive purpose into building a Taj Mahal, or arming the military against a non-existent enemy, but you don’t care too much if you still believe the money will be repaid. Not only is it a lot harder for the government to do the same with the business or piece of infrastructure that you own, but it will take the form of tax or confiscation, and you will definitely care about that.
If foreign financiers were in for the long-haul, and their returns relied much more on good governance, then there would be in-built incentives to good government which would mitigate against poverty.
Of course, this isn’t as easy as it might sound – many of the loans are owed to quasi non-governmental organisations like the World Bank, and on the basis of this part of their loan portfolio, I wouldn’t let them run the bath, let alone an asset. So there would need to be a transfer of liabilities to other parties, and probably some element of restructuring, which generally means foregiveness. But if the overall movement was in the direction of equity rather than debt, that would be a better thing than just walking away.
June 20, 2005 | Graham
Northern Territory election result – confirmation bias
I’m not about to undertake any deep analysis of the Northern Territory result because I haven’t done any research on what NT voters thought and so would just be retailing chattering class gossip and my own prejudices. But that doesn’t stop me wondering?
The result does seem to confirm that second election wins are frequently easier than first election wins. It’s not a universal law – Bob Hawke almost came to grief in 1984 and Howard in 1998 – but Beattie and Gallop come to mind as examples. And I suspect Bracks and Carr also confirm it, but I haven’t had time to go and check the results (unless some kind reader wants to do it for me!!!). In the federal exceptions to the rule Hawke called an early election, made it too long, and lost the plot half-way through, while Howard had his GST the second time round. So there were reasons for the elections to be close. Fraser, by contrast, did just as well in 1977 as in 1975.
In its turn the “second election” thesis tends to confirm my perception that in a non-ideological age voters are happy to consume whatever policies are dished-up by the party in power, so long as they don’t upset the balance of their domestic lives.
It also seems to confirm our research that the electoral reflex no longer twitches favourably (if it ever did) when hit with a big, expansive and visionary project. Denis Burke promised a power grid, Colin Barnett a canal, John Brogden another tunnel, but none of these seems to have paid off. Campbell Newman did promise five tunnels, but the issue he really won on was fixing the small things, like pot-holes, and looking hungrier than his opponent.
Again, looking from afar, there also seemed to be an element of denial on the Country Liberal side, as though the previous election result was an abberration and they believed that things would revert to the natural order. As no polling appeared to predict the extent of the swing (12% to the government apparently), there may well have been an expectations effect where voters decided that if the election was too close the CLP would fail to learn their election, or worse, might get back into power. This effect can magnify a pre-existing tendency to vote in one direction or the other, and is generally more pronounced in safe seats rather than marginals. Burke had the safest seat, and the biggest swing, tending to confirm that the effect could have been at work.
Burke’s original election loss was probably caused by his decision to line-up with One Nation, which undoubtedly alienated many voters in multi-cultural Darwin. If that was the case there would be many who would think that four years in the wilderness was not enough punishment.
Leadership instability in the CLP must also have played its part.
So, what does this mean for John Howard? Many happy returns I suspect. As long as he keeps voters happy they are likely to not want to take the risk of voting for Labor. Howard’s decision to vary his mandatory detention policy is evidence that he is listening carefully to public opinion, which appears to have shifted – check out the results of our poll run by Rights Australia. He’s working hard to keep voters happy.
For Costello it’s not a good result, because it suggests that at the current moment any party that loses power is likely to lose it for quite some time, and that changing leaders can be costly.
June 16, 2005 | Graham
Parkinson’s Laws – Recommendation 23
The inquiry into the Child Support Scheme headed by Professor Parkinson has some intriguing recommendations in its report, and I will be devoting a series of blog posts to them, starting with the most intriguing. And the most intriguing recommendation, one with potentially far-reaching and good consequences,I have read is Recommendation 23:
The Government should consider the introduction of an external mechanism for reviewing all administrative decisions of the Child Support Agency, either by establishing a new Tribunal or by conferring jurisdiction on an existing Tribunal.
The Child Support Agency is out of control. It is ineffective at collecting arrears, incapable of consistently and accurately calculating payments under the existing formula, and keen to usurp the intent of the legislation whenever it gets the chance. No doubt there are some conscientious officers, but there is a pack mentality where the department as a whole often does its job without real regard for the legislation under which it operates.
Other agencies could operate in this way, but most tend not to. One reason is that many agencies and their decisions can be reviewed by the Administrative Appeals Tribunal. If you have a dispute with the Australian Tax Department, then you have the AAT as a fall-back before you get to court, and the department will be forced to defend its position.
If you have a dispute with the Child Support Agency, there is no equivalent of the AAT. Instead you will find yourself in court with the other party being the other parent rather than the agency which has created the problem in the first place. I have seen correspondence where CSA officers have said that it doesn’t matter if their decision is wrong, because you can always go to the courts. They can afford to take this careless and cavalier attitude because there is absolutely no cost to the CSA when they are wrong – that cost is borne entirely by not just the wronged party, but the innocent one as well, and the tax payer, who pays for the judges and court officers who are co-opted to correct the agencies negligence.
At least a properly constituted agency of review would force the CSA to bear some of the cost of its questionable calls. It could be a step in the right direction. Another step would be to strip the CSA of most of its role and handle it to others better equipped to do the job. I’ll explore that idea in another post.
June 14, 2005 | Graham
Wacko, I was right about Jackson: Time for some more predictions
In this blog post I predicted that Michael Jackson should get off. That was two months ago. Now I’m waiting for the stories probing the litigation industry, asking how the matter could have got to court, and putting the media coverage on trial. I hope they come, but I’m not willing to predict that they will.
Predict early and predict often is good advice to would-be pundits because on the law of averages you must get one right sometime. I take a perverse pride in predicting early because I reckon a prediction made at the last moment when things are fairly obvious is hardly worth making. So I take a deep breath about mid-way through each election campaign and have a stab at it. We’ve been right so far (although my mid-term predictions haven’t been as good – I expected Labor to do better in 2001).
What would be interesting would be to rate pundits after the event on the accuracy of their predictions. My cynical advice to pundits relies on the probability that no-one will bother to check-up on your record so you can trumpet your successes whilst quietly archiving (away from your website) your mistakes. Here’s another prediction. Many of the people that the media rely on as “experts” would look pretty ordinary if we checked what they said in the past with what actually happened.
I’ve noted an interesting trend lately. Many Jonahs transform predictions of what will happen in the future (which are frequently no more than opportunistically chosen straight-line projections from fluctuating or cyclical data)into actual statements of fact to “prove” that we are all ruined in the present. I could pick on Greenhouse advocates, but I won’t. People in my own real estate industry do it to both spruik the potential for capital growth, and simultaneously panic the government into trying to lower the price of housing because of a decrease in affordability.
Now I believe in greenhouse and capital growth, and I’m concerned about affordability, but it’s about time some of the experts were brought to book, or at least exposed through a media outlet! But I won’t predict that either.
But maybe some regular readers could contribute their own examples. Or we could build a pundit database and then check them out over time, providing them with a rating. Anyone want to volunteer to do the coding?
June 13, 2005 | Graham
Rethinking National Parks in the light of Terra Nullius
There is a myth around that declaring something a National Park represents a return to a former pristine state, and that this can be done by merely leaving the property alone. This idea is in many cases just another expression of the idea of Terra Nullius.
A recent example is contained in this report by Nance Haxton on ABC Radio’s Saturday AM. It is about the declaration of the Cooingie Lakes National Park, a former pastoral lease incorporating that part of Cooper’s Creek where Burke and Wills died.
Since shortly after Burke and Wills’ time the area has been managed as a pastoral property. Before that it was home to hundreds of aborigines for thousands of years.
Haxton says, “So really this area has almost come full circle from its untouched state before Burke and Wills through pastoralism and the management of the pastoralists, through that next century, and now back, hopefully, to the untouched state it was.”
Untouched? Only if you accept that the aborigines didn’t manage the land using fire-stick farming and harvesting plants and animals. While not all land in Australia was managed by Aborigines – presumably jungles and rainforest were harvested but not substantially modified – large tracts of it were.
So, without traditional aboriginal management techniques, this land will not return to its state prior to its pastoral history. But nor will it return to something prior to Aboriginal occupation. Aboriginal farming techniques will have changed the mix of flora and fauna to such an extent that it is unlikely to spontaneously regenerate into the form it held before just because it has been left alone.
So declaration of the area as National Park will not represent a return to anything, but merely a change to another form of less active management (perhaps better described as benign neglect) than either that of the aborigines or the pastoralists.
Which makes me wonder whether the declaration of this park proceeds from clear objectives, or is just a reaction to romantic sentimentality. What is the park meant to protect? Is it the flora and fauna that currently exists there? If so, given that it has existed there in company with the pastoral industry, why the requirement for change of land use? And mightn’t that change in land use actually be detrimental to the species that currently live in the habitat?
It’s about time we rethought the concept of National Park.
June 11, 2005 | Graham
Labor is killing Queensland
It isn’t true, it’s not smart politics, it’s authorised by the Queensland Nationals and it is on a billboard just metres away from where Campbell Newman started his billboard campaign to rid Brisbane of gridlock.
I know people from National Party Headquarters read these posts, so here is my free advice – get that billboard down as fast as you can, because it won’t do your next campaign for government any good. Newman may have won the Lord Mayoralty of Brisbane, but it wasn’t on the strength of his billboards.
I don’t care if some rich benefactor has donated the space, or if you think that all publicity is good publicity, neither is a sufficient reason for pushing a message that will alienate voters more from you than the Bundaberg Hospital fiasco will alienate voters from Peter Beattie.
Our research says that Queenslanders are looking for a decent opposition, not a new government. They are content with Peter Beattie, and they don’t think you’re even up to the role of opposition. Stridently accusing the government of killing will accentuate those perceptions. Sure, people don’t think the government has performed well over hospitals, and they’re probably convinced that fugitive surgeon Jayant Patel ought to be convicted of the criminal offences the commission has recommended he be charged for, but that doesn’t mean they regard the cabinet themselves as killers.
If you want to run a billboard campaign which might win you some seats and even be useful right up unto the next election you need to tag the government with something that voters might blame them for, and you need a lighter touch.
A proposition that voters might be prepared to accept is that Peter Beattie has to take more responsibility for events in the Sunshine State. What about a “Where’s Pete?” campaign. You could redo that billboard, but budget to change it frequently. Just put up the attrocities as they occur and pose the question. You might even be able to adapt a cheshire cat cartoon to show just how the premier fades in and out depending on whether it is a good or bad news day.
I’m just shooting the breeze here, so don’t take these positive suggestions too seriously without some market research. But in the meantime, send someone out with a squee-gee to get that sign down.