Her sources are “the papery remains of blighted affection,” the records of the 1000 or so cases involving alleged breaches of promises to marry that were brought before Australian courts between 1788 and 1976. These papery remains are brought to vivid life by her broader research — in archives, museum collections, newspapers, memoirs and genealogies — into the lives of the women and men who were at the centre of these cases. As she promises, she writes “a peopled history, one in which the reader gets an insight into the inner lives of women and men in the past, a feel for the textures, sounds and smells of the world which they inhabited.”

Courting is organised around eleven case studies, in the full sense of the term: eleven breach-of-promise cases divided into four time slots, each focused on a period of change. Her choice of cases is shaped by the themes she wishes to investigate: the use of marriage to civilise the convict colony, when law and love were entangled; the geography of mid-Victorian courting, when bourgeois scripts were not always followed; the social turmoil of turn-of-the-century Australia, most strikingly in terms of racial politics; and the commodification of love in a psychologised, therapeutic society, when law and love went their separate ways.

Along the way the reader meets some fascinating people. Outstanding for me was Sarah Cox, “young, feisty, and possessed of ‘killing beauties,’” a seamstress who in 1825 successfully sued a lover for breach of promise but was then disgraced by bearing an illegitimate daughter fathered by her lawyer. That she later married the lawyer and became Mrs William Charles Wentworth did nothing to restore her to Sydney society.

Though her daughter Timmie married well, Sarah was banned from any contact with her other than by letter. When William died in 1872 she wrote to Timmie: “The light of our dwelling has left us so desolate for he was the one that made our house so very cheerful.”

Then there was James Lucas/Jamesetjee Sorabjee, a South Indian merchant from Hong Kong who won his breach-of-promise case in Sydney in 1892. Simmonds’s research makes Lucas an understandable, sympathetic figure: he was a Parsi, and therefore “raised among people who delighted in going to court.”

In 1916 there was schoolteacher and “flighty flapper” Verona Rodriguez, who claimed £5000 for breach of promise, including £180 for her trousseau, and lost the case. Simmonds take us into the warehouse of the Powerhouse Museum to finger with her “the buttery softness” of silk nightdresses from trousseaux of the period so we can imagine the salacious scene in the courthouse when Miss Rodriguez’s nighties were produced as evidence. This is intimate history indeed.

Together with this close reading of the past, Simmonds offers some broad-reaching readings of historical change. She delights in challenging established truths — those established by historians and those assumed by experts and activists in the past and the present. Lawyers and psychologists, feminists and defenders of human rights — all will find their preconceptions under challenge in this ambitious volume.

Simmonds teaches law at the University of Technology, Sydney, and law students and professionals are one of her intended audiences. The backstory to her trail of breach-of-promise cases tells of an evolving legal practice and profession that became more abstracted over time from ordinary reality. In the earliest years “ordinary people” used the common law as “a set of ancient rights and inherited privileges” and “as successful stories became binding precedents, common people, as much as judges and legislators, made law.” By the end of the nineteenth century civil law was turning away from torts to contract law, privileging material evidence (like nightdresses) and bureaucratic logic. And today, says Simmonds, we live with a “divided legal system” in which the poor “are channelled into the criminal law while the wealthy have the comfort of the civil courts.”

Simmonds’s litigants are not wealthy, and mostly not very respectable, for “working-class people… were the people who went to court.” As a corrective to bourgeois scholarship, she draws on their voices to argue that the rules of nineteenth-century working-class courtship were different from those of middle-class courtship. Women in paid employment were never limited to the private sphere like their middle-class employers, and “they also had more sex.” Sex before marriage was perfectly acceptable so long as marriage followed. Simmonds writes with cheerful bias that the “countervailing working-class romantic culture… was delightfully resistant to respectable mores.”

But Simmonds’s corrective goes further. American and British histories of love mark the 1890s as the period of greatest change, the time when women moved into the public sphere and capitalism moved courtship out of the home. But “Australia tells a different story,” says Simmonds. Capitalist prosperity came early to Australia, and by 1880 Australian city environments were “based more on pleasure than prohibition,” offering cost-free romantic opportunities to lovers of all classes:

Far from being a classic tale of embourgeoisement — of the working classes becoming respectable — what we see by the 1880s is the middle classes gradually taking up more expansive working-class romantic geographies.

Perhaps this reading would apply to all industrialising, city-building societies at the time.

Simmonds’s reading of the decline and eventual abolition of the breach-of-promise action denies — or at least sharply modifies — the understandings of the feminists and equal rights advocates who consigned it to legal oblivion in 1976. Second-wave feminism’s focus on making women economically independent made them understand breach of promise as reactionary, forcing women “back into dependency on men and marriage.” Simmonds recognises that its abolition marked an advance in women’s status, but she is more concerned with what was lost.

Her revision is based on an understanding of common law as privileging a public language of “moral norms and economic responsibility.” Within this frame the action of breach of promise “produced feminist political subjects.” This seems a large claim, and it is based here on the evidence of a single case study.

But Simmonds’s structural analysis is compelling. Breach of promise required women to take a public stage, to stand in judgement of men, to take their own feelings seriously. The action “elevated private pain to a question of public justice,” and “put a price on the unremunerated feminine labours of love.” Its abolition marked the loss of “compensation for psychic and economic injury” and “the individualism of emotional harm.” It was not “the triumph of love over sexist tradition” but “the final chapter in a story of how love… lost many of its ethical and material foundations.”

This is a radical rewriting of legal and emotional history. It will be fascinating to see how historians currently researching these fields choose to engage with it. •

Courting: An Intimate History of Love and the Law
By Alecia Simmonds | La Trobe University Press/Black Inc. | $45 | 448 pages

The post Blighted affections appeared first on Inside Story.

I’ve always found this class fascinating for the intergenerational transfer of ideas it affords, and as a means of tracking changes in students’ approaches to sex and gender. When I began teaching it more than ten years ago, everybody thought that MacKinnon “denied women agency” and nobody identified as a radical feminist, or a feminist at all for that matter, except for the clever girl in Birkenstocks, cargo pants and a women’s collective T-shirt down the front.

By around 2017, after Beyoncé declared herself a feminist and #MeToo swept across the globe, all my students became feminists. Men wrote essays on sexual assault that began with an asterisk next to their name linking to an admission that, yes, they were cis, white, straight, bourgeois men but they had attempted to amplify the voices of the marginalised to compensate for their privileges. MacKinnon was still on the out because this cohort thought women could be empowered by sex work, pornography or kink, and because nobody liked being a victim.

But this year, like last year, I have noticed a distinct change. My students appear to have returned to 1970s radical feminism. It’s not the postmodernist celebration of agency that speaks to this generation but the anger and the structural critiques of patriarchy found in Catharine MacKinnon, Susan Brownmiller and Andrea Dworkin.

Chanel Contos is part of this apparent radical feminist revival, and she has written a book that is erudite, powerful and urgent. I confess I was surprised to enjoy Consent Laid Bare as much as I did: the type is overly large (a friend called it idiot font), it’s aimed at teenagers, and twenty-five-year-old Chanel looks more like a student than a feminist critic.

I was expecting the kind of book we’ve become accustomed to from mainstream feminism: homespun wisdom gleaned from a few popular Netflix series, a few zingers and a rousing call to arms. Instead, Contos’s book is well researched and superbly argued, drawing on radical and postcolonial feminism to widen our understanding of what constitutes sexual violence and to contribute new solutions to a global problem with epidemic proportions.

Contos also extends radical feminism in clever ways. Where MacKinnon and Dworkin in the 1980s called on the state to prohibit pornography (and soon found queer erotica banned) and where #MeToo activists often have a carceral logic to their campaigns (the ideal end point is a lawsuit, then prison), Contos’s solutions are pedagogical and therapeutic. Thinking only in terms of law, she argues, ignores the fact that many survivors don’t want their attackers to go to prison; many simply want validation and an apology.

Where radical feminists critiqued the contractual origins of consent, Contos expands its meaning into the realm of emotion. The etymology of consent, she reminds us, is con, a bringing together, and sentio, to perceive with the senses. Sexual violence occurs when a man’s sense of entitlement overrides his empathy. To this extent, legal consent is a bare minimum. What we need is sex as a form of empathic communication: don’t treat someone how you want to be treated, treat someone how they want to be treated.

Contos’s journey as a consent activist began with her shock as a high school student when a sex-ed speaker came to her school and described a series of commonplace sexual scenarios but labelled them as sexual assault. It wasn’t just that Contos and most of her female friends could identify with these scenarios; their male friends were often the ones responsible.

In 2021, troubled by the pervasiveness of the problem, Contos decided to obtain solid empirical data by asking people online to share their stories of sexual assault during their school years. Seven thousand people sent in testimonies describing behaviour that would fit legal definitions of rape, also mentioning the good jobs their attackers held in order to show both a lack of accountability and the fact that “normal and functioning” people were typical rapists, not strangers in the park.

Contos then built a website called Teach Us Consent that included a web petition signed by nearly 50,000 Australians demanding mandatory consent education in schools. A year later, state education ministers met and agreed to her demands.

These nationwide changes to our education system have happened around the same time as shifts in consent’s legal definition towards active and ongoing consent. The question is no longer whether the person said no, but whether they said yes. Intoxication now completely vitiates consent.

Consent Laid Bare is divided into ten chapters, each of which is aimed at expanding our narratives of sexual assault, whether they concern what a rapist looks like; what causes rape (specifically how rape culture normalises sexual violence); how women respond to rape; how digital technologies and pornography have created new forms of violence; and how we need to go beyond legal solutions when trying to hold men accountable, and to end sexual violence.

Contos’s arguments about the causes of sexual violence will be familiar to anyone versed in radical feminist literature. Because rape is construed as an expression of masculine power and domination — an act that keeps all women in a state of fear and hypervigilance — education about consent is necessary but not sufficient. The problem is wider and deeper.

Girls are raised to accommodate the desires of others, to evacuate the self, to feel shame around their own sexuality and to feel like they don’t have a right to demand pleasure. Boys, on the other hand, are taught to not take no for an answer, particularly if they’re the entitled private school boys that Contos grew up with. They’ve absorbed the view that their sexuality is biologically irrepressible, hydraulic and ungovernable, and that they can offend without consequence. Where girls receive social rewards for their passivity and self-abnegation, boys are rewarded for acts of physical intimidation or ability, wealth and sexual conquests.

This socialisation is part of what Contos, and the radical feminists before her, term “rape culture.” This is a world where sexual assault is normalised by gendered expectations of men and women, where girls are told that wearing a short skirt is distracting for the boys in the class (who simply won’t be able to contain their sexual urges) or where a victim of sexual assault is immediately disbelieved and socially shamed, while the boy walks off scot-free. This wider context helps us to understand not simply why some men feel entitled to rape, but also why women often put up with sex that is uncomfortable, unwelcome or coercive.

Any person over the age of twenty will likely read sections of Contos’s book in a state of fascinated horror: the chapters on sex and the online world and pornography make for particularly grim reading. I was quite unaware that strangulation had become a normal part of sex, which boys assumed girls enjoyed so much that consent was unnecessary. Given that 84 per cent of men aged between fifteen and twenty-nine watch porn at least once a week, there’s no prizes for guessing where these new sexual scripts might be coming from. I was also shocked to find that a girl might now be sitting on a bus or train and a man could send an unsolicited dick pic by airdrop on to her phone.

In Contos’s experience, girls begin being asked to send nudes to boys around the age of twelve (yes, twelve!) while a 2022 Australian study found that 86 per cent of students aged fourteen to eighteen had received sexual messages or images, and 71 per cent had sent them. By the time Contos, as a consent educator, speaks to high school students aged fourteen and older, she says that many say that they’re “over” the sexting stage. In a digital extension of the centuries-old tradition of slut-shaming, a girl whose nudes get “leaked” faces embarrassment and shame, while the boy doing the leaking usually rises up the social hierarchy, congratulated by his male friends on a new conquest.

In this context, it is entirely understandable that generation Z might be rejecting what Contos calls “modern feminism” and returning to the clear, unambiguous critiques of sexual violence offered by radical feminists. Why are all the things  popular feminists celebrate women “choosing” to do — from watching porn, to shaving legs, to wearing high heels, to engaging in sex work — exactly what patriarchy and capitalism want them to do?

“Modern feminism has framed sex work as sexually liberating and put pornography and sex work in the category of strictly Do Not Debate,” Contos argues. Far from being a “righteous reversal of the gender hierarchy,” sex work is not only the most dangerous job in the world, but it also goes hand in hand with capitalism. Unlike radical feminists before her, however, Contos doesn’t argue for state regulation, simply for a more open debate and for an end to the popular, uncritical equation of sex with empowerment.

I suspect that the predominance of psychological discourse among gen-Zers — their tendency to describe their identities through languages of trauma, fragility or pathology — also makes them less concerned about the elements of radical feminism that see women as victims. This is a generation who accept their vulnerability and woundedness, and for whom the most important question is not how they have agency but how to end sexual violence and gender oppression.

In short, this is a book that you should thrust into the hands of the teenage boys and girls in your life. But you should also read it yourself first, both as a fascinating document that signals what might be a historic shift in discourse away from poststructuralism towards radical feminism, and also because Chanel Contos, with her well-researched, well-reasoned and well-written arguments, is smart and inspirational. •

Consent Laid Bare: Sex, Entitlement & the Distortion of Desire
By Chanel Contos | Macmillan Australia | $36.99 | 368 pages

The post Active and ongoing appeared first on Inside Story.

Recent censuses have documented a quite extraordinary growth in the Indigenous population, largely in southeastern Australia, driven by growing self-identification and rising numbers of mixed Indigenous and non-Indigenous relationships. As a result, the national profile of the Indigenous population is changing, accompanied by even greater levels of income inequality. Very high levels of income inequality exist within the Indigenous community, levels that are greater than those that exist within the non-Indigenous community.

Alongside these shifts has been a growth in the diversity of political perspectives among leading Indigenous figures. The contrasting views of Indigenous No campaigners Jacinta Nampijinpa Price and Nyunggai Warren Mundine, on the one hand, and Lidia Thorpe and author/lawyer Michael Mansell, on the other, are just one example.

The geographical, social and linguistic heterogeneity of Indigenous Australians has long been recognised by policymakers yet only sometimes taken account of. The regionally organised Aboriginal and Torres Strait Islander Commission (1990–2005) was a rare example of a positive recognition of heterogeneity; in other cases — tighter conditions on social security in remote Australia, for instance — the recognition has come with a punitive veneer.

This diversity has increasingly been overlaid (though not replaced) by a pan-Indigenous focus on identity and identity politics that has begun to permeate the national imagination. The emphasis on a single identity — rather than on layered identities, as Noel Pearson advocates — has created a unity with its own fragility.

These strands have created social, economic and political complexities that undercut the possibility of building an enduring consensus among First Nations on virtually any issue. If substantial Indigenous consensus on policy aspirations is just as elusive as it is among the non-Indigenous population, then all-encompassing Indigenous representation is inherently elusive, particularly nationally.

The referendum result alone won’t drive this complexity; it has been emerging for at least two decades. But the vote will inevitably be perceived as a political and societal inflection point. The notion that governments should seek to discern an overarching and representative Indigenous perspective is likely to give way increasingly to multiple Indigenous interest groups, themselves engaged in the cut and thrust of interest-group politics both within the Indigenous domain and between the Indigenous domain and the wider political domain.

Virtually all recent public commentary has been on the politics of the Voice: the campaign, the tactics of the Yes and No camps, the effectiveness of the most prominent advocates, the implications for social cohesion and reconciliation, and the implications for Australia’s international reputation. The shape of the post-referendum policy framework has received almost no attention. Yet it will determine the opportunities available to First Nations citizens and inevitably shape the nation’s future in ways that are difficult to predict but nevertheless consequential and far-reaching.

In a hyper-rational world, the obvious response to the referendum loss would be to press ahead with legislation to create a Voice. After all, if it is important enough to be constitutionally entrenched, why wouldn’t the government seek to establish it legislatively?

We don’t live in an entirely rational world. Prime minister Anthony Albanese explicitly ruled out a legislated Voice before the vote, primarily on the basis that the process of legislating a Voice would become hyper-politicised. Opponents would argue that the referendum result made crystal clear that Australians don’t want a Voice, thus depriving any such proposal of an electoral mandate. Its design would become deeply contentious both in wider political circles and among Indigenous interests. Without constitutional enshrinement, a legislated Voice’s views and policy perspectives would arguably carry less weight and be more susceptible to being ignored by governments.

One alternative path would be to create an appointed Voice, though the prime minister appears to have implicitly ruled this out too. Governments often appoint specialist groups to provide advice; in fact, the previous government appointed a prime minister’s Indigenous Advisory Council in September 2013 with Warren Mundine as its first chair. It was silently abandoned in 2019 when its advice on how best to progress the Uluru Statement and the proposed Voice became politically inconvenient.

Since then, reflecting the triumph of political considerations over rationality, the Coalition government (and now Labor) operated without a formal Indigenous advisory mechanism while simultaneously funding elaborate bureaucratic and legal processes to design and implement a proposed Voice.

The government’s most likely move will be to embrace the role of the Coalition of Peaks, the alliance of eighty-plus Indigenous peak bodies that emerged in early 2019 from discussions between representatives of fourteen Aboriginal community-controlled organisations and prime minister Scott Morrison. Those discussions ultimately led to the National Agreement on Closing the Gap. According to its latest annual report, the Coalition of Peaks directly and indirectly represents more than 800 organisations and at least 550,000 Indigenous people across numerous sectors.

Announcing a greater reliance on the Coalition of Peaks — or, more probably, gradually lifting engagement — has several political advantages. The coalition encompasses a wide swathe of Indigenous policy, it was established and funded by a Coalition government, and it is capably led by its convenor, the experienced former bureaucrat Pat Turner. Perhaps even more importantly, building on the coalition requires no legislation and can accurately be characterised as a continuation of the status quo.

If it pursues this option, Labor will presumably take the opportunity to signal its increased commitment by allocating new Indigenous funding in the coming 2024 budget. One obvious spending opportunity championed by Turner and the Coalition of Peaks is housing, a policy domain with implications for health, education, criminal justice and domestic violence. As the government develops its new National Housing and Homelessness Plan, which will encompass new intergovernmental funding arrangements, it could earmark increased funding to Indigenous communities.

The Coalition of Peaks is, of course, quite different from the proposed Voice. Unlike previous Indigenous representative bodies, it seeks to represent the interests of “community-controlled” organisations rather than the entire Indigenous constituency. Its members cover a broad range of Indigenous interests, but obvious gaps include the educational and economic development sectors. Implicit in any greater engagement would be a shift to engaging with coalition’s constituent peak bodies.

At the core of the Coalition of Peaks is NACCHO, the National Aboriginal Community Controlled Health Organisation, which represents 145 Aboriginal community-controlled health organisations across the country employing around 6000 staff. NACCHO’s members service more than 550 primary care sites delivering more than 3.1 million episodes of care to more than 400,000 people.

Apart from their sheer breadth of activity, NACCHO members have the advantage of receiving mainstream healthcare funding for their services, thus ensuring a substantial level of political independence. That advantage does not extend to most of the Coalition of Peaks’s other members, which rely to a greater or lesser extent on discretionary government funding. So too does the Coalition of Peaks’s policy secretariat, creating a major risk to its continued independence.

As a member of the council overseeing the National Agreement on Closing the Gap, the Coalition of Peaks has guaranteed cabinet-level access to every jurisdiction in the Australian federation. This is unprecedented in modern Australian history, though the reality is that it is outnumbered and outgunned by the sheer institutional heft of the states and the federal government, and particularly by the size and intellectual capital of their bureaucracies.

Of course, governments will continue to engage with Indigenous interest groups outside the Coalition of Peaks, and will draw on specialist advisory bodies where necessary, as already occurs in the mainstream policy domain. When both Indigenous and non-Indigenous interests are involved, governments will continue to appoint Indigenous members to relevant advisory committees.

The advantages of using the Coalition of Peaks to underpin the future framework of Indigenous policy are significant, but there are also significant challenges.

Foremost is the fact that the extraordinarily complex policy architecture of Closing the Gap is unfit for purpose and requires serious attention. Its bureaucratic complexity ties the Coalition of Peaks down in never-ending process, across eight jurisdictions, virtually guaranteeing it cannot focus consistently on strategic policy opportunities. Complicating its work is the fact that the Coalition government shifted political responsibility for most targets to the states and territories and stepped back from any overt leadership role, a move not reversed so far by Labor.

These problems should have been tackled head-on in the Productivity Commission’s recent draft report on the National Agreement on Closing the Gap. Although the report is critical of progress, its strategically underwhelming analysis is a lost opportunity to take stock and shift course to ensure governments take their commitments seriously. The machinery of Closing the Gap will not collapse in the short term, but neither will it survive into the medium term without focused attention.

Governments are inherently conflicted on this issue: reform of the policy architecture and a stronger Coalition of Peaks will inevitably make life harder for them. Visionary political leadership within government, always in scarce supply, will be required to crack this nut.

A second implication of the referendum defeat is that governments and First Nations will be forced to reconsider the preparedness of the Australian electorate (and the nation’s underlying political settlement) to accept treaties as a mechanism for advancing Indigenous aspirations. While many First Nations leaders and their supporters will intensify their calls for treaties, the risk of devoting decades of work to inchoate policy reforms, and the challenges of agreement-making with reluctant governments could fracture Indigenous views on the benefits of such a strategy. Pragmatic leaders could well see better and more immediate uses for scarce advocacy resources.

It is also worth mentioning that while a successful referendum would have paved the way for a vote on an Australian republic, the defeat is likely to dampen enthusiasm in the current decade. Perhaps paradoxically, it may also increase the likelihood of an Indigenous person being appointed as Australia’s head of state in the interim.

Progress on Indigenous constitutional recognition, meanwhile, appears more remote than ever. Short-sighted self-interest has triumphed over visionary reform. The 1967 referendum gave the Commonwealth an implicit mandate to lead on Indigenous policy, one it has progressively walked away from over the past decade. The Indigenous leadership, encouraged by progressive Liberals, decided to shift away from the recommendations of the 2012 report of the expert panel on constitutional recognition and replace it with the Voice proposal, a move that now seems a well-intentioned error of judgement.

Led by Pat Dodson and Mark Leibler, the expert panel recommended the repeal of section 51(xxvi) of the Constitution, which allows the federal government to enact adverse and discriminatory laws based on race, and called for a new provision prohibiting racial discrimination.

The nation’s Indigenous policy framework over the coming decades will inevitably focus on particular Indigenous interests rather than a notional general interest, tempered by more of the same: more rhetoric over substance, more evasion of responsibility, more blame shifting, less transparency and ministerial accountability, and continued policymaking aimed merely at giving the appearance of action.

If they are to force their way into the dominant bloc of interests that controls Australia’s institutions, Indigenous interests will need to look beyond governments for support and as the sole locus of political action. To be effective, they must build alliances, institutionalise the independence of their advocacy capabilities, and create their own policy institutions. They will need to span their diverse aspirations, and build and sustain the intellectual capital necessary to achieve inclusionary policy reforms in the face of opposition from mainstream interests concerned to protect the status quo. Inevitably, this will be a multigenerational struggle. •

The post Indigenous policy’s inflection point appeared first on Inside Story.

Thanks to three Trump-era appointments, the nine-member court is dominated by six conservative justices. While it has repudiated aggressive conservative litigation on immigration, tribal rights and the ability of states to control elections, in each case with the three Democratic appointees as part of the majority, it has also responded to the conservative agenda in decisions on affirmative action, gay rights and student loans. Divided along partisan lines — with the court’s three Democratic appointees in strong dissent — those decisions will have a significant impact on the rights of protected population groups in the United States.

The dominant news, and a cause for progressive celebration, is the court’s decision to reject the radical independent state legislature theory in Moore v. Harper, a case brought by a group of Republican lawmakers from North Carolina. The theory rests on a relatively recent interpretation of the US constitution’s elections clause, which says that state legislatures can set the rules for national congressional elections in their states.

According to proponents of the strongest form of the theory, no other organs of state government — courts, governors, election administrators or independent commissions — can alter a legislature’s decisions about how federal elections are run. Trump lawyers used this theory in 2020 to argue, unsuccessfully, that Joe Biden’s victories in key states were illegitimate and that state legislatures could unilaterally reverse the outcome.

In the latest case, the court ruled that state legislatures can’t make decisions that ignore their state’s supreme court or violate their state’s constitution. This six–three judgement, which applies to all states, is being hailed as a major win for democracy and voting rights.

But the tireless efforts of hardline conservatives will mean further attempts to challenge the court’s ruling and invoke the independent state legislature theory are likely in 2024. And the decision will not change the commitment of the Republican-dominated North Carolina legislature to the undermining of federal election processes and voting rights.

The genesis of the case was a gerrymandered electoral map drawn by the Republican-dominated North Carolina legislature after the 2020 census. After it was rejected by the state’s supreme court, Republicans passed an emergency application in February 2022 asking the US Supreme Court to intervene. That court rejected the request for immediate intervention, and the election last November was conducted under a map drawn by experts appointed by a state court.

The result was a fourteen-member congressional delegation evenly split between Republicans and Democrats — a reasonable result in a state where 34 per cent of voters are registered Democrat, 30 per cent are registered Republican and 36 per cent are unaffiliated.

But the 2022 election changed the composition of the North Carolina supreme court, which is now dominated by Republicans with a five-to-two margin. The new court’s majority reversed course, saying the legislature is free to draw gerrymandered voting districts as it sees fit — as it is already doing. A political fight is developing in North Carolina over voting rights and what has been described as “headline-grabbing confrontations over nearly every lever of the electoral apparatus.”

Moreover, the US Supreme Court’s decision contains what some see as a time bomb. In his majority opinion, chief justice John Roberts reaffirmed his court’s capacity to overrule state courts when it so chooses. Importantly, he persuaded the three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, to go along with a version of judicial review that some experts fear could allow the court to meddle in future elections.

It is interesting to note that the justices pointed to Bush v. Gore, the 2000 Supreme Court opinion that stopped Florida’s recount and confirmed George W. Bush’s presidential victory, as a template for resolving election disputes, despite the fact that the court’s opinion in Bush v. Gore explicitly stated that it was not intended to create precedent.

A series of other just-released decisions reflect the court’s conservative leanings and seem part of a broader effort to overthrow long-supported rights and benefits for minority groups. Two decisions saw the six conservative members of the court invalidate admissions programs at Harvard and the University of North Carolina that use race as a criterion, effectively ended race-oriented affirmative action admissions programs at public and private colleges and universities across the country and tossing aside yet another well-established federal right.

It is ironic that the justices ruled that the admissions policies violated the equal protection clause of the fourteenth amendment to the constitution — an amendment that was ratified in 1868 to enable the federal government to deal with the profound racial discrimination against Black Americans that continued after the Civil war.

The majority decision was written by Roberts, a long-time critic of affirmative action programs. At both Harvard and the University of North Carolina, he wrote, the programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

As if to acknowledge these programs’ importance to ensuring greater diversity, though, Roberts stressed in a footnote that military academies are exempted from the decision. “No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context,” he wrote. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

The only two Black members of the Supreme Court — Clarence Thomas and Ketanji Brown Jackson — openly traded barbs in their widely divergent opinions.

“As [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today,” wrote Thomas, himself a beneficiary of academic affirmative action. “The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics. I strongly disagree.”

Thomas also accused Brown Jackson of ignoring the oppression of other groups, including Asian Americans and “white communities that have faced historic barriers.” (It’s worth noting that Thomas and his conservative colleagues don’t take issue with the legacy programs that perpetuate elite access to Ivy League universities.)

Justice Brown Jackson, who led the liberal dissent, didn’t mince words either, calling the decision “a tragedy for us all.” She defended the use of race-conscious programs to ameliorate the pervasive, present-day effects of America’s history of state-sponsored racism. “Gulf-sized race-based gaps exist with respect to the health, wealth, and wellbeing of American citizens,” her dissent began, and went on to argue that allowing colleges to consider applicants’ race has “universal benefits” because it helps to close those gaps and thereby promotes equality.

Not surprisingly, these US Supreme Court decisions have generated strong condemnation. Critics are concerned about the impact on Black Americans and on the diversity that is so needed in the healthcare workforce.

More is at stake than affirmative action in university admissions, including the central question of whether the law can be used to fix longstanding racial inequalities. As Justice Sotomayor wrote in her strong dissent, “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”

Conservatives, long wary of race-based programs designed to benefit minorities, will be emboldened to leverage these decisions into attacks on affirmative action programs in other areas such as corporate diversity. “In the broadest sense,” wrote political analyst Ron Brownstein in the Atlantic, “the Republican-appointed justices have moved to buttress the affluence and status that allow white people to wield the most influence in society, and to diminish the possibility that accelerating demographic change will force a renegotiation of that balance of power.”

Disadvantaged students will also be affected by the court’s decision, in Nebraska v. Biden, to strike down President Biden’s student debt relief plan. This was a 2020 election campaign promise to deliver financial relief to up to forty-three million student loan-holders, including cancelling the full remaining balance for roughly twenty million, with these relief dollars targeted to low- and middle-income borrowers. Advocates argue that both student loan forgiveness and affirmative action are racial justice issues.

In a major win for Republicans, who had vehemently opposed the plan, the court’s six conservatives ruled that the Biden administration lacked the power to forgive loans for more than forty million borrowers. Facing Republican opposition to legislation to implement this commitment, Biden had used the HEROES Act, which was authorised in 2003 after the 9/11 attacks as a means of giving loan relief during times of war and other emergencies.

The plan’s hefty price tag also meant it had major economic implications. In striking down the plan the court thus relied on the “major questions doctrine,” which says that Congress must give direct authorisation for the executive branch to implement a policy that has major economic and political impacts on the country. The doctrine was first invoked in 2022 in a decision about the extent to which the Environmental Protection Agency could regulate greenhouse gas emissions.

Republicans and advocates of limiting the power of the federal bureaucracy cheered this most recent court decision, but the liberal justices and many legal experts are concerned it could prevent the government from taking decisive action on climate change, healthcare and other urgent problems.

“The Court, by deciding this case, exercises authority it does not have,” Justice Kagan wrote in her dissent. “It violates the Constitution.” Norman Ornstein of the American Enterprise Institute was even blunter: “They created out of whole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.”

Another recent decision puts a question mark over the court’s decade-old judgement establishing the constitutional right to same-sex marriage. In this latest case, the court decided that Colorado’s anti-discrimination law violated a web designer’s free speech rights under the first amendment, raising fears that the right of LGBTQI+ Americans to non-discrimination (including the right to marry) is being eroded.

The case, 303 Creative v. Elenis, rests on several hypotheticals. Web designer 303 Creative is owned by Lorie Smith, who opposes same-sex marriage on religious grounds. But the company has never been asked to create a website for a same-sex wedding, and Colorado has never tried to force it to design such a website. In fact, Smith didn’t design wedding websites for anyone at all when the suit was filed.

Justice Neil Gorsuch, who wrote the majority opinion for the conservative justices, called the message conveyed by any websites Ms Smith designs “pure speech,” as if no services were being provided and the primary point of the websites would be to express the designer’s views on matrimony. The court’s three liberal justices disagreed. “Today,” Justice Sotomayor wrote, “the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

The decision came at a time when Republican legislators in many conservative-leaning states are targeting the rights of transgender and other LGBTQI+ people. In strongly criticising the decision, President Biden expressed a fear that the ruling could invite more discrimination. “In America, no person should face discrimination simply because of who they are or who they love,” he said in a media statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”

Not only do these recent decisions highlight the impact of the three conservative justices appointed by Donald Trump; the majority and minority opinions also highlight how divided the US Supreme Court has become. Observers have detected a new contentiousness during oral arguments and within justices’ opinions. The highly personal attacks in the affirmative action rulings are a far cry from the expected dispassionate legal interpretation.

In dissenting from the decision to strike down the student debt plan, for instance, Justice Kagan wrote that “in every respect, the court today exceeds its proper, limited role in our nation’s governance.” Chief Justice Roberts retorted: “It has become a disturbing feature of some recent opinions to criticise the decisions with which they disagree as going beyond the proper role of the judiciary.”

Moreover, when court decisions continually divide along the same lines as the divergence of political opinions — as has happened in most of these big cases — it is very hard for the public to see the distinction between law and politics.

A growing number of critics worry the court is losing its legitimacy by overturning abortion rights and using disingenuous legal reasoning to advance a reactionary political agenda. At the same time, public revelations of the close ties between Justices Samuel Alito, Gorsuch and Thomas and wealthy benefactors with business before the court have met with official indifference from the chief justice. Small wonder the court’s popularity has plunged to record lows as the public increasingly sees the court as a political body.

Biden is facing increasing pressure from Democrats to embrace far-reaching reforms to the nation’s highest court, including expanding the number of justices and imposing term limits and mandatory retirement. While he has harshly criticised the court’s sharp pivot to the right, calling it “not a normal court,” he has declined to endorse any of proposed reforms.

Together with abortion, these most recent decisions will be an ideological divide along which Republicans and Democrats — and voters — will line up for next year’s elections. The conservative push to erode rights for women and minority groups will galvanise both those who agree and those affected.

Biden is signalling he will run against the court and Republican lawmakers on a host of judgements, including abortions rights and student loans, hoping to appeal to women, people of colour and young voters. For this to be a winning strategy, he must get voters who are disappointed by the lack of action on these and other issues — including stricter gun rights and more liberal immigration laws — to see that their only hope of remedy lies with him and the Democrats.

Trump will certainly tout his success in stacking the US Supreme Court, and his Republican presidential rivals will presumably claim they will do more. This approach has deep appeal for the rusted-on Make America Great Again base but is unlikely to garner sufficient votes to gain a victory in the general election.

It is no accident that Trump, even as he takes credit for the decision to abolish legal abortion, has been dodging questions about whether he would sign a federal abortion bill into law — something many within the conservative movement see as the next frontier in this fight. Florida governor Ron DeSantis, his chief rival in the Republican presidential primary, has sought to outflank him on the issue by embracing it as a key feature of his campaign, as has former vice-president Mike Pence.

What the United States is seeing in 2023 — in Supreme Court decisions, state actions and the failure of Congress to enact any meaningful legislation — is a clawing back of the rights of Americans, especially those in minority groups, in a way previously unseen in modern times. This must surely be a key election driver next year. •

The post One step forward, three steps back appeared first on Inside Story.

Here is how chief judge Robert Beech-Jones finished: “I doubt that the imposition of sentence on the offender for the second and hopefully last time will bring closure in respect of the terrible events surrounding his death and their aftermath. However, it is be hoped that it at least represents progress towards that end.”

How could a man’s punishment for “terrible events,” albeit thirty-five years late, not bring closure? Why is even “progress towards that end” a mere “hope”? And, given that the offender had pled guilty, why is this only “hopefully” the last time he would be sentenced?

The judge’s doubt may be a case of déjà vu. This sequence of events — a guilty plea and a sentence — has happened before in this case. Indeed, Beech-Jones is the fifth judge to make a finding about Johnson’s death. Every finding has been different, and none of the previous four stood the test of time.

Will the fifth? I’m not sure what I hope will happen.

“The procedural history of this case is a story in its own right,” the chief judge observed. It began on 10 December 1988 when a thirteen-year-old spear fisher spied a body lying on rocks under Blue Fish Point on the ocean side of Sydney’s North Head. Scott Johnson was naked, but the police soon found his clothes, neatly folded, near the clifftop. When an autopsy confirmed that the American had fallen from height a day or two earlier, the police and a coroner quickly concluded that he intentionally jumped. Last week, though, Beech-Jones said this “appears to be an absurd suggestion.”

The first finding about Johnson’s death was based at least partly on absurdity. His coroner cited the fact that he was “an extremely brilliant mathematician who was reserved and introverted” as a risk factor. But Johnson’s long-term partner also assumed that he had jumped. Four years earlier, Johnson had phoned to tell him that fear of exposure to AIDS had driven him to San Francisco’s Golden Gate Bridge. “But when he got there, he found that his muscles froze over.”

The suicide finding lasted twenty-three years, a period in which a different coroner found that three men who died or disappeared on Sydney cliffs in the late 1980s may have been the victims of gangs targeting gay beats. In 2012, a second inquest into Johnson’s death heard that Blue Fish Point was also a beat. The second coroner found that the cause of Johnson’s fall couldn’t be determined and recommended a fresh police investigation.

This open finding lasted just over five years, until a third inquest reviewed the police’s discoveries. The third coroner was told of the “Narrabeen skinheads” who targeted various gay beats in Sydney’s north in the mid 1980s. One informant testified that a pair from the gang had boasted that they once “bashed an American faggot” in Manly who then “ran away.” A “community source” explained that other gang members sometimes targeted beats at North Head in the late 1980s. But the third coroner dismissed these new clues as too slight and unreliable to cast any light on Johnson’s death.

That coroner nevertheless thought other evidence revealed what happened on 8 December 1988. A “psychological autopsy” of Johnson (who had recently made major progress on his doctorate, which was awarded posthumously) made the initial suicide theory “very unlikely.” Evidence from Johnson’s brother Steve of the pair’s many hikes made an accidental fall equally unlikely. And the American’s seemingly missing wallet suggested the malign involvement of a stranger. This became the first judge to find that a crime had occurred: “I readily conclude that homicide is more likely than either of the other scenarios.”

But he also sorrowfully rejected Steve Johnson’s request for a fresh investigation independent of the police. The initial poor policing and passage of time left little hope, he said, of finding the culprits. (He thought it “likely” that the student, who was “strong and young and fit,” had been attacked by two or more people.) Nevertheless, citing harrowing accounts from past beat users of recurrent violence at Blue Fish Point, he found that “Scott died as a result of a gay hate attack.” That finding lasted less than five years.

“I did have a dream about, ’bout him… a couple of nights ago, I don’t know, it was just a weird dream in the bush, something to do with the bush… I was with him up the, up at North Head.”

“Was the gay the kid who died?” someone asked.

“Yeah,” said Scott White. It was 19 March 2020 and White was talking to “two witnesses.”

Scott Johnson and Scott White shared more than a first name. They were both the middle of five siblings. They each grew up in grim circumstances with a single parent. Both were gay. Each had thoughts of suicide. But that’s where the similarities ended. White had little to live for and no chance at all of getting a doctorate or a soul mate. He was drinking by the age of thirteen, homeless by fifteen, and in and out of fights, boys’ homes and prisons into his twenties. He was eighteen when Johnson died, married at twenty-three, and thirty-eight when his wife left with their six kids. He then cared for his alcoholic mother until she died in 2018. In March 2020 he was living alone and friendless.

Who were the “two witnesses” White was revealed to have spoken with just as Sydney locked down? Nearly every court that described their chats studiously avoided saying, but one let it slip: they were “undercover police operatives.”

“See back in them days gay wasn’t like it is now,” one cop said.

“Like we used to go poofter bashing,” White replied, before adding, “Yeah, my brother did.” His brother was why he never came out.

“Ah well you need never tell him, mate,” the cop soothed.

The cops drove White to Blue Fish Point and must have been disappointed when he walked a lengthy bush trail towards Manly and identified the Upper Shelley Headland lookout as the spot where the man with “a bit of an American accent” and a “good build” had undressed in his “dream.” Becoming emotional, he said the pair had walked there from a local hotel and talked for hours. Pressed for details, White couldn’t recall if they were “intimate.” But then he remembered something: “I think we had a fight. That’s all I can remember… he fell. I took off.” White was arrested two months after he uttered those words.

All this seemingly followed a single police interview a year earlier, in which White denied attacking any gay men, let alone Johnson, and two home visits from the operatives the previous week. Just before those visits, the police obtained a warrant to make covert recordings and asked Steve Johnson to generate interest by pledging to personally double the police’s reward. But no one has revealed what the cops did to prompt a fifty-year-old loner to confide “his biggest secret” — that he’d known he was gay since he was fifteen — much less detail that week’s “dream.”

Some overseas courts frown on the use of stings to prompt admissions from vulnerable people. In 1993, an English trial judge threw out admissions that an undercover officer had extracted after answering a suspect’s “lonely hearts” ad and insisting on a murder confession as a condition for a relationship. The public pilloried the judge, but he was later vindicated when an unrelated man was convicted of the killing.

In Canada, the police have long cracked cold cases by posing as criminal gangs who insist on true confessions from their “recruits.” But the nation’s Supreme Court drew the line at undercover cops offering illusory friendships to mentally challenged, socially isolated men in exchange for unverifiable confessions. In 2014, it acquitted a man whose new “best friend” had taken him to the lake where his children drowned so he could demonstrate how he pushed them off a wharf.

Not so in Australia. When Australian police adopted their Canadian counterparts’ methods they were swiftly endorsed by the High Court and by parliaments, who exempted undercover stings from the rules that require police seeking admissions to use methods conducive to their reliability. In 2007, chief justice Murray Gleeson and his fellow judge Dyson Heydon upheld the use of a teen’s admissions to police who assured him they were speaking off the record, infamously observing that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.”

White told his arresting officers he had been “full of shit” and just wanted to “get these guys” — the undercover cops — “off me back.” He spent the pandemic in prison being assessed by a succession of psychiatrists, who declared him fit to be tried but differed on their diagnoses. They all agreed that his childhood and heavy alcohol use had left him with cognitive defects. Ahead of a trial planned for the second anniversary of his arrest, the court set aside a week to resolve whether his jury could be told of his “dream.” That finding never came.

“How are you Scott?” his lawyer asked. “Terrible,” White told her. He’d been up since 4am, hadn’t eaten, and had lost his glasses. It was 9.40am on the first day of the pre-trial hearing in January 2022, and his lawyers warned him that his sexuality would be publicly aired. White said he was fine with his brother dialling in, but he wanted to know “what is all this about something I said to Helen [his ex-wife]?” His lawyers’ explanation left him more confused, but they also told him that the week’s hearings were just for legal arguments. When they reminded him that he would be asked to make a plea that day, White confirmed that he would say “not guilty.”

Just after 11am, a court officer read out the charge that, in 1988 in Manly, White “did murder…” “Guilty,” White interrupted. The officer continued: “… Scott Johnson.” “Guilty,” White repeated. How did he plead? “Guilty,” he said a third time, while his barrister shot to her feet. White added a fourth while the judge asked what his barrister wanted. She wanted to talk to her client.

Twenty minutes later, she told the judge that White no longer maintained his guilty plea. The judge could have simply re-arraigned White then and there. Instead, noting that his plea had been “loud” and “clear,” and that he obviously didn’t misspeak, she declared him guilty of murder. That finding, the fourth about Johnson’s death, was to last for just over a year.

Two days later, the judge rejected White’s formal request to withdraw his plea. White’s lawyers, who had planned to spend the week arguing that their client’s “dream” was the product of suggestion by undercover agents he was trying to please, were now openly accused by White’s prosecutor of “persuading” him to reverse his guilty plea. The judge duly dismissed the 9.40am conversation as White hiding his real intentions from his lawyers, and read the notes of the hasty post-plea conferral as his lawyers “cajoling” him into telling them “I didn’t do it, but I’m saying I did it.”

As for his reasons recorded in those notes — he told his lawyers he was scared of his ex-wife, he was safer in prison, he’d “take” ten years imprisonment, he wanted “it to be put to rest, for Scott, for the brother” — those were all consistent with his remorse for murdering Johnson as a teen. Moreover, the lawyers’ notes revealed that a change of plea had come up on four earlier occasions. The result was that White’s murder plea stood and so did the “dream” of the killing he had relayed two years earlier.

The only additional evidence the prosecution offered at his sentencing in May last year was from his ex-wife. Helen White revealed that she was the one who sparked the whole investigation by writing anonymously to the police after she saw a documentary on Johnson’s death. She recalled her then husband admitting that he used to “bash poofters” and said that, years ago, she had twice showed him Johnson’s picture from the newspaper, prompting him to say “that girly looking poofter” and “the only good poofter is a dead poofter.” Asked “So you threw him off the cliff?” he replied that it wasn’t his fault if “the dumb cunt ran off the cliff.”

The judge rebuffed White’s lawyers’ argument that no one could find the newspaper articles his ex-wife mentioned, as well as their suggestion that she had implicated her husband vindictively or for the $1 million reward. But, faced with the entirely different “dream” White had described to the undercover operatives, the judge baulked at confirming the third coroner’s finding that Johnson was the victim of a “gay hate attack.”

“There is no logical or rational reason,” she said, “to accept what the offender said about striking Dr Johnson, but reject what he said about going with him to North Head, without any apparent rancour, possibly for a sexual encounter to take place.” All that was certain, she said, was that White knew that hitting Johnson near a clifftop would probably kill him. That finding would last less than a year.

The murder finding unravelled bit by bit. Three appeal judges held that the judge should have been more open to White’s withdrawing a plea just twenty minutes after it was made. Indeed, they observed, White simply couldn’t have known the difference between murder and manslaughter. He hadn’t been advised by his lawyers on that, and even his prosecutor was yet to explain why White’s crime was the former. The judges sent the plea to be sorted out by chief judge Robert Beech-Jones.

White’s prosecutor tried to keep White to his murder plea, and even lodged a High Court challenge to the appeal decision. But he also agreed to discuss a compromise with White’s lawyers. Three months later, he simultaneously dropped his High Court challenge, his opposition to withdrawing the murder plea, and the murder charge itself. In return, White pled guilty to Johnson’s manslaughter.

It was all over bar White’s (second) sentencing, which proceeded on different evidence from the first. The parties’ “agreed facts” now covered only events in 1988 and from 2019, skipping White’s ex-wife altogether. But they included a new development: while he was still a convicted murderer, White was recorded on a prison phone call to a “relative” admitting “to hitting Dr Johnson at the cliff in terms consistent with what has already been recounted.” Like so much else in this case, no details are provided about what exactly was said in this call.

The chief judge rejected the only additional details White’s previous “dream” had revealed about his encounter with Johnson — “I hit him. He hit me. He stumbled back. I went to grab him and he… just stumbled back” — but also put to rest his predecessor’s finding that White knew his punch would likely cause a fatal fall. This time, no one argued that Johnson died of a gay hate attack.

And so, Beech-Jones set out the fifth, and current, official account of Scott Johnson’s death: “The end result is that not much is known about the killing of Dr Johnson beyond a punch near a cliff, a vulnerable victim, a fall over the cliff, a death, an absence of taking even the simplest step to render help after the fall and decades of pain and grief that followed.”

Is this closure for Scott Johnson and his loved ones? Five years ago, and nearly thirty years too late, a coroner put an official name to why Scott Johnson died (“a gay hate attack”) but couldn’t name his killer. Last week, a chief judge put an official name to the killer (“Scott”) but couldn’t say why he killed. “I think our family has got some peace and I would even say closure,” Steve Johnson said on the court’s doorstep. “We’re one of the lucky families.” No one can or should second-guess him. (A special commission will report on the police’s handling of hate crimes, including Johnson’s case, in coming months.)

Is this closure for Scott White too? He has now “specifically confirmed to the Court that he accepted legal responsibility for the death of Dr Johnson but not for murdering him,” and been sentenced accordingly. Beech-Jones found that the eighteen-year-old White “was clearly a damaged, albeit physically powerful, young man. However, he was not broken as he is now.” How much more should the courts break him at age fifty-two? Beech-Jones settled on a minimum of three more years in prison, and neither he nor White should be second-guessed either.

But should the rest of us accept closure in this case? Doing so is certainly in vogue. Even the Scots, who famously allow their criminal juries the option of a third, “not proven,” verdict, are contemplating a switch to the binary of guilty or not, lest they be too tempted (perhaps like Johnson’s second coroner) to throw up their hands in difficult cases and let villains go scot-free. But closure is seemingly what motivated the initial police and coroner (who were too quick to conclude that Johnson jumped), the third coroner (who was too sure he was chased), and the prosecutor and first judge (who were too determined to find that he was pushed).

Beech-Jones, the most careful of the case’s five judges, had the luxury of being bound by a manslaughter plea, and found nothing more than that. But the rest of us aren’t required to accept White at his word and should hesitate to do so. He has said that he is many other things — a “poofter basher,” a dreamer, “full of shit,” a murderer — and he may be all of those, or none. What everyone agrees is that he says whatever pleases whomever he’s near, be that his brother, his wife, complete strangers or his own lawyers. And nothing White has said about Johnson’s case went beyond what everyone around him knew or assumed had happened.

The case gives me déjà vu. White’s dream reminds me of Andrew Mallard, whose supposed murder confession to the Western Australian police consisted of what he said was “my version, my conjecture” of what the murderer would have done, described in the third person. It turned out that he was just parroting what the police had told him, including their own (wrong) assumptions about how the crime happened. A fingerprint identified the true killer, but only after Mallard spent twelve years in jail.

White’s guilty plea reminds me of George Heron, whose confession to killing a seven-year-old after days of oppressive questioning was thrown out of court decades ago, to the anger of the girl’s mother, the police and the British public. Heron was sued, hounded, outed and even stabbed, but that wasn’t the worst of it. “There were times I wondered if I had killed Nikki. So many people said I had that I started to doubt myself.” Her real killer was convicted last month.

Like Johnson’s third coroner, I’m pessimistic now — given poor policing, official tunnel vision and the passage of time — that we’ll ever learn more about Scott Johnson’s death. But the real, repeated lesson of these events is that this sort of case is never truly closed. Maybe there’s more evidence implicating White in the events of December 1988 than just his inconstant, vague, derivative say-so, and for some reason we just haven’t been told. I truly hope there is. But, if not, then I’m not willing to merely hope that this is fifth time lucky. •

The post Scott’s justice appeared first on Inside Story.

Kudos if you said that those countries cap the amount anyone may donate to a political party or candidate. Double the kudos if you know that the entire eastern seaboard in Australia also has such caps, not just for state parties but for state electoral purposes too.

It is forty years since the Hawke government begat the regime that still essentially governs the funding of campaigns for federal elections. That regime still rests on twin pillars: public funding for parties or candidates that attract above 4 per cent of the vote, in return for disclosure requirements whose lack of timeliness is redolent of the paper-and-pen era in which they were hatched.

True, the federal “transparency register” has been widened to include lobby groups that campaign at national elections. But the national electoral laws don’t drill deeply into the financial affairs of parties. Compare Britain, where parties’ audited financial accounts must be published annually — and parties there don’t receive public funding for electoral purposes like their Australian counterparts do.

Whether in an absolute sense, or relative to our usual democratic comparators, the electoral funding and disclosure rules in the Commonwealth Electoral Act remain lax. This state of affairs may align with liberal philosophy in the abstract, but it is not merely passé in terms of developments in the field in the last forty years; it is also corrosive of faith in the integrity and political equality in Australian elections.

With a Labor government ostensibly driven by social democratic norms and an expansive crossbench of Greens and independents committed in principle to more fairness in electoral participation, what are the prospects for renewal? To discuss this, we need to consider the three main dishes on the regulatory menu — disclosure, donation caps, expenditure limits — and then ask if reform is imminent after all these years.

Disclosure is broke: time to fix it

Disclosure at the national level needs to be tighter and more timely. Parties must declare “gifts” — donations earmarked to fund national electioneering — only after the end of each financial year. Their declarations don’t then need to be published by the Australian Electoral Commission, or AEC, until February of the next year. So resources given to parties in the lead-up to the May 2022 federal election need not have been made public until between eight and twenty months after they were received.

In addition, parties need only disclose individual gifts above an indexed threshold that now sits at $15,200 per annum. (Donors are meant to keep tabs on whether a series of gifts exceeds that threshold and, if so, disclose the fact annually.) It gets worse: given our federal structure and history, parties can consist of up to nine registered entities — their national secretariat plus their mainland state and territory divisions. The disclosure threshold applies to each of those entities, not to the party as a whole. So the effective threshold for gifts for national electioneering can be well over $100,000 per party.

You might think, “Well at least this annual ‘disclosure dump’ gives the media a deliberative focus.” It is true that having “real-time” disclosure — say on a weekly basis — and at too low a level could simply snow investigators. The answer to that is to improve the presentation of the data by including tools to easily aggregate and map disclosures across time spans, related parties and entities, and geography.

It is also important to bear in mind the inherent limits of any disclosure system. Disclosure is essentially a kind of freedom-of-information tool that allows the media and rival political players to ask questions. By itself it is no guarantee of integrity, let alone a means to political equality. It can even heighten cynicism or normalise unlovable donation practices. Companies may think they need to keep up with the largesse of competitors seeking to ingratiate influence; party treasurers can hit up donors to a rival party and say, “What about us?”

Regardless of such considerations, the national disclosure system is clearly broken: that much has been known for years. But the major parties have also increasingly driven a truck through the system, and the AEC hasn’t stood in their way.

How? The major parties operate business-oriented fundraising arms under names like the Liberal Party’s Australian Business Network and the Federal Labor Business Forum. These outfits charge huge subscription fees: not to be a member of the party proper, but to belong to a kind of exclusive networking club. To magnify the exclusivity, fees have been tiered across “platinum,” “gold” and “silver.” The fee for the highest tier has reportedly inflated from $110,000 to $150,000 in recent years.

When these fundraising arms organise notionally come-one, come-all dinners (like Labor’s $5000-a-head budget dinner hosted by PwC or a $5000-a-head “boardroom lunch” with treasurer Jim Chalmers), the ticket cost is set below the disclosure threshold. This is an old practice; the scandal today is that these large, tiered subscription fees are not being disclosed.

Under electoral law, a political donation is something given for “inadequate consideration.” But the parties happily encourage subscribers to claim they are receiving more than adequate consideration. Quelle surprise! As Woodside Energy’s CEO explained some years back, this leaves it up to people like him to decide whether to make “voluntary” disclosures.

Despite being armed with significant forensic powers, the AEC has taken such assertions at face value. It told the ABC recently that it leaves it up to the subjective — and conflicted — view of those paying for access to the parties. Donations up to ten times the disclosure threshold can therefore be hidden in plain sight.

All this ignores the objective nature of value in most real-world dealings. Parties are hardly in the events industry. The AEC could demand to be informed of the events held by each forum/network and then commission experts to assign an upper market value to the event-as-an-event (including an allowance for the attendance time of ministers or MPs). The AEC could also inspect the accounts of these fundraising arms to see what surplus they generate, per average subscriber, for the party coffers.

In short, the major parties are nakedly soliciting revenue, with a nod-and-wink as to anonymity, in return for selling premium access — and the regulator is standing by. Selling access corrupts basic public law values: politics as a public trust and the franchise as an emblem of the equal worth of all people. Why on earth would an ordinary person voluntarily join one of the major parties today when they are seen as largely superfluous to the electoral machine? As if rubbing salt in the wound, last year the major parties convinced the courts that any membership rights contained in their own rules are legally unenforceable.

Capping donations

Presently, the only “real” limit on national political donations is a ban on “foreign” donors, a recent development driven by concerns about Chinese money. I put “real” in quotes, since nothing is more fluid than international finances. That means the law is not really enforceable offshore, and so assumes that receipts are careful screened by Australian political actors. While the parties have been willing to twist and stretch disclosure law, the opprobrium for breaching a “foreign” donor ban is probably sufficient for the parties to self-police the source of gifts.

That leaves non-foreign, ridgy-didge Aussie donors: a residual category that ranges from citizens (wherever located) and permanent residents through to businesses incorporated here or simply possessing a principal place of activity here. Unlike in the sample of countries listed at the start of this piece, they face no donation limits. Is this a problem?

It may be, for political integrity and equality. If disclosure requirements were more meaningful, and if the new National Anti-Corruption Commission performs to its potential, we might be right to leave political integrity to those regimes.

What then of political equality? Political donations are partly acts of political association. This means they cannot, constitutionally, be banned outright. But they can be limited — in their size and in who makes them. Generally, we should welcome donations from a wide range of sources to help keep parties connected to a broad social base. Indeed, donations to parties and candidates of up to $1500 per annum are tax-deductible for individuals. On the other hand, big donations, even those made on the basis of mateship or ideology, undermine political equality.

Given this pervasive effect on political equality, why are donation caps not more prevalent in Australia? One clue lies in two countries absent from the list of those with caps: Britain and New Zealand. Like Australia, they have a longstanding Labor Party (albeit they spell it properly, as “Labour”).

“Surely these parties of the ordinary worker would support caps?” you say. Well yes, in principle. But when caps are introduced, the law is confronted by the problem of how to deal with the affiliation fees paid by the trade unions that formed those parties and still prop them up in the lean times of opposition. (Modern Labo(u)r parties do okay from corporate donations when they are in power or on the verge of power, but less well when facing the wilderness, thanks to their pragmatism and that of business donors.)

A second hurdle for caps is whether new political forces may need an injection from a sugar daddy in order to challenge the might of the existing major parties. This is less relevant for an eponymous self-funded party like the former Palmer United Party (now the United Australia Party) but very important for a more genuine movement like the teal independents who were turbocharged last year by Climate 200 support.

The key figure behind Climate 200, a progressive entrepreneur who inherited part of the vast mining and corporate raiding fortune of Australia’s first billionaire, has even written a book celebrating the movement. It may be no coincidence that teal candidates did much better in the 2022 federal election — without caps on donations or expenditure limits — than in this year’s NSW election, where both are capped.

Limiting spending

The third option on the menu is expenditure limits, which constrain how much parties, candidates and lobby groups can spend on certain electioneering costs. These limits are now common for state elections in most of Australia, as this table shows. (Victoria and Western Australia are the odd ones out, Tasmania only has them for its upper house elections, and in South Australia they are nominally “opt-in” as a condition of public funding.)

Limits on expenditure drive the British and New Zealand systems, and are a feature across Europe and the Americas. (They cannot be mandated in the United States, and opt-in spending limits there have fallen by the wayside.)

In principle, expenditure limits do several jobs. They squarely address the “arms race” problem, which Mr Palmer has reignited in Australia. In constraining the parties’ demand for money, these limits free up them and their leaders to focus on genuine public business and may reduce demand for dodgy donations. They may also help deliberation by making campaigns less cacophonous, something that is a turn-off for many electors.

Expenditure limits should also be easier to police than donation limits. While donations are inherently behind-the-scenes, campaigning needs to be public to be effective. That remains the case even with the advent of highly targeted online campaigns, although that development requires transparency from social media companies.

When it comes to expenditure limits, the devil lies in the legislative detail. With no fixed terms for federal parliament, the capped period is not easy to define. (At Westminster, it is up to a year ahead of an election.) Exactly what is covered by “electoral expenditure” also needs careful design and definition. And the coordination of campaigns — between trade unions or corporate groups, for example — needs to be controlled to keep caps from being rorted.

Most vexed of all is the question of what limits should be put on lobby group electioneering — not least with some members of the High Court suggesting, in 2019, that the idea of a level electoral playing field limits differential treatment of parties/candidates and lobby groups. If so, this is an odd heresy. Representative elections are necessarily focused on parties and candidates; parties have ongoing reputations to protect, and party leaders and MPs are publicly accountable in myriad ways that lobby groups are not.

Reforming the morass

Fifteen years have passed since the states began modernising the law of money in electoral politics. Yet substantive change has been absent nationally. If inertia had its way, this dual track of state innovation and national enervation would be unlikely to change.

As we have seen, the national transparency net has widened to rope in electioneering lobby groups but has simultaneously frayed. Observers are optimistic, however, that federal disclosure rules will be tightened to include a lower disclosure threshold and more frequent disclosure obligations. None of this is rocket science. Models exist aplenty, from New York City to Queensland, for something approaching continuous disclosure in the internet era. On the question of which income will need to be disclosed, we must pray that the Greens and crossbenchers lean on Labor to deal with the “business forum” loophole it helped manufacture.

Tasmania is on the verge of becoming the latest (and last) subnational jurisdiction to update its law in the area, and its bill is instructive about what not to do. Across 265 pages it weaves an intricate web of registration and accounting requirements. Yet it does little more than bring in a regular disclosure regime, sweetened with generous public funding for elections and for party administration. The Liberal government wants to set the disclosure threshold at $5000 per annum: pretty high for a small state.

After self-inseminating his party with over $200 million over the past two national elections (mostly via Mineralogy Pty Ltd), Mr Palmer’s recent forays into electoral politics may leave one main legacy: some form of donation cap. To have any effect, it will need to include a suturing of that business forum/network loophole.

Any federal cap is likely, I suspect, to be set at a high level. The major party treasurers — along with otherwise “progressive” electioneering groups like Get Up! and Climate 200 — will baulk at setting donation caps anywhere near as low as some states have. (Victoria is the most parsimonious — just $4320 currently over the four-year term.)

This leaves expenditure limits as the main new item on the menu. Again, the shadow of Mr Palmer looms large; but not just his. Finding himself outspent by a teal rival in a previously blue-riband Sydney seat in 2022, a Liberal MHR complained that his opponent’s spending had been “immoral.” Is it too cheap to note that his party could have swallowed its economically libertarian instincts at any time during its three terms in government and legislated limits? Better late than never! Temperance bandwagons were mostly full of recovering addicts; and, as St Augustine ironically put it, “Lord, make me chaste and celibate, just not yet.”

Federal parliament’s Joint Standing Committee on Electoral Matters, a multi-party committee with fourteen members, has held public hearings, including on electoral finance reform, over a seven-month period. (MPs, even more than public lawyers, seem fascinated by electoral law.) Its report is due soon enough. The mix of compromise, competing principles and self-interest manifest in its recommendations will make for compelling reading. •

This article first appeared under the title “Money in Australian Electoral Politics: Reforming the Morass” in AusPubLaw.

The post Follow the money appeared first on Inside Story.

That firepower wasn’t enough. In a succinct summary of his judgement yesterday, Justice Anthony Besanko found that three newspapers — all of them part of the Fairfax group at the time — and their journalists had established the “substantial truth” of their reports that Roberts-Smith had murdered and assaulted unarmed Afghan prisoners. A Victoria Cross–winning war hero was instantly labelled a war criminal.

Notably, Justice Besanko accepted as true the report that Roberts-Smith had kicked an unarmed and handcuffed captive, Ali Jan, backwards off a cliff and then ordered a subordinate soldier to shoot him dead. Further details will emerge when the full 1000-page judgement is published on 5 June. A further fifty pages containing sensitive national security details goes to a more select readership.

What next? Roberts-Smith remains a free man. The defamation case was not a criminal trial. A judge finding substantial truth on the balance of evidence in a civil trial is not the same as a judge or jury finding guilt beyond reasonable doubt in a criminal case, as some of Roberts-Smith’s former colleagues in the Special Air Service Regiment were quick to point out.

The Seven Network — whose owner Kerry Stokes paid for Roberts-Smith’s legal expenses over 110 days of hearings as well as those of some supporting witnesses — has said Roberts-Smith continues in his job of managing the network in Queensland, though on leave, pending review.

Lead counsel Arthur Moses SC asked for and received stay of judgement to consider an appeal. An estimated $25 million has already been spent by the two sides; whether Stokes wants to put up more of his money remains to be seen. The defence side will seek to claim its share of this from Roberts-Smith and “third parties” (entities controlled by Stokes). So the Perth-based magnate could be up for most of the legal bill.

Will he quit or double down? If an appeal does proceed, it could delay a final resolution of the civil action for another year or more.

Watching it all closely will be the Office of the Special Investigator, or OSI, the war crimes unit that was revealed during the trial to be examining Roberts-Smith’s actions in Afghanistan. Will an appeal be an obstacle for the OSI if it is thinking of a move against the former soldier?

The OSI was set up after the defence force inspector-general, Justice Paul Brereton, found “credible” evidence that twenty-five current or former special forces personnel participated in the unlawful killing of thirty-nine individuals and the cruel treatment of two others during the Australian army’s deployment in Afghanistan between 2005 and 2016. Where the evidence justified it, the OSI was charged with launching prosecutions.

Under a former secretary of the federal attorney-general’s department, Chris Moraitis, and with former Victorian Supreme Court justice Mark Weinberg as special investigator, the office has a powerful array of federal police and legal investigators hard at work. Its first fusillade came in March, when a former SAS soldier, Oliver Schulz, became the first Australian serviceman or veteran to be charged with the war crime of murder, in his case for the alleged killing of an Afghan man in Uruzgan province in 2012. Schulz, who was given bail, is expected to be tried next year or in 2025.

Some other governments that fought in Afghanistan, including Britain and Belgium, are believed to be closely studying the Australian model. The OSI has also opened a close liaison with the International Criminal Court in The Hague, an important move because Australia, as a signatory to the Rome Statute setting up that tribunal, must show it is vigorously investigating and prosecuting any war crimes or crimes against humanity committed by its own armed personnel or citizens. Otherwise, the ICC is entitled to launch cases itself, with Australia having to hand over the suspects.

We also now know that the United States warned Canberra in early 2021 — via a US embassy defence attaché to Australian defence force chief General Angus Campbell — that the human rights violations detailed in the Brereton report might oblige the US military to suspend cooperation with Australian special forces under US legislation known as the Leahy Amendment.

Some might find this threat a bit rich given the United States’ counterinsurgency record and the character of some local forces it has sponsored, but the American military for many years cut contact with the Indonesian special forces, Kopassus, over its killings and abductions of government critics. That Australia now risked being tarred with the same brush must have been a shock.

With the Americans watching and Brereton having found credible evidence of specific war crimes, the Morrison government had little choice but to follow the judge’s recommendation for a formal criminal investigation. Now, with a federal judge finding “substantial truth” in the allegations against Roberts-Smith, the current government has added interest in the OSI’s work.

A finding for Roberts-Smith would have been a strong warning light for the OSI. The light has turned green, though the OSI would need to feel confident it has the high standard of proof required for a successful prosecution. It must be encouraged by the fact that former members of the tight-knit SAS have moved from being anonymous sources for the Fairfax journalists to protected and indemnified witnesses for Brereton, and then to in-camera sworn witnesses before Justice Besanko.

That these soldiers have risked ostracism to testify does, to a large extent, save the “honour of the regiment” for the SAS. Since Brereton, the unit has also been intensively retrained in the rules of war. The warped command system described by Brereton, whereby seasoned non-commissioned officers came to overawe both the younger lieutenants and the captains above them, has also been tackled.

But the question of responsibility doesn’t end with the soldiers committing the alleged offences. Fellow soldiers didn’t come forward. Officers failed to monitor their soldiers closely, signed off on falsified reports of enemy encounters, or implicitly condoned the practice of planting “throwdowns” (weapons or radio sets) on the bodies of killed civilians.

One of the most sickening allegations against Roberts-Smith was that he murdered a one-legged Afghan man and took his prosthetic leg back to base as a war trophy. In an unauthorised bar on the main Australian army base in Uruzgan known as the “Fat Ladies Arms,” Roberts-Smith and other soldiers used this leg as a beer-drinking horn.

The existence of this bar, flouting the rules against alcohol on operations, can hardly have escaped the attention of any of the officers or non-commissioned officers running the operation. That this breach of orders was tolerated perhaps shows the leeway afforded the SAS troops.

In the wake of the Brereton report, at least two serving or retired generals tried to hand in medals won as commanders in Afghanistan but were asked to hold off. ADF chief Angus Campbell’s decision to withdraw the unit citation from special forces personnel who’d served in Afghanistan was overruled by Peter Dutton as defence minister.

This week in Senate hearings, Campbell said a review handed to defence minister Richard Marles two weeks ago had considered whether “a small number of persons who held command appointments” should lose medals or honours. Campbell himself was commander of the Middle East task force covering Afghanistan in 2011–12, regularly visiting Australian troops in the field from his base in the United Arab Emirates, and was awarded the Distinguished Service Cross for his role. Pushed by independent senator Jacqui Lambie, a soldier for ten years, Campbell said he was himself included in the review.

A wider responsibility rests on the political leaders and policy advisers who sent soldiers into an unwinnable conflict in which forty-one would be killed and many more injured, and after which dozens would commit suicide and others, partly for want of control and discipline, seem likely to face imprisonment.

Kim Beazley, newly appointed chair of the Australian War Memorial council, faces some immediate challenges. Two of his predecessors — Kerry Stokes and former defence minister Brendan Nelson, who appeared as a character witness for Roberts-Smith — left an unexploded bomb: an exhibit of Roberts-Smith’s combat gear and material extolling his heroism.

It may be tempting to simply remove the display. But rather than a historical airbrush, an exhibit about the Brereton inquiry and the OSI might better suit the times. Even Charles Bean, the AWM’s founder, included the 1918 rampage in 1918 by Anzac troops against Palestinians at Surafend in his official history of the first world war.

A sad reminder that the whole operation was never really about the Afghans came when the Department of Foreign Affairs and Trade withdrew its embassy from Kabul at the first sign of US withdrawal, two months before the city fell to the Taliban in August 2021. Thousands of Afghans who had worked with Australian forces or agencies were left at risk of vengeance.

This week Australia’s former inspector-general of intelligence and security, Vivienne Thom, reported on their plight to the government. Responding, ministers including Marles, foreign minister Penny Wong and attorney-general Mark Dreyfus blamed the Morrison government and said criteria for asylum would be expanded. But Afghans have been given only until the end of November to apply — how they would do that in the absence of an embassy is unclear — and the program will close at the end of May next year.

Brereton’s recommendation that Canberra not wait for the end of investigations and trials to pay compensation to Afghan victims and bereaved families was put in the too-hard basket eight months later when the Taliban took Kabul.

The dust of Uruzgan, as sung about the Australian diplomat who performs under the name Fred Smith, will keep blowing in. •

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But Besanko’s incendiary finding early yesterday afternoon that Ben Roberts-Smith, the most highly decorated and revered Australian soldier since the Vietnam war, was “a murderer, a war criminal and a bully” — as the headline in the Age instantly trumpeted its victory — is a watershed moment for the future of investigative journalism and, more profoundly, for the future of our military forces, upon whose reputation much of our national self-esteem has been cultivated for more than a century.

Besanko ruled that Roberts-Smith murdered or was complicit in the murder of multiple unarmed civilians while serving in Afghanistan. He found, on the balance of probabilities, that Roberts-Smith kicked a handcuffed prisoner off a cliff in 2012 before ordering another soldier to shoot him dead. He further found that in 2009, the SAS corporal ordered the killing of an elderly man found hiding in a tunnel in a bombed-out compound and, during the same operation, murdered with a machine gun a disabled man with a prosthetic.

The decision was not a criminal conviction but a civil judicial determination of truth on the “balance of probabilities.” But the reputation of Victoria Cross and Medal for Gallantry winner Roberts-Smith lies in tatters, along with that of the Special Air Service Regiment, with which he served, and the troubled Australian deployment in Afghanistan for which he was once a poster boy. And an air of grim foreboding hangs over the coming Afghanistan war crimes prosecutions in which Roberts-Smith is front and centre among many soldiers accused of grave abuses.

Roberts-Smith’s decision to sue for defamation must go down as one of the biggest own goals in history. As Age reporter Nick McKenzie pointed out after the verdict, the journalists had not wanted to go to court and neither had the SAS soldiers forced to give evidence against their former comrade. Roberts-Smith gambled that by taking defamation action he would intimidate and silence his media accusers. Instead, he simply amplified massively the damaging publicity in a case that dragged out over five years, thanks to Covid, and ended by vindicating his accusers.

Had Roberts-Smith simply professed his innocence and rejected the allegations in the Age reports, however damning they were, the media coverage would likely have subsided until the findings of the Brereton inquiry evolved into war crimes prosecutions, a process that clearly still has a way to run. At that point, if charged, he would have been judged alongside others accused of equally heinous crimes, with perhaps a better opportunity to introduce mitigating evidence and supportive witnesses — instead of flying solo into the sun in the civil courts.

Nine Entertainment, dating back to when it was known as Fairfax Media, has been rightly applauded for backing its journalists in this case. Had it lost, it would likely have been up for the bulk of the costs of the two legal teams — estimated at as much as $25 million — aside from any award of damages. (Another $10 million is estimated to have been spent by the Commonwealth on its representation in the case.) Even with an expected costs order in its favour, Nine is likely to finish out of pocket to the tune of several million dollars. But given the gravity of the matters at the heart of the stories, the company really had no choice but to stand and fight, for the sake of its own reputation as much as that of its star journalists.

The modern history of media defamation cases in Australia, including at Fairfax, has been mostly about negotiating early settlements and quick payouts to avoid the potentially crippling costs of going to trial and losing — a fact that often has only emboldened litigants whose misconduct was a proper target of journalistic investigation but who have plenty of money to stare down the media and muddy the waters with writs.

Had Nine lost to Roberts-Smith, the fallout would likely have been very serious for the future of investigative journalism in Australia. The huge financial toll would have made all publishers and broadcasters even more wary about tackling big stories challenging high-profile, well-resourced entities, more likely to fold than fight when their journalism was challenged legally, and probably less enthusiastic about investing the big bucks needed to employ and deploy good investigative journalists.

The decision in the defamation case has no formal bearing on the war crimes proceedings, which is why defence minister Richard Marles was able to escape yesterday with a brusque “no comment” on the civil matter when his office will undoubtedly be consumed with analysis of the fallout from the case. But the intense publicity surrounding the trial and its shocking conclusion will sharpen expectations of a timely and thorough interrogation of the conduct of Australian forces in Afghanistan, which is now a full-blown national scandal and an international embarrassment.

On the steps of the court after the verdict, Nick McKenzie — whose formidable career and reputation also hung in the balance with the trial’s outcome — rightly pointed out that the decision involved one soldier not his entire regiment, many of whose members had bravely spoken out about his conduct. “I’d like Ben Roberts-Smith to reflect on the pain that he’s brought on lots of men in the SAS who stood up and told the truth about his conduct,” McKenzie said. “They were mocked and ridiculed in court. They were bullied. They were intimidated.”

But with many other SAS soldiers under active investigation for murder and other very serious war crimes, and with the brutal and ugly culture of the unit drawn in graphic detail during the defamation hearings, the future of the SAS Regiment is in serious question if not untenable. It is painfully evident that much of the behaviour that led to the alleged atrocities thrived under an elitist and secretive code. Some SAS members were clearly emboldened to believe they could act with impunity and in defiance of international law.

The indications that multiple offences occurred over many years in Afghanistan calls into serious question not only the failure of the SAS commanders to maintain discipline but also the lack of supervision by the entire command structure of the Australian Defence Force.

Just as the misconduct of a minority has tarnished the reputation of the entire SAS and all those who fought with courage and dedication in Afghanistan, so too has that misconduct cast a shadow over the reputation of the entire ADF, its proud legacy in two world wars and multiple other conflicts, and its claim to be the repository of the hallowed Anzac spirit and a standard-bearer of the Australian character.

The problem has been compounded by sections of our defence establishment who have resolutely defended Ben Roberts-Smith and denounced the work of those journalists who dared to challenge his record, not least within the previous leadership of the Australian War Memorial. Most egregious among them was former AWM director and later chairman Brendan Nelson who, after the first reports appeared in the Age, accused the journalists of running a scurrilous and unfounded campaign against the SAS and Roberts-Smith in particular.

“Australians need to understand that we have amongst us a small number of real heroes and Ben Roberts-Smith is one of them,” Nelson declared. “I say to the average Aussie, if you see Ben Roberts-Smith, wave and give him a thumbs up.” When he appeared as a witness in the Federal Court two years ago, Nelson said he had been cautioned by a senior member of government about his effusive support for the soldier, and went on to say that he had rung Roberts-Smith after reading the story about him: “I told him I’d read the story, I knew it was about him. I told him that I believed in him. I was very sorry that such an article should be published about him.”

The $25 million question is how Ben Roberts-Smith will foot the bill for his and Nine’s costs in the likely event that the court orders him to pay. It has been reported that his boss and principal backer, Seven Network magnate Kerry Stokes, lent him $2 million to pursue the action against Nine. Stokes, who was chairing the AWM board when the case was launched, yesterday expressed disappointment with the decision and appeared to try to dismiss it as a disagreement between soldiers.

“The judgement does not accord with the man I know,” Stokes said. “I know this will be particularly hard for Ben, who has always maintained his innocence. That his fellow soldiers have disagreed with each other, this outcome will be the source of additional grief.”

It has been reported that the Stokes loan to Roberts-Smith was secured with his Victoria Cross medal. If so, this could well prove one of the worst commercial decisions in the shrewd businessman’s career.

As I have written previously, it would be politically and morally untenable for a soldier found to have committed murder to be allowed to keep a Victoria Cross — and an insult to the memory of all other VC winners. If Roberts-Smith’s right to wear the VC is revoked for dishonourable conduct, the medal will have little value beyond that of a historical curiosity, and certainly won’t be worth the $1 million-plus that Kerry Stokes has generously paid to acquire other Australian VCs for the AWM.

The court victory is another feather in the illustrious cap of veteran journalist Chris Masters but it cements McKenzie’s place as the pre-eminent Australian investigative journalist of his generation, if not all generations. Over two decades he has exposed a succession of scandals in Australian public, corporate and criminal life, but none more serious or consequential than the rot at the core of Australia’s armed forces. •

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The first of those inquiries, the royal commission into the former federal government’s “amateurish, rushed, disastrous and ethically indefensible” robodebt scheme, is undoubtedly the more consequential of the two. The scheme involved large sums of money, affected significant numbers of vulnerable people with sometimes fatal consequences and — despite politicians’ efforts to lay the blame on public service advisers — left an ineradicable taint of corruption on all of those involved.

The second inquiry, the Operation Daintree probe by the Victorian Independent Broad-based Anti-corruption Commission, or IBAC, concerned the Andrews government’s awarding of a $1.2 million training contract to an entity controlled by the Health Workers Union not long before the 2018 state election. Compared with robodebt, it appears small beer; indeed, premier Daniel Andrews has shrugged off the inquiry’s recent report as a merely “educational” account covering long-ago events and containing “no findings against anyone.”

Integrity experts think otherwise. Griffith University’s A.J. Brown described the premier’s response as a “serious mischaracterisation” of the report, while a former judge, Stephen Charles, KC, declared that the facts found by IBAC “amount on Transparency International’s definition to findings of clear corruption.”

In its present form, IBAC can’t make such findings. The corruption body is constrained by the necessity of identifying an indictable criminal offence or narrowly defined common law crimes such as bribery, perverting the course of justice, and misconduct in public office. It is precisely this higher bar that allowed Andrews to spin the narrative on this occasion, as he also did in relation to the “red shirts” scandal and other instances of “grey corruption.” His success in so doing is reflected in one of the nicknames he has acquired, Teflon Dan.

For IBAC, the evident breach of standards reflected the centralisation of power under the premier’s watch and a “significant erosion” of ministerial accountability, a conclusion equally relevant to the robodebt fiasco. The two scandals might be different in scale and seriousness, but I’d argue they were similar in kind — and were fuelled by similar changes within the parties, similar changes in what is expected of leaders, and a similar spread and intensification of partisan advisory structures now evident in every state and territory.

The class and community coalitions and party loyalties that once sustained the major political parties evaporated in the late twentieth century. The smaller, professionalised party organisations that emerged in their place relied instead on their leader to articulate a message, often mediated by polling, focus groups and marketing research, to “win the vote.”

Leaders have been given more resources — including partisan staff in their private office — with corresponding high expectations of their performance. If the party base, a now-small group of true believers whose views increasingly diverge from the mainstream, isn’t satisfied, then conflict is likely within the party room. If the message doesn’t “play” (by building broad polling support or arresting decline) and colleagues become convinced that the leader can’t capture popular support, they are likely to attack.

Leaders who have failed to sell the message and resolve these contradictory demands have repeatedly been torn down in recent times. What can we learn from Morrison’s and Andrews’s contrasting experiences?

Morrison took office in precisely the circumstances I’ve described. The incumbent leader, Malcolm Turnbull, was challenged when he failed to contain the battles within the party room after trying to introduce a National Energy Guarantee. Peter Dutton triggered the challenge, but Morrison came through the middle and seized the leadership. He was able to contain early division by winning the vote at the 2019 election, not by proposing policy innovation but by negating everything Labor proposed under Bill Shorten. It was a highly successful exercise in communication and marketing.

Having won that miracle election, Morrison set about gaining control of the public service and amplifying the centrality of his prime ministerial office. But once he neutered the public service and ensured ministerial minders could interfere wherever they chose, he struggled to find larger objectives, save for the AUKUS deal in which, arguably, he was not the lead player.

He sought instead to manage the perception of events, thus exercising power without purpose. Dutton later conceded that the party had not “stood for any substantive policy formulation” during Morrison’s prime ministership. Since Tony Abbott was removed, he argued, “we allowed ourselves to be defined by our opponents.”

But Morrison’s preoccupation with control led him to entertain the remarkable delusion that the media and the opposition held him responsible for “every single thing that was going on, every drop of rain, every strain of the virus, everything that occurred over that period of time.” During the pandemic he secretly took on the additional portfolios he thought necessary to meet those expectations.

In doing this, Morrison displayed an extraordinary misunderstanding of his role, and of the necessity of distributed leadership imposed by cabinet conventions and responsible government. His view of his role helped explain the mindset that led to the Coalition’s defeat in 2022, with the “Morrison brand” tagged as a decisive negative factor and former Liberal leader John Howard admitting that “the absence of a program for the future… the absence of some kind of manifesto, hurt us very badly.”

Daniel Andrews has also been a controlling leader, but of a different stripe. Unlike Morrison, he was a policy activist from the first, with big projects in mind and always ready to front the press to insist on how and why they needed to be done.

Political scientist Paul Strangio has astutely summarised the characteristics that have enabled Andrews to succeed: a kind of electoral genius; a series of giant infrastructure projects that have reshaped the state and its economy; progressive and in some instances trailblazing social policy; and an ability to withstand the torrents of conservative criticism. The last of those skills bewilders and incenses his opponents but leaves them unable to lay a glove on him. Strangio also acknowledges that Andrews’s grip on the government and tactics for evading scrutiny and accountability have created a democratic deficit.

Where Morrison was the wannabe strong leader, hungry for power but with no strong sense of what to do with it, Andrews is the real thing. He believes his role is to make the tough decisions and he is ruthless in pursuing his objectives. Anyone who fails to fall into line is brutally excised from his executive and politically marginalised, with the late Jane Garrett, once seen as a possible future leader, the standout but far from only example.

If this is how Andrews deals with able colleagues, how likely are public servants to resist his or his staff’s impositions? The capacity of the Victorian premier’s office to intrude on conventional practice has been amplified by its growth under Andrews to something approaching four times the size he inherited when he took office.

Which brings us back to what Andrews has dismissed as relatively inconsequential: the recent IBAC report. Its findings of undue centralisation of power, improper process, inappropriate influence over and intimidation of public servants by the premier’s staff, and a significant erosion of ministerial responsibility drew on the testimony of former ministers Jill Hennessy and Jenny Mikakos, with the latter describing how Andrews’s office had “its tentacles everywhere.” Ministerial responsibility is meaningless, Hennessy observed, when “ministers are directed by the premier’s office about how to manage their departments.”

As political scientist Patrick Weller found in Don’t Tell the Prime Minister, his pioneering study of just such an episode during Howard’s time, staffers knew what the boss wanted and did whatever it took to make it happen — while carefully avoiding letting him know the inconvenient details. Thus, confronted with assertions about intimidation by premier’s office staff, Andrews can safely say that he was unaware of any pressure applied.

These are two different cases, but each of them involved a concentration of power and each was criticised during formal reviews in similar ways. Collective cabinet decision-making and ministerial responsibility had been overridden or subverted, due process and transparency had suffered, and accountability was unattainable.

It might be said that Morrison’s failure shows that the public notices when a democratic deficit emerges, and reacts accordingly. But what of Andrews’s longevity? Does his endurance show that the public is willing to forgive a lot if a leader does what is promised, notwithstanding dodgy deals on the margins? And could bigger problems flow from small democratic deficits?

The Liberal Party’s Victorian branch is heavily factionalised, torn between moderates, keen to adopt positions more attuned to demographic change and public opinion, and conservatives demanding a harder right-wing line. It has repeatedly been unable to persuade most Victorians that it is fit to govern. With no effective opposition, no one — aside from the hapless journalists Andrews has faced down for twelve years — is asking the hard questions.

The bigger danger for Victoria, as Paul Strangio has also intimated, is that Andrews, in bending the state to his will, might unwittingly be paving the way for what would effectively be a one-party state. The Westminster system assumes parties of government will be held to account by parties in opposition — and its breakdown would serve none of us well. •

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Politico’s Jack Shafer suggested it was Murdoch rather than the Dominion Voting System company that had somehow emerged the winner, despite the size of the payout. This is what News Corp does to make messes disappear, he wrote. “A hundred million here, a hundred million there, might crimp your finances, but in the Murdoch universe, paying such settlements is just the cost of doing business Murdoch-style.”

The company’s history does suggest settlements are part of the Murdoch modus operandi. As Shafer noted, News paid $US50 million to women who suffered sexual harassment at Fox, another $US15 million to an employee who complained of wage discrimination and $US500 million to a competitor in three separate actions over allegations of anticompetitive behaviour. Of the numerous other payouts, many are subject to non-disclosure agreements. And then there’s the invasion of privacy and other unethical conduct exposed by the hacking scandal in Britain, which the company tidied away by settling with legions of people.

But the Dominion case is different. The quantum of the payout — $US787.5 million, or half the company’s annual profit — is off the scale. It dwarfs the total amount paid during the hacking scandal and is generally seen as the largest defamation payout ever, by anyone, anywhere.

And this could be just the beginning. Another voting company, Smartmatic, is suing Fox for $US2.7 billion and has made allegations similar to Dominion’s. If it also settles for half, then Fox can kiss goodbye to the rest of the year’s profits and much of next year’s as well.

Then there’s a derivative case in which some of the “60 per cent of shareholders who aren’t Murdochs” are suing because they claim Fox board members and managers left them exposed to financial loss. The shareholders will allege that Fox decision-makers failed, despite numerous warnings, in their fiduciary duty to stop the on-air lies. Several cases are likely, all with eye watering amounts at stake. There’s also speculation the company will struggle to find insurance cover in future, or that its premiums will become prohibitively expensive.

The settlement has been a huge news story across the nation’s rival, and often tribal, TV networks. If the coverage I’ve seen is any guide, Murdoch isn’t having a great time in the court of public opinion either. On the relatively progressive MSNBC network, presenters were lining up all day to kick Fox and its on-air presenters, but especially Rupert Murdoch.

The most scathing attack was meted out by one of the network’s hosts, Lawrence O’Donnell, who delighted in pointing out that Murdoch “surrendered today like you have never seen him surrender before.” he claimed that in any other company the boss would be kicked out for the “stupidity” Murdoch had displayed.

O’Donnell argued that Murdoch had failed to provide the most basic oversight, such as insisting hosts issue the magic words “if that’s true” when discussing contested claims on air. He also accused Murdoch of mismanaging the Dominion law suit. If the company was always going to settle, he asked, why didn’t it do so before the chief executive and the most controversial on-air hosts were forced to go on oath and hand over their phones.

On this point, other commentators expressed gratitude to Dominion for pursuing the case long enough to force Fox to disclose all those internal emails and memos. Some even argued this was central to Dominion’s strategy; that it was a kind of gift to the nation and proof that Fox’s behaviour had undermined democracy itself.

The pre-trial documents remain on the public record and will continue to provide fodder for Murdoch-watchers for years to come. They’ve already revealed dozens of embarrassing details, such as high-profile Fox presenter Tucker Carlson’s passionate hatred of Trump despite his on-air adoration. They reveal the cynical culture and radically populist agenda inside an organisation that’s often captive to its own audience’s prejudices.

Over at Fox there’s been barely an on-air mention of the settlement. It was given perfunctory treatment when the network’s media reporter read a corporate statement that ended with the claim that the settlement “reflects Fox’s continued commitment to the highest journalistic standards.” The statement also said, “We acknowledge the court’s rulings finding certain claims about Dominion to be false.”

Back on MSNBC, contributors were quick to point out that an acknowledgement is not the same as an admission. In fact, the statement was little more than an allusion to the fact that judge Eric Davis had already ruled that Fox’s coverage was full of falsehoods. Davis was so convinced that he also ruled this conclusion couldn’t be disputed in the trial.

Observers noted that an acknowledgement also falls a long way shy of an apology, and it quickly became apparent that Fox wouldn’t be issuing one. An intriguing question is how much extra cash News handed over to Dominion to avoid having to say sorry. One suspects quite a lot: when you think about it, an appropriate apology would be quite a mouthful. To do justice to the matter it would have to say something like “Sorry for lying, systematically and knowingly, while trashing the Dominion business and amplifying the conspiracy theories of a president trying to overturn a democratic election and incite insurrection.” I suspect News would pay a lot of money to avoid saying that out loud.

Despite the cost, there appears to be little hope that Fox will change its ways anytime soon. On the day after the ruling, Tucker Carlson was hammering on about the same old issues — the spread of trans culture, the failures of the Biden administration, perceived security threats, the culture wars. As usual, no progressive voices were on hand to temper the fear-mongering. So perhaps Shafer is right? The business may have been bruised, but the business model is still intact.

Since I started writing this article we’ve discovered what the case means for Crikey and the lawsuit brought by Lachlan Murdoch against the Private Media masthead. You may remember that Lachlan’s case centres on Crikey’s decision to publish, and then re-publish, an article that claimed the Murdochs were the “unindicted co-conspirator” in the 6 January uprising in the Washington.

The Dominion case exposed the weakness of Murdoch’s argument. Fox chose not to defend the claim that it knowingly and repeatedly published false information and conspiracy theories that favoured the side advocating an uprising. To be clear, the United States is one of the toughest jurisdictions in which to bring a case against the media. It wasn’t enough that Fox was consistently wrong, Dominion had to prove actual malice by demonstrating a wilful motivation to damage Dominion through its falsehoods. The discovery process revealed that even with that protection Fox would be hard-pressed to defend itself.

The resulting trove of internal Fox documents was a boon for Crikey’s lawyers, who had to make the much stronger case under Australian defamation law that Fox made a concerted effort to undermine public confidence in the election result, contributing to the uprising. We’ve all seen what’s in the memos, and so has Lachlan Murdoch. This morning he bowed to the inevitable. •

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Contact with the real parliament came not long after. Yunupingu’s father was one of the signatories of the Bark Petitions sent to Canberra in August 1963 asking the government to hear the Yolngu before excising land for bauxite mining from the Arnhem Land Reserve. According to some — and this is entirely plausible — Yunupingu helped draft those bilingual documents.

Still an adolescent, he’d already had a taste of two experiences that would be lifelong. One was settler colonial intransigence. Although the Bark Petitions succeeded in their immediate objective — a parliamentary committee visited Yirrkala, heard Yolngu testimony and recommended compensation — they failed to stop the mining province being excised in 1968.

The other experience was translation, for which he had, by all accounts, a particular talent. Translation was Martin Luther’s sixteenth-century gift to Christendom: the imperative to render God’s word in every vernacular (rather than lock it up in Latin) was central to the Protestant rebellion again Rome and to the global “civilising” florescence of Christian faith.

At the mission’s invitation, Yunupingu spent two of his teenage years at Brisbane Bible College. Then, when he was just twenty years old, his people took the Commonwealth to court. Once again, Australia had to bend its ear towards the Yolngu. As anthropologist Nancy Williams writes, Yunupingu and another college trainee, Wulanybuma Wunungmurra, skilfully translated the Yolngu testimonies of customary law into English for the judge, Richard Blackburn. They were assisted by missionary linguist Joyce Ross. Each of the trio occasionally interjected with an alternative interpretation to what had just been heard.

For the first time in Australian legal history, a judge needed to hear an exposition of Aboriginal law and decide whether the laws of Australia were obliged to treat Aboriginal land tenure as binding for non-Aboriginal Australians. He had to answer the question: is Aboriginal customary ownership an enforceable proprietary right?

Blackburn’s judgement in 1971 came in two parts. Yolngu did have a continuing customary law that included concepts of land tenure. But Yolngu concepts of “ownership” didn’t amount to what counts as an enforceable proprietary right in Australian law.

For the second time, Yunupingu found himself on the losing side of a battle he had grown up with. But the twenty-three-year-old had contributed significantly to the judge’s grasp of Yolngu customs, and the case had given him, and the Yolngu clans, unprecedented credibility. In the two parts of Blackburn’s judgment it became possible to see a gap between morality and law. If Yolngu were still living by their own concept of what was right, were Australians not under a moral obligation to recognise them as owners of the reserve ?

The posing of this question in 1971 was an early rupture in Australian colonial consciousness, and it had been made possible by a coming together of enlightened Methodism, Yolngu territorial practice and the Australia’s common law. Without Yunupingu’s (and others’) skill in translation, this productive interaction would not have been possible.

What followed, within a few years, was a bipartisan commitment to land rights legislation. A sufficient number of Australians had seen in Blackburn’s ruling an implicit indictment of the laws they had been living by. That insight has continued to cascade through Australian law and politics: Mabo, Wik, the case for constitutional recognition.

The Garma Festival, which Yunupingu and his brother, Dr M. Yunupiŋu, established in 1999, has proved a lasting contribution to settler colonial Australia’s continuing self-examination. Self-examination doesn’t require shame and guilt, as long as it affords a respectful acknowledgement of difference — the difference, for example, between being a host and being a guest.

Being a guest, in this case on Gumatj clan land, can be rewarding. In 2018, journalist Julia Baird wrote that adopting the Garma protocols (as advised by the Yothu Yindi Foundation) had opened her up to a transformation of awareness, including an appreciation that “the offer of ‘Makarrata’ — a coming together after a struggle — was an act of remarkable generosity… they still invite us to walk with them, to understand better, which is an act of grace.” In January 2019, the Australian Financial Review named several female chief executives who had included Garma in their calendar of self-improvement. It has become a fixture on the calendar of Australia’s national politics.

Garma can also be hard. Leaders who choose the occasion to say forward-looking things about the colonial relationship can expect to be confronted. Just as the guests increasingly feel that they must be there, so the hosts take the opportunity to call them to better efforts. In 2014 Labor leader Bill Shorten hinted in a Garma speech that he favoured “anti-discrimination” language in the Constitution. The following year Yunupingu was reported as saying that the need for such an amendment was non-negotiable, while Marcia Langton got stuck into Tony Abbott’s resistance.

A year later, in 2016, Noel Pearson gave what one reporter described as a “rage-flecked” speech outlining his frustrations about constitutional recognition. At Garma 2017, prime minister Malcom Turnbull warned of the difficulty of constitutional recognition, while others lamented politicians’ lack of ambition. In 2018, Yunupingu, a member of the Referendum Council created by Abbott and Shorten in 2015, admonished Turnbull and Shorten for a lack of progress since the last festival. He had expected “detail and meaning and cleverness, not words and promises and nothingness,” according to one report.

In 2019, attending Garma was part of Anthony Albanese’s preparation for a tilt at the top job; he used the occasion to express support for the Uluru Statement from the Heart. It was a festival punctuated by fiery moments: Yunupingu expressed impatience at recognition’s slow progress and threatened to throw the Australian Constitution into the sea; Pearson, in another scathing address, accused the Institute of Public Affairs and conservative commentators of acting in bad faith.

Garma in 2022 — Yunupingu’s last, as we now know — was perfectly timed for Albanese to present his first draft of a constitutional amendment. Although he led a delegation of sympathetic MPs including federal Liberal MP Julian Leeser, it was also an occasion for Country Liberal Party senator Jacinta Nampijinpa Price to double down on her rejection of the Voice live on ABC television.

Will Yolngu in August 2023 find themselves hosting a debate, with Indigenous and non-Indigenous ranged on both sides of the debate? Almost certainly. This year’s Garma falls on the sixtieth anniversary of the Yirrkala Bark Petitions. Recognition has since become an unpredictable dynamic. What the Yolngu — under the auspices of Yunupingu’s Gumatj clan — have given Australia is an annual off-centre space of political performance where the visitors must work out how to acquit themselves honourably as guests. •

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What upset Craven was not the new words in the third sentence:

The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

This sentence makes it absolutely clear that parliament can design the Indigenous Voice as it wishes. It can specify not only its “composition, functions, powers and procedures” but also anything else about the Voice, including its dealings with Commonwealth public servants.

No — what worries Craven is that the Voice will have any entitlement to talk to public servants. In common with the draft constitutional amendment announced at Garma last July, the second of the three sentences issued last week by the prime minister mentions “Executive government,” which takes in ministers and the public service:

The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.

Flanked by his Indigenous advisers, the prime minister thus rejected the advice of those who think it would be “constitutionally unsound” (Craven’s phrase) for an Indigenous Voice to speak to the executive. The “sound” option preferred by constitutional conservatives would have an Indigenous Voice making representations only to parliament.

Rather than being technical, the distinction between “sound” and “unsound” rests on one’s tolerance for risk. If the Voice is empowered to speak to the executive, there is a risk (acknowledged by attorney-general Mark Dreyfus on yesterday’s ABC Insiders) that interactions between Voice and executive will be subject to litigation in the High Court. The government accepts that risk.

Once the Voice is up and running, someone might conceivably bring an action in the High Court alleging that the executive failed to pay due attention to the Voice’s advice when it made a particular decision. The High Court might respond by setting out protocols obliging the executive to demonstrate that it really has taken account of the Voice’s advice. It could say, for example, that the executive is constitutionally obliged to publish reasons for not following the Voice’s published advice.

Some commentators see this as an appalling possibility, and it certainly provides a theme for those writing the official No case. They will present as an intolerable risk the possibility that a government will be obliged to demonstrate that it has really listened to the Voice’s advice. As Tony Abbott wrote recently, the possibility that such a Voice “would have to be listened to” is a reason to vote against the amendment. Craven has speculated that many voters are constitutional conservatives, fearful that future governments will be crippled by a new line of accountability.

Because the High Court declines to hear litigation about how parliament does its business, the conservatives believe a “constitutionally sound” option — a Voice speaking to Parliament only — would keep the High Court at bay.

It is a striking feature of Australia’s political culture that so many politicians and commentators see the High Court of Australia — one of the three branches of the Commonwealth — as a threat to the process of government. They condemn as “judicial activism” any judgements they disagree with. For these observers, the Mabo and Wik judgements left a wound that will never heal.

The critics who apprehend a future of hog-tied governments have characterised the prime minister’s announcement last Thursday as a victory for radical advisers over those who have counselled the more cautious option: an Indigenous Voice authorised to speak only to parliament. True, it was a victory for these ascendant “radicals,” but they still face a political task that will arrive only after the referendum: persuading the Indigenous public that the Voice is worth having.

It is all too easy to forget that this referendum is different, in one fundamental respect, from any other that has been presented to the Australian people. It proposes an act of recognition for a segment of Australian society that has emerged, in the last fifty years, as an Indigenous public. For an act of recognition to be effective, it must be expressed in terms agreeable to those who are to be recognised. To recognise someone in terms they find repugnant or trivial is to misrecognise them, making the relationship worse rather than better. What the Indigenous public thinks therefore matters.

The Indigenous public has already shown it can matter. Encouraged by the Referendum Council (a body established by Tony Abbott and Bill Shorten in 2015) and enacted as a series of assemblies, it produced the Uluru Statement from the Heart, a document of undoubted political consequence. (Craven thinks it “sublime.”) The Indigenous public will start to matter even more if the Yes vote triumphs at the referendum, for Indigenous Australians will then say yes or no to the details — so far undetermined — of the Voice’s design.

How will this Indigenous public speak if it is not yet “the Voice”? After the referendum — if it succeeds — the government will have voters’ mandate to formulate a Voice bill, but this mandate is not enough to give it a free hand. It has promised to consult Indigenous Australians about the detailed design of the Voice.

How will we know if those to be recognised in the Constitution wish to be recognised in a particular way? Consultation on the post-referendum bill must augment the work of parliament.

Last September, UNSW lawyers Gabrielle Appleby, Sean Brennan and Megan Davis recommended that the post-referendum consultation process itself be the subject of legislation to be passed (but not “commenced”) before the referendum. This legislation would provide for a Voice Design Council, guided by an Indigenous steering committee, to come into existence if the referendum is passed.

The council would do something similar to the work performed by the Referendum Council: it would conduct regional dialogues. First Nations delegates would deliberate on the Voice’s design, and the dialogues would culminate in a national convention to write drafting instructions for the bill. The Indigenous steering committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.

Why go to all this trouble after the referendum? Isn’t the referendum the decisive moment? For the Indigenous leaders of the constitutional recognition campaign, the referendum is but one (vital) step in a recognition process. What they must then do is engage with the Indigenous public on the question of what is acceptable as a form of recognition. An ongoing intra-Indigenous political process is clearly already under way; this will continue after the referendum.

If the referendum attracts a Yes majority among all voters and among the six states, the Indigenous leaders who have been advising Albanese will have the wind in their sails. But we shouldn’t underestimate their task. It has become clear that Indigenous Australia abounds in sceptics poised (for a variety of reasons) to say the Voice is not an acceptable form of recognition. These leaders will need to be able to say to the sceptics that the Voice is worth legislating because its design, after the referendum, has been determined by Indigenous wishes.

By accepting the risk of what Craven calls a constitutionally unsound amendment — a Voice speaking not only to parliament but also to the executive — Albanese has given elbow room to those who, in this consultative process, will draft the Voice legislation. The advisory Voice minimally described in the constitutional amendment will have a purchase on government attention not only via parliament but also via the executive, and the High Court may be asked to prescribe the executive’s listening procedures.

By accepting the risk of Indigenous empowerment (via a justiciable right to be listened to), the government has reduced the risk that the Indigenous public will say, after the referendum, “The recognition you offer is not worth having.” A Voice that could advise only through parliament would attract no shortage of Indigenous scorn. The decision to continue to include the executive in the amending words gives Albanese’s Indigenous advisers a stronger platform from which to say to the Indigenous public, after the referendum, that this Voice has been worth the fight. •

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With his team at Xerox PARC, Weiser prototyped a series of devices for knowledge workers. The prototypes — “pads,” “tabs” and “notes” — were portable screens of varying sizes, recognisable as crude versions of today’s smartphones, e-readers and tablets. Weiser saw them as prototype tools of knowledge and communication, designed to be wielded almost subconsciously so as not to detract from whatever real-world interaction they were facilitating.

Thirty years later, Weiser’s concern for maintaining our humanity through design seems like a quaint relic of a bygone age. The consequences of computer technology’s proliferation and its demands on our attention have begun to feel acute and sinister, inspiring increasing antipathy towards the Big 5 (Alphabet, Amazon, Apple, Meta and Microsoft) and the culture they are exporting by way of their technology and their stranglehold on the business zeitgeist.

Orly Lobel thinks this “techlash” is an overcorrection. Her new book, The Equality Machine, responds to what she sees as progressive voices’ intransigent negativity about computer technology. Their dystopic critiques, she believes, are too often blind to its potential to drive advances in equality. In a refreshingly direct manner, she posits a middle way. Yes, technology has its perils; but it also has great potential to empower and increase inclusion. The difference lies in the design choices we make.

Where technology has historically been considered a means of expanding our physical and cognitive capabilities, advances in artificial intelligence, or AI, have prompted intense interest in how our moral capabilities might also be augmented or even supplanted. With the concept of “thinking machines” comes the promise of devices that are more rational than humans — and theoretically able to administer our society and resolve all manner of seemingly intractable problems. This perspective is often referred to as techno-optimism.

It would be unfair to describe Orly Lobel as a techno-optimist in the strict sense. As the Warren Distinguished Professor of Law at the University of San Diego and the founder and director of the Center for Employment and Labor Policy, she is an expert in ethical tech policy. Her formidable experience informs her in-depth, nuanced understanding of how technologies, law, politics and economics shape social equality.

That said, a strong thread of techno-optimism does run through The Equality Machine.

Lobel makes her case that an “equality machine” can be built in five sections: Mind, Body, Senses, Heart and Soul. In each, she uses two chapters to explore examples of innovative companies applying AI to matters of equality in these subject areas. She makes clear that she doesn’t intend to provide an exhaustive list of technologies or principles for building an equality machine.

Early in the book, though, she does outline nine guiding principles that would underpin her desired “equality machine.” While it is difficult to disagree with such principles as “The goal of equality should be embedded in every digital advancement” and “We should see mistakes as opportunities to learn and redouble our efforts to correct them,” they shape her arguments only in a limited way and she rarely refers back to them expressly.

Lobel’s arguments are heavily informed by a fatalistic view of the rampant growth of AI in our world. “The train has left the station,” she writes. “AI is here to stay. AI is here to expand.” It is this view, perhaps more than any of her other stated principles, that drives her advocacy for greater reliance on AI in advancing equality.

Her examples of where AI is advancing equality are often compelling. Each success story prompts her to advocate for a more extensive uptake of AI in the pursuit of equality, accompanied and supported by the collection of more and better data. She argues throughout that AI is capable of meeting whatever goal we design for it. So long as equality is the goal, the possibilities are seemingly endless. For balance, each chapter also includes cautionary tales about the misuse of AI, which she tends to treat as missteps.

Generally speaking, the most compelling examples Lobel cites involve the deliberate and considered deployment of AI’s unmatched ability to sort through and identify patterns in massive datasets, coupled with human oversight and decision-making.

Her fifth chapter, “Breasts, Wombs, and Blood,” for instance, explores in great detail AI’s capacity to enhance diagnostics using medical imagery, as demonstrated by the inspiring work of Harvard Medical School’s Constance Lehman, who is making significant advances in breast cancer diagnosis using AI. Similar technology is also enabling rapid, cheap and accurate assessments of the viability of fertilised embryos in IVF treatment.

Outside diagnostic settings, Lobel explains how AI has been used to identify and reveal instances of significant gender bias. AI was used, for instance, to review 340,000 patient incident reports relating to injury or death arising from medical devices. Sixty-seven per cent were found to involve women and only 33 per cent men. Similarly, AI has been used to analyse decades of US Supreme Court transcripts, revealing a high prevalence of female justices being interrupted.

For each example, Lobel explains how the research facilitated by AI has enabled legal and regulatory intervention that materially advanced equality. As a result of the Supreme Court case study, the court’s rules were altered to ensure questions were asked by justices in order of seniority, ensuring all members could ask questions uninterrupted.

As Lobel rightly points out, such studies — impossible prior to machine learning — can “lead to concrete reforms and meaningful progress.” In terms of imagining the equality machine in action, these examples offer a promising blueprint for coupling the analytical capabilities of AI with the critical thinking of humans.

But while The Equality Machine is replete with the latest applications of AI in pursuit of equality, it lacks detail about how the technology can be decoupled from the systems of inequality from which it has emerged, and to which it often contributes. Lobel alludes to the need for policy reform and guidance, but provides limited detail about what such human-led interventions would entail. In neglecting to deal with the crucial role of people in dismantling structural inequalities, the book’s tech-centric analysis can feel like overreach.

Take, for example, her discussion of the #MeToo movement. Referring to the sexual assault crimes of Harvey Weinstein, she refers to the Pulitzer Prize–winning investigative journalism of Jodi Kantor and Megan Twohey, who broke the story. Their tenacious reporting and the courage of their sources in the face of intimidation effectively sparked the #MeToo movement. Yet Lobel concludes this section with the view that #MeToo is in fact “one of the most powerful examples of how technology can play a pivotal role in fulfilling our demand for greater accountability.”

Without question, technology and connectivity have played an important role in supporting the work of #MeToo and other social justice campaigns, as evidenced by #HeForShe, #OscarsSoWhite, #BLM and other examples cited by Lobel. Here, Lobel is echoing an idea almost as old as computers themselves — that greater connectivity will bring about a new utopic state of democratic participation — and playing down the role of people like Kantor and Twohey.

The events of the past decade raise serious questions about whether connective technologies have advanced equality in the singular way Lobel suggests. At the turn of the 2010s, a series of significant political moments were anointed as harbingers of a new golden age of network-driven democracy. Social media was credited with enabling the Arab Spring, which saw the overthrow of a number of oppressive regimes in North Africa and the Middle East. Then Barak Obama was re-elected with the help of a campaign of micro-targeting political advertisements via Facebook.

Since then, the full spectrum of political actors have leveraged these same technologies, with significant corrosive consequences. Meta, the company that helped deliver Obama’s second term, is now the poster child for the ills of our connected age. Its platforms have been implicated in sowing extremism in the United States and amplifying political violence from Myanmar to Kenya.

Lobel doesn’t dwell on these matters. Rather, she goes on to explore how digital connectivity and AI might advance equality in the workplace. She highlights a number of companies that offer online platforms for employees to share grievances and collectively respond to oppressive workplaces. Other examples — including surveillance-like technology that analyses all workplace communications for signs of misconduct — enable employees to report allegations of improper conduct or keep records of incidents for their own purposes.  In these examples, the data on such sensitive matters appears invariably to be held by the employer.

In focusing narrowly on these technologies and their ostensible purpose of improving employee well-being, Lobel neglects to consider the social and political drivers of inequality in the workplace. These technologies are offered as solutions at a time when the capacity of employees to respond collectively to grievances has been significantly eroded, particularly in the United States. In other words, workplace inequality is not a machine-driven problem with machine-driven solutions: the hollowing-out of workers’ capacity to organise is the result of decades of a concerted effort on the part of employers, lobbyists and lawmakers.

Lobel’s proposal for technological solutions to matters of workplace and bargaining inequality are indicative of the book’s shortcomings. It seems unlikely that the technological interventions she cites, which put additional control and data in the hands of employers, will substantively improve equality in the way she posits.

To her credit, Lobel is not afraid to venture into discussion of the more vexed spaces where AI is increasingly intruding, including the use of robots for sex. Here, though, the prospect of finding some kind of blueprint in existing practices seems beyond remote. Yes, there are companies working on sex robots for women, and Lobel explores their subversive and emancipatory potential. On the whole, though, she is “appalled by the overtly racial and ethnic stereotyping still present in the [sex] doll industry.”

Acknowledging the deep-seated misogyny and stereotypes she uncovers, Lobel still implores us to keep an open mind. Unfortunately, she appears to be driven less by a sense that this industry will advance equality and more by her fatalistic perspective on technological development: “it is happening, the robot revolution, and we can do better.”

Ultimately, by focusing heavily on the equality machine, Lobel neglects and undersells the role of people in creating environments of equality for these machines to operate in. Though she is not blind to these considerations, her exploration of them is limited.

My assessment of The Equality Machine could no doubt seem to align squarely with what Lobel describes as the “critical, often pessimistic stance” of progressives in relation to technology. But that isn’t my intention.

Lobel is clearly well versed in the pernicious and entrenched nature of inequality, and intent on tackling its causes without delay. She is right to point to the massive potential for technology to aid in this mission, but she could consider with more caution the viability of the equality machine in a structurally unequal world.

Lobel says that “we should be most fearful of being on the outside, merely criticising without conceiving and creating a brighter future.” But this fear is misplaced. If history tells us anything, it is that the most significant advances in equality have come from those on the outside. Building the equality machine should be no different. •

The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future
By Orly Lobel | Public Affairs | $45 | 368 page

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Since 2016, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory have all committed to talk about treaties with First Nations peoples. These processes are still at an early stage, but their challenges, complications and accomplishments provide important lessons for a national treaty process.

First, a refresher. Treaties are accepted around the world as a means to resolve differences between Indigenous nations and those who colonised their lands. They have been struck in North America and New Zealand and are being negotiated in Canada. Australia is an outlier: no treaties were negotiated when the British arrived, or at Federation, or in the years since then. Without any formal treaty setting out how to share the land, many First Nations peoples believe Australia’s moral and legal foundations are, in NT treaty commissioner Mick Dodson’s words, “a little… shaky.”

Many types of agreements have been negotiated between First Nations peoples and governments, but international law sets a clear standard for what makes an agreement a treaty. Treaties are formal instruments reached through a process of respectful negotiation in which both sides accept a series of responsibilities. They provide redress for past injustices, acknowledging that Indigenous peoples were prior owners and occupiers of the land and, as such, retain a right to self-government.

At a minimum, a treaty recognises or creates structures of culturally appropriate governance and establishes means of decision-making and control. Treaties are more than service-delivery agreements and provide more than symbolic recognition.

So, where are the states and territories up to?

Victoria: The Victorian treaty process is the most advanced. In 2018, after several years of consultations, the state parliament passed Australia’s first treaty legislation, the Advancing the Treaty Process with Aboriginal Victorians Act, which created a legislative basis for negotiating a treaty and set out a roadmap for that process.

First, elections for an Aboriginal representative body, the First Peoples’ Assembly, were held. Although turnout was low, the assembly has worked hard to build community support and has had some notable successes. The second step focused on building the key institutions necessary to support treaty negotiations. The assembly and the state government worked steadily and in partnership to accomplish this challenge.

The work has been impressive: an independent Treaty Authority has been created to oversee and facilitate negotiations and a self-determination fund set up to finance Aboriginal Victorians in their negotiations. The Yoorrook Justice Commission, Australia’s first comprehensive truth-telling commission, has also come into being.

In October 2022, the two parties reached agreement on a Treaty Negotiation Framework setting out the principles that will guide negotiations. New elections for the First Peoples’ Assembly will be held between May and June this year. The first treaty negotiations in Australian history are expected to begin by the end of 2023.

Northern Territory: While the patient work in Victoria appears to be heading in the right direction, recent developments in the Northern Territory emphasise the challenges involved in developing treaty processes 200 years after colonisation. Following two years of consultations around the territory, the NT Treaty Commissioner handed his report to government in March 2022.

Recognising that “the time for action has arrived,” the report recommended a truth-telling process, a Territory-wide agreement to set out broad parameters, and a series of individual treaties with First Nations or coalitions of First Nations. The aim would be “self-government, economic independence and reparations.” The report also set out a clear implementation process.

Welcoming the report’s release, Aboriginal affairs minister Selena Uibo noted that “significant support for treaties” clearly existed across the territory, and that “the Territory Labor government is proud to advance this process.”

But something changed: on 29 December, during the Christmas–New Year shutdown, the government quietly released its formal response in a statement on the Office of Aboriginal Affairs website. The independent NT Treaty Commission would be abolished and the Office of Aboriginal Affairs would run its own eighteen-month process of consultations to “test” whether Aboriginal Territorians agree with the report’s recommendations.

Queensland: The treaty process stepped up a gear in Queensland last month when premier Annastacia Palaszczuk introduced the Path to Treaty Bill. The legislation establishes a First Nations Treaty Institute tasked with preparing a framework for treaty negotiations, and a Truth-telling and Healing Inquiry to examine the continuing impacts of colonisation. As Palaszczuk explained, the bill “signals to the rest of Australia and to other nations that Queensland is ready and willing to confront that past and to listen to the painful stories that need to be told.” The move follows several years of consultations, as well as a commitment in the 2021–22 budget to provide $300 million in a Path to Treaty Fund to support the process.

South Australia: South Australia was one of the first jurisdictions to commit to a treaty process in 2016, though it was unclear exactly what the state meant by “treaty.” Some observers worried that the government was more interested in negotiating something like a service-delivery agreement. In any event, the process was abandoned in 2018 by the incoming Liberal government under Steven Marshall.

Treaty is back on the agenda following Labor’s return to government last year. On election night, incoming premier Peter Malinauskas committed the new government to “delivering on a state-based voice treaty and truth for the Aboriginal people of our state.” Respecting the sequencing of the Uluru Statement, the government has prioritised Voice. In February this year, it introduced a Bill to establish a First Nations Voice to state parliament. The government is expected to restart the treaty process later this year.

Tasmania: Treaty is not only the province of the Labor Party. In 2021 the Liberal government in Tasmania committed to finding out from Aboriginal people how the state can pursue reconciliation. The government responded positively to a report by former governor Kate Warner and law professor Tim McCormack recommending a truth-telling and treaty process. In December last year, Aboriginal affairs minister Roger Jaensch announced a new advisory group to work with government to design an Aboriginal-led truth-telling and treaty process.

Australian Capital Territory: Having declared it was open to talking treaty in February 2018, the ACT government provided funding in the 2021–22 budget to facilitate conversations with traditional owners to understand what they meant by treaty and hear how a treaty process might be developed. The report on those conversations was released, to mixed reviews, in July 2022. Aboriginal and Torres Strait Islander affairs minister Rachel Stephen-Smith apologised on behalf of the government that the process “did not engage as broadly as we had intended” and acknowledged a general feeling that healing was required before treaty should be pursued. Since then, focus has shifted to the first native title claim in the ACT.

Elsewhere: Neither Western Australia nor New South Wales have made commitments to treaty negotiations. Over the last few years, however, Western Australia has negotiated two comprehensive native title claims that several people — including me — have likened to a “lower-case t treaty.” Although they are significant agreements, they were not negotiated via a formal treaty process and therefore don’t cover the full range of issues expected of a treaty.

New South Wales is so far unmoved, though the 25 March state election might change this. The Liberal government supports action at a federal level, backing the Voice referendum in principle, but has no plans to implement a state-based Voice or treaty process. In contrast, the Labor opposition has pledged $5 million towards a year-long consultation with Aboriginal communities to determine if a treaty is desired and, if so, what it should look like. Those conversations would not begin until after the referendum later this year.

The federal government hasn’t made any formal commitments to treaty negotiations either. It is focused, quite rightly, on the Voice. Nevertheless, the Albanese government is committed to implementing the Uluru Statement “in full.” Following the referendum, attention is expected to shift towards a Makarrata Commission to “work on a national process of treaty-making and truth-telling.” Some reports suggest the government might move even faster. In October last year, it provided $5.8 million to the National Indigenous Australians Agency to commence work on establishing a Makarrata Commission.

Several themes are visible in these emerging treaty processes. The first is definitional: just what is a treaty? The fact that no treaties were ever formally signed in Australia makes modern negotiations more challenging. Not only do we need to develop brand new institutions and mechanisms to facilitate fair negotiations, but also the whole concept of what a treaty is or involves remains vague for many people, including governments.

Ambiguity on this central point is unlikely to work in favour of First Nations peoples. Indeed, uncertainty allows some people — like former prime ministers John Howard and Tony Abbott — to argue that a treaty would be divisive and could even lead to the break-up of the nation. Ambiguity can also create space for governments to claim that revamped strategies to engage with First Nations communities mean they are already working on treaty-making. Or that existing arrangements in relation to matters like native title and land rights are sufficient.

Policies aimed at transferring government service delivery to First Nations communities are important, but they are not treaties. Already concerns have been raised on this point. Many saw the initial SA process as a vehicle for the government to push service delivery onto Aboriginal nations. Similar complaints have been heard in the Northern Territory and Queensland.

Other challenges exist. Some Indigenous rights campaigners have called for an agreement governed by international law. While the colonial-era treaties signed in North America and New Zealand were international agreements, modern treaties are different. The treaty processes under way will draw inspiration and principles from international law, but they will be subject to Australian law.

A second key theme is the question of government commitment. Many First Nations people and communities are distrustful of governments and cynical about their promises. An official public commitment to treaty — a statement on election night, or a signing ceremony on Country — breeds hope and anticipation. The passage of legislation builds further expectations. While all understand that treaty-making will be challenging and difficult, inconsistent government action can threaten the viability of the process.

The NT government’s decision to walk away from the Treaty Commission’s report has caused considerable alarm. Yingiya Guyula, the independent member for Arnhem Land, was scathing, declaring that “it’s the same old story”: “My people have always been saying they are ready for a long time and the commissioner listened to that. But the government was not and is still not ready for treaty.” Larrakia elder Eric Fejo agreed: “They’re delaying it after spending millions of dollars, just to shut us up, because they already had the answer.”

The Queensland process is also weathering these challenges. In June 2022, Jackie Huggins, co-chair of the Treaty Advancement Committee, expressed her “frustration” at the government’s seven-month delay in releasing her report. The introduction of the Path to Treaty Bill in February 2023 indicates the government is committed to progressing talks, but questions remain.

That same month the state government proposed to override the state’s Human Rights Act to make breach of bail an offence for children — despite evidence this will disproportionately affect First Nations people. As the Queensland Aboriginal and Torres Strait Islander Child Protection Peak observed, “This seems directly at odds with the Queensland government’s intention to cultivate a new relationship with First Nations peoples as part of the Path to Treaty.” Whether and how governments can prepare themselves to engage fairly and constructively in treaty processes will go a long way to determining their success.

Treaty-making is challenging, but there are green shoots. The slow and steady approach in Victoria appears to be paying dividends. Community support for the treaty process has grown, and the Liberal opposition has come on board. Bipartisanship is important. Major structural reforms to the framework of governance in Australia are almost never achieved without a broad base of political support.

Developments overseas have also helped propel these processes. In 2021, Canada enacted legislation aimed at implementing the UN Declaration on the Rights of Indigenous Peoples. The UNDRIP sets a standard for negotiations and for settlement outcomes. Australia has endorsed the declaration, but it does not have legal force here. Nevertheless, Australian governments are increasingly familiar with the UNDRIP and refer to its provisions within their treaty processes. At the federal level, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs is inquiring into the application of the UNDRIP in Australia. These are promising signs for the prospects of treaty-making.

Looming over these developments is the referendum. If it succeeds, the government will likely rely on the expertise and advice the Voice could provide to develop a Makarrata Commission. Just how that national body integrates and supports the various state and territory treaty processes will require careful thought.

If the Voice fails at the referendum, on the other hand, it is hard to know how the federal government will respond. It is worth noting, however, that the states and territories kickstarted their own treaty processes because they were “not convinced that you can wait for a national process that has never ever delivered in relation to righting these wrongs.” Regardless of the outcome, treaty-making is well and truly on the agenda for governments across Australia. •

The post Treaty-making gathers pace appeared first on Inside Story.

Under spider socialism, some arachnids are more equal than others. Dominant spiders control large parts of the web but the subordinate spiders do most of the work: building and cleaning, organising and subduing the prey. Crucially, though, no one spider has full knowledge or control of the whole structure. Each works with some degree of independence in its own small section or subsection. There is no middle, beginning or end, no single locus of power and responsibility.

I know what you’re thinking: this sounds just like foreign capital investment in frontier markets under twenty-first-century financial capitalism. And you’d be right. Every few years, when some Cayman Islands middle manager discovers his or her conscience and shares a new tranche of incriminating files with the Guardian and the New York Times, we are reminded that out there, somewhere, the world’s super-rich and their vast network of highly remunerated accountants, lawyers, investment managers and “fixers” have built an elaborate parallel financial system that hides and protects their wealth.

The key to this system is its opacity. The wealthiest people on the planet benefit from the work of their most far-flung subordinates, but most of the time it is nearly impossible to establish precisely where and how they are connected. Capital doesn’t flow directly from Country A to Country B, but circuitously, through an invisible network of tax havens and offshore financial centres, an economic black hole that allows multinationals and the super-rich to exist in a permanent elsewhere.

When stories about tax havens and the offshore economy appear in the press — if they appear at all — they often tend towards the sensational: the laundering of an astronomical sum of money here, the implication of a highly recognisable name there. In 2015, for example, it emerged that a businessman named Jho Low had used a system of offshore shell companies to siphon more than US$4.5 billion out of the Malaysian government’s sovereign wealth fund, 1MDB. In 2017, Shakira, Bono and the Queen were among those named in the Paradise Papers, a huge leak of offshore data from a law firm operating in ten different jurisdictions.

In Spiderweb Capitalism: How Global Elites Exploit Frontier Markets, University of Chicago sociologist Kimberly Kay Hoang argues that the real story is not to be found in these headline cases but rather in the many thousands of low-key, everyday transactions that take place outside the purview of journalists, state officials and the public. Jho Low was unrepresentative: he was too big, too flashy, too public. If you really want to understand the system, she writes, you have to look at the people who operate without anyone noticing, the “stealth spiders.”

In 2016 and 2017, Hoang set herself the task of understanding precisely how this offshore economy functioned, especially in risky underdeveloped markets like Vietnam and Myanmar. For nearly eighteen months she “embedded” herself in the Southeast Asian corner of the spiderweb, first as an assistant in a Vietnamese asset management firm then as a kind of intrepid journalist-professor, pursuing and interviewing more than 300 fund managers, state officials, “C-suite executives,” consultants, lawyers, accountants and financiers, from the Cayman Islands to Hong Kong, and San Francisco to Myanmar.

In style and presentation, Spiderweb Capitalism is sometimes stultifyingly academic, but the material is pure Michael Lewis. Take, for example, Will, a forty-two-year-old Vietnamese-German investor and former Lehman Brothers banker who spoke to Hoang at length about his business operations in Southeast Asia. After losing his job in the 2008 meltdown, he says, he cashed out his savings and moved to Singapore to look for new investment opportunities. Despite earning up to US$1 million a year in his former career, he testified to a feeling of precarity. He wanted to become, in his own words, “an owner of capital rather than a worker for capital.”

Making direct equity investments in large companies required considerable staff support, however, so Will joined a “family office” (Wall Street shorthand for a private wealth management company that looks after the pooled wealth of one or more ultra-high-net-worth individuals). His company manages over US$100 million in assets and generally takes on individual investments in the five to ten million dollar range: serious money, but not serious enough to attract significant attention from the press or the top levels of government.

Will admitted to Hoang that he has lost count of how many offshore structures he controls. The main fund in this carefully constructed maze is domiciled in Guernsey, in the British Channel Islands, which has no income, state, corporation or capital gains taxes. That company has a number of tax-exempt subsidiaries in the Cayman Islands and Singapore, from which it manages its “onshore operations” in Vietnam, Cambodia and Myanmar. Each investment is registered as its own separate company or “special purpose vehicle” (a paper company that allows the parent business to insulate its various investments from each other). Will’s company only moves funds onshore for operations. With a bit of creative accounting, they are able to book all their profits in low-tax Singapore.

Creating such structures is remarkably easy. In Hong Kong, Hoang accompanied a wealth manager to the dingy offices of a company specialising in the establishment of offshore subsidiaries, a kind of H&R Block for tax havens. In a bland, windowless room, crammed floor-to-ceiling with stacks of paper, they were presented with a menu of wealth-concealment options.

The “privacy package,” they were told, included a company secretary service, an office address, a certificate of incorporation, the appointment of directors, share certificates and a company seal. They were regaled with the relative benefits of registering their company in Samoa versus the Seychelles. They were even provided with a list of preapproved company names, such as “Lucky Star 7” and “Happymoon4.” And the price was just US$900.

These structures are useful for tax evasion, but the reasons for using them, Hoang explains, are usually more complex. For foreign investors, they are often the only viable way to manage the culture of bribery in Southeast Asian business relations. Few show many qualms about this practice. Among her interviewees, there is a basic consensus that payments to government officials are part of the cost of doing business in this corner of the world.

The most common form of bribery in Vietnamese business culture, for example, is what is known as “speed money,” an unofficial payment to a minor government official that serves as a necessary supplement to their meagre salary. These payments can be as little as $25 and up to several thousand dollars. If a person refuses to pay speed money, paperwork will simply sit on government desks until they change their mind. Those who do attempt to stay clean must accept long delays and, by extension, much lower rates of return on their investments.

Larger, more overt forms of bribery and corruption are common, too, though Hoang’s interviewees are understandably coy about discussing them in any great detail. Even so, Will, the former Lehmann Brothers banker, admitted to owning an entire company — heavily insulated from the rest of his businesses — whose exclusive function it is to distribute bribes. For large projects, this can involve paying college tuition fees for the child of a significant government official or making a gift of high-end luxury products like Rolex watches and Hermès handbags, which function as stores of value that can be traded for cash.

Given the complexity and ambiguity of this informal economy, local knowledge is at a premium. In most cases, it is close to impossible for a foreign investor to operate in Vietnam without a local co-investor. The entire enterprise thus comes down to the cultivation of relationships: between foreign investors and their local partners, and between local partners and government officials. If one of these relationships breaks down, an investment can fall apart. They must be carefully managed, or — in Hoang’s words — “lubricated.”

Some of the most eye-opening passages of Spiderweb Capitalism involve the explanation of exactly how this lubrication takes place. In this highly masculine environment, it can typically involve drinking games and dance shows. On some occasions, though, it extends to “orgy parties,” organised encounters between investors, government officials and sex workers designed to establish a relationship of “mutual hostage.” “We have to literally get into bed with each other,” said one investor. “If one goes down, we both go down.”

The investors Hoang interviews for Spiderweb Capitalism are remarkably open about their business practices, many of which are at best ethically dubious. Some speak with pride of the elaborate offshore structures they have built, or the cleverness with which they have managed their relationships with state officials. Others speak of their activities in terms of sacrifice or duty, something difficult, sometimes unsavoury but ultimately necessary. One man even confessed — with full knowledge that Hoang was an American university professor working on a book — that a lot of what went on with sex workers at Vietnamese “orgy parties” was non-consensual.

This openness likely derives from the fact that — in a legal sense — they are all pretty much in the clear. If you are smart and you know the right lawyers and accountants, you don’t need to break the law: you “finesse” it. The key to doing business in this part of the world, Hoang writes, is this ability to work comfortably in the space between the legal and the corrupt, in the areas where the rules can be massaged in your favour. She calls it “playing in the grey,” the kind of cowboy mentality that has always prevailed in places where the law is ambiguous and inconsistently enforced.

Are those further up the capital chain implicated in these dilemmas? It is a complicated question, and one that the spiderweb is deliberately built to obfuscate. The legal firewalls that separate ethically questionable business dealings in Southeast Asia from their financial beneficiaries in other parts of the world are there by design. The big spiders, safe in their airconditioned boardrooms and private airport lounges, have plausible deniability on moral questions and impunity on legal ones.

What makes the system work are the small spiders, the white-collar strivers who do the bidding of the ultrarich. They build and maintain these elaborate capital networks, and they do so willingly, taking on pretty much all of the risk in the hope that one day they too might find themselves sipping pina coladas in a safer part of the web. As with the South American spiders, it isn’t clear who is the exploiter and who is the exploited, where the web starts and finishes.

Spiderweb Capitalism doesn’t give a systematic account of the offshore system. It is a study not so much of the spiderweb itself but of the individuals who work to create and maintain it. In the spirit of C. Wright Mills’s 1956 classic, The Power Elite, it attempts to “give global capital a face.” Markets don’t simply exist, writes Hoang. They are made. Each new section of the web is always built by humans. The novelty of this book is that she has gone out and talked to them. •

Spiderweb Capitalism: How Global Elites Exploit Frontier Markets
By Kimberly Kay Hoang | Princeton University Press | $49.99 | 288 pages

The post Playing in the grey appeared first on Inside Story.

Although they may not have reached these heights of nihilism, many people do wish their lives would end, or at least that they could be cut short if they became unbearable. With assisted dying increasingly in the news, Caitlin Mahar’s new book, The Good Death Through Time, presents an enlightening history of the desires of people suffering from terminal illness or planning for a dignified ending, and of the cultural shifts, religious values and medical advances that have shaped, supported or obstructed them.

Before acquiring its more familiar contemporary meaning about 150 years ago, euthanasia simply meant a good death. Dying was seen as a spiritual ordeal to be endured with Christian patience, and thus a test of courage and character. Much emphasis fell on what came after death — salvation or something much worse — rather than its attendant agonies. “For the faithful,” Mahar writes, “a good death was marked by the embrace or overcoming of suffering rather than its elimination.”

Just as well: doctors at the time had no power to alleviate pain. In fact, they believed it was beneficial to health, and were more apt to cause than cure it with their treatments. In any event, preparing the soul for death was judged more necessary than dulling the mind.

Some of this changed in the mid nineteenth century with the advent of opiates and other anaesthetics, prompting the earliest medicalisation of dying. Euthanasia came to refer to deaths eased by a physician’s care with the aid of narcotics. Pain was increasingly seen to lack redemptive qualities; reducing it might even help the dying to focus on spiritual matters. Mahar argues that this shift in attitudes reflected a more general rise in people’s dread of suffering and sensitivity to discomfort.

That rise, which William James characterised as a “strange moral transformation,” drove campaigns to reduce needless pain by outlawing vivisection, corporal punishment and blood sports. But it also provoked a backlash that foreshadowed present-day sneering at thin-skinned progressive “snowflakes.” A British critic of the voluntary euthanasia movement in 1906 ridiculed it as the home of pain-averse “literary dilettanti” and “neurotic intellectuals,” a charge later echoed by an opponent of euthanasia legislation who worried “we were getting too soft as a nation and too sensitive to pain.”

Mahar offers a compelling account of the rise of British voluntary euthanasia activism in the 1930s, a movement that originated within the medical profession and aimed to give doctors the power to accelerate lingering deaths using morphine and other narcotics in strictly limited circumstances. Despite having eminent supporters such as George Bernard Shaw and H.G. Wells, legislation failed after opponents raised concerns about the potential for abuse by relatives, slippery slopes, medical overreach, and the challenges of regulation.

The revelation that the Nazi regime euthanised well over 100,000 disabled people further damaged the voluntary euthanasia cause, reversing prior support within the medical community and undermining public support for the idea that some lives are “not worthy to be lived.” Mahar shows how eugenics-inspired advocacy for involuntary euthanasia of the intellectually disabled — advanced in Australia by University of Melbourne anatomy professor Richard Berry, whose name was permanently scrubbed from a campus building in 2016 — has tarnished the voluntary euthanasia movement.

The Good Death Through Time provides an authoritative examination of euthanasia debates, court cases and initiatives from the 1950s to the present. Mahar identifies shifts in the groups viewed as suitable for euthanasia, including people on life support or in unrelenting pain not linked to a terminal or incurable condition, as well as in the rationales offered for the practice. Although reducing suffering remains paramount and fear of pain may paradoxically have grown with medicine’s rising capacity to palliate it, voluntary euthanasia has been framed increasingly as a matter of rights, dignity and personal empowerment rather than alleviation of distress.

Australia has been near the forefront of legislative developments. Advocates for voluntary euthanasia argue that overly narrow eligibility requirements have led to unnecessarily bad deaths for those excluded. Disability activists, on the other hand, caution against broadened criteria, citing the Dutch experience of rising euthanasia among people with dementia or mental illness. Mahar concludes with a concise epilogue covering this recent context.

The Good Death Through Time is a lucid and well-documented guide to a challenging topic. Mahar provides a sympathetic but clear-eyed picture of euthanasia’s many protagonists and perspectives without forcing a single view onto the reader. The scholarship is global, but the focus on Australia and Britain adds to the book’s local relevance.

Mahar’s work is especially compelling as an account of the medical profession’s role in euthanasia, in all its meanings. The profession’s views on the desirability and scope of euthanasia have waxed and waned, its pharmacological tools enabling the practice while altering popular attitudes and increasingly pathologising pain. There is no better guide than this one to the wider context of current debates about assisted dying.

Philosopher Dean Rickles’s Life Is Short approaches death from a quite different angle, though he would agree with proponents of voluntary euthanasia that how we fashion our lives and deaths should be a profoundly personal choice. In re-visioning Seneca’s On the Shortness of Life, he wants to persuade us that although we may dread the end of life and entertain fantasies of eternal youth and immortality, it is life’s finitude that gives it significance.

“To have a meaningful life,” he writes, “death is necessary.” Only by having and recognising limits — “the very stuff of meaning” — can we make purposeful choices to create our selves and realise our futures, rather than being tossed around by life.

Life Is Short takes this idea and runs with it through eight brief but somewhat meandering chapters. Rickles suggests that the desire for immortality, or even just for a longer life, is often driven by a reluctance to foreclose future possibilities by making hard choices in the present. He dissects the difficulties individuals face in dealing with our future, notably temporal myopia — discounting the future relative to the present — and the less familiar but no less destructive favouring of the future at the present’s expense.

The key to overcoming these “diseases of time,” he suggests, is to develop a strong sense of connection with one’s future self rather than seeing it as a stranger. “[O]ur present self just is the future self of our past self! Treat every future time as equally as Now, because it will be Now later, and it will be your Now.”

How we should go about making a more meaningful life comes down to making it a project (“Project Me”), carving out a future by choosing and acting rather than leaving options forever open. Doing this requires us to overcome the sense that life is provisional and not yet quite real, which Rickles dubs “onedayism.” That process of overcoming involves understanding ourselves and our motives better. We must move beyond the childish feeling of being unbounded and invulnerable to a mature commitment to a purposeful life and work, dull as that may sound.

Despite his general breeziness and references to contemporary popular culture, Rickles’s intellectual influences have an oddly mid-twentieth-century flavour. Existentialist writers (Sartre, Camus, Heidegger, early Woody Allen) get guernseys, with their ruling image of solitary individuals creating heroically authentic selves against a backdrop of cosmic meaninglessness.

Carl Jung takes centrestage in the book’s second half; not the kooky, occult Jung of mandalas, the collective unconscious and flying saucers but the wise Jung of personal identity and the process of maturation. Rickles discusses at some length Jung’s ideas about individuation — the development of a coherent self through understanding our unconscious motivations — and how the archetypes of the present-oriented child (Puer) and the prudent elder (Senex) shape how we age.

What is noteworthy about this cluster of ideas is not just how much they have been generationally cast aside, but also how they portray our orientation towards life and death as fundamentally lonely and stoical. To Rickles, the authentic, unprovisional life is one in which individuals exercise their will by making resolute choices, pruning the branches of their tree of possibilities, and committing to a specific future.

There isn’t much room for other people in this vision of autonomous self-creation. They tend to figure primarily as the conformist horde who stand in the way of us becoming authentically ourselves by tying us down with their norms and expectations. Yes, each of us exists as a solo being with a unique beginning and end, but something is missing in an account of life’s meaning when relationships and social life are so apparently incidental.

It is well worth spending one of the last thousand or so Saturday afternoons we have left on Life Is Short, but in some ways it is an odd book. Contrary to its subtitle, it offers few concrete prescriptions for living a more meaningful life, so it is not a self-help book, however highbrow. Despite the amiable, self-disclosing persona of the author, its level of abstraction is too high for it to be accessible in a de Bottonian way, although Rickles sprinkles it with some memorable epigrams (“death anxiety is the ultimate FOMO”). Its intellectual style is too associative and wandering to be a philosophical treatise on the nature of life’s meaning.

All the same, as a meditation on a very big question — perhaps the biggest of them all — Life Is Short achieves its goal of making us think about the unthinkable. •

The Good Death Through Time
By Caitlin Mahar | Melbourne University Press | $35 | 256 pages

Life Is Short: An Appropriately Brief Guide to Making It More Meaningful
By Dean Rickles | Princeton University Press | $34.99 | 136 pages

The post Appointment with death appeared first on Inside Story.

Collaery, a former ACT attorney-general, was charged with having breached secrecy laws when he revealed that the Australian Secret Intelligence Service had bugged Timor-Leste government offices in 2004. At the time, Australia was negotiating a maritime boundary straddling a rich natural gas field in the Timor Sea. Also charged was one of Collaery’s clients, a former ASIS officer known as Witness K.

When the case eventually went to trial, Justice David Mossop accepted the Coalition government’s argument that much of the evidence needed to be kept from the public, and some of it even from Collaery himself, to protect national security. But a three-person bench of the ACT Court of Appeal, including the territory’s chief justice, overturned Mossop’s ruling.

Before the court could publish its reasons, Dreyfus’s predecessor, Michaelia Cash, directed the government’s most senior legal officers to seek to have the ruling overturned by the High Court, with a stay on the decision in the meantime. Otherwise, Cash’s lawyers argued, information “likely to prejudice national security” would be made public. Open justice was of “undoubted importance,” they said, but national security considerations had to be given “the greatest weight.”

That argument was received sceptically by chief justice Susan Kiefel and her High Court colleagues. Justice James Edelman asked solicitor-general Stephen Donaghue if the ACT chief justice’s error was merely that she “did not make the order that you sought.” Offered a choice between having the application thrown out or having the stay left in place, Donaghue opted for the latter.

Dreyfus’s termination of the prosecution left the status of the ACT Court of Appeal’s ruling unresolved. Surprisingly, he then asked the court to reconsider its decision to allow the contentious evidence to be made public. The ACT’s new chief justice, Lucy McCallum, heard the application in September, and her decision is now awaited.

The Human Rights Law Centre’s Kieran Pender, who has followed the Collaery case, says it is “very unusual” for the government to try to “relitigate” the Court of Appeal judgement. “Given the question of redactions has already been determined once by the Court of Appeal, and the government has withdrawn the High Court appeal, to attempt a second go at the Court of Appeal is remarkable.”

Instead, says Pender, “the attorney-general should get on with dropping the outstanding prosecutions of whistleblowers David McBride and Richard Boyle and reforming Australia’s lacklustre whistleblowing laws. Whistleblowers should be protected, not prosecuted in secret trials.”

Collaery believes the Albanese government is “encased” by the same circle of security advisers, in and out of the public service, who orchestrated the moves against Witness K and himself. But he can see why Dreyfus might have accepted advice against publication from ASIS director-general Paul Symon, a retired army general and former head of defence intelligence.

“When you’ve got an ex-warrior, albeit with no actual experience in the trade — when you’ve got a man of that eminence and decency, which he has, advising you that publishing the Collaery case would prejudice national security, you accept that advice,” Collaery tells me. “But it’s tripe. It was khaki dressage.”

Beyond the court actions themselves, many influential figures are incensed that responsibility for the murky chain of events stretching back to 2004 could remain unresolved.

Among them is the president of the International Commission of Jurists in Australia, John Dowd, a retired NSW Supreme Court judge and former state Liberal leader. In a letter to prime minister Anthony Albanese on 17 October he called for a royal commission looking at whether ASIS’s bugging operation broke Australian law, whether the secret service was deployed for private commercial gain, whether the national security claims for secrecy are valid, and whether Collaery and Witness K should be compensated.

Not surprisingly, Collaery also wants a royal commission. It should encompass not only the ASIS operation and its propriety, he argues, but also issues of “utter, utter treachery” he says he isn’t at liberty to discuss. Before he was charged, Collaery had security clearance to handle a range of sensitive legal issues involving intelligence agencies and personnel — the very reason why Witness K was originally referred to him for advice in relation to his misgivings about having led the Dili operation.

Collaery particularly wants a fairer outcome for Witness K, who was given a three-month suspended sentence in June last year for conspiring to reveal classified information. He contrasts the treatment he and K received with the kid-glove handling of senior ASIO and other Canberra officials who were exposed as having been compromised by the KGB when the Soviet intelligence agency’s chief archivist, Vasili Mitrokhin, handed over a vast trove of secret records following his defection to Britain via Estonia in 1992.

“We never compromised any national security,” says Collaery, “but those who did and were exposed after Vasili Mitrokhin took the stuff to Estonia were just left alone. Not even dishonourably discharged. And allowed to keep their medals and decorations and all the rest.”

Moreover, Collaery adds, “K was never a whistleblower, despite the media constantly calling him that. If anything he was leading the charge as a mutineer. And for good reason, and he wasn’t alone. The reason why they brought it down on us was to stop L, M, N, O, P, Q [from going public]. So the story’s not told.”

On the face of it, a royal commission should appeal to the new government. It could sheet home the duplicitous Timor-Leste dealings to Coalition leaders at the time of the bugging, notably prime minister John Howard and foreign minister Alexander Downer, and perhaps also other members of the cabinet’s national security committee (which would have included treasurer Peter Costello, attorney-general Philip Ruddock, defence minister Robert Hill and immigration minister Amanda Vanstone).

Yet the idea appears not to have seized Albanese — if the ICJ letter ever got to him. As his department’s acting first assistant secretary for national security, Philip Kimpton, wrote to Dowd, “We are not aware of an intention by government to pursue such a course of action at this time.”

A Labor figure knowledgeable about foreign policy issues explained why the government might be wary about looking into the 2004 spying incident. “Did it continue?” the figure asks, clearly mindful that similar intelligence-gathering activity might well have been going on under the Rudd–Gillard government.

Canberra’s fixation on securing the big undersea gas deposit now known as Greater Sunrise goes back to its first discovery in the late 1960s. Diplomacy, legal argument and espionage were harnessed to negotiate maritime boundaries with Indonesia, Portugal, Indonesia again, and Timor-Leste with the aim of bringing as much of the gas field as possible into Australia’s economic zone. This push by successive Coalition and Labor governments extended over decades.

The Witness K revelations started emerging under Labor, which continued to uphold the boundary negotiated by Downer (with help from the ASIS operation) between 2004 and 2006. It was not until 2018 that Timor-Leste, having had Downer’s 2006 border agreement nullified because it wasn’t negotiated in good faith, convinced an arbitration court at The Hague to endorse a new agreement that moved the border to the middle of the Timor Sea and gave Timor-Leste 80 to 90 per cent of the revenue from Greater Sunrise.

If a royal commission isn’t on the horizon, Albanese and Dreyfus may have opened another avenue for inquiry by creating the new National Anti-Corruption Commission. Susan Connelly, the Josephite sister who fought hard for a median-line boundary and strongly backed Collaery and Witness K, is one who has signalled a reference to the NACC.

This would put targets on the backs of Downer, who later accepted a consultancy from the leader of the Greater Sunrise consortium, Woodside Petroleum, and the late Ashton Calvert, who as secretary of Foreign Affairs supervised ASIS at the time of the bugging and on retirement became a director of Woodside. But the NACC legislation has an escape clause that allows the attorney-general to declare an investigation to be against the national interest.

Foreign minister Penny Wong seems to hope that focusing on practicalities will shift attention away from this rancorous past. In October she appointed former Victorian Labor premier Steve Bracks to broker agreement on developing Greater Sunrise. Bracks’s extensive post-political advocacy for Timor-Leste includes work on the maritime boundary.

Getting the gas field into production has become a matter of urgency for the government in Dili, which has been dipping into its Petroleum Fund — its sovereign wealth fund derived from oil and gas revenues — at an unsustainable rate. The last revenue from existing oil fields will flow into the fund at the end of this year.

If the current rate of withdrawal is maintained, the fund will run down to zero over the next decade. By 2034, according to the country’s finance ministry, Timor-Leste faces “a fiscal cliff” that will necessitate a “radical cut in all spending.” Using similar language, the World Bank has referred to an “inescapable macro-fiscal cliff in the next decade.”

“Timor-Leste is a petro state without much petrol,” says the respected Dili-based think tank La’o Hamutuk in a recent report. The government’s policies “continue to be based on blind faith that, because oil money has carried the country thus far, it will continue to do so indefinitely.”

Politicians in Dili follow former prime minister Xanana Gusmão in pushing for Greater Sunrise to be connected by pipeline to Gusmão’s Tasi Mane scheme. Forecast to cost US$15–20 billion, this complex on the island’s south coast would include an oil refinery, LNG plant, offshore gas and onshore oil pipelines, and a supply base for offshore petroleum projects, along with transport infrastructure and new towns.

Woodside Petroleum and many oil industry experts say the proposed pipeline is too risky. It will need to traverse the 3000-metre-deep, steep-sided, unstable Timor Trench between the gas field and the coast. Other analysts say its revenue and employment benefits have been wildly exaggerated by Tasi Mane’s proponents. Dollar for dollar, investing in coffee production could create six times as many jobs and six times as much GDP growth per dollar as investing in Tasi Mane, says one recent study.

The alternatives to the Greater Sunrise pipeline would be a floating LNG plant, or a connection to existing pipelines in the Timor Sea to transport the gas to Darwin for processing. Timor-Leste would still get most of the revenue but would need to stump up far less capital and would avoid the risk of pipeline failure. Australia might be seen to be getting an undue share of the benefits, though, despite its perfidy.

In September newly elected president José Ramos-Horta tried to pressure Canberra into overruling Woodside’s objections by threatening to bring in China to take over the project. Although China’s banks are reported to have already turned the project down as unfeasible, a Chinese state oil firm is said to maintain a permanent desk inside the office of Timor-Leste’s tiny state oil firm, TimorGAP. Xi Jinping, the Chinese leader, has not always put economics ahead of political-strategic factors.

TimorGAP, meanwhile, has released selected passages from a report by British oil industry consultants ERCE claiming that the running costs of the Tasi Mane and Darwin processing options are much the same. TimorGAP is still refusing to release the full 130-page ERCE report, says La’o Hamutuk, despite Ramos-Horta saying, on his Canberra visit, that this would be helpful.

Adelaide consultancy EnergyQuest says it would be far more productive for all parties to be talking instead about plate tectonics. The Indo-Australian plate is moving north at seven centimetres a year, meaning it would move 1.5 metres over the life of the project. “Building a pipeline [to Timor-Leste] subjected to the full force of one of the most rapid tectonic plate movements in the world is an idea that should never have got off the ground,” says EnergyQuest.

But the country’s successful independence struggle left a complex legacy. “In 1999, Timor-Leste ousted the Indonesian occupiers in defiance of ‘experts’ around the world who told them it would never happen,” wrote La’o Hamutuk’s Charles Scheiner in the recent report. “In 2018 they transcended ‘expert’ advice again, coercing Australia to agree to a fair maritime boundary.”

As a result, says Scheiner, “some Timorese leaders, especially veterans of the independence struggle, now believe they can accomplish anything, regardless of physical or economic realities.” That means Steve Bracks has his work cut out if he is seeking to pierce what some call a “mystical” belief in the pipeline — especially if, as seems likely, pipeline-proponent Xanana Gusmão returns as prime minister after next May’s election.

But Bracks may emerge as an envoy to Canberra rather than to Dili, persuading the Australian government to detach Woodside Petroleum from its lead position in the Greater Sunrise consortium, perhaps through a buyout, and let Timor-Leste take the running and the risks. Woodside has already written the value of its 33 per cent stake down to nothing and has plenty of other projects to keep busy with. Continuing to run Woodside’s case makes Australia look selfish and colonialist, say critics.

Bracks’s ability to persuade would be strengthened if Canberra showed any contrition over the spying and lack of good-faith negotiations — by holding a royal commission or other review, by apologising, and by rejoining the jurisdiction of the International Court of Justice on maritime boundaries, from which Downer withdrew Australia in 2002.

The current limbo is far from satisfactory, says Bernard Collaery. “All it does is leave Australia’s great moral issue in ambiguity.” •

The post Timor gaps appeared first on Inside Story.

A couple of days later, a nineteen-year-old from Afghanistan was reported to have badly hurt himself when he tried to climb out of a fifth-floor window of a reception centre for asylum seekers. He had panicked at around 3am when police came to his room to deport him to Croatia, where he had first entered the European Union. His fear may well have originated in experiences he had while passing through that country on the so-called Balkan route from Greece to Germany.

All three people — the two young women from Ukraine and the young man from Afghanistan — have sought refuge in Germany from countries ravaged by war. But while the women are allowed to remain in Germany until at least the end of 2023 without applying for asylum, the nineteen-year-old is prohibited even from seeking protection here. The women are employed and live in private accommodation; the young man was put up, with some 370 others, in a hostel run on behalf of the city of Hamburg.

In both cases, the European Union uses the same term, “solidarity,” to frame its response. Solidarity means that millions of Ukrainians have been allowed to settle temporarily in the twenty-seven EU member countries, and it is also the key concept underlying the EU’s common policy on asylum. But solidarity isn’t the exclusive preserve of the EU: activists campaigning against the deportation of asylum seekers have also assured the young man from Afghanistan of their solidarity.

Over the two centuries since it was first used, the English term solidarity has been “endlessly pliant,” in the words of the Swedish historian of ideas Sven-Eric Liedman. Are we perhaps talking about different kinds of solidarity here that have nothing to do with each other? Not quite. Bear with me, while I take you on a tour of European solidarity.

Solidarity is a buzzword in and around the EU’s headquarters in Brussels. A search of the European Commission’s official website, for instance, yields more than 40,000 hits for the term, and almost 4000 for the more specific “European solidarity.” This shouldn’t come as a surprise, for solidarity has long been deemed a distinguishing attribute of the European project.

The term features more than a dozen times in the Treaty on European Union, which underwrites EU law. In Article 2, the treaty refers to the EU’s foundational values of “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” “These values,” adds the article, “are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

Another key document, the Charter of Fundamental Rights of the European Union, goes further. In its preamble it lists solidarity as one of four “indivisible, universal values” on which the EU has been founded (the others being human dignity, freedom and equality). The charter helps illuminate the kind of solidarity the drafters of the Treaty on European Union had in mind: the twelve articles in its “Title IV: Solidarity” deal with things like healthcare, workers’ entitlements and social security — that is, with social and economic rather than civil and political rights.

The EU also prides itself on extending its solidarity to other, less fortunate nations. In recent months, Ukraine has been a prominent recipient of European solidarity, and so too have the countries most affected by climate change. At the conclusion of COP27 in Sharm el-Sheikh, European Commission president Ursula von der Leyen declared the conference to have “opened a new chapter on financing loss and damage” — a reference to Europe’s support for a fund to mitigate the impact of climate change — “and laid the foundations for a new method for solidarity between those in need and those in a position to help.”

Von der Leyen’s rhetoric was echoed by governments that strongly identify with the European project. German foreign minister Annalena Baerbock said that “Team Germany” had travelled to Egypt to campaign “for more solidarity with the most vulnerable states.” The EU would like to be seen internationally as a “normative superpower,” a major player whose actions are informed by ethical considerations. Affording solidarity to the weak and poor is as much the result of these considerations as are criticism, censorship and punishment of nation-states whose performance runs counter to the norms and values embraced by the EU.

More important for the EU’s identity than solidarity of, among or for its residents — or solidarity with climate-affected nations or war-torn Ukraine — is the solidarity EU member states extend towards each other. Here the EU’s rhetoric has been more innovative, applying to nation-states a concept that has been more commonly used, as it is in Title V of the Charter of Fundamental Rights, to characterise relationships involving individuals.

References to such intra-EU solidarity appear in foundational texts from the 1950s. One of them — the May 1950 Schuman Declaration, incidentally published on the EU’s website under the heading “70 Years of Solidarity” — is French foreign minister Robert Schuman’s proposal for the EU’s earliest forerunner, a coal and steel community comprising France, Germany, Italy, the Netherlands, Belgium and Luxembourg. Europe, Schumann said, would be “built through concrete achievements which first create a de facto solidarity.”

Schuman’s idea was picked up the following year in the preamble of the treaty establishing that community, which recognises that “Europe can be built only through practical achievements which will first of all create real solidarity.”

One apparent expression of the solidarity principle is the EU’s system of transfer payments from affluent to poor members. Croatia and Lithuania receive payments amounting to more than 4 per cent of their respective gross domestic products, and Hungary, Greece and Latvia each receive the equivalent of around 3.5 per cent of GDP. Political figures in Germany, Denmark, the Netherlands and elsewhere might complain that tens of billions of euros are lavished each year on poor cousins in eastern and southeastern Europe — conveniently ignoring the fact that the payments amount to less than half a per cent of the GDP of wealthy member countries — but the system is nevertheless working well.

But those payments don’t prove that the solidarity principle governs relations between member states. To understand how much heed is paid to the principle, we need to look beyond the EU’s routine budget negotiations to what happens in times of crisis.

When Greece was facing national bankruptcy during the eurozone crisis, it expected countries like Germany to cancel its debts (in much the same way as German debts had been cancelled in 1953). But the Tsipras government’s understanding of solidarity couldn’t easily be reconciled with the kind of solidarity promoted by the governments in Berlin, Paris or The Hague. Where the Greeks saw European solidarity as tantamount to debt reduction, the governments of affluent European countries insisted that solidarity involved a corresponding duty — namely, substantial cuts to the Greek budget. German finance minister Wolfgang Schäuble famously declared that solidarity was not a one-way street.

When Schäuble’s views eventually prevailed, I wrote in Inside Story that the outcome was “appallingly bad” not just for Greece but also for Europe. I stand by that assessment, not least because the eurozone crisis demonstrated that any aspiration the EU’s leaders may have had for the “real solidarity” envisaged by its founders remained just that: an aspiration. It did not translate into action. Schuman had a valid point when he suggested that inter-state solidarity doesn’t miraculously materialise but rather is created by means of “concrete achievements.”

Solidarity among member states is not just about money. It is also about sharing other resources — medicines and intensive care beds during the Covid pandemic, for example. Here, too, member states’ performance has rarely matched their lofty rhetoric. During the early days of the pandemic, Germany and France were roundly and for good reason condemned for imposing export bans rather than sharing their (admittedly meagre) supplies of masks and ventilators.

Sharing electricity or fossil fuels during the current energy crisis could also be evidence of solidarity among member states. But will they really be prepared to help each other out during winter rather than reserve resources for their own use? In Germany, the Scholz government recently created a national €200 billion rescue shield to protect businesses and households from rising energy costs. It could have pushed instead for a European emergency fund that would have extended benefits much more widely (though not as generously as the German subsidies). Its decision indicates how national governments will react if freezing temperatures stretch Europe’s capacity to avoid power cuts, keep industries running, and heat residential and public buildings.

The most controversial aspect of European solidarity comes in Title V of the Treaty on the Functioning of the European Union, headed “Area of Freedom, Security and Justice.” Article 67(2) stipulates that the EU “shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.” The role of solidarity is further emphasised in Article 80: “The policies of the Union… and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.”

Burden-sharing of this kind is not a new idea. Back in 1950 France suggested that the UN Refugee Convention should include the following provision: “In a spirit of international solidarity, the High Contracting Parties shall take into consideration the burden assumed by the countries having first admitted or granted temporary asylum to refugees, and facilitate the permanent settlement of the latter, more especially by relaxation of the procedure for admission.” The proposal was rejected not so much because other delegations objected to burden-sharing but because they weren’t convinced that a reference to the spirit of international solidarity was necessary. One delegate argued that the convention’s effectiveness would obviously “depend on the good will and the spirit of solidarity of the signatory States.”

Solidarity eventually appeared in the 1967 UN Declaration on Territorial Asylum (which unfortunately is barely remembered today). Article 2(2) reads: “Where a State finds difficulty in granting or continuing to grant asylum, States… shall consider, in a spirit of international solidarity, appropriate measures to lighten the burden on that State.” Subsequent references to solidarity appear in statements issued by the UN High Commissioner for Refugees as well as in the 2018 Global Compacts on Refugees and for Safe, Orderly and Regular Migration.

UN-level attempts to lighten the burden of countries that host a disproportionately high number of asylum seekers have largely failed, at least in the past forty years. Despite its continuing emphasis on the principle of solidarity, the EU hasn’t done any better. In fact, it could be argued that its common policy on asylum has flown in the face of its rhetorical commitment to that principle.

The cornerstone of the EU’s asylum policy from 2003 to 2013 was the Dublin II Regulation. It provided for protection claims to be assessed in the first EU member state an asylum seeker entered. When the EU adopted the regulation, asylum numbers not only appeared manageable but were also on a downward trajectory. When irregular arrivals picked up again in 2008, EU members that served as entry points for asylum seekers — particularly if they bordered the Mediterranean — began complaining about a system that made them responsible for the majority of new arrivals. The criticism intensified as the number of protection claims skyrocketed in the early 2010s.

The EU tinkered with its asylum policy in 2013, replacing the existing legal framework with the Dublin III Regulation. The principle underlying its predecessor remained untouched. But the regulation became increasingly dysfunctional. Italy and Greece, for example, routinely allowed asylum seekers to pass through without registering their identities. Countries in the north of Europe were compelled to stop transferring asylum seekers back to Greece, even if it could be proven that they had entered the EU via that country, because refugees, particularly children, were not afforded adequate protection there.

During the influx of refugees in 2015–16, some central and northern European members — particularly Germany, Austria, Sweden and Finland — relieved the pressure on Greece and Italy by welcoming asylum seekers who had entered the EU from the Turkish mainland (via Greek islands in the northern Aegean) or from North Africa. Germany probably did so because Angela Merkel’s government naively expected that other countries, impressed by its example, would extend their solidarity in turn to Germany.

At the same time, some countries that had benefited from the Dublin regulations acknowledged that Italy, Malta and Greece were barely able — and couldn’t be expected — to cope with the large number of arrivals from across the sea. They advocated a new mechanism whereby asylum seekers would be distributed across the EU. But the so-called Visegrád group — Poland, Slovakia, Hungary and the Czech Republic — supported at times by other EU members in eastern and southeastern Europe, demanded “flexible solidarity” and successfully objected to mandatory relocation.

Even the equitable distribution of relatively small numbers of people from Italy and Greece largely failed. Some member states simply refused to accommodate any asylum seekers who had first entered the EU elsewhere.

Since then the two EU heavyweights, France and Germany, have led a push for a mechanism to share the burden of processing and caring for asylum seekers equitably. This would involve either allocating each country a share of irregular arrivals depending on its capacity and size, or directing compensatory payments from countries unwilling to accommodate asylum seekers to those that are. Schemes that would have enabled relocations from countries of first asylum were welcomed, naturally enough, by the “Med 5” (Italy, Malta, Cyprus, Greece and Spain).

Because the Visegrád 4, among others, wouldn’t budge, France and Germany resorted to promoting voluntary arrangements. Finland brokered an agreement between Malta, Italy, France and Germany in 2019 covering migrants rescued by private search-and-rescue missions in the central Mediterranean. In their joint declaration of intent, the four countries pledged to set up a “more predictable and efficient temporary solidarity mechanism.” But that mechanism has not functioned well: each time migrants are rescued in the Mediterranean, the EU member states still argue over who will take responsibility for them.

In 2020, the European Commission proposed a new Pact on Migration and Asylum designed to effect a “fair sharing of responsibility and solidarity.” Rather than replacing the Dublin Regulation with a bold new scheme, the pact envisages a series of incremental steps. Implementation once again relied on the goodwill of all member states, and when Poland and Hungary, in particular, strongly resisted any moves towards enforced solidarity the French government once more proposed a voluntary mechanism.

In June this year, the end of its presidency approaching, France brokered an agreement signed by eighteen of the twenty-three EU member states, as well as Norway, Switzerland and Liechtenstein, which committed signatories to a “voluntary, simple and predictable solidarity mechanism” that would provide the Med 5 “with needs-based assistance” from other member countries “complementary to European support, by offering relocations (the preferred method of solidarity) and financial contributions.” While some of the signatories accepted asylum seekers who landed in Italy, others simply ignored the pledge they made.

The latest move by the European Commission has been a twenty-point Action Plan for the Central Mediterranean. It is largely the result of lobbying, if not blackmail, by the new Italian government, which would like to prevent any irregularised migrants from making landfall in Italy (and deport many of those already living in Italy). This plan is unlikely, though, to lead to a new common policy on asylum to replace the Dublin Regulation.

In the meantime, irregularised migrants keep breaching the EU’s external borders, with more than 90,000 having arrived in Italy alone so far this year. National immigration authorities keep trying to deport asylum seekers like the nineteen-year-old from Afghanistan to where they first set foot in the EU. According to the Hamburg state government, twenty-nine people were deported from Hamburg to other EU countries in the third quarter of this year, in line with the Dublin Regulation. These deportations tie up scarce resources and cause much anguish.

As more asylum seekers have breached Europe’s southern maritime borders it has become all too obvious that the Dublin Regulation is not “based on solidarity between Member States” but privileges the interests of some EU members over those of others. In other words, it shields central and northern European member states from irregularised migration. Because the likes of Poland and Hungary rejected a mandatory distribution mechanism — advocated by the European Commission, the Med 5 and some EU members in central and northern Europe — the EU’s response has been to try to prevent asylum seekers from reaching Europe in the first place.

In the course of making its external borders increasingly impenetrable, the EU has disregarded the Treaty on the Functioning of the European Union’s stipulation that a common asylum policy must be fair towards third-country nationals. Not only has the much-evoked principle of solidarity among member states proven to be little more than a rhetorical gesture, but the violence of its border regime has made a mockery of the EU’s self-declared ambition to stand up for human rights worldwide. There is no greater hypocrite than the winner of the 2012 Nobel peace prize.

In some cases, the EU is paying third parties to keep irregularised migrants away from Europe. Thus Italy and the EU have funded Libyan militias to operate a “coastguard” charged with intercepting migrants and confining them to Libya’s notorious detention centres, which German diplomats once likened to concentration camps.

In other cases, the EU turns a blind eye when its members flout national and EU laws by pushing migrants back across the border, as has been happening in at least half a dozen EU countries. In June, for example, when hundreds of migrants tried to climb over the border fortifications separating the Spanish enclave of Melilla from Morocco, at least twenty-seven died and many of those who had managed to enter Spanish territory were returned to Morocco without being allowed to lodge a protection claim.

Or, to give another example, Latvia declared a state of emergency at its border with Belarus in August, allowing the government to restrict the movement of journalists and NGO representatives. Erik Marquardt, a Greens member of the European parliament, explains why the Latvian authorities don’t welcome monitors:

A typical horror trip in the limbo of the border region looks like this: The asylum seekers try to cross the green border through the forest to Latvian territory to apply for asylum. On Latvian territory they are picked up by border guards and taken to unregistered tent camps somewhere in the forest, far away from civil society, press and NGOs. Here… commandos harass, beat and abuse the detainees. They use batons and stun guns — sometimes even on their genitals. Their cell phones and valuables are taken from them. The shelter seekers have to sleep overnight in a tent in the middle of the forest, sometimes outdoors, at up to –20 degrees. The commandos also take away their lighters, the only way to make a fire to warm themselves against the cold temperatures and to protect themselves against wolves and bears. Often in the early morning hours, the refugees are bussed back to the border with Belarus and have to walk the rest of the way back through the forest.

Similar incidents have taken place at the borders between Croatia and Bosnia, and between Poland and Belarus. In the Turkish–Bulgarian borderlands — the setting of Haider Rashid’s haunting feature film Europa, which premiered to much acclaim last year at Cannes — migrants have to contend not only with zealous border guards but also with vigilantes.

But the Greek coastguard is probably most notorious for violating the rights of irregularised migrants. Over a two-year period from February 2020 until February 2022, a Forensic Architecture research team documented 1018 “drift-backs” in the Aegean Sea involving 27,464 people. Migrants were prevented from landing in Greece and then towed out to sea to a spot from where currents, waves and winds are likely to take them back to Turkish territorial waters. According to the researchers, this sometimes-lethal method is designed to “provide a measure of deniability for those perpetrators, shielding them from accountability.”

The EU has regularly condoned practices that are illegal under international human rights and refugee law. In its defence, it often maintains that it is merely protecting itself against acts of hybrid warfare perpetrated by the likes of the Belarusian dictator Alexander Lukashenko. Try telling that to migrants who are drowning or freezing to death at the European border.

But intra-EU solidarity on asylum is working in one sense: member states cover for each other when they violate the Charter of Fundamental Rights in their “defence” of the EU’s external border. The European Commission, while supposedly still committed to its 2020 Pact on Migration and Asylum, has in some instances been turning a blind eye and in others actively encouraging violators — as happened in March 2020, when von der Leyen praised Greece for “being our European ασπίδα,” or shield.

It should be some consolation that the securitisation of the EU’s external borders, and the violence this entails, is contested by other European institutions. The European parliament — and particularly the Committee on Civil Liberties, Justice and Home Affairs, led by the indomitable Juan Fernando López Aguilar — has frequently spoken out against human rights violations at the borders and often put itself on a collision course with the European Commission and Frontex, the European border agency. But the parliament’s powers are limited.

The European courts have also ruled against the likes of Hungary on many occasions and upheld the rights of asylum seekers. Yet, as a recent study by the Hungarian Helsinki Committee has shown, EU member states often fail to implement judgements by the European Court of Human Rights and other bodies.

In one respect, European solidarity has functioned reasonably well. Since the Russian invasion on 24 February, the EU has provided substantial financial and material assistance to Ukraine. Its response to the war hasn’t been entirely united — Hungarian prime minister Viktor Orbán’s support for the government in Kyiv is lukewarm at best — but that hasn’t stopped it from also unanimously imposing sanctions on Russia, Belarus and Iran (which supplies drones to Russia), and on numerous individuals and entities in those countries.

The EU has also welcomed people fleeing Ukraine (though citizens of Ukraine more happily than others caught up in the war). In early March it invoked its Temporary Protection Directive, adopted in 2001 but never used, which gives refugees from Ukraine a residence permit for up to three years without the need to apply for asylum. The permit provides the right to work, gives access to social security payments and healthcare, and allows its holders to move freely between countries.

Because of that free movement, and because citizens of Ukraine can enter the EU for ninety days without a visa, the exact number of refugees in EU countries is anyone’s guess. The figure is probably around 4.5 million, with Poland, Germany and the Czech Republic between them accounting for well over half.

The length of residence permits and other benefits for Ukrainian refugees vary greatly. As of June, Germany paid each Ukrainian refugee living in government-provided accommodation €449 (A$690) per month, France less than half that amount, and Poland, the country that has accommodated by far the most refugees, just over €15. In some countries, Ukrainian refugees have access to free language courses, in others they don’t. Their chances of finding employment and the extent to which Ukrainian qualifications are recognised also vary greatly.

In the early weeks of the war, EU leaders demanded that refugees be spread across the twenty-three member countries. They argued that Portugal and Ireland, for example, although a long way from Ukraine, ought to help relieve the burden placed on Ukraine’s immediate neighbours. Some refugees were indeed relocated — but only from Moldova, which had received more Ukrainian refugees on a per capita basis than any other country.

In practice, relative proximity to Ukraine and existing diasporic networks have proved more important than local assistance in Ukrainians’ decisions about where to stay. Calls for a redistribution of refugees have become much less frequent, not least because countries hosting a large number of refugees receive additional EU funding. Besides, a compulsory mechanism to distribute Ukrainians across the EU would probably be unworkable under the Temporary Protection Directive. It has also proved unnecessary, and is in fact undesirable because it might prevent refugees from living in places where they can rely on diasporic support networks.

What is true for the EU is also true for individual member states. Germany ordinarily places asylum seekers across its sixteen states according to the so-called Königstein formula, which takes account of a state’s economic strength and population. Within states, asylum seekers are then allocated to districts, usually according to a similar formula.

An informed estimate puts the number of Ukrainian refugees in Germany at between 630,000 and 750,000, of which approximately 100,000 are in Berlin, a city of 3.8 million people. If Ukrainian refugees had been distributed according to the Königstein formula, Berlin would have received around a third of that number. Berlin authorities have certainly been complaining loudly about the challenges posed by large numbers, but only about 3000 Ukrainian refugees actually live in government-provided accommodation.

In parts of the country where the Ukrainian diaspora is smaller and Germans are less willing to share their apartments, most refugees allocated according to the Königstein formula would have needed accommodation in hostels, sports halls and container villages. Conflicts with the locals might have ensued, much like during 2015–16.

The situation may change, of course, not just in Germany but also elsewhere in Europe, if Russia succeeds in forcing more Ukrainians to flee. So far, predictions that the bombing of Ukrainian power stations would lead to a mass exodus have proven as wrong as the assumption that Poland would quickly buckle under the influx of refugees.

The reception of Ukrainian refugees suggests that efforts to distribute asylum seekers equitably across EU member states may not be what’s needed. On the contrary: rather than deporting asylum seekers back to the European country where their fingerprints were first taken, the EU may prefer to let them move to wherever they are supported by diasporic communities or civil society networks. The Ukrainian case suggests that one aspect of Article 67(2) of the Treaty on the Functioning of the European Union is achievable, namely “a common policy on asylum… which is fair towards third-country nationals.”

The Ukrainian case doesn’t prove or disprove the idea that a common system could be “based on solidarity between Member States.” It doesn’t allow any inferences to be drawn about the validity of the claim that nation-states can behave as if they were individuals extending solidarity towards each other.

But the EU’s undeclared war on irregular migrants, including those seeking its protection, has had the unintended consequence of encouraging individual acts of solidarity of the kind referred to in Article 2 of the Treaty on European Union. They are not directed towards fellow EU residents, however, as envisaged in that article, but towards people the EU wants to keep out or expel.

As a consequence, activists have repeatedly intervened when authorities across Europe have tried to deport asylum seekers to places of danger or to where they had entered the EU. Even more significant than the anti-deportation campaigns, though, is the work of activists who assist refugees as they cross borders and who document unlawful attempts by the EU and national governments to prevent them from doing so.

In the central Mediterranean, where at least 25,000 irregularised migrants have died over the past eight years, private search-and-rescue operations have saved the lives of thousands of migrants. They enjoy considerable support not just in northern and western Europe but also in Italy and Spain.

In Poland, Grupa Granica has provided life-saving humanitarian assistance to migrants stranded in the forests at the Polish–Belarusian border, and monitored the human rights situation there. In Greece, volunteers have been assisting irregularised migrants who have made it to the islands of the northern Aegean, as well as refugees who have been left to fend for themselves in Athens. Much like the search-and-rescue missions in the Mediterranean, these volunteers have also tried to hold Frontex and the Greek coastguard accountable.

In all these cases, activism is not just the result of an affective response to suffering, and the sufferers are not regarded only as suppliants. We are indeed seeing solidarity in action.

With member states using the EU’s Facilitation Directive of 2002 to criminalise such acts of solidarity, activists have often paid a high price. Since 2016, according to the European Union Agency for Fundamental Rights, Germany, Greece, Italy, Malta, the Netherlands and Spain have between them initiated sixty administrative or criminal proceedings against private organisations involved in search-and-rescue operations.

To make matters worse, the twenty-point action plan recently announced by the European Commission includes the following: “17. Promote discussions in the International Maritime Organization on the need for a specific framework and guidelines for vessels having a particular focus on search and rescue activities, particularly in view of developments in the European context.” These ominous lines suggest the European Commission, goaded by Italy’s racist Meloni government, is intent on further hindering the work of Sea-Watch, SOS Mediterranée and other private search-and-rescue organisations.

Prosecutions of this kind are worrying, and the prospects of further criminalisations dire. But if Robert Schuman was right in observing that solidarity is created by a process of practical achievements, then the solidarity targeted by governments such as Meloni’s and Orbán’s, as well as by the European Commission, has become a force to reckon with. Activists have thwarted attempts to turn Europe into an impenetrable fortress. Compare their efficacy with that of the inter-state solidarity of EU member states, which often exists only in the increasingly hollow appeals of the European Commission.

Acts by the likes of French farmer Cédric Herrou and seafarer Carola Rackete have captured the imagination of Europeans and inspired others to act in solidarity. Herrou was convicted of a délit de solidarité, a “solidarity offence,” for ferrying migrants from Italy to France and inviting them to camp at his property; Rackete, who captained the Sea-Watch 3, defied the Italian government’s order not to disembark irregularised migrants rescued in the Mediterranean.

Such acts have also inspired municipal governments to take action. Some of them have challenged the national authorities to allocate more asylum seekers to them than they are required to accommodate according to the official quota.

There is another reason why I am optimistic regarding the prospects for solidarity à la Herrou — as opposed to the European shield advocated by Ursula von der Leyen and others — and that’s to do with motivation. The intra-EU solidarity so frequently conjured by the European Commission is perhaps too easy a target. Because it isn’t practised (and may in fact not be necessary, at least in the context of a common policy of asylum), the solidarity of Articles 67 and 80 of the Treaty on the Functioning of the European Union remains a weasel word.

The solidarity offered by the EU to others needs to be taken more seriously, not least because climate change will require countries of the global north to reposition themselves in relation to the global south. In her statement at COP27, von der Leyen said that solidarity means those in a position to help should assist those in need. She didn’t say why Tuvalu islanders or Bangladeshi farmers were in dire straits, or why the EU is in a position to help, but talked as if the EU were a charitable organisation that happened to be able to do good. Solidarity, to be successful and sustainable, needs to be grounded in notions of justice. That is something Herrou and Rackete know but von der Leyen, if she knows it, prefers not to acknowledge. •

The post European solidarity appeared first on Inside Story.

Juror No. 10: Well, do you believe his story?

No. 8: I don’t know whether I believe it or not. Maybe I don’t.

No. 7: So what’d you vote not guilty for?

No. 8: There were eleven votes for guilty. It’s not so easy for me to raise my hand and send a boy off to die without talking about it first.

So begins the dramatic core of Twelve Angry Men, a 1950s teledrama, and later a movie and a play, that tracks a New York jury debating a murder charge. Writer Reginald Rose specified a jury of twelve men — even though women were seated on New York juries by then — perhaps to ensure that the twelve-handed discussion remained believably angry. But not too angry, which is why he specified an all-white cast to debate the fate of the “boy” he coded as an unspecified minority.

When many of us recently watched the real deliberations of eight women and four men about an alleged rape in the national parliament building, we did it in the usual way: from outside a locked door. Only twelve people were allowed to know what was said or done in that Canberra jury room, and it remains a crime for any of them to reveal anything to anyone who is likely to tell the public.

Highly trusted confidants aside, the rest of us have very little to go on. Attendees at Rose’s fictitious courtroom in New York City heard the jurors ask to inspect two exhibits — the knife used in the killing and a floorplan of the apartment where it occurred — before the jury announced its verdict. But the real jury in Canberra neither asked about evidence nor delivered a verdict.

They said just two things in public. The first was on the morning of their third full day of deliberations, a Monday, when they asked their trial judge, ACT chief justice Lucy McCallum, about “time expectations.” Gone are the days when jurors were detained in the jury room and put up at city hotels until they reached agreement. Modern jurors simply commute to and from their homes like other court officers. That’s why McCallum answered, “There is no rush, no time limit. The only expectation is you remain true to your oath.”

Their second communication came the following afternoon. According to the chief justice’s summary, their note said that they were “unable to reach a unanimous verdict.” Like juries in New York but unlike most other Australian ones, Canberra juries don’t have the option of a majority vote. So McCallum, following a practice laid down by the High Court in 1993, told the jurors to persist a while longer but scrupulously avoided suggesting a consensus would be the best outcome.

She also embellished the national court’s script by sending them home to visit a gym or walk a dog. The jury dutifully spent the entire next day talking, before opting — fatefully — to sleep on things for at least one more night. “No one could suggest you’re not working extremely hard,” soothed their judge.

And that’s all we know. Nevertheless, I’ll venture a few educated guesses about what went on behind closed doors.

My first guess is that the Canberra jurors probably weren’t angry during those five or so days of deliberation. I say that because angry jurors often use communications with the judge to vent or try to resolve their differences. My optimistic reading of the Canberra jury’s relative silence is that their disagreement about the verdict was reasonably friendly.

My second guess is that emotions within the jury room would still have been very high. Except in the dullest or easiest of cases, jurors almost always describe their deliberations as intense experiences, sometimes shattering or even life-changing. There’s every reason to think that’s true of this particular case, which has prompted hard discussions everywhere. There’s no reason to think that #MeToo stops at the jury room door.

My final speculation is that all twelve jurors were probably gobsmacked when their deliberations were abruptly ended.

•••

Guard: Is there anything wrong, gentlemen? I heard some noise.

Foreman: No. There’s nothing wrong. [He points to the large diagram of the apartment.] You can take that back. We’re finished with it.

[The guard nods and takes the diagram. He looks curiously at some of the jurors and exits. The jurors still are silent. Some of them slowly begin to sit down. No. 3 still stands at the window. He turns around now. The jurors look at him.]

Three jurors switch their votes during Twelve Angry Men’s second act, which ends with No. 8 goading his main antagonist into attacking him. No. 3’s cry of “I’ll kill him!” — the very words the prosecution says prove the accused’s wish to murder his father — prompts two more jurors to switch sides, evening the vote. It also prompts the (imaginary) outside world’s only intrusion into the jury’s deliberations.

The sanctity of the jury room is no empty principle. It is enforced not just by physical restrictions on who can enter the room but also, for centuries, by rigid legal limits on what information can leave it. In 1785, England’s most celebrated chief judge, Lord Mansfield, famously refused to act on evidence that an evenly divided jury had reached its verdict by tossing a coin, declaring that doing so “would endanger every verdict.”

Two hundred and thirty years later, Australia’s High Court ordered a partial end to trial judges showing the prosecutor and defendant the complete text of notes sent from the jury room, ruling that they should omit any information about what votes had been cast. The nation’s top court ruled that keeping such details secret “enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room.”

The Canberra case illustrates the high stakes. Imagine if, after their fifth day of deliberations, word got out of how the numbers were falling. Such news would have instantly poisoned the ongoing trial — casting a shadow over every subsequent decision by the lawyers or judge — and could have derailed any future one. Likewise, if the content of the jury’s conversations had leaked, both current and future deliberations would be tainted.

Unsurprisingly, the ACT Supreme Court is scrupulous about jurors’ privacy. The chief justice opted to paraphrase the jury’s second note rather than read it out. Court officers responsible for jurors swear an oath that they will “not speak to any juror… concerning the issues before the court.” They also give jurors boxes for storing their documents. And, as McCallum revealed on what should have been the jury’s sixth day of deliberations, “routine tidying” is carried out by “three sheriff’s officers,” a number surely chosen to reduce individual officers’ temptation to snoop.

And yet, in perhaps the most closely watched trial in Canberra’s history, and at perhaps the most closely watched moment of the proceedings, all of these protections failed. At least three things went wrong on the Wednesday evening. First, an officer “accidentally bumped one juror’s document folder onto the floor.” Second, that same officer, while putting the box back on the chair it came from, looked, again seemingly accidentally, through the folder’s “clear front.” And third, presumably instinctively, the officer read some words visible inside.

Had any of these things been done deliberately, the officer would surely have lost their job and potentially their liberty. But McCallum assured the public that the officer acted “inadvertently.” She went further: “The conduct of the sheriff’s officers involved in this trial has been exemplary. They have worked in difficult circumstances. The court is fortunate indeed to be so well served.”

But the officer’s personal blamelessness does not absolve McCallum’s court. Why did any of the jurors’ folders have a “clear front”? How did “tidying” involve any contact with a juror’s folder, much less risk bumping it to the floor? Why weren’t officers instructed to leave fallen items where they lay? Indeed, why were any non-jurors “routinely” entering the jury room at all, rather than (say) leaving whatever tidying was needed to the twelve adults within?

Such questions could scarcely have escaped the jury’s attention on the final day of the trial, and will surely occur to future Canberra jurors too. My guess is that all of these questions are now being given urgent attention by McCallum, who only became the head of the ACT judiciary at the start of this year.

But her court was “fortunate” this time. The officer who read the words visible in the juror’s folder saw no tallies, no intimate reveals, no checklists, indeed nothing written by any of the jurors. And the officer not only resisted the temptation to read further or open the box, but instead quickly fessed up to what happened. (McCallum recorded her “gratitude for the courage, integrity and good sense displayed” not only by the officer but also by their two colleagues.)

Best of all, the series of accidents proved serendipitous. The officer happened to uncover the only category of jury room leak that modern courts are allowed to act on.

•••

[Juror no. 8 swiftly flicks open the blade of a switch knife and jams it into the table next to the first one. They are exactly alike. There are several gasps and everyone stares at the knife. There is a long silence.]

No. 3: (slowly amazed) What are you trying to do?

No. 10: (loudly) Yeah, what is this? Who do you think you are?

No. 5: Look at it! It’s the same knife!

Foreman: Quiet! Let’s be quiet.

[They quiet down.]

No. 4: Where did you get it?

No. 8: I got it last night in a little junk shop around the corner from the boy’s house. It cost two dollars.

Twelve Angry Men’s most memorable scene features two out of five instances of juror misconduct identified by Berkeley law professor Charles Weisselberg in an article he published on the movie’s fiftieth anniversary, titled “Good Film, Bad Jury.”

The fictitious jury’s first bad step is when No. 8 brings something into the jury room that isn’t part of the trial evidence. The Canberra sheriff’s officer’s glimpse revealed that a juror seemingly did the same, bringing “an academic paper” into a trial that otherwise consisted only of testimony, CCTV footage and clothing.

Safety concerns about knives aside, I’m not convinced these are bad acts on their own. Jurors are no longer excluded from their own homes while deliberating and are not required to enter the jury room naked. There’s no reason why they can’t inspect their own belongings at night and bring relevant items in to show to others. Given that Rose’s fictitious prosecutor claims that the murder weapon — identical to one the accused was seen purchasing that day — is unique, why couldn’t a juror check that claim against a knife he owns, and show the jurors if the comparison is revealing?

Rather, the problem is that the knife No. 8 jams into the table isn’t his own, or at least wasn’t until he sought it out and bought it the previous night. That was the second instance of misconduct on Weisselberg’s list. The ACT’s Jury Handbook tells jurors: “Do not make searches on line or visit any place relevant to the case.” No. 8 does the latter. And everyone assumes that a Canberra juror obtained that academic paper by doing the former, perhaps when they were meant to be walking a dog or lifting weights.

And that made Chief Justice McCallum angry. She pointed out that she gave “at least seventeen, and possibly more” warnings to jurors against conducting their own investigations. Most of those were end-of-day reminders in these terms: “Please don’t go googling Brittany Higgins or Bruce Lehrmann or any of the other people you have heard mentioned. Please don’t seek out publicity in relation to this case. For the reasons I explained before, it would be very unfair to the accused if you sought information outside what you are going to hear in evidence in these proceedings.”

But, as far as anyone knows, no juror did anything in this list. The academic paper in the juror’s folder would surely have been written years before the events that were the subject of the trial. It did not mention anyone in the trial, or any place in it, or anything written about it, and contained nothing that the jurors heard in evidence.

Rather, the juror was suspected of conducting some general research about the outside world, akin to a New York juror scanning the shelves of his neighbourhood “junk shop” for switchblade knives. In her opening remarks, the chief justice explained that that wasn’t allowed either.

“You should only be learning about this trial in this room in my presence,” she said. “So, if you find yourself getting curious and undertaking internet research or talking to people about their areas of expertise, think to yourself, ‘Well, Chief Justice McCallum isn’t here so I probably shouldn’t be doing this.’ That is not a bad way of testing what you should hear in this trial. You should only hear the evidence in this trial in my presence when it comes before you in this courtroom.”

McCallum concluded this explanation by saying, “I hope that makes sense.” But Twelve Angry Men demonstrates why it doesn’t.

•••

No. 8: Look at this. [No. 8 closes the knife, flicks it open, and changes the position of the knife so that he can stab over-handed.] Doesn’t it seem like an awkward way to handle a knife?

No. 3: What are you asking me for?

[No. 8 closes the blade and flicks it open, holds it ready to slash underhanded.]

No. 5: Wait a minute! What’s the matter with me? Give me that.

[He reaches out for the knife.]

No. 8: Have you ever seen a knife fight?

No. 5: Yes, I have.

No. 8: In the movies?

No. 5: In my backyard, on my stoop, in the vacant lot across the street, too many of them. Switch knives came with the neighbourhood where I lived. Funny I didn’t think of it before. I guess you try to forget those things. [Flicking the knife open.] Anyone who’s ever used a switch knife would never have stabbed downward. You don’t handle a switch knife that way. You use it underhanded.

Rose’s angry men never solve the murder mystery at the heart of the case, or even come close to doing so. No alternative suspect or motive or means or opportunity ever emerges. Rather, the teleplay charts how each of the twelve learns a little more about the courtroom trial they just watched by talking it over with others.

No. 5 teaches his fellow jurors how to fight with a switch knife (and also about assuming who grew up in a slum). No. 8 schools them about the US constitution’s fifth amendment. No. 3 monologues an unwitting lesson in being a terrible father, No. 7 in being a terrible fact-finder, No. 10, a terrible racist. Several speak of life next to a noisy train line.

After No. 8 uses some back-of-the-envelope maths and the apartment map to demonstrate that a witness downstairs couldn’t have heard or saw what he testified he did, No. 9 speculates that the lonely, elderly witness might have lied to make himself feel important. Asked where he got “that fantastic story,” he explains, “I speak from experience,” prompting a “long pause.” The script’s many silences are central to the drama.

Rose’s point isn’t subtle. Each of these lessons causes at least one juror to switch his vote. But McCallum wasn’t subtle either. None of this learning was to happen in her jury room: “You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.”

Professor Weisselberg would side with her. He rounded out the twelve angry men’s “buffet of misconduct” with No. 5’s “expert testimony about the use of switchblade knives” and No. 8’s calculations about trains and apartments.

But are the chief justice and the professor right? If the juror’s folder had simply contained the juror’s own notes about another juror’s reflections on the “consumption of alcohol,” or detailed a re-enactment of walking through a ministerial suite, would that also have required the trial’s premature end? What if the notes revealed that — as is surely possible — one or more of the Canberra jurors had described their own experiences of rape?

The sanctity of the jury room mostly stops us from considering these questions, but sometimes courts must confront them. In 1999, an English court was asked to judge a movie-like scenario in a mundane case about whether some tyres were stolen or legitimately purchased. The jury wrote the judge a note revealing that one of their number happened to be a “tyre specialist” who knew how to read a tyre’s serial code to determine when it was made. “May we take this into consideration?” they asked.

The question flummoxed their trial judge, who failed to get back to them before they found the accused guilty. But the Court of Appeal overturned that verdict, ruling that the jury should have been told to ignore their fellow juror’s insights. Here’s the judges’ valiant attempt to explain why:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background of a particular case to draw upon that specialised knowledge in interpreting the evidence. However that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

Surely they were tempted to add, “I hope that makes sense.”

•••

No. 4: She did wear glasses. Funny. I never thought of it.

No. 8: Listen, she wasn’t wearing them in bed. That’s for sure. She testified that in the midst of her tossing and turning she rolled over and looked casually out the window. The murder was taking place as she looked out, and the lights went out a split second later. She couldn’t have had time to put on her glasses. Now maybe she honestly thought she saw the boy kill his father. I say that she saw only a blur.

No. 3: How do you know what she saw? Maybe she’s far-sighted.

[He looks around. No one answers.]

No. 3: (loudly) How does he know all these things?

[There is silence.]

No. 8: Does anyone think there still is not a reasonable doubt?

[He looks around the room, then squarely at No. 10. No. 10 looks down and shakes his head no.]

This exchange leaves Rose’s fictitious jury again split 11–1, this time in favour of “not guilty.” But Professor Weisselberg baulked at adding this discussion to the jury’s “buffet of misconduct,” explaining that “the jurors confront a lack of evidence on a key point, but they appropriately treat it as relevant to the existence of reasonable doubt.” Four professors at the same symposium condemned that discussion for a different reason: that the jury’s speculation about the witness’s eyesight was tendentious and didn’t account for her crystal-clear testimony.

When I first learned the topic of the academic article in the Canberra jury room — the prevalence of false allegations of rape — I felt the same way. Absolutely no one knows, or can know, how many or how few rape allegations are false. All we can ever know is that some allegations proceed to investigation, prosecution and, for a few, conviction, and most don’t. But there is no way to know whether most of those allegations are true or not. The rest is just guesswork, and such guesses mean little or nothing during a particular rape trial.

But then I read Chief Justice McCallum’s summary of the juror’s article: “It is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”

In short, the unidentified article teaches everyone, including jurors, why the issue of prevalence goes nowhere.

After questioning the juror in private, McCallum revealed that they gave “an explanation that the document was not used or relied upon by any juror.” Given the incentives to dissemble and the difficulty of checking, the chief justice responded to such claims about goings-on in the jury room with appropriate scepticism. It sufficed that the academic paper was present in the jury room and “could be deployed to support either side of the central issue in this case.”

Is it true, though, as she declared, that it is “neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any”? I’m sceptical. Here are my guesses about what may have happened behind closed doors.

My first guess is that the prevalence of false rape allegations was indeed discussed in the jury room, probably quite often. I say that because the same issue was raised by almost every person I spoke with about the Canberra case, and most other rape trials as well. Indeed, on the middle weekend of the jury’s deliberations, journalist Louise Milligan complained to the capital’s lawyers that “there are still a significant minority of people who continue to, automatically, assume (against all evidence in international research and tendered to royal commissions) that there are multitudes of false accusers.”

My second guess is that one or more jurors would have nominated a particular fraction of rape allegations as false, according to academic studies. I say this because googling “number of false rape allegations” immediately yields a claim that “a range of studies show approximately 5 per cent of rape allegations are proven false.” This claim is sourced to a “fact sheet” from Victoria Police and the Australian government’s Institute of Family Studies, created as a resource for police and legal practitioners about fifteen “rape myths.” The 5 per cent figure is cited to dispel the “myth” that “the rate of false allegations is high.”

My final speculation: that the juror who brought in the academic article may have done so to help teach their fellow jurors why such figures aren’t reliable enough to be used in a jury room.

•••

[No. 3 looks around at all of them for a long time. They sit silently, waiting for him to speak, and all of them despise him for his stubbornness. Then, suddenly, his face contorts as if he is about to cry, and he slams his fist down on the table.]

No. 3: (thundering) All right!

[No. 3 turns his back on them. There is silence for a moment and then the foreman goes to the door and knocks on it. It opens. The guard looks in and sees them all standing. The guard holds the door for them as they begin slowly to file out. No. 8 waits at the door as the others file past him. Finally he and No. 3 are the only ones left. No. 3 turns around and sees that they are alone. Slowly he moves toward the door. Then he stops at the table. He pulls the switch knife out of the table and walks over with it. He holds it in the approved knife fighter fashion and looks long and hard at No. 8, pointing the knife at his belly. No. 8 stares back. Then No. 3 turns the knife around. No. 8 takes it by the handle. No. 3 exits. No. 8 closes the knife, puts it away and taking a last look around the room, exits, closing the door. The camera moves in close on the littered table in the empty room, and we clearly see a slip of crumpled paper on which are scribbled the words “Not guilty.”]

That’s how Rose’s teleplay ends. The movie opts for a different ending, which you can watch on YouTube. Crucially, in that version, No. 8’s knife is left lying on the jury room table. In real life, it would have been swiftly discovered by a bailiff and would launch an inquiry into juror misconduct. If it was found quickly enough, it might have condemned the accused to a retrial and, perhaps, worse.

An observant journalist afforded a Canberra juror a final word, reporting that they “swore under their breath and put a hand to their head as it was announced they could not continue.” We can all guess that word. But who was their anger directed towards? The sheriff’s officer? The chief justice? Another juror? Themselves? On that question, the jury’s out. •

The post Twelve vexed Canberrans appeared first on Inside Story.

Fraser was on the way to a joint party meeting. He grabbed the agenda, turned it over and took notes. What followed was one of the most momentous phone conversations in Australian political history. Kerr was signalling to Fraser that he would act that day to resolve the crisis brought on by the opposition parties’ decision to block the Whitlam government’s budget bills.

The piece of paper carrying Fraser’s notes is today in the University of Melbourne archives. It records the undertakings Kerr sought of Fraser before he dismissed Whitlam and installed Fraser as caretaker prime minister. There is a series of numbered points: “Double Dissolution Bills” — a commitment to announce an election; “Caretaker” and “No policy changes” — a promise to run a caretaker government; “Supply” — an undertaking to obtain supply immediately; and “Dissolution today” — the election was to be organised immediately.

All of those were positive commitments, and all came to pass. It is another point that seems the most extraordinary, viewed from the present day. This was an undertaking not to inquire into the activities of the Whitlam government, and particularly the infamous loans affair.

Fraser’s note is clear: “No Royal Commission.” In the book I co-wrote with him, Malcolm Fraser: The Political Memoirs, he recalled that his commitment to Kerr also precluded pursuing Whitlam through the courts or conducting any other kind of inquiry.

Fraser agreed to all this despite having denounced Whitlam as corrupt, despite allegations that Whitlam and his ministers had misled the governor-general, and despite the Labor cabinet having approved the raising of an enormous loan — equivalent to more than a quarter of total government income — by unconventional means, without the normal Loan Council approval and on the controversial advice of an attorney-general who had since been appointed a High Court judge.

True to Fraser’s word, there would be no court cases and no inquiries. By the standards of our time, this was extraordinary: today, the commissioning of inquiries by a new government into its predecessor has become, if not routine, then at least common.

The Albanese government has announced or proposed three inquiries into its predecessor. A royal commission will probe the robodebt scheme, later found to have been illegal by the Federal Court. A judicial inquiry will look into prime minister Scott Morrison’s decision to appoint himself to five extra ministerial portfolios without informing the affected ministers, cabinet or the public. And a foreshadowed inquiry will examine the previous government’s handling of the pandemic. The Independent Commission Against Corruption, due by Christmas, also looks likely to be given the power to inquire into the actions of previous governments.

Australia isn’t alone. From across the sea comes a whiff of sulphur as multiple inquiries, search warrants and court actions proceed, motivated by the actions of former US president Donald Trump. Whatever the merit of these probes, and whatever Trump’s culpability, they raise the possibility of a former president being jailed under the succeeding administration — and the risk that the United States might be seriously damaged by the resulting civil unrest. Some even speak of civil war.

Malcolm Fraser told me he was happy to give the commitment to Kerr. He believed it was wrong in principle for a government in a liberal democracy to investigate its predecessors. It was the kind of thing that happened in tin-pot dictatorships: one party, ascendant, would seek to jail its predecessors. “Democracy as we know it in Australia simply couldn’t survive if incoming governments developed the habit of prosecuting their predecessors,” he told me.

Fraser’s decision was also pragmatic. Amid the passions following the dismissal of the Whitlam government, a perception that he was pursuing Whitlam could tear the country apart. Senior public servants were threatening to resign if they were forced, against convention, to give the courts or inquiries access to the previous government’s documents and the advice it had received.

“Can you imagine how we would have looked, what people would have said, if we were seen to be pursuing Whitlam?” said Fraser. “And if public servants like the secretary of Treasury were resigning over it?”

Was Fraser right? Whatever we might think about the actions of the Morrison government, should we be worried that present-day governments seem increasingly keen to pursue their predecessors?

It wasn’t Albanese who started the trend. It was John Howard. His government appointed a royal commission into the 1993 lease to the Australian National Audit Office of Centenary House, a building owned by the Labor Party. The terms of the fifteen-year lease were so extravagantly in favour of the landlord that Howard, then in opposition, demanded an inquiry into the “rort.” Prime minister Paul Keating responded by setting up a royal commission that, amazingly, found nothing wrong.

Howard wasn’t satisfied. In 2004, now in government, he set up another royal commission. This one duly concluded that the original inquiry had been inadequate and the rent manifestly excessive. The commission found no evidence of corrupt conduct by Labor or any intervention by its ministers, and blamed lax and incompetent public servants. The consultants who negotiated on behalf of Labor did a good job, and the Commonwealth didn’t.

It was nine years before the next outbreak of inquiries into previous administrations. In 2013 another Coalition government, this time led by Tony Abbott, launched two royal commissions into the Rudd–Gillard Labor government, which had just lost office.

The first concerned the $2.8 billion home insulation program, part of the stimulus spending rolled out at top speed in the wake of the global financial crisis. Planning and prudence had been sacrificed for speed, and the environment department, ill-equipped to deal with such a large, complex program, had effectively outsourced safety. Four installers had died during the program.  

The second of Abbott’s royal commissions was charged with investigating trade union governance and corruption, and is best remembered for delving into Julia Gillard’s long-ago relationship with a dodgy union official and cross-examining Bill Shorten about his time as head of the Australian Workers Union. It generated more heat than light. Forty people were referred to the authorities, but only one conviction resulted, while five other union officials either had their charges dropped or were found not guilty.

So how should we judge these inquiries, and the present crop?

I asked the opinions of three experts — A.J. Brown, who leads Griffith University’s integrity, leadership and public trust research program; legal scholar Kim Rubenstein of the University of Canberra, who was also an independent candidate for the ACT Senate in the last election; and political scientist Anne Tiernan, an adjunct professor at Griffith University.

There was much consensus. They agreed that such inquiries should concern systemic issues arising from the exercise of executive power and have clear potential to yield lessons for the future. The more the commissions were politicised, in either their creation or their processes, the more dangerous they could be.

Rubenstein put the current trend — and the need for a federal ICAC — in the context of a decline in the structures that might normally be expected to hold executive government to account. She nominated the politicisation of the Administrative Appeals Tribunal, which was designed to give citizens a recourse against government overreach, as a primary example. The new attorney-general, Mark Dreyfus, is reportedly considering abolishing and rebooting the AAT to get rid of a striking number of Liberal-linked members.

According to Rubenstein, other debased accountability mechanisms include the ombudsman, hamstrung by underfunding, and the Freedom of Information Act, the obligations of which governments are increasingly failing to observe. Added to that is the politicisation of the public service.

Perhaps ironically, the AAT, the ombudsman and the Freedom of Information Act were all initiatives of the Fraser government.

If all these structures had remained strong, said Rubenstein, a federal ICAC might not be needed. But she now believes that it is essential.

She supports ICAC having the power to look at previous governments. The principles it will embody — of proper conduct and honest administration — are not retrospectively applied recent inventions, but “principles that have always been there, being brought to bear by a new mechanism.” Therefore, inquiry into previous governments could well be justified.

The experts also agree that an inquiry into the management of Covid-19 is justified. Arguments can be had about its scope, but the pandemic response involved extraordinary exercise of executive power, and there are important lessons for the future functioning of the federal system.

The robodebt affair, on the other hand, has already been the subject of an ombudsman’s report and a Federal Court finding. What more can be learned?

Tiernan observed that royal commissions in recent times have evolved to become important platforms for victims of abuse and government overreach. “Often they’ve had to campaign long and hard to have them constituted — think institutional child abuse, banking or veteran suicides,” she said. “So they’re important in legitimising complaints and concerns about how power is exercised, often over those who lack power and resources, and affording them the respect they feel they’ve been denied. There is value in that.”

The robodebt royal commission might well fit into that class, Tiernan thinks. As well, she says, the government has a mandate to proceed because the inquiry was an election promise.

A.J. Brown put the robodebt inquiry into the same category as the pink batts royal commission — except he thinks robodebt probably involved worse abuses. When it was first proposed, he thought the pink batts royal commission was “hopelessly political” but he changed his mind. “As it turned out it helped add some genuine accountability and fleshed out a stronger picture of the lessons for avoiding similar policy failure in the future,” he said. As for robodebt, questions remain about “how something so bad was allowed to happen and keep happening and wasn’t rectified earlier.”

Brown hasn’t changed his mind, however, about the Abbott-initiated royal commission into the union movement. That was a “witch hunt” aimed at Gillard and Shorten in particular with that focus being “very clearly not justified in any way, shape or form from a public policy point of view.” Rubenstein pointed out that while unions might be powerful, they are not the executive government, and the events the royal commission investigated were historical — before Gillard or Shorten were in government.

All three experts supported the inquiry into Morrison’s multiple ministries. Brown said, “Given that you’ve got the solicitor-general saying, quite accurately, that this was completely inconsistent with fundamental constitutional principles of responsible government, and that everybody agrees with that, there is a clear public interest in knowing how the mistakes were made, assuming they were only mistakes, and what is needed to prevent them from happening again.”

Rubenstein and Brown both said the appointment of former High Court judge Virginia Bell, “a person of high standing,” adds to the integrity of the inquiry, given that the core issues are constitutional principle and practice. In Brown’s view, former Justice Dyson Heydon’s controversial decision to chair the union royal commission couldn’t be justified on those grounds.

If all the inquiries proposed by Albanese, and the creation of an ICAC with a retrospective scope are judged to be good things, how does Fraser’s 1975 decision stack up? The issues involved — huge amounts of money, the role of the governor-general, the bypassing of normal constitutional processes — were at least as grave as Morrison’s multiple ministries.

Fraser told me he had meant what he said when he described Whitlam as corrupt, but it was a political kind of corruption. “I believe they deliberately deceived the governor-general. They corrupted the political process, but they paid a political price.” The price was the loss of the 1975 election. After that, Fraser did everything he could to protect his predecessor from further action.

Not everyone agreed. Billy McMahon, a former Liberal prime minister, attempted to get around Fraser’s ban by organising for an obscure solicitor, Danny Sankey, to take a private action against Whitlam and his ministers. Fraser wanted attorney-general Bob Ellicott to take over the action and close it down, and their disagreement ended with Ellicott resigning — a loss Fraser deeply regretted.

The only lasting significance of the Sankey case was a High Court ruling that took a very narrow view of when a government can claim privilege over cabinet documents and withhold them from the courts. That ruling may well become relevant in the current round of inquiring.

But there was one thing Fraser didn’t nominate as a reason for eschewing inquiries into Whitlam — although it surely must have been on his (and Kerr’s) mind. If an inquiry had been held into the loans affair then the pressure for an inquiry into the governor-general’s dismissal of the Whitlam government, including his relationship with Fraser, would have been overwhelming.

And calls would then have come for an inquiry into the subsequently revealed attempts by Labor to use Iraqi loans to boost its campaign funds — with allegations surfacing years later that the KGB might have been involved.

On and on it would have gone. Would we have been the better for it? Or would it have amounted to a continuing crisis from which we might never have recovered?

Unanswered questions remain about these events, even all these years later, and despite the release of cabinet documents, the Palace Letters, memoirs by those involved, and academic and journalistic analyses and inquiries. Would a royal commission, with powers to question the players, have shed more light? We will never know.

Meanwhile, even if the currently proposed inquiries are justified and needed, the experts agree on the dangers of defeated governments routinely facing inquiries and litigation.

There can be no better argument for a reinvigoration of the normal accountability mechanisms that have fallen into such disrepair. And, of course, for principled leadership and a robust public service. •

The post Was Fraser right? appeared first on Inside Story.

HEDLEY THOMAS: This is episode… of The Teacher’s Pet. Listeners are advised, this podcast contains coarse language and adult themes. This podcast series is brought to you by the Australian.

NEWS PRESENTER: Lynette Dawson was reported missing by her husband, former Newtown Jets Rugby League star, Chris Dawson.

JC: He said, I was going to get a hit man to kill Lyn, and he rang me and said, Lyn’s gone. She isn’t coming back.

JULIE ANDREW: I just want justice, and I’d love her little girls to know she didn’t leave them.

Streamed at length to tens of thousands of viewers last Tuesday via YouTube, Justice Ian Harrison twice dropped big hints about his answer to the mystery. At the eighteen-minute mark he declared himself satisfied that the high school teacher lied when he claimed that Lynette told him she had left him. At the seventy-four-minute mark he took the view that the little girls’ mother didn’t voluntarily leave them.

And yet the judge took nearly four more hours to get to his verdict, for the same reason that Hedley Thomas took an entire podcast series to hammer home his. He had to deal with the string of Dawson’s contemporaries who have come forward to denounce the ex-footballer as a violent creep who routinely abused his wife and was looking for criminals willing to do worse.

At the end of his podcast’s initial run, Thomas told 60 Minutes that he believed his informants’ account of the accused. Dawson “is a despicable person; I think he’s severely narcissistic,” he said. “I think that he’s dangerous.” Tuesday’s twist was that Harrison disagreed, finding that most of those belated testimonies were lies, embellishments or irrelevant, and instead holding — to audible gasps from the public gallery — that Dawson “is a person of prior good character.”

The judge specifically rejected multiple reports that the ex-footballer had struck or choked or threatened his wife, and dismissed the notion, proposed by the prosecution, that he had any tendencies, motivations or animosity towards her that were relevant to the murder trial.

Where does that leave Thomas’s podcast? Before I answer that, I should set out my own take on the journalist’s view that Dawson is a murderer, which I summed up in Inside Story four years ago:

Thomas’s view is widely shared by other journalists who have covered the case, as well as by a bevy of investigators, relatives and pundits and, now, by the millions of listeners to his podcast. While plausible, there is hardly any evidence to support it. Instead, The Teacher’s Pet is largely an attack on Dawson himself.

That “hardly any evidence” I mentioned? That’s exactly what Dawson’s judge relied on to reach his guilty verdict.

But what swayed Harrison wasn’t Chris Dawson’s character; rather, it was his wife Lyn’s. He firmly rejected as gendered and unfair any assumption that women never abandon their children. After all, everyone accepted that a Dawson in-law had done just that decades before Lyn vanished. But he did accept what nearly everyone said about Lyn Dawson: that it was absurd to think that someone with close family and friends who had little money of her own and couldn’t drive — someone who was trying to salvage her failing marriage — would suddenly and permanently “propel herself into a life of anonymity in a figurative state of nakedness.” It was still less likely that she’d keep only her unfaithful husband in the loop, and tersely, as he repeatedly claimed. Hence, Harrison’s findings that Lyn died and Chris lied.

That wasn’t enough to convict, though. The judge accepted that he needed to find a convincing reason why an otherwise non-abusive relationship would end with one spouse killing the other. The reason, of course, was the former schoolgirl, now in her fifties and referred to as JC, who told the court that Dawson had groomed her while teaching at her school, culminating in what Dawson later termed an “affair.”

But even that didn’t suffice to explain a murder, Harrison said, noting that affairs and failed marriages are commonplace. To the judge, it was clear that Dawson had plenty of better ways to leave his wife for JC and no good reason, financial or otherwise, to substitute a teenager for Lyn as his young children’s effective mother.

What killed Lyn, Harrison decided, was her husband’s jealousy. His obsession with the student eventually focused on her relationships with people her age, he said, especially when the teen left him for a beachside holiday a week before his wife disappeared. The upshot: “I am satisfied that the prospect that he would lose JC so distressed, frustrated and ultimately overwhelmed him that, tortured by her absence up north, Mr Dawson resolved to kill his wife.”

And so he did, Harrison found. Then, after faking a phone call to a local pool for cover, Dawson disposed of his wife’s body and phoned JC to tell her: “Lyn’s gone. She isn’t coming back. Come back to Sydney and help me look after the children and be with me.”

Whether an appeal court agrees with that theory remains to be seen. But Harrison’s take vindicates a central theme of Thomas’s podcast: that the former footballer’s day in court should have come decades earlier. Nearly all of the evidence the judge relied on was known to the police by the early nineties, when Dawson’s second marriage — to JC — ended. (In response to the defence’s claim that the story JC gave the police was invented to advance a custody dispute with Dawson, Harrison pointedly observed that JC herself was “only a child” when Lyn vanished.)

If Harrison’s reasoning is right, then so were the two coroners who recommended prosecution in the early 2000s. Seemingly in the wrong were lackadaisical cops during the eighties and nineties, former prosecutor Nicholas Cowdery (who repeatedly refused to bring the murder charge)… and me.

Does that mean the Walkley Foundation’s judges were right to call Hedley Thomas’s podcast “a masterclass in investigative journalism”? Several other judges have firmly said no. “I have listened to the podcast,” wrote the then chief justice of New South Wales, Tom Bathurst, a year ago, “and regard its object was to incite prejudice against [Chris Dawson] in a sensationalist fashion.” This was no idle review by Bathurst, who sat alongside two other judges. The septuagenarian Dawson spent the pandemic asking multiple courts to stop his murder prosecution in its tracks, citing the coldness of the case against him, the incompetence and bias of police who investigated him and, above all, the impact of the podcast.

Thomas was required to hand over most of his notes and interviews to Dawson and the court. This May (after a suppression order was lifted) we learnt how this particular sausage was made. Part of that story was Thomas’s approach, near the start of 2018, to a former solicitor, Rebecca Hazel, who had met JC by chance a decade earlier. In the years since, Hazel had developed a warm friendship with JC and was writing a book, The Schoolgirl, Her Teacher and His Wife. Thomas convinced Hazel that her book and his podcast — which he had started work on a few months earlier — should be published in unison.

Hazel later ruminated to the court that Thomas’s real interest was in her hard-won contacts. Her friendship with JC suffered after the now fifty-four-year-old eventually decided she wanted nothing to do with Thomas’s podcast. Until the deal collapsed, though, Hazel sat in with Thomas’s interviews. She told the courts that his journalistic style — which commenced by telling his interviewees that Dawson was a killer — left her uncomfortable.

It made the judges uncomfortable too, as did the revelation that those words of JC’s that opened each podcast episode — and gave the impression that Dawson told her that he’d hired a hitman who caused Lyn to disappear — were stitched together from two entirely separate remarks. Worse still was Thomas’s convincing of most of Hazel’s contacts — Lyn Dawson’s grieving family, some coronial inquest witnesses and, incredibly, Chris Dawson’s family lawyer and one of the coroners (both of whom were magistrates by then) — to endorse the podcast or even publicly condemn a murder suspect under active investigation.

And then there was the podcast’s attack on then director of public prosecutions Lloyd Babb, who attended Dawson’s school, even though Thomas was well aware that Babb would play no role in the charging decision. Elizabeth Fullerton, the judge who heard the whole pre-trial application, held that the journalist “deliberately raised the false spectre of impropriety” just to put more pressure on the prosecutor assigned to the case. After Thomas spent days on her witness stand, the judge observed that he “gave no indication that he had gained any insight into the damage he has done… and no obvious awakening of his ethical role as a journalist.”

Nor has he since. After Dawson was found guilty, Thomas publicly claimed (citing “senior lawyers” and “former and current police officers”) that his podcast was “a factor in the DPP’s decision to prosecute.” Thomas had said as much to Justice Fullerton, telling her he thought “public pressure” from his podcast and Lyn’s family “might cause the DPP to look at something properly,” a statement she labelled “breathtaking” and  something the prosecutors have always denied (including just last week).

Fullerton found that the brief of evidence the prosecution accepted was actually completed six months before Thomas started working on the podcast and sent to prosecutors a month before its launch. Notably, that brief already included Thomas’s supposedly biggest discovery, a 1982 missing person report supplied by Dawson. The cops had found that previously lost statement in 2015, three years before Thomas’s announcement on his podcast that he had been handed it by an “unlikely source.” (Weeks later, he said he got it from the ombudsman.)

To be sure, it’s all too easy to imagine the prosecutors buckling under the public pressure, and Dawson’s lawyers argued that any such perception was itself poisonous. After all, Thomas claimed throughout his podcast that he had “new evidence” for the police. (Justice Fullerton found that he actually had “little” that the investigators didn’t already have.)

Added to that, a Sydney radio personality had publicly convinced the then police commissioner to order his investigators to speak with Thomas. (Fullerton fretted that the commissioner himself was trying to influence the prosecutors, but opted for the kinder conclusion that he was just fooled by Thomas’s bluster.)

And, of course, the decision to charge Dawson came mere days after the podcast’s Gold Walkley. (It was also weeks after extensive digging at the former matrimonial home, at Thomas’s behest, uncovering nothing. A dirty cardigan previously found there was one of many pieces of evidence ballyhooed on the podcast that went unmentioned in the judge’s reasons.)

But, while it’s unlikely that The Teacher’s Pet prompted a murder trial, neither did it stop one. The courts rejected all of Dawson’s arguments that he couldn’t be properly tried, albeit by a whisker. Nevertheless, Hedley Thomas can clearly claim credit for some things.

For starters, he delayed Dawson’s trial by several years, with the courts ordering a pause until mid 2021 (in the hope that Sydney’s jurors would somehow forget Thomas’s podcast ever existed) and the High Court adding nine more months before it decided not to hear a further appeal from Dawson based on the lower courts’ criticisms of the podcast.

The podcast was also the main reason Dawson’s fate was put in the hands of a judge rather than a jury, after the Supreme Court ruled this would avoid the difficult and potentially impossible task of finding twelve jurors who were untouched by Thomas’s podcast. (Judge Harrison assured all that he had never partaken.)

Dawson’s prosecutors had wanted a jury trial regardless, perhaps worrying — rightly as it turns out — that a judge would dismiss most of the character evidence but also — wrongly as it turns out — that such a judge would then acquit. The result is that, instead of an inscrutable jury pronouncement, we now have detailed reasons — over 700 paragraphs of them — for why Dawson is now in jail.

One thing those reasons reveal (which a jury trial wouldn’t have) is the exact impact the podcast had on the verdict. Four years ago, I wrote, of the podcast’s revelations:

The new evidence about Lyn Dawson’s disappearance consists of decades-delayed revelations from family, neighbours, friends and acquaintances, each apologetic for not saying anything earlier about Chris Dawson’s allegedly odd behaviour or the bruises on his wife’s arm… [N]early all of this new evidence has a common flaw: it was generated not by Thomas’s gumshoeing but by the podcast itself. If [Dawson is] eventually prosecuted, [he] can compellingly argue that the new statements are distortions or fabrications prompted by Thomas’s own lurid claims.

And that’s what Dawson’s barrister, Pauline David, did. It was her only successful argument.

In the middle hours of his reasons, Harrison threw out virtually every witness Thomas uncovered or even spoke with at length — from the man who claimed Dawson asked him to find a hitman, to witnesses who claimed to have seen bruises on Lyn’s arms or throat, or heard her describe being choked or pushed in the mud — unless they had given the same account to the police well before they were interviewed for the podcast. He likewise threw out every defence witness who had seemingly only come forward because of all the publicity.

In short, The Teacher’s Pet stopped both sides from usefully investigating Lyn’s disappearance after the start of 2018. At his trial, Dawson’s lawyer argued that this hindrance, plus the police’s failure to gather key documents, since lost, or to speak with key witnesses, since deceased, and the delays that prevented Dawson doing the same, left him at an unfair disadvantage. Harrison disagreed, noting that his prosecutors were just as affected. Again, it remains to be seen whether Dawson’s appeal judges will agree.

Last May, a new Chris Dawson podcast launched:

JOURNALIST: Happy that finally it’s under way now?

CHRIS DAWSON: Yes, very happy.

HEDLEY THOMAS: My name is Hedley Thomas and I’m a journalist with a particular interest in podcast investigations into the alleged murders of women in Australia. This is the first episode of our new podcast series, The Teacher’s Trial.

This is Hedley Thomas’s fourth entry in the medium. His second and third podcasts followed the formula of his first. The Night Driver, which identified multiple possible suspects in the disappearance of Bathurst’s Janine Vaughan, failed to go viral. He had more success with Shandee’s Story, which reinvestigated a man acquitted of murdering his titular ex in Mackay and, like the ABC’s Trace, prompted an inquiry into the handling of DNA evidence.

His latest effort mimics a different one from Thomas’s newspaper. Yuendumu’s daily recaps of the trial of NT police officer Zachary Rolfe were a landmark in national court reporting, brilliantly letting interested people closely follow a case of enormous public interest, almost the way Americans routinely do. (The pandemic has seen many Australian courts live stream multiple proceedings of public interest, but no criminal trials to date.)

The NT Supreme Court itself took an especially open approach to the Rolfe case, eventually taking the unprecedented, but very welcome, step of publishing the whole trial transcript on its website. Its actions evinced a desire to be as open as possible and a trust in the media’s ability to report on such a sensitive case responsibly. In my view, the mutual trust was rewarded, and achieved a much higher public understanding of Rolfe’s acquittal among supporters and critics of the jury’s decision alike.

If Dawson had faced a jury, it’s doubtful that the NSW courts would have allowed anything similar. Justice Fullerton thundered that, had The Teacher’s Pet been published after the murder charge was laid, “a number of individuals and publishers would inevitably have been liable and likely convicted of a criminal contempt.” She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors. The Teacher’s Pet was eventually pulled from local sites and the media were banned from even mentioning the podcast’s name until this year.

But the ruling that gave Justice Harrison the jury’s role — itself prompted by The Teacher’s Pet — made The Teacher’s Trial possible. We’re better off for the coverage it provided. I’ve little doubt that reporters Matthew Condon, Claire Harvey and David Murray shared their co-host’s view about Dawson’s guilt, but it was refreshing to hear them refrain from stating it. Instead, their podcast gave detailed but fair summaries — sometimes even with counterarguments — of the prosecution’s evolving arguments and evidence, alongside balanced, expert reflections on the trial process, crime reporting and true crime fandom.

The different tone has any number of possible explanations. Attending every day in the courtroom, the journalists may have picked up the rhythms of a real trial, which — unlike Thomas’s parody — alternates between arguments and responses on each and every piece of evidence. And they would have been well aware that, much as Dawson and his family once recognised, their every word could end up being raised in court.

Dawson was also able to keep Thomas himself out of the courtroom for much of the trial by having prosecutors promise to call him to testify. (Thomas’s testimony turned out to be a very muted reprise of his testimony at the pre-trial hearing. The defence instead relied on a transcript of Thomas’s earlier testimony, and even a couple of podcast episodes, to convince Harrison of the journalist’s impact on the evidence.)

That meant Thomas was reduced to a background role on his own podcast. In an early episode, he responded to some of Justice Fullerton’s findings, expressing bafflement at her critique of how he edited JC’s words and defending the media’s role in exposing official failings. He played a greater role — albeit still somewhat muted — after he testified, and even issued a belated apology of sorts to JC days before Harrison’s verdict.

At Dawson’s murder trial, JC repeatedly objected to any reference to her “relationship” with Dawson — and even her later marriage to him — describing it instead as “grooming.” In response, Thomas said he no longer felt comfortable with having referred to JC as Dawson’s “teenage lover” in his earlier podcast. He invited advocate Nina Funnell onto The Teacher’s Trial to explain how Grace Tame had endured the use of the terms “affair” or “tryst” or (in court) “maintaining a sexual relationship” to describe her years of abuse by her teacher.

But no one — not Thomas, not his co-hosts, not Funnell — mentioned the elephant in the room. How do any of these people think Grace Tame would have felt if someone made a hit podcast about her case and called it The Teacher’s Pet? (Last week, the Australian proudly celebrated Dawson’s conviction by re-releasing all twenty episodes of the 2018 Gold Walkley winner.)

Like George Pell’s case before it, Chris Dawson’s is now on a path to an eventual finale in Australia’s High Court. Much may turn on Ian Harrison’s pre-trial rulings on the admissibility of evidence, which are yet to be published.

In the meantime, let me venture a different prediction: there’ll never be a podcast like The Teacher’s Pet again. This isn’t my hope speaking — though there is that — but rather the courts. Alongside his second Walkley, Thomas can now lay claim to Justice Fullerton’s prize for “the most egregious example of media interference with a criminal trial process which this Court has had to consider.”

When Elizabeth Fullerton spoke these words, she was well aware that they would fall on Thomas’s deaf ears, but she had a different audience in mind. She had pointedly asked the journalist what legal advice he had sought about the podcast, only to be interrupted by a News Ltd lawyer who claimed privilege. She later pondered what would be worse: Thomas choosing to go ahead despite his in-house advice, or because of it. She closed her judgement with advice to prosecutors: that they should be more proactive in seeking injunctions against true crime journalism before — perhaps even well before — relevant charges have been laid. She made it clear that she would now be more inclined to grant such requests.

That may be one last thing Thomas can duly claim credit for: the end of media investigations of cases under consideration by prosecutors in New South Wales, and perhaps other states too. But my hope is for something gentler: that Fullerton’s words are not aimed at all true crime journalism, but only the malign sort that Thomas peddles. There is still, in my view, room for podcasts that, like The Teacher’s Trial, offer a semblance of the justice that the courts afforded Dawson this year. •

Note: To correct an inaccuracy, the bolded words were added to the following sentence after publication: “She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors.”

The post The podcast’s trial appeared first on Inside Story.

As soon as it hit the shops, copies were snapped up by the political and legal fraternity, and it wasn’t long before one of Campbell’s lawyer friends drew his attention to page 354. This summarised a long-running defamation case against Joh Bjelke-Petersen by 1976 Australian of the Year John Sinclair. For more than a decade Sinclair’s Fraser Island Defence Organisation had been a thorn in the side of the Bjelke-Petersen regime, which had expanded already extensive sand-mining leases on the island despite export bans imposed by both the Whitlam and Fraser governments.

In early 1977 the premier had questioned whether Sinclair could perform his work as a state government employee while leading the conservation campaign against sand mining. Within days of issuing his writ against Bjelke-Petersen over these comments, Sinclair learned that his job had been abolished and he’d have to move away from the Fraser coast. Four years later the Queensland Supreme Court finally awarded him $500 in defamation damages plus legal costs — a decision Bjelke-Petersen appealed.

Before this appeal could be heard, the position of chief justice became vacant. It was at this point in his narrative that author Ross Fitzgerald wrote a sentence he never realised would expose him and his publishers to the threat of criminal libel and even imprisonment:

On 21 May 1982, the Queensland Full Court, led by Queensland’s new chief justice, Sir Walter Campbell, who had been appointed to the position despite the opposition of the Queensland Bar Association and the Liberal attorney-general Sam Doumany, in a unanimous decision overturned the Supreme Court ruling and awarded costs against Mr Sinclair who was left with a $50,000 debt.

Even though Campbell had not been Bjelke-Petersen’s first choice for chief justice, Sir Walter read page 354 of Fitzgerald’s book as a serious libel on his judicial independence. UQP was ordered by the university to pulp all warehouse stock along with copies still on sale in bookshops and any review or complimentary copies that had gone out. It was a military-style operation that took our sales and marketing staff the best part of a week to carry out.

They were so successful that very few copies of the original edition escaped. I still have mine, which I showed to Geoffrey Cains when he was compiling Access Denied: A Bibliography of Suppressed Australian Literature. As he points out in his entry on volume two of Fitzgerald’s history of Queensland, when UQP reissued the book in 1984, Sir Walter Campbell had been surgically removed. I remember sitting alongside Ross at UQP’s beautiful silky-oak boardroom table one afternoon as we carefully defused that dangerous paragraph.

Access Denied has been a labour of love for Cains, a renowned book collector and bibliophile as well as a dermatologist and lecturer in medicine at the University of Wollongong. He established the annual National Biography Award in 1996 and his substantial collection of Australian literary manuscripts and correspondence is now held by the State Library of Victoria.

Based on his PhD thesis, Access Denied tells the fascinating stories of almost 200 editions that were withdrawn — before, during or after publication — by their authors or publishers, often because of the threat of legal action, as happened to me at UQP forty years ago.

Arranged alphabetically by author, the descriptive bibliography covers more than two centuries of Australian cultural history — from the 1770s to 2015 — and focuses on suppression rather than government censorship. Cains hopes that other scholars and bibliophiles, including booksellers, will add the stories of other suppressed books as they come to light.

For me, two of the most interesting authors in Access Denied are Indigenous. David Unaipon (1872–1967) was an inventor as well as an author and preacher who believed in the equivalence of traditional Aboriginal and Christian spirituality. In the mid 1920s he sold the copyright in his manuscript of Aboriginal myths to Sydney publisher Angus & Robertson who transferred the copyright to physician and anthropologist William Ramsay Smith.

British publisher Harrap asked Smith to put together a volume of Aboriginal myths, which appeared in 1930 as Myths & Legends of the Australian Aboriginals. Although this was Unaipon’s work, it was published under Smith’s name: strictly speaking, a case of the author rather than the book being suppressed. Fifty years later, scholars Adam Shoemaker and Stephen Muecke discovered this flagrant breach of copyright and edited a new edition for Melbourne University Press in 2001 under the title Legendary Tales of the Australian Aborigines, with Unaipon finally acknowledged as author.

A generation later than David Unaipon was poet, playwright, artist and Black activist Kevin Gilbert, whose first book was a collection of his poems written during fourteen years in prison. Illustrated by the author, End of Dreamtime was almost immediately withdrawn from sale in 1971 after Gilbert accused his publisher of bowdlerising and tampering with the text. The following year he helped organise the Aboriginal Tent Embassy but was forbidden to travel to Canberra because he was under strict parole conditions. A dozen years later he established and chaired the Treaty ’88 Committee in the years leading up to the bicentenary.

Other writers have suppressed their first books for more personal reasons. Nobel Laureate Patrick White’s first effort, Thirteen Poems, was published privately by his mother in about 1929. It was not so much suppressed by the author as invisible to literary scholars for many years, having been listed in the Mitchell Library catalogue under “P.V.M. White” rather than “Patrick White.”

Ruth White also arranged and paid for the printing of her son’s next book, The Ploughman and Other Poems (1935), in an edition of just 300 copies, few of which sold. It has become part of literary legend that White, later in life, tried to buy up and destroy any copies of The Ploughman that came on the market. He also refused to allow his first novel, Happy Valley, published by Harrap in London in 1939, to be republished. According to Cains, “White feared a libel suit from the family of one of the characters in the novel.” It was finally reissued by Text Publishing in 2012 — a decade after his death.

Other novels suppressed, and later reissued, include the pseudonymous Helen Demidenko’s Miles Franklin Award–winning The Hand That Signed the Paper (1994), Kylie Tennant’s Ride on Stranger (Angus & Robertson, 1943), and Come in Spinner (1951) by Dymphna Cusack and Florence James.

My own favourite suppressed novel is screenwriter Tony Morphett’s Fitzgerald (Jacaranda Press, Brisbane, 1965). Cains quotes from a newspaper article he found tipped into a proof copy of Fitzgerald when researching his bibliography:

Let us not forget the case of Tony Morphett whose novel about an artist was withdrawn when an artist of the same surname, who was unknown to Morphett, threatened a defamation action. The novel, rewritten, was published as Thorskald (1969), and Morphett had to suffer countless japing telegrams from friends, claiming that they were solicitors representing an artist named Thorskald.

The most recently suppressed book in Access Denied is David Day’s 2015 biography of Paul Keating, published by HarperCollins in a print run of 8000 hardbacks but withdrawn from sale and pulped after a legal threat from the former prime minister. HarperCollins also agreed to meet Keating’s legal costs.

In the notorious case of Bob Ellis’s Goodbye Jerusalem: Night Thoughts of a Labor Outsider (1997), Liberal politicians Tony Abbott and Peter Costello brought a successful action for defamation on behalf of their wives against the publisher Random House. Cains helpfully tells his readers that the offending text was to be found on pages 472–73. The original edition was pulped, those pages amended, and the book reissued in a new edition three months later.

Printed full colour and beautifully produced by Longueville Media, Access Denied is a large-format hardback with dozens of illustrations, including book covers, photographs and rare manuscript items. It’s currently available from online retailer Booktopia for only $38.50. •

The post Pulped! appeared first on Inside Story.

That’s just common decency, right? It’s a recognition that objects are part of the story of the land. And in any case, we know it is what traditional owners ask us to do.

I’ve been thinking about this encounter while reading Paul Cleary’s important and gutsy book Title Fight, which reveals the ways the mining company Fortescue Metals Group, or FMG, sometimes behaves in the presence of Indigenous people and how it treats their precious objects and land. And decency is not a word that comes to mind. In this often-distressing saga, Cleary opts for other words to describe FMG’s dealings with Indigenous people, especially the Yindjibarndi of the Pilbara — words like manipulative, aggressive and unconscionable, which he carefully justifies.

Under chairman Andrew “Twiggy” Forrest, FMG has become the world’s fourth-largest iron ore producer by grabbing tens of thousands of square kilometres of mining tenements across the Pilbara. In some of these, the company’s strategy is to scrape low-quality ore from a large surface area rather than dig deep into rich deposits, meaning it can have a huge impact on the landscape and the heritage it contains. Forget small stone tools, we’re talking about shelters, ochre quarries, places of Dreamtime stories with evidence of thousands of years of human habitation.

We all know this happens, and particularly in the Pilbara, because Rio Tinto demonstrated it last year by obliterating the globally significant Juukan Gorge with its 46,000-year evidence of human occupation. What Title Fight makes clear is that FMG is also guilty of cowboy behaviour, perhaps on an industrial scale, despite its carefully crafted public image as a company that cares about Indigenous employment.

FMG’s aim was to be the world’s lowest-cost iron ore producer, and because it arrived on the scene relatively late and wanted to cash in on the great iron ore boom, it worked at a super-fast pace to broker deals, get approvals, build railway lines, and get ships loaded and despatched to markets in China. The company appeared to operate with a sense of entitlement, which may explain the manipulation and corporate bullying of traditional owners, who struggled with weak laws and inadequate resources to protect their land and rights.

But FMG met its match in the CEO of the Yindjibarndi Aboriginal Corporation, or YAC, Michael Woodley, who emerges in Title Fight as knowledgeable and magnanimous — a natural leader of the Yindjibarndi communities spread across the Western Pilbara. Woodley is recognised as a tharnga, or spokesperson for the land, representing a place called Garliwinjinha where FMG was developing its Solomon mine. He was schooled in the local Birdarra law and ceremonies and the stories of the Marrga spirits, whom the Yindjibarndi believe were sent by the God-being Minkala to create the Pilbara. But none of this stopped FMG trying to silence him to further its own interests.

Together with the neighbouring Ngarluma people, the Yindjibarndi won non-exclusive native title over a large area of the Western Pilbara in 2003. But the miners were still able to keep amassing tenements and mining licences. The Aboriginal communities then made an additional native title claim on country to the southeast. They did so because another tribal group, the Banjima, agreed that Yindjibarndi territory was much larger than the first claim suggested. The stakes were high: the claim covered the site of the Solomon mine, and if the Yindjibarndi won native title then FMG would be subject to a huge compensation bill.

Cleary demonstrates how FMG developed a playbook for dealing with difficult communities based on its treatment of the Nyiyaparli people of the Chichester Range 250 kilometres southeast of Port Hedland. The Nyiyaparli were also pursuing their native title rights and had passed the important registration milestone, meaning they had a strong negotiating position. Cleary says FMG “set about trying to exploit — or, indeed, foment — divisions in the community.” It seized a moment when they were disorganised to broker a land access agreement with some of the Nyiyaparli elders directly. They were flown to Perth, without legal representation, where they were handed a new agreement that “removed significant cultural heritage and environmental provisions” that had already been settled with the wider community.

Cleary describes the payment they were offered to turn their traditional lands into a quarry — unindexed royalties of 2.5 cents a tonne, with two Toyota Landcruisers “to sweeten the deal” — as “astonishingly small.” At the time, the more established mining companies were offering traditional owners around 50 cents a tonne, which would rise to $1 a tonne at peak times. The elders signed, and FMG celebrated on its website. But a day later, the elders said they’d been duped because they didn’t fully understand what they were signing and had felt pressured. The deal was eventually scrapped; but rather than vow not to do it again, FMG got busy refining its tactics.

The divide-and-conquer strategy has been at the centre of FMG’s dealings with the Yindjibarndi. Title Fight documents the process that led to the creation of the rival Wirlu-murra Yindjibarndi Aboriginal Corporation and how FMG gave it preferential treatment and provided funding for it to undermine YAC’s status as the legitimate agency — or prescribed body corporate under the Native Title Act — to represent the Yindjibarndi’s interests. FMG paid for extensive litigation to undermine YAC and launched defamation proceedings to silence its critics.

In negotiations with the Yindjibarndi, FMG offered terms that were beyond miserly. Breathtakingly so. For a resource valued at billions of dollars, it offered the Yindjibarndi just $3 million a year and another $1 million a year for elders, plus a one-off signing fee of $500,000. The company made great mileage out of the claim that royalties for communities amounted to mining welfare and did more harm than good. But, as Cleary points out, it forgot to mention how it benefited from paying so little. And it failed to include guarantees that trusts would be established to ensure payments continued to benefit communities. Instead, it focused on job creation for Indigenous people, which it in part delivered by channelling huge contracts to the rival corporation that supported it.

And just when you thought FMG couldn’t behave any worse, the company carried out a “brazen undercover” operation to nullify YAC’s impending native title hearing. It did this by supporting the breakaway group when it formed yet another Aboriginal organisation that staged a vote to silence Woodley and pull back from the native title claim. It paid people to turn up with $400 Woolworths vouchers. But that eventually backfired too, when the Federal Court handed down a “withering assessment” of FMG’s attempts to orchestrate a result in its own interests, without revealing to the local community how it would lose out financially by supporting the proposal.

The 25,000 square kilometres of the original Ngarluma–Yindjibarndi claim and the 2800 square kilometres of the additional claim are the site of some of the richest Indigenous heritage found anywhere in the world. Cleary calls FMG out for its lax approach to protection. For example, it sacked two archaeological consultancies that had expressed alarm about impending mining in heritage sites. One of these firms claimed FMG had not asked the right people about important sites, instead involving only people from the compliant breakaway group.

Cleary shows that FMG threatened to withhold a $70,000 payment to one firm until important ethnographic information that FMG said was prejudicial to its interests was removed from a report. The consultancy it then engaged was accused by WA’s Aboriginal affairs department of under-reporting possible heritage sites by 30 per cent.

The same consultancy obligingly said that no more archaeological work should occur at fourteen sites that had been identified as significant by previous surveys. These included ochre quarries and rock shelters, some likely to contain burial sites, and the halt to archaelogical investigation meant they could be destroyed to make way for the Solomon mine. At one of these quarry sites the firm then determined that no further work was required because it was already earmarked for destruction, as long as the Yindjibarndi were in agreement. Cleary found no evidence local people were ever asked.

Because FMG was in such a hurry it sometimes carried out extensive blasting without granting the Yindjibarndi people access to culturally significant sites, contrary to mining lease conditions. The WA registrar of Aboriginal sites, Kathryn Przywolnik, found deficiencies in the heritage surveys and accused FMG of not telling the whole story about the extent of the Indigenous heritage. Another anthropologist, Brad Goode, was sacked by FMG for identifying sites of significance. More than 170 sites in the Solomon mining area were downgraded to a “stored data — not a site” classification, meaning artefacts would be preserved and the site could be destroyed. And on and on the evidence and allegations go.

If this story didn’t have the element of redemption, it would be about as depressing a tale as you can imagine. The sustained abuse and manipulation of the community by FMG, chapter after chapter, lends a kind of rhythm to the writing. First there’s some tiny concession or ray of hope indicating someone understands that the First Nations people have inalienable rights and legitimacy. Then comes that insidious word “but” before the text proceeds to explain how even that concession or understanding wasn’t enough to stave off another assault. I found myself wondering how Cleary had the stamina to recount all this, before realising that as impressive as his dogged research is, it is nothing to the resilience of the Yindjibarndi over so many years.

This is an important and timely book. Cleary manages to make sense of how this opaque and protected industry works within a legal framework that favours miners and does little to support the interests of traditional owners. It is backed by deep research but written with journalistic clarity and a compelling narrative that rightly pits two people, and the cultures they represent, against one another.

Woodley emerges as the victor, not just because the Yindjibarndi ultimately won exclusive native title and staved off a High Court challenge from FMG — which in turn sets the scene for a mammoth compensation payout — but also because he appears determined to heal and reunite the Yindjibarndi community, which FMG has done so much to divide.

Andrew Forrest fares much less well. At one point Cleary describes Forrest’s beloved Minderoo cattle station, where he was raised, and which he repurchased as an adult, and after which he named his philanthropic foundation. While Forrest was driven to mine vast tracts of Aboriginal land, Cleary writes, he fought tenaciously and successfully to stop mining companies entering Minderoo. Alas, this recognition that mining irrevocably damages heritage and landscapes, and that people have deep emotional and cultural connections to the land, does not translate to FMG’s wider operations. •

The post A miner meets its match appeared first on Inside Story.

He woke up, a bit dazed and groggy and then smiled, said hello, looked at me quizzically and said, “And to what paragraph of the Public Health Order do I owe the pleasure of this visit?”

I didn’t want to plead civil disobedience and I didn’t have the heart to tell him it was a care visit for a dying friend. Sensing that I didn’t have an answer, he looked at me, and smiled, and said, “I suppose it could be a care visit for a dying friend.” I smiled back.

For around two decades, I would catch up with Hal regularly, often every month, and we would sit down over lunch and discuss the state of the world. We discussed the law and Indigenous policy, and what George Bush or Donald Trump were up to. And we — though more him than me — would reminisce. Sometimes he told stories that I had heard before but usually they were new. Each time they were wonderful and told with a generosity and humanity that said much about the teller.

But that afternoon a few weeks ago, with Hal well aware that death was finally coming, I had the unique privilege of telling his stories back to him, reminding him of why his life was one of great meaning, why he had lived out his motto — “to thine self be true” — and why, in his own humble way, he had had an immeasurable impact on this country.

For a man with such a keen sense of humour, and who led such a reflective life, irony sometimes escaped him. I remember having lunch with him when he was eighty-seven and living up at Hawkes Nest. He was complaining that he was feeling a bit sore. I raised a curious eyebrow, but privately thought it was just an old person complaining about his ailments. However, he went on to say that earlier in the week he had used a wheelbarrow to move ten tonnes of soil from the front of the house, where it had been delivered, to the back. I asked him why on earth he would do that. His response: “I want to build up the garden beds so that when I get old, I won’t have to bend over so far.”

There has always been a certain restlessness to Hal, one that would cause him to spend two months walking the untracked reaches of the Snowy Mountains as a student; or to leave a prestigious city law firm, Minters, to join the Australian School of Pacific Administration and then head to Manus Island in New Guinea to undertake fieldwork; or to leave a lucrative practice at the bar and sell up his fledgling cattle enterprise in order to establish a law school when his only experience of teaching law had been as a part-time tutor; or to leave Australia in his late eighties to spend three months living in Ramallah in order to get a deeper understanding of the Palestinian predicament. Hal certainly gave licence to his curiosity, and the more any learning experience involved an element of adventure, the keener he was.

He once told me how he would continually ask his colleagues at the School of Pacific Administration — poets, historians, anthropologists and experienced kiaps (New Guinea field officers), many of whom had spent years working in very challenging environments — “Why?”; “Why do you say that?”; “Why is that the case?” He genuinely wanted to know the answer, but they came to think of him as the true intellectual among them for doing no more than constantly asking “Why?” That was something that amused Hal, and he continued to make good use of the technique throughout his life, often to the discomfort of his hyperbolic friends.

People often speak of Hal as a figure on the left of politics. Certainly, in his early days as a lawyer he was briefly a member of the Communist Party. It didn’t trouble the senior partner who employed him as his personal brains trust. But then Hal would later be the industrial lawyer of choice for the Packers (that’s Frank and Kerry, not the storemen) and the pastoralists. He was also the unionists’ lawyer of choice on occasion.

Whether he was for capital or labour, he was respected by both and independent of either. He was not just open to the arguments but determined to test his own assumptions and preferences. His compassion was never in doubt, but his intellect was always his guide. No one owned Hal Wootten, but he was loyal to people and causes.

Despite John Kerr’s very public shortcomings, Hal remained loyal to him. Kerr had taken Hal up as a protégé and was one of Hal’s early mentors, although never in the league of Hal’s mother and grandparents. But Hal was also one of the first to privately signal his disapproval after Sir John’s dismissal of Gough Whitlam as prime minister in 1975. When Sir John rang him on the day it happened to seek affirmation of what he had done, Hal’s response — “I’m sure you must have had a very good reason” — delivered in his sceptical tone, would not have been the one Kerr was seeking.

Like all of us, Hal was not without his contradictions. He could show enormous patience and sympathy in some situations, especially in dealing with those who were struggling, and yet be short and even cantankerous in others.

One of the few times I encountered Hal in a professional capacity was in the early days of the Native Title Act, when he was conducting a mediation as deputy president of the National Native Title Tribunal. The parties were a group of native title claimants at Peak Hill, for whom I acted, a gold mining company wanting to mine the old town reserve, the local council, and the NSW government. Peak Hill is south of Dubbo and the history of the Aboriginal people there, like elsewhere, had been one of dispossession, discrimination, suffering and exclusion.

In listening to each party speak, Hal was unrushed and very attentive. Occasionally he would ask an open question for clarification, but there was no judgement in his manner. He was there to listen and learn. Importantly, no lawyer spoke. It was the people at the heart of the dispute talking directly to one another, airing, in the case of the claimants, grievances that were generations old. The mayor acknowledged the wrongs but spoke of what the mine would do for the town; the miner’s CEO, confronted with a situation that he hadn’t experienced before, promised that they would be respectful of the community’s concerns and interests.

It was a genuine and moving exchange — until the state government, through its barrister and senior lawyers, delivered its legalistic position, which gave no scope for compromise or agreement. In an instant, Hal, the gentle grandfather, transformed into the very grumpy, acutely attuned judge. But there are limits to what a mediator can achieve in the face of intransigence, and with the state unwilling to shift, Hal terminated the mediation. Unlike so many of his successors on the tribunal, who kept matters in fruitless suspension for years, Hal knew there was no value in flogging a dead horse.

Hal had a number of important personal friendships with people “on whom the law bears harshly.” Frank Doolan, a renowned senior Wiradjuri man who is known across the state as “Riverbank Frank,” would introduce Hal to friends as “Gill’s legal aid boyfriend.” Frank, who always had a very deep affection and respect for Hal, remembers him as “a kind, gentle man with enormous strength of character.” He goes on: “Although I often argued (or tried to argue) about Black issues with him I can’t recall a single time when I won the argument. Hal would sigh, look at me, with the patience of Job and say, ‘Frank you’ve got to have a plan.’ The Aboriginal Legal Service, which was born in Redfern, actually came into being because Hal and people like Neville Wran, Frank Walker and Paul Landa supported Indigenous Australians and saw their great need for proper representation in the legal world.”

For some years until he was well into his nineties, Hal and Gillian would join Frank in quiet protest at Villawood Detention Centre each Australia Day. Hal was concerned for the plight of refugees in Australia, especially those arriving by boat. One was Ali Gulzari, who became Hal’s friend when Ali’s remarkable success as a new arrival at high school in western Sydney led to them being put in touch. The friendship between these two flourished and they both learned much about the world from sharing stories with one another, sometimes on long exploratory drives across the country, including visits to Richard Frankland, a respected Aboriginal leader from Western Victoria who assisted Hal in the landmark work of the Royal Commission into Aboriginal Deaths in Custody.

Richard recalls that he first met Hal when he was about twenty-five. “We investigated First Nation deaths in custody together. It was a hard job, and we covered many miles together, over a period of about four years. As I watched Hal work, I was astounded at his ability to listen and actually hear what people had to say. We heard stories from many people who had lost a friend or family member in custody, stories about grief, injustice, systemic discrimination. Hal humanised what had been dehumanised. I once asked Hal what advice he would give a young man, meaning myself. He said, ‘Love with an open hand, have humility and give of yourself generously.’”

During the first decade of the twenty-first century, Hal was disturbed by events in the Middle East and the tensions between Islam and the West, so he decided to develop a deeper understanding of the roots of the conflict. In particular, he was concerned at the demonisation of Muslims. He returned to university, this time as an undergraduate student in Arabic studies. But this was not enough, and he decided to spend three months living in Ramallah, on the West Bank. It was a time in which he formed friendships on both sides of the border and made links that led to a program of Palestinian lawyers undertaking doctoral studies at UNSW. It also led to a close friendship with Naser Shaktour, the founder and director of the Palestinian Film Festival in Australia.

Hal was arrested among a group of Israelis defending Palestinian farmers from Israeli settlers in the West Bank. He insisted on the soldiers telling him under what law he was being detained. Eventually they released him without charge, but he refused to leave until all of the protesters were let go. After hours and hours of waiting around, the whole group was released.

Hal cherished his time as a barrister and a judge, but establishing the law school at UNSW was, for him, the highlight of his career and the source of his greatest professional pride. How a country trains its lawyers is no small thing. In setting out to change legal education, Hal was conscious of the impact that it could have on changing the country.

By the time I came to study law in the early 1980s, UNSW had already marked itself out as a progressive and highly innovative law school that broke with century old methods of how lawyers were to be trained. Importantly, the UNSW law school took seriously its obligation to engage students actively in their training, while inculcating a strong sense of professionalism and the responsibilities to society as a whole, especially “those on whom the law bore harshly,” who were the corollary of the privileges of practice. The pedagogy designed by Hal was based on the simple but effective principle of avoiding all that he had found miserable and useless in his own legal education. As time has gone on, elements of Hal’s approach have been adopted in every law school in the country, and overseas institutions, from Harvard down, have made efforts to explore UNSW’s approach.

No brief reflection like this can ever do justice to such a rich, purposeful and long life as Hal’s. Brought up by his widowed mother and her parents, he studied law part-time while working as a government clerk and went on to become a leading law student, adviser to the senior partner of a leading commercial firm as a graduate lawyer, New Guinea field worker, lecturer in law for colonial government administrators, leading industrial barrister, secretary-general of LAWASIA, foundation dean of a law school offering a new mode of legal education, founding chair of the first Aboriginal Legal Service, adviser to the government of the newly independent Papua New Guinea, Supreme Court judge, chairman of the NSW Law Reform Commission, chairman of the Australian Press Council, chancellor of NSW Institute of Technology (now the University of Technology Sydney), president of the Australian Conservation Foundation, royal commissioner into Aboriginal deaths in custody, deputy president of the National Native Title Tribunal, patron of the Environmental Defenders Office, Queen’s Counsel, Companion of the Order of Australia, farmer, activist, conservationist, humanitarian, friend of the downtrodden.

Hal was intellectually brilliant, warm, quick-witted, generous and humble. But of all his many wonderful qualities, three made him stand out.

The first was his vision of what could be achieved. He was so often the johnny-on-the-spot, trusting his instincts and judgement; he saw what others couldn’t but which in hindsight was so often blindingly obvious.

The second was his practicality. He didn’t hesitate in taking the first, often simple step and seeing where it would lead. He was courageous and tenacious in doing what needed doing.

And lastly, he was principled. One friend has said that he held a mirror up to the country, which he did, but not before he held it up to himself. •

This article is based on Andrew Chalk’s reflections at Hal Wootten’s funeral in Sydney on 6 August.

The post Why, and why not? appeared first on Inside Story.

Two years ago, Rolfe was a serving constable based in Darwin. When he was named as the man who shot Kumanjayi Walker in Yuendumu in November 2019, no one had yet heard of Minneapolis police officer Chauvin or the man he killed, George Floyd. That changed six months later when harrowing smartphone footage of Chauvin’s knee on Floyd’s neck became 2020’s second-biggest news story. The reignited Black Lives Matter movement, linking America’s history of enslavement to contemporary cross-racial policing, readily translated to Australia’s history of invasion and Indigenous deaths in custody.

The resemblance between the Chauvin and Rolfe cases is more than skin-deep. Walker and Floyd each died after being arrested; both suffered their injuries on the ground with a police officer on top of them. Chauvin and Rolfe each argued that their use of force was reasonable; both were nevertheless charged with murder four days after the killings.

Each of the police officers was also charged during community unrest, although the American upheaval was far broader. That is why it was Floyd’s death, not Walker’s, that prompted street protests across Australia’s cities about the lack of progress since 1991’s royal commission into Aboriginal deaths in custody. A longstanding grievance — the lack of prosecutions of officials in relation to any of the hundreds of such deaths over the next three decades — had by then been partly remedied by Rolfe’s charge and an unrelated Western Australian prosecution in early 2020.

But Australian justice is quieter than America’s. Across 2020, every aspect of Chauvin’s life, from his marriage to his disciplinary record to his side hustles, was exhaustively pored over by the US media, as was every decision by his lawyers, prosecutors and judge. Rolfe’s case, by contrast, lacked not just an emblematic video but also any public airing of the evidence, thanks partly to Australian concerns about prejudicing juries.

What we do know suggests that Rolfe’s trial will be very different from Chauvin’s. Despite America’s greater penchant for armed confrontations, it was the encounter between Rolfe and Walker that involved weapons. Walker’s tool, a pair of scissors, was prosaic, but he was the first to draw blood, reportedly stabbing Rolfe in the shoulder. Rolfe responded not with his knee but with his gun. The gun and scissors explain why Rolfe’s prosecutors, unlike Chauvin’s, claim that he killed intentionally and why Rolfe’s lawyers, unlike Chauvin’s, claim that he killed defensively.

Australian justice is also slower than America’s. Even though Floyd died six months after Walker, Chauvin was convicted of his murder up to twelve months before Rolfe’s trial is now likely to begin. The delays were initially because of Australia’s different pre-trial processes and the Territory’s smaller justice system, combined with the pandemic’s barriers to travel. But then a new problem arose, in the form of yet-to-be-resolved questions about whether and how the Territory’s criminal law applies to police officers.

“Is Zach Rolfe… Di Fingleton?” That question was voiced soon after Rolfe was charged, but it still lacks a definitive answer.

Two decades ago, Fingleton was Queensland’s first female chief magistrate. Then she fell into a fight that was as trivial as Rolfe and Walker’s was tragic. Irritated by the activism of the Magistrates’ Association, a union of sorts for the judicial officers in her court, she wrote an angry letter saying that she had lost confidence in the body’s vice-president and telling him to show cause why he should keep his position as a coordinating magistrate.

Fatefully, her list of grievances included an affidavit the vice-president had given to a panel of judges reviewing an internal workplace dispute, in which he accused Fingleton and her predecessor of mismanaging transfers of magistrates around Queensland. A cascade of overreactions followed: the vice-president referred Fingleton to the state’s corruption commission, the state’s prosecutors charged her with a newly enacted offence of “retaliation” against a witness, and a jury rejected her defence that the letter was reasonable. Queensland’s Court of Appeal upheld that verdict and ruled that six months in protective custody would suffice to punish her.

The link to Rolfe’s case is a legal issue only belatedly recognised when Fingleton made a last-ditch appeal to the High Court of Australia. The national court was the first to notice that, three years before Fingleton wrote her letter, Queensland’s parliament had granted all of the state’s magistrates immunity from criminal prosecution for everything they did at work. Queensland’s chief prosecutor gamely argued that the immunity should not be read literally, but the High Court unanimously disagreed. With her prison stay long completed and her career ruined, Fingleton was belatedly exonerated.

In contrast to judges like Fingleton, police officers like Rolfe are usually given a much more limited protection against being sued for money for things they do at work. But Rolfe’s lawyers were quick to recognise that this had changed in Rolfe’s case just eight months before Walker was shot. A new law enacted by the NT Legislative Assembly stated that the Territory’s cops are not “criminally liable” for anything they do “in good faith” as part of their functions or powers.

Rolfe’s accusers seem to have taken a while to reckon with this obstacle. They knew that they could argue that Rolfe hadn’t acted defensively — that his first shot was a proportionate response to Walker’s scissors but his second and third, the fatal ones, were not. They also had a response to Rolfe’s claim that he acted “reasonably” — a defence the Territory’s criminal code provides officers who injure people as part of their duties — in the form of an expert report criticising several aspects of Walker’s arrest.

Although Chauvin’s prosecutors readily won on similar arguments in Minnesota, Rolfe’s prosecutors knew they faced a tougher challenge. Floyd was killed as he lay on the ground during an arrest for petty counterfeiting, but Walker was arrested for allegedly attacking police with an axe, and was shot while wielding scissors. In contrast to Floyd’s nine minutes under Chauvin’s knee, just three seconds passed between Rolfe’s lawful first and contentious last shots, leaving little scope to argue that the latter were fired in bad faith.

Rolfe’s prosecutor, Philip Strickland, needed to argue that the Territory’s immunity provision didn’t apply at all to Rolfe’s second and third shots. He relied on court rulings that immunities from criminal prosecution should be read not literally but narrowly, and in a way that sits well with other laws. His eventual stance was that Rolfe’s second and third shots weren’t immune because they came after his failed attempt to arrest Walker and were already covered by other (less generous) defences in the Territory’s criminal law.

The upshot is that the question of Rolfe’s guilt or innocence, like Fingleton’s, turns at least as much on how judges read a complex statute as on how jurors decide on the facts. The good news in Rolfe’s case is that the problem was recognised before — rather than long after — his trial. The bad news is that the attempt to resolve it came too close to his trial to do it justice.

“Is Zach Rolfe… John Elliott?” That question was voiced just days before Rolfe’s jury was to be chosen, but will not be answered for months.

Two generations ago, Elliott embarked on a series of corporate acquisitions that made him a major figure in Australia, including as national president of the Liberal Party and president of the Carlton Football Club. But his mid-eighties “white knight” actions against a hostile takeover of BHP prompted an investigation by the National Crime Authority and, eventually, mid-nineties fraud charges.

High-profile white-collar prosecutions are always difficult, particularly when they rest on evidence turned up by a novel body like the NCA. And so it proved in Elliott’s case. Trial judge Frank Vincent spent months resolving multiple procedural and statutory disputes before he ultimately concluded that the NCA had overstepped its bounds and most of the evidence it gathered could not be used against Elliott.

Elliott’s prosecutors immediately raced to the High Court, arguing that Vincent’s ruling was wrong and an injustice was imminent, but the national court said that it wouldn’t hear a challenge ahead of Elliott’s jury trial. Australian law, the judges explained, leaves legal questions in the hands of whichever judge is in charge of the trial and only allows those rulings to be reviewed after the trial is done and dusted. Any other system, they explained, would slow down the trial system too much, to everyone’s detriment.

Twenty-five years later, the task of resolving the question of Rolfe’s partial immunity from prosecution was in the hands of a very experienced trial judge, Dean Mildren. Following standard practice, he planned to resolve legal questions about Rolfe’s prosecution in a closed session just before the trial was due to start. But possibly realising how crucial the immunity question was, he took advantage of a pandemic-induced delay in the trial to send the dispute to a bench of all five Territory judges.

A week before Rolfe’s delayed hearing was scheduled to start, the five judges ruled: Rolfe’s jury must be told to acquit him of all charges if he fired his final two shots “in good faith.” The disappointed Strickland immediately asked for the trial to be further delayed to allow him to seek a review in the High Court, but Mildren refused, citing the High Court’s stance in Elliott’s case.

Mildren and Strickland would have been all too aware of how the Elliott case ultimately played out in the 1990s. After the High Court refused to intervene before Elliott’s trial, his prosecution collapsed without a jury being sworn in. The wounded prosecutors then sought a belated review of Vincent’s rulings on the NCA and won on every point, in both Victoria’s appeal court and the High Court. But Elliott could no longer be tried for fraud because he had been acquitted, albeit (now) with an asterisk.

Strickland faced a very narrow path to successfully prosecuting Constable Rolfe for Walker’s death. He would have to convince the High Court to abandon its earlier stance on pre-trial reviews. He also needed to convince the justices that five Territory judges’ unanimous view of Rolfe’s immunity was both important and doubtful enough to be worth the national court’s time. Then he would have to convince the same court to rule that Rolfe’s second and third shots were not covered by the “good faith” immunity. And, after all that, he needed to convince Rolfe’s jury that the police officer shot Walker both excessively and unreasonably.

But first he faced a more immediate problem: it was Thursday, and Rolfe’s jury would be selected the following Monday.

So, “Is Zach Rolfe… Derek Chauvin?” This question still hasn’t been — and won’t ever be — voiced in court, but Justice Jacqueline Gleeson came close last month.

Two working days before Rolfe’s murder trial was due to kick off, Mildren and Strickland discussed some contingencies that would arise if the High Court decided to get involved. Everyone accepted that the national court probably couldn’t settle whether Rolfe’s second and third shots were subject to immunity in time for the trial to go ahead as planned. But Mildren figured there was time for the national court to at least to decide whether or not it would take on the case.

Such decisions only require two justices and can be made after thirty or so minutes of argument, or even without a hearing. While the High Court usually takes months to schedule a hearing, it can act much faster if a case is urgent enough. During 1998’s waterfront dispute, it responded to a hasty application on a Thursday by Patrick Stevedores to pause a pro-union ruling made by the Federal Court by ordering a hearing before all seven judges the following Monday. So, Mildren pencilled in Tuesday for a possible late start to Rolfe’s trial if the High Court speedily decided it wouldn’t get involved.

It wasn’t to be. When Strickland and Rolfe’s counsel zoomed in the next morning, the duty judge, Justice Gleeson, told them that the High Court would take three weeks to decide whether it would even take on Rolfe’s case. After both lawyers politely said that they would clear their diaries for a thirty-minute hearing in the middle of the next month, Gleeson asked them whether Rolfe’s murder trial should go on as scheduled anyway.

The High Court’s newest judge took up her role in March this year after the retirement of Virginia Bell, a former defence lawyer and experienced criminal appeal judge. Gleeson’s appointment from the NSW registry of the Federal Court preserved the geographical and gender balance of the court, but left the national court without any criminal law specialists for the first time in its twelve-decade history. Her apparent notion that a murder trial could run for weeks before the High Court decides whether to get involved may be an example of that gap in the national court’s expertise.

The lawyers before Gleeson seemed baffled by her approach. Rolfe’s lawyer, the national bar’s most starred figure, Bret Walker, allowed that lawyers running a murder trial might be “distracted” by an imminent High Court intervention. Strickland was less polite: a mid-trial hearing would be “inutile” — pointless — because the trial itself would already have been following the Territory ruling. He mused that maybe the court could act a bit quicker, but Gleeson ignored the hint, pronounced herself disturbed by Strickland’s stance and told him to put it in writing. He did. Either the trial or the High Court hearing could happen as scheduled, but not both.

That left Gleeson with a choice to make and she spent the weekend mulling it over. The following Monday, she ruled that, despite many changes to the legal landscape since the 1990s, the law on pre-trial High Court rulings set out in Elliott’s case hadn’t changed. But the facts had:

The injustice of a possible acquittal of a police officer for murder of a young man in the context of the attempted execution of an arrest warrant, on the basis of an incorrect ruling on a question of law, is of a different order of magnitude from an acquittal on a charge of white-collar crime, however egregious.

In short, John Elliott wasn’t Derek Chauvin. Or, at least, Rolfe’s trial must wait until the High Court dispels at least one, and maybe all, of the elephants in Mildren’s courtroom.

So, who is Zach Rolfe? This morning, three weeks after Rolfe’s trial was supposed to start, the High Court finally decided that Zach Rolfe is… George Pell! That is, it decided, as it did in the last high-profile criminal case to reach the national court, that the very decision on whether or not to take on the case at all is one that needs the attention of all seven of its judges.

Today’s decision means  that the national court will rule on the law, in particular whether or not Rolfe is John Elliott or Di Fingleton or neither, before a jury decides — if it ever does — whether Rolfe is Derek Chauvin. Rolfe, and everyone else, must likely wait until next year to learn each of these answers, including whether or not the last one will come with an asterisk. •

The post The elephants in the courtroom appeared first on Inside Story.

For Aristotle, friendship was not just a pit stop on the way to the real goal of romance or a family, nor was it a few cheeky wines after work in the Agora with his mates Hermias and Pythias. Friendship, he wrote, “is most necessary for our life.” No one, he said, “would choose to live without friends even if he had all the other goods” (such as wealth or health).

It wasn’t just the deep and authentic connection that attracted him, nor the fact that he believed happiness to be impossible without friends. Aristotle thought of friendship as the foundation of all political life. Good legislators pay more attention to friendship than justice, he wrote. Friendship, with its focus on reciprocity, trust, mutual goodwill and a willingness to make sacrifices, “hold[s] cities together.” To this extent I am certain he would rail against any government that holds friendship in contempt.

Here in Sydney, people who live alone, are a single parent or have a disability have only just been permitted to nominate a friend to enter their “social bubble.” They had to endure five weeks of isolation before being granted this very basic right. Victorians had to wait two months during their long lockdown last year. Until then, they were permitted to visit an “intimate partner,” possibly a stranger they’d met on Tinder, but were not allowed to visit a lifelong friend.

Before social bubbles, visits to intimate partners fell under the heading of “caring and compassionate visits” but visiting friends didn’t. Intimacy, in other words, was defined according to sex rather than, say, trust, laughter, shared intellectual or cultural interests, or reciprocal care — the values we associate with friendship. During a time of mass low-level anxiety, the laws implied that single people would find more solace in a random person with whom they might want to have sex than their closest friend.

It’s a good thing that the laws have finally changed in New South Wales, but what can we learn from the debate, and how might it inform the way we live post-lockdown?

Above all, I’d argue that the debate about lockdown visits was poorly framed. The commentary overwhelmingly treated the problem as if it were all about the plight of sad singles — pale-faced loners who peer glumly out of windows while smug couples jog by, laughing, with their labradors. Couples and families were the norm against which all other relationships were measured and declared lacking. Singles were seen as grievously incomplete, pathologised and pitied for what are in fact perfectly legitimate and often happier life choices. The logic was circuitous: they felt alone during Covid because they lived alone, not because they were denied the right to visit a close friend.

But what if we treat this as a debate less about the problems of singledom and more about the diminished status of friendship in our laws? After all, this is clearly a moment when the law has intervened in our emotional lives and sought to privilege one status (romantic) over another (friendship). Justified as a necessary measure to prevent movement between households, the laws failed to acknowledge that movement was already happening, it’s just that it was compelled to involve lovers rather than friends. In a situation that can best be compared to the dystopian film The Lobster, singles were told to couple up or face months of psychic torture.

If people living alone in New South Wales have felt isolated over the past five weeks then it was because they were denied the right granted to every other person in Australia to have someone with whom they could cheer Olympians, order in dinner and generally consume too many negronis. Had friendship been enshrined in law as something to be protected, much like marriage or family, then social bubbles would have been automatically granted and fewer people would have suffered.

There is nothing natural or inevitable about the low status we accord friendship. In other places and at other times friendship has occupied an exalted social and legal position, equal or even superior to the involuntary bonds of family or the caprices of romance. Aristotle’s thinking offers us a window into the reverence accorded to friendship in ancient Greece, which eighteenth-century philosophers and voyagers drew on when encountering cultures that sanctified friendship.

Philosopher Alberto Fortis was one of them. In his bestselling anthropological tract Viaggio in Dalmazia (1774), he observed that the Morlacchi people of Venetian Dalmatia (present-day Croatia) had a “nobler capacity” for friendship than modern, civilised Europeans; in fact, it was almost a “point of religion” among them. Morlacchi friends would “tie the sacred bond at the foot of the altar” in a ritual, much like a wedding, that “contains a particular benediction, for the solemn union of two male or two female friends, in the presence of the congregation.” He claimed to have been present “at the union of two young women, who were made Posestre (sacred friends) in the church” and saw how satisfaction “sparkled in their eyes, when the ceremony was performed.”

Joseph Banks and the French explorer Louis Antoine de Bougainville were among the European voyagers who were delighted to stumble on friendship pacts, or taio, in Tahiti. Formalised between people of the same sex, status and age, these pacts blended intimacy with instrumentalism — taios would offer each other emotional support as well as food, labour, land, and sexual partners. It was also through friendship pacts that cross-cultural exchange occurred. Banks’s journal records how he solemnised his friendship with Cook by being wrapped in cloth and presented with a green bough, after which both men “lay our hand on our breasts” and said taio, “which I imagine signifies friend.”

Eighteenth-century voyagers quickly understood the taio bond because they came from a culture that valued friendship and elevated it into law. Natural law theorists from Cicero to Francisco de Vitoria and Hugo Grotius justified imperial commerce on the basis that God willed (in Grotius’s words) that “human friendships should be fostered by mutual needs and resources.” Jobs were filled, money distributed, intimacies forged, and identities constructed all through the framework of friendship.

Matthew Flinders could write to his friend George Bass that “there was a time when I was so completely wrapped up in you, that no conversation but yours could give me pleasure” without anyone raising an eyebrow. Jane Addams and Mary Rozet Smith, two social reformers in America, could be more devoted to each other than to their husbands without a hint of scandal. When Addams travelled without Smith, she would often lug an enormous portrait of her friend with her, and when they journeyed together, they would demand a double bed.

When and why did friendship slide down our hierarchy of relationships? To my mind, the process began in the early twentieth century with the rise of the nuclear family, and with it, the notion that all our emotional needs could be fulfilled within the four walls of the home. Any society that subscribes to this myth necessarily devalues the succour of friends. Care becomes privatised and limited to blood relations, and as families become smaller so too do their moral visions. Promoting that shift was the rise of homophobic sentiment in late nineteenth-century works of sexology and popular Freudianism, which culminated in the anti-gay witch-hunts of the 1950s.

As someone who experiences unbounded elation through long chats with friends and despondency at their absence, I would love to see friendship protected by law. In the short term, this would mean that social bubbles would be built into the architecture of lockdown laws. In the long term, it would mean changing our laws to enshrine the rights of friends, including (as legal scholar Ethan Leib has argued) broadening paid medical leave to allow friends to take care of one another during sickness; allowing friends to sue on another friend’s behalf; and giving friends a legal right to make medical decisions on our behalf.

And why should romantic couples have the monopoly on lavish weddings? Friends’ registers could be established and maybe we could bring back those friendship necklaces we all loved so much in year nine. And who wouldn’t be happier attending a lavish affair solemnising the commitment of two adoring friends than another boringly ostentatious wedding? Throw in a trip to Tahiti or Croatia and I’d be there with bells on. •

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Now imagine checking your pockets. Where’s your mobile phone? You don’t have one. There’s no connected personal computer on your desk, no social media hoovering up data about your spending habits, and not much need for businesses to import or export elaborate datasets. Facial recognition technology is still the stuff of science fiction and your car isn’t sending valuable information back to its manufacturer.

Nineteen eighty-eight was the year Australia’s privacy legislation was implemented with the worthy goal of protecting your personal information. It seemed a realistic ambition back then, because that information was probably stored in a filing cabinet rather than on the server of a tech giant in the Santa Clara Valley. Getting your name struck off a mailing list or making sure your medical records didn’t fall into the wrong hands was still within the powers of domestic legislation.

Even the right to be forgotten needed no articulation: if you kept out of the news for long enough, your past misdemeanours would fade into oblivion — a secret between you and the rare person spooling through old newspapers on dusty microfiche at the local library.

What we didn’t know at the time was that 1988’s Privacy Act was a snapshot of a society on the cusp of a technological revolution. Think of it as one of those moments captured in a photo taken just minutes before a natural calamity — the tourists are all smiling at the camera, blissfully unaware of the avalanche that’s about to engulf them.

Since then, Australian legislators have done their best to keep pace with technological change. The most recent and perhaps most significant amendment to the 1988 legislation created the 2018 Notifiable Data Breaches scheme, which details what must happen if personal data hosted by a company goes missing or is hacked.

But the technological advances of the past thirty years are so great that mere amendments will no longer suffice. The Privacy Act doesn’t need tweaking; it needs a root-and-branch rethink. And it’s not just a question of individual privacy; the challenge we’re facing is how to apply economy-wide privacy protections that will allow Australian companies to safeguard data without stopping them from competing globally.

Privacy mightn’t have been the main focus of the Australian Competition and Consumer Commission’s 2019 digital platforms report, but it highlighted what was already clear to informed observers: the Privacy Act was out of date. The wheels of government ground slowly for another year or so before attorney-general Christian Porter launched a review of the legislation. It would focus, according to his no-nonsense press release, on “technical data and other online identifiers.”

Oddly, given Australia was lagging behind the rest of the Western world, the announcement betrayed no sense of urgency. The European Union had adopted its General Data Protection Regulation, or GDPR, two years earlier, after years of debate and horsetrading. California’s Consumer Privacy Act, covering Silicon Valley, was being finalised. Legislators in New Zealand had already put the final touches on their revamp of the country’s 1993 Privacy Act. South Korea’s Personal Information Protection Act was by then one of the sharpest pieces of privacy legislation in the world. To use a Morrisonian euphemism, Australia’s policymakers obviously didn’t see protecting privacy as a race.

Information commissioner Angelene Falk at Senate estimates in March this year. Sitthixay Ditthavong/Canberra Times

Still, the review’s riding instructions did focus on the key issues, starting with the relationship between any future legislation and the West’s toughest privacy regime, the GDPR, which guards access to the second-largest consumer market. Should Australia’s new rules be immediately compatible with the GDPR — thus granting Australian digital businesses the protections they need to do business in the bloc? Or should Canberra apply for what’s referred to as adequacy status with the GDPR, once the new legislation is in place (as South Korea has done)? Or, indeed, should Australia go its own way and try to lock in data-transfer agreements with other jurisdictions, including the American states following California’s lead, or post-Brexit Britain, which is facing its own struggles dealing with the GDPR’s stringencies?

The attorney-general also appeared to acknowledge that any new system would depend on tough enforcement — which would place the Office of the Australian Information Commissioner, Australia’s underfunded and overworked privacy watchdog, at its centre. Will the agency be given the resources it needs to ensure that privacy safeguards are adhered to? How will the low-profile information commissioner, Angelene Falk, manage the challenge parliament sets her and her office?

There’s nothing academic about these questions. If the European experience tells us anything, it’s that unenforced privacy laws are more or less useless. In fact, you could argue Australia is better off sticking to its pre-digital, Hawke-era legislation than drafting rules that don’t beef up a regulator that today oversees both the 1988 Privacy Act and the 1982 Freedom of Information Act. The stakes are unusually high.

Europe’s enforcement gap is best illustrated by the legendary story of Max Schrems, who took on Facebook and won. The Big Tech giant might have emerged as the villain of the piece, but the public utterances of the Austrian privacy activist, whose journey culminated in all transatlantic data transfers being shut down, portray Europe’s privacy regulators as part of the problem.

Schrems had been a student on exchange at a university in California’s Silicon Valley. In one class, a Facebook lawyer revealed that the company saw the European Union’s pre-GDPR privacy rules as something of a joke. The company was exporting European data without any ethical soul-searching or legal concern.

Although Schrems wasn’t an avid Facebook user — he says he had typically logged on once a week over three years — he decided to request all the information the company had accumulated about him. Because Facebook had, and still has, EU headquarters in Dublin, he was able to use EU right-of-access laws to obtain the data. And he got it — all 1200 pages’ worth. It even included information that Facebook had described as “deleted.” He uploaded the information to his website and soon attracted media attention from across Europe.

The campaign eventually made its way to the European Court of Justice, with Schrems arguing that the EU’s “safe harbour” arrangement with the United States — now known as the EU–US Privacy Shield — didn’t protect EU users. His claims piggybacked on revelations by US National Security Agency whistleblower Edward Snowden, which pointed to a network of global surveillance programs run by the NSA and the Central Intelligence Agency.

The European Union had allowed for the free flow of data between the EU and the US because it assumed that both sides had equivalent standards of data protection — what’s now called equivalency. In two decisions since 2015, prompted by Schrems, the European Court of Justice rejected that premise, putting the future of data exchanges across the Atlantic under a cloud. It’s a cautionary tale for any jurisdiction — including Australia — facing the prospect of interacting with the GDPR. Like it or not, the EU’s privacy rules have set the global standard for privacy legislation.

And this is where the role of national data-protection agencies comes into play. To get to the European courts, Schrems had to pass through Ireland’s privacy regulator, the Data Protection Commission. The reason is simple: Ireland’s generous tax arrangements are so appealing to Big Tech that many of them — Google, Twitter, LinkedIn, Amazon, PayPal, Airbnb, Uber and, yes, Facebook — have based their European headquarters in Dublin’s Silicon Docks. Anyone lodging a complaint against these companies must therefore turn to the Data Protection Commission.

In Schrems’s case, it didn’t go well. The Irish regulator dismissed his claims, prompting him to take action in Ireland’s courts. The case shone a spotlight on the regulator’s ability to manage the massive workload created by the tech giants’ Dublin addresses. Earlier this year, the Irish Council for Civil Liberties found that the regulator decided just four of 196 cases it had been required to take on — suggesting it had become the bottleneck of EU privacy enforcement. That failure, said the council, exposes 448 million people across the European Union to “electoral manipulation and predatory profiling.”

Schrems’s vicissitudes showed that an enforcer that can’t or doesn’t do its job fosters an environment in which the misuse of personal data goes unchallenged.

That Australia’s information commissioner is overworked and underfunded is now widely accepted. Her office received $25.5 million for the 2021–22 financial year, up marginally from last year’s $23.2 million. This increase included funds for a new freedom-of-information commissioner, a slight increase in staffing levels, and an earmarked amount for participating in Australia’s growing data-portability initiative, the Consumer Data Right.

This funding doesn’t reflect the size of the challenge — and the information commissioner knows it. Documents released under FOI earlier this year reveal a deficit of $121,000 last financial year as the watchdog struggled with managing the Notifiable Data Breaches scheme and overseeing the ill-fated COVIDSafe app. The document noted the agency’s “static resourcing and staffing levels” and went on to say that the information commissioner had experienced a “steady increase in the number of complaints received,” partly as a result of the pandemic.

Taking on Big Tech requires time, strong international contacts and a high level of expertise — all of which cost money. The information commissioner is already fighting Facebook in the Federal Court of Australia over the Cambridge Analytica data breach — a lawsuit almost identical to one that came unstuck in Canada in February because of a lack of evidence. Other investigations have involved time-consuming and resource-intensive international probes. Last week’s determination that Uber had failed to protect its clients and its drivers following a 2016 cyber attack saw the commissioner delve into what her office described as “significant jurisdictional matters and complex corporate arrangements and information flows.”

Once Australia’s new privacy legislation comes into operation, the resourcing of the commissioner’s office — or the agency that will replace it — is likely to be the key to success. Max Schrems managed to overturn the Privacy Shield by claiming his individual privacy rights in both Irish and EU courts, but it’s unrealistic to expect an individual to take on the burden of challenging Big Tech on privacy.

Given the pressure she is under, Angelene Falk may have good reason to keep a low media profile. With a background in law, she came to the job in 2018 after serving as deputy commissioner for two years. Her public appearances are usually limited to comments in Senate estimates, where she’s quizzed by parliamentarians who are often ill at ease with the principles of privacy and data protection and have little understanding of global policy trends.

Compare this with New Zealand’s privacy commissioner, John Edwards, who rarely misses a chance to publicly castigate Big Tech and wasn’t afraid to throw his weight around as the country approached its ambitious reimagining of the 1993 Privacy Act. Under the reforms, Edwards has the power to issue compliance notices, can make binding decisions on requests for access, and will oversee legislation that contains criminal offences for businesses that misuse personal data. Reportedly being considered for the top privacy-enforcement role in Britain, Edwards has become the public face of data protection in New Zealand — an outreach and educational role that has no equivalent in Australia.

The impasse over the EU–US Privacy Shield isn’t likely to be resolved soon. At the heart of the European judges’ objections is the fear that data exported to the US could fall into the hands of law-enforcement agencies. This is a tricky problem to manage — the US has no federal data-protection legislation or enforcer. With little appetite for privacy policy in Washington, the states have been left to take the lead.

More importantly, though, the clash with the EU over privacy has created a political problem for the Biden administration. The White House doesn’t want to be seen as soft on law and order — particularly when it comes to the crunching of data and the gathering of personal information that could, say, prevent terrorist attacks. Significant concessions to the Europeans could leave Biden politically exposed.

Any new Australian privacy legislation will face the same political predicament. Equivalency with the GDPR simply can’t be ignored — the European Union is too significant a market for Australia to deal itself out of the game. But Australian policymakers will also be mindful of the European Court of Justice’s low tolerance of loose regulation in countries gaining access to the personal data of EU citizens.

One cause for concern is Australia’s controversial 2018 Telecommunications and Other Legislation Amendment (Assistance and Access) Act. That legislation is what you’d expect from a home affairs minister — Peter Dutton at the time — unconstrained by worries about the economic impact of Australia’s data-protection reputation. The act, which includes no judicial oversight, gives the Australian government the right to demand a “back door” into encrypted communications — including those sent via popular apps including WhatsApp, Signal and Telegram. It was designed to help federal police and intelligence agencies track suspected criminals and terrorists.

Australia’s tech community opposed the legislation, and broadly still does, arguing that it undermines the country’s data-protection credibility. In a parliamentary hearing last year, the head of government affairs for the hugely successful Sydney-based software company Atlassian, Patrick Zhang, said that international tech companies were now afraid of using Australian products because of the possibility of receiving access orders from Australian law-enforcement agencies. This fear was particularly acute in Europe, Zhang suggested, where worries about tripping over the GDPR’s data-protection provisions mean that businesses may  steer clear of Australian products. Those fears might even spill over into third countries that don’t want to compromise their deals with the European Union.

The passing of that legislation suggests that Australia’s political priorities may ultimately trump the privacy concerns of the local tech industry. While a survey by the information commissioner revealed that Australians are keenly aware of the need to protect privacy, that attitude doesn’t translate into a broader understanding of how data-protection measures could affect Australian technology companies’ ability to compete.

Part of the problem could be the lack of a strong public voice promoting privacy in Australia. But decisions about new laws will ultimately come down to politics. Not everyone will understand the complexities of data-transfer rules, but you don’t need an information campaign to tell people that strong laws are needed to fight terrorism, international drug cartels and paedophile networks. If that means compromising WhatsApp’s encryption and ruling Australia out of international data transfers — so be it. If securing Australia’s digital sovereignty will get the nose of a few tech entrepreneurs out of joint, that’s a price that politicians of all persuasions may be willing to pay. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post The price of privacy appeared first on Inside Story.

As the playwright Luigi Pirandello once wrote, it is a cruel injustice to pin any life perpetually to one moment and judge it there. That sentiment is no doubt shared by those who have spilled ink over Evatt: the authors of four full-length biographies, an insider portrait and a host of books in which Evatt is a key figure.

One reason for these repeated attempts to portray Evatt is his complexity and contradictions; another is the extraordinary breadth of his life and career. He had a shining period at the NSW bar and a stint in NSW state politics, and was appointed to the High Court at a precociously young age. There, amid some 400 judgements, he wrote books about the reserve powers, the Rum Rebellion, and William Holman. Then he entered federal politics, made himself a significant player at the United Nations, and rose to the leadership of the Labor Party after the death of Ben Chifley. And finally, after losing three elections, he accepted an ignominious appointment to the NSW Supreme Court.

Most writers have understandably focused their attention on the later parts of Evatt’s career, with the result that his decade at the High Court has been left largely untraversed. In The Brilliant Boy, Gideon Haigh leads us through these uplands, and makes a persuasive and elegant case for the significance of one particular moment in Evatt’s career — the judgement he delivered in Chester v Waverley Council.

Evatt is one of two titular “brilliant” boys of this entwined biography and legal history: immensely intelligent, determined, and ambitious in every sphere. Haigh attributes these traits to the influence of his mother Jeanie, who instilled in her son a belief that he could do better than anyone else. What followed certainly suggests that he could: he won a swag of prizes at school and university, took first-class honours in English, philosophy and mathematics, and then veered into law, where he “cut a swathe” through the Sydney bar and crossed paths with Robert Menzies, then at the Melbourne bar. In chapters that teem with colour and are flecked with a light wit, Haigh recounts Evatt’s rise through the 1920s: how he became a High Court habitué then went into state politics, where close experience of the domineering premier, Jack Lang, left him disenchanted and made him refocus on his legal career.

Almost immediately after his return to the law, aged thirty-six, Evatt was appointed to the High Court, where his resolve, liberalism and omnivorous mind would rankle his crustier colleagues. Haigh’s discussion of the machinations of the court and the interplay of its characters is wonderfully sharp, setting them in the context of wider clashes between capital and labour, the Commonwealth and the states, and non-Labor governments and left-wing radicals.

Against this background Haigh sketches Evatt the intellectual: the man who read voraciously, hung around artists’ studios and galleries, bought a Modigliani for his wall, “slipped from Bench to desk” to write histories, and was bursting with opinions he couldn’t keep to himself. While on a visit to the United States in 1938, he wrote to president Franklin D. Roosevelt to offer advice on filling a Supreme Court vacancy.

“Who did Evatt think he was?” asks Haigh rhetorically. In the words of one of Evatt’s near contemporaries, the literary critic Nettie Palmer, he was a man certain that he could do what he wanted.

But this was not wholly true. “Evatt’s life would be marked every bit as deeply by what he could not do,” writes Haigh, pointing to the first world war, when Evatt was rejected for service because of his astigmatism only to see two of his younger brothers enlist and never return. On Haigh’s reckoning, this loss, and the immense toll it took on his mother, was a trauma Evatt could never forget.

Then there is another “brilliant boy.” In September 1937, workers for Waverley Council excavated a deep trench in the middle of a thoroughfare and, downing tools for the weekend, left it barricaded only by a few planks, an upturned wheelbarrow and a pile of sand. Overnight rain filled the trench with water and the next day children in the neighbourhood began challenging one other to jump over it. Max Chester, a seven-year-old child of Polish-Jewish immigrants only two years settled in Australia, fell into the trench and drowned. His body was discovered six hours later in the presence of his mother, Golda.

Such an incident was not atypical. One of the most startling parts of The Brilliant Boy is its evocation of a world far more brutal and callous than our own. Haigh notes a litany of deaths on unsafe building sites and points out that Sydney trains at this time travelled with their doors open, regularly leading to horrific accidents in which people were hurled out by the jolt of a carriage on a warped track. There seemed little impetus for change, even if it would have been simple and cheap to effect. Even Max Chester’s death was blithely accepted by the Waverley Council: work continued on the trench without a single change in work practices — even after another boy fell into the trench a week later.

These dangerous practices reflected a profound lack of sympathy and humanity within the legal system. Judges would attribute recklessness to the victims, downplay their injuries, and worry instead that the “floodgates” might be opened if cases like Chester v Waverley Council were to succeed. As Haigh puts it, the overriding view on the bench was that the world “was a harsh place in which unfortunate events happened for which it was frivolous to seek redress.” Thus Golda Chester’s frustrations when, with the aid of solicitor and state politician Abe Landa, she sought compensation.

With an eye for the salient point and the humanising detail, Haigh teases out the links between cases heard in local and overseas courts to detail how this state of affairs had been reached and how, in the years immediately before Chester v Waverley Council reached the High Court, the law had begun to evolve. He shows how a smattering of rulings became hurdles for Golda Chester: how judges insisted that mental injury be accompanied by physical injury; and how Privy Council rulings bound Australian courts but not British ones. Then he shows the shifting ground: how, in the wake of the first world war, the notion of traumatic injury became more accepted; how a case centred on a snail in a bottle of ginger beer established the law of negligence; and how a case over woollen underwear established in Australia a liability standard for negligence.

But those shifts were not enough. By the time Chester v Waverley Council came before the High Court, the matter had been winnowed down, stripped of the very real human tragedy — namely, Max’s death — and recentred on whether the council had a duty of care to his bereaved mother. A witness who had seen Max Chester fall into the trench was not called. The judges worked from appeal books. The verdict was decided almost immediately.

On grounds that it was not common for the death of a child to produce “any consequence of more than a temporary nature,” Chief Justice Latham ruled against Chester. On grounds that “the shock to the appellant [Chester] is not within the ordinary range of human experience,” Justice Starke ruled against Chester. On grounds that “the law must fix a point where its remedies stop short of complete reparation for the world at large,” Justice Rich ruled against Chester.

Evatt disagreed. In what becomes the raison d’être for this entwining of life and case, Haigh writes that Evatt performed an act of radical empathy: “He, an honoured Australian judge, tries to enter into the mind of Golda Chester, a penniless Polish-Jewish woman, to understand the ‘nervous shock’ occasioned by her agitated search and horrifying discovery.” Evatt’s communing with Chester was prompted by his knowledge of her predicament. “Twice Jeanie Evatt watched sons disappear into danger; twice she endured the long wait for dreadful news that was always a possible outcome. Golda’s wait had been shorter and sharper but no less helpless.” Thus Evatt’s terse refutation of the verdict of the NSW Supreme Court chief justice Sir Frederick Jordan: “She was not ‘looking for the body of a child,’” writes Evatt. “She was looking for her child.” (As Haigh notes, “These are devastating lines.”)

Moreover, Evatt argued for the kind of imaginative understanding that he had just deployed: that the council should have foreseen that the trench, inadequately guarded and filled with water, would be an attractive but dangerous place for children, and that any parent who came there and discovered his or her child had died would incur great shock and distress. “If the present defendant had ‘directed his mind’ at all to the possible consequences of his primary default, would he not have foreseen the likelihood of injury being suffered, not perhaps in the precise way in which it was suffered, but in some such way? If so, he owed a duty to the person who suffered.”

Evatt stepped down from the High Court to go into federal politics soon after Chester v Waverley Council. Great highs and lows awaited him there. But he remained aware of the significance of his dissent, and for years afterward nursed the hope and belief that it would be vindicated, to the point that he approached a young Murray Gleeson to write an article doing so.

An embarrassed Gleeson declined, but time would eventually prove Evatt right. In this compelling and incisive account Gideon Haigh delivers what Evatt sought; moreover, he does Evatt a more important service by shifting our attention from that calamitous moment in 1955 to a time when, at the height of his powers, he sought to bend the law towards justice. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Who did he think he was? appeared first on Inside Story.

In reality, though, most domestic abuse involves coercive control: a pattern of physical, sexual, financial and psychological abuse that one person (usually a man) uses to control and dominate another person (usually a woman, and usually an intimate partner).

This week a multi-party parliamentary committee recommended that New South Wales become the first jurisdiction in mainland Australia to criminalise coercive control. (Tasmania introduced related offences sixteen years ago.) After nearly a year of research and consultation, a committee of Liberal, Labor, Greens and One Nation MPs unanimously recommended that coercively controlling a current or former intimate partner should become a crime.

The committee didn’t specify the precise wording or scope of the new offence. But because these laws exist in Britain and elsewhere — as the committee highlights in its report — we can expect two key elements to feature.

First, like stalking laws, a coercive control offence will focus on a pattern of abuse, not on isolated incidents. This means the justice system will be forced to see abuse the way victims experience it, as an ever-present threat. This focus on repeat behaviour will present challenges to investigating police. But it will also deal with a key shortcoming in the main response to family violence: intervention orders. These orders sometimes result in women being mistakenly identified as the primary aggressor, because they limit police’s consideration to the immediate event (disregarding the possibility that her actions, if any, may have been taken in self-defence). By looking at the whole of the relationship, rather than just the most recent incident of violence, the new offence provides a better lens for assessing who is the real abuser.

Second, the new offence will outlaw psychological, emotional and financial abuse. Isolation from family and friends, degrading and humiliating conduct, and deprivation of necessary financial resources will be prohibited. This is behaviour that has traditionally fallen outside the scope of the criminal law. The offence won’t, though, apply to reasonable behaviour, and it will only apply if the offender intended the behaviour to cause harm to the victim or if a reasonable person would have known that harm was likely. Concerns that the new offence will prevent parents from disciplining their children, or spouses from taking the family car without the consent of their partner are wrong and inflammatory.

Other elements of the new offence are less settled. For instance, while overseas jurisdictions limit their coercive control offences to familial relationships, or some more narrowly to intimate partners, the committee left open the possibility of including broader relationships.

It is also important to realise that as groundbreaking as this proposed reform is, in some ways it isn’t new. Most states and territories already indirectly criminalise coercion, psychological abuse, control, emotional abuse and financial abuse when it occurs as a breach of an intervention order. What is novel is that the new offence wouldn’t require victims to first go to court and obtain an intervention order before the abuse became criminal. Instead, they could directly seek the assistance of police, who would now be better able to respond.

So, how might this new law work in practice? The case of Natalie Curtis, who lived with her husband just east of London, is illustrative. By the end of their six-year relationship, he was calling her up to forty times a day, threatening to kill her, throwing her belongings out of the house and smashing their furniture. He blamed Natalie for his behaviour.

As is often the case, the relationship didn’t start out that way. He initially seemed attentive and caring, but over time that attentiveness became surveillance, and care became control. Natalie describes it as “a drip effect, each event gets a bit worse and a bit worse… And then someone has control over you.” She developed severe anxiety and panic attacks, and eventually went to the police. Her husband was charged with controlling or coercive behaviour and ultimately sentenced to two years’ jail.

Of course, some of his behaviour, such as threats and property damage, was already criminal. But the justice system, viewing them in isolation, often doesn’t take these offences seriously enough. In fact, two years before Natalie left him for good, her husband received a suspended prison sentence for threatening to kill her. A few weeks later, after he promised to reform and begged her to take him back, they moved back in together. It got worse after that.

To be clear, criminalising coercive control is not a panacea for the shadow pandemic of family violence that costs our country lives, untold misery and billions of dollars every year. And there are still important tasks ahead. The NSW committee recommended establishing a taskforce to oversee careful drafting of the new offence, to consult about its final form, and to monitor its implementation. That taskforce will need to deal with concerns about the ability of our justice systems to deal with domestic violence and “invisible” harms. The new law must also be drafted and implemented carefully to meet the needs of Indigenous Australians.

The committee made it clear that a new offence was contingent on broader, systemic reforms occurring concurrently: widespread community education campaigns; extensive training for everyone whose work will be affected by the new law; and additional resources for domestic violence services and criminal justice agencies to help them absorb the extra workloads created by the new offence.

With nearly all states and territories now considering whether to criminalise these forms of family violence, New South Wales leads the way. A new law that directly outlaws these forms of abuse will give effect to what victims, frontline workers and researchers have known for decades: that coercion and control, rather than physical violence, are the core of domestic and family violence. •

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The APC, founded in the mid 1970s when the newspaper industry feared statutory regulation at the hands of the Whitlam government, remains the main forum to which readers can send complaints about the behaviour of newspapers and their associated websites. The APC simply expresses opinions; its member publications need only publish its adjudications.

The immediate reason for the breeze is that the Media, Entertainment and Arts Alliance, the main union covering journalists and media workers, has announced its intention to withdraw from the APC, where its representative sits alongside twenty-one other members, including industry nominees, independent journalists and members of the public. Under rules introduced a decade ago to protect the APC from tantrums by its funding members, the MEAA must provide four years’ notice before it can leave. This gives the APC the chance to persuade it to stay.

The immediate prelude to the MEAA’s action was a series of APC decisions about controversial cartoons in News Corp papers, but the union’s federal president, Marcus Strom, says they were not the cause. Rather, he says, the APC is no longer “fit for purpose” because it mainly covers mastheads with a history in print, though some online-only publications have joined in recent years.

Another spur for change is the departure of the APC’s executive director for the past seven years, John Pender. The headhunters looking for his replacement are being told that if quality candidates are to be attracted then the APC will have to convince them it is ready for change.

There are good reasons for cynicism. Ever since its birth, the APC has been trammelled by the interests and character of its dominant funders — the publisher members, and particularly the Murdoch organisation. According to the APC’s most recent annual report, covering the 2018–19 financial year, News Corp contributes up to 60 per cent of its $2.2 million in core funding.

Various attempts have been made to limit News Corp’s power, but money still talks. News’s relationship with the APC has been a marriage of convenience, paraded every time a government looks like considering statutory regulation of the media.

I am told that over the past decade News Corp executives on the council have effectively vetoed key appointments, both to the council itself and to employment within it. Behind-the-scenes talk says that the adjudication panels are being massaged to keep members likely to be critical away from the coalface. News Corp frequently attacks the council in its publications, and has published strong criticism of successive chairs.

A good way of summarising the APC’s history is to reflect on the record of the eight chairs who have attempted to lead it since its founding. The first, Sir Frank Kitto (1976–82), fell out with News Limited, as it then was, over its election coverage. News withdrew from the APC, kneecapping its funding. The second, Professor Geoffrey Sawer (1982–84), served only briefly, during the period when News was not a member, and thus avoided its ire. The third, Hal Wootten AC (1984–86), resigned immediately after the APC split fifty–fifty over his proposal to criticise Murdoch’s being allowed to take over the Herald and Weekly Times. The Australian Journalists Association (later part of the MEAA) also left at this time, together with many of the public members. It took decades for the APC to rebuild its credibility.

The fourth chair was Professor David Flint, a conservative lawyer, who was the only other chair not to have problems with News Corp. The fifth was Professor Dennis Pearce (1997–2000), who declined to serve a second term after News refused for several months to respond to APC communications about complaints. Pearce later told the Finkelstein media inquiry that the APC was overly influenced by fears it would lose its sponsors, which was one of the reasons Finkelstein recommended government regulation.

The sixth was Professor Ken McKinnon (2000–09) who wrote a blistering critique of News Corp in his final annual report. The publishers, led by News, had used funding cuts to end McKinnon’s publishing of regular reports about the state of the industry.

In the wake of all this, the APC’s public members flexed their muscles in 2009, leading to the appointment of Professor Julian Disney as chair — just as the phone-hacking scandal hit the headlines in Britain. The Murdoch organisation was on the back foot, particularly when the Gillard government appointed a local inquiry into media regulation led by Justice Ray Finkelstein.

Suddenly, News Corp saw Disney as its best friend. Daily Telegraph editor Paul Whittaker praised him in an open letter to readers arguing that the APC was doing the job very well and Finkelstein should be ignored. Disney was “fiercely independent,” wrote Whittaker. “The Press Council’s role has been strengthened significantly and this newspaper is committed to fully abiding by it.”

With the big stick of Finkelstein’s inquiry hovering over the industry, Disney managed to boost funding, introduce the four-year notice period on withdrawal, and steer through a new set of “general principles” against which complaints would be measured. He also began signing up new digital media players.

Finkelstein, unconvinced, recommended a statutory scheme of media regulation. But Labor communications minister Stephen Conroy instead introduced legislation that would effectively have made it compulsory for media to join self-regulation schemes that met government-mandated standards.

Cue outrage. Conroy featured on the front page of News Corp tabloids dressed as Stalin. The legislation failed — part of the sad history of the last days of the Gillard government. Soon Disney was under attack by News Corp, which was again threatening to withdraw from the APC, citing his “activism” and saying he had “gone too far” and was guilty of “mission creep.”

Disney was succeeded by Professor David Weisbrot (2015–17). After introducing some further reforms he became caught up in the controversy about the appointment of Carla McGrath, deputy chair of GetUp!, as a public member. Many people considered that appointment inappropriate, but what horrified Weisbrot was how decisions of the APC as a whole were misrepresented as his own. He resigned citing a campaign of “misinformation” by News Corp.

Which brings us to the current chair, Neville Stevens, a former senior public servant in the communications portfolio, who has been very quiet during the recent controversy. He declined an interview for this article, but the APC provided written answers to my questions.

Complaints to the APC are heard by an adjudication panel that includes community and media people, including some eminent names. Most complaints never get to formal adjudication; instead, one of the most useful things the APC does is resolve issues informally by contacting the publishers. Sometimes this results in a letter to the editor or a correction. In 2018, fifty-eight remedies were reached without adjudication, from a total of 736 complaints.

But when things do go to a formal process, justice is often delayed. One of the most recently published adjudications on the APC website, for example, concerns a December 2020 Herald Sun headline (and associated social media publicity) suggesting that six people had died as a result of the Pfizer Covid-19 vaccine. In fact, as the text of the article made clear, it was unlikely that the vaccine had caused the deaths. Pretty simple, and the APC found against the newspaper — but not until May 2021, six months after the publication and well after the damage was done.

If the winds of change really are blowing, then three main factors might help swell the breeze. Technological change is forcing a rethink of broadcasting regulation. Radio and television currently operate within conditions written into their free-to-air licences. With most “broadcast” media soon to be streamed, though, governments will lose this lever they use to set standards. That might increase the pressure for the APC, or a similar body, to go industry-wide.

Meanwhile, things have moved on from the Finkelstein inquiry, where the big publishers vigorously opposed any government intervention. Now, all have enthusiastically signed up to government grant schemes and the news media bargaining code. All the relevant legislation makes the benefits conditional on a commitment to standards, including through membership of bodies such as the APC.

Finally, the APC now includes a wider range of members, including the Schwartz stable of publications (the Monthly and the Saturday Paper), Crikey and others. (On the other hand, the Guardian Australia has declined to join.) They don’t have the clout or capacity of News Corp or Nine, but they do have a voice. And News and Nine wouldn’t want them to leave because that would further undermine the APC’s credibility.

What shape would change take? Adjudications need to come faster. Perhaps an ombudsman-type person could write regular reports, speedily, on controversial matters in the press. And perhaps the APC could act on its own, rather than waiting for complaints, when a media outlet behaves egregiously.

But don’t hold your breath. Unless the new executive director has a tough hide, is unusually dedicated and goes into the job with eyes wide open, it’s hard to see the APC having the mettle to fight for the necessary changes. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post The watchdog that sometimes barked appeared first on Inside Story.

The jury forewoman responded “not guilty” to each of the eight charges levelled against three defendants: the Mildura-based disability-aid retailer Country Care, its owner and manager Robert Hogan and a former employee, Cameron Harrison. Not a single conviction was secured in a case regarded by most observers as a critical test of the Australian Competition and Consumer Commission’s management of criminal-cartel laws introduced in 2009.

Seen in isolation, the defeat may not seem particularly significant. It may have been important for the ACCC to secure the first-ever jail term for pricing collusion, but the fact that the prosecution took place at all does create a degree of deterrence. Those planning to shake hands over a price-fixing deal in a smoky backroom are now more likely to be aware that, on paper at least, they face jail terms of up to ten years — a penalty that can’t simply be relegated to a footnote in a company’s annual report.

As competition regulators around the world know very well, court setbacks are par for the course. The ACCC prides itself on its success rate, and the fact that this prosecution reached the Federal Court wasn’t such a bad effort for the first criminal-cartel trial since 1910’s Coal Vend case. And the ACCC is adamant the acquittals won’t set back its campaign against the cartels.

Seen in the context of other criminal-cartel prosecutions launched recently, though, the Country Care trial highlights the challenges ahead for both the ACCC and the Commonwealth Director of Public Prosecutions, or CDPP. For the judge, Robert Bromwich, the weakest link in the investigation was a witness who’d been given immunity by the ACCC — in fact, Bromwich’s comments to the jury about the credibility of that witness may well have sounded the death knell for the prosecution case. The result might also cast a shadow over a far more significant trial set to unfold in Sydney next year, targeting ANZ, Deutsche Bank and Citigroup over a 2015 share-underwriting agreement.

Immunity deals are a key part of competition enforcement. Without them, regulators may never uncover cartels that are, by definition, secret. A person or a company involved in an anti-competitive arrangement can approach the ACCC, alert it to the cartel’s existence and apply for immunity from prosecution. The ACCC can offer a guarantee of immunity in return for full cooperation — but the arrangement needs to be embraced by federal prosecutors as they take the matter to court.

Although the Country Care case involved two “immunised” witnesses, the first six of the eight charges related to the testimony of one of them, a Sydney disability-aid retailer by the name of Andrew Cuddihy. Rightly or wrongly, Cuddihy was viewed as valuable to the prosecution’s case because he offered detailed testimony of the allegedly criminal acts that took place in 2014 and 2015 as well as a secret recording of a conversation with Robert Hogan. If there was a smoking gun in this prosecution, the recording was it.

Then the defence lawyers did what they’re paid to do — they took a blowtorch to everything Cuddihy had said and done. They pointed to inconsistencies in his account, built a strong case questioning his motives and dug deep into his communications with the ACCC. Even the secret recording was impugned as an attempt to entrap Hogan, with jurors urged to refer to the recording rather than the transcript (Hogan’s repetition of “yeah” and “yep” wasn’t an acceptance of what Cuddihy was putting forward, they said, but an acknowledgement that he understood the points being made.)

When it came time for the judge to offer his final directions to the jury, he urged extreme caution when dealing with that testimony. His warning was both general — that the evidence of all immunity witnesses needed to be taken with a grain of salt — and remarkably specific about Cuddihy and his motives. For his part, the ACCC’s other immunity witness had been unable to produce clear evidence that Country Care had attempted to set up a price-fixing agreement or had successfully established a cartel — a deficiency that made the jury’s job a lot easier. As it turned out, the jury didn’t need that lock to reach its unanimous verdict.

Immunity witnesses can create serious challenges for any prosecutor taking on a case of this kind before a jury. In Britain, where criminal-cartel offences have been on the books since 2002, the Competition and Markets Authority has struggled to secure convictions in contested cases, with juries particularly reluctant to return guilty verdicts. The role of immunity witnesses has played a part in their deliberations — with some juries failing to grasp why one company or individual was being offered a free pass despite having behaved like the person on trial. If the jury is expected to believe that those on the receiving end of the charges are criminals, then why should it believe the testimony of someone equally criminal who has cut an immunity deal?

Another lesson from Britain and the United States is that juries and competition law can be a tricky mix. There’s no doubt that every member of the Country Care jury would have understood what the alleged price-fixing arrangement was about: two or more companies agreeing on prices to be submitted as part of government tenders. But the case was complicated considerably by what we now know was a perfectly legal working arrangement between Country Care and a network of disability-aid suppliers across regional and metropolitan Australia. The Country Care Group — the loose association of retailers — was essentially a supply and subcontracting relationship, in which the Mildura-based company took responsibility for responding to government tenders and then relied on the network of small businesses to provide, install and maintain the equipment.

Much discussion was devoted to whether this arrangement amounted to a joint venture, which is covered by an exemption in competition law. But it also gave defence lawyers the chance to argue that the ongoing communications between Country Care and the Country Care Group were based on subcontracting arrangements rather than price-fixing. The jury was also told that this type of arrangement had become necessary because the Department of Veterans’ Affairs had made national coverage a prerequisite for a successful bid for government contracts. Defence lawyers said that the Country Care Group was established to allow small businesses in regional areas, with strong links to communities that relied on them for help with disability aids, to get a small slice of government contracts.

The narrative thread — Hogan, a former boilermaker from Mildura determined to improve the quality of equipment for the elderly and infirm, urging small businesses across Australia to join forces in bidding against big players for government tenders — was compelling. The incredibly complex and uncertain question of whether Country Care subcontractors were also competitors made the simple narrative all the more attractive.

More importantly, though, by the end of the trial it was clear that the jury was under considerable strain. The Federal Court had empanelled fourteen jurors — two more than the required twelve — on the assumption that the volatile Covid-19 situation in Melbourne could see some of them drop out. The court bent over backwards to ensure that the jury stayed comfortable and was able to follow what was going on. But by the end of the twelve weeks, three of them, including the original forewoman, had dropped out for either personal or health reasons. Justice Bromwich was concerned, but decided to push ahead with eleven jurors. They just made it to the finish line.

The jurors appeared drained by the experience — and it’s not hard to see why. The prosecutors’ summing up of the case lasted three and a half days, with one dry competition law argument after another delivered with little panache. Had this been directed at a judge, it wouldn’t have mattered. But a jury? I cover this stuff for a living, yet my eyes often found their way to kitten videos streamed onto my phone via the court’s complimentary wi-fi.

Conservative estimates suggest that next year’s ANZ trial will last nine months. And whatever challenges were faced by the Melbourne jury in the Country Care case will be multiplied manyfold, with jury members required to get their head around the complex underwriting arrangements of an ANZ share issue. As for the immunity witness in that case, JPMorgan, it’s hard to see how a jury would view one of the world’s most powerful and lucrative banks — and its posse of well-tailored executives — as particularly sympathetic witnesses.

The case will be an outrageously time-consuming and expensive affair for both the ACCC and the CDPP, and the returns are looking, at best, uncertain. It could also make or break Australia’s criminal-cartel enforcement regime. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Immunity in the dock appeared first on Inside Story.

All went well. Too well. While the canniest speculators usually do only slightly better than chance when it comes to currency predictions over the short term, Kamay’s account won sixteen of its twenty-one bets on how the dollar would shift. A year after the friends’ deal was struck — and thanks to Pepperstone’s letting them lever small bets into much larger gains (or losses) — they were just a little short of their shared goal of a $200,000 profit, a 20,000 per cent return on their $1000 investment.

That’s the moment where Australia’s latest true crime podcast, The Sure Thing, kicks off. On the morning of 9 May 2014, the pair woke to police dogs barking outside their homes in Melbourne and Canberra. Another year down the track, their shared scheme had landed each of them with a two-year prison sentence for insider trading. And that was only the start of each man’s problems with the criminal justice system.

The secret to the pair’s success was Kamay’s partner in crime, twenty-four-year-old Christopher Hill, who had landed a job analysing labour figures for the Australian Bureau of Statistics. At 11.30am on many Thursdays, the Bureau announces new economic data, such as jobs figures and building approvals. Almost immediately, those announcements prompt Australia’s currency speculators to buy or sell in unison, depending on the difference between the expected data and what was announced.

The former is something any competent foreign exchange worker, such as Kamay, can work out. The latter is something only a Bureau worker could know before the figures are released. Hill, of course, was leaking the figures to Kamay. As a federal government employee, he earned four convictions for abuse of public office, adding fifteen months to his sentence for insider trading.

This banal scheme is anything but a sure thing for a true crime podcast. The pair’s motivations, as detailed by a psychologist interviewed on The Sure Thing, are hardly the stuff of psychodrama. Kamay had suffered early career disappointments and faced the Pavlovian pressures of the NAB trading floor. Hill had recently broken up with his girlfriend and found Canberra dull.

Their crimes were also mundane in their implementation. Hill snuck his data out of the Bureau on a scrap of paper. Kamay furtively traded on his smartphone in a toilet cubicle at his bank. Nor were they criminal masterminds. They both bought burner phones in others’ names (earning them convictions, but no extra jail time, for identity theft). But they sometimes forgot to use them. Anyway, each had spoken to others about their plans at one point or another. Kamay sometimes traded as “The Wolf of Wall Street.”

Worst of all for the podcasters, the crime lacked a compelling victim. When Kamay and Hill pointed out at their sentencing that their trading was barely a drop in the ocean of a currency market in which some $160 billion is exchanged every day, the judge responded, “While it may not be possible to point to any particular loss made by an identifiable victim, insider trading is not a victimless crime. Apart from harm to the market and public confidence, in this case there were counter-parties to each of your trades; they themselves had to enter into other transactions to try to cover their own positions.”

The “market” and nameless traders are obviously no match for the victims of homicide, assault or fraud that are the usual subject of true crime podcasts. Which is presumably why podcast host Angus Grigg and producer Lap Phan plumped for a different, more sympathetic victim: Kamay’s partner in crime, Chris Hill.

Christopher Hill’s alleged victimhood is mostly a factor of his partner in crime’s advanced villainy. On his arrest, Hill learnt that Lukas Kamay had broken their agreement from the get-go. The same day he opened an account for their joint bets at Pepperstone, he opened a second one where he made larger bets without Hill’s knowledge.

Not only did Kamay cut his partner out of the profits from his second account, but his actions also exposed Hill to a much greater risk of detection. To ensure that no one noticed their run of wins, the pair had agreed to limit the amount, consistency and frequency of their shared bets. But Kamay ditched these protections in his second account, running up nearly $1 million from twelve bets over five months and losing just a single bet.

Kamay’s actions supplied The Sure Thing not only with a villain but also with its hero. Pepperstone’s head of sales, Joel Murphy, started keeping a close eye on a new client who had suddenly become the firm’s top trader in a single quarter. Two months later, after Kamay correctly called Australia’s worst jobless figures in a decade, making half a million in minutes, Murphy turned private investigator.

Murphy’s detective tools were simple: social media (to learn that one of Kamay’s friends worked in Canberra), Google (to learn that the friend had worked at some point at the Australian Bureau of Statistics) and his phone (to pose as a student researcher and suss out Hill’s current role).

Less than a week after Kamay’s first big win, Pepperstone reported its top trader to the corporate regulator, ASIC. The next day, so did another broker, AxiCorp, where Kamay had recently opened a third account, making $600,000 off just three trades, mostly from the same February figures.

The podcast’s middle episodes follow the eleven weeks of the resulting official investigation. Operation Leith was a joint effort by the federal police and the corporate regulator — snooping on bank accounts, tapping phones and planting bugs — using up to eighty officers and the full array of federal police powers.

Operation Leith’s officers were even the first to learn that Kamay was planning to buy one of the renovated, furnished apartments from the seventh season of The Block, and The Sure Thing includes an interview with Alisa and Lysandra Fraser, the creeped-out ex-cops who grimly honoured a promise to be Kamay’s VIP guests when he celebrated his purchase of their South Melbourne flat.

The series also features interviews with three of Operation Leith’s officers: a cop (who corralled the agencies into a joint investigation), a member of the federal assets confiscation squad (who followed, and eventually seized, Kamay and Hill’s profits) and an ASIC officer (whose star turn was finding a burner phone that was tossed out of the window during the arrests).

But The Sure Thing doesn’t cover an investigative detail reported by the Daily Telegraph the following year: Pepperstone boss Owen Kerr’s “first instinct was to close down [Kamay’s] account but once he reported it to the Australian Federal Police they urged him to keep the account open.” That is, the national police and corporate regulator decided to let Kamay continue his trades.

It’s easy to see why. The pair’s use of paper and burner phones was enough to stop the snoops learning what information was being leaked. Worse still, there was nothing to see in the pair’s bank accounts: Kamay wasn’t transferring a share of wins to Hill electronically. (It turned out that Kamay was paying just a fraction of their joint winnings, in cash instalments.)

So Kamay’s wins continued. His largest — $2.5 million in a single bet, covering the likely price of the Frasers’ apartment — occurred on day twenty of the investigation, when labour force figures rebounded from their February low.

Eventually, the police placed cameras in the pair’s workplaces and, when building approvals and retail trade figures were announced on consecutive days in early April, at last discovered Hill’s scrap of paper and Kamay’s toilet break. In fact, Kamay lost both his bets that week. That may be because he was starting to fret that the police were onto him. Kerr told the Tele: “He was worried the money was not moving quickly enough — unaware that the delay was because the team at Pepperstone Financial were contacting the AFP for permission to let the trades go ahead.”

The trading companies were right to be nervous. After all, they were knowingly participating in — and still presumably providing leverage for — Kamay and Hill’s suspected insider trading. The Australian Bureau of Statistics likewise continued to give their possibly rogue employee access to sensitive market data. And ASIC and AFP officials stood by as Kamay bid on The Block using likely illicit funds and put down a quarter of a million deposit (later earning him a conviction for money laundering).

Sacking Hill, locking Kamay’s account or stopping the auction bid would have alerted the pair before Operation Leith could prove their crimes. But were there other options? Could Pepperstone and AxiCorp have simply pretended to make Kamay’s trades, with the federal police crediting his account accordingly (while poised to stop any big withdrawals)? Police investigating other hard-to-prove crimes often do something similar, for example letting detected drug importations continue using something harmless, such as baking soda.

Instead, Kamay continued his trades for seventy-eight days after he was reported to the regulator. These included his second huge win on day fifty-five of the investigation, relying on Hill’s access to the Bureau’s construction data to earn $2 million.

When the story of Kamay and Hill’s crimes eventually broke, the ubiquitous hook was that theirs was Australia’s “biggest insider trading case.” But none of those reports, including The Sure Thing, pointed out that the lion’s share of Kamay’s trades — 80 per cent of his $7.5 million haul — occurred under the gaze of Australia’s corporate and police watchdogs.

This is no entrapment story. The investigators’ decisions don’t detract from Kamay’s villainy. Indeed, the oblivious insider trader opened a fourth account — his most lucrative — on the same day Operation Leith began, using it to make eight trades totalling $6 million. Those trades were rightly regarded by his sentencing judge as his most heinous, because by then he was “trading with absolute confidence in the value of the inside information.” That is, as an earlier judge put it, insider trading is at its worst when winning is “a sure thing.” Kamay received five years’ imprisonment, two-thirds of his total prison sentence, for those eight trades alone.

But the fact that investigators let those sure bets happen complicates the official line that the battle against insider trading is fought to protect the crime’s actual and metaphorical victims. Police investigating other crimes typically prioritise preventing harm to others over catching criminals, and if they don’t the courts take a very dim view. In 2008, the NSW Crime Commission allowed six kilograms of imported cocaine to be sold to Sydneysiders while investigators built a case against a Mr Big. The High Court ruled that the commission itself broke the law by allowing that cocaine to endanger end users’ health.

But the evident concern of Operation Leith’s investigators was to ensure that Kamay and Hill were eventually punished, publicly and harshly. If they had stopped Hill’s leaks or Kamay’s trades early, the pair may never have been tried, let alone convicted. If they had asked Pepperstone and AxiCorp to fake the trades, the blaze of headlines would have been about the less stunning crime of “attempted” insider trading.

That may be small comfort to the innocent investors on the other side of Kamay’s $7 million of winning trades during the course of Operation Leith. In March 2016, the Australian Shareholders’ Association complained that the way white-collar criminal law is enforced “is not always appropriate as the monies go into a confiscated assets account rather than to directly compensate victims.” Of course, some other lucky investors netted the windfall of Kamay’s $1 million in deliberate losses during this same period.

Kamay, of course, couldn’t keep his winnings. Instead, the money became part of Australia’s Confiscated Assets Fund, which swelled from $88 million in 2014 to $96 million in 2015. The largest beneficiary of that fund, which is used to support law enforcement initiatives, is the Australian Federal Police. In May 2016, federal justice minister Michael Keenan approved a grant of $14 million from the fund to expand the AFP’s Fraud and Anti-Corruption centre, a collaboration of a dozen federal agencies including ASIC, the very body that investigated Kamay and Hill.

For how long would Operation Leith’s investigators have let Kamay rack up wins on Hill’s inside information before they finally pulled the plug? We don’t know, because Hill himself blew the pair’s cover on Anzac Day weekend when he forgot his burner phone on a visit to Melbourne. Investigators listened to the pair arrange a meeting on Hill’s regular phone, followed them as they bought new burners at a suburban shopping centre and listened in via a bug in Kamay’s BMW Roadster as Hill was handed his next bag of cash.

Even though they now had all the evidence they needed, the police waited for two more weeks until the next labour force figures were released. This time, Kamay made his worst bet, deliberately losing (and unwittingly depriving the police’s confiscation fund of) nearly $800,000. The next morning, the pair’s homes were raided.

Coincidentally, The Sure Thing’s hero lost his job that same day, made redundant after Pepperstone reviewed its operations. Joel Murphy later sued the firm for unfair dismissal and unpaid bonuses in the Federal Court, with his lawyer noting the lack of whistleblower protections for employees who inform ASIC about client activity. The workplace dispute seemingly ended after a judge ordered the firm and Murphy into mediation.

The Sure Thing chose not to detail these sour notes. Instead, Angus Grigg and Lap Phan opted for a human-scale tale of greed, betrayal, discovery and redemption. The backstory, Grigg explains, started when Clinton Free, a management academic who studies white-collar criminals, introduced him to Hill in 2019. The trio navigated pandemic restrictions until Hill could tell his side of the story.

If the producers were hoping that Hill would publicly vent at his partner in crime, they were disappointed. Throughout the podcast, Hill repeatedly rejects Grigg’s suggestion that Kamay “betrayed” him. Hill doesn’t explain why, but any attempt to deflect or apportion responsibility would have been a bad look. All of Kamay’s trades, whether pursuant to the pair’s joint deal or to his much larger personal shenanigans, were the result of Hill’s leaks. Had Hill simply stopped the flow in early 2014 — when, he told the podcast, he started to get cold feet — neither of them would have been caught.

Grigg and Phan found some interpersonal drama during the 2015 sentencing hearing, when each of the friends said that the insider trading scheme was the other’s idea. Justice Elizabeth Hollingworth accepted Hill’s account, unconvincingly citing Kamay’s deeper knowledge of the currency market. Her ruling may just reflect Kamay’s minimal credibility given his double-dealing. Six years later, the podcast proved her right, locating someone who had heard Kamay float the same idea years earlier.

Hill, once again, denies Grigg’s suggestion that Kamay’s testimony was a fresh betrayal. He was, in any case, fortunate that Kamay sorted his shared deals with Hill and his personal side-deals into separate accounts. That allowed the police and courts to readily distinguish the pair’s villainy. Only Hill had abused his workplace’s trust, but Kamay’s sentence was nearly twice his partner’s.

The sole bright spot for Kamay in his sentencing came as a result of the government’s hardline attitude to confiscating the proceeds of his crimes. Prosecutors insisted that Kamay’s “pecuniary penalty” should equal his total wins, leaving him to wear the $1 million he deliberately lost. He was forced to sell all of his assets, including ones acquired before he started his insider trading, to settle his debt with the police, a disproportionate penalty that Justice Hollingworth took account of in fixing his prison term.

And yet, as Professor Free emphasises at the end of the podcast’s initial run, the pair’s financial and personal punishments would last much longer than any prison sentence. ASIC permanently banned Kamay from providing financial services. Hill explained that, thanks to the awkward gap in his resume after (and lack of reference from) his stint at the Australian Bureau of Statistics, he was unable to find any white-collar work after his release in 2017.

Free asks whether this additional punishment is just, arguing that white-collar criminals, like others, are surely capable of redemption. But I think this is the wrong question. Employers’ refusal to hire known insider traders isn’t a matter of justice, but rather commercial risk management. The better question to ask is whether, given the combined effect of assets confiscation and commercial anathema, the much-ballyhooed tough application of the criminal law is necessary.

The Sure Thing tackles this issue obliquely in its closing episodes, with the obligatory bleak prison saga (where Kamay takes turns as the hero and then the target of other criminals) eventually giving way to the pair’s staggered stints at a minimum-security facility near Beechworth, where inmates spend their time working in the local community. The podcast interviews the president of a local football club, who uses the prisoners, including Kamay, to make up the numbers in his team. The obvious question is what purpose is served by keeping such non-dangerous prisoners (white-collar or not) in Victoria’s swelling prisons.

In her sentencing remarks, Justice Hollingworth intoned the official view that “deterrence” — especially of others — “has a central role to play in white-collar offending” and that “it is self-evident that the longer the sentence, the harder the bite.” That oft-repeated mantra is shared by virtually no criminologists, who instead think that most offending is done by people who don’t expect to get caught at all. Notably, the doubling of insider trading maximum sentences in 2010 seemingly did nothing to deter Hill and Kamay.

I love what The Sure Thing has done with the podcast medium. While true crime podcasts have covered white-collar crime before, I’m not aware of any that has focused so humanely on a white-collar criminal. Indeed, few focus humanely on any criminals.

But this focus on individual offenders and investigators comes at the cost of dealing with the many official decisions that surrounded Kamay’s and Hill’s crimes. These include decisions made during the investigation (such as letting their crimes continue for nearly three months) and decisions made afterward (about punishing them and dealing with their illicit profits), as well as other official decisions made before their crimes were committed.

The most surprising of all omissions, to me, is any examination of the choices made by the Australian Bureau of Statistics. One choice was to declare itself a victim of Kamay’s and (especially) Hill’s crimes. At the sentencing hearing, federal prosecutor Robert Bromwich offered just one victim impact statement, but it wasn’t from the market, a losing currency trader or even the three people (a housemate, a job applicant and a bank customer) whose identities Hill and Kamay stole.

As Justice Hollingworth told Kamay and Hill in court, drawing on the Bureau’s victim impact statement, “Confidentiality of the information provided to, and held by, the ABS is critical to its proper functioning. Conduct such as yours can be very damaging to an agency like the ABS, particularly to its public reputation. Your actions have caused the ABS to spend considerable time and money reviewing the integrity of its computer systems, and undertaking further staff training. The ABS also arranged counselling for those members of staff who were having trouble dealing with the nature and seriousness of your betrayal of trust.”

She didn’t mention the statement again. Perhaps she wasn’t impressed.

I sure wasn’t. The Bureau has no more cause to bemoan Hill’s “betrayal of trust” than Hill has about Kamay’s. After all, it was the Bureau that decided to give Hill advance access to sensitive market information, not just after it learnt of his possible misuse of it, but also before that, when it knew little about him. Worse, even though his main job was to analyse labour force figures, and sometimes building data, Hill was nevertheless given inadequately supervised access to two other sets of market-sensitive data.

Indeed, a review published two months after the arrests found that, despite a supposedly strict “need to know” policy, Bureau employees’ access to the market-sensitive data had been expanding for years, a product of slackening standards and the exigencies of managing a large, spread-out, multitasking and often shifting workforce. Some 340 Bureau staff had electronic access to at least some market-sensitive figures. And open-plan offices meant that still more Bureau employees could readily see data left visible on a desk or screen. On one view, Hill’s crimes (and Kamay’s disregard of the pair’s precautions) did the public a significant favour by revealing the potential gap between the Bureau’s promise of confidentiality and the reality.

I’m not sure the public’s concerns would be assuaged by the auditor’s recommendations. Belinda Gibson, who had recently stood down as ASIC’s deputy director responsible for insider trading, said that the Bureau’s “need to know” lists should be reviewed (and, indeed, viewed) and that employees’ access to sensitive data should be watched, both retrospectively and in future. But she also repeatedly said that trusted employees (like Hill) can always find a way to misuse any data they can access.

Her solution: amplifying the Bureau’s self-described “strong culture.” She recommended that the organisation add modules about not divulging market-sensitive data to its existing internal messaging, contracts and training, something it seemingly had not done previously. And she also said that Bureau employees should declare their financial situation yearly and refrain from short-term trading. None of these measures would have made the slightest difference to Hill. Neither, of course, did the criminal law, which the Bureau cited as its principal means of preventing employee misconduct.

It seems to me that some other, more onerous options could plausibly prevent crimes like Hill’s and Kamay’s in future. One approach could be to separate the key data between different groups in a way that makes it less usable by any one individual. Another, taking a leaf from Hollywood, is to issue workers with multiple sets of data for analysis, some fictitious, with almost no employees knowing whether the data they are working on is the correct set. The risk of misuse would still exist, but it would be more confined, in terms of people and time, and, crucially, much less of a sure thing. Measures like this are expensive, of course, but the alternatives are grim.

In its closing moments, The Sure Thing nods to the futility at the heart of its story, when podcast hero Joel Murphy returns in a new role. “I probably felt a tinge of guilt,” he says, after learning of Kamay’s betrayal of Hill and Hill’s current employment troubles. The podcast’s denouement, a redemption of sorts for him and Hill, is when Murphy offers Hill a job in the trading company he now manages.

The kicker is Hill’s new role: risk management, which includes analysing whether clients are engaging in insider trading. Hill knows what to look for all too well: a series of big wins on improbable bets by someone with a traceable connection to the right public servant. The problem is that Hill knew all of that in 2013, which is why he and Kamay agreed to take precautions. Are there other public servants, in the Bureau or other roles that have access to market-sensitive information, who know the same, and are successfully managing the risk of detection? I reckon it’s a sure thing. •

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The defence naturally had a different story: “Everything that took place at those premises on that night was consensual.” And, consistent with the statistics on sexual assault (only one in ten reported cases results in a conviction), de Belin and Sinclair were found not guilty. On one charge, that is — the jury’s eight men and four women were unable to reach a verdict on the remaining charges.

Does it matter that twice as many men as women were sitting on that jury? It’s not customary when reporting on trials for journalists to discuss the jury’s composition, but in this case the Sydney Morning Herald’s court reporter, Georgina Mitchell, saw it as relevant.

It’s true that jurors are randomly selected from the election roll, but a recent study by the Melbourne Age found that women called up for jury service in Victoria are more than twice as likely as men to be excluded from criminal trials by peremptory challenges (the right of barristers to veto jurors without giving a reason), and even more likely if the case concerns a sexual offence.

It has always been thus. Unlike British women, who gained the right to sit on juries in the early twentieth century, Australian women had to wait until the 1990s to achieve full jury rights in every state. Until then, women were denied their power to engage in the adjudicative process or to be judged by a jury of their own peers. Female victims of sexual violence usually had to narrate the most traumatic moment of their lives to a male judge, male journalists, male barristers and a jury comprised entirely of men. An institution that was meant to be the democratic voice of a sovereign community was instead one of the most unrepresentative institutions in Australia.

While I was reading about the de Belin case my desk was piled high with archival materials detailing the tireless efforts of feminist organisations to get women on juries. Let me correct that: tireless isn’t quite the right word. By the 1940s the women had been campaigning for more than half a century, and they were exhausted. “This meeting is a waste of time,” huffed Miss Cotton in a 1942 deputation to NSW justice minister R.R. Downing. “We are not asking for a privilege; we are asking for a very unpleasant right… We think it is work we should be doing and it is our right to do it.”

Like those of us who have served on a jury, the women knew that in the bundle of rights, duties, privileges and obligations that define citizenship, jury service is most definitely a duty. “It is no privilege that women seek, but the right to take their place as full citizens with the knowledge that civil and social duties should not be determined by sex,” one woman wrote to the Melbourne Argus in the 1940s. Erna Keighley, a feminist activist from the same era, agreed: “Any community which excludes half its citizens from such activities, because of sex alone, is undemocratic.”

By the middle of the twentieth century white Australian women could vote, sit in parliament and practise as barristers and solicitors. As an editorial in the Sun put it, “The bar table, the witness box, the dock and the gaol are all open to them; only the jury box is closed.” Worse than that, women were removed from court in any case involving sex, while men were allowed to stay. As activist Annie Golding complained in 1929, “When a man is charged with a sexual offence against a young child of six, seven, or eight years of age, or against an unfortunate girl that has been seduced or outraged, the court is cleared” of women and the girl in the witness box is left “friendless.”

Queensland was the first state, in 1923, to grant women the right to sit on juries, but it was an opt-in system that required                 women to volunteer to the local sheriff. So few volunteered — and those who did were usually subject to peremptory challenges — that by 1941 only three women had served as jurors. It took until 1995 for Queensland women to gain full jury rights.

A similar story can be told of Tasmania, where women were allowed to volunteer for jury service in 1939 but didn’t have equal jury rights until 1991. South Australia denied women any right at all to sit on juries until 1965; full jury rights came in 1975. Western Australia gave women full jury rights in 1985, New South Wales and Victoria in 1977 and the Australian Capital Territory in 1979. It’s a shocking performance from a nation that likes to celebrate the fact that it granted women the right to vote and stand in parliament relatively early.

What reasons were given for the denial of this basic and not very pleasant right? Put simply: toilets. Or, as one justice minister euphemistically put it in 1942, “The greatest difficulty in the way of anything being done immediately is the provision of accommodation.” Yes, in New South Wales and Victoria the main barrier to women’s jury franchise cited by justice ministers was that courts lacked female toilets and it would cost too much money to build them.

Of course, governments were having no problem financing high-grade arterial roads, the Snowy Mountains Hydro Scheme, tramways, railways and entire new suburbs. As one “well-known Labour woman” told a NSW deputation in the 1940s: “A lot of rot! The minister is only pulling your association’s leg. Accommodation!… [T]he government can put an extra lavatory and a bit of a wooden partition in other departments quick enough, why not in the courts?”

Those courts had been built during the Victorian era, when nobody imagined a role for women in legal adjudication. Women were seen to be too irrational, too burdened by suckling infants, too sexually ignorant or too easily corrupted by sexual knowledge. Men spoke the language of the law. Women spoke the language of morality.

What comes as a surprise is that these attitudes persisted for a large part of the twentieth century. “Jurors become the judges of the facts, and so they should be worldly, impartial, logical, consistent and, in theory at least, sexless,” one commentator declared when South Australian women entered jury boxes for the first time in 1966. “Many male lawyers contend that women jurors not only lack such qualities but are often petty, moody (by nature), unpredictable and in sex cases revengeful in the cause of womanhood.”

Newspapers commented constantly on the problem of men in courtrooms being distracted by attractive women. Sheriffs worried that the state would be encumbered with the substantial costs of remunerating them for their labours of care. Inadvertently, the debate over juries raised the awkward fact that supposed labours of love, such as housework and childcare, for which women were said to be most suited were in fact unpaid work that saved government significant amounts of money.

Many of these historical injustices persist today. Rather than providing funding for female jurors with caring obligations, courts simply exempt them from service. Women continue to be targeted by peremptory challenges, quite likely leading to skewed results in a range of matters, particularly sexual assault. The cliché that women are harder on each other when judging these matters has not been borne out by research; instead, women’s shared experiences of the fear or actuality of sexual violence makes them far more capable of understanding the arguments of claimants like the woman in the de Belin case.

But the greatest continuing injustice of the jury system lies in its treatment of Indigenous people. Their criminalisation means that they are vastly over-represented among defendants and yet woefully under-represented among jurors. When the NSW Law Reform Commission last did the figures in 2009, Indigenous people represented less than 0.5 per cent of jurors. If Australia is to offer defendants “a jury of one’s peers” as a symbol of our democracy and the sovereignty of the people, then it needs to include all people and all experiences. •

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Despite the lack of fanfare, the message could not have been plainer. “Urgent” action was needed to deal with workplace sexual harassment. A national survey in 2018 had found 23 per cent of women and 16 per cent of men had been sexually harassed at work in the past twelve months.

“It occurs in every industry and at every level across Australia,” sex discrimination commissioner Kate Jenkins warned. “This is not simply the story of ‘a few bad apples.’” Having spent eighteen months looking at the issue, she had fifty-five recommendations ready to fix it, including changing the Sex Discrimination Act, simplifying the complaints system and putting more onus on employers to eliminate harassment.

Porter and women’s minister Marise Payne said they would “carefully consider” the report. And then thirteen months went by. Granted, things have been happening elsewhere for the government (and, more lately, for Porter). But this excuse only travels so far. Most of Australia has been out of lockdown since mid 2020 and parliament has been back since August. And the pandemic hasn’t stopped the government pursuing non-Covid issues like industrial relations and university fee reforms.

All this blurred into the background on Thursday when Scott Morrison and new attorney-general Michaelia Cash held a sombre press conference in the prime minister’s courtyard to announce their “roadmap” response to Respect@Work. Morrison said the government was “embracing” the report, describing it as a “game-changer.”

New legislation will be drafted to make it easier for employers to fire sexual harassers. MPs, public servants and judges will no longer be exempt from the Sex Discrimination Act. More funding will come in the May budget.

Jenkins praised the response as “constructive,” but it’s hard not to be cynical about how Respect@Work is being used. It’s a small thing, perhaps, but the government is now taking the credit for establishing the review, when it was very much a joint initiative with Jenkins.

The government’s headline message is it is either agreeing to — “in full, in part or in principle” — or noting all the recommendations. Sound confusing? Well, the detail of its response to the fifty-five recommendations didn’t reach journalists until more than an hour after the press conference, and the chance to ask informed questions, had ended.

Indeed, despite its embrace of the report, the government has only “noted” one of its key recommendations — that a “positive duty” be imposed on all employers to take “reasonable and proportionate measures” to eliminate sex discrimination. For UTS law academic Karen O’Connell, who provided advice to the Respect@Work inquiry, this is a “significant missed opportunity to genuinely prevent sexual harassment.”

Then there is the pre-emptive finger-pointing. Cash is talking about how the states need to get involved and has written them a letter asking about their plans. Morrison says “issues” with the draft legislation still remain to be worked through, and is ominously pleading for “bipartisanship.”

There’s nothing shocking about a government sitting on a report and then trying to avoid being pinned down. Or trying to claim more credit than it deserves. But this is no ordinary report and this is not an ordinary political time. It comes as the government scrambles to regain a sense of authority (and, dare we suggest, empathy) over the “women’s issue” and arrest the anger and frustration felt both within the walls of Parliament House and well beyond it.

It is difficult to believe we would be seeing this response at this time had it not been for Brittany Higgins. Respect@Work was hidden away at the back of the political freezer until advocates and non-government MPs started to call for a response in the wake of her story.

Polling suggests the government really does have a problem. Between last November and 29 March, according to the latest Essential Report, women’s approval of Morrison dropped from 67 per cent to 49 per cent. Men, though, haven’t budged from 65 per cent. Labor’s internal research is showing a similar gender gap. Women are disappointed and angry with Morrison’s response to both individual survivors and issues of harassment and inequality more broadly.

Liberal strategists are similarly aware that women have been moving away from the party for years, and this ties in with a broader international trend regarding female voters and conservative parties. But they also know they have a specific problem among women under forty. Or not so much a problem, as one Liberal MP notes, as “a horror show.”

Within the Liberal camp, there are those who think the government is taking sensible, concrete steps (setting up a women’s cabinet, changing laws, holding summits) and needs to be patient. According to this reasoning, the climate at the moment is unforgiving and the Coalition will be damned for whatever it does. As long as there is demonstrable change, it can ride this out.

But there are also those who think their party leadership doesn’t “get it” and (still) sees the issue as a purely political problem. And this means the current response won’t be good enough. Many might find it hard to reconcile the prime minister’s stated commitment to eliminating bad behaviour with Andrew Laming’s remaining on the government benches.

But Labor strategists aren’t celebrating either. As one told me, male voters are “staring at the floor, waiting for the conversation to move on.” Morrison may have taken an enduring hit to his standing among women, but at least one half of the electorate won’t bust him for it.

Meanwhile, Jenkins is busy with another inquiry. And this is one the government really did commission. Due to report in November, she is examining what it’s like to work at Parliament House. The Human Rights Commission is recruiting more staff to help her, hopes to open submissions next month and will provide an update in July.

Staff around the building — both Liberal and Labor — are being encouraged to contribute and the government sees this as one of its key planks for a gender reset. So long as Jenkins doesn’t come up with anything too ambitious or impractical (such as a mechanism to sack MPs), the government will be able to show some evidence it is sorting out “toxic” parliament, ahead of the election, earlyish next year.

Provided it doesn’t sit on the report for fifteen months. •

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Kate’s friends, and maybe Porter’s too, testify about what they saw that night and before and after, and perhaps what they were told by Kate or Porter in later days, weeks or even years. There may be further evidence, as yet unknown to the public, that greatly supports the prosecution or defence case. Or maybe not, which means it is largely one word against another. Either way, the question of Porter’s guilt is decided by a jury of twelve, applying the criminal standard of proof, beyond reasonable doubt.

This trial-that-can’t-happen casts a long shadow over the recent debate about how to respond to news that, before her death, Kate told multiple people that Porter raped her when they were both teens. But there are several reasons to doubt that a criminal trial would have settled that debate.

One reason is small but startling: the media couldn’t have reported any part of the prosecution. That isn’t because a judge would temporarily limit any publicity of the evidence and verdict to avoid prejudice, as famously happened with George Pell’s trials in late 2018. Rather, it’s because the law in New South Wales permanently bars the media from naming anyone, including adults, in connection with criminal prosecutions about events that happened when they were children.

Because Porter was seventeen years old at the time of the alleged rapes, the media could only describe him as “a man in his fifties who cannot be named for legal reasons.” For the media to identify his name or even occupation in connection with the charges, either he would have to consent or a judge would have to opt to strip him of his anonymity after a conviction. Of course — as with Pell’s trials in late 2018 and early 2019, and with the allegations against Porter in recent weeks — nothing the court or parliament could say would stop the truth from circulating on social media.

The Pell example points to the second, deeper reason why a criminal trial wouldn’t settle this debate. A guilty verdict would remove Porter’s liberty, just as Pell’s removed his, but it wouldn’t end the discussion about his guilt, both within the legal system and without. The Pell debate and his appeals continued apace over the entire period that Kate was revealing memories of abuse to her friends. She typed a lengthy document summarising those memories a month after Pell lost his first appeal over a furious dissent.

By the time Kate walked into Kings Cross police station, Pell’s fate was in the hands of the High Court of Australia. Its unanimous decision to free him in April last year (turning on unique features of the prosecution’s case against Pell) was said by Kate’s friends to have weighed on her. Pell’s acquittal no more settled the question of his guilt or innocence than his guilty verdict did. Neither would the debate over Porter’s fitness for office stop if he emerged from his prosecution with his presumption of innocence and parliamentary seat intact.

Alas, there is a third reason, the saddest and most telling, why rape charges against Porter would probably never have resolved whether or not Kate’s accusation was true: the prosecution would have put unbearable pressure on her. Every one of the friends, counsellors, journalists and police she spoke with have described Kate’s anguish about whether to pursue Porter’s prosecution. Many have disclosed the burdens of her lifelong experience of mental illness and the division between her friends and family about the reliability of her memories. She would have been told that, had a prosecution proceeded, there was a real possibility that Porter’s team could obtain and read her personal diaries and counselling records.

Devastatingly, we all now know of her twin acts on 23 and 24 June last year. On the Tuesday, she emailed NSW police to say that she would participate no further, citing health and personal reasons. On the Wednesday, she died in circumstances that are presently before a South Australian coroner. These events are and will likely remain unfathomable, but they cast a shadow of their own over both Porter and the criminal justice system.

It is surely one of these factors that NSW police commissioner Mick Fuller had in mind when he told a Sydney radio program last week, “The matter itself, even with the alleged victim, probably would’ve struggled to get before a court. These are challenging matters, particularly when they’re historic.” There is nothing uncommon about this, especially for sexual crimes. The criminal justice system often fails to settle the truth of disputed allegations. Indeed, doing so isn’t even its main purpose, which is to decide if enough evidence and public interest exists to warrant a court’s deciding whether or not to give the accused an official label (such as “convicted” or “acquitted”) and to impose a criminal sanction. The situation currently facing Porter — the system having stopped considering those options at the initial stage — is by far the most common criminal justice outcome for rape allegations.

What is uncommon in this case is that the complainant’s allegation against Porter has nevertheless been aired publicly, widely and in some detail by the media. What is even less common is that the accused rapist is not only a well-known public figure but a senior member of the national government. And what is perhaps unique in this case is that the revelation of the allegations coincided with a call from Kate’s supporters to find another official way to settle the ensuing debate.

Picture an inquiry that may well happen. An assigned decision-maker reviews all the available evidence gathered to accuse a public figure of serious misconduct. That figure offers the decision-maker his blanket denial of the accusations, and points out that his lawyer can’t cross-examine their source. After mulling over the conflicting accounts, the decision-maker issues her finding about whether the evidence satisfies the civil standard of proof: the balance of probabilities.

When Kate’s typed statement was forwarded to several MPs last month, an anonymous covering letter pointed out that an inquiry of this kind had happened in the first half of last year. (Indeed, in an odd coincidence, both the inquiry and its findings were revealed the day before Kate informed police that she would no longer be part of the investigation of Porter.) On Monday 22 June 2020, chief justice Susan Kiefel announced that an “independent investigation” she had commissioned had found that six of the High Court’s associates had been harassed by former justice Dyson Heydon, adding that she and her fellow judges were “ashamed that this could have happened at the High Court of Australia.” Journalists and Kate’s supporters say that a similar inquiry should be held into the allegations against Porter, arguing that the model was backed not only by the national court but also by the Australian public, who accepted the inquiry’s judgement on the judge.

I think that those commentators have seriously misunderstood that landmark event. The chief justice didn’t endorse, much less devise, the procedure she commissioned to investigate alleged harassment inside the national courthouse; instead, she did what every employer is legally obliged to do in the face of such allegations, lest they fail in their legal duties to their employees (and risk being sued for doing so). No matter how heartfelt, the same is true of her court’s public admission of judicial shame.

More importantly, Vivienne Thom’s inquiry — one that Heydon refused to participate in, claiming it was unfair in various ways — isn’t what convinced the public of his guilt. Rather, they were persuaded by the simple fact that Heydon faced six similar allegations of harassment, a classic result of the #MeToo movement. Had there been only one allegation against him, it is far from clear that Thom’s findings would have settled the issue of whether Heydon was a menace.

Indeed, it is unlikely that she would have made any finding at all. To see why, consider how, in 1938, a much earlier High Court dealt with a dispute about what happened after a late-night dance when a man accompanied a woman to her dormitory. In that case, a Victorian judge received secondhand evidence that one of them had later said the two had sex, but also heard the other’s furious in-court denials of any such thing. The judge declared that, while he “might well consider that the probabilities were in favour of” Clarice Briginshaw’s having committed adultery that night, he was “certainly not satisfied beyond reasonable doubt.”

That case proceeded to the High Court, which unanimously found that the judge had applied the wrong standard of proof, because this wasn’t a criminal case but rather a civil one (a divorce petition by Clarice’s estranged husband). Nevertheless, although Justice Owen Dixon said that the couple’s reported statements and circumstances “filled me with much misgiving,” neither he nor any of the other justices were willing to declare, merely because of the “probabilities,” that sex had occurred.

Much has changed since Frederick Briginshaw’s divorce petition in terms of attitudes and suppositions about sex, but the High Court’s judgement in Briginshaw v Briginshaw remains the uncontested authority on how Australia’s civil courts, workplace inquiries and professional discipline hearings must handle disputes about serious misconduct. Those tribunals cannot approach such claims the way they would resolve disputes about a customer’s fall in a supermarket, or how someone caught a dust disease, or what a contract said, simply by working out which of two options was the most likely.

To find a serious wrong, said Justice George Rich, “the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” “[T]he importance and gravity of the question make it impossible,” added Justice Dixon, “to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact.”

The judges didn’t say what would suffice, noting the myriad ways serious wrongs can be proved. But they did say what wouldn’t be enough on its own: two contrasting, plausible accounts of what happened where the decision-maker could not see or hear the accuser’s response to questioning about the accusation.

The upshot is that the most ballyhooed option to resolve the allegations against Porter would most likely produce no findings either way about what happened in 1988, at least if all the decision-maker had to go on were Kate’s various statements about the rape, in writing or to others. (Ominously for the ABC, the same is true for Porter’s just-announced suit, where, depending on the complexities of defamation law, the broadcaster may have to prove Porter was a rapist or face a significant cost.) Unsurprisingly, some commentators have since canvassed very different ways to respond to Kate’s accusation.

Justin Gleeson, the federal solicitor-general until 2016, initially proposed that his successor be asked: “Is the material sufficiently credible to justify an executive inquiry?” He added, improbably, that this “circuit-breaker” question could be answered in forty-eight hours. Just forty-eight hours later, Gleeson himself dropped that idea without explanation, presumably partly because assessing a rape accuser’s credibility is a strange task to give to a government lawyer (whose main roles are to advise and advocate for the government on constitutional and administrative law). The greater problem is that lowering the standard of proof cuts both ways. Any inquiry would surely find that both Kate’s and Porter’s accounts of events in 1988 were entirely credible ones, settling nothing at all.

Gleeson and others have since argued that an inquiry, rather than considering what happened in 1988, should solely examine what should happen now, given Porter’s simultaneous status as accused rapist and senior member of the government. Criminal law barrister Greg Barns proposes that an inquiry “headed by a retired Federal or High Court judge, conducted in private, with findings released in public, should examine the question of whether the nature of the allegations made against Mr Porter is such that, despite the presumption of innocence… the real possibility of an erosion of trust and confidence” means he should not remain in his current position. I suspect that — like most people proposing bespoke solutions to the Porter dilemma — Barns already knows which way this circuit would break. No former judge would ever declare that any single, untested allegation, no matter how serious, renders someone unsuitable for any public office, no matter how senior.

That is why, from the outset, the recent debate has partly centred on claims that unproven criminal allegations can have real consequences for some people’s employment: for example, in professional sports, in the legal profession, and in unsupervised work with others’ children. But these comparisons demonstrate the opposite of what their proponents intend, because throughout Australia a person is only stopped from working in each of these contexts if allegations are current or quite recent (typically indicating a serious risk to others) or a criminal charge has been filed (indicating the serious concerns of police and prosecutors). No precedent exists in Australia for an accusation of even the most serious juvenile conduct being enough, on its own, to trigger any sort of official action, decades later, by anyone. Anyone, that is, apart from the police.

Now, picture an investigation that never happened. After receiving Kate’s written complaint, police officers who are highly experienced with allegations of historical sexual crimes work through her statement, identifying potential angles for further inquiry. Then they systematically contact potential witnesses, notably the many people who were present at the intervarsity debating tournament in Sydney. They look for those who may have seen key events she recalls, including Porter and her together entering the Women’s College, her room and a shared bathroom, as well as other events in the days and months before and after that may cast light on the accuracy of her memories.

At the same time, the officers speak to the pair’s acquaintances over the decades to determine if either has said anything about those events and to collect other relevant details. They also gather whatever relevant written documents still exist, including records of the tournament and college, and other writing by or about Porter and Kate, the latter likely including highly sensitive diaries and medical records. Eventually, the police speak to Porter himself, giving him the opportunity to give his account and respond to Kate’s, but also uncovering new lines of inquiry his account suggests, wittingly or otherwise.

Or not. No one should fault the NSW police for doing little or none of this in the period between Kate’s visit to Kings Cross police station on 27 February 2020 and her death four months later. The police would have been all too aware of the risk Kate took in initiating an investigation and the dangers such inquiries posed to her health. Although it is not their sole concern, modern police rightly treat a complainant’s wellbeing as the paramount consideration, at least where the allegations raise no present risk of future offending by the accused.

The police also faced understandable difficulties during the pandemic that coincided with the investigation’s commencement, compounded by Kate’s own health problems (which she explained would complicate any communication she had with them). They had every reason to move slowly to maximise Kate’s agency and health, and little reason to hurry, so long as the accusations remained unknown to Porter.

Multiple politicians and journalists took exactly that approach when Kate told them of her memories, focusing on her wellbeing and decision-making rather than contacting the authorities or inquiring further themselves. Alas, such an approach is less likely in future, at least for accusations against federal politicians, thanks to an unfortunate recent intervention by the Australian Federal Police commissioner, Reece Kershaw. After he received a copy of Kate’s complaint in February this year, Kershaw wrote to all federal MPs emphasising their duty to report allegations or complaints they receive of sexual assault or other criminal conduct, including ones made by victims themselves, “without delay” and “irrespective of jurisdiction.” Although Kershaw advises that MPs should take “account of the rights and privacy of the victim,” it also states that “alternative actions by individuals” may amount to obstructing or perverting justice. This places any future politician who is contacted in confidence by a future Kate in an agonising (and, in my view, wholly inappropriate) quandary.

Tragically, that quandary became moot in Kate’s case nine months ago. The death of Porter’s accuser meant that the NSW police were no longer able to protect her welfare or agency, including by refraining from investigative steps that could have endangered her health. At the same time, it meant they could no longer contemplate a prosecution that rested largely or exclusively on her testimony, the usual and most likely way to obtain a conviction for such an allegation.

Contrary to some journalists’ assumptions, though, an accuser’s death doesn’t bar a future prosecution, which could still be founded on other, rarer, sorts of evidence, such as admissions from the accused, a pattern of similar behaviour or a strong circumstantial case from surrounding events and evidence that imply a rape occurred. (The Pell case itself is a unique example, as he was convicted in relation to two alleged victims, one of whom died years before the trial without speaking to the police, based on the eyewitness testimony of the other alleged victim.) Modern evidence law facilitates such prosecutions by relaxing the hearsay rule in the case of deceased witnesses, so long as a court is satisfied that the witness’s out-of-court statements (said or written in the presence of others) were highly likely to be reliable.

In short, Kate’s death made a comprehensive police investigation, previously a vital way to test her allegations before any charges were laid, the sole remaining path to deciding whether charges could be laid in relation to her accusations. And yet, the NSW police have made it clear that they have not investigated the case since her death. In response to questions from journalists (and, indirectly, the accused himself) as to why they never spoke to Porter about the allegations, they explained: “From a legal and investigative standpoint, due diligence is required, particularly in historical sexual assault allegations, to ensure that the matter is comprehensively investigated and all available evidence is obtained, reviewed, and corroborated where possible. Investigative strategies need to be considered as part of this best practice model. Providing a version to a suspect prior to obtaining a formal statement would have an impact on any future investigative strategies.”

This staged approach is a sensible one. One strategy police sometimes use to investigate historical allegations is to have the complainant phone the accused to attempt to elicit admissions of what happened, which is then recorded for later use. (Such a “pretext call” is unlikely to have been useful or appropriate to investigate Porter.)

The police then explained that Porter was never approached in Kate’s case, because she had never made a formal statement to them. “It is current standard practice in sexual assault investigative training,” they said, “that upon all of the available information being obtained (in statement form) that the formal allegation can and should be provided to the person of interest as per the procedural fairness principles for investigators, to be able to determine prima facie and whether charging of the person is appropriate.”

Again, this practice made perfect sense when Kate first approached police, particularly as it seemed she had not yet decided to go further. But the police have never cogently explained why this “current standard practice” should continue to apply even after such a statement is no longer possible, indeed to the point of barring the police from carrying out what they describe as the “best practice model” of a comprehensive investigation.

While much discussed, the lack of a “sworn” statement — what Commissioner Fuller has called an “admissible statement in court with a jurat” — from Kate is a red herring. The only relevant sworn oath Kate could have made was in a court. The statement she typed last September — which police say they only received after her death — doesn’t become more or less significant or admissible because it wasn’t sworn by her. Indeed, nothing she wrote in recent years could plausibly be admissible in a criminal prosecution of Porter.

Rather, the significance of Kate’s statement is in the investigative leads it provides. The anonymous person who forwarded that statement to federal MPs understood this, and included a covering letter pointing out other investigative avenues that could be pursued in addition to the statement. Strangely, the AFP’s Commissioner Kershaw opted not to pass that letter on to NSW police. The NSW police commissioner has since acknowledged that a media report by Kate’s ex-boyfriend, indicating that he recalled relevant conversations with both Kate and Porter, was something his officers could potentially follow up.

Ideally, the police would have obtained Kate’s written statement, if possible, in the aftermath of her death and conducted a full investigation then. Any concerns they had during that period — about the family’s welfare, the coronial inquiry to come and the unlikelihood of any prosecution ensuing — would have been rendered largely moot on 26 February 2021, the first anniversary of Kate’s initial call to the police, when Louise Milligan revealed Kate’s accusations to the public and to Porter.

While a police investigation carried out in the public eye would inevitably be very different from (and perhaps inferior to) a regular investigation, it would be far superior to the media investigation we have all recently been witnessing. It would also, in my view, be much more effective and apt than the ad hoc executive inquiry Kate’s supporters have called for, one whose powers and processes would always be contentious. If the police nevertheless fail to investigate, the best of the remaining alternatives would be the main process that governments use to fully investigate serious matters that the police can’t or won’t: a royal commission.

Christian Porter will most likely forever remain an accused rapist, no more or less, thanks to Kate’s tragic death and Milligan’s revelation of her accusation. Proceedings are currently on foot examining both of these things, but neither will necessarily examine what happened in 1988, much less do so effectively or appropriately. Rather, the best way to dispel the shadows cast by the trial-that-can’t-happen based on Kate’s testimony and the inquiry-that-probably-won’t-happen into Kate’s statement is an investigation-that-should-have-happened into all of the other evidence that could cast light, either way, on Kate’s accusation. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Christian Porter’s shadow appeared first on Inside Story.

By the time McManus took the podium, the crowd on the lawn before Parliament House was well primed. If it was anger that brought them together, a sense of common purpose was to the fore. Host Julia Zemiro kept the mood buoyant, emphasising the diversity of the assembly and the fact that this was in every sense a “safe” gathering, albeit one too risky for the prime minister to front up to.

After a gracious welcome to country from Aunty Violet Sheridan, Tjanara Goreng Goreng, a Traditional Owner from Central Queensland, spoke further about the importance of Capital Hill as ancient ceremonial ground and called for attention to “the quiet stillness of our country.” She evoked the principle of deep listening, and as they listened to her, those who had come for a protest march more closely resembled a mob in the Aboriginal sense of the term, a collective bonded by fundamental commonalities.

Not that anger was left out of the equation. According to march organiser Janine Hendry, the rollout of protests across forty cities was “an outpouring of rage about gendered violence.” Saxon Mullins, who heads a sexual assault and advocacy centre, spoke of lives stolen by years of trauma. Ballarat lawyer Ingrid Irwin appeared in a gown and wig to denounce a criminal justice system that fails to give sexual assault victims the right to a lawyer. Madhumitha Janagaraja, president of the ANU Students’ Association, introduced herself as an abuse survivor and emphasised the increased risk for those with disabilities in a system that is “not on our side.”

Canberra journalist Virginia Haussegger appeared with Biff Ward, founding member of the Canberra women’s liberation movement, whose proclamation, “It feels like a tidal wave of rage out there,” appeared in headlines a few hours later. Katharine Murphy, writing in the Guardian, declared that “voices raised in anger are echoing through the land.” The rage factor commands attention, and has certainly captured the imagination of journalists.

Soon after Ward finished speaking, Nine correspondent Chris Uhlmann took up a position at the upper end of the lawn, overlooking the march, and commenced a report to camera with the words, “Rage outside parliament is washing over politics.” The camera operator stopped him. “There’s no rage,” he said, gesturing towards the crowd which, shortly before, was illustrating Ward’s pronouncement very effectively. “Got to wait for the rage,” he added. And so they waited. The crowd, however, didn’t oblige. Those gathered were listening in deep silence to Brittany Higgins, who, battling to maintain her composure, had made an unscheduled appearance “out of necessity.”

Brief bursts of clapping and other sounds of encouragement punctuated her speech, but these were quiet moments, and the quietness itself was perhaps the most important message of the day. Sometimes you have to just listen. The three generations brought together in this crowd harboured reserves not just of rage, but also of generosity, social maturity and moral intelligence.

Little of that was on display inside Parliament House when, as the marchers dispersed, the government assembled for question time. Forced to acknowledge what was happening outside, prime minister Scott Morrison embarked on a waffling address full of double negatives (“this is not to suggest that good faith and genuine efforts are not being made”) and vacuous parentheses (“I would hope”; “… as it has, until now, and I hope into the future”). This was ready ammunition for opposition leader Anthony Albanese, who remarked that Morrison was displaying “not so much a tin ear as a wall of concrete.” There followed a succession of opposition questions drawn from statements made by Brittany Higgins.

Those on the government frontbench may have looked somewhat uncomfortable, but not acutely so. Here they were, in their place of greater safety, and for every challenge from across the floor there came a question from its own ranks about the marvels of the current economic recovery, to which Morrison and Josh Frydenberg responded with all the impassioned conviction that was entirely missing from the government’s responses to the urgent and fundamental demands for social justice delivered on its doorstep.

So what are we left with, after this extraordinary day of reckoning? Not much, if those at the rallies walk away carrying the burden of what is now a tired old adage about maintaining the rage. In an insightful article about rage and the rise of the women’s movement, Haussegger quotes American writer Soraya Chemaly confronting the question of “what to do with all this rage?” When properly understood, she says, it is “an outstandingly clarifying emotion.”

Some of the turning points of political history are marked by the surging of rage as a clarifying moral force, others by the blind rage of mob violence, as evoked in A Place of Greater Safety, Hilary Mantel’s chronicle of the French Revolution. It’s doubtful whether fear of the latter really lurks in the hearts of our leading federal politicians. They know they are safe at work, and they know the women gathered outside Parliament House acted in a spirit at the opposite end of the spectrum from the sentiments that prompted Trump supporters to storm the US Capitol on 6 January.

The image of Uhlmann standing on a wall outside Parliament House waiting for the rage is strangely appropriate. Rage is not the heart of the story here. The new generation of protesters is asking, first and foremost, for safety. But their sense of being under threat is caused, as Grace Tame so cogently insists, by a chronic imbalance of power. Rather than maintain the rage, perhaps we should adopt another old adage: “Don’t get mad, get even.” That might be done effectively if half a dozen of the impressive speakers who fronted the marches around the country ran for federal seats, swelling the ranks of brilliantly effective female independents in parliament so as to hold the balance of power. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

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The reports tell us there is a problem, and that there has been for years. They tell managers they have good reason to be concerned, and counsel them to ensure they run training programs, establish complaints procedures and keep data about progress. The statistics are unassailable: the rates of harassment and the level of non-reporting have remained stubbornly at around the same level in workplaces generally and in the legal sector in particular.

Since 2003, the Australian Human Rights Commission has conducted four periodic surveys on the national experience of sexual harassment. Its 2018 survey, Everyone’s Business, confirmed that sexual harassment in Australian workplaces was widespread, with one in three people (39 per cent of women and 26 per cent of men) having experienced sexual harassment at work in the previous five years. Four out of five were sexually harassed by a male. The majority of workplace sexual harassment took place within Australia’s four largest industries.

The AHRC’s Respect@Work report, which runs to over 900 pages, bleakly noted that the rate of change has been disappointingly slow for more than thirty-five years, and that Australia now lags behind other countries in preventing and responding to sexual harassment. The situation in the legal profession — my profession — is no better; in fact, on the whole it’s worse. Recent reports have confirmed that more than 30 per cent of women in the Australian legal profession have experienced sexual harassment at work.

Who are the harassers? Big reveal: most are male. Beyond this, it is difficult to identify any typical characteristics. Sexual harassers are to be found in all age groups, industries and social backgrounds. The AHRC survey provided some additional insights. Of the respondents who had been sexually harassed in the preceding five years, 79 per cent said that one or more of their harassers was male. Where the most recent incident involved a single harasser, more than half (54 per cent) indicated that the harasser was aged forty or older.

And, of course, harassers often strike again. The survey found that 41 per cent of those who said they had been sexually harassed in the workplace in the last five years were aware that others in their workplace had also been sexually harassed, most often at the hands of the same person. This data confirms that one of the big problems any attempt to tackle harassment must face is recidivism.

But why do they do it? My initial glib response to this question was: because they can. Following lengthy and mature reflection, I can now confirm that the answer is: because they can.

Power is important. In the case of the law, it matters that the profession is very hierarchical, with the ranks — clerk, graduate, lawyer, associate, senior associate, partner — clearly designated. Barristers progress through the roles of reader, junior counsel and senior counsel — and ultimately, perhaps, judge. At each stage, a reasonable period must be served (and high proficiency generally displayed) in order to move to the next level. As a result, age is a good indicator of seniority and status. It is not determinative — for example, I have had junior counsels working with me who are older than I am — but it is a fair proxy for one’s position in the hierarchy. The power dynamic is overt. The partner of the firm who will determine whether you get a promotion or a pay increase wields power over you every day. It is obvious to junior barristers that senior counsel possess the power to affect their reputation and workflow at the Bar.

It is very likely that this power structure has contributed to a culture of silence in the law. The same can no doubt be said of medicine, the military and many other fields where the hierarchy is obvious. But sexual harassment is clearly not confined to situations where a harasser is in a position of explicit seniority. The AHRC report found that harassers and victims were most commonly co-workers employed at the same level (27 per cent for single harassers and 35 per cent for multiple harassers).

Feminist scholars argue that broader gender inequality helps to explain the prevalence of sexual harassment in circumstances where the imbalance in power between the harasser and victim doesn’t fit a commonly recognised pattern, like a disparity in age, seniority or authority. Understood this way, sexual harassment by men of women who are their peers is the manifestation of an attempt to gain power over them. The feminist analysis is that the maintenance of a workplace atmosphere in which women’s contributions are routinely devalued, and in which they are sexualised and degraded, serves to undermine all women, and to reduce their potential advancement. Elizabeth Shi and Freeman Zhong argue that the conception of sexual harassment as individualised, aberrant behaviour entirely fails to address these structural and systemic issues.

Women in powerful positions are sometimes harassed by men who hold less powerful positions. This “harassing up” is often in the nature of derogatory gender-based comments or sexist jokes. Again, feminists posit that the harassment in these cases is aimed at undermining women by focusing on stereotypical characteristics attributed to them.

To find out what men say about this, I consulted the website of Male Champions of Change. Yes, that’s their name. The Male Champions of Change describe themselves as proponents of a “disruptive strategy to accelerate the advancement of women in leadership and to achieve gender equality.” You may wonder why it is that a group of men calling on other men to adhere to existing laws prohibiting discrimination has been awarded the label champions. When women talk about sexual harassment, they are humourless feminists. When men form a club to talk about sexual harassment, they award themselves medals for their efforts. Sigh.

In any event, the Male Champions of Change released a report in 2019 in which they proclaimed, from their position on the winners’ podium, that “sexual harassment, in all its forms, is an abuse of power… [and] represents behaviours that are beneath the standards we expect from every one of us and across our organisations.” Here, the Champions nail it. At its core, sexual harassment is indeed an abuse of power. That power usually comes from and is strengthened by a man’s position in the workplace hierarchy. But it may also be the personal rather than institutional power, which comes simply from being male rather than female. That subtle form of power may derive from working in an environment where, no matter how hardworking or intelligent your female co-worker is, she can be brought down instantly by being described or judged by reference to her looks, and, despite her wishes, she can be talked about, touched and propositioned because she is a woman.

Should we bother trying to fix this? Yes, we must. One does not need to care about the hurt feelings of women or their position in society to know things have to change. Even if you care only about the bottom line, you will want to stamp it out. Sexual harassment represents a cost to Australian employers through lost productivity, sick leave, staff turnover, negative impact on workplace culture, low morale, diversion of resources associated with responding to complaints, litigation and workers’ compensation, and reputational damage. A report by Deloitte estimated that, in 2018, workplace sexual harassment cost the Australian economy approximately $2.6 billion in lost productivity and $900 million in other costs. •

This is an extract from Power & Consent, by Rachel Doyle, released this month by Monash University Publishing in its In the National Interest series.

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As befits a well-executed act of bastardry, there had been no warning. The Australian government, which had been negotiating with the Silicon Valley giant over the News Media and Digital Platforms Mandatory Bargaining Code, was caught by surprise, as were the platform’s users. Newsrooms that had built distribution strategies around Facebook-elicited clicks scrambled to regroup.

Less than a week later, just as suddenly, Facebook was back at the negotiating table. The point had been made, and the deal with the government, when it came, did little to reduce the impact of the company’s shock-and-awe response to Australia’s landmark media code. It was a tantrum that echoed around the world — exactly as it was designed to do.

On day one of the operation, local media had been quick to conclude that Facebook’s plan had backfired. The list of innocent bystanders caught in the crossfire was indeed impressive: community groups, the WWF and its save-the-koala campaign, the Bureau of Meteorology, ABC Kids, health authorities and, of course, the now much-derided North Shore Mums group.

For the Australian media, Facebook had reminded the world not only of its power but also of its scattergun approach to moderation, with the platform seemingly unable to differentiate between the Sydney Morning Herald and the Sydney Local Health District. The void left by news would be filled by anti-vaxxers, conspiracy theorists and whatever charlatan Facebook’s algorithm coughs up on any given day.

But the political ruckus was a small price to pay for the message that was sent to other jurisdictions around the world — Canada, Britain, India and France — where similar regulatory moves are being countenanced. At the drop of a hat, Facebook has the power to cut loose the local media businesses that have come to rely on the platform to distribute their content. News needs Facebook more than Facebook needs news.

Local media had every right to take umbrage — after all, the legislation to enshrine the media code hadn’t even been passed. What made it even more unexpected was the fact that Google, the other target of the proposed legislation, had started to play ball with both Australian and international publishers in a bid to avoid being forced to a negotiating table overseen by an independent arbitrator — a nightmare prospect for a big tech company.

Yet the outrage over Facebook’s Australian news purge overlooked the backdrop to the move. The News Media and Digital Platforms Mandatory Bargaining Code may well have been the boldest attempt anywhere in the world to force digital platforms to pay for journalism, but it’s not the first time Facebook has been on the receiving end of innovative regulation in Australia. Over the past few years, digital platforms have been clobbered by Australian laws and enforcement in ways that are simply unthinkable in other countries — and Facebook has been bearing the brunt of that.

Australia’s 2019 “abhorrent violent material” legislation is just one example of what the social media platform has had to endure. Under the law, Australian-based Facebook employees could be jailed for up to three years if the company fails to remove designated violent content in an “expeditious” manner. Facebook’s Australian boss, Will Easton, is reportedly not involved with the company’s local strategy, which is being guided by head office, yet he could still wind up behind bars if live-streamed content, such as the 2019 mass shootings in Christchurch, isn’t removed quickly enough to satisfy the vague wording of the legislation. Nobody accepting a job with Facebook’s Australian business would be unaware of what they are signing up to and no democratic country has comparable legislation in place.

This also suggests that Australian laws targeting platforms are part of a more complex global mosaic. In the United States, judges at both state and federal level already have Facebook in a headlock, with myriad allegations that the tech giant has violated antitrust or privacy laws. French lawmakers are pursuing objectives similar to those of Australia’s media code, albeit using copyright law; India is pushing back on the use of Facebook’s WhatsApp; and the European Commission, the EU’s regulator, has unfinished business with Facebook over its 2014 acquisition of WhatsApp.

Facebook knows that regulation is catching up with it, and it knows that Australia’s efforts to tamper with its business model had to be shut down quickly and ostentatiously, before other jurisdictions followed suit. The North Shore Mums got themselves caught up in what may prove to be the most significant regulatory tangle of the century.

If turnout is an indicator of success for a press conference, the Australian Competition and Consumer Commission’s 16 December effort was a flop. There was just one journalist in the house — a Sydney-based colleague of mine — to hear ACCC chairman Rod Sims announce a court action against Facebook, Facebook Israel and a Facebook-owned company called Onavo. Yet Sims’s words that day attracted the attention of business editors, and reports of the Federal Court of Australia lawsuit quickly bounced around the world.

The Onavo case is significant. The ACCC is tackling Facebook over data-privacy issues — something it has already done, twice, against Google, with one suit delving into what consumers did and didn’t know about Google’s Android operating system. But Australia’s 1988 privacy legislation, which is only now being overhauled, is a hopelessly inadequate tool for safeguarding the rights of people who use digital platforms. Penalties under the Privacy Act aren’t large enough to deter global tech giants, and the privacy enforcer, the Office of the Australian Information Commissioner, is overstretched and underfunded at the very time privacy challenges are mounting.

By contrast, Australia’s recently updated body of consumer laws — known collectively as the Australian Consumer Law, or ACL — places significant firepower and additional investigative tools in the hands of the comparatively well-resourced ACCC. Since 2018, the regulator has been able to ask courts to impose fines of up to $10 million per offence, or three times the value of the monetary benefit received by the company, or 10 per cent of the company’s global annual turnover — whichever of the three options is the largest. That 10 per cent penalty places Australia at the forefront of global privacy enforcement; even the EU’s groundbreaking General Data Protection Regulation, which came into effect in 2018, fixes penalties at a mere 4 per cent.

The ACCC knows that it has a lethal weapon at its disposal, and its lawsuits against Google and Facebook are likely to reveal the law’s efficacy as a deterrent. By contrast, the information commissioner has been relegated to more narrowly defined privacy cases, such as Facebook’s Cambridge Analytica data breach, which saw the usually unadventurous privacy watchdog file action in the Federal Court that mirrors what is unfolding in other jurisdictions — including Canada, where an almost identical lawsuit appears to be floundering.

But pursuing what are essentially privacy cases under consumer law requires lateral thinking. For example, the ACCC isn’t arguing that Google breached the privacy of users of its Android operating system by not informing them that their phones gather information about their whereabouts even after location-tracking settings have been disabled. The ACCC will instead argue that the search giant’s failure to inform Australian consumers of its data-gathering, storing and processing was a breach of its duties under consumer law. It’s about failing to protect consumers.

Which brings us back to Onavo, the Israeli company behind a free, downloadable software application offering a virtual private network, or VPN. Facebook acquired Onavo in 2013 — a deal driven by Onavo’s access to data that is now viewed as highly controversial.

Onavo’s app, called Onavo Protect, promised its users absolute privacy — it was the app’s key selling point. But the ACCC alleges that the company was in fact hoovering up data from its mobile users, and that the data ended up under Facebook’s control. In Sims’s words, “hundreds of thousands” of Australians were affected by Facebook’s alleged actions, none of them aware that their online habits were being monitored by the owner of their privacy-focused VPN. So great was the concern over Facebook’s relationship with Onavo, says the ACCC, that Apple and Google removed the product from their app stores.

While this lawsuit is unfolding in Australia, Facebook has been targeted by twin competition lawsuits filed by the Federal Trade Commission, one of the two competition regulators in the United States, and forty-eight state attorneys-general. The platform has been accused of extending its monopoly of social media through anticompetitive acquisitions — known as “killer” acquisitions — and of devising strategies to exclude its competitors.

The Onavo documents filed in the US case are likely to make an appearance in the ACCC’s local lawsuit because they reveal what US prosecutors will argue was an early-warning system to alert Facebook to current or future threats to its monopoly. Any evidence of users flocking to a particular software, for example, could be dealt with either through a pre-emptive acquisition or by finding other ways to defuse the threat, according to the complaint filed by the US states.

The ACCC is likely to stick to the straight and narrow of Australian Consumer Law by arguing that Australian users should have been informed that Facebook was making use of their data. But the competition law elements fed in from the United States will boost the Australian regulator’s understanding of how Facebook operates — an understanding now recognised as world-class following the landmark Digital Platforms Inquiry, the eighteen-month probe that ultimately led to the formulation of the media bargaining code.

The ACCC’s developing expertise in digital markets is arguably a bigger threat to Facebook than any single piece of legislation. That knowledge is permeating the regulator’s ongoing probe of digital advertising, which is being closely monitored by lawyers working on a lawsuit, filed in Texas by ten US states, taking on both Facebook and Google over their ad-tech practices.

Meanwhile, the ACCC’s growing scepticism about Facebook acquisitions of other technology companies, which are clearly designed to gain control of vast swathes of data, is now feeding into the regulator’s review of specific deals it is examining, including Google’s move on smartwatch maker Fitbit and Facebook’s completed play for Giphy, a company specialising in GIFs.

In fact, nothing illustrates the ACCC’s fear of Facebook’s control of data better than Facebook’s completed acquisition of Giphy, which is now subject to a behind-the-scenes investigation by the watchdog. Rod Sims doesn’t seem to believe that Facebook has any real interest in GIFs of Kanye West going from a smile to a frown or Oprah giving the camera her “I told you so” look; the tech giant simply wanted to get its hands on the data that changes hands every time you download something from Giphy.

Of even greater concern to the ACCC is the fact that every time you use a Giphy GIF on a rival platform, you are embedding Facebook’s data-gathering software — a kind of digital Trojan horse. “This would be right in the middle of their systems and it would help Facebook scrape the data of their rivals to see what their rivals are doing,” Sims told me recently.

Keen observers know that Australian home affairs minister Peter Dutton unliked Facebook years before the platform decided to purge news from its Australian feed.

In December 2018, federal parliament adopted the world’s first laws targeting encrypted messaging services, which allow law-enforcement agencies to demand access to decrypted messages — in other words, to build a “back door” into international encryption standards. The law’s top two targets were Facebook’s encrypted messaging service, WhatsApp, and Facebook Messenger. Not surprisingly, Facebook pushed back — but then, so did most Silicon Valley and Australian software companies. Scott Farquhar, co-founder of the Sydney-based software giant Atlassian, said the legislation amounted to “legislative creep” and warned that rules earmarked for serious crimes and terrorism may ultimately be used to prosecute traffic offences.

Dutton bristled at the criticism and used a National Press Club of Australia speech in 2018 to accuse American tech giants of dodging taxes and complaining about assisting authorities in democracies while cosying up to dictatorships in “grown markets” — by which he presumably meant China. Two years later, Dutton returned to the theme and singled out Facebook, saying that its plans to provide end-to-end encryption for its Messenger service would create a platform for child abuse. “Facebook would not allow in their workplace the abuse of women or children and yet they provide a platform that enables perpetrators to carry out that very activity,” Dutton said, no doubt knowing that once you’ve accused your adversaries of supporting paedophiles they’re unlikely to return your calls.

For Australian police forces and spy agencies grappling with money laundering and terrorism, access to encrypted messages was an important win. They argued that a key to unlock encrypted messages is now an essential part of their investigative toolbox, just as law-enforcement agencies could tap the phones of suspects in more innocent, pre-digital times.

For Facebook, though, the encryption laws were a disaster. By building a back door into its global encryption, said the company, Australia was paving the way for global criminal syndicates that are looking for weaknesses in secure communication. “Cybersecurity experts have repeatedly proven that when you weaken any part of an encrypted system, you weaken it for everyone,” a Facebook spokesperson said when the legislation was being reviewed in 2019. “The ‘backdoor’ access you are demanding for law enforcement would be a gift to criminals, hackers and repressive regimes, creating a way for them to enter our systems and leaving every person on our platforms more vulnerable to real-life harm.”

It’s not that these arguments fell on deaf ears — it’s more that the Australian government treated them with contempt. Since the MV Tampa entered Australian waters in 2001, the country’s centre-right coalition has staked its reputation on national sovereignty — or, at least, its understanding of national sovereignty. It was never going to accept arguments that it had a global responsibility to maintain the integrity of encrypted messaging services at the expense of national priorities. It argued that its responsibility was towards the people that live within Australia’s borders; the suggestion that it couldn’t apply local regulation to technology companies doing business here was never going to fly.

The 2019 legislation on abhorrent violent content, rushed through parliament in under a week, raised the same global concerns. The Coalition government dismissed them just as quickly. Facebook argues that its global operations mean that its Australian staff can’t be held responsible for, say, a piece of extreme terrorist content uploaded in Kazakhstan by someone with no links to Australia. The prospect of local Facebook employees ending up in jail if the company failed to act quickly to remove extreme violent content was at odds with the global nature of the internet, Facebook said.

This time, it was attorney-general Christian Porter’s turn to ridicule the suggestion that the government didn’t have the right to regulate what was appearing on Australian screens. If television stations were to broadcast extreme terrorist content, they would lose their licence — why should Facebook be any different?

That debate set the tone for the Australian government’s current interactions with Facebook. In April 2019, Porter said that discussions with the tech giant had convinced him that the social media platform had “no recognition of the need for them to act urgently to protect their own users from the horror of the live streaming” of the Christchurch massacre.

What had become clear then and remains clear today is that Facebook knows it’s on a hiding to nothing in Australia. The platform has zero friends among lawmakers and is treated with outright suspicion by a competition watchdog that reckons it understands the platform’s business model better than enforcers in other parts of the world. Meanwhile, time and time again, the Australian government has pushed for policy designed to hurt Facebook while mocking suggestions that a global platform was somehow out of the reach of local laws.

If Mark Zuckerberg does eventually decide that the time has come to turn his back on Australian news, it shouldn’t come as a surprise. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Winning the battle, still fighting the war appeared first on Inside Story.

“Confirming my letter of 28th November re your Governments [sic] lack of respect of the laws not only on my people but also on people of your own country…” wrote Leonard, “it is my official responsibility to declare that a state of war now exists between our respective countries and diplomatic relations are at this time now severed.”

With a permanent population of fewer than twenty, no standing army, and its territory entirely enclosed by the state of Western Australia, Leonard’s seventy-five square kilometre principality was unprepared for war. Two days later, a second telegram informed Kerr “that the state of war between our countries has now ceased.”

The governor-general responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his (inaccurate) reading of the 1949 Geneva Conventions, a nation should show full respect to a nation it has failed to defeat in war. The principality was undefeated, so Australia must recognise its sovereignty.

The Principality of Hutt River had emerged six years earlier from a dispute over a wheat harvest. In 1969, Casley was preparing to harvest around 6000 acres of wheat on his property at Yallabatharra, about 500 kilometres north of Perth. Concerns about an oversupply had led the state’s Wheat Board to issue quotas, though, so Casley was only allowed to sell one hundred acres worth of wheat. When his complaints to the governor, the premier and the Wheat Board fell on deaf ears, he took radical action.

On 21 April 1970, Casley served a formal notice of secession to the Australian government, contending that the Magna Carta permits individuals threatened with loss of economic livelihood to form a “self-preservation government.” After observing what he considered a legally required two-year notice period, Casley declared the new nation on 21 April 1972, investing himself as His Royal Highness Prince Leonard I of Hutt.

No such right exists under the Magna Carta, and Australia never recognised the sovereignty of the Principality of Hutt River. But Casley’s move reveals how a combination of frustration with regulation and anxiety over the ability to secure a safe and prosperous life for one’s family can set people on a curious path. Some, like Prince Leonard, try to create their own micronation. Others might become sovereign citizens.

Generally led by committed and eccentric individuals, micronations lack a legal basis yet mimic the actions of nation-states. They draft constitutions, issue coins, print stamps, adopt national anthems and invest their leaders with royal titles. Sometimes they even declare war on sovereign states. They reflect their founders’ quirks, passions and desire for attention.

Some are speculative experiments in statehood — utopian examples of how nations could or should be organised. Others are established in university dorm rooms for personal entertainment. Where a town or small community supports the idea, micronationalism can even promote tourism and deliver an economic boost. What better way to attract visitors to your city than by hosting independence celebrations?

Micronations can be established for specific political reasons. The Gay and Lesbian Kingdom of the Coral Sea Islands was founded in 2004 in protest at Australian legislation banning same-sex marriage. Emperor Dale Anderson sailed to the uninhabited Pacific island of Cato, east of the Great Barrier Reef, planted a flag, issued a declaration of independence and laid a memorial plaque. As he explained, statehood might allow LGBTQI people access to an international court in order to “give gay people a voice on the international stage.” The kingdom dissolved in 2017 following the passing of Australia’s marriage-equality legislation.

More often, micronations emerge from a dispute with local government. The Principality of Wy, in the North Sydney suburb of Mosman, owes its existence to an eleven-year dispute with the council over the construction of a driveway. It came into being in November 2004 when Prince Paul, dressed in full regalia at a ceremony at Mosman Town Hall, presented a declaration of independence to the mayor of Mosman. Although a change in the local environment plan in 2012 facilitated the construction of the driveway, Prince Paul maintains the principality “as a beacon of hope to all those oppressed by bureaucracy.”

Light-hearted acts of resistance can take on a momentum of their own. In 1989, when the boundaries of New Zealand’s regional councils were redrawn, the revised maps moved the forty-person township of Whangamōmona from the Taranaki Region into the Manawatu-Wanganui Region.

Upset about potentially having to play rugby for their rivals, residents decided to secede from New Zealand. Initially their declaration of a republic, on 1 November 1989, was a symbolic act aimed at drawing political and media attention to their concerns through humour. But their motivation has shifted over time. Republic Day is now commemorated biennially in January, attracting thousands of visitors. Revealing the spirit in which secession was undertaken, elected presidents have included a goat and a poodle. Like all democratic elections, controversy is never far from the surface, with some residents speculating that Billy Gumboot (the goat) secured victory only after eating his opponent’s ballots.

All nations need territory. Because most land is already claimed, micronations must look further afield — some even as far as Antarctica. The Grand Duchy of Westarctica asserts its sovereignty on the basis of a supposed loophole in the Antarctic Treaty. As Grand Duke Travis McHenry explains, while the treaty precludes nations from making territorial claims, it doesn’t prohibit claims made by individuals.

Discovering that Marie Byrd Land, an uninhabited 1.6 million square kilometre parcel of land between the Ross Ice Shelf and the Ross Sea had not been claimed by any state, McHenry claimed it for himself, and then established a state to rule over the land. Although McHenry has written to each of the twelve original signatories of the Antarctic Treaty announcing his formal claim, he has never received a response.

McHenry’s approach is common among micronations. Although their independence has no legal basis, they seek the appearance of lawfulness. Instead of unilaterally declaring independence, they claim to draw on a range of legal documents to make their case. They inform government officials, foreign states and even the United Nations of their actions, which they justify under their (incorrect) interpretations of domestic and international law.

In contrast to true secessionist movements, micronations are generally considered trivial. This may be because a micronation lacks a foundation in domestic and international law for its claim to independence. It may also be because micronations don’t generally pose a security threat.

Sovereign citizens are a different story. This movement, made up of loose groups of individuals, shares an antagonism towards government and a convoluted and conspiratorial interpretation of the law. Estimated to number around 300,000 people in the United States alone, the movement emerged in the 1990s out of the far-right militia movement. It gained increasing attention during the global financial crisis and the Covid-19 pandemic.

Understanding the precise beliefs of sovereign citizens is difficult. They have no leader or single set of views, and most adherents draw their information from YouTube videos. Nonetheless, they all believe that governments, including Australia’s, are illegitimate corporations.

Sovereign citizens believe that the Magna Carta, the UN Declaration of Human Rights and other legal instruments grant people a right to choose not to accept government authority. By using particular words or phrases drawn from these documents, people can signal that they do not consent to the law and can’t be required to pay fines, carry a driver’s licence or, during the pandemic, wear masks.

Their arguments obviously don’t stand up legally. As Justice James Judd of the Supreme Court of Victoria noted in a 2012 case, claims by sovereign citizens are often “comprised of random, almost incomprehensible, statements, propositions, quotations, argument and references to other material… lifted from other documents and randomly pasted into the pleading.” No claim of this type has ever been upheld in a state-recognised court.

In some ways, sovereign citizens appear similar to the proponents of micronations. Although both misread and misunderstand the law, they try to base their claims in law, relying on selective and spurious readings of legal texts to contest state authority and assert their own claims. But they also differ in important respects.

First, sovereign citizens challenge state authority without trying to secede and establish their own country. Their aim is to free themselves from taxation, licensing or government regulation of any sort. They have no desire to design flags or compose national anthems.

Second, their historical connections with far-right militia groups in the United States mean that sovereign citizens can be dangerous and confrontational. The FBI has characterised sovereign citizens as “anti-government extremists” and classified the movement as a “domestic terrorist threat.”

Most infamously, sovereign citizen Terry Nichols was convicted of conspiring with Timothy McVeigh in the planning and preparation of the truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995, which claimed the lives of 168 people. In 2018, the Southern Poverty Law Center noted that at least six law enforcement officers had been murdered by sovereign citizens since 2005.

There is no record of a sovereign citizen’s killing anyone in Australia. In 2015, though, NSW police reported that sovereign citizens had made several violent threats; the movement, they concluded, was a potential terrorism threat. Last year a Victorian police officer was assaulted by a sovereign citizen who had refused to wear a mask.

Just this week, reports emerged that sovereign citizens were seeking to build electoral support among Indigenous communities in Western Australia and the Northern Territory. Perhaps that push arises from a mistaken view that Indigenous communities are micronations — a view that might have been reinforced when members of the Yidindji nation, led by Murrumu Walubara Yidindji, renounced their legal ties to Australia in 2014 and announced the formation of the Sovereign Yidindji Government, a nation that “already existed” but Australia “failed to notice.”

The Yidindji nation operates under Yidindji tribal law around Cairns in Queensland. It produces its own identity documents, including driver’s licences and licence plates, and is considering establishing its own passports and currency. At times, Murrumu has faced complications travelling with Yidindji documentation on lands claimed by Australia.

Australia doesn’t recognise the Sovereign Yidindji Government, but that doesn’t mean it is a micronation. Indigenous nations do much more than perform or mimic acts of sovereignty. Their claim to sovereignty is much more deeply rooted, and is accepted in international law and in countries like the United States, Canada and Aotearoa New Zealand. Even if Australian law doesn’t recognise their inherent sovereignty, their claim is very different from that of micronations.

Although the Australian government closely monitors sovereign citizens, it generally leaves micronations alone — provided they follow the ordinary laws of the land. The Principality of Hutt River, for example, survived as what National Geographic called “the second largest country in Australia” for fifty years through creative means. Although it paid council rates each year, Casley considered that to be foreign aid.

Hutt River was not able to avoid the taxman forever, though. Despite protestations, Australian courts have repeatedly described the province’s argument that it isn’t part of Australia, and isn’t subject to Australian tax laws, as “fatuous, frivolous and vexatious” or, more bluntly, “gobbledygook.” As Justice Le Miere of the WA Supreme Court noted in 2017, “Anyone can declare themselves a sovereign in their own home but they cannot ignore the laws of Australia or not pay tax.”

After fifty years, with financial challenges becoming overwhelming, the Principality of Hutt River is coming to an end. It closed its borders and public offices in January 2020, citing declining agricultural revenue, falling tourist numbers and the increasing costs involved in running a small country. Following Prince Leonard’s death in 2019, his youngest son, Prince Graeme, decided to sell the farm to pay a $3 million tax bill. It seems that even micronations can’t avoid those two certainties in life: death and taxes. •

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The Brereton inquiry was conducted in such secrecy that even its terms of reference aren’t public. But a recent Parliamentary Research Service report spells out how events unfolded after media outlets began publishing allegations of serious misconduct in Afghanistan more than a decade ago. The key date is 2015, when special operations commander Jeff Sengelman responded to rumours and internal accounts of misconduct by commissioning Canberra-based sociologist Samantha Crompvoets to examine “special operations command culture interactions.” It became clear that “a culture of impunity… may have normalised allegedly disturbing behaviour” (in the words of the Sydney Morning Herald) and that serious governance and behavioural lapses had occurred.

Sengelman forwarded those findings to the chief of army, Angus Campbell, in early 2016, and Campbell asked the inspector-general of the Australian Defence Force to ascertain whether the allegations had any substance. Sometime after that, the inspector-general appointed Brereton, a justice of the NSW Court of Appeal, to inquire into the matter.

Given that this all looks somewhat like the ADF investigating itself — and doing it in great (if understandable) secrecy — it is reasonable to ask how independent this inquiry really is. The answer: very independent. The inspector-general is a statutory position established outside the chain of command to monitor the health of the military justice system and, where necessary, conduct inquiries into matters concerning the defence force. The inspector-general may in turn appoint an assistant inspector-general, who is a judicial officer. Such appointees (of whom Justice Brereton is one) are not bound by the rules that apply to other inquiries by the inspector-general; they are required to conduct their inquiry in a manner they consider appropriate “having regard to the subject matter of the inquiry.”

In plain English, Justice Brereton, operating as part of a system that sits outside the normal chain of command, is not only free to investigate as he thinks fit but also required to do so. No one may give him directions.

Justice Brereton’s findings are disturbing, to say the least. Earlier this year, the inspector-general revealed that fifty-five separate potential breaches of the laws of armed conflict had been identified as having been committed by Australia’s Special Operations Task Group in the period 2005–16. The inspector-general noted that the inquiry had focused not on decisions made during the “heat of battle” but on the treatment of individuals who were clearly non-combatants or were no longer combatants.

We can take some comfort from the fact that this appalling behaviour came to light as a result of appropriate action both at the front line and at the highest level of command. Fellow members of the Special Operations Task Group brought the incidents to light, the commander of special operations commissioned the Crompvoets report and handed it to the chief of army, and the chief of army referred it to the inspector-general, who appointed Justice Brereton to investigate.

It is important to note that the Brereton inquiry is an administrative process rather than a criminal investigation. It is intended not only to ascertain whether misconduct has occurred but also to exonerate those who may be affected by unsubstantiated rumours and allegations. It will be for the newly created Office of the Special Investigator, operating within the home affairs department and leveraging the powers of the Australian Federal Police, to decide how and when to deal with the recommended criminal prosecutions, and perhaps the military justice system will play a role in considering military sanctions.

No doubt the defence department and the military hierarchy will also need to determine why the issue came to Sengelman’s notice only via rumours and media reports rather than up the chain of command. Who, between the frontline soldier and Sengelman, knew what about this behaviour, when did they know it, and what did they do about it? What leadership failures occurred at those intermediate levels?

There are suggestions that some frontline soldiers became almost untouchable because of the “old hand” status they had acquired from repeated deployments — and perhaps too many deployments is itself part of the problem. Perhaps, also, decades of concealing special operations members from public view may have been misconstrued by some insiders as an indication that they were immune to scrutiny. We know that Justice Brereton’s inquiry examined the organisational, operational and cultural environment that may have enabled the alleged breaches, and it will be surprising if he does not have a lot to say about them.

What will probably get less attention, because it will be beyond the scope of the inquiry, is the light that these dreadful incidents, and others revealed in the ABC’s 2017 series The Afghan Files, sheds on the nightmare that military conflict of this kind visits on the civilian population we are supposedly trying to help. Innocent people in the contested zones come under threat both from the indigenous insurgents — the Taliban — and heavily armed special forces able to descend on them from the sky at any moment. No matter how diligently the invading forces concentrate on individuals assessed as high-value targets, innocent civilians will be killed, either because they are unlucky enough to be in the wrong place at the wrong time or because a highly trained soldier had to make a split-second decision in the heat of battle — a decision on which his own life may depend — about whether a person in his field of fire represented a risk. We now know that some who are killed are either non-combatants or are no longer combatants.

According to the ABC report on next week’s release, senior army figures estimate that Australian personnel killed more than 5000 individuals during the Afghanistan deployment. Most were suspected Taliban fighters, but numerous of them were innocent civilians. The UN Assistance Mission in Afghanistan reports that 1282 civilians, including 340 children, were killed during the fighting in Afghanistan in the first half of 2020. While anti-government elements were responsible for more than half of those deaths, pro-government forces killed more children, mainly with airstrikes and indirect fire during ground engagements. Children and women continue to be disproportionately affected by the violence.

The humanitarian cost of these military engagements is one factor that should be explicitly weighed up when we contemplate participating in foreign military conflicts. So too is the damage to our own military personnel. It is not good enough to go along with US-initiated military action simply to show that we are “a good ally,” and nor should we hang around year after year, long after the endeavour has become a lost cause, simply because our ally would prefer to sustain operations at some level rather than admit defeat. Apart from the continuing impact on the civilian population, how can morale and a sense of purpose hold up in the absence of a plausible strategy for winning? Does killing supposed adversaries become an end in itself?

The place to consider and debate these costs before committing to military action, and to take account of the financial and opportunity costs of tying up defence forces far from our shores, is our national parliament. It is to be hoped that we will make no future commitments to military action — apart from emergency decisions for the direct defence of Australia — without a parliamentary resolution emerging from a fully informed debate.

Finally, knowing what we know now, it would be a good time for the government to consider dropping the charges against David McBride, the man at the heart of the leak that prompted the ABC’s The Afghan Files and led to the AFP raids on the ABC offices. McBride faces charges of theft of Commonwealth property, breaching the Defence Act and unauthorised disclosure of information. He says he tried to push the story internally before going to the federal police and the media; surely it is time to lay off the messenger and concentrate on the message. •

The post Weighing the costs of war appeared first on Inside Story.

It was a striking demonstration of the themes examined by Amanda Laugesen, director of the Australian National Dictionary Centre, in her new book, Rooted. The barrister’s language was too formal for his client’s comfort; the man was expressing his anxiety about his son with all the intensity that taboo language can provide; and I was a respectable matron who must be shielded from these words no matter how intrusive my interest. Class, education, ethnicity and gender were all in the mix. Yet it also seemed that bad language was essential to the urgency and emotion of the situation.

Rooted takes on the challenging task of speculating about the spoken language of the past. Using the written evidence, it traces the history of bad language in Australia from the beginning of European settlement, when the profanities used by the convicts shocked many early observers of the new colony. As the free settlement grew, so did the desire for respectability and concern about public language. But in the pastoral districts, bullockies were becoming notorious for the blasphemy they claimed was necessary to control their animals.

Laugesen’s narrative follows the broad changes that came with the growth of urban populations after 1880 and the development of larrikin language in the cities. When the first world war sent thousands of Australian soldiers to Europe, middle-class officers and English people they encountered were horrified by their easy use of “bloody, bugger and bastard.” The diggers’ magazines exploited the comic potential of these words, although they were also, as Laugesen notes, an expression of the fears of those facing death or injury.

Laugesen goes on to consider the attempts to control bad language from the 1920s onwards, particularly in print, and the restrictive censorship of literary writing in Australia right up to the 1980s when, as she puts it, bad language was “liberated.” She then looks at how new digital technologies have disseminated slang and obscenity in recent decades, encouraging a loosening of restrictions on dialogue in film and television.

Drawing on journalism, court reports and literary writing, Rooted provides a concise history of how certain offensive words and phrases have been used over time. Laugesen expertly synthesises a wide range of research into the place of bad language in Australian social history, tracing progress from a restrictive and snobbish puritanism to the “liberation” of offensive language.

Several of the historians cited by Laugesen argue that Australian bad language has been used to challenge authority, whether of British masters (in the case of the convicts), white bosses (Aboriginal people) or the patriarchy (women since the 1960s). In the nineteenth century this transgression was principally expressed in blasphemy, a cursing against the sacred in an age when religious belief was widespread. Even euphemisms that now seem innocuous — “bloody,” “gosh,” “gee whiz,” “crikey,” “hell” — carried a frisson of defiance of God. Nowadays, even children use them with little awareness of their origin. But they may still be used to indicate some sense of group solidarity and a resistance to respectability, as when senator Jacqui Lambie recently expressed concern for “the poor bloody students” facing increased university fees.

Blasphemy is one thing; sex and other basic physical acts are another. Over the past seventy years, censorship has focused on sexual words in publishing or broadcasting, and particularly the use of “fuck” and “cunt,” though the language of bodily excretion also has popular currency. As Laugesen explains, the literary censorship of the past was as much about the depiction of sexual acts as it was about the words that describe them in vulgar speech. To my mind, this makes the fiction writers more interesting than nineteenth-century court reports of specific word usage. Laugesen mentions Marcus Clarke’s His Natural Life but not that his name became a euphemism for sodomy. She refers briefly to Joseph Furphy’s inventive substitutions in Such Is Life without appreciating his ingenious attempts to say the unprintable as a challenge to the limits of the novel form.

Rooted surveys the most notorious literary censorship cases from the second world war to the 1970s, from Lawson Glassop’s We Were the Rats, Robert Close’s Love Me Sailor and Sumner Locke Elliot’s Rusty Bugles to Alex Buzo’s Norm and Ahmed and the Oz magazine trials. It considers the role of They’re a Weird Mob and the Bazza Mackenzie films in promoting the idea that bad language is an Australian tradition. In this way, Laugesen argues that the use of blasphemy and obscenity are essential Australian freedoms of expression, almost always used in the service of transgression rather than of power, though this view of bad language may conflict with many people’s experience of its use by powerful groups to exclude and intimidate.

Laugesen is at her most original and insightful in the final section of the book, which examines the present proliferation of public obscenity. Here she uses evidence from television and the informal world of social media to measure the shifts in what constitutes offence. She cites the infamous moment on the sixth series of the reality TV show Married at First Sight when Bronson referred to his assigned wife, Ines, as a “cunt.” With scholarly detachment, she summarises responses to the incident, including the journalist James Weir’s playful account of the episode using “cantaloupe” as a substitute. Yet, even here, the context was more interesting than the word. It was clear that Bronson used it habitually, with little sense that it would cause offence. At this moment, the series reached its lowest point, with the “experts” revealed as hypocrites pretending to be superior to the vulgarities of the show they presented.

The masses of spoken-language evidence now available through social media and reality TV may well overwhelm the dictionary-makers of the future, but Laugesen responds with liveliness to this proliferation of evidence. Though she remains cautious about racial terms, she does acknowledge that there may be a link between verbal and physical abuse.

While I was writing this review, Van Badham posted her observation that “fugly slut” was a term of abuse that every woman who makes a public statement online would find among the comments of trolls. For relief from this nastiness, I hope that researchers at the Australian National Dictionary Centre allow themselves some episodes of Gogglebox, in which earthy jokes and innuendo are supplemented by many cries of “Oh my God!” and convivial, beeped “fucks” as families demonstrate that it’s not so much the words themselves that matter but their comic potential and the speaker’s awareness of who is listening. •

The post On the offensive appeared first on Inside Story.

The scandal was manna from heaven for Australia’s top-end-of-town corporates, who frequently use the business media to voice their disapproval of all things ASIC. In the space of a few days, the regulator was criticised for being dysfunctionally managed, having a poor organisational culture, adopting an excessively theoretical approach, being inclined to regulatory overreach, failing to contribute positively to the Australian economy and having a poor enforcement record — the latter evidenced by what the Australian Financial Review’s Karen Maley describes as a “humiliating” string of recent losses.

John Farrar, an emeritus professor of corporations law, describes the Corporations Act 2001, the principal statute administered by ASIC, as “unlovely and unloved.” If the Corporations Act is unloved, ASIC is its whipping boy.

But what is it about ASIC that draws such heated criticism? And what motivations lie behind headlines calling on the treasurer to “take the axe” to the regulator? Passions don’t run nearly as high when other regulators — AUSTRAC or the ACCC, for instance — are in the frame. AUSTRAC, Australia’s money laundering and counterterrorism finance regulator, is considered Australia’s most feared regulator, thanks largely to its success in two cases against the Commonwealth Bank of Australia and Westpac Banking Group Ltd. The ACCC, Australia’s competition watchdog, is known as the “can-do” regulator, trusted and supported by business and government to get the job done, despite a mixed enforcement record. It has lost three major cases — against telecommunications company TPG (on appeal), Kimberly-Clark and Employsure — in 2020 alone.

Chief among the differences is the size of these regulators’ respective remits. AUSTRAC and ACCC have discrete regulatory responsibilities: financial crime in the case of AUSTRAC, anti-competitive behaviour and consumer law in the case of the ACCC. By comparison, ASIC has a smorgasbord of responsibilities, covering all aspects of corporate life including the responsibilities of directors, officers, auditors, liquidators and external administrators; share transactions including mergers and takeovers; the regulation of financial services, credit, and superannuation and managed funds; and overseeing parts of the banking executive accountability regime. ASIC’s vast regulated community takes in approximately 2.8 million companies, and data sources suggest that it also regulates more than 2.1 million directors, 3000 registered auditors, 6000 financial service licence holders, 500 superannuation funds and 11,000 managed funds.

ASIC’s objectives are equally ambitious. It must strive to facilitate and improve the performance of the financial system and the entities within it; reduce business costs; improve the efficiency of the economy; promote the confident and informed participation of investors and consumers in the financial system; receive, process and store company information and ensure it is available as soon as practicable for access by the public; and generally give effect to the laws it administers.

It is to the question of whether ASIC is achieving these objectives that the chorus of criticisms is addressed. In encouraging Treasury to “take the axe” to ASIC, the regulator’s opponents conveniently forget that the current government inquiry into ASIC concerns irregularities in its internal governance procedures, not the performance of its regulatory objectives. The Australian Law Reform Commission’s forthcoming three-year review of the legislative framework for corporations and financial services regulation is a more appropriate place for a serious consideration of the business community’s criticisms.

Much is made of the fact that ASIC lost two enforcement cases in 2020: one against Westpac under the responsible lending laws, known as the “wagyu and shiraz” case; and one against a former chair and a non-executive director of Tennis Australia, Stephen Healey and Harold Mitchell. These cases are the basis for the charge, by Karen Maley among others, that ASIC has suffered “humiliating” losses. Leaving aside the merits of the two actions, the accusation is both unfair and unreasonable. Two losses don’t an enforcement disaster make; ASIC’s enforcement successes merit equal mention. So far this year, it has logged wins against the NAB, Westpac, AMP, the Commonwealth Bank, MFS, OTC and Emmanuel and Julie Cassimatis, directors of Storm Financial. ASIC’s critics want only to discuss its failures.

The wagyu and shiraz case concerned the obligation of banks (in this case Westpac) to properly assess the ability of loan applicants to repay loans, after taking account of their actual living expenses. ASIC alleged that Westpac failed to carry out a proper assessment, relying instead on an automated process known as the Household Expenditure Measure, or HEM. At trial, Justice Perram found against ASIC, determining that Westpac hadn’t breached lending laws by relying on the HEM. Customers’ current living expenses weren’t an important indicator of whether they could afford the loan, he said, because those expenses could be cut if necessary to meet repayments. “I may eat wagyu beef every day washed down with the finest shiraz,” he said, “but, if I really want my new home, I can make do on much more modest fare.” ASIC lost the appeal against this judgement before the Full Federal Court, and after significant pressure from the federal government announced it would not seek special leave to appeal to the High Court.

The business media argues that ASIC tarnished its reputation by persisting with the case and failing to realise that the responsible lending laws were choking off credit to households and small business during a pandemic-induced recession. The Financial Review’s Jennifer Hewett contended that ASIC’s failure to read the government’s change of mood on this issue led to Treasury’s punishing ASIC for overreach by taking those laws from ASIC and handing them to the banking regulator, APRA.

That view fails to take account of ASIC’s role and objectives. Nowhere in its enabling statute is ASIC required to take account of Treasury’s “mood.” Its statutory role is to give effect to the laws it administers — which is exactly what it was doing in acting against Westpac, and then appealing the judgement, in order to clarify and make consistent the laws’ longer-term application.

No one would suggest that ASIC should only bring cases that it has a 100 per cent prospect of winning, though, as a model litigant with limited enforcement resources, it must of course act in the public interest and ensure that the cases it brings have reasonable prospects of success.

The critics are on firmer ground in relation to the Tennis Australia case, in which Justice Beach found that ASIC had committed confirmatory bias in the pleadings and evidence presented to the court. This criticism calls into question ASIC’s tendency to take a scattergun approach to enforcement, as evidenced by its court pleadings in the case. ASIC alleged forty-four grounds of director misconduct against Harold Mitchell and four against Stephen Healy; Justice Beach dismissed all the claims against Healy and found Mitchell committed three of the alleged breaches.

The mind-numbing length and particularity of ASIC’s court pleadings against Mitchell raises questions ASIC is no doubt already asking itself. Was bringing such a detailed case wise, or should it have gone ahead only with claims it could defend with a high degree of confidence?

Again, though, vital facts got lost in the media commentary. ASIC succeeded against Mitchell on grounds including the passing of confidential information to a party with whom Tennis Australia was negotiating an extension of broadcast rights. At no point has the business media paused to reflect on the significance of that finding and the impact that it should have on Mitchell’s career as an ASX director — a career that continues without criticism or demur from the voices that slammed ASIC for bringing the action against him.

Underlying the criticisms of ASIC’s enforcement record is a deeper concern in corporate Australia about ASIC’s mode of doing business in the wake of the 2018 banking royal commission. In his final report, commissioner Kenneth Hayne criticised ASIC’s well-established practice of using regulatory settlements known as enforceable undertakings rather than taking matters to court. These settlements led to cosy backroom deals between the regulated and the regulator, he said, encouraging the view that non-compliance with legal obligations was a cost of doing business that could be resolved without an admission of liability. On Hayne’s recommendation, ASIC adopted the “Why not litigate?” approach that is causing business and its media sympathisers so much heartache. It will still accept regulatory settlements but in far rarer circumstances than previously.

With this new approach, the cooperative mode of regulation favoured by corporate Australia changed overnight — not just in enforcement but across all interactions between ASIC and its regulated community. ASIC has the statutory right to exempt, vary or modify the strict application of the law in many circumstances, so long as it can show that its grounds for flexibility are appropriate. Dealings based on cooperation and consensus suddenly became much harder in the post-Hayne era of increased court action by ASIC. At the back of the regulated party’s mind was the bubbling suspicion that what is said or done during a negotiation with ASIC could end up being used in enforcement proceedings.

Corporate Australia would like to see ASIC abandon its singular focus on court-based enforcement. But that would be far from simple. Following on from the banking royal commission, the federal government allocated an additional $400 million to ASIC to enable it to bring the very type of enforcement cases it has recently pursued. The government also passed laws that significantly increased the civil penalties and criminal sanctions attaching to contraventions of the Corporations Act. ASIC took the government at its word, appointing Daniel Crennan QC as head of enforcement and launching a raft of investigations and court cases from the findings of the royal commission.

Almost two years later, the headlines focus on ASIC’s failings and failures, not on its wins or its valiant efforts to resurrect its reputation in the wake of the royal commission. How well the regulator discharges its statutory functions or exercises its powers has simply no part in the current review of ASIC’s governance and accountability. Any shift back would also be premature. Commissioner Hayne recommended that ASIC and APRA should be the subject of quadrennial capability reviews, and ASIC is not even halfway through the first four-year pre-review period. It should be given a chance to do its work without a constant mood of crisis, especially when that crisis seems to be entirely generated by questionable self-interest. •

The post Follow the money appeared first on Inside Story.

The contrast with the confirmation of Justice Amy Coney Barrett, less than twenty-four hours earlier, couldn’t be greater. There was no media bombardment, no political circus, no sequence of public hearings. But nor was there any real certainty about when an announcement was to be made, let alone who would be appointed. Until Porter appeared just before noon on Wednesday, we existed in an information vacuum.

Now we knew: Jacqueline Gleeson and Simon Steward — both in their early fifties and both considered “safe” appointments — were to be elevated from the Federal Court to the High Court. And while the Australian legal community has since been widely supportive of these appointments — both had been mooted as possible candidates — the appointment process itself has caused growing discomfort.

Meet the judges

Justice Simon Steward graduated from the University of Melbourne Law School in 1991, and went on to complete a Master of Laws at the same university with a thesis on the “Constitutional Limitation of Taxation Powers.” His expertise in tax has been a defining feature of his legal practice: he was called to the bar in 1999, took silk in 2009, and was recognised as the leading barrister in tax law in 2015.

Steward has a reputation as a ferocious reader with an encyclopaedic knowledge of history. He is an avid collector of antiques and fine art, and a talented painter himself. Family legend tells of a twelve-year-old Simon visiting Melbourne with his father, looking up at the towering Supreme Court of Victoria — which was also the High Court building in those days — and exclaiming, “This is where I want to be.” Justice Steward will now fulfil this dream.

Given that he was only appointed to the Federal Court in 2018, however, he has had little time yet to establish himself as a jurist. While considered a favourite among legal conservatives who espouse a “black-letter” approach to the law, his limited track record makes it hard to predict how he will evolve on the High Court.

Justice Jacqueline Gleeson was educated at the University of Sydney, where she completed a Bachelor of Arts in 1986, a Bachelor of Laws in 1989, and a Master of Laws in 2007 (focusing on administrative, regulatory and trade practices law). She was admitted to practice in 1989 and called to the bar in 1991. Her career has been more varied than Justice Steward’s and her public profile much higher. She was briefed on the Canberra bushfire litigation and represented Alan Jones at the cash-for-comment inquiry. She served as general counsel at the Australian Broadcasting Authority, and as a senior executive lawyer for the Australian government solicitor.

After returning to the bar in 2007, where she quickly established a stellar reputation, Justice Gleeson surprised few when she took silk in 2012. She was appointed to the Federal Court in 2014, and has since decided a number of cases that have captured attention, including the implied freedom of political communication case of Chief of the Defence Force v Gaynor.

As counsel, both of the new judges have appeared a handful of times in the High Court, but they remain best known in their home states. Their appointments are sound, if not spectacular. This is no criticism of them personally, but a reflection on their status as appointees early rather than later in their judicial careers. Neither judge has yet established themselves as a leading jurist of their generation — though they will now have the time and opportunity to do so on the High Court.

How they were appointed

Although the High Court of Australia is mandated by section 71 of the Constitution, both that document and subsequent legislation are conspicuously silent about the process to be followed in appointing judges. Section 72 of the Constitution states only that “the Justices of the High Court… shall be appointed by the Governor-General in Council.” In practice, this means that appointees are nominated by the prime minister following consideration by federal cabinet, with significant weight given to the recommendation of the attorney-general.

The only relevant qualifications are laid out in the High Court of Australia Act 1979, which requires appointees to have been either a judge of an Australian court or enrolled as a legal practitioner for at least five years in Australia.

The requirements for vetting or consulting are similarly scant: the federal attorney‑general is required merely to “consult” with his or her state counterparts. This happens in private, and need play no role in the final decision. In practice, a wider range of discussions will occur — with bar associations, law societies and so on — but the whole process occurs behind closed doors.

The result is that federal cabinet has a largely unfettered discretion to appoint almost any lawyer they want to the High Court. Nearly every aspect, including timing, candidates, relevant criteria and consultation process, is secret.

Fortunately, Australia has developed strong political conventions to augment this secretive process, and they have largely resulted in an apolitical bench populated by eminent judges. That tradition looks to be continued here. By all accounts, both Justice Steward and Justice Gleeson have brilliant legal minds, irreproachable characters, and incredible work ethics, all indications that once they find their feet they will enrich the bench.

Nevertheless, we should be feeling uncomfortable about the increasingly outdated process that put them there, and the hidden factors that contributed to their appointment.

Critiques, taboo and the “if it ain’t broke…” mentality

At this point, it is important to be very clear about two things.

First, what follows is in no way an attack on the quality, experience or integrity of the new appointments. My concern is with the general and systemic process, not particular outcomes.

Second, public discussion about the merits of these appointments and systemic problems in appointment processes are largely treated as taboo in the legal community. We don’t talk about such things in polite company. When the journalist Jan Fran revealed that 60 per cent of NSW Supreme Court judges went to one university (and 17 per cent to a single elite private school), for example, nobody from that jurisdiction — lawyer or academic — would go on the record to comment.

It is understandable that lawyers will hesitate to make observations that may be construed as critical of a judge they might later appear before as counsel. But it is vital that we don’t let such taboos blunt our honest and informed discussion about the operation of the judicial system.

We should be frankly and openly discussing the type of person who should be appointed to our highest court. Contrary to the perception that pretty well anyone at superior court level is suitable for the High Court, it is clear — both conceptually and empirically — that individual judges matter.

We need such conversations precisely because of the number of uncomfortable issues raised by judicial appointments. In too many ways, the current system no longer reflects community expectations.

A pro-federal bias? First comes the concern that one of the key questions raised in the vetting of potential judges is whether they are likely to favour federal over state interests. The controversial “aliens” case of Love v the Commonwealth earlier this year, where the court held that non-resident Aboriginal Australians could not be constitutional “aliens” subject to deportation, prompted calls from conservative quarters such as the Institute of Public Affairs to appoint more conservative, pro-Commonwealth judges — a call that led to a rare rebuke from the Judicial Conference of Australia. The University of NSW’s Andrew Lynch has observed that appointing High Court judges from the Federal Court is now a “dominant trend,” and it is not far-fetched to suggest that such a judge may be more sympathetic to federal, as opposed to state, rights.

The High Court is supposed to be the nation’s court, however, not the tool of the Commonwealth. We need to ensure this ideal is properly reflected in the appointment process.

What makes a good judge? Second, there seems to be no widely accepted concept of what qualities are desirable in a High Court judge. The broad consensus was that one of the latest appointments would be male and one female; that one would come from Victoria and one from New South Wales; and that both would be relatively conservative. And in the event all three predictions proved correct.

But these criteria are suspect. For example, the rare opportunity to appoint two women — creating a majority of female judges for the first time — doesn’t seem to have been seriously considered. And the prioritisation of the two biggest states, when neither a Tasmanian nor a South Australian has ever been appointed, continues to cause disquiet.

Perhaps most concerning, however, is the perception that juridical conservatism played a major part in the appointment. While both appointees are well respected, no one would suggest they are the most singularly eminent judges outside the High Court. Neither has yet had the opportunity to develop such a reputation. Reports have suggested that some “senior lawyers” are “privately critical of the government for not picking a ‘superior’ candidate,” and a number of state Supreme Court judges clearly have more experience and richer credentials.

Added to this are concerns about the institutional balance of the court. The retirement of Justice Virginia Bell leaves the court without any judge with significant criminal law experience. Given the number of criminal law cases in the court’s caseload, this absence is problematic. Justice Steward will bring tax expertise, but such cases are rare; Justice Gleeson brings a wide-ranging practice experience with a broad public law specialisation. Whether disciplinary expertise should be a consideration for appointment remains unresolved.

Both new appointees clearly have strong potential. The (genuine) question is whether that is the proper basis for appointment. Is it better to appoint judges early, with the time to develop on the bench? Or should we appoint more experienced judges who arrive with more immediate capacity but may not be there as long?

Are age limits distorting appointments? The concern about judges’ attributes feeds into a third issue: age limits and their potential to distort judicial appointments. After Justice McTiernan reluctantly retired in 1976 after forty-six years on the bench, a retirement age of seventy was added to the Constitution by referendum. While this prevents judges clinging to their judicial position into very old age, it potentially creates a structural incentive for politicians to appoint a “sympathetic” judge at a young age in an attempt to control the court’s agenda for many years.

Some uncomfortable evidence points to such a trend. While the median age for the last ten appointments is sixty years, the previous two appointees (Justices Gordon and Edelman) were fifty-one and forty-three respectively. At fifty-one and fifty-four, Justices Steward and Gleeson are at the lower end of the recent range.

On top of this, judges have increasingly tended to see out their full constitutional terms. Until the turn of the century, it remained common for judges to retire in their sixties, but since Mary Gaudron retired at sixty in 2003 no judge has retired early.

Not only does the appointment of younger judges appear to shape the composition for a long time — Justice Steward is not due to retire until 2039 — it also complicates any assessment of their career against more experienced judges.

Systemic reform may address this issue. If, for example, we replaced the retirement provision with a term limit — say ten years — we could see judges appointed in the very prime of their age and experience rather than because of their perceived potential.

What about perceptions of elitism? At this point, we enter deep taboo territory. For almost the very first thing anyone mentions about Justice Gleeson has nothing to do with her capacity but a lot to do with her lineage. “It is not really possible to appoint Justice Jacqueline Gleeson without noting she is the eldest daughter of [former High Court chief justice] Murray Gleeson; that places her in a rather unique position,” Christian Porter observed in announcing her appointment. “I am told that is a first in common law countries.”

Not only was Porter wrong about that uniqueness (Mary Finlay Geoghegan followed both her father and her husband onto the Irish Supreme Court), his words also raise the worrying issue of a lack of diversity at the elite level of the legal profession, as evidenced by a pattern of “judicial dynasties.” The appointment of the offspring of a former justice, who also happens to be a close friend of another, raises questions about the transparency of the process of selecting judges and, perhaps, concerns about diversity on the bench (beyond simply gender diversity).

A quick count identifies that nearly fifteen judges in Australian superior courts are sons or daughters of judges. Without belittling their individual achievements, that figure is highly suggestive of an entrenched equity problem. The “optics” of this matter, particularly given the dependence of the judicial role on public confidence and acceptance, creates an uncomfortable perception of a closed shop.

Added to this is the potential pressure on insiders not to rock the boat and thus undermine their chances of preferment. The legal story of the year has been the fall from grace of former High Court judge Dyson Heydon. One of the common complaints at the time was that Heydon’s reputation was an open secret but that few felt capable of speaking out. Where appointments disproportionately come from a small cohort of the legal elite, the risks of speaking out may be particularly high.

Reforms to create a more open appointment system may not only enhance the diversity and equity of judicial appointments, but also help make the legal profession itself more open, inclusive and fair.

The enduring temptations of politics: Finally, there remains an unsettling potential for naked political considerations to distort the judicial appointment process. The current model is highly dependent on political conventions regarding the appointment of judges on a largely apolitical basis.

Unfortunately, the past four years globally have shown just how brittle political conventions can be. Once conventions shatter, the social legitimacy of public institutions — including courts — can quickly evaporate. The politicisation of the US Supreme Court is a case in point, with appointments now becoming a matter of base politics.

In Australia we have recent experience of nakedly political judicial appointments. In 2014, Queensland premier Campbell Newman controversially appointed his friend, the wildly unqualified Tim Carmody, as chief justice of the Queensland Supreme Court. The crisis that ensued shook that great institution to its very core, and has been described as Australia’s “greatest judicial crisis.”

If such events were to be repeated at the national level, the damage would be infinitely worse. The reputation of the High Court could take a generation to recover.

A chance for reform

Fortunately there are well-accepted alternatives to the increasingly anachronistic and unduly secretive current appointment process.

Perhaps the most promising involves explicitly minimising the role of political interests by creating a more open and accountable commission to appoint judges. Britain’s Judicial Appointments Commission has been making lower court appointments for the past fifteen years. New appointments to the UK Supreme Court are recommended by a statutory selection committee to the Lord Chancellor, who has a limited capacity to accept, reject or ask the committee to reconsider.

This process has been stunningly successful, and has contributed to the high esteem the new Supreme Court has quickly established. The British model could easily be adapted for all Australia’s federal judicial appointments. Such reforms would bring our appointment process back in line with community expectations, and largely eliminate the concerns outlined above.

I wish Justice Steward and Justice Gleeson genuine congratulations on their appointment. But I hope we never again have to see the process play out in this way. We shouldn’t need to wait for another last-minute press conference with a surprise political announcement. We need a more open, accountable appointment system. •

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Berejiklian’s association with Daryl Maguire has been a ticking time bomb for the Independent Commission Against Corruption over the past three years. As the Financial Review’s Neil Chenoweth reports, investigators have known of the taped conversations between the pair since 2017, but the thought of destabilising yet another serving premier, having cost former premiers Nick Greiner and Barry O’Farrell their jobs, was enough to “bring them out in a cold sweat.”

Berejiklian’s obvious distress at the revelations drew some sympathetic first responders, who pointed to her strong record in steering through the bushfire crisis and then the pandemic. Transport minister Andrew Constance, interviewed on Seven’s Sunrise on Tuesday morning, reported a flood of messages from the community “saying she is too good to lose.” By Wednesday afternoon, the chorus on social media was swinging the other way.

It’s one of those situations in which guilt and innocence — and public opinion — become polarised and political alignments kick in to intensify the situation. And it’s supercharged by the NSW context: there’s no getting away from the fact that corruption has infected both sides of politics in that state. Anyone taking on the premiership, given how things played out in the era of Eddie Obeid, should surely be aware of how easily corruption can spread. Obeid may have been a superspreader, but the virus became cultural and systemic.

Because it carries the assumption of immunity, Berejiklian’s moral hubris puts her in a high-risk category. Even while she was in the throes of dealing with the Covid-19 lockdown, she seems to have been unaware of the need for distancing in other ways.

Her appearance before ICAC on 12 October began with a set of questions about conflict of interest posed by counsel assisting, Scott Robertson. The line of inquisition bore on Maguire’s position as parliamentary secretary — a tenure Berejiklian renewed when she became premier in January 2017 — in which his fundamental obligations included “not being in a position of conflict of interest.” It’s possible to have a conflict of interest without being corrupt, of course, but conflicts of this kind, kept secret, are what allow corruption to take hold and be transmitted. People who believe they hold to strong ethical standards may find they are not, after all, immune.

If the principle is poorly understood in the Australian political context, this is because it isn’t in the interests of parliamentarians to understand it. Some conflicts of interest may be purely technical, after all, which could make the rules of disclosure seem unreasonably constraining. Why pull out of a legitimate business activity, refuse a financial opportunity or break off a relationship when you are convinced you are doing nothing wrong — and the law itself would find it hard to prove any impropriety?

Since it is hard to hold anyone to account for conflict of interest alone, the embargo is almost impossible to enforce. It is only when the exploitation is flagrant that consequences are likely, and even then, they will be slow in coming, with ample opportunity to contest the case.

This is not to argue that Berejiklian gained any advantage from her relationship with Maguire. On the contrary. But although they may not cost her the premiership, the revelations have done permanent damage to her reputation.

Of equal or perhaps greater importance than the premier’s destiny is the future of ICAC itself. Sky News host Alan Jones has already been on the airwaves calling for the commission to be “on the rack” instead of the premier. The backlash will certainly intensify if Berejiklian is brought down, though the conduct of the inquiry displays no signs of “the cold sweat” Chenoweth alludes to. Robertson has been a model of calm and courtesy, patiently teasing out details and pressing on key points of admission with an insistence that is never aggressive or obviously adversarial.

Behind the skilfully structured lines of questioning lies a wealth of forensic evidence, gathered over months and years, and sorted and double-checked in preparation for a public hearing. Such work costs money, and requires legislative authorisation for effective forms of investigation to be pursued.

And that, ironically, requires the support of the governments who may be the target. As David Hardaker pointed out in Crikey on Wednesday, Berejiklian had a conflict of interest as the head of a government being urged to increase funding for ICAC even as it was investigating someone with whom she had an undisclosed relationship. Victorian Liberal MP Michael O’Brien has raised similar concerns about delays in the Independent Broad-based Anti-corruption Commission’s inquiry into the Victorian government’s handling of the pandemic. “It’s no surprise Daniel Andrews doesn’t want to fund this important integrity agency,” he says.

The American miniseries The Comey Rule offers important insights into the fraught relationship between governments and the institutions charged with responsibility for holding them to account. What has happened in the United States under Trump should be an urgent warning to other nations: democracies are less robust than we have come to assume. While Berejiklian is proclaiming her own uncompromising dedication to “the people of New South Wales,” the staff of ICAC, working invisibly in the background, may be the truer servants of the public good. •

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But during those years I often thought that, notwithstanding Victoria’s image of itself as Australia’s most progressive state — which was in many respects true — there was nonetheless an authoritarian streak in its governments. And the most obvious illustration was their penchant, whatever their political complexion, for using the police as an adjunct to the State Revenue Office.

Anyone who has driven in New South Wales will know that signs tell you where the speed cameras are — so much so that if you do get caught by one, you really deserve to be booked for driving without due care and attention, too, because it’s that obvious. The police there also take double points off drivers who get booked on long weekends or public holidays. That’s because they actually want you to slow down… and if you don’t, they want you off the road.

Victoria, by contrast, has a lot more “road safety devices” (as they call them, with a nod to Orwell) — no fewer than seven on a short stretch of the Craigieburn bypass, for example — but they don’t tell you where they are, and they don’t take double points for offences on long weekends or public holidays. They also create lots more opportunities to catch you by having frequent speed limit changes over relatively short distances as you arrive in or leave country towns. And that’s because they don’t want you off the road as much as they want your money.

So it’s no surprise to discover that over the five years 2014–19 (the half decade before the pandemic) Victoria collected an annual average of $120.96 per head by way of fines. The all-states-and-territories average over this period was $89.95, and the only other jurisdiction that collected more than the average was the Australian Capital Territory, on $92.51.

Put differently, the average for all states and territories other than Victoria was $79.30, which is $41.66, or 34 per cent, less than Victoria. The NSW figure was $76.96, and in Tasmania, where I live, the police actually give you a warning for a first offence rather than take money off you — which helps explain the state’s figure of only $37.57. And remember, fines are intrinsically regressive — they hit poor people harder than rich people by taking a bigger share of their income.

Source: State and territory budget papers; ABS population data; author’s calculations.

Victoria’s approach carried over into the pandemic. During the first lockdown, when all states and territories were imposing broadly similar restrictions, Victoria collected almost $6 million in fines for breaches of lockdown restrictions, $2.2 million more than every other state and territory put together. Per 100,000 people, Victoria collected $89.90. The average for all other states and territories was $20.10 per 100,000 people. New South Wales, which had the same risk profile as Victoria — with Sydney and Melbourne being the principal points of entry into Australia for foreign visitors and returning Australians — only collected $15.90 per 100,000 people.

Source: Tammy Mills, “Ahead on Penalties: Victoria Leads Nation on COVID-19 Lockdown Fines,” Age, 28 May 2020; ABS population data; author’s calculations.

Were Victorians really four and a half times more likely than other Australians to breach lockdown regulations? Did Victoria really have four and a half as many people, relative to its population, who saw themselves as sovereign citizens exercising their constitutional (or God-given) right to gather in large numbers in defiance of health advice? Or did Victoria impose bigger fines than any other state or territory, deploy more police in order to detect the necessary breaches, and “fine first and ask questions afterwards” to a much greater extent than any other state?

While it seems unarguable that the main reason for Victoria’s second wave was egregious failures in the management of hotel quarantine, I wouldn’t be at all surprised if the complacency that Dan Andrews detected among his fellow Victorians when the first lockdown regulations were eased wasn’t in some way a reflection of a sense of relief at getting out from under the most oppressive policing regime in the country.

And do you recall the Victorian government’s first action once it decided to lock down the twenty-eight public housing towers at the start of Victoria’s “second wave”? It was to send squads of police to surround the towers and fine anyone who might have been tempted to sneak in or out. It was left to volunteers to provide food and other essentials to the residents detained in those towers.

And when announcing the details of the renewed lockdown in early August, Dan Andrews openly bragged about the “opportunities” to impose “even bigger fines” on people who breached the new regulations. And of course this continued last week, when he proudly unveiled fines of $4957 (where do they come up with these numbers?) on people who attempt to breach the “ring of steel” between Melbourne and regional Victoria.

I’m not suggesting that laws or regulations imposed in the interests of people’s health shouldn’t be enforced, or that wilful or persistent breaches shouldn’t be penalised. But maybe, just maybe, there might be more effective methods than maximising the revenue gain to the state government.

The point is that Victoria’s heavy-handed, revenue-driven approach to enforcing lockdown regulations failed. It didn’t keep Victorians safe. The state government could have made different choices — not just about how it ran hotel quarantine, but also about how vigorously it policed lockdown restrictions, whether it instructed police to issue warnings for inadvertent or first-time breaches of lockdown regulations, the dollar amount of the fines it imposed, and so on. Other states, in particular New South Wales, made different choices — and also achieved much better outcomes. •

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My expectations were prompted by the description on the cover, presumably put there by the publisher’s marketing department, which promises “an unflinching exploration of the fault lines in our justice system” revealing “the devastating cost of getting it wrong.”

These words suggest that The Truth Hurts is yet another indictment of how criminal justice is carried out in this country. Instead, this is the work of a practitioner reviewing rather than castigating the performance of some aspects of the legal system, more particularly the practice of criminal law. The more I read, the more the book showed me how even an enlightened and inspired system of justice (inquisitorial, adversarial or otherwise) will always struggle to deliver Solomon-esque outcomes to victims, perpetrators and innocents alike, given the panoply of human wretchedness that presents before the courts every day.

Andrew Boe recognises this. He uses the analogy of a bushfire. We can have the best firefighting tools in the world, and the most dedicated firefighters, he says, but from time to time we will experience devastating bushfires that no amount of preparedness could prevent, and it then falls to us to deal with the aftermath.

Rather than being an indictment of the criminal law as it stands, the book is a reminder of the limitations of any system that endeavours to find the causal truth of an event and set things right thereafter. While reforms to the justice system over the past thirty years — including restorative justice conferencing, diversionary pathways, therapeutic practices and Aboriginal courts, to name but a few — do their best to ameliorate the pain, it can never be completely eliminated. If anything, one of the book’s key targets is those lawyers whose poor practices and sloppy attention to detail led to outcomes detrimental to their clients.

That doesn’t mean I don’t have some reservations about how Boe frames his account. Yes, the justice system can be “uneven” (Boe’s word) at times, but this doesn’t mean that it is “stuck in its outdated and flawed premises.” Readers need to appreciate that some of the anomalies he highlights did indeed exist when he began his legal practice but have since been reformed. For example, defence counsel no longer have the same latitude in cross-examining victims of sexual assaults, a point the author concedes. Again and again Boe points to the deprived backgrounds of those who come before the courts and points to the failed social policies that allowed them to slip between the cracks. We need to accept that there’s often not a lot that the law can do, ex post facto, about that.

In setting the scene for the story of his professional life, Boe describes in a most endearing way how his father and mother decided to flee with their five sons to Australia from Burma in 1969 to escape its military regime. He then writes affectionately of a teacher who trusted him and challenged him to better himself through education. That challenge ultimately placed him in a law school in Brisbane and, on graduation, embroiled him in the life of a criminal defence lawyer.

Thereafter the book takes the reader through a long but very readable succession of case narratives. Boe’s list of clients included the convicted serial killer Ivan Milat and the conservative politician Pauline Hanson (whom he later helped exonerate). Here we see how accused persons and their counsel must negotiate a maze of legal twists and turns, with Boe capitalising very effectively on his insider perspective. His explanation of the duty that lawyers owe the court as well as their clients is clear and important. All law students would appreciate his elucidation of the cab-rank rule, the importance of the doctrine of precedent, the process of charge bargaining, and how jury selection works.

Moreover, Boe outlines the relationship between the barristers in their respective chambers, between defence and prosecution counsel, and between clients and their legal representatives. Of particular interest to me were his observations about the rules governing barrister duties, hostile witnesses, and the presumption of innocence, and his thoughts on lawyers coping with negative media coverage.

The book also tackles some of the harder issues that regularly test policymakers’ resolve: deaths in custody, infanticide, domestic violence and sexual impropriety (and the #MeToo movement). He calls out the ongoing national disgrace that is the over-representation of Aboriginal and Torres Strait Islanders in Australia’s correctional systems.

Boe makes the significant point that equality before the law doesn’t mean that all people must get the same treatment, for if “you treat situations with vastly different realities in the same way, then you will necessarily cause significant injustice to some.” This same view — that striving for equality of opportunity for unequals can only aggravate inequality — has been expressed in judicial writings for decades, most notably in the High Court judgement in Gerhardy v Brown (1985). The adage was worth repeating here.

Importantly, Boe also places firmly in the reader’s mind one of the most crucial axioms to be found in the lawyer’s notebook: that “liking a client or agreeing with their political views [is] hardly a prerequisite for providing effective, even passionate, representation for them in the criminal courts.” All people, he reminds readers, deserve good representation. It is not for their counsel to judge them: that is solely the role of the courts.

There are a number of errors in the book that ought to be corrected in the event of a reprint. It is not true that judges’ tenure is dependent on their choosing to retire. A statutory maximum age for judges exists in every jurisdiction (and was recently increased in New South Wales). Some of the more problematic political manoeuvrings and practices Boe refers to (such as the appointment of magistrates with no legal qualifications in Queensland) were unique to particular periods. The bird depicted in the SA police coat of arms is not the wedge-tailed eagle but the white-backed magpie, or piping shrike, and South Australia should be added to his list of those jurisdictions that have a fused legal profession. The rules concerning a jury’s majority verdict (if such verdicts are permitted) vary from jurisdiction to jurisdiction. Finally, the rule that makes a distinction between printed and oral evidence should be referred to as the parol evidence rule.

But it would be churlish to make too much of small faults in what is, in totality, an excellent volume. The cases that Andrew Boe has handled can make for uncomfortable reading but they offer important lessons. People sometimes do appalling things, and the impact not only on communities but on their lawyers can be palpable. In one instance, Boe writes, “Nearly everyone connected with this case must have stumbled back to their lives diminished by what they had read, heard and seen.” It was a heartfelt recollection.

The Truth Hurts promises to call out unfairness and bias in the practice of the criminal law, but for me the book simply reinforces the fact that legal processes are faced with difficult tasks and often contradictory aims, and continually struggle to find resolutions satisfactory to all. Only those who have the passion to find enduring outcomes will succeed.

And, on this reading, when it comes to passion in finding the best outcomes for people who fall afoul of the law, there would be few more passionate than Andrew Boe. I enjoyed his reflections immensely. •

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If only it were so simple. In Clive Palmer’s so-far-unsuccessful quest to demolish state borders we have seen a Federal Court judge compelled to adjudicate among a range of epidemiologists testifying to the effectiveness, or otherwise, of border closures in preventing virus spread. In the meantime, complaints (whether by Scott Morrison or Paul Keating) that the case for border closures is weak don’t mean much north of the Tweed, where Queensland has managed to keep community transmission close to zero.

Why is Australia like this? At the core of the federation compact is the immovable fact that the Constitution moved a specified range of powers from the states (then colonies) to the federal government. The list did not include responsibility for health, other than the limited scope allowed by the quarantine power, so the states were left with virtually sole power over health-related matters.

Famously, section 92 of the Constitution appeared to protect the notion of freedom of movement, or at least of “trade, commerce and intercourse.” The implied freedom of personal mobility didn’t stop the states imposing strict border controls in the severe pandemic of 1919, and the helplessness of the federal government in the face of obdurate state premiers was as evident then as in 2020.

But there was no equivalent in 1919 of a Clive Palmer challenging the border closures, and so no opportunity for the Commonwealth to contemplate whether it might join the case — or then withdraw from it, as has recently occurred. Perhaps that was a missed opportunity of 1919: at least the High Court might then have laid out the ground rules, as it might yet come to do. But which way would the court have gone anyway?

A few years earlier, in 1912, the High Court had tackled the question of cross-border mobility in a way that is often cited as revealing an implied doctrine of freedom of movement throughout the nation. The case (R v Smithers) originated in the conviction and imprisonment for twelve months of one John Benson as a prohibited immigrant into New South Wales. Benson had been convicted in Victoria of a vagrancy offence, and in 1903 New South Wales had passed a law to exclude convicted criminals.

The four judges of the High Court were unanimous in quashing Benson’s conviction while not invalidating the legislation. Some of the reasoning went to the seriousness of the harm likely to be caused by a person convicted merely of vagrancy. In the main, though, the judges focused on the need to protect the freedom of movement they found implied in section 92 of the Constitution. In so deciding, they were careful to deal with the possibility that there might be a constraint on freedom of movement in what they all referenced as the “police power” of the states. In the end, only Justice Isaacs was very confident that section 92 was an “absolute guarantee” of interstate freedom of transit and access.

What was this “police power”? The concept goes to the fundamental scope of government, which the Commonwealth’s constitutional handbook (Quick and Garran’s Annotated Constitution, published in 1901) explained by reference to American constitutional law. “The police powers of a State,” it declared, “were nothing more nor less than the powers of government inherent in every sovereignty to the extent of its dominions.”

Arguing the case for New South Wales in 1912 was its attorney-general (later premier) W.A. Holman, throughout his career an ardent advocate of states’ rights. He argued that the Constitution had left to the states all those powers necessary to protect their citizens. This was the “police power,” a doctrine much deployed in US litigation over the rights of the states, referencing (as Justice Barton acknowledged) “the right of ‘self-defence’ in respect of such matters as internal order, or the safety, health and morals of the people of the State.”

The question, in Australia as in the United States, was whether such a power had been limited by the Constitution. Did the federating document constrain the power of individual states to control the entry of undesirable people, for whatever reason? Holman insisted that the states had such rights, by default, and challenged the judges to consider the risks of invalidating the exclusion law. Such a result would be disastrous, he said: “Even the quarantine powers of the State would be ultra vires. If a smallpox victim came through from Queensland to Sydney, and said he wished to go Melbourne he could not be prevented.”

Not even Isaacs, strongest in his dismissal of Holman’s argument, answered that point directly. The judge’s advocacy of freedom of movement was untrammelled, and the appeal of his reasoning remains admirable for its breadth of egalitarian concern. “If [a prohibited person] can be prevented for the sake of preserving the morals of the people,” he wrote, “then I am unable to see any limitation upon the power of the State to exclude whatever persons or property they choose to declare prejudicial to their people.” But unlike the other judges, Isaacs did not approach the difficult case, raised by Holman, of the possible necessity of restricting the movement of infected people in a pandemic.

Seven years later Holman again entered the fray on the question of a state’s right to close its borders. This time he was premier of New South Wales, and the controls were being exercised “in defence of the health of the citizens of this State.” Responding to the Spanish flu outbreak, the government had declared an emergency under the state’s health legislation, enabling closure of the borders, restrictions on assembly and commerce (first in the City of Sydney and later in the wider metropolis) and enforcement of mask-wearing on public transport.

Throughout February 1919 the NSW premier defended his state with an ardour that sometimes tested the patience of the Commonwealth. Compared with Queensland, whose Labor government took on the Commonwealth (indecisively) in the High Court over the scope of its quarantine powers, New South Wales was generally conciliatory. But with tension arising from the management of troops returning from war in the middle of a pandemic, the Constitution was brought into play unexpectedly in late February in one of those incidents that have fallen victim to historical amnesia.

On 25 February 1919, with quarantined soldiers growing increasingly restless, Holman cabled acting prime minister W.A. Watt calling on the federal government to protect the state from the danger of quarantined soldiers escaping their confinement and then being liable to arrest by local police. Holman’s request was made under section 119 of the Constitution, the provision that enables the Commonwealth to respond to a state’s need to protect itself against “domestic violence.” In doing so, he exposed a reality of the federation: the states had their own considerable “police powers” but had ceded to a national government the power to raise a defence force and use it, as a last resort, within the national borders.

In the event, a direction via the military’s Sydney commandant had the desired effect, the rebellious troops calmed down, and a rare call-out of military aid to the civil power was quickly concluded. So quickly, indeed, that when prime minister William McMahon was asked by opposition leader Gough Whitlam in 1971 about the previous use of section 119 powers, a search of the National Archives failed to include this among the few instances recorded.

When he called on the Commonwealth to defend his state from the threat of troops breaking quarantine in Sydney in 1919, Holman was acknowledging the limits of his state’s capacity to defend its borders. Barring major constitutional change in the arrangements underlying the federation, Australia seems destined to remain captive to this kind of politics. That may not be a wholly bad thing. Doing away with the freedom of states to determine local health priorities would not end the problem of determining what kind of unit of government would be a more effective instrument of pandemic control.

The much-vaunted solution of determining what constitutes a “hotspot” might limit the territorial reach of the virus. But it would not end the controversy over the criteria for applying controls over mobility or assembly. And, as the prime minister has repeatedly learned, there is little the Commonwealth can do in the face of the kind of emergency created by a pandemic. The politics that has justified the “stop the boats” approach to the national border has met its match in the “stop the virus” approach to state borders. •

The post States of emergency appeared first on Inside Story.

Under Hong Kong’s unusual post-handover political and constitutional arrangements, democratic participation is severely constrained. The chief executive, who heads Hong Kong’s executive-led government, is elected by a 1200-person committee dominated by pro-Beijing business interests. Only half of the seats in the city’s legislature, the Legislative Council, are elected by universal suffrage, the remainder again going to small special-interest groups called “functional constituencies.” Yet extensive rights and freedoms are guaranteed by Hong Kong’s constitution, the Basic Law, including freedoms of expression and assembly.

It’s an unusual combination. Most countries that enjoy a similarly broad range of civil and political rights do so within the context of liberal democracy. When citizens disagree with their government, they are free to protest; but they may also, as the saying goes, vote the bastards out. Likewise, most countries that don’t have democratically elected governments also circumscribe rights and freedoms, making public protest impossible. Under those authoritarian regimes, you can’t vote the government out, and you also can’t criticise or protest against it.

Hong Kong’s unique dynamic explains why it became — to borrow the title of my first book — a city of protest. If the people of Hong Kong were unhappy with government policy, they couldn’t vote out their government, and nor could they participate meaningfully in the policymaking process. But they could exercise their freedoms of expression and assembly. So they protested.

In turn, political protest proved to be an effective means of forcing political change, from stopping the enactment of the Article 23 national security law in 2003 to forcing the government to abandon a compulsory patriotic education curriculum in 2012. This held true for the 2019 protests, which successfully stymied chief executive Carrie Lam’s proposed extradition bill.

But this unique arrangement left Hong Kong in a state of disequilibrium. Indeed, its very uniqueness attested to the fact that this precarious balancing of a high level of rights and freedoms against a low level of representative democracy was not a natural state. As I wrote in the conclusion to City of Protest, in the aftermath of the Umbrella Movement, “As long as the disequilibrium between rights and freedoms and representative democracy prevails in Hong Kong, the competing pressures to right that imbalance will also persist.”

Both the Umbrella Movement and the protest movement of 2019 aimed to tackle that disequilibrium by pushing for increased democracy. At the same time, though, as I also noted in 2016, “there is also another way to address the disequilibrium: reduce the rights and freedoms that Hong Kong enjoys.” I envisaged measures such as a continuation of the government’s “lawfare” campaign — the politicised use of Hong Kong’s legal system to target opposition politicians and dissidents — as well as efforts to undermine the electoral system, attacks on the free press, “rectification” of the education sector, and deeper penetration of society by united front groups.

Now, some four years later, we are seeing that strategy come to fruition, for the national security law seeks to do all of these things.

The new law is not simply about creating four criminal offences to close a “loophole” in Hong Kong’s law, or about dealing with risks — real or phantom — to China’s national security. The law is about systematically criminalising dissent and dismantling the legal structure that has enabled past protest movements, putting a permanent end to Hong Kong’s cycle of protest.

This is why so many of the law’s provisions appear to have been crafted precisely to target the strategies of past protest movements. Occupying roads and blockading government buildings, as they did in the Umbrella Movement or in 2019, would now constitute criminal subversion. Interfering with transport systems, whether by blocking the cross-harbour tunnel, vandalising MTR stations or cutting traffic lights, all of which they did in 2019, is now an act of terrorism.

The list goes on. Ordinary citizens supporting protesters by donating money or goods, offering to drive them home from protests or even providing them with information would now be committing the crime of assisting terrorists. Even simply chanting protest slogans and waving banners would invite arrest for secession or subversion, or a ban on running for public office. The law appears specifically targeted to end political protest, once and for all, in Hong Kong.

Yet the city’s ever-adaptable dissenters are finding new and creative means to protest. When authorities declared that certain protest slogans were “inciting secession” and thus illegal, protesters held up blank sheets of paper representing the banned characters. When pro-democracy cafes and restaurants were told their decorative Lennon Walls — collections of colourful Post-it notes bearing protest slogans — were “inciting subversion,” they replaced them with walls of the same colourful notes, devoid of slogans. The semiotics of protest is so strong in Hong Kong that the message is unambiguous, even without the slogans. Some stores cheekily turned to displaying posters and slogans from China’s Cultural Revolution, with one favourite being a quote from Mao Zedong: “Wherever there is repression, there will be resistance.”

This past week, when authorities arrested pro-democracy media tycoon Jimmy Lai and sent hundreds of police to search the newsroom of his paper, the Apple Daily, the community engaged in activism with their wallets, buying up copies of his newspaper in the hundreds of thousands and buying shares in his Next Media Group on the Hong Kong Stock Exchange, sending the price soaring more than tenfold.

Hong Kong’s dissidents must hope that they can use these creative forms of activism to continue their push for increased democracy while navigating the minefield of the new national security law. If they don’t succeed, then Hong Kong’s unique, delicate disequilibrium of “liberty without democracy” may finally be resolved. And it won’t be in democracy’s favour. •

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Having satisfied myself of the great probability of a passage, thro’ which I intend going with the ship, and therefore may land no more upon this eastern coast of New Holland, and on the western side I can make no new discovery the honour of which belongs to Dutch navigators; but the eastern coast from the latitude of 38 [degrees] South down to this place I am confident was never seen or visited by an European before us and notwithstand[ing] I had in the name of His Majesty taken possession of several places upon the coast, I now once more hoisted English colours and in the name of His Majesty King George the Third took possession of the whole eastern coast from the above latitude down to this place by the name of New South Wales.

But what exactly had Cook done in claiming possession?

In April this year the historical significance of Cook’s first landfall at Botany Bay was hotly debated, and something similar may well occur this month over his claim of possession. Yet if the controversy that swirled around the anniversary of Cook’s landfall is any guide, we will probably be none the wiser about the historical significance of this moment. History and myth have become too closely intertwined in academic and public discourse about what Cook did in 1770.

But what might happen if we disentangled these two ways of remembering Cook — if we distinguished between the myths that are told about his famous deeds, on the one hand, and the stories that academic history might tell about them, on the other? It seems to me that this task is especially important if we want to understand why the British government never negotiated with the Aboriginal people for the cession of sovereignty.

Basically, two kinds of myths are told about Cook. The first — the one that has most often been told by settler Australians — figures Cook in heroic terms. He is the man who discovered, claimed and founded Australia. This story only began to be articulated several decades after Cook was believed to have performed these historic feats. Nonetheless, by the end of the nineteenth century, this myth was being told in an increasing number of forms — in school primers, scholarly books, pictorial images, place names, commemorations, porcelain, statuary and stamps, poetry, drama and novels.

That story’s fortunes have no doubt fluctuated in recent decades but it has remained influential. Of late, it has been given a considerable boost by the federal government’s decision to grant an enormous sum of money — $48.7 million — to commemorate in several ways the 250th anniversary of “Cook’s first voyage to Australia [sic] and the Pacific,” though the more grandiose of those plans have been scuttled by the pandemic.

The second myth — the one told largely by Aboriginal people and those sympathetic to their cause — portrays Cook in anti-heroic terms. At the very least, he is held responsible for the fact that the sovereignty and rights of property in land of this country’s Indigenous peoples were denied by the British government on the grounds that this land was terra nullius. At most, he is blamed for the later dispossession, displacement and destruction of this country’s first peoples.

This myth probably began to be told some time after the settler myth started to circulate widely. But it got an enormous boost fifty years ago in reaction to the white celebration of the Cook bicentenary in 1970, and has become increasingly influential in the decades since. More recently, after campaigns for the removal of statues in the United States, Britain and elsewhere, calls have been made for statues of Cook to be removed from Sydney’s Hyde Park and other places.

Many myths have genuine connections to a genuine past and hence are in some sense true. This is certainly the case with the Cook myths. In the case of the settler myth, it could be said that Cook did claim possession of a good part of this continent for the British Crown on the grounds of discovery; in the case of the Aboriginal myth, it can be said that in claiming possession Cook failed to follow his instructions to gain the consent of the native peoples.

Yet both these myths barely represent who Cook really was and what he actually did. This is hardly surprising. Mythic stories work in highly symbolic or abstract terms. They are designed not so much to elucidate the past as to meet particular needs in the present, not the least of which are political ones. National myths that assume the form of foundational stories do their work by deeming specific historical acts or events — in this case Cook’s claiming of possession — to have created the foundations of a nation.

This is true for both the settler and the Aboriginal myths of Cook, though obviously the former claims that this was for the better whereas the latter takes the opposite view. Thus, prime minister Scott Morrison claims that Cook’s 1768–70 voyage (which he reckons saw Australia’s founding father circumnavigate the continent) “is the reason Australia is what it is today” and Labor’s Linda Burney claims that Cook’s landfall signifies “the beginning… of a very difficult period” for Indigenous people.

These mythic stories are terribly important because they help us to apprehend a good deal of the historical significance attributed to Cook’s famous acts. But they are insufficient if we are to truly understand them. While the settler and Aboriginal myths of Cook tell true stories respectively about his claim of possession and the dispossession, displacement and devastation of Aboriginal people caused by British colonisation, they don’t provide a true account of Cook’s acts or the historical significance they can be said to have. Many academic historians seem to have lost sight of, or are ignorant of, this fact. And because they don’t distinguish between the different ways that myth and academic history represent Cook, museum curators, journalists and political figures have tended to follow suit.

To begin to grasp how the Captain Cook myths misrepresent what happened in 1770, we must note that foundational stories of this kind are highly teleological in nature. In other words, particular acts or events are endowed with a purpose, cause or outcome that they only acquired later, even much later. In this case, both the Australian nation (of the settler myth) and the settler colonisation (of the Aboriginal myth) are said to have begun by dint of — or even with — Cook’s acts, especially his act of claiming possession.

And so it is that we find the National Museum of Australia asserting that “Cook’s claim [of possession] would lead to the establishment of a British penal colony in New South Wales eighteen years later.” And a Guardian Australian journalist declaring that “Indigenous people and the[ir] supporters… rightly view [Cook] as the doorman for so many ills that followed.” And a state medical officer likening Cook’s landfall to Covid-19 as a “sudden arrival of an invader from another land, decimating populations.”

Cook’s acts on this continent, which were actually few and far between, were of much less significance to the course of this country’s history than both the settler and Aboriginal myths would have us believe. This becomes apparent if we examine Cook’s act of claiming possession in some detail.

In the first instance, it is a mistake to regard Cook’s claim of possession in 1770 as a precursor to British colonisation of this continent. Imperial powers often instructed agents like Cook to make claims of possession even though they had no plans to plant a colony in those places. This was certainly true in this case.

Furthermore, imperial powers instructed their agents to make claims to very particular places — places that, in Cook’s case, the British Admiralty called “convenient situations.” Usually what they had in mind was the staking of a claim to small amounts of land that might prove useful to empires often conceived primarily in terms of influence over the seas rather than land. Even when agents like Cook made claims to large territories, they were inchoate in nature.

What is more, claims of possession like Cook’s were only preliminary: unless they were confirmed by later acts of possession of the kind associated with settlement, they were regarded as meaningless by imperial powers. In other words, if the British government had not planted a colony in New South Wales relatively soon after Cook’s claiming of possession, its claim could have been overridden by another imperial power, just as the British government later discounted the Dutch navigator Abel Tasman’s claim on the other side of this continent and was careful to plant settlements elsewhere on the coast so that the French could not claim possession.

Just as importantly, the claims of possession made by the agents of a European power were often aimed at their imperial rivals as well as their own people, rather than at local or Indigenous peoples. This is evidently so in the case of Cook, who was acutely aware of other European claims. How could he not be, given this land mass was widely known in European circles by its Dutch name, Nieuw Holland, or New Holland. It is hardly surprising, then, that in the entry in his journal for 22 August 1770 Cook referred to the Dutch claim of possession on the grounds of “discovery” to the west of Possession Island and the absence of any such European claim to the east coast of the continent.

This practice of claiming possession of foreign lands on the basis of being the first European discoverer was all the more common because European imperial agents often found it difficult to make the kind of contact with local peoples necessary to win their consent. Cook evidently felt a sense of relief when a small group of Aboriginal people didn’t oppose the landing of his party at “Possession Island” but made off instead, leaving his party, to his mind, “in peaceable possession of as much of the island as served our purpose.”

Most importantly, it is a mistake to assume that the claims of possession made by an imperial agent like Cook dictated the terms on which an imperial power would treat the sovereignty, let alone rights in land, of Indigenous people. This starts to become clear if we loosen the grip of national foundational stories and compare the case of New South Wales with that of New Zealand — or Nieuw Zeeland, as Aotearoa was named by the Dutch.

Cook claimed possession of small parts of Aotearoa on the very same terms that he claimed parts of this continent, without acquiring the consent of its sovereign peoples. Yet in 1839, when the British government decided it should annex the islands of New Zealand, it opted to negotiate the cession of sovereignty with the local chiefs. In other words, the terms on which Cook claimed possession in New Zealand in 1769 did not bind the British government in 1839. Given this, why do we assume that it did so in regard to New South Wales in 1788? The answer is surely found in the kind of teleology that characterises national foundational stories.

A comparison between these two cases reveals another important point. There is little reliable evidence to suggest that the terms on which Cook claimed possession in New South Wales were determined by his perception that the Indigenous people were either small in numbers or lacking sovereignty and rights of property in land. Cook perceived Māori very differently but still claimed possession of parts of New Zealand on the same basis as he claimed parts of New Holland.

And so we come to the famous story of terra nullius. It, too, can be regarded as a myth in the sense that I have been using this word.

Terra nullius has been used to refer to any legal claim that lands newly discovered by European powers belonged to no one. This is so irrespective of the precise grounds on which such a claim was made. In other words, claims of possession that were often based on a series of different legal rationales ― such as those of discovery, improvement, and settlement ― have been treated by historians as though they were all made on the basis of a single legal doctrine known as terra nullius.

More problematic still, the contention that the British government claimed possession of much of this continent in 1770 or 1788 on the basis of the doctrine of terra nullius is anachronistic. Quite simply, there was neither a doctrine bearing this name nor any historical record of it being used by imperial powers in any systematic fashion until the mid to late nineteenth century.

To be sure, some historians have argued that the doctrine of terra nullius derived by analogy from a similar doctrine know as res nullius and that the latter had firm foundations in a body of law that predated 1770 or 1788, while other historians have contended that terra nullius was connected to another legal doctrine known as occupation.

But the fact of the matter is that the British government invoked neither the doctrine of res nullius nor the doctrine of occupation as it began to colonise New Holland. Instead, it appears to have claimed possession of much of this continent in 1788 on the basis of an amalgam of three other legal doctrines: discovery, which was a claim to be a territory’s first European discoverer; possessio, which was a claim that a person or state who had something and intended to possess it should be regarded as its possessor; and usucapio, which was a claim on the basis of having possessed something for a certain period without interruption.

As this discussion suggests, and as I argue in my book Empire and the Making of Native Title, if we want to understand why the British government never sought to negotiate a treaty with the Indigenous people in order to acquire sovereignty and purchase land, we need to look elsewhere than Cook and his doings in 1770. Indeed, it is only by shifting our gaze away from 1770 — and by grasping the distinctive nature of the historical truths that mythic stories tell about moments that actually occurred much later — that we are able to explain the plight of so many Aboriginal Australians today. •

The post On Possession Island appeared first on Inside Story.

Much has been written about press freedom and its virtues. As far back as 1644, John Milton penned a polemic pamphlet, Areopagitica, railing against the censorship of Britain’s publication licensing system. “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” he demanded. Over the subsequent centuries, the conjoined principles of free speech and a free press became tenets of liberal democracy. In many countries press freedom remained illusory, but — at least in some parts of the world — an uncensored media prospered throughout the twenty-first century.

Today, that progress is faltering. In the past decade, journalists have been jailed or murdered in record numbers. Populist leaders decry “fake news” while police target reporters during protests. Secrecy offences, libel lawsuits and national security laws are being used to silence the press across the globe. Australia is no exception.

Following the raid on her apartment, Smethurst became the inadvertent face of a campaign for greater safeguards for Australia’s press. On Secrets is not a manifesto, but it provides a searing and deeply personal account of the indignity of the raid and a nuanced perspective on the challenges Australians face.

On that wintry Canberra day, the police handed Smethurst a warrant alleging that she may have breached the Crimes Act. The allegations related to her reporting in the Sunday Telegraph that the government was contemplating empowering the Australian Signals Directorate to spy not just on foreigners but also on Australian citizens. The controversial proposal, which remains on the political agenda today, was communicated to Smethurst by a source she refuses to reveal. Its publication would see the journalist’s life turned upside down for almost a year, during which the AFP considered charges and News Corp fought the raid in the High Court.

On Secrets begins with the ringing doorbell, as Smethurst recalls those painful hours in considerable detail. It is filled with dark humour — “the raid had transformed into something of a law-enforcement-style Marie Kondo experience” — but above all a sense of hurt. While the media made much of the AFP searching Smethurst’s underwear drawer, she writes, this “was far from the worst thing to happen that day.”

For seven hours, police rifled through Smethurst’s belongings while she and two News Corp lawyers watched helplessly. The AFP searched personal letters, copied the contents of her iPhone and peeked inside her oven “on the off-chance I had stored secret documents in my grill.” Eventually it was over and Smethurst was left alone as news of the raid began to circulate around the world. “It was still and silent and I cried until I had no more tears,” she writes. “I wanted to hide under my doona so that is what I did.”

These raw recollections are the most compelling element of On Secrets. It is easy to see press raids — along with the exasperated media executives and mute ministers that subsequently appear — as political theatre, just another act of high drama in the crowded 24/7 news cycle. But Smethurst reminds us that journalists are humans, too. Having had her inner sanctum violated, she promptly moved to her partner’s home (“a raid-triggered cohabitation. Who said romance was dead?”), while trying to remain positive about the prospect of imprisonment: “Perhaps I would become a powerlifter.”

The remainder of this pithy book is spent weaving macro observations about the challenges to press freedom in Australia with details of the raid’s aftermath (including, just a day later, the AFP raid on the ABC’s Ultimo headquarters). Smethurst’s commentary on what ails the Australian media — inadequate whistleblower protections, weak protections for free speech, a dysfunctional freedom of information system, draconian anti-terror laws — offers little in the way of novelty. But invigorated by her personal experience, it still packs a punch. “I believe the raid on my home was about more than evidence gathering,” she writes. “It sent a message to would-be whistleblowers not to speak up.”

The question of what to do about this state of affairs is rather vexing. Following the furore over the twin raids, Australia’s major publishers united behind the “Your Right to Know” coalition and ran an unprecedented joint front-page in October. “When government keeps the truth from you, what are they covering up?” the papers asked. The coalition has also set out a list of desired legislative reforms to prevent the progressive criminalisation of public interest reporting.

After some initial debate, though, the campaign has largely gone quiet. “I now know how impossible it is to truly appreciate something until it is denied to you,” writes Smethurst. “But if journalists struggle to get excited about press freedom, it’s an even harder task to rev up the public about the need for greater protections for the press.”

Nor are the courts offering much help. In April, the High Court found that the raid on Smethurst’s apartment was unlawful. While News Corp had sought to contest the constitutional validity of secrecy offences on free speech grounds, Australia’s top judges instead determined the case on extremely narrow statutory grounds, holding that the warrant failed to meet ordinary requirements. It was, as I and other commentators said at the time, a pyrrhic victory for press freedom. The ABC, meanwhile, lost its challenge to the legality of the other raid in the Federal Court.

Although the AFP ultimately determined that they would not be proceeding with charges against Smethurst, the ABC was given no such reprieve for their reporting of allegations of potential war crimes by Australian troops in Afghanistan. A brief of evidence is currently with the director of public prosecutions. In other words, in Australia, in 2020, a journalist faces the possibility of jail-time for reporting on state-sanctioned wrongdoing.

At one point in On Secrets, Smethurst quotes the aphorism, usually attributed to a famous American publisher, that “news is something which somebody wants suppressed: all the rest is advertising.” All Australians should be alarmed at the federal government’s attempts to suppress embarrassing revelations, silence whistleblowers, muzzle the press and shroud its operations in opacity. Australia fell five places in the latest World Press Freedom Index, and monitoring group Civicus rates the country’s civic space as “narrowed.” The degradation of press freedom is not something that happens only in far-off autocratic lands; it is happening here, now, right before our eyes.

It can only be hoped that On Secrets galvanises public concern about the challenges faced by the media, and the threats to Australian democracy more broadly. Recalling the moment that the AFP accessed her iPhone, Smethurst observes, “It might not sound like a hardship and doesn’t deserve comparisons to the horrifying violence inflicted by some countries on journalists, but this was an incredible intrusion.”

A purportedly authorised raid on the home of a journalist certainly doesn’t compare to the extrajudicial imprisonment or cold-blooded beatings faced by reporters in some nations. But press freedom doesn’t die overnight — it bleeds out with a thousand cuts. If Australians are not vigilant, those comparisons will gradually become less outlandish. By then, it will be too late. •

The post Something somebody wants suppressed appeared first on Inside Story.

Australia’s first case of Spanish flu was detected in Melbourne in January 1919. Three months earlier, the states and the Commonwealth had agreed that, if the flu broke out, the states could impose border controls to try to limit its interstate spread. The affected state would notify the Commonwealth, which would then take complete control of all interstate traffic. Movement between the affected state and other states would be suspended for as long as the latter remained influenza-free; if they also had cases, then interstate travel could resume between infected states.

An exception was made for local movement across state lines by residents within ten miles of a border “in an area which is clean.” This meant that the residents of the twin towns of Albury and Wodonga, for instance, were permitted to cross the border.

Despite all the planning, the Victorian government took a fortnight to acknowledge that Australia’s first case of Spanish flu had been detected in Melbourne. By then, a soldier infected in the Victorian capital had travelled north across the state border. Within a day of New South Wales being proclaimed infected, Victoria finally informed the director of quarantine, John Cumpston, that it, too, had cases. Faced with Victoria’s tardiness, the NSW government considered the prior agreement to have been revoked and unilaterally shut the border.

Although Victoria carried on with business as usual, these events provoked a free-for-all among other states. Queensland prohibited interstate movement even for people living within ten miles of the border. South Australia blocked land traffic from Victoria, and Western Australia prohibited all land traffic from other states. Tasmania, meanwhile, required a week-long quarantine period, either before departure or on arrival.

Despite its own view that internal border closures were impractical and ineffective, the federal government was left powerless. This was seen as a real test of Commonwealth authority in the new federation, with an article in the Warwick Daily News arguing that “the actions of the State Governments in maintaining their own border quarantine restrictions was rapidly producing a crisis in the affairs of the Commonwealth.” The acting prime minister, W.A. Watt, negotiated a “system of cash and travel vouchers for citizens stranded outside their home states,” writes historian Humphrey McQueen, but beyond that, his powers of persuasion were “negligible.”

In practice, border closures were commonly evaded. People were smuggled across the NSW–Victoria border at points where supervision was lax, and the flu spread. New South Wales subsequently created a permit system at most border crossings and established quarantine detention camps at a couple of others, requiring people to stay for four days.

Not a single case of influenza was detected in the camps, though that seems to be a result more of poor testing than of an absence of disease, since numerous cases were discovered on ships arriving in Sydney and Brisbane during the same period. The director of quarantine scathingly described the camps as “either a useless infliction on persons travelling, or a positive danger, not only to the travellers, but to the community concerned.” While the ships were “entirely under control,” he wrote, “Inter-State quarantine has to face the difficulty of traffic at many hundred points along a border hundreds of miles long.”

Despite the innovations of the past century, it seems remarkable that we are still facing challenges at the borders. We now have drones and other surveillance technology, but the pandemic shows just how reliant we are on people themselves — to observe physical distancing protocols, to manage movement and, ultimately, to stop the spread of the virus.

Given how preoccupied successive governments have been with Australia’s external borders, it is also interesting to see a renewed focus on internal borders — which are, in fact, where the regulation of people movement began, centuries ago. The international controls on mobility with which we are so familiar — manifested in passports and visas — grew out of monitoring of movement within states, which was common across medieval Europe and continued into the modern period. Even Australia had its own “colonial passports” in the 1810–20s, issued to convicts, free settlers and visitors to establish their identities and facilitate movement within the colonies.

Up until Federation, the colonies had full discretion over who crossed their borders. But the High Court ruled in 1912 that section 92 of the Constitution (which provides for “free intercourse” among the states) and the act of federation itself limited states’ ability to deny entry to “undesirable immigrants” from other states. The court did recognise, however, that a state was entitled to take precautionary measures against dangerous people or other risks to “its health, or its morals.”

Subsequent cases have affirmed that while the Constitution guarantees freedom of movement across state borders, “a law may incidentally restrict movement interstate, provided the means adopted are neither inappropriate nor disproportionate.” It is now generally accepted that the Constitution’s “guarantee of internal mobility within Australia” may be subject to reasonable, legitimate restrictions which, in principle, include protecting the public from a pandemic. •

The post Policing the borders appeared first on Inside Story.

Mary Gaudron, the only woman to have been appointed to the High Court, had retired and, astonishingly, was being replaced by the man we’ve heard so much about over the past week. My outrage was prompted not by any knowledge of Justice Heydon’s moral framework but by the fact that there existed a pool of women eminently suitable for the job. By choosing a man, the government was telling the daughters of Australia that even if they won all the traditional baubles of merit and had brilliant legal careers, they were not welcome in the nation’s top court.

The seventeen years since then have witnessed significant changes in the make-up of the High Court. To mark the occasion of the third woman being appointed to the court, I stood outside the building with my young children on the morning of 3 September 2007. Another ANU law colleague and her daughter had made a cake, which they later gave to the new justice, Susan Kiefel.

By the time Justice Kiefel was appointed the first female chief justice, ten years later, Susan Crennan had sat on the bench between 2005 and 2015, Virginia Bell had been sitting since 2009 and Michelle Gordon had joined in 2015. For most of the past decade, in fact, three of the court’s seven judges have been women — and, since February 2018, another woman, Philippa Lynch, has been chief executive and principal registrar of the court.

The shift in numbers is surely significant background to last week’s announcement. Would an all-male leadership team, or even a team with just a one or two women, have shone light on the inappropriate behaviour of one of its own?

When the chief justice’s revelations became public, I was in a “strategic planning” meeting in my new workplace, the University of Canberra, where I am co-director of the 50/50 by 2030 Foundation, working with our newly formed team considering how to best achieve our objective of ensuring that women are equally represented in all Australian decision-making bodies by 2030.

My co-director, Trish Bergin, had drawn a diagram illustrating drivers of gender inequality grouped under “society/culture,” “heuristics and human tendencies” and “structural barriers.” Her diagram raised the obvious question: where should our efforts lie?

We can all see the pervasive hurdles to gender equality — the unconscious bias, inherent resistance to change, gender stereotypes, imbalances of power, sexual harassment, government policies with no systematic gender-sensitive policy, biased and inadequate parental leave, and work structures and processes built around traditional family-unfriendly stereotypes.

So how do we change this? Should culture come first, or structural change? Should we be demanding — as I did when I protested about the system that enabled an all-male court back in 2003 — that a mandated commitment to at least 40 per cent composition of either gender (given there are seven judges) at any time on the High Court must occur.

Last week’s moment affirmed how structural change and cultural change go hand in hand. We must mandate 50/50 leadership in all sites of power in Australian society — an inclusive leadership that acknowledges our sex, gender, age, race, ethnicity, orientation or disability as relevant to how we live our lives, and must be openly acknowledged, to ensure cultural change is embedded. In international data released this week by UN Women, men are currently 75 per cent of parliamentarians, 73 per cent of managerial decision-makers, 72 per cent of executives of global health organisations, 76 per cent of the people we see, hear or read about in our mainstream news media, and almost all (87 per cent) of the people in peace negotiations.

When Justice Heydon’s appointment was announced in 2002 I was on sabbatical in Washington, DC, and the US Supreme Court had heard argument on the constitutionality of state legislation prohibiting the burning of crosses. The hearing provoked a passionate interjection by justice Clarence Thomas, the only African American on the Supreme Court. He spoke of the Ku Klux Klan’s “reign of terror” during the nearly one hundred years before Virginia passed the challenged law.

A burning cross is indeed highly symbolic, Justice Thomas said, but only of something that deserves no constitutional protection. It is “unlike any symbol in our society,” he said. The New York Times reported that “during the brief minute or two that Justice Thomas spoke, about halfway through the hour-long argument session, the other justices gave him rapt attention. Afterwards, the court’s mood appeared to have changed.”

We may never know whether chief justice Kiefel, justices Bell and Gordon and principal registrar Lynch have experienced harassment in their working lives, but we can reflect on that moment when the make-up of that leadership team enabled those female associates to be heard, and for real reform to be initiated. As Chief Justice Kiefel stated, “We have strengthened our policies and training to make clear the importance of a respectful workplace at the Court and we have made sure there is both support and confidential avenues for complaint if anything like this were to happen again.”

Similar reforms must continue in all workplaces to ensure equality in leadership positions in all positions of power, judicial, executive and parliamentary. As last week showed, an equal and diverse leadership team leads to better decision-making all round. •

The post Shift in numbers, shift in culture appeared first on Inside Story.

She walked into the room and he gave her a big hug, telling her how well she looked. After some discussion about how she had been coping he asked her to come and sit on his knee. She was very shocked. After a period of silence, he repeated the request in a “very authoritarian, quite demanding” tone. Ultimately she complied and sat on his knee. He put his hand on her leg, rubbing it up and down the inside of her leg and touching her crotch. She “just froze.” She was afraid of him and of what he might do to her. She told him that she “did not want to do this.” He did not respond. The incident lasted for “probably five minutes.” After this she got up and walked towards the door. He told her that he would need to see her again.

Dyson Heydon will likely recall this scene from his time on the High Court of Australia, and so might some of his associates. The sixty-three-year-old woman’s account of her first one-on-one consultation for post-natal depression thirty-three years earlier opened her psychiatrist’s 2009 trial in Perth. The following year, the national court granted Alan Stubley a last chance appeal against his conviction for multiple sexual offences against two of his patients. When he sat on the retired doctor’s case, Heydon was nearing the end of his decade on Australia’s top court.

Shortly after he was appointed to the High Court in 2003, according to the Sydney Morning Herald this week, Heydon “slid his hand” between the thighs of a “current judge” at a law dinner. She told him to “get your fucking hands off me.” Not long after he left the court in 2013, he attended a professional dinner where — according to the then president of the ACT law society — “his hands became very busy under the table, on my lap, feeling up the side of my leg.” He later asked her to discuss law in an empty room, where he hugged her and tried to kiss her. When she told him she was “definitely not interested,” he said “it would be such a wonderful encounter.”

These and other claims about a former High Court judge raise many questions. One is about his role in cases like Stubley’s. If the allegations against Heydon are true, then a serial predator of young women was asked to rule on an appeal by an alleged, if more extreme, serial predator of young women. We cannot know what thoughts crossed his mind as he read the testimony of Stubley’s patients. But we can read how he judged the psychiatrist. The answer is: harshly. Indeed, prosecutorially.

“To many people,” Heydon wrote in his judgement, the claim that a psychiatrist was preying on his patients “would seem so serious and inherently unlikely as to be startling, outlandish, and far-fetched to the point of being bizarre.” But “perhaps not all,” he allowed, citing those “afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers.” Six years after he wrote those words, that same affliction became a global pandemic of sorts, fuelled by revelations of serial abuse by Harvey Weinstein, Bill Cosby and other celebrities, and thousands of other #metoo stories.

Heydon himself is now the subject of several such stories. The Sydney Morning Herald quotes a “leading female member of the NSW Bar” whose first thought when #metoo broke was, “Boy, Dyson Heydon should be really worried.” She goes on to describe Heydon inviting her to his chambers after she appeared before him at the High Court and, on a later occasion, kissing her while blocking her from leaving his room.

But in the less cynical times of Stubley’s appeal, Heydon was somewhat ahead of the public on whether to believe an allegation of professional predation. He bemoaned that such an allegation’s seeming bizarreness meant that a prosecution based on it alone “may easily falter, no matter how truthful,” even when — as Stubley’s patient testified — the allegation was of years of persistent indecent assaults and rapes perpetrated in a psychiatrist’s office, her sobbing throughout. That’s why, he said, such claims of predation shouldn’t be heard on their own.

Quoting Western Australia’s evidence law statute, he declared that “fair-minded people would think that that the public interest” would favour hearing “similar testimony about the tendency of the accused.” For example, he explained, Stubley’s trial featured charges arising from how he treated two of his patients, who each testified to repeated sex with the psychiatrist as part of their “treatment.” The second patient told the jury that Stubley had rubbed her breasts when she spoke with him about her stress at the breakdown of her marriage, and at a later consultation told her “I feel rejected” in a “very, very menacing tone.” “This is the most important relationship you will ever have,” he told her after they had sex on the floor of his office. A joint trial featuring both complainants, Heydon observed, “would be a prosecution supported by evidence of much greater probative value.”

The question the High Court had to decide in 2011 was whether the criminal justice system should go further to bolster prosecutions of alleged predators. Heydon, one of the world’s leading evidence scholars, ruled that it should. He endorsed Justice Narelle Johnson’s decision to allow several other patients of Stubley to testify at his trial in order to establish a pattern of predation. Each described sex on the floor of his office during emotional tumult: one had reached out to Stubley for an emotional but not sexual connection, another felt “embarrassed on his behalf” as he undressed in front of her, a third had unwanted sex out of fear that she would lose her job as his receptionist. Heydon ruled that “a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations” would be “of so high a degree of probative value” that “the public interest would have priority over the risk of an unfair trial.”

It is startling that Heydon used his judicial pulpit a decade ago to write something of a road map to his current predicament. Like Stubley, Weinstein and Cosby in some respects, he now faces allegations of predation that are greatly strengthened by many similar allegations. What initially started as two former associates contacting the chief justice of Australia in March last year became public this week after an inquiry she commissioned concluded that “six former Court staff members who were Judges’ Associates were harassed by the former Justice.”

Given this week’s revelations, Heydon’s ruling on Stubley’s appeal is a bit like Weinstein greenlighting a movie about a predatory producer or Cosby doing a very special episode on methaqualones. One possible explanation may, of course, be that Heydon is innocent of the allegations made against him. But there are other possibilities: he may have been somehow oblivious to his own conduct or supremely confident in his invulnerability, or maybe just intellectually devoted to his stance on evidence law. Each of these explanations, in different ways, suggests that Heydon may be his own worst enemy.

Regardless, he was alone on the High Court in 2011. The other four judges who heard Stubley’s case — Bill Gummow (who wrote a classic legal text that Heydon would later contribute to), Susan Crennan, Susan Kiefel and Virginia Bell — all allowed the psychiatrist’s appeal.

Rejecting a different rape appeal five years earlier, Dyson Heydon penned a brief judgement agreeing with the majority, but adding his rejection of the accused’s criticisms of his then trial counsel. “She was dealt very bad cards,” he wrote. “She played them very well. Her methods were the reverse of incompetent.”

Mark Trowell, Alan Stubley’s barrister, was also dealt very bad cards. He told his client’s jurors: “No matter how big a rat he was in having sex with his patients, you can’t just convict him because he was unethical and immoral.” Stubley later testified that sex was considered to be part of psychotherapy in the 1970s. Indeed, his second patient announced that she had researched the field before seeing him and told him that she wasn’t seeking “bed therapy.” Stubley seemingly ignored her request.

Trowell also proved to be the reverse of incompetent. His strategy, while failing at the trial, succeeded in the High Court. Had Stubley denied having sex with his patients — Gummow, Crennan, Kiefel and Bell held — then his jury could have heard the stories of other patients who said they had sex with him. But his admission that he had sex with all of them — consensually, he said — meant that their stories added nothing to the prosecution case. “Proof of the appellant’s tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him,” the four judges wrote, “could not rationally affect the likelihood that JG or CL” — the two patients — “did not consent to sexual contact on any occasion charged in the indictment.”

These judges’ words, in sharp contrast to Heydon’s own, could be music to the ears of any barrister asked to defend the former judge if he is prosecuted for crimes against some of the people whose accounts have emerged this week. If Heydon admits doing the particular acts he is accused of — say, touching a woman’s thighs or hugging or kissing her — but says that the woman consented to those acts, then the majority’s ruling on Stubley’s appeal would bar the prosecution from using others’ accounts of his misconduct, no matter how similar or non-consensual or well-established, to convict him. In short, the majority’s judgement takes the “too” out of #metoo.

I am long on the record as saying that the High Court’s approach to such cases is seriously wrong. Six years previously, the national court had unanimously allowed the appeal of a different alleged predator, a teenager convicted of the rapes or attempted rapes of six different teenagers, by ruling that he should have been tried separately for each. Why? Because he had testified that each of the six consented to sex with him, only to later accuse him of rape. (Remarkably, the sixth instance occurred while he was on bail on charges of raping the other five.) The national court ruled that, as a result, their testimony could not establish any pattern about the accused, but only cast light on their own, separate, decisions not to consent to sex with him.

After that case, I — and others — put much the same legal argument that Heydon put six years later: that six claims of predatory behaviour are much more powerful than one, given the particular unlikelihood of one person facing a series of false claims of rape after consensual sex. Indeed, as Queensland’s director of public prosecutions had argued before the national court, the six complainants’ accounts of the teenager’s actions showed a distinct, escalating pattern of deception before and violence during the alleged rapes, culminating in threatening the last two teenagers with a baseball bat and a chain.

Tragically, two months after the High Court’s judgement was published, the teenager committed two rapes that the judge who sentenced him regarded as “very similar” to the last of the earlier allegations. To no one’s surprise — other than the High Court’s, I suppose — he pleaded guilty to those two rapes, and was convicted of the earlier attempted rape committed while on bail on charges of the five earlier ones.

Heydon was one of the five judges in that earlier case. Because the court issued just one joint judgement from all five judges, and because it hides who actually writes such judgements, we don’t know whether it was authored by Heydon himself, or by one of Murray Gleeson, Bill Gummow, Ken Hayne or Michael Kirby. Regardless, they all signed on to the following remarkable explanation of why the common features of the six complainants’ accounts leant nothing to the prosecution’s case because they were “entirely unremarkable”:

That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.

But Heydon, seemingly alone, had second thoughts. During Stubley’s appeal hearing, he commented that the earlier judgement “is one of the most criticised decisions of the High Court of all time” and “is not a sort of granite mountain that is sharp and immovable.”

Around the time of Stubley’s appeal, Heydon also changed how he wrote judgements. He started dissenting as often as not and, more dramatically, stopped writing with his fellow judges altogether. In a 2013 interview, he explained that he had belatedly recognised that his colleagues on the bench wrote poorly and that the High Court’s difficult case load merited his individual attention. The previous year, he had given a much-discussed lecture at Oxford criticising the push for joint judgements in senior courts, labelling the pressure towards judicial collegiality — something Chief Justice Susan Kiefel later made her hallmark — “the enemy within.” His post-retirement return to Oxford as a visiting fellow was cut short, the Sydney Morning Herald reports, amid more allegations of predatory conduct, this time with law students.

Alan Stubley’s receptionist, the youngest of his patients to testify at his trial, described how, on her twenty-first birthday, the man she called Dr Stubley — who by then was also her psychiatrist, treating her for anxiety and depression — suddenly approached her and kissed her on the lips, telling her she could now do whatever she wanted. The High Court majority’s summary of her testimony continues:

In a consultation which took place after her twenty-first birthday, Stubley hugged her and undressed her, saying that he knew that she would be beautiful. He had sexual intercourse with her on the floor of the consulting room. She had not wanted to have sexual intercourse with him. During intercourse she had a “frozen grin” on her face. After intercourse he washed himself in the basin. She did not resist because she did not want to jeopardise her employment. She also believed that his conduct was part of his treatment of her as a patient. About a week after this episode she confronted him and told him that there was not to be any further sexual contact between them. Stubley agreed. No further sexual contact took place between the two.

Such terse summaries of the evidence are typical of the High Court and often contrast starkly with the details provided in the judgements of other courts that rule on the same cases. For example, the Western Australian Court of Appeal set out what the now fifty-three-year-old told the jury was behind her then “frozen grin”:

I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn’t be happening because I didn’t know how to tell him that I felt revolting and he was my boss and I didn’t think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just “How do I get out of this? How do I get out of this?”

The High Court’s reasons omit not only such human details, but also the broader narrative. A judgement from Western Australia’s Supreme Court reveals that, when she commenced working as Stubley’s receptionist, aged nineteen, she watched female patients emerge from his office on multiple occasions “looking untidy with crumpled clothes and their hair messed up.” She testified that, when she quit her job six months after confronting her psychiatrist, “she had been dramatically affected by the sexual intercourse to the point she requested admittance to the mental health ward at Sir Charles Gairdner Hospital.”

But few people read court judgements. After Stubley’s trial — where, Stubley’s partner told the media, “the gallery was full of patients supporting him” — Justice Narelle Johnson said that she was “staggered” that Stubley’s supporters had written to her saying that there had been “a scandalous miscarriage of justice,” observing that the letters’ authors had seemingly “not heard the evidence.” The partner of one of the two complainants later said that she was left “distraught” by the High Court’s ruling. Lacking legal training, these lay observers would have had difficulty reading the national court’s terse analysis of evidence law. But that would have posed no barrier to a different group, known as judge’s associates, who have a particular interest in the High Court’s handing of professional predators.

Following its initial finding that Dyson Heydon had sexually harassed six judges’ associates, the High Court is now reportedly contacting over one hundred other people who held such roles during Heydon’s tenure on the national court. Visitors to the court’s public hearings can see those associates seated behind each judge, sometimes rising in unison to supply law reports whenever a barrister mentions a precedent. Behind the scenes, they engage in variety of roles including legal research and proofreading the judges’ reasons. The positions — typically two per judge, and lasting for a year or two — are highly prized by future lawyers for the insight they offer into courtroom life and, in many cases, the close interaction with particular judges, which can lead to mentorship or friendship down the track. A new graduate’s selection by a high-profile judge signals a prediction — often self-fulfilling — of a stellar legal career.

We are likely to hear far more about life as an associate in coming days, weeks and months. Chief Justice Susan Kiefel’s statement setting out the current justices’ shame “that this could have happened at the High Court of Australia,” also reveals a number of new workplace safety measures, including clarifying that associates’ obligations of confidentiality “relate only to the work of the court.” Every day of this past week has yielded fresh behind-the-scene revelations, such as the claims that Heydon tried to kiss one of his associates in 2005 and that that information speedily moved through the court to its then chief, Murray Gleeson.

The then associates of Ken Hayne and Virginia Bell would have spent part of the second quarter of 2010 researching Stubley’s trial and initial appeal as a prelude to the two judges granting the ex-psychiatrist “special leave” to appeal his conviction at a brief hearing in the middle of that year. Many of that year’s associates would have travelled with the court’s seven justices to Perth that October to hear a set of Western Australian cases including Stubley’s appeal. Five associates would have been present when — after a two-hour hearing — Bill Gummow announced on the spot that “[a]t least a majority of the Court” had allowed the appeal. And some of those would have spent part of the next six months researching and proofreading the majority’s joint reasons for making that order, as well as Heydon’s lone reasons for dissenting.

They would have read the majority’s declaration that the then law in 1970s Western Australia “recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it… the act was not rape.” That none of the three additional patients, including the receptionist, “gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity.” That the prosecution’s submission to the contrary “conflates proof of psychological dominance with proof of absence of consent.”

They would have read the majority’s observation about the second patient — who testified that Stubley had once told her that “you seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks,” and who complained about his conduct to a medical board in 1981, the same year she ceased treatment with him — that “the prosecution did not seek to lead evidence of [her] reasons for not making a prompt complaint.” They would have read the four judges’ conclusion that “the differing accounts of the sexual abuse experienced by” the other three patients “were not capable of bearing rationally on the assessment of” the two rape complainants’ reasons “for continuing to undergo treatment and for not complaining.”

They would have read the joint words of Bill Gummow, Susan Crennan, Susan Kiefel and Virginia Bell that “manipulating a person into sexual intercourse by exploiting that person’s known psychological vulnerability would not, without more, vitiate their consent” and that “the cynical exploitation of [Stubley’s] position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.” And they would have read the justices’ conclusion that “absent any feature of the evidence tending to demonstrate [Stubley’s] awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by” the defence of honest belief.

And, at the same time, Heydon’s then associates would have been proofreading his excoriation of the majority’s reasoning.

In 2007, the High Court dismissed an appeal by a teenager who had been tricked by the two police officers into making what they promised was an off-the-record confession to a home invasion. Murray Gleeson and Dyson Heydon observed that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Gleeson, who was chief justice for the first five years of Heydon’s tenure, was allegedly told via another judge and his associate, of Heydon’s harassment of his own associate in 2005. He has largely refused to comment on the High Court’s inquiry into sexual harassment, aside from a cryptic text telling a journalist that “the accounts relayed to you are false.”

Heydon, who declined to be interviewed during the High Court’s inquiry, has stated, via his lawyers, that “any allegation of predatory behaviour or breaches of the law is categorically denied by our client.” He added that, in the case of the associates’ complaints, “if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused.” As for the other allegations now being detailed in the media, “our client denies emphatically any allegation of sexual harassment or any offence.” The latter is presumably a reference to a crime, rather than an emotion.

What are we to make of such a generalised denial? Ask Heydon. He spent much of his 2011 dissent dissecting Alan Stubley’s combined ethical mea culpa and criminal denial, as delivered by Mark Trowell to the jurors:

Dr Stubley will admit that he was sexually intimate with four of these women… but he says that his sexual intimacy on each occasion was consensual; that is, with the consent of each one of those females, that there was no force or coercion or intimidation or manipulation of any one of those females, and maybe he accepts that he may be morally and ethically wrong for what he did; he’s not guilty of the criminal allegations that have been brought against him and will explain the circumstances in which the sexual intimacy took place.

“A common forensic tactic,” Heydon wrote, “seeks to prevent damning evidence being called, or to water down the evidence which is called, by narrowing the issues in the case.”

Rejecting the majority’s view that Trowell has admitted the various “acts of intimacy” Stubley had been accused of, Heydon pointed out how Trowell “declined to pin his concessions about acts of sexual intimacy to the periods or occasions identified by the complainants.” Indeed, Stubley went on to cast doubt on a number of the specific acts the complainants described, saying that allegations such as sex with a heavily pregnant woman “was not the sort of thing I tend to do” and “not specifically” recalling many specific sexual acts he was charged with. The broad problem, wrote Heydon, is that “it is very difficult to fillet out the details of the relevant events which go only to sexual intercourse from those which are relevant to consent as well.”

There is similarly no way to tell whether Heydon, through his lawyers, is denying that the acts alleged against him happened at all, or is suggesting that they were consensual. In Stubley’s trial, Trowell blamed the passage of time for his client’s refusal to be pinned to specifics:

Can I say this: after thirty to thirty-five years he’s not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after thirty to thirty-five years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let’s see about that.

Heydon thought that “unfortunately phrased”: “perhaps the reason the ‘females’ could accurately describe what happened long ago, while the accused could not, was that the events complained of were unique in their experience, but merely quotidian and banal in his.”

If Trowell winced at that back then, so might Heydon’s lawyers today. But in 2011, Heydon was unsympathetic to the plight of an alleged predator:

It may be thought harsh in the case of offences which allegedly took place as long ago as the offences charged in this case that the desire of an accused to make an admission should be thwarted because he is unable to be specific in consequence of the lapse of time. In some ways it is harsh; in other ways not. The lapse of time brought advantages and disadvantages to the accused. One of the advantages was that it would be easier for the jury to have a reasonable doubt about the evidence of the complainants. One of the disadvantages was that it made it harder for him to make an admission…

He quoted the greatest of modern evidence scholars, Henry Wigmore, who complained that “a colourless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases).” Better, Heydon said, “to let the jury hear the whole unbowdlerised story.”

The High Court’s judgement in Stubley’s case revealed two possible futures to any women at the time contemplating going public with their stories of alleged professional predation. In one future, each woman’s account would be read only for its deviation from their alleged assailant’s mea culpa, and potentially on its own. In the other, decision-makers would see the “whole unbowdlerised story” of the alleged perpetrator’s pattern of behaviour. Those thinking of exposing Heydon’s own alleged harassment and crimes would have found more encouragement in his dissenting words than those of the four justices in the majority, including the current chief justice. The lesson of #metoo is how we can find our enemies in surprising places. Likewise our allies.

Assuming we find them at all. After allowing Stubley’s appeal, the High Court nevertheless ordered his retrial, observing that the psychiatrist faced allegations of “serious offences” and the two complainants’ evidence “was in each case capable of establishing the prosecution case.” Justice Johnson had previously sentenced him to ten years in prison, telling him: “It is unfortunate that no one paid attention to the complaints of these women. You would not have been able to continue your work until retirement.” He had served two years of that sentence when the majority’s judgement freed him.

Two months after their words were published, the eighty-three-year-old suffered a blood clot and underwent surgery. The onset of mild dementia prompted a consultant psychiatrist to find that Stubley would be unable to follow his retrial or the prosecution case, or to defend himself. Western Australia’s Supreme Court ruled that the former psychiatrist was unfit to stand trial and ordered his release into a nursing home, finding that he posed no further danger to the community. As far as I can tell, Alan Stubley died last year, aged ninety. It was not a good end for the retired psychiatrist, but likely better than the one chosen by Dyson Heydon. •

The post The enemy within appeared first on Inside Story.

Sport, of the type that so many of us consume as spectators, is also nothing if not big business. Retailers, like elite sporting organisations, used to be wary of controversies in case they alienated a swathe of their customers. Modern businesses, however, are often keen to position their brands, adapt to new demographics, or promote issues dear to their owners or chief executives. Think of Qantas and marriage equality. Or Ben and Jerry’s and just about any progressive cause.

Between the brands and the fans, what about the stars of the show? How are the players and coaches who actually “do” the sport implicated in this branding, and do they have any freedom to express their own views? What whips and reins do those who control sport — the club managers and league officials — wield?

Take the Black Lives Matter movement, which began in the United States but has evolved and spread to many countries, Australia included. One of its powerful early tokens in the United States involved NFL players “taking a knee” when the national anthem was played before major games. For his troubles, the leader of this protest, Colin Kaepernick, was pilloried by none other than the US president, and hung out to dry by his sport.

Yet the tide has turned. Kaepernick is now a heroic figure and even President Trump says he should be welcomed back. Police at BLM demonstrations are now “taking a knee” in fellowship with demonstrators. When football restarted in Australia recently, both Australian rules and rugby league teams followed suit, in solidarity with the movement.

The most prominent Australian case of a speaking-out sportsperson has been that of Israel Folau. Folau used his personal Twitter account to condemn gay people in particular, and those he sees as sinners in general. His persistence with such inflammatory remarks led to his sacking from rugby union. Rugby Australia said he had breached its code of conduct on respectful and non-discriminatory behaviour. Folau’s lawyers said his right to religious expression was being stifled. The case settled.

The formal elements of Folau’s case are familiar. An employer-imposed code of conduct is tacitly agreed to by the employee on hiring. But the employee uses his or her social media presence to make out-there comments. Rather than treat the remarks as the inane emanations of someone paid to run fast or jump high, the wider public piles on and the sport’s custodians react with disciplinary force.

Lawyers then parse distinctions like “was the employer trying to suppress the political or religious content of the speech, or was it driven only to protect its image and the values of its code?” Put this way, there is an intractable clash between an individual’s freedom of expression and the freedom of a club or league to dissociate itself from such expression.

Although Folau’s case involved speech outside work hours and workspace, some people will still sympathise with the club or the league. Not only may the sport pay young athletes handsomely, it also gives them leverage into lucrative sponsorships and a platform to speak out from. If the sport pays the piper, these people believe, it should call the tune. But even the most managerialist among us must admit that employers cannot rule over every aspect of our lives. The law must find an accommodation of sorts.

When it comes to speech on the field or at events run by a sport, however, there is little doubt where the law lies. Employers can control virtually all expressive acts on such occasions. To do so they don’t even need binding codes of conduct. They can rely on their general power of control, through the “obedience,” “loyalty” and “proper conduct” owed by employees.

These ancient duties are implied in every employment relationship by judge-made law. So a club can direct players as to how to behave and appear, at games and promotional appearances alike. The leagues themselves, which negotiate and distribute the spoils of broadcasting rights, wield similar control via the clubs and by nailing down codes of conduct.

So far, so-so, you might think. A league may be obliged by its broadcasters to keep games free of gratuitous symbols and expression. If not, what starts as a piquant sideline can quickly become commonplace and annoying. Remember streaking — those nude dashes by spectators across fields, sometimes carrying flags or with slogans emblazoned on their bodies? When streaking began in the 1970s, it felt liberating. But familiarity bred contempt, and broadcasters eventually banned the images. Today, draconian fines apply to any spectator encroaching on the sacred field.

The problem is that nothing really requires sports to wield their power consistently. Consider two instances, illustrated here. They happened some time apart, but they demonstrate the inconsistency point neatly. Each involves a player from the same famous English soccer club, Liverpool FC.

Laurence Griffiths/PA Images/Alamy

Matteo Ciambelli/NurPhoto via Getty Images

The first image shows Robbie Fowler, a Liverpool striker who now coaches in Australia. After scoring in a high-profile match in Europe in 1997, he raised his team jersey to reveal a t-shirt emblazoned with a message supporting dock workers in a long-running industrial dispute. Fowler was publicly disciplined and fined 2000 swiss francs — not for cheekily riffing off the CK (Calvin Klein) trademark but for breaching the European football association’s policy against any political logos or messages.

Contrast the second illustration, which features Liverpool’s current goalkeeper, Alisson Becker. At the end of the most celebrated match in the 2019 calendar, just as his side was raising the European Champions trophy before an audience of hundreds of millions, Becker lifted his jersey to reveal a bespoke t-shirt. His featured a cross and a heart joined by an equals sign. Read it as “Christ is love.” For his religious expression, Becker faced no sanction.

Before sporting contests it is common to see players from different creeds cross themselves, look skywards or kiss the grass. You might say, well, faith is a personal matter and superstition to quell nerves is rife in sport. But Becker’s was no private ritual; he was deliberately capturing the public stage in an identical way to Fowler. Sanctioning political but not religious expression seems an arbitrary distinction. Religion is no less divisive than politics.

The spectre of the lone star seizing centrestage is actually a fair way from the archetypal examples of sport engaging with sociopolitical expression. The more typical case involves clubs and leagues themselves coordinating the expression and requiring players to take part. Exhibit 1 in Australia is the military presence and the bugler at Anzac Day football rounds. Exhibit 2 is the singing of “Advance Australia Fair” at the start of matches. Each of these formal rituals is an expression of a certain strain of nationalism or view of history.

Not everyone in the stands takes part. The charitable view of these rituals is that they are not enforced patriotism but attempts to transcend club-versus-club tribalism by invoking a unifying theme. But critics see Exhibit 1 as a cynical co-option of veterans or, worse, of militarism. Making hay while the sun shines on the sporting field, as if it were a battlefield.

Other expressive branding exercises are more benign. Australia’s best-known rugby league club, the South Sydney Rabbitohs, long had a logo of a white rabbit on the run. More than a decade ago, it adopted a black rabbit as a variant for its home jerseys. This was not just a tweak to sell more merchandise. The club’s traditional home is Redfern and its teams have fielded many of the finest Indigenous players.

Many will say that sport is tribal enough without adding political or religious divisions to the mix. Others will say that sport is ineluctably mixed up with politics and religion. From governments targeting sporting grants at marginal seats through to Olympian-level bribery and corruption, sport is enmeshed with politics, ethno-nationalism and big finance.

From the more sublime aspects of anti-racist causes to the more ridiculous, sport easily merges into current affairs. For an example of the ridiculous, former Collingwood football coach Mick Malthouse recently made headlines accusing the AFL of selling its soul by staging a game annually in China. Malthouse called for the game to be cancelled as some kind of retribution for Covid-19. In turn, in an off-field version of an on-field brawl, he was mocked by at least one current coach and club chief executive.

Sport seems to be a kind of everyperson’s seasoning for political discourse. In return, sociopolitical controversies within sport allow its tendrils to spread from the back page to the front. At the level of the individual player or event, sports want to manage their brand. But whatever the passing effects of any expressive controversy, in the end it is all a form of profile. Oscar Wilde may have said that the only good thing about sport was that it involved special clothing. But as he also said, “There is only one thing in the world worse than being talked about, and that is not being talked about.” •

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After an initial assault by soldiers from the 2nd Commando Regiment on 10 June, reinforcements from the Special Air Service Regiment were called the next day to the hamlet of Tizak as the Taliban prepared to counterattack. The fighting was intense, with the SAS troopers under heavy fire from the moment they alighted from their helicopters.

At the height of the thirteen-hour battle, an SAS corporal led an assault against an enemy fortification. When members of his patrol were pinned down by Taliban fire, he exposed his own position to draw the fire away from his comrades then, fighting at close range, stormed two enemy machine-gun posts and silenced both of them.

The following January, back in his home town of Perth, Ben Roberts-Smith was presented with the Commonwealth’s highest and most revered award for gallantry, the Victoria Cross. According to the citation for the award, “his selfless actions in circumstances of great peril served to enable his patrol to break into the enemy’s defences and regain the initiative… resulting in a tactical victory.”

The award would transform Ben Roberts-Smith from an anonymous soldier into a national celebrity. After leaving the army in 2013, he was named Australian Father of the Year, appointed chair of the National Australia Day Council and honoured as number-one ticketholder of the Fremantle Dockers. On completing an MBA at the University of Queensland, he became a senior executive with Kerry Stokes’s Seven television network and a star performer on the lucrative corporate speakers’ circuit. Lauded wherever he travelled as a hero and an exemplary role model, he was much sought after as a business consultant and an adviser to governments.

Now that celebrity has been engulfed by allegations that may yet end in infamy for Ben Roberts-Smith. In 2017, investigative journalists Chris Masters and Nick McKenzie revealed the first details of allegations implicating the former SAS soldier in a series of war crimes in Afghanistan. Last month the two journalists reported that the Australian Federal Police had referred Roberts-Smith to the Commonwealth Director of Public Prosecutions to face possible charges. The Sydney Morning Herald subsequently reported that the DPP had appointed Sydney barrister David McClure SC to examine the case for proceeding to prosecution.

According to Masters and McKenzie, the AFP’s brief of evidence outlined allegations that Roberts-Smith had kicked a defenceless prisoner off a cliff during a special forces operation in Afghanistan in 2012, and covered up his subsequent murder, and that fellow SAS soldiers had witnessed the future VC recipient’s involvement in the murder of other defenceless Afghans. In addition to the AFP investigations, an extensive internal military inquiry led by NSW Supreme Court of Appeal judge Paul Brereton is soon to hand down a report into these and other alleged war crimes in Afghanistan.

Roberts-Smith has vehemently protested his innocence, claiming that the reporting has branded him a murderer and deriding the allegations as “recklessly untrue.” He told the Australian in December, “I have put my family name and medals on the line to sue Nine [publisher of the Age and the Sydney Morning Herald] and restore my reputation.” But his decision to sue the Age and the Sydney Morning Herald for defamation may have compounded his problems.

While the start of the trial has been delayed because of the pandemic, fresh witness statements submitted in the Federal Court in early June claimed Roberts-Smith was involved in seven unlawful killings in Afghanistan. Counsel for the newspapers, Sandy Dawson SC, told the court Roberts-Smith and another unnamed soldier had kicked a handcuffed man, Ali Jan, off a cliff in the village of Darwan in September 2012 and that either he or another soldier had subsequently shot and killed the prisoner.

The implications of the case run far deeper than the reputation of one man, the jealously guarded pride of the elite Special Air Service Regiment and the honour of all Australian military forces. It could have consequences around the world for holders of a hallowed band of crimson ribbon like the one that sat above the breast pocket on Ben Roberts-Smith’s army tunic — and Australia’s long and storied association with the Victoria Cross.

It was at the end of the Crimean war, in 1856, that Queen Victoria decided a new honour was needed to recognise the remarkable acts of heroism that had been reported during the great victory by Britain and its allies over the Russians. The medal she authorised would become the highest award in the imperial honours system. In the order of precedence it outranks even the Most Noble Order of the Garter — the highest order of knighthood — which is confined to the reigning sovereign, the Prince of Wales and no more than twenty-five others. Yet from the outset, the Victoria Cross was intended to be both exceptional and egalitarian.

Victoria insisted that it stand out for its humble simplicity: a plain bronze cross struck from captured cannon metal (not from the Crimea as folklore has it, but from the colonial wars in China) suspended on a plain crimson ribbon. And at her direction, it was to be blind to class and seniority. Its awarding would be influenced by “neither rank, nor long service, nor wounds, nor any other circumstance or condition whatsoever save the merit of conspicuous bravery.”

But the criteria for its awarding were far from modest. The VC was to recognise only “the most conspicuous bravery, or some preeminent act of valour or self-sacrifice in the presence of the enemy.” In modern times, the perception in military circles is that the VC can be earned only by a member of the armed forces who lays his or her life on the line in a situation of clear and present danger in combat. It often has been awarded posthumously.

Since its inception, the medal has been won 1358 times. Each of those awards is revered in the military (a general will salute a private displaying the ribbon) and exulted in popular perception. And those medals not locked away in museums and private collections can fetch staggering prices at auction. In 2006 Kerry Stokes paid a world record price of $1.2 million for the medals of Captain Alfred Shout — who was posthumously awarded the VC for his bravery during the Battle of Lone Pine at Gallipoli — and then donated them to the Australian War Memorial.

But the prestige of the VC and the instant celebrity it confers on those who win it are, so to speak, a double-edged sword. Those who so distinguish themselves in battle invariably are expected to lead exemplary lives in peacetime. And it can be a dizzying height from which to fall for any of them who fail to live up to that onerous standard. Here lies the potential challenge for the Australian government in the event that Ben Roberts-Smith is unable to clear his name.

During its 164-year history, the VC has been forfeited just eight times for serious misconduct: twice for desertion, five times for theft and assault and once for bigamy. But while many more recipients have publicly fallen from grace after coming home from battle, none have had their honour revoked since 1920, when King George V declared his displeasure at the practice.

As George’s private secretary, Lord Stamfordham, would write, “The King feels so strongly that, no matter the crime committed by anyone on whom the VC has been conferred, the decoration should not be forfeited. Even were a VC to be sentenced to be hanged for murder, he should be allowed to wear the VC on the scaffold.” Winston Churchill, then Britain’s secretary of state for war, disagreed but approved an amendment to the regulations stipulating that henceforth only “treason, cowardice, felony or any infamous crime” should lead to forfeiture.

In the annals of crime, few are more infamous than murder, and while VC winners so convicted would no longer face the option of wearing their medal to the gallows it would be untenable for them not to be stripped of the honour. Sitting at the top of the honours system, the Victoria Cross can hardly be exempt from the practice that has seen hundreds of disgraced honours recipients stripped of their gongs — from Kaiser Wilhelm, who forfeited his Order of the Garter (for starting a world war), to artist and royal favourite Rolf Harris, who ceased to be a Commander of the Order of the British Empire after he was jailed for sexually assaulting underage girls.

Since Australia severed ties with the British honours system in 1975 and instituted its own awards under the Order of Australia, the conferring of the Victoria Cross to Australian military personnel has been made by the governor-general on the advice of the defence minister. The Victoria Cross for Australia — which has identical status to the British award — has been presented to four Australians, including Ben Roberts-Smith, all of them for valour in Afghanistan.

There are dozens of precedents for Australians to be defrocked under our honours system. Disgraced former WA premier Brian Burke lost his award as a Companion of the Order of Australia, billionaire businessman Richard Pratt pre-empted the same fate by surrendering his AC after being fined $36 million for price-fixing, and the Order of Australia medal of criminologist Paul Wilson was rescinded after his conviction for the indecent treatment of a child.

In 2015 Australia’s Defence Honours and Awards Appeal Tribunal recommended the discretionary forfeiture of gallantry medals if the recipient were convicted “of an offence which is considered so disgraceful or serious that it would be improper for the offender to retain the award.” But while subsequently stipulating a range of grounds for mandatory forfeiture — including treason, mutiny and cowardice in the face of the enemy — the defence department added what smelt like an escape clause: “However, the circumstances under which gallantry and distinguished service decorations are awarded dictates that entitlements should not be forfeited except under extreme conditions.”

If the Australian government were confronted with a winner of the highest award for gallantry being convicted of a serious crime and it showed cowardice in the face of military or public opinion, it would risk far more than domestic opprobrium. A person allowed to continuing wearing the medal in such circumstances — and the authorities that permitted him to — would diminish not only the deeds of other Australian VC winners but also the hundreds of others throughout the Commonwealth who came before them. •

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Many of the thousands of Australians who started demonstrating in early June carried placards bearing the acronym of the American campaign: BLM, for Black Lives Matter. They could have added another abbreviation, CNS, for “custody notification service,” a straightforward scheme that has been shown to bring down the number of deaths in police custody in the few places where it’s been tried.

The battle to have custody notification services introduced across the country stretches back almost thirty years to the 1991 report of the royal commission into Aboriginal deaths in custody. At their heart is a simple requirement: that Aboriginal people are given twenty-four-hour telephone access to legal advice once they’ve been taken into police custody. It doesn’t seem much to expect of police themselves, and it’s been shown to be effective, but until New South Wales introduced a CNS in 2000, federal, state and territory governments had ignored the option, and most still do.

The need grows ever more pressing. Even as demonstrators thronged across Australia on 6 June, with more rallies planned, the Guardian Australia revised from 432 to 434 its count of Aboriginal deaths in police and corrective services custody over the twenty-nine years since the royal commission’s report; three days later, it revised the figure again to 437. Started two years ago, the Guardian’s “Deaths Inside” project, partnered by the University of Technology Sydney, is the only up-to-date database. The Australian Institute of Criminology provides its own count, but less regularly; it stands at almost 400 deaths.

The unacceptably high arrest and incarceration rates that lie behind these numbers have not fallen since the royal commission’s report. So bad are they that the Australian Law Reform Commission conducted its own inquiry three years ago. With 3 per cent of Australia’s population, Aboriginal people comprise 27 per cent of adult prison inmates; among Aboriginal women the rate is even higher, at 34 per cent. The commission found that overall Aboriginal incarceration rates had risen 41 per cent in the decade to 2016, and the gap between Aboriginal and non-Aboriginal imprisonment had grown wider.

Consultants PwC Australia calculated that Indigenous incarceration could cost the Australian economy almost $10 billion in 2020, and twice that figure by 2040 if nothing is done.

With numbers like these, it was little wonder that the law reform commission repeated the royal commission’s call for custody notification services when it presented its report to federal attorney-general Christian Porter in late 2017. There should be a “statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service,” it said, “as soon as possible after an [Indigenous] person is detained in custody for any reason — including for protective reasons.”

This call, too, has mostly gone unheeded. Tom Calma, a senior Aboriginal figure and a member of the inquiry’s advisory committee, tells Inside Story that a CNS gives Aboriginal detainees a “friend” on the outside whom they can speak to and trust: “It’s so sad governments haven’t adopted it broadly.”

New South Wales introduced the first custody notification service in 2000. It obliges police to put Aboriginal people in touch with the state’s Aboriginal legal service once they’re taken into custody. Nadine Miles, principal legal officer of the Aboriginal Legal Service (NSW/ACT), describes what happens next: “We provide legal advice and conduct a welfare check, asking how they’re feeling, if there’s any medication they need — matters like that. We inform family members and encourage them to attend if instructed. If further conversations are needed, we call back. For police, all this reinforces the obligations under their duty of care.”

The approach has succeeded — with one fatal exception, which pointed to a simple flaw in the NSW scheme. Rebecca Maher died in a police cell in Maitland in July 2016 after being detained by police because she appeared intoxicated in the street. She was not charged with any crime. Police did not seek medical help, and nor did they put Maher in touch with the custody notification service. At the time, the law didn’t require them to take that extra step.

In her finding on Maher’s death, the acting state coroner, Teresa O’Sullivan, suggested Maher might have lived if the CNS had come into play. She criticised the fact that police were obliged to notify the service only if someone was in custody for an offence, not if he or she were detained while drunk. O’Sullivan recommended that NSW legislation be amended to cover this circumstance; it was changed in 2019.

Some lawyers agree with O’Sullivan’s call for a wider definition of police custody for the CNS; they argue it should cover a process of police arresting someone or taking any steps that bring someone under police control.

Outside New South Wales, the rollout of custody notification services has been patchy. The former federal Indigenous affairs minister, Nigel Scullion, once called for a “consistent national approach,” yet it wasn’t until last year that Western Australia and Victoria legislated for their introduction. The failure to achieve national consistency boils down to one main factor: funding for legal services.

Scullion provided three-year funding for the NSW service to 2019. It was extended to 2020, and Ken Wyatt, his successor, has recently extended it again, but only for another three years. Scullion also dangled the prospect of federal funding for similar programs in all states and territories. But he insisted not only that the rest of the states and territories pass legislation to make CNS a mandatory process (as the royal commission had demanded), but also that the states pick up funding after three years. Some states have still not passed such legislation, although they claim to offer legal help for Aboriginal people in custody. And most states have been slow to offer money.

The fact that all states still don’t provide what Scullion called a “critical service” for Aboriginal people in custody seems staggering. Nadine Miles calls for a change in political will. With the states responsible for running their own criminal justice systems, she understands Canberra’s push for them to underwrite the Aboriginal legal services for CNS. “That said, the constant argy-bargy means the Aboriginal people lose out,” she says. “Funding for CNS is a constant conversation.”

Nerita Waight, of the National Aboriginal and Torres Strait Islander Legal Services, says Victoria’s CNS has had about 1200 calls a month from incarcerated people since it started eight months ago. “And that’s a good month,” she adds. “It can rise dramatically.” Instead of arguing over funding, she says, governments should develop “urgent partnerships” with Aboriginal legal services: “Deaths in custody should be a paramount issue for the Commonwealth.”

On their own, custody notification services won’t stop high rates of Aboriginal imprisonment. But they can form part of a broader “justice reinvestment” approach that both the royal commission and the law reform commission recommended. This involves putting less public money into building yet more prisons and more into social programs designed to keep people out of them. It also allows Aboriginal leaders to be at the forefront of such reforms. Bourke, in outback New South Wales, has taken Australia’s most innovative approach so far, and is bringing incarceration rates down.

Governments will also have to be more upfront about recognising Australia’s historical legacy as a source of Aboriginal inequality. Nearly three decades ago the royal commission identified Aboriginal inequality as “a direct consequence of their experience of colonialism and, indeed, of the recent past.” It’s striking how Australia’s leaders by and large still shy away from debate about this central fact.

Just last week prime minister Scott Morrison responded to the outcry over George Floyd’s death in police custody in America by calling it “upsetting,” before adding: “And I just think to myself how wonderful a country is Australia.” Morrison’s complacency contrasts with the greater willingness of Canadian prime minister Justin Trudeau to confront a problem that festers in both countries.

On 11 June, Trudeau said that “systemic racism is an issue right across the country, in all our institutions.” He added, “It is recognising that the systems we have built over the past generations have not always treated people… of indigenous backgrounds fairly through the very construction of the systems that exist.” When Scott Morrison was questioned that same day about statues linked to slavery being pulled down in other countries amid the Black Lives Matter campaign, he dismissed the notion that Aboriginal people in Australia had ever undergone slavery: “This is not a licence for people to just go nuts on this stuff.”

As he spoke, plans for more Black Lives Matters protests were going ahead. A court had banned marches in New South Wales, citing coronavirus concerns, and Morrison had warned that those who attended could be charged. But Aboriginal leaders still see the marches having a positive impact on dealing with deaths in custody. “That’s not to say there isn’t systemic racism that stops some people from taking the issues seriously,” says Nadine Miles. “But I think we have in Australia a population who are interested in hearing more and understanding the issues.” For his part, Tom Calma sees “glimmers of hope” that the national cabinet could come to grips with these issues. •

Funding for this article from the Copyright Agency’s Cultural Fund is gratefully acknowledged.

The post A friend on the outside appeared first on Inside Story.

Patrick Mullins is the recent winner of the NSW Premier’s Douglas Stewart prize for his previous book, Tiberius with a Telephone: The Life and Stories of William McMahon (Scribe, 2018). His new book takes us on a fascinating journey through the final years of Australia’s literary censorship system, deftly telling the story of the many obscenity trials prompted by sales of Roth’s controversial novel in this country.

Australia’s censorship regime was a complex one, involving federal and state mechanisms designed to prevent offending books from being published, sold and circulated. Dating back to the late nineteenth century when the novels of Émile Zola, Honoré de Balzac and Guy Maupassant were considered too racy and radical for the Australian reading public, the multilayered system grew especially fierce through the interwar period. As Nicole Moore shows in her 2012 book, The Censor’s Library, the system brought together the customs system, postal regulation and various other legal mechanisms. The federal government had also added a Literature Censorship Board, on which a mix of scholars and bureaucrats determined the fate of books.

Many books had been banned from importation from the 1930s to the 1960s. They included Radcliffe Hall’s The Well of Loneliness (1928), D.H. Lawrence’s Lady Chatterley’s Lover (1929), Aldous Huxley’s Brave New World (1932), George Orwell’s Down and Out in Paris and London (1933), Kathleen Winsor’s Forever Amber (1945), J.D. Salinger’s The Catcher in the Rye (1953), Grace Metalious’s Peyton Place (1959), and James Baldwin’s Another Country (1962). Locally, Norman Lindsay’s Redheap (1930) was among the books placed on the prohibited list.

Sex was the main objection — especially anything suggestive of “deviant” sexuality, which at the time was considered to include homosexuality, masturbation, obscene language, pornographic scenes and sex without consequences. But radical politics was also suspect, as was contempt for religion. Proponents of censorship believed that people needed protection from the corrupting and depraving effects of such material. Scholars have shown how the system created a culture that was conservative, timid and quarantined from intellectual and cultural influences flourishing abroad. As Dymphna Cusack concluded when her own book (written with Florence James) Come In Spinner (1951) could only be published with severe cuts, Australians were basically wowsers.

By the time Portnoy’s Complaint came along, resistance to censorship was growing. Occasional challenges had been launched and voices raised in opposition since the 1930s. By the 1950s, many books had been removed from the banned list on the basis of their literary merit. But the 1960s was the decade that really saw a concerted effort to overturn the system. The student and radical alternative press — which included magazines such as Oz — aimed to provoke reaction by testing its boundaries. Plays like Alex Buzo’s Norm and Ahmed (1968) began making use of offensive language. But the real test came with the Australian publication of a controversial novel by an American writer.

Portnoy’s Complaint is written from the point of view of Alexander Portnoy, a sexually frustrated young man narrating his erotic experiences to his psychoanalyst. There are a great many descriptive scenes of masturbation in the novel; a memorable one (often cited by the prosecutors in the trials) involved Portnoy masturbating into a piece of liver that his mother then serves for dinner. Roth also made use of a litany of obscene words to punctuate his text, including such profanities as “fuck,” “cunt” and “prick.” The book was a sensation, and the US critics praised its originality and creativity of language.

But was Australia ready for such a book? The Literature Censorship Board, divided as to whether Portnoy could be allowed into Australia on the basis of literary merit, decided to ban it. Outraged, many Australians, including publishers and the literary community, resolved to have the decision overturned.

The censorship regime was already wobbling. Politicians were divided over its effectiveness, especially given emerging differences between federal and various state views. The appointment of a relatively young MP, Don Chipp, as customs minister seemed to offer the possibility of a more liberal approach. But although Chipp was sympathetic to critics of censorship, many in the community still supported the system. Portnoy was going to remain banned.

And so began Penguin’s campaign. With great speed and secrecy, Portnoy was printed and distributed across the nation. Once it went on sale (usually from behind the counter rather than openly displayed), it sold out almost immediately. Enforcing the ban was in the hands of state governments, though, and this is where things started to go wrong for the censors. South Australia, under Labor premier Don Dunstan, declined to prosecute as long as the book wasn’t on view, a decision that revealed a lack of unity among the states from the start. But other states raided bookshops and proceeded to take booksellers to trial.

A significant part of Mullins’s book is devoted to describing the trials, and they make for entertaining reading. Prosecutors did what they could to demonstrate the offensive nature of Portnoy: in the Victorian trial, for example, they contended that sexual references and four-letter words appeared, respectively, on 28.1 per cent and 17.5 per cent of the book’s pages. In the NSW trial, prosecutors tried desperately to prove that the book was being sold to schoolgirls, yet they couldn’t produce proof it had actually happened.

Witnesses for the defence made up a who’s who of Australian literary and academic circles: Patrick White, Stephen Murray-Smith, Nancy Keesing, T.A.G. Hungerford, Alec Chisholm and Dorothy Hewett were just some of them. All testified to the literary merit of Portnoy. Patrick White commented on the stand that he had no problem with “fuck,” “cunt” or “prick” as he used such words himself, daily. After his cross-examination at the second NSW trial, he wrote to publisher and writer Geoffrey Dutton: “the prosecutor [P.J. ‘Jack’ Kenny, QC] I can only describe as a cunt.”

The trials would ultimately have mixed results. In Western Australia, the book was found to be obscene but also to have literary merit, and so it could be sold. In Victoria, the verdict went against Penguin, but an appeal was lodged. In New South Wales, the courtroom drama dragged on: two trials were held, but no verdict was reached. Shortly after NSW authorities decided on 28 May 1972 not to go to a third trial, Chipp took Portnoy off the banned list. In December, Gough Whitlam and Labor won office and the old censorship regime was swept away in favour of a classification system. Literary works would not be in the firing line again, at least not because of sex and four-letter words.

Mullins’s compelling account of these last days of the old censorship regime skilfully draws on a rich range of sources, including interviews with many of the key figures involved. He gives an insight not just into how the system operated and the politics involved, but also into a significant cultural moment in Australia.

Australian publishers were beginning to flourish in this period. While the case centred on an American novel, Penguin was establishing itself in Australia as a publisher of both imported and homegrown literature. A more diverse Australian cultural and literary scene would result from the work of such publishers as well as the lifting of stultifying censorship.

The Trials of Portnoy is a very welcome contribution to the small but significant literature about the history of censorship in Australia. While Mullins chooses, perhaps wisely, not to weigh in with any reflections on current, all too complex, questions raised by “cancel culture,” no-platforming and other limits on freedom of speech, this book provides some much-needed context for thinking about the issues raised by controversial and offensive material.

While we will likely never see this kind of literary censorship again in Australia, we should not assume that our creative and intellectual freedoms will always be protected. Nuanced discussions about the meanings of such freedoms are vital — as is thinking about how best to balance them against the damaging impact of discriminatory language, hate speech and other expression that might offend some members of the community. •

The post Literary censorship’s last gasp appeared first on Inside Story.

Until Saturday, that is, when a surge of people clotted the streets: police officers kitted out in full riot gear, protesters with face masks that were now pulling double duty, protecting them both from disease and from the clouds of tear gas and smoke that would soon fill the square.

The lockdown that emptied New York City’s streets came to an abrupt end as protests formed in places like Harlem, Brooklyn and Union Square. Those protests, which began in Minneapolis, were replicated across the United States. From Atlanta to Salt Lake City and Beverly Hills, Americans took to once-empty streets to protest police brutality in the kind of national uprising that has not been seen in the United States since the late 1960s.

The protests flared in reaction to video of the death of George Floyd, a black man in Minneapolis who died after a white police officer pressed his knee into Floyd’s neck for nearly nine minutes. But they were also a reaction to more than a century of police brutality, and a president who has made it clear that he is on the side of the brutalisers.

Following the abolition of slavery, US states enacted a series of racist laws that legalised discrimination. That system was enforced not only through the courts but also with systematic violence against black Americans: violence committed by police officers, as well as violence committed by white civilians who went unpoliced and unprosecuted. As a result, protests against police brutality grew up alongside protests against lynching.

Such crimes were not limited to the American South. Between 1910 and 1920, African Americans accounted for 21 per cent of the people killed by the Chicago police force, even though they were only three per cent of the city’s population.

But fighting police brutality and police murder was perplexingly difficult. The police were reluctant to hold themselves accountable, and neither prosecutors nor the courts showed an interest in charging law enforcement officers.

The only recourse, then, was to work around the local and state systems of justice by going directly to the federal government. But this, too, provided limited relief. An administration run by, say, president Woodrow Wilson, who re-segregated the federal government once he took office in 1913, was not likely to be a source of relief for black people abused by law enforcement.

That changed in 1939, when the new attorney-general, Frank Murphy, set up a civil rights unit at the justice department specifically to investigate wrongdoing by local law enforcement. “Where there is social unrest,” he said when he announced the new unit, “we ought to be more anxious and vigorous in protecting the civil liberties of protesting and insecure people.” And no one was more insecure in their interactions with police officers than black Americans.

But even with a new unit investigating police wrongdoing, police violence against black Americans continued. By the 1960s, it had become one of the most visible crimes in the United States, with southern sheriffs sicking German shepherds on black protesters and clubbing them with night sticks even as the television cameras were rolling. And while the Civil Rights Act of 1964 empowered the government to do more to protect black civil rights, it did not dissuade police from engaging in riotous acts of brutality, against not only black Americans protesting for their right to vote but also anti-war and anti-racist protesters later in the decade. Indeed, the most iconic images of the decade involved police brutalising citizens in places like Chicago, New York and Selma, Alabama.

People challenged police brutality in a variety of ways. In New York City, the local branch of the National Association for the Advancement of Colored People set up its own Committee of Action against Police Brutality because it didn’t trust the city’s police department to investigate and prosecute claims. Black leaders pushed for a civilian review board that could provide oversight in cases of police brutality. Meanwhile, spontaneous uprisings continued as new episodes of police violence triggered longstanding frustration. That’s what happened in Harlem in July 1964, when a white off-duty police officer shot and killed a black teenager. Six days of civil unrest followed.

Outcry against police brutality has gone hand-in-hand with fury over a lack of accountability. It’s not just that police officers use excessive force against black people; it’s that, so often, they are not held responsible for what they’ve done. The only demand of civil rights organisers during the 1964 Harlem protests was that the officer be suspended. He was ultimately cleared by a grand jury.

That was the case in 1992, too, after four white police officers viciously assaulted Rodney King. The beating was caught on video, but the video itself did not trigger riots. The Los Angeles riots began only after the officers were acquitted. (Later a federal civil court found two of the officers guilty of violating King’s civil rights.)

In the past several years, the United States has been riven by protests in response to police killings of unarmed black men and women (and children, in the case of Tamir Rice, a twelve-year-old shot and killed while playing with a toy gun in a park). These murders, often caught on video, have rarely resulted in convictions. But they have given rise to a broader civil rights movement, Black Lives Matter, which continues to push for everything from de-escalation training to an end to qualified immunity, the legal doctrine that makes it almost impossible to prosecute officers for criminal conduct.

But even as that movement gains strength, it has lost a powerful ally: the federal government. With Donald Trump as president, activists know not to seek help there. After all, Trump, speaking to law enforcement officers in Staten Island a few years ago, actually encouraged police to rough up people they arrest. “When you see these thugs being thrown into the back of a paddy wagon — you just see them thrown in, rough — I said, please don’t be too nice,” the president said to laughter.

Trump also echoed segregationist sheriffs when, late on Friday night, he warned, “When the looting starts, the shooting starts.” The saying was first used by police chief Walter Headley, who escalated force against black neighbourhoods in Miami in the late 1960s. In another echo of 1960s-era police violence, Trump tweeted that protesters would be greeted by “vicious dogs” if they returned to the White House.

Yet even with all this — the pandemic, the threats of violence — protesters still took to the streets to call for justice. Because they know from a century’s experience that there is never a safe time to challenge police brutality. The pandemic did not keep police from killing George Floyd, and it won’t keep Americans from seeking justice for him, either. •

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Many of these new laws and powers have been welcomed as necessary to keep the community safe. But how do we make sure governments are keeping our rights and interests front of mind as they make these laws and give themselves these powers? How do we make sure that the “extraordinary” measures remain proportionate to the risks we face?

In Australia, we look to parliaments rather than the courts to protect our individual rights and balance competing interests. We expect MPs rather than judges to draw the line between protecting the right to personal privacy, for instance, while responding to public health crises. While some Australian states and territories, notably Victoria, Queensland and the Australian Capital Territory, have special human rights legislation, most Australians can’t point to a single law that protects their rights. Instead, they rely on a range of laws and practices.

This is what academic lawyers like George Williams and Lisa Burton call the “parliamentary” model of rights protection. As long as parliaments don’t contravene the Constitution, they are free to take away our rights. We can’t go running off to court to enforce our right to freedom of movement, for example; instead we need to let politicians know how we feel through the ballot box.

Australia’s approach depends heavily on the idea that groups of parliamentarians, brought together with members from all sides of politics in parliamentary committees, will sound the alarm about a proposed law that looks likely to have a negative impact on individual rights and liberties or to transfer too much power to the executive government or its agencies. Sounding the alarm won’t necessarily stop the law being made, but it will at least make sure that other parliamentarians and the public know what they are in for when the law is debated.

This process is particularly important during emergencies. New laws are often rushed through parliament without much chance for the public or other external experts to consider their details or suggest alternatives. In fact, the very first parliamentary committees in Australia were set up in wartime in an effort to slow down the transfer of power away from parliament towards the executive.

Now we face a different type of war, but we remain heavily reliant on parliamentary committees to play this scrutiny role and, when necessary, sound the alarm.

Parliamentary committees comes in many forms, and they assess and report on rights-related laws in a variety of ways. At one end of the spectrum are the more sophisticated scrutiny committees in federal parliament and in Victoria, the Australian Capital Territory and Queensland, which look at all proposed laws and test them against human rights principles set out in such legislation as the Commonwealth Human Rights (Parliamentary Scrutiny) Act 2011. At the other end of the spectrum are jurisdictions like South Australia, which lack any overarching human rights legislation or any requirement to scrutinise bills against prescribed criteria, instead relying on an ad hoc system of committee review.

No matter where they sit on the spectrum, all of these parliaments can set up select committees to examine and report back on particular laws or policy areas. These committees are often granted a range of powers to engage with the public. Flexible in mandate, time frame and outputs, it is this “species” of committee that has been commonly employed to undertake the Covid-19 oversight role.

A good example is the federal Select Committee on Covid-19, which the Senate has empowered to examine the federal government’s response to the Covid-19 pandemic. Although it doesn’t need to present a final report until 30 June 2022, the committee has called for submissions from the public by 28 May 2020. Its terms of reference — to examine “the Australian government’s response to the Covid-19 pandemic” and “any related matters” — are broad. The committee chair is ACT Labor senator Katy Gallagher. Her deputy is Victorian Liberal senator James Paterson, and the other committee members are NSW Nationals senator Perin Davey, NSW Labor senator Kristina Keneally, Queensland Labor senator Murray Watt, Tasmanian independent senator Jacqui Lambie and WA Greens senator Rachel Siewert. Other senators will join in as “participating” members, an interesting feature of the Commonwealth committee system not replicated in all Australian states.

The committee has been pretty busy so far, calling on a range of key public officials to detail their advice to government during the pandemic. Treasury officials, for instance, have been quizzed about how the government’s response is affecting the federal budget, health officials have been asked about the timing of travel bans and other restrictions, and programmers have been questioned about the privacy protections in the COVIDSafe app. The committee has also asked public servants about the impact of the Covid-19 response on key services such as the National Disability Insurance Scheme and on vulnerable groups such as those in remote Aboriginal communities.

Select committees in South Australia and the Australian Capital Territory have been given similarly broad terms of reference and wide powers to call for public submissions on the Covid-19 response and to request information from government. In New South Wales, the Legislative Council’s Public Accountability Committee has been given the job of examining the state government’s management of the pandemic.

In jurisdictions with more sophisticated committee systems, select committees generally work alongside existing committees, including the Senate Standing Committee for the Scrutiny of Bills and the Standing Committee for the Scrutiny of Delegated Legislation, which have existed at the Commonwealth level for many decades. These committees scrutinise proposed laws using certain rights-based criteria, rather than evaluate their policy merits.

At the Commonwealth level, those two committees, along with the statutory Parliamentary Joint Committee on Human Rights, or PJCHR, have been busy looking at Covid-19 laws. Like the workers stocking the shelves at Woolworths and Coles, and despite the general exodus of MPs from Canberra, committee members and their secretariat staff have been slogging away behind the scenes. The PJCHR, for instance, says it has “committed to meet regularly by teleconference to continue its important work of scrutinising all federal legislation for human rights compatibility, including legislation relating to the Covid-19 pandemic.” The delegated legislation committee is also meeting regularly with a similar goal, and has published a list of all Covid-19–related entries on the Federal Register of Legislation.

All this leaves us with the vital question of whether these special parliamentary committees — either going solo or working alongside other committees — are up to the job of providing a meaningful check on executive power and scrutinising the impact of government actions on rights.

The short answer is that the proof will be in the pudding. The clearest way to measure the impact of these committees is to look for changes in the laws and policies themselves, such as changes that better balance individual freedoms against collective healthcare or economic interests.

There is reason for some hope. We have already seen the federal government respond to concerns about the COVIDSafe app by introducing draft legislation to limit how information is collected, stored and used. The committee process has also helped to uncover who is missing out on social welfare packages and to highlight the complex impact social distancing measures are having on different business and service sectors.

The federal select committee also looks to be doing pretty well when it comes to engaging meaningfully with experts, community organisations and individuals, and welcoming participation from all sides of politics. The tone was set by committee chair Katy Gallagher at the committee’s first hearing. “This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government’s response to the pandemic for the Australian people,” she said. “We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be.”

It is too early to see how all of these factors will play out or to accurately gauge the committees’ impact. It may take years to evaluate their role and influence, particularly given the long reporting time frames. But their mere existence shows that parliamentary committees hold an important place in our rights-scrutiny culture. Rather than looking to the courts to keep watch on extraordinary executive powers, we want groups within parliament to play that role. It also seems that we — that is, the community — expect the chance to have our say about these extraordinary laws, even if we can’t attend Parliament House in person. •

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Under border restriction regulations imposed in Queensland since early February, Sladen was summoned to appear in court, where, on 6 May 1919, he was sentenced to a month’s imprisonment. Across two borders to the south, the Victorian branch of the Australian Natives Association protested against this treatment of a returned soldier; Sladen nevertheless served out his time at Brisbane’s Boggo Road Gaol.

Sladen’s service to his country hadn’t counted for much for the sentencing magistrate, who believed the higher duty of deterring others weighed heavily at a time when the “public health was so gravely concerned.” In fact, Magistrate Dean would have a busy month dealing with cases involving breaches of quarantine, handing out his severest sentence, of three months, to a thirty-eight-year-old bookmaker who had tried to slip across the border at Coolangatta with his two clerks. In that case, the evidence appeared to show an intention to evade quarantine controls at Wallangarra, the centre of Queensland’s border control efforts.

The quarantine and isolation measures introduced during the Spanish flu were resented most famously by rebellious soldiers, and inconsistencies in rules across the country and disunity among the states and the Commonwealth didn’t help. Indecision by the quarantine and port authorities lay behind an alleged mutiny by returning soldiers on an overcrowded vessel, the Somali, in Adelaide. The mutiny might have consisted of little more than threats by soldiers to row themselves ashore, but it resulted in the arrest and court martial of the federal Labor member for Adelaide, Edwin “Gunner” Yates. Yates’s trial was no mere formality, but his able young counsel, Alf Foster, couldn’t save him from conviction and sixty days in detention.

In spite of cross-border transgressions and unhappy returning soldiers, the necessity of quarantine was largely accepted at the time. With a lower death rate than in neighbouring New Zealand, and well short of the catastrophic eruptions in places like India, Australia was relatively fortunate. Geographic isolation, assisted by maritime quarantine and some state-imposed restrictions, undoubtedly helped save lives.

Epidemics have patterns — they fall unevenly on populations, on regions and over time. Australia’s epidemic was no different. Having arrived late here, infections peaked more than a year after the virus had washed through most other continents in the second half of 1918. Instead, “Spanish flu” was a 1919 experience for Australia.

The epidemic’s sudden arrival in Melbourne and Sydney in January touched off a rapid increase in deaths over the next three months. Every state subsequently experienced two waves, with a short intervening period. But the first impact was spread over a number of months in different states.

In spite of the somewhat fractious political climate, all states came to be declared as quarantine areas, beginning with New South Wales and Victoria in late January. South Australia’s declaration came a week later, Queensland not until May, Western Australia in June and Tasmania, the last, in August. This administrative history maps onto the mortality calendar in 1919, with a first peak in April, a short period of decline through May and then the greater impact in the middle of the Australian winter in July. By the end of the year few deaths were being recorded.

New South Wales was the state most affected, not only in absolute numbers but per head of population. Tasmania — conventionally regarded as having survived best because of its maritime isolation — had a mortality rate no different from that of South Australia. All states except Victoria closed their borders at one time or another, despite the view of the Commonwealth director of quarantine’s view that such closures would be futile, impossible to monitor and potentially dangerous because they involved ill-equipped quarantine facilities at rural outposts like Wallangarra.

Queensland’s determination to close its borders and prosecute transgressors like Frederick Sladen didn’t save it from a mortality rate much the same as Western Australia, though still below that of Victoria and New South Wales. The states mostly relied on light policing, with only Queensland appearing to have resorted to exemplary imprisonment of a few. In Sydney, zealous policing of mask regulations in early February led to hundreds of fines.

Trouble would come later for a state government that found it had exceeded its powers, however. In November the High Court upheld an appeal by hoteliers against prosecutions for breaching trading restrictions in New South Wales. And in December a Balmain doctor who had been committed for trial in February after breaching mask regulations was awarded £150 damages by a jury that agreed he had been falsely imprisoned by a Sydney magistrate. The doctor’s lawyer was future High Court judge and Labor leader, H.V. Evatt. In the end, the states’ regulatory powers remained contentious, as did the level of police enforcement needed to protect the community.

New South Wales eased its restrictions after April, only to find the epidemic return more fiercely in winter. The postponed Peace Ball at Sydney Town Hall in early June was subsequently blamed in the press and by public health authorities for adding to the spread of infection.

Just as national figures disguise a different story in each state, so were the epidemic’s effects different across the population generally. The influenza of 1919 especially affected young men up to the age of forty, and even more so if they were working class-men living in the poorer and inner-city suburbs of Sydney. In Queensland, the greatest impact fell on Aborigines. The chief protector’s annual report for 1919 revealed that at least 298 Aboriginal people had died, making up more than a quarter of the state’s deaths from influenza and constituting a death rate up to nine times that of the general population. Western Australia’s protection regime appears to have prevented significant Aboriginal mortality in that state, but in Queensland Aboriginal workers who became sick on farms and stations were sent back to their home settlements only to pass on the virulent infection.

The differences in global, medical and political context over the span of the past century raise questions about whether we can learn much from the Spanish flu pandemic. Much was changed by its impact — in stimulus to medical research that eventually uncovered its cause to be a virus rather than bacterial, and in the development of medical and hospital systems to better cope with infectious diseases — so there’s some point in revisiting the evidence to estimate what accelerated or limited its spread. In particular, though, the fact that all states, and especially New South Wales, experienced a more damaging second phase after restrictions were lifted is an ominous reminder of the risks of impatience in the face of an epidemics. •

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It was 1986 and I was working in Canberra as foreign affairs and defence correspondent for the Age. Turnbull, who had dabbled briefly in journalism before realising there was a bigger future and a lot more money in media law, was a cocky young lawyer about to secure an outsized international profile. The publicity would launch him towards his lifelong ambition of becoming prime minister.

On the morning in early November I picked up my home phone to find Turnbull on the line. I had landed a minor scoop that had appeared on the front page of the Age. On the basis of a cabinet leak, I reported that the Hawke government had resolved to join a case in the NSW Supreme Court in support of the British government’s bid to block publication of Spycatcher.

Former MI5 agent Peter Wright, then living in retirement in Tasmania, had spent much of his twenty-five-year career with the British spy agency hunting Russian moles — a busy enterprise during the era in which top agents Kim Philby, Guy Burgess and Donald Maclean were revealed as traitors. Wright had investigated Roger Hollis, head of MI5 from 1956 to 1965, and his book set out his case that Hollis was another double agent and should not have been cleared. The Thatcher government had obtained a preliminary injunction to stop the book’s publication in Britain and now wanted to stop its release in Australia.

The revelation that Hawke’s Labor government was getting into bed with Britain’s Tories to silence a whistleblower was significant news, although ultimately its support would have little impact on the outcome of the case.

The morning phone conversation began cordially enough, with Turnbull complimenting me on a “great story” before requesting that I tell him who my source was. When I gently pointed out that, as a former journalist, he should understand that revealing sources was the equivalent of breaching the seal of the confessional, the caller exploded, describing me in terms that might make even sophisticated Inside Story readers blush. Before slamming down the phone, he declared, “Don’t ever expect anything from me.”

It had never occurred to me that I might expect anything from Malcolm Turnbull, and in the years since he left with a dial tone I was relieved never to find myself in a situation of needing anything from him — beyond, perhaps, the republic he was supposed to deliver and some serious action by his faction-riven government on global warming.

A few days after the morning call, I was seated in courtroom 8B of the Supreme Court in Sydney for the commencement of the Spycatcher hearing. While I’ve forgotten most of what happened over subsequent days, two indelible memories remain.

The first was the brash and theatrical style with which the thirty-two-year-old Turnbull conducted himself, and how much his antics were indulged by Justice Philip Powell, who seemed almost in awe of the young Rumpole. The other was the starkly contrasting presence of the urbane Sir Robert Armstrong, cabinet secretary and head of the British civil service, who had been sent by Thatcher as her government’s principal witness.

In an immortal moment, Turnbull was questioning Armstrong about Andrew Boyle’s 1979 book The Climate of Treason, which effectively outed Anthony Blunt as the fourth member of the Cambridge ring of Russian spies. Turnbull was seeking to demonstrate that the British authorities had turned a blind eye to the disclosure of official secrets in Boyle’s book and shouldn’t be treating Spycatcher differently.

Turnbull had established that the British government was well aware of the Boyle book before its publication and had, indeed, obtained a copy, yet Armstrong had written to the publisher asking whether Thatcher could be provided a copy to enable her to be fully informed should she need to make a public statement. Turnbull pressed Armstrong as to whether the letter was calculated to mislead. Armstrong conceded the point but insisted that creating a misleading impression did not amount to lying.

Turnbull: What is the difference between a misleading impression and a lie?

Armstrong: A lie is a straight untruth.

Turnbull: What is a misleading impression — a sort of bent untruth?

Armstrong: As one person said, it is perhaps being economical with the truth.

The delicious phrase might have danced straight out of a script for Yes Minister, the classic TV series at the height of its popularity at the time. And while it may have originated with Edmund Burke’s expression of “an economy of truth,” it was propelled into the lexicon of global political commentary by Sir Robert Armstrong in an austere Sydney courtroom in November 1986.

These memories have been stirred with the arrival of Malcolm Turnbull’s memoir A Bigger Picture. And big it certainly is — a 700-page, densely typeset tome landing, fortuitously for its author, in the time of national home detention when surely no one has anything better to do than relive the career of our most recently superannuated statesman. (And should any reader bridle at the size of the task, be thankful the author only lodged at The Lodge for just under three years.)

Turnbull had already gained prominence working in the early 1980s as general counsel for media mogul Kerry Packer and successfully running his defence against scurrilous allegations raised in the Costigan royal commission into union corruption and tax evasion. But the Spycatcher trial would take his brand to another level.

As Turnbull writes, he was approached to run the case by a London solicitor representing the book’s publisher, Heinemann. The pitch was hardly enticing for an ambitious lawyer who had only started in private practice a few months earlier. He was advised that Heinemann was depressed about the British injunction, was ready to throw in the towel and would only proceed if it could be done cheaply.

In the end, Turnbull agreed to do it for a flat fee of $20,000. It would turn out to be the best low-budget commission of his fabulously well-remunerated career as a commercial lawyer and, later, merchant banker.

Thanks largely to the admissions he extracted from the hapless Sir Robert, Turnbull won the case. Justice Powell ruled that having failed to take action to prevent the publication of Their Trade Is Treachery and other books with similar content to Spycatcher’s, the British government had “surrendered any claim to the confidentiality of that information.” When the case went to the NSW Court of Appeal later in 1987, Turnbull won again.

Obstinate to the end, the British then took the case to the High Court, where in early 1988 their repudiation was complete — the judges voted seven–nil in favour of Spycatcher. The road to greater fame and fortune now unfolding before him, Malcolm Turnbull found no need to be economical with the truth.

“I’d taken on the UK government and its army of top lawyers, fought the case through a trial and two appeals and won,” he writes. “What appalled many of my former colleagues at the Bar was that not only was I absurdly young, at thirty-two, but that I hadn’t appeared as a barrister, but unrobed as a solicitor. Surreally, the case was much bigger news in London than in Australia. I was being encouraged to capitalise on my international notoriety — move to the Bar in London or New York; head spinning really.” •

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Turnbull remains one of the great puzzles of Australian public life. This book does only a little, at least consciously, to clear that matter up for us. Unconsciously, it’s rather more revealing: for, as his former business partner Nicholas Whitlam has suggested in the Weekend Australian, it’s a deeply evasive book in places. But its evasions are more meaningful than the “revelations” that have been the subject of many a sensational media article in recent days — and much more so than the sensational text messages, diary entries, WhatsApp conversations and all the rest on which Turnbull draws to provide his insider’s account.

This reader’s sensation was often that of a member of a jury being addressed by a skilled if not entirely scrupulous barrister. But there are also hints of a hard sell. By the end of the book’s almost 700 pages, I felt like someone trying to get away from a pushy salesman determined to press the latest mobile phone on me.

Turnbull, of course, has been on sale since the 1980s, and his particular blend of skills has invariably drawn a good price in the market. Kerry Packer saw his value early, and Malcolm didn’t let him down when, as the “Goanna,” the multimillionaire was subjected to allegations of criminality arising from the Costigan royal commission. Turnbull thinks he discredited Frank Costigan, but he was really just the paid advocate of a bully whose habit of keeping millions stashed in his office safe understandably aroused suspicion. Costigan, after all, had already found Australia’s wealthy elite riddled with clever crooks, many of whom were none too fussy about going into business with waterfront thugs in their efforts to avoid paying tax. But the young and ambitious Turnbull was clever enough to turn his defence of Packer into a civil liberties crusade and his role as Packer’s counsel into hot personal PR.

Turnbull also did much for his public profile in the case against the Thatcher government’s efforts to stop publication of that excruciatingly dull and thoroughly paranoid cold war memoir, Peter Wright’s Spycatcher. Turnbull, tender about Packer’s reputation, seems unworried that the book’s central claim — that MI5 chief Roger Hollis was a Soviet mole — was almost certainly false. But then Hollis was dead and, unlike Packer, didn’t have Turnbull on a retainer. Once again, Turnbull was the great crusader for right against might; in his summing up during the trial, he compared the cause of publishing Wright’s miserable book with the struggles of Australia’s shearing unions in the 1890s, a topic on which his mother, Coral Lansbury, had written.

It’s no surprise to find that there are plenty of actors in the family; Angela Lansbury is a relative. The account of his childhood is a mixture of nostalgia and pain — born before his parents wed, he was the product of a doomed marriage of ill-suited partners. The absence of his beautiful and talented mother, a writer for radio, is at the heart of the early part of the book, even while Turnbull seems to go out of his way to make it otherwise: “I don’t think I could have been any closer to Coral, nor do I think she could have been a better or more attentive mother.” Except that she leaves. And then she arranges for the furniture to follow her to New Zealand, where she had moved with a new husband, her third. Malcolm is told that she was merely studying for another degree over there; his father failed to inform him that his mother wasn’t coming back. “So, her absence crept up on me, like a slow chill around the heart,” he recalls.

But that’s almost the last we hear of Lansbury, who made an academic career in the United States: I suspect that the chill didn’t disappear any time soon, if ever. Turnbull provides an affectionate portrait of the father left behind, who was a bit of a lad, more like an older brother. But Bruce Turnbull scraped together the money to send Malcolm to Sydney Grammar as a boarder, which young Malcolm at first hates, because he is a bedwetter and is bullied. He eventually flourishes under the guidance of inspiring teachers.

Young Malcolm liked history and recalls writing an essay on Cosimo de’ Medici. That might explain a little: Cosimo was a Florentine banker, founding member of the dynasty that effectively ruled Florence, and a patron of the arts, architecture and scholarship. His indictment in 1431 accused him of “having sought to elevate himself higher than others.” Imprisoned for a time, he later made a triumphant return to political rule, becoming the city-state’s grand and visionary statesman. Any of that sound familiar?

When the artist Lewis Miller accepted a commission in the early 1990s to produce portraits of Malcolm and Lucy Turnbull, he decided on a homage to the Renaissance portraits of the Duke and Duchess of Urbino by Piero della Francesca, held in the Uffizi Gallery in Florence. An unimpressed Turnbull apparently thought that the resulting painting made him look like a “big, fat, greedy c—t.” (Ray Hughes, the Sydney dealer who arranged the commission, valiantly defended the artist by explaining that Miller was a realist painter.) But it’s hard to shake off the feeling that Turnbull has modelled himself on his image of a Renaissance-era Italian merchant-statesman, right down to the republicanism and the landed estate outside the city walls (actually, in the Upper Hunter).

Still a student at the University of Sydney, Malcolm is already doing political journalism for print radio and television. Like Paul Keating, he sits at the feet of old Jack Lang, and is attracted to “the romance and history” of the labour movement — presumably, in large part, through his mother’s influence — while always feeling like “a natural liberal, drawn to the entrepreneurial and enterprising.” With a good private school education behind him and an abundance of talent, energy and ambition, life now seems like pretty smooth sailing; opportunity just falls into his lap. He attends an Oxford Union debate while on a trip to England and speaks from the floor on the importance of a free press. Sure enough, Harold Evans, the Sunday Times editor, is present and sends him a note asking him to drop by in London. When he does, the next day, Evans immediately offers Turnbull a job, which he declines so he can finish his law degree back in Sydney. But there is a handy connection for the future. Life is sweet.

The run of luck continues. Back in Sydney, Turnbull turns up to write a profile of barrister Tom Hughes; he ends up marrying his daughter, Lucy. Soon, he is working for Packer, travelling the world signing up the West Indies team to World Series Cricket and arranging the Australian licence for Playboy. Then there’s a Rhodes Scholarship — although not on his first application — and a good degree from Oxford, despite his spending much of his time mucking about in journalism in London in the middle of a printers’ strike at The Times. The young man who admires the romance and history of the labour movement now tries to line up a deal that would have Packer come in, take over Times Newspapers, and break the unions. It is already clear enough that the cause dearest to Malcolm’s heart is Malcolm. There is no mention of the shearers’ unions on this occasion.

Tragically Bruce Turnbull, now a wealthy and successful hotel-broker, is killed in a light-plane accident soon after Malcolm returns to Sydney. Malcolm is now married, the owner of a Hunter Valley property inherited from his father, and a member of the bar; but what will Malcolm do with his life? He is not shy of aiming high. His “ambition was to get to the top of the profession and equal, if not excel, Lucy’s father.” It is a revealing way to frame one’s ambitions: to better one’s wife’s father, who was possibly the country’s leading barrister and a former federal attorney-general.

By the time he is forty, Turnbull has achieved his dream of financial independence. When he moves his family into a massive and luxurious waterfront mansion in 1994, he says that he has achieved what his father had always told him would be “the ultimate home”; fittingly, it overlooks the block of flats in which his father raised him. But interpreting such material is a job for Dr Freud and his followers, and not for an old-fashioned historian such as this reviewer.

Malcolm really begins to rake in the millions as a merchant banker in the late 1980s. His speciality is restructuring media companies, which are all over the shop in the wake of new media laws, the recklessness of some of the business figures involved — including Alan Bond, Christopher Skase and (Young) Warwick Fairfax — and the market and financial turmoil of the era. Turnbull falls out with Packer in the battle to control Fairfax, but Packer has already cheated him, so that’s okay. From there, it’s an even bigger fortune as an IT entrepreneur with OzEmail, and various dealings in mining and forestry in out-of-the-way places like Siberia, China and the Solomons, which are all aboveboard and environmentally friendly — nothing to see here.

Next, he closes his investment bank and joins Goldman Sachs, becoming managing director of its Australian operations. Paddy Manning’s biography of Turnbull points out that Turnbull became a partner in the firm just before it listed on the New York Stock Exchange. His new shareholding is likely to have added tens of millions to his wealth: one estimate put it at $70 million at the time Turnbull left the bank in 2001, much more than he made from his OzEmail investment. None of this is mentioned in A Bigger Picture. It’s hard to escape the conclusion that this particular evasion is better for the image Turnbull wishes to present in this book of a far-seeing, cutting-edge IT entrepreneur rather than the remarkably fortunate recipient of an enormous windfall.

Inconveniently — because he is moving, inexorably, towards a political career — Turnbull becomes entangled in one of the greatest corporate disasters in Australian history, the collapse of insurance company HIH. He assures us there is nothing to see here, either. Once again, you’ll end up rather better informed if you go to Manning’s biography.

His public profile increases enormously through his role in the Australian Republican Movement. The chapter on this topic is probably the most passionless of the book. It’s true he’s at the disadvantage of having written books on this subject before. But reading it now, it’s hard to imagine he ever cared enough to put in all those hours and hand over the $5 million he claims he paid to keep ARM going, but a lot of water has passed under the bridge since the defeat of the referendum in 1999. By the time he became prime minister, he couldn’t have made his lack of interest in pursuing the matter more apparent short of knighting Prince Philip. His predecessor already had that covered.

In 2004 he enters parliament via a good old-fashioned branch stack. He’s barely in the door before handing out advice on how to reform the tax system, which upsets the treasurer, Peter Costello. Still, John Howard soon promotes him to ministerial office, and, naturally, he is responsible for “one of the most enduring reforms of the Howard government,” the Water Act. Entering opposition late in 2007, he has to endure Brendan Nelson as leader, though apparently he has absolutely nothing to do with his fall. Nothing to see here.

Then, just four years after entering parliament, he becomes leader of the opposition. Good job. Malcolm tells us that, unlike Tony Abbott, he’s a “builder not a wrecker,” but he nonetheless opposes the Rudd Labor government’s second and larger fiscal stimulus during the global financial crisis because it wasn’t needed. China would have fixed everything anyway. In fact, he concedes almost nothing to the Labor government’s efforts to deal with the GFC. Malcolm always knows best, even in the worst economic crisis for eighty years, when plenty of minds at least as good as his own hadn’t a clue what was going to happen next.

He is deceived by weird and ill Treasury official Godwin Grech, who convinces him with a fake email that he has the dirt on Rudd. Turnbull is ashamed of himself — not, apparently, for accepting leaks from a senior Treasury official, but for allowing himself to be deceived and making that the basis of corruption accusations against Rudd. Turnbull loses the leadership in the midst of a party bust-up over the government’s proposal for a carbon pollution reduction scheme, which Turnbull wishes to support. He is betrayed by colleagues he trusts, and not for the last time. He goes into a deep depression in which he has suicidal thoughts and takes antidepressants. It is the most obviously honest section of the book. “I feel at present like a complete and utter failure,” he writes in his diary.

He decides to leave politics and then decides to stay. When the Abbott government is elected in 2013, he is given the communications portfolio with responsibility for the National Broadband Network, which keeps him busy. He doesn’t put a foot wrong, and the result is an NBN that is one of the best in the world. Nothing to see here, except “the largest single piece of infrastructure in Australia’s history.” Labor’s “smouldering trainwreck” is now “a success story.” Well done, Malcolm.

For Turnbull, there’s really no policy issue that won’t be resolved by turning his gigantic intellect to it — guided by a few corporate mates and old Sydney connections and the occasional academic researcher or clever staffer — and then applying a technical fix of some kind. So, cutting business tax is really just common sense because it will bring in investment and produce “jobs and growth.” There’s no need to ask whether it’s fair or even whether it leads to more investment or jobs, because Malcolm tells us it’s all good. On the other hand, he won’t touch negative gearing because it won’t help housing affordability as police and teachers own investment properties and the problem is really one of supply.

Tony Abbott and Peta Credlin make a hash of running the country. Abbott is “crazy” and “a threat to the nation and its security.” Scott Morrison is duplicitous and plotting, Peter Dutton extreme and plodding. Turnbull takes advantage of the gathering chaos and the well-founded fear that Abbott was leading the Coalition to defeat to move against his leadership. He wins the prime ministership, but Abbott, despite public undertakings of forbearance, undermines him from the very earliest days until Turnbull’s eventual fall. Still, the nimble Turnbull cleverly reforms the Senate voting system and engineers a double dissolution election for mid 2016. As ever, everyone including the media is left floundering and Malcolm is the smartest person in the room, the smartest person on every page.

But then things start to go wrong. Malcolm almost loses that election. It’s not his fault, however; it is Labor’s big lie that the government wanted to privatise Medicare. While recognising that his party has tended to unreliability on Medicare at times, including with Abbott and Joe Hockey’s 2014 budget proposal for a co-payment, not once does he pause to ask if he might have had anything to do with why the “lie” works. Could it be because Malcolm looks, sounds and acts like just the kind of guy who would try to privatise Medicare? Like a grammar school sook complaining of the beastly behaviour of the other boys on the rugby pitch, he makes a sulky, angry and graceless speech on election night that provides the country with a valuable insight into why so many people who have had to work with Turnbull rather dislike him.

Anyway, in the end it’s all okay because Australia by this time has entered a truly golden age of enlightened leadership: economically rational, socially progressive, firm, just and sane in its international dealings even when they involve tyrants like Donald Trump and Xi Jinping. Luckily, nimble Malcolm solves the problem of how to deal with the marriage equality issue. Opposed by both hardliners in his own party and a Labor opposition intent on using the issue for political gain, Malcolm finds a way through — the smart technocrat is triumphant again. He claims same-sex marriage as one of his government’s greatest achievements. For good measure, he denigrates the Yes campaigners; let’s not share any of the credit for reform, which is such a rare commodity these days. This chapter, along with his embarrassing special pleading about why he rejected the Indigenous Voice to Parliament, provides an especially vivid illustration of Turnbull’s chutzpah, opportunism and elitist understanding of politics. Cosimo de’ Medici would have understood it all too well.

A Bigger Picture leads us on a lengthy excursion through international meetings, policy triumphs and media conspiracies. Turnbull is proud of achievements, such as the foreign interference laws, energy infrastructure including Snowy 2.0, and the Trans-Pacific Partnership (minus the United States). He defends Gonski 2.0 as good policy, but clearly also enjoys the politics of flaunting his old Sydney Grammar School chum in the faces of the Labor Party and teachers’ unions. With this Renaissance prince, Machiavelli’s Cesare Borgia is usually not trailing too far behind Cosimo de’ Medici.

Turnbull thinks he would have won the 2019 election if not for the blow-up of August 2018 triggered by legislation for a National Energy Guarantee. Indeed, he thinks that was why his enemies were determined to be rid of him. They were quite prepared to destroy the government in preference to having him continue as an enlightened and liberal prime minister.

The last part of the book tells the tale of the demise of his leadership. Here, we are treated to the melodrama of Tony Abbott’s vengefulness, Peter Dutton’s mad ambition, Mathias Cormann’s cowardice and treachery, and the quiet duplicity of Scott Morrison — all of it oiled by the remorseless hostility of the Murdoch media and right-wing shock jocks. The right of his own party are “terrorists” determined to blow up the government. Others become persuaded that the only way forward is to give in to the “terrorists.”

I sometimes found this a distasteful book — not as distasteful as, say, The Latham Diaries (2005), but there are enough similarities to notice. Its combination of special pleading, broken confidences and bitter scorn will now become part and parcel of Turnbull’s reputation, and will confirm and harden the opinions of detractors. On the other hand, he is being naive if he imagines that a book so obviously self-serving will be taken at face value by the future political historians whom this historically literate man clearly has in view.

Nor will it alleviate the sense of disappointment that many, quite rightly, feel about Turnbull’s prime ministership. His prime ministership was not without its achievements, but Turnbull never really explains why someone who prides himself on being his own man allowed himself to become a hostage to the right of his own party, and to his Coalition partner, as readily as he did. Perhaps it was just vaulting ambition; once he had the prize in hand, and having been deprived of the leadership before, his main aim was to keep it.

Giving way to the right and the Nationals on issues such as same-sex marriage and climate change might have seemed a reasonable price to pay. But it was a strange course for a man who prides himself on being a canny deal-maker and, before the 2016 election at least, was holding all of the best cards. I don’t think it’s quite true to blame sheer opportunism, because I take seriously Turnbull’s claim that he is a constructive politician for whom power needs a purpose. My best guess is that Turnbull’s famously high estimation of his own intelligence and ability resulted in his overestimating his capacity to manoeuvre around those he regarded as lesser men and women — which was pretty much everyone else.

Turnbull certainly didn’t see coming the problems caused by his near loss in the 2016 election. It crippled his political standing and made his government vulnerable to internal revolt on the floor of parliament. But it would be psychologically impossible for Turnbull to admit that it was Bill Shorten, whom he regards with something of a grand duke’s condescension towards a rag-and-bone man, rather than Abbott, Dutton, Morrison or Cormann, who did the most to bring him undone. Nor could he have anticipated the difficulties in parliament caused by all those section 44 ineligibility cases.

Turnbull is unusual among Australian politicians in being willing to talk publicly of love, and it is clear that there is plenty of it in his own marriage and family life. But I suspect that, despite a bluster that many see as arrogance, he carries a lot more pain from his childhood than he is willing or able to disclose. I gained no sense from this book that religious belief plays a major role in his life, although he has converted to the Catholic faith of his wife’s family, and it might also mean more than he is willing to hint at here. There is certainly driving ambition, backed by the energy, bravado and intellect to achieve things most would find impossible.

Yet it has also been a career marked by big failures in things that have clearly mattered to him. As the history of Australia’s past fifty years is written, Turnbull will feature as a phenomenon more than as a politician or prime minister. In that respect, he will likely acquire a different kind of historical reputation from that of one of his few rivals as a larger-than-life public figure, Bob Hawke. The relatively modest nature of Turnbull’s achievements as prime minister will almost certainly ensure that he is not regarded as anywhere near as significant as Hawke. As with The Hawke Memoirs (1994), however, it seems a pity that this supremely gifted man was unable to produce a more generous and gracious account of an accomplished public life. But in Turnbull’s case, perhaps that is more a mark of what our politics has become than of his own character. •

The post The Prince appeared first on Inside Story.

How the national court would finish the case was another matter. It could have ended with a whimper, with Pell’s name appearing in an online list of special leave applications with the word “dismissed” next to it. Or it could have ended with a bang, with Australia’s top judges deciding the case for themselves. At 10am last Tuesday, the latter happened, when seven justices swept away earlier decisions by twelve jurors and three judges.

When news of Pell’s guilty verdict broke fourteen months ago, many observers studiously ignored the High Court’s looming role. His critics relished calling Australia’s top Catholic a “convicted paedophile.” Victoria’s premier chastised a former prime minister for visiting him in prison. But Pell’s accuser always knew better: “Everything is overshadowed by the forthcoming appeal.”

Something of the reverse happened last Tuesday, when the High Court revealed what most who attended its Canberra hearing last month already knew: Australia’s cardinal would again be the nation’s biggest story. As Pell was driven from his locked-down prison into a locked-down city, his supporters declared he had been found “innocent.” “Let us #PrayTogether today,” tweeted the Pope for Lent, before garbling a prayer “for all those persons who suffer due to an unjust sentence because of someone had it in for them.” The premier refused to “comment” on the decision, telling “every” victim, “I believe you.”

But Pell’s guilt or innocence on the charges against him has never changed and never will. He did not become less guilty last Tuesday. Nor did he become less innocent on that other Tuesday in 2018. He has been either guilty or innocent of the rape of two children for the past twenty-three years and will remain so forever. No court ruling — or punditry, or politics — can alter what actually happened in St Patrick’s Cathedral during six short — or agonisingly long — minutes after a Sunday mass in mid December 1996.

The proceedings against Pell have always been about how the courts — and the rest of us — respond to the claim made against him. For the courts, the sole issue is whether Pell’s prosecutors were able to prove beyond reasonable doubt what happened in 1996. In 2018, the jury unanimously decided that the prosecution had proved what happened, which is why Pell spent most of 2019 in Barwon Prison. Last Tuesday, the High Court unanimously decided that it hadn’t, which is why Pell will spend most of 2020 in Sydney.

The High Court’s key ruling — that there is a “significant possibility” that Pell is innocent of the charges against him — isn’t a conclusion that he is innocent; it is a conclusion that the prosecution failed to prove that he isn’t. That finding, when made by a jury or a final court of appeal, ends the prosecution and restores to him the presumption of innocence in future court cases about those allegations, such as civil proceedings or — importantly for commentators — defamation actions. But that’s all that it does.

Outside the courts, the High Court’s ruling is only important to the question of Pell’s true guilt or innocence to the extent that it persuades people one way or the other. People aren’t bound by the presumption of innocence, or the rules of evidence, or respect for the courts, or even by fairness, unless they want to be. Those who are so inclined can believe that the jury’s take on proof reflected the truth, or that the High Court’s did, or they can believe all complaints of sexual abuse, or all ones about Pell, or none of them. Or they can look at the evidence for themselves and reason about it however they want. At least they could, if most of it was publicly available.

The criminal justice system’s finding that Pell was guilty of child sexual abuse lasted 482¾ days, a fact that prompts many questions. Why didn’t the jury’s verdict stand? What does his acquittal mean for his accuser? And what of the earlier decisions in this case? The High Court’s reasons leave the most important question about his case unanswered.

To understand why George Pell is now free, start with the day before his jury was sent out to deliberate. On that Wednesday seventeen months ago, Ruth Shann, one of Pell’s two barristers, asked permission to play a nineteen-minute animation during the defence’s closing address. Derisively known as the “pac-man video,” it showed the floorplan of St Patrick’s Cathedral and used coloured dots to represent various church officials’ movements after mass. Accompanying each dot, Shann explained, were excerpts of the testimony of the case’s twenty-three “opportunity witnesses” — every person who was known to be at the church that day and testified at the trial — to support the claimed location of each official as time passed.

Like virtually all of the public, I haven’t seen that video. Nor did any of Pell’s jurors see it. Or any of the High Court’s justices. That’s because, after the prosecution objected, the County Court’s chief judge, Peter Kidd, barred Shann from showing it. Pell raised Kidd’s ruling at his initial appeal, but all three judges rejected his complaint, including justice Mark Weinberg, Pell’s lone judicial backer until last Tuesday, who excoriated the video as “tendentious in the extreme.”

But we know what the video claimed about events in 1996 from Weinberg’s description. He complained that it showed a scenario that no one thought actually happened: Pell and his master of ceremonies on the cathedral’s main steps, while the two boys alleged to be Pell’s victims were in the sacristy at the opposite end of the building alongside “a large number of concelebrant priests.” Showing the jurors this “visual representation,” the Court of Appeal ruled, risked “misleading, or at least confusing” them.

Pell didn’t bring up the video again at the High Court, but what the dots represented was at the heart of his last-chance appeal and the national court’s decision to acquit him. Most of the court’s reasons are a painstaking appraisal of the testimony of those twenty-three opportunity witnesses. Remarkably, the seven justices said that Weinberg’s colleagues in the Court of Appeal, Victoria’s two most senior judges, were themselves misled or confused about part of those witnesses’ evidence. The pair’s factual error may have added an unnecessary eight months to Pell’s time in prison.

The claimed error by chief justice Anne Ferguson and Court of Appeal president Chris Maxwell was about timing, which was crucial to the case against Pell. When police put the allegations to the cardinal at a hotel near Rome’s airport in late 2016, he described the assertion that his crimes occurred in a sacristy after Sunday mass as “good for me.” “The most rudimentary interview of staff and those who were choirboys,” he told the police, would reveal that his accuser’s account was “fundamentally improbable” because “the sacristy after mass is generally a hive of activity.” At the trial, the prosecution called the opportunity witnesses out of ethical duty. They testified as Pell promised: after mass, a dozen or more officials — the sacristan, his assistant, the priests and the altar servers — filed in and out of the sacristy to store sacred items and remove their vestments.

To prove Pell’s guilt, the prosecution had to show beyond reasonable doubt that there was a long enough gap when none of those officials (except Pell) was present while the alleged crimes occurred. The complainant estimated that the choirboys’ time in the sacristy — finding and drinking the altar wine, being discovered by the archbishop, his raping and abusing them, and their dressing and leaving in tears — lasted five to six minutes. The two Victorian judges ruled that the opportunity witnesses’ accounts left just enough time for these events, because the sacristan, Max Potter, had a practice of delaying the removal of sacred items to allow parishioners some private prayer time, a hiatus that witnesses estimated lasted five to six minutes.

But the chief justice and president’s solution didn’t work, the High Court said. The problem is that the private prayer hiatus and the alleged crimes started at different times. The hiatus commenced when mass ended, while Pell and the choirboys were processing out of the opposite end of the cathedral. On the complainant’s account, the boys must have taken over three minutes to reach the sacristy, at which point the hiatus would have been mostly over.

On top of that stark factual mistake, the High Court ruled that Ferguson and Maxwell made legal errors in dealing with a set of further problems raised by the opportunity evidence, including Pell’s practice of spending up to thirty minutes on the church steps speaking with exiting parishioners, the longstanding protocol that the master of ceremonies stayed with the archbishop until he left the cathedral grounds, and evidence that a dozen or so concelebrant priests change their outfits in the sacristy during the hiatus.

The High Court held that the chief justice and president’s answer to this evidence — that, given the passage of time, the opportunity witnesses could have been thinking of later-arising practices or have forgotten ad hoc exceptions to them at one of the two masses where the crimes must have occurred — was not only unconvincing (as those masses were especially memorable ones) but also legally forbidden. The prosecution either didn’t ask the witnesses about those particular scenarios or didn’t challenge their denials if they did. Also, Victorian law forbids judges from relying on the delay between alleged crimes and the trial — something that jurors are told leaves defendants at a disadvantage — to improve the prosecution’s case.

The Victorian judges’ errors didn’t mean that Pell had to be freed. That depended on what the Court of Appeal ought to have decided if those errors hadn’t been made. Victoria’s director of public prosecutions, Kerri Judd, clearly sensing disaster last month, said that the appeal should be sent back to Victoria, because the seven justices had only read parts of the 1600-page trial transcript. But the High Court thought that was “specious.” The seven justices had read everything both sides asked them to read, they said, so they could decide the appeal themselves. And then they did.

The justices’ particular words — that there was “a significant possibility that an innocent person was convicted” — were the same ones coined thirty-six years ago by Justice William Deane to explain why he would have freed Lindy Chamberlain at her High Court appeal. But the Pell and Chamberlain proceedings differ in more than just their outcomes. Every aspect of the Chamberlain case, from the aftermath of Azaria’s disappearance to the statements of all witnesses, the course of the trial and even the jury’s deliberations, was contemporaneously reported by dozens of journalists and onlookers. Its later twists and turns — the narrow loss in the High Court, the fresh inquiries and the Chamberlains’ belated acquittal — were received by a public deeply familiar with the evidence for and against them.

By contrast, the alleged crimes in St Patrick’s preceded news of the investigation by decades, and almost no one has seen the complainant’s account of them, or ever will. Pell’s trials and their outcomes were kept secret from the public as they happened, meaning only a handful saw all of the opportunity witnesses testify. Journalists could only report on each party’s case after the public learnt which side won. None of those who watched noticed — or at least reported on — the timing error made by Ferguson and Maxwell. It is not clear whether any journalists have access to the trial transcripts Pell and his prosecutor asked the High Court to review.

And that leaves readers of this particular High Court judgement at a disadvantage. The justices’ reasons are clear and convincingly written, but those who would like to check for themselves — to see whether Victoria’s top two judges really misread some key evidence before them, and whether there really is a significant possibility that Pell is innocent — need to find a way to read the transcripts themselves, or to hope that some journalists do so and reliably fact-check. Otherwise, we must decide whether to take the High Court’s painstaking analysis of that evidence — and its findings about it — at face value.

Pell’s accuser says he does. “I respect the decision of the High Court. I accept the outcome.” These are his first — and quite possibly among his last — public words following the court’s ruling. He added that he “understood their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred” and that “the High Court is saying that the prosecution did not make out the case.”

The accuser’s acceptance of the High Court’s judgement puts a lie to the notion that the national court found Pell innocent or his accuser a liar. The justices’ finding of a significant possibility of Pell’s innocence must mean they thought that there was a significant possibility that his accuser was either lying or wrong for some other reason. But it doesn’t mean that they found, or even thought, that he was actually wrong, much less a liar. Indeed, when Justice Deane made the exact same pronouncement about Lindy Chamberlain’s innocence, he expressly said that he still thought that she was the more likely culprit in Azaria’s death than the dingo she accused.

The High Court’s judgement on Pell is much shorter and narrower than its judgement in the Chamberlain case. The seven justices’ reasons for acquitting Pell have none of the anger or agony of the two dissenting judgements on Lindy Chamberlain. Instead, they chastised all three of Pell’s Victorian judges for opining on the honesty of Pell’s accuser, adding that the Court of Appeals’s split on that issue shows how “subjective” such assessments are. In the case’s sole major pronouncement of law, they held that questions about demeanour or candour or memory are exclusively for jurors to thrash out as a group. Appeal judges should proceed on the obvious assumption — that the jurors found every crucial prosecution witness to be credible and reliable — and then look to the transcripts for reasonable doubt.

But what do those transcripts mean for Pell’s accuser? The seven justices said that they contain no independent support for his account. They disagreed with Ferguson and Maxwell’s finding that his accurate description of the interior and use of the priest’s sacristy from that period corroborated his claims of abuse rather than just his presence in the sacristy at some point. To the contrary, they found that the transcripts leave no room for his account to be correct, because there was no time for what he described to occur when and where he said it did. Does that mean that his account must be wrong? And therefore that he was lying or deluded? It could.

But there are at least two other possibilities. One is that Pell’s accuser was seriously mistaken about when and where the claimed abuse occurred. People can and do get significant things wrong when they recount distant events, even when describing horrible moments in their lives. Plenty of prosecutors have gone to jurors on the basis that their key witness was honest and correct in describing the wrongs done to them even though they got many surrounding details totally incorrect. While that makes such trials challenging for everyone, many convictions have been achieved that way and upheld on appeal.

The other possibility is that the opportunity witnesses were seriously mistaken about the practices, protocols and rituals that applied in St Patrick’s Cathedral in 1996. Although the High Court observed that rigidity is a key part of religious life, that doesn’t exclude the possibility that the details can be described erroneously, or worse. Nor does it rule out overconfidence about the predictability of the practices or understatements about exceptions — such as ones that could have allowed for a much longer hiatus, or afforded much more privacy to a high-ranking abuser, after Sunday mass. Again, plenty of prosecutors have gone to jurors on the basis that seemingly honest defence witnesses were totally wrong for whatever reason, and achieved safe convictions as a result.

Crucially, neither of these scenarios was put to the witnesses at Pell’s trial. And that means they couldn’t be put to his jurors. And that in turn means that they couldn’t be considered by the High Court. So, the seven justices’ finding of a significant risk that Pell was innocent turned on the evidence and argument at his trial. It is possible that different evidence and argument at his trial would have produced a different finding on appeal. But they may also have yielded a different jury verdict.

There are obvious reasons why Pell’s prosecutors would hesitate to argue that either his accuser or two dozen witnesses got key details about the crime or the crime scene wrong. The witnesses may have convincingly rejected such claims. And, even if they hadn’t, there’s still a clear chance that Pell’s jurors would have baulked at finding him guilty of child abuse based on such arguments. Although they hit a wall at the High Court, the Crown’s strategic decisions in 2018 go some way to explaining why a very difficult prosecution went as far as it did. It’s understandable that Pell’s accuser thanked the police and prosecutors.

But should we? The former choirboy isn’t Pell’s only accuser. The High Court’s ruling has potential implications for his official ones: the police, the prosecutors, the jurors and the appeal judges. If the national court is right that Pell’s guilt was never proved beyond reasonable doubt, then doesn’t that mean that some — indeed all — of these other decision-makers got the case wrong? And, indeed, as Pell asserts, caused him a “serious injustice” that was only remedied last Tuesday? Maybe.

Disagreement between official decision-makers is a regular occurrence in the justice system. It’s why we have so many decision-makers on questions of proof of serious crimes. The history of miscarriages of justice — not just in Australia but everywhere — explains why all criminal defendants are given multiple opportunities to argue that there isn’t sufficient proof of their guilt. That’s what Pell did before the police, before two juries and before two courts. He only succeeded before the High Court, but that was enough.

On the other hand, the timing issue could have been picked up by any of those earlier decision-makers. That question of whether they should have picked it up shouldn’t be left to Pell’s defenders and antagonists. The various champions and detractors of juries and High Courts who have sprung up in the past year and week deserve every scepticism. I’ve little doubt that nearly all of them would have been arguing the exact opposite with equal dudgeon had either the jury’s verdict or the High Court’s gone the other way.

The criminal justice system is usually too busy, stretched and adversarial to engage in comprehensive reviews of possible failures to detect a problem early enough. But soul-searching and independent reviews are normal in high-profile cases where an error is picked up in a spectacular way. Pell’s case should be no exception. Given the unfortunate secrecy surrounding the original trials, a comprehensive inquiry is perhaps the only way to overcome the understandable public perception that, at one point or another, justice was not done in this case.

In that vein, I think it is worth setting out why it is possible that none of the official parts of the criminal justice system failed — or at least seriously failed — on the timing issue raised by the High Court. (For those wondering about my priors on these systemic arguments, I have written a book championing juries and many pieces — including a doctoral thesis — criticising the High Court’s work on unsafe verdicts, including in sexual abuse cases. Like most criminal law academics, I fret a lot about the roles of many people in miscarriages of justice but see lots of problems in most other ways of doing criminal justice.)

While police make many crucial decisions when they investigate crimes — and those decisions merit close scrutiny — it is not usually their role to make judgements about proof. Their role is to gather evidence for prosecutors, which they must do despite having no power to make most people talk with them. A gap in time between alleged crimes and an investigation — which jurors are rightly told greatly disadvantages defendants — also obviously hampers police. In Pell’s case, where every likely witness is someone who worked for Pell in 1996 and some — notably the sacristan, Max Potter — are now infirm, those disadvantages could account for the police’s failure to recognise the timing problem.

Nevertheless, the police did make a decision about whether there was proof that Pell was guilty when they charged him in 2017, possibly after disagreement with lawyers from Victoria’s independent prosecutors’ office. That charging decision was ultimately shared with Victoria’s then director of public prosecutions, John Champion (now a Supreme Court judge), and his successor, Kerri Judd, who could have stopped the prosecution if they disagreed with the police’s call.

But the bar for decisions to commence a prosecution is lower than those later in the criminal justice system. Public prosecutors can bring charges whenever there are reasonable prospects of a conviction and proceeding is in the public interest. This test was plausibly satisfied in Pell’s case. As Judd rightly pointed out in the High Court, testimony about events lasting mere minutes recalled from decades ago ought to be taken with a grain of salt. She lost the argument on appeal because — the court said — the trial witnesses weren’t challenged on their timing claims, including the possibility of a much longer private prayer hiatus. But prosecutors wouldn’t have known that before the trial.

It is at the trial where it is harder to understand why a critical timing issue didn’t bring proceedings to a halt. It’s worth noting that trial judges — magistrate Belinda Wallington at Pell’s committal hearing and chief judge Kidd at the County Court trial — only test whether the evidence the prosecution supports (here the accuser’s account) could prove guilt. The question of whether other evidence (such as from the opportunity witnesses) created too much doubt is one for prosecutors, jurors and appeal judges, who notably all reach their decision in groups. (The risks that flow from giving too much decision-making power to individual judges is why we should look askance at suggestions that single judges should replace jurors in trials of serious charges.) No one argues that Pell’s magistrate or judge made any major errors on things in their remit, such as courtroom procedures, rulings on the evidence or directing the jury.

But why didn’t Pell’s prosecutors stop the trial because of the timing issue? And why didn’t his jurors — the hold-outs in his first trial and all twelve in his second — acquit because of it? If the High Court is right about the timing evidence, then those things should have happened in one or both of Pell’s trials in 2018. The best defence I can offer is speculative and uncomfortable: the prosecutors and jurors quite possibly didn’t notice the issue. There is some compelling evidence behind this guess: two senior judges seemingly didn’t notice it either and nor did any of the journalists who watched and described Pell’s trials.

Even my generous take may seem quite damning of Pell’s prosecutors and jurors (and others), but the true culprit could be the whole idea of resolving complex questions at a single “trial.” Trials — and, especially, questioning dozens of witnesses in sequence and then summarising their evidence orally days later — are poorly suited to identifying crucial issues out of a mass of arguments, including fine issues of timing.

That’s why Shann wanted to show Pell’s jurors her animation. She argued that illustrating the timing issues this way suits contemporary approaches to presenting information, which jurors would be familiar with from their own devices. Without it, she prophetically suggested, “it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity.” Weinberg’s retort — that there is more risk of confusion from presenting such “material in this highly questionable form” — ought to be reconsidered now, as should trial prosecutor Mark Gibson’s decision to object to the video in this case.

But trials’ deficits in complex cases go well beyond their low-tech approach. Trials require a dozen or so people to work — and, to an extent, fight — in a single room, while a dozen others are required to sit for weeks and absorb silently, before being locked away and asked to reach a consensus with strangers on what might be the most important decision of their (and others’) lives. The key question of proof, and the details it turns on, must vie for attention with concerns about fairness, interest, distress, comfort, time, money and personalities. The trial’s strengths — the atmosphere, the rhetoric, the high stakes, the group work — are also its weaknesses.

All of this may sound like a call to do away with trials, but it isn’t. Rather, it’s a call for the system we have, the one where anyone who is found guilty can ask one or more appeal courts to robustly review that trial finding at leisure and from a distance. The High Court held that one reason the Court of Appeal may have gone wrong in this case is that its judges acted too much like jurors, watching much of the trial via video recordings and focusing on which of the witnesses was believable. That may explain why, as the seven justices put it, Victoria’s two most senior judges “failed to engage” with whether the opportunity witnesses’ testimony left a reasonable possibility that a credible accuser was nevertheless wrong. The same may also be said of Pell’s prosecutors and jurors.

But maybe not. The above is just a possible account of what happened, the kindest I can think of. There are less benign explanations, not to mention rival conspiracy theories. Those theories are one of many reasons why the High Court’s acquittal of Pell ought to prompt an independent review of all the decision-making in this case. Without that (and anyway), we will each have to somehow find our own response to what has happened.

“I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it,” Pell’s accuser said in his statement at the end of the day on which the High Court acquitted his alleged abuser. “They know the truth when they look it in the face. I am content with that.” Hours into the freedom the High Court granted him, Pell said, “I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel.” I have no idea if either of these statements is sincere, but it doesn’t matter much. They both put to shame the cynicism of public commentators for and against Pell, and provide a path forward for the less cynical.

But the future is not the most important thing in this case. The past is far more important. It may be that one of these two well-spoken men is genuinely deluded in his recollection of what happened all those years ago. If not, then one of them is a liar who put the other one through a living hell. If that’s the case, then both of them know which man that is. The rest of us can believe what we want, but we will never know, unless that man confesses. Most likely, both will carry this shared knowledge to their graves. And after that, if the beliefs they were raised with — and may, against all reason, still hold — prove to be truth, they will go their separate ways. •

The post Pell in purgatory appeared first on Inside Story.

The same might be said of Australians faced with the wave of laws and public health orders issued in recent weeks by state, territory and federal governments to meet the challenges of the Covid-19 pandemic. Just a few days ago, one state held in-person voting for local elections and by-elections while other states were prohibiting public or private gatherings of more than ten people. Then the federal government banned meetings of two or more people, though it is up to the states and territories to determine how the rule will be enforced and what punishments will apply.

Even state police appear unaware of the extent of or limits on their powers, with Greens NSW MP David Shoebridge reporting via Twitter that fines have been issued for offences against physical distancing that are, in fact, not offences. Yet community understanding of these new restrictions is essential, not only to ensure compliance but also to ensure that those who impose them are held accountable.

Not everyone stuck to the rules Sir Robert was recalling. Prime minister W.M. “Billy” Hughes was “egged” at the train station in Warwick, Queensland. Women took to the streets of Melbourne demanding reasonable prices for food. A German-born man, resident in Australia for more than two decades, refused to be interned in a concentration camp without knowing the reason. Each of these incidents resulted in small amendments to the already extensive legal regime that intimately shaped the lives of the Australian community from 1914 until long after the last gunshots were fired on Armistice Day, 1918.

Law has always been crucial to Australia’s involvement in war, whether through existing defence legislation or new provisions designed to deal with a developing incident or conflict. Law provides the framework upon which all wartime defence, economic and social policies and decisions are built. Yet most of us remain unaware of law’s foundational role, because it has generally — and often intentionally — been overlooked in Australian war history.

Exhibit A: Australia during the War, volume eleven of the twelve-volume Official History of Australia in the War of 1914–1918. That book was penned by Ernest Scott, a professor of history at the University of Melbourne, and the series itself was edited by Charles Bean, Australia’s official war correspondent, who had been appointed by the government to produce an extended account of Australia’s involvement in the recent conflict.

Originally the journalist Thomas Heney had been contracted to write Scott’s volume under the title The Effort in Australia. Although Heney completed the first few chapters quite quickly, Bean was dissatisfied with his work and around 1924 approached other writers, including Scott, to assist with the volume. Heney resolved to finish the book but in early 1928 resigned from the project on account of ill health; he died later that year. Scott agreed to take over.

In mid 1928 Scott sent Bean a table of contents with his vision for The Effort in Australia, comprising five “books” — essentially thematic parts, each with multiple chapters — mapping out the different aspects of life in Australia during the war. Book IV, “The Citizen and the War,” included a chapter on the “Legislative and Judicial.” As noted in his accompanying letter, the addition of a dedicated chapter on law was Scott’s idea. Bean concurred, commenting on how the wartime federal and state governments were almost completely unified, “partly through the War Precautions Act and the Defence Act.” He thought it “extraordinary how smoothly this revolution was effected under the constitution of the Commonwealth,” though he acknowledged that it “was designed largely to meet this contingency.”

Bean’s use of the word “revolution” here is interesting, for in many senses it was. This was not a traditional revolution of the people against the government, but rather a legal revolution of a government against its people, motivated by a higher cause: victory in war.

Aware of the intricacy and importance of the legal chapter, Scott suggested an alternative author: Professor Kenneth Bailey, also of the University of Melbourne. Five years later, though Bean received the necessary permissions to include Professor Bailey on the project, the chapter remained unwritten. In 1933 Bailey contacted Bean to see whether he should continue on the project; the next year, when Scott’s manuscript was being finalised, the work still had not been produced.

At the same time, Scott and Bean availed themselves of an offer too good to refuse: a promise by Sir Robert Garran to read the manuscript of the now-renamed Australia during the War. During the war Garran had been secretary of the Attorney-General’s Department and then federal solicitor-general, responsible for drafting wartime statutes and regulations while also overseeing the administration of those laws.

As the correspondence between Bean and Scott reveals, however, in addition to commenting on the typescript, Garran also helped Bean resolve an outstanding issue. In a letter to Scott dated 1 June 1934, Bean noted that Garran had “question[ed]… the necessity or advisability for a legal chapter,” adding that Bean himself “had for some time been strongly impelled towards the same view.” The previous day Bean had written to Bailey, confirming the decision to scrap the chapter, citing Garran’s view that it was “doubtful if such a chapter is called for, and that any omissions could quite easily be made good in the text.”

It is clear from these letters that Garran’s opinion was not the sole factor in the decision to omit the legal chapter in Australia during the War. Nor was Garran the only person with a potential conflict of interest consulted during the creation of the Official History. Billy Hughes and many other politicians, along with military men directly involved in the war effort in Australia and abroad, read chapters of the Official History prior to publication. Some did so at Bean’s request; others demanded the privilege.

By that point, little had been written about Australia’s law during the war. A few articles had been published in law journals: one penned by future prime minister Robert Menzies, another co-authored by future opposition leader and justice of the High Court of Australia, H.V. Evatt. Garran also referred to some wartime constitutional issues in a 1924 journal article. But there had been no detailed discussion or interrogation of these laws; and now, in 1934, the opinion of the man who wrote the majority of Australia’s wartime laws was a deciding factor in omitting a sustained examination of them from the Official History.

Yet, despite the only cursory mentions of law in Australia during the War, it remains the pre-eminent account of Australia’s legal regime during the first world war. While law has been mentioned in subsequent social and political histories, and the details of the Commonwealth War Precautions Act and its myriad regulations have rarely been discussed.

More recently, some legally focused scholarship, considering one specific law or aspect, has begun to appear, largely during the centenary period. Work by historian Jo Hawkins, in addition to my own book, Anzac: The Landing, the Legend, the Law, explored the historical and continuing legal control over use of the word “Anzac.” Articles by teacher and historian Tony Cunneen examined how the legal profession was affected by and contributed to the war effort. Journal articles on topics such as anti-shouting laws, and restrictions on protests and use of enemy-owned intellectual property have also appeared, among others. But these previous works have each mapped only one small, discrete part of the overall legal picture. There has been no holistic examination of Australia’s first world war legal regime, a gap I aim to help fill with my new book, Law in War.

A number of reasons might explain such an omission. Law itself is often seen as dull. Stories of the wartime regulations that required people to seek permission from the defence minister to buy tin plates, or restrictions on how much local bakers could charge for a loaf of bread, are not as inspirational or nation-building as the 1915 Gallipoli landing or the 1917 Battle of Beersheba. The overly formal and often impenetrable language used in legislation is also an understandable deterrent.

Given that much of Australia’s wartime legal regime came from Britain, at least during the early stages, it might be argued that there is no need to consider Australian law as a distinct entity. As influential as British law was, however, Australia’s legal regime and wartime experiences were specific to this nation. Writing on the Australian treatment of “the enemy at home,” for example, historian Peter Monteath commented that “since Federation in 1901 Australia was increasingly making its own decisions about what kind of country it wished to be and who should be permitted to live here.” This manifested itself in Australia’s treatment of “aliens” both during and after the war.

Further, while this might seem a controversial claim, Australia as a nation is generally not comfortable with acknowledging or accepting responsibility for mistakes and injustices, particularly at an institutional level. Australians had already experienced two and a half years of life under Australia’s wartime legal regime, their newspapers censored and their neighbours taken to internment camps, when they returned Hughes to power in the 1917 federal election. The treatment of Indigenous Australians, equal parts destruction and discrimination, is another striking, shameful example of a situation that other Australians ignored; during the war, the law continued to humiliate Indigenous and Chinese people, and others of “non-European” descent, by denying them the ability to enlist and serve their country, using a statute that actually pre-dated the war.

Australia may ultimately have been on the side of the victors, but the trinity of war-focused legislation passed by the federal parliament during this period — the War Precautions Act, the Commonwealth Trading with the Enemy Act and the Commonwealth Unlawful Associations Act, and the many regulations enacted under those statutes — arguably went beyond what was necessary for success in wartime. John Locke famously stated that “where-ever law ends, tyranny begins”; in first world war Australia, law perpetuated a form of tyranny in the name of victory. Not that Garran would agree with such a statement: “I doubt whether tyrannical power was ever more untyrannically exercised” than by himself and Hughes, he commented in his memoir, Prosper the Commonwealth.

As part of a 1999 speech, former High Court justice and governor-general Sir William Deane publicly apologised to the German-Australian community for what it had experienced during the two world wars. In what historian Gerhard Fischer has, in my view correctly, described as a “little-known apology,” Deane stated in part:

The tragic, and often shameful, discrimination against Australians of German origin fostered during the world wars had many consequences. No doubt, some of you carry the emotional scars of injustice during those times as part of your backgrounds or family histories. Let me as governor-general say to all who do how profoundly sorry I am that such things happened in our country.

Law made this treatment possible. Between 1914 and 1918 it was used as a tool against certain individuals born and resident in this country, for the purposes of discrimination, oppression, censorship, and deprivation of property, liberty and basic human rights. This legal regime created a deep injustice that, for the most part, remains undocumented and unacknowledged. Such claims might sound like hyperbole, but Law in War documents the humiliation, discrimination and scandal inflicted upon eight individuals living in Australia during the first world war, enabled by laws created in the name of the war effort.

In 1920, when the federal government eventually withdrew the laws that enabled many of the restraints adopted in the first world war, it also reintroduced some that it had found convenient or helpful. Some of those offences — such as the restrictions on the use of the word “Anzac” — remain in force today, or have inspired modern-day regulation in areas including sedition, detention and deportation. Today, we might expect the restrictions that have governed daily life during the pandemic to be repealed. But public vigilance is needed now more than ever, and we can learn from these wartime experiences to ensure that the rights and freedoms that have been willingly sacrificed in the name of public health are fully restored when the pandemic has passed. •

This article is adapted from Law in War: Freedom and Restriction in Australia during the Great War, by Catherine Bond, released this week by NewSouth Publishing.

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Last week the Federal Court, sitting as the Court of Disputed Returns, issued its judgement on what exactly happened when the Strauszes left Hungary. The Australian court’s unlikely interest in events seven decades ago and 16,000 kilometres away was focused on what five-year-old Erica took with her across the border.

We know that two decades later she would give birth to a son, Joshua, in Melbourne. The court’s concern was whether she brought her birth citizenship, first to Austria, then to Australia, and finally into labour. If she was a dual Australian–Hungarian citizen on 17 July 1971, then so is Josh Frydenberg right now. That would leave the federal treasurer ineligible to sit in Australia’s parliament and cabinet during the greatest crisis in most Australians’ lifetimes.

The case of Staindl v Frydenberg is a coda to a minor crisis from simpler days. In the eight months from October 2017 to May 2018, fifteen members of the federal parliament were unseated — six of them permanently — because they were considered dual citizens under section 44 of Australia’s constitution.

At the debacle’s centre was the High Court’s October 2017 ruling that five parliamentarians, including the deputy prime minister, were never elected at all, simply because they were dual citizens. Although politicians had fallen foul of that ban before, this was the first time it was applied to Australians with no adult connection to a foreign country, including two who had no childhood connection either. Fiona Nash, for instance, was disqualified for her British nationality despite being long estranged from her Scottish father and never having been to Britain.

Alas, the national court made its ruling more in anger than sorrow. The seven justices declared that:

while it may be said that it is harsh to apply section 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question… It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable.

These are perhaps the least wise words the seven have ever written.

Frydenberg’s fate in the Court of Disputed Returns was determined by three facts: what Hungarian officials did before the Strauszes crossed the border; what documents the family carried while they crossed; and the fine details of Hungary’s citizenship law at the time. Last week’s decision revealed that neither Frydenberg nor any other Australian ever knew — or even can know — any of these things. The relevant records of Hungary’s secret police were lost in 1956 during the nation’s failed uprising against the Soviets. The Strauszes were either too young — the daughters were eight, five and one — or too old — the adults would have been 108 and 112 today — to testify as to what documents they carried. Most remarkably, Australia’s attorney-general bluntly told the Court of Disputed Returns that “the relevant content of Hungarian law in 1949 is unknowable.”

After they crossed the Iron Curtain, the Strausz family spent two weeks in Vienna, but ended up living at 11 Rue de Deux Gares in Paris’s tenth arrondissement. They were literally and metaphorically between stations. While they already held a landing permit that would allow them to stay in Australia for two years, they needed a Titre d’Identité et de Voyage that allowed them to travel internationally without a passport. Nearly a year passed before they travelled to Genoa to board the SS Surriento, bound for Fremantle and Sydney. They reached their new home on the second-last day of 1950.

Did they bring anything from their old home? The Strauszes described themselves as stateless, but a Sydney boarding officer wrote “Hungarian” as their “nationality” in a letter to immigration officials. His interest in the family’s homeland probably wasn’t idle. Australia in 1950 was awash with fears of communist infiltration via immigrants, seemingly even ones with every reason to flee Europe.

Similar irrational fears underlie section 44 of the constitution. The High Court has repeatedly identified the purpose of the ban on electing dual citizens as being “to ensure that members of the Parliament do not have split allegiance” with a foreign country.

It was the other thing the boarding officer noted in his letter — that the family were “in possession of Valid Passport” — that was especially dangerous for Josh Frydenberg. If Erica Strausz held a valid Hungarian passport in 1950, then everyone agreed that her son was ineligible to be elected in 2019. The law of Hungary, like that of so many overseas countries, bestows citizenship by descent, even to children whose parents had left their home country, took up another country’s citizenship and married a non-citizen. It is this combination of foreign countries’ generosity in bestowing citizenship and Australian constitutional law’s suspicion of the recipients of such gifts that caused last term’s debacle.

Before the election, I predicted that a perfect storm — widespread dual citizenship in Australia, the High Court’s strict ruling, the murkiness of the constitutional text and new constraints on late electoral cases — would lead to a rush of challenges immediately after Labor’s expected tight victory. But the rush (like the Labor win) never came. Instead, Frydenberg will very likely be the lone challenged member of the current parliament. His challenger, climate activist Michael Staindl, was motivated not by Frydenberg’s foreign allegiances, but rather by his political ones, and specifically his party’s climate policy.

Staindl’s challenge could proceed, despite the unknowability of what transpired seventy years ago, because any Australian politician can be unseated by uncertain facts. All that Staindl had to prove was that it was more likely than not that Erica Strausz was still a citizen of Hungary when Frydenberg was born. Because the Court of Disputed Returns isn’t bound by the rules of evidence, Staindl could rely on the border officer’s letter. But the letter wasn’t his main argument.

Instead, he argued that Erica Strausz’s continuing Hungarian citizenship was much more likely than not, because the Strauszes had no reason to renounce their citizenship and every reason not to. Staindl found a Hungarian lawyer who explained that renouncing citizenship in 1949 would have required permission from (or denunciation by) the secret police. Given that an ordinary passport (albeit probably obtained unlawfully) was needed to cross the border, telling the Hungarian police that they wanted out would be the last thing the Strauszes would have done. Nor, he added, was there any reason for them to contact the Hungarian authorities for favours after they left (oblivious as the Strauszes, like nearly everyone else, were about section 44 of their new homeland’s constitution).

Staindl’s case crawled until late last year, when the High Court of Australia sent it to the next court down in the hierarchy, over the objections of the treasurer and the attorney-general. In the Federal Court, Frydenberg produced a report from an Australian historian who had studied postwar immigration. She wrote that Australian border officials in the 1950s were more interested in new arrivals’ ethnicity than their citizenship and that “Valid Passport” was simply their shorthand for any legal travelling document, including a Titre d’Identité et de Voyage. Frydenberg’s Hungarian lawyers produced a book by Péter Bencsik, a historian specialising in mid-century central European travel documents, who wrote that the communist secret police in the late 1940s could and did issue “one-way” passports to emigrants who wanted to quit Hungary for good.

In short, the sole surviving records proved nothing either way. Staindl conceded that the Strauszes probably left Hungary with the secret police’s permission on one-way passports. But that didn’t resolve the real question: whether or not they left their citizenship behind. Instead, Frydenberg’s fate was resolved by the Federal Court contemplating what actually counts as “law” in a totalitarian state.

“I just want to say something about Josh Frydenberg”, said then prime minister Malcolm Turnbull, a week after the High Court’s 2017 decision. “Josh Frydenberg’s mother Erica Strauss was born in 1943 in the Budapest ghetto. That’s where the fascists had pushed all of the Jews in together as a prelude to sending them to the gas chamber. She wasn’t a Hungarian citizen when she was born and neither were her parents. You know why? The Hungarian fascist government, allied with Hitler, stripped the Jews of all of their rights. The right to citizenship and the right to life.”

But the Federal Court did not so hold. Indeed, no one asked them to.

The court’s judgement charts the grim facts of Jewish life and death in Hungary after the break-up of the Austro-Hungarian empire. First came the pogroms of the White Terror that installed an ex-admiral in power. Then, as Hungary allied with the Germans and Japanese in the second world war, came three anti-Jewish laws, imposing quotas on Jewish professionals, barring Jewish public service and criminalising sex or marriage with non-Jews. Finally, Nazi occupation brought Hitler’s Final Solution to Hungary, sending nearly half a million to Auschwitz. The Jewish population of Budapest, once almost a million, had shrunk to just 100,000 by the time the Hungarian government surrendered to the Soviets.

But Hungary had no equivalent of Hitler’s Nuremberg laws, which stripped Jews of their citizenship. And, unlike many countries (including Australia), Hungary’s various citizenship laws didn’t automatically convert into aliens people who transgressed in specified ways (by joining the enemy, for example) or took up another country’s citizenship. Rather, the communists’ laws gave Hungary exclusive control over each citizen’s citizenship. If you wanted to stop being Hungarian, you needed to ask for and get permission from the police. The government could “divest” you of your citizenship involuntarily, but only if it published that decision (and it didn’t in relation to any of the Strauszes.)

These grim facts of life in Hungary in the 1940s also cast a shadow over Frydenberg’s eligibility to be elected in Australia in the 2010s. If the Strauszes couldn’t rid themselves of their birth citizenships without Hungary’s permission, then nor could Frydenberg.

What saved the treasurer’s job was communism. Frydenberg’s Hungarian lawyers pointed to Hungary’s communist constitution, which came into force just weeks before the Strauszes departed. Cribbing heavily from Stalin’s 1936 Soviet constitution, it reinvented Hungary as a nation of “working people,” whose fundamental duties were to protect the property of the people, increase Hungary’s economic power, raise workers’ standard of living and so forth. By leaving Hungary, the lawyers posited, the Strauszes shifted from being working people to what the constitution called “enemies of the working people,” who were expressly denied the right to vote.

The very nature of the law under Communism provided Frydenberg with his best argument. Bencsik told the Federal Court that socialist legal theory has always recognised that the bureaucracy doesn’t just apply the law, it can also make the law through its own actions. This was especially so in Hungary in the 1940s and 50s, when “the published laws concerning passports and emigration, including the First and Second Citizenship Laws, were not applied consistently if at all.” The real law was what Benscik termed “pseudo law,” the practices of the secret police, Hungary’s real rulers. The “one-way” passport likely given to the Strauszes was a pseudo law, Benscik explained, legally barring them from returning to their homeland without permission.

Faced with this (literally) left-field argument, Staindl blinked again. He conceded that the Strauszes’ lack of any right of return to Hungary meant that all of the family, once they became Australian citizens and reached adulthood, were eligible to be elected to the Australian parliament. That included Erica, when she turned 18 in 1961 and when she gave birth to Josh Frydenberg in 1971. But Staindl argued that everything changed just as Frydenberg himself was turning eighteen.

That was the year, 1989, when communist governments fell across the Soviet bloc and the Iron Curtain vanished. That change also washed away the pillars of socialist law, including pseudo laws like the bar on re-entry by Hungarian emigrants. At that point, Staindl argued, the empty “shell” of Hungarian citizenship carried over the border by Erica and passed on to her son became full again, which was enough to make him a dual citizen for Australian constitutional purposes from then on.

Staindl’s argument didn’t fly. The Federal Court deemed it “imaginative” and (maybe) “appropriate in some legal contexts.” But not here. “These are not matters,” the court declared, “to be addressed using fine distinctions, metaphors or other constructs having little, or no, regard to the facts established on the evidence before us.” Staindl’s problem was that he never had the opportunity to put his “shell” theory to any expert in Hungarian law.

The Federal Court didn’t relish the prospect of having to watch sleepy witnesses testifying from Budapest via Skype, translated back and forward between Hungarian and English, and debating the niceties of socialist legal theory. Obliged by the electoral act to “be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities,” the three judges declared that written reports, including a joint one by the various Hungarian lawyers hammered together on their own in Budapest, would suffice. By the time pseudo law emerged as the most likely answer, it was too late to explore Staindl’s new theory or to try to find a footing for it in the (sometimes cryptic) reports.

In short, the court had sufficient evidence that socialist pseudo law had removed Erica Strausz’s Hungarian citizenship:

The niceties of proof of the production or issue of documents by the political police in a totalitarian state, possibly lost or destroyed in revolution (in 1956 in Hungary) or in travel (by the Strausz family in Hungary, or on the way to Vienna, to Paris, to Genoa, to Fremantle, and eventually to Sydney) can be put aside when one recognises the realities of 1949.

and no evidence that the end of that system had restored it.

“I see my journey to this place in the continuum of my family’s story,” Josh Frydenberg told parliament in his maiden speech in October 2010. He described how his father’s parents arrived from Poland “while Europe was plunging into darkness” and how his mother’s family’s “experience was different.” “Interned in the Budapest ghetto by the Hungarian fascists,” he explained, “they survived and eventually made their way through displaced persons camps to Australia.” The Strauszes ended up a “family of five crammed into a one-bedroom Bondi apartment.”

The welcome, opportunities and freedom they enjoyed, said the future treasurer, “is for me the essence of what makes Australia great.” While Samuel “punch[ed] holes in belts to eke out a living,” his middle daughter grew up to be a psychologist and marry a surgeon, and the couple eventually “settled in Kew, right in the heart of the Kooyong electorate. Never would they have dared dream that decades later, one of their own family members would represent Kooyong in the federal parliament. But in Australia anything is possible. We are only limited by our imagination.”

The future treasurer’s imagination surely never hinted that his family’s story would one day threaten to overturn the choices of Kooyong’s voters.

Frydenberg’s speech proudly noted the other luminaries who had been elected by Kooyong’s voters, including a future chief justice (John Latham, who famously dissented when the High Court struck down the law banning the Communist Party in 1951, just months after the Strauszes arrived in Sydney) and a prime minister (Robert Menzies, who famously owed his government’s 1961 re-election to Communist Party preferences — which makes Frydenberg Kooyong’s second MP to have his place in Australia’s government inadvertently saved by communists).

“I am proud of my Australian story,” Frydenberg concluded. “Decades ago in the gathering darkness of Europe, my family could never have imagined this day. But because this country is truly a land of opportunity I have been given this chance.” But he could continue sitting only because a Hungarian historian born the same year as Frydenberg was able to reveal an otherwise unknowable part of the law of that dark period to the Federal Court.

Is that all that kept Australia from losing its treasurer in the midst of this crisis? I don’t think so. Times have changed since 2017, and the High Court itself has become more creative in reading the constitution in ways that include, rather than exclude, Australians within our polity. But there are limits to what a court can do.

The only real solution to Australia’s exclusion of its many dual citizens from its parliament is to change its constitution, something that will require the support of all of the nation’s leaders. “I want to see an Australia where the only relevant consideration is the content of a person’s character,” Frydenberg told parliament in in 2010, before the “stop the boats” election but also long before Hungary’s decision — on the same day the Federal Court dismissed Staindl’s petition — to close its border with Austria for the first time since the fall of communism. •

The post Game of shells appeared first on Inside Story.

The written submissions each side filed with the High Court in January are all about rituals, robes and rehearsals. It may seem odd that the same court that made national headlines a month ago when it ruled on the relationship between Aboriginal Australians and Australia will now spend two days considering what happened in a sacristy twenty-three years ago. But this is nothing new for the national court. Indeed, the very morning after the seven judges split on who is and isn’t an “alien” under Australia’s Constitution, five of them puzzled over what caused a mysterious explosion on Bribie Island in 2015.

Eamonn Coughlan’s last chance to clear his name of an arson conviction started badly. For Justice Patrick Keane, the ex-cop’s claim that his house inexplicably blew up as he was standing on the footpath trying to see a motorbike “just sounds odd.” Justice James Edelman also seemed to have his doubts — “His shoes were entirely melted, were they not?” — and before long two more judges were asking Coughlan’s counsel, “What are you trying to get out of this?” and “Where does this take us?” Yet just an hour later — after the same judges peppered the prosecution’s barrister with questions about pants, petrol and passers-by — all five acquitted Coughlan on the spot, overturning a Queensland jury and a unanimous Queensland court.

Cases like Coughlan’s expose the persistent myth that Australia’s top court doesn’t take or decide disputes about facts. Last November, five of the court’s judges explained why they had acquitted another Queensland man of a gruesome murder on Macleay Island, overturning the unanimous view of fifteen jurors and judges. Their thirty-five-page judgement barely mentioned the law, but was full of analysis of means, motive and opportunity — and claw hammers, bank codes and CCTV. Two months earlier, the national court decided who was driving a Toyota Tarago during a head-on collision on North Stradbroke Island, this time disagreeing with a Queensland judge and unanimous appeal court who found the driver was an unlicensed teen left paralysed by the crash. The law came up on just three of the thirty pages of the High Court’s reasons, which were mainly about airbags, seatbelts and blood.

If next week’s hearing follows suit by focusing on the events at St Patrick’s Cathedral, then that will likely please both Pell and his prosecutor. Walker’s goal is to convince the court that Pell simply had too little time to commit the crimes he’s accused of, given the (mostly) undisputed evidence of what he and other church staff were doing in the minutes when the abuse must have occurred. Judd would welcome such a fight, given that Victoria’s prosecutors have already won the same argument twice, at Pell’s second trial in late 2018 and at his appeal in the middle of last year. But neither side may get what it wants.

The arson, murder and car-crash cases have something in common beyond their Moreton Bay settings. Each of their appeal hearings came only after at least two High Court judges had decided that the factual disputes were worthy of the national court’s time. Pell, by contrast, lacks that comfort going into next week’s proceedings. This means that Wednesday’s hearing — and Pell’s hopes of exoneration — could be over in as little as an hour. Or it could mean that the court will make the proceedings about something else entirely.

Sixteen years ago, Bret Walker was representing Queensland’s chief magistrate when she was hoping for a last-chance exoneration after a jury convicted her of retaliating against a fellow magistrate in a workplace dispute. Walker’s plan was to convince the High Court that his client’s conduct was reasonable, but the judges had a better idea: why not argue that her judicial role made her immune from such a prosecution? Walker took the point and Di Fingleton was cleared.

Five weeks ago, the High Court wrote to Pell and his prosecutor with some questions. The court occasionally writes such letters to litigants, including in the recent case about deporting Aboriginal Australians. For some reason, letters like this are always kept secret from the public, leaving us to learn about them — if we ever do — when the parties formally respond. Pell’s response two weeks ago is how we learnt that his case may take a left turn.

To understand what may have changed, we need to go back eleven months to shortly after Pell was sentenced. In early April last year, Victoria’s Supreme Court wrote to the parties explaining that the three judges assigned to hear Pell’s appeal wanted to see some of what Pell’s jurors saw. In particular, they planned to visit St Patrick’s Cathedral themselves and to watch the adult choirboy’s prerecorded testimony together with footage of the in-court testimony of three other people who were at St Patrick’s back then.

Unbeknownst to the public, the prisoner and prosecutor privately clashed over this request. The Crown’s then counsel, Chris Boyce, told the three judges to do what they wished, but Pell’s team drew the line at their watching testimony from the trial. They pointed to a NSW case from a decade ago, where an appeal court declared that jurors and judges alike should never watch footage of witnesses during their deliberations lest they be overwhelmed by the visual medium. When the case went to the High Court, its judges — including future chief justice Susan Kiefel — were less strident. Usually, the trial transcript will suffice for criminal appeals, they said, but not if the videos may reveal things that written words can’t.

Last April, the Victorian judges sided with the prosecution, but also accepted Pell’s fallback position: if the judges watch any witnesses testify, then they should watch all whose accounts were at issue. The trio ended up viewing footage of eleven witnesses from the second trial, together with three other videos Pell’s jury saw: the complainant’s return to St Patrick’s in March 2016, the police interview with Pell in Rome later that year, and the complainant’s testimony at Pell’s first trial in mid 2018. After the hearing, the judges also tried on the archbishop’s robes, later splitting (as in most things) on whether their design rendered the complainant’s detailed account of the abuse plausible or not.

The Melbourne court’s decisions last April may loom large in Canberra this March. The High Court’s first question to the parties was whether courts hearing criminal appeals are required or even permitted to go beyond the trial transcript. In their responses, both parties repeated their views from last year. Walker said that the appeal judges shouldn’t have watched the videos because there was no reason to do so. It’s one thing watching videos of child witnesses, as some judges have, because such videos will likely show whether the child was uncomfortable, confused, hesitant, confident or communicating with actions. But the witnesses in Pell’s case were (thankfully) all mature adults. So what, responded Judd. Just because appeal judges don’t need to watch the videos doesn’t mean that they can’t. It’s up to them, she said, and their decision made perfect sense given the arguments Pell was making about the evidence.

Who will win this argument, if it’s pursued next week, is anyone’s guess, but what’s important right now are its practical consequences. The issue of whether to watch trial videos is a huge one for criminal appeal courts and the people who appear before them. This means that the question the High Court raised is not just about Pell’s case but potentially affects hundreds of others each year, and is clearly worthy of a national court’s time. For Pell, though, the issue is a mixed bag. The new question is one on which the High Court is quite likely to take his case, but the downside is that it shifts the focus from the jurors’ verdict to the process that preceded his unsuccessful first appeal. If the court in Canberra rules that the Melbourne judges shouldn’t have watched some or all of the videos, then the obvious remedy is to send Pell’s case back to Victoria to be heard before three new judges. In effect, Pell would be left back where he was in March last year, facing many more months in prison, especially if he loses a second time. Even the best outcome — a victory before the new bench — would be tarnished. It would mean that he was condemned by judges who did watch trial videos but exonerated by judges who didn’t.

That’s probably why Pell and prosecutor were in rare agreement when it came to the High Court’s second question: does watching the videos change how an appeal court should judge a jury’s verdict? No, both said, or at least not in this case.

The High Court’s letter forms part of a debate that has been unresolved since courts of criminal appeal were created over a century ago: how exactly do criminal appeal judges’ roles differ from those of jurors? A few years before Pell became archbishop of Melbourne, a majority of the High Court cobbled together its answer during a different child sexual abuse appeal. Four judges agreed that appeal judges, like jurors, must assess the trial evidence for themselves to see if it leaves them in doubt. But they also agreed that the judges must factor in the differences between themselves and jurors before deciding any appeal.

That compromise was broadly workable in 1994, when technology meant that there was always at least one crucial difference between jurors and appeal judges: jurors got to see the trial witnesses, appeal judges didn’t. But ease of video recording has caused that compromise to falter. While Pell was being tried (and his entire trial recorded), NSW’s appeal judges were arguing about whether watching the key videos from a trial affects the test for deciding appeals. They had little choice but to watch two videos in the case before them: one, where a child detailed particular sexual acts to police investigators, and a second, where the same child denied those same acts when he was cross-examined at the accused’s trial.

One judge said that the videos left him in doubt about the accused’s guilt, and also just as well placed as the jury to make that call. But the others (who were less troubled by what they saw) said that the jury’s guilty verdict should stand because the jury still had the advantage of experiencing the trial’s atmosphere and watching the accused’s face as events unfolded. The High Court’s second question to Pell and his prosecutor was effectively about which side of this dispute was right.

In their responses, Walker and Judd — unenthusiastically, it seems to me — worked through whether video has killed the barrister. Pell’s counsel said that trial videos narrow the usual gap between juror and judge, and suggested that as a further reason why appeal judges should refrain from watching if they can. Victoria’s DPP, for her part, thought it arguable that judges ought to watch whatever videos are available in order to better evaluate the evidence for themselves, unless — she archly hinted — the High Court rethinks the compromise it struck in 1994.

But both prisoner and prosecutor agreed on one thing: none of this mattered in Pell’s appeal. Each side approved of how Pell’s Victorian judges approached this part of their task. Whether watching the videos was right or wrong, they said, all three judges were careful not to overuse them, expressly avoiding placing too much significance on how the witnesses looked and sounded, at least compared with what they actually said. Walker and Judd also pointed out that each of the three acknowledged that Pell’s jurors had many advantages over his judges: the jurors were able to see the witnesses in sequence over weeks; with the notable exception of the complainant’s prerecorded testimony, they weren’t restricted to the “two-dimensional” view on the judges’ computers; and they had the benefit of talking with eleven others in the jury room, in contrast to the three Victorian judges’ apparently lonely contemplation of Pell’s guilt or innocence.

If neither party wants to argue the issues raised by the High Court, does that mean they won’t be discussed? No, that’s another myth about the national court, which has its own duty to inquire into the law being argued before it, and which has plenty of ways to convince litigants to shift their arguments. Just because the parties agree doesn’t mean that the court has to. The Canberra judges could decide that the videos really did skew the task of the Melbourne judges — for example, because of the majority’s choice to watch the choirboy’s video testimony “cold,” as the jury did, before reading the transcript of his words — and can send the case back to Victoria to be heard before three new judges. Alternatively, a bench of seven could decide for itself that the Australian test for unsafe verdicts ought to work very differently when videos are in play, and then tell the original three judges to take a second look.

Whether any of that actually happens is another matter. I can see why it might be tempting for the High Court to decide Pell’s appeal on a broad legal question rather than delve into the case’s complex facts. On the other hand, I can also see why the judges would hesitate to use this unique case as a chance to direct future appeal judges on how to do their jobs in more mundane ones. Whatever the national court’s inclinations, it has plenty of options on Wednesday: to tell the parties to focus on a particular issue, to give the parties a free hand, or to stop things suddenly with the words every suppliant dreads: “The Court is of the view that this is not a suitable vehicle for the grant of special leave.”

This plethora of options is one reason I’m not game (this time) to predict anything about next week’s hearing. Grant or refuse? Decide or refer? Facts or law? Process or substance? Safe or unsafe? We don’t even know yet whether Pell’s case will be heard before a bench of five (the usual number) or seven (for constitutional or other big cases, or if the court is thinking of overruling one of its own decisions). Even the Kiefel court’s most reliable feature — its extreme collegiality — isn’t what it used to be.

But the lack of predictability is what makes next week’s hearings especially interesting. While Pell’s first appeal was live-streamed, his second will be live-tweeted (from the High Court’s own “overflow” facilities, where phones are permitted). For those who can’t attend, transcripts will be published online each evening and video a few days later. But, as always, there’s nothing like being there.

Pell’s original trials were seen in full only by his jurors, the lawyers and judge Peter Kidd, with spectators and journos excluded from the most important parts and sworn to secrecy for the rest. I watched his first appeal in a cramped room and found it hard to take my eyes off Pell himself. Next week will be a very different experience, taking place in the nation’s most majestic, light-filled courtroom, but with Pell likely watching on video in his prison. Subject to travel advisories, I’ll be there to see his last stand in three dimensions. •

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Let’s start at the beginning, or at the least the Australian beginning for Rudi and his first wife, Veronica. (I’m using pseudonyms because Rudi’s situation is delicately balanced.) About ten years ago, Rudi, Veronica and their toddler Maja left Europe for Australia. Veronica was an international student and the primary visa holder. Rudi and Maja were classified as her dependants.

About a year later, Rudi and Veronica’s relationship fell apart. Rudi needed his own visa if he wanted to stay in Australia and remain a father to Maja. He returned to study, starting with an English course then moving on to vocational qualifications in management and IT. At each stage he gained a new student visa.

For reasons that will become apparent, it’s important to stress that Rudi mentioned his daughter whenever he applied for a new visa, and that staying close to Maja was important to him. Technically, such honesty could have cost Rudi dearly, because all international students must satisfy a genuine temporary entrant requirement designed to identify — and potentially exclude — applicants who use the student visa program “for motives other than gaining a quality education.” Personal ties that “present a strong incentive to stay in Australia” are grounds for a refusal.

Rudi’s visas were routinely granted, though, which meant he could study and work during the week and care for Maja at weekends. “It was a good arrangement,” he says, because his relations with Veronica were amicable. “A verbal agreement on shared custody was all we needed.” But that didn’t last.

Over time, Rudi and Veronica both started other relationships. Veronica’s new partner was Australian, and their marriage meant that she and Maja would eventually become Australian citizens. Rudi fell in love with Maria Rosa, an international student from Latin America. Maria and Rudi married and had a baby, Maja’s half-brother Robbie, who is now a toddler.

Somewhere along the way, relations between Rudi and Veronica soured, and they could no longer agree on arrangements for sharing Maja’s care. When months of mediation failed, they ended up in the Family Court. (The involvement of the Family Court is another reason for blurring personal details in this story; Section 121 of the Family Law Act makes it an offence to report on proceedings in a manner that may identify the individuals involved in a particular case.) After a process that lasted eighteen months, the Family Court granted Rudi shared custody of Maja in a roughly 40–60 split with Veronica: Maja spends five nights a fortnight with Rudi, Maria and Robbie during school terms and is with them for half the school holidays.

While the Family Court recognises Rudi’s central role in the life of his daughter, these legally sanctioned shared-custody arrangements have no bearing on his immigration status. So, as Rudi completed his final course and his last student visa neared its end date, he faced a dilemma — how could he stay in Australia and maintain his role as Maja’s father? Although he was steadily employed, he lacked the qualifications that would secure him a visa as a skilled migrant.

As I have reported before in Inside Story, no visa category exists to allow the foreign parent of an Australian child to stay here in order to share his or her care and maintain their relationship. Desperate foreign parents must find complex workarounds, wriggle through migration loopholes, or leave the country and lose access to their child.

Rudi tried two things, and this is where his visa problems got really serious.

One approach involved an application for a contributory parent visa (subclass 143) supported by the church Rudi attends. As the wrinkled faces gracing the relevant pages of the Home Affairs website indicate, this visa is designed for a completely different purpose — to enable adult migrants who have settled in Australia to sponsor their ageing parents to join them here. As Rudi’s child, Maja is eligible to sponsor her father to stay in Australia; as a minor, however, this would require her mother’s consent and signing on her behalf. With the deteriorated relationship between Rudi and Veronica this was not an option, which is why the church stepped in.

This visa category has other drawbacks. It costs around $45,000 per applicant, it presently takes at least four years to process and it can only be granted if the applicant is outside Australia. Unlike many other visas, lodging an application doesn’t make you eligible for a bridging visa — in other words, it doesn’t help Rudi stay in Australia in the short term.

If Rudi, Maria and Robbie were forced to leave Australia until the visa was granted, they would be separated from Rudi’s daughter for four crucial years of her life — years in which she would go from being a teenager to a young adult. “You show love for children by being there,” says Rudi’s migration agent, who is advising him pro-bono. “If you are not present, they feel like they are not loved. When they grow up, they will say, ‘you left me’ and they won’t necessarily understand why.”

“I don’t want to be one of those absent fathers,” says Rudi. Of course, he could maintain a relationship with Maja online, through video calls and messaging apps. But his ability to stay in touch with his daughter would be at the discretion of his former wife. Given their estrangement, Rudi fears that Veronica might not allow such contact. As his migration agent points out, the Family Court’s decision on shared custody doesn’t say anything about the terms of any contact with Maja from overseas. Nor, once he has left Australia, can he go back to the court to seek new orders enabling him to keep in touch with Maja online.

Rudi and Maria also pursued a second option to keep Rudi in Australia. Maria applied for a new student visa, with Rudi and their son Robbie as her dependents. If she were granted a visa, then the family could all live in Australia while she studied, and the contributory parent visa would be much closer to being finalised by the time she completed her course.

But Maria’s visa application was denied. And when she appealed to the Administrative Appeals Tribunal, it was denied there too.

The fly in the ointment was the genuine temporary entrant requirement. Given the family’s extended student visa history in Australia, the presence of an Australian citizen child (Maja) and a lodged contributory parent visa, Home Affairs and the AAT both concluded, quite reasonably, that Maria was not a genuine temporary entrant. A key purpose of her student visa application was to enable Rudi to remain in Australia close to his daughter.

As Rudi’s migration agent acknowledges, Home Affairs and the AAT are not doing anything wrong in a legal sense. They are applying migration law correctly, but the effect of doing so produces a manifest injustice.

Cases like this are not just about rights of foreign parents; they are also about the rights of Australian children. Maja, an Australian citizen, risks being denied a close bond with her father and her younger brother. This contravenes the Convention on the Rights of the Child, which requires signatory states like Australia to ensure “that a child shall not be separated from his or her parents against their will, except when competent authorities… determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” In Rudi and Maja’s case, the competent authorities — at the Family Court — have determined exactly the opposite: that it is in Maja’s best interests to have an ongoing relationship with her father.

The convention goes on to say that governments “shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis.” States must deal with a parent’s applications to enter or leave a country for the purpose of family reunification “in a positive, humane and expeditious manner.”

There is nothing positive, humane or expeditious about the operation of Australia’s migration law in such circumstances. The lack of a simple visa pathway forces families to live for years in a state of anxious uncertainty. And in Rudi’s case, that limbo could last a long time yet.

Rudi’s last hope rests with an application for the immigration minister to personally consider his case. The minister has the discretion to replace the tribunal’s decision with one that is “more favourable” if he or she thinks it is “in the public interest to do so.” In short, the minister could choose to grant Rudi and his family visas.

Sometimes referred to as the God powers, ministerial discretion is non-delegable, non-compellable and non-reviewable. In other words, the minister alone makes such decisions; he or she can’t be forced to consider any particular case; there is no set timeline for reaching a decision; and no decision made in this way can be challenged in any court or tribunal.

The process is also entirely opaque. Home Affairs no longer publishes data on requests for intervention, but in the last year it did, back in 2011–12, more than 8000 individual applications were received. It is reasonable to assume the number is higher today. If the minister were to resolve 8000 cases within a year, that would mean working seven days a week and considering and finalising twenty-two applications every day. Of course, the minister doesn’t consider each case personally. Gatekeeping staff vet applications against a set of guidelines to try to identify which ones should progress to the minister’s desk. As the Home Affairs website warns, only a small number do.

So, the fair resolution of exceptional cases like Rudi’s — ones that migration law does not cater for — rely on the discretion of the minister. And yet there is no guarantee the minister will even look at such cases personally.

“We have to work with the legislation we’ve got,” says Rudi’s migration agent. “We’ve been up front and honest all the way.” The agent is buoyed by the fact that Rudi, Maria and Robbie have been granted three-month bridging visas. That suggests that the application didn’t fall at the first hurdle when it was vetted by staff in the minister’s office. But that also means the process could drag on for an unknown period. The responsible minister, David Coleman, has just taken indefinite leave from his portfolio, and his duties have been handed to Alan Tudge. Given the holiday season, and the fact that Mr Tudge will continue as minister for population, cities and urban infrastructure too, it seems unlikely that he’ll get around to considering Rudi’s plight any time soon.

As a result, Rudi and his family could find themselves living on one short-term bridging visa after another, never knowing if it will be renewed, and unable to travel outside the country in the meantime. Rudi worries that if one of his parents back in Europe were to fall seriously ill, he would be unable to visit them.

Rudi knows that sharing his story with me won’t alter his own fate. But he wants Australians to know what is happening to his family, because he thinks the way the law operates is wrong and should be changed.

Cases like his are not common, but as the number of temporary migrants living in Australia continues to grow, more families will be caught up in legal and administrative complexity, trapped between migration law and family law, two systems that don’t talk to one another. For those involved, the stakes are extraordinarily high. Yet it would be relatively easy for the government to create a straightforward visa pathway to enable foreign parents to live in the same country as their Australian children. • 

The post “I don’t want to be one of those absent fathers” appeared first on Inside Story.

In a speech crafted to hit the US-based giants where it hurt, a pugnacious Dutton asked why the companies were opposing his government’s request for access to decrypted messages carried by services such as Signal and Facebook’s WhatsApp, given they had few qualms about doing business with the world’s most repressive regimes.

These companies were operating “in less democratic countries and accepting… a compromise on privacy to allow their presence in these growth markets,” he said, without naming his targets — although Google’s work on a censored search engine in China can’t have been far from his mind. They are “the same companies that need to be hounded to pay tax in Australia and other jurisdictions,” he added, “and the same companies who have misused personal data to commercial advantage.”

As knife twisting goes, Dutton was in top form. The “misuse of personal data” line was a reference to the Cambridge Analytica scandal, in which Facebook revealed it had allowed a British political consultancy to harvest the data of millions of users — including more than 300,000 Australians — without their consent. As for tax dodging, he was obviously alluding to Apple, Facebook and Google sidestepping European Union tax regimes by moving their profits to Luxembourg, Ireland, Malta and other zero- or low-tax jurisdictions.

Why the sudden antagonism? What had the tech companies done to deserve this broadside from one of the government’s most powerful members?

All we can be sure of is that the tech companies had been fighting hard behind the scenes to scuttle the encryption legislation, correctly arguing that the laws would have created “back doors” into encrypted messaging systems. To grant Australian law enforcement agencies this access, the companies’ lobbyists said, would build weaknesses into secure communications that could be exploited by criminals and hackers the world over. It would undermine legitimate and important uses of encryption — for example, in the transmission of medical records.

But the policeman-turned-minister wasn’t buying it — a point he made both in speeches and in submissions to the parliamentary committee reviewing the legislation. What was the difference between police or intelligence agencies intercepting a phone call and a message sent on WhatsApp? The only difference between the two, as far as he could tell, was that Silicon Valley said they were different. And if big tech had a problem with back doors — well, too bad.

“If a criminal had a handwritten plan detailing a paedophile network he had established, the police could obtain a warrant to enter the house and seize the handwritten note as evidence,” Dutton said. “If the same criminal typed the same detail of the plan and sent it via a text message or email, the police could again obtain a warrant and recover the text as evidence.”

But if the “exact same detail of the paedophile network was sent via an encrypted messaging service, like Wickr or WhatsApp, the police would not be able to recover the information,” he went on. “It is of course an absurdity because the clear advice from law enforcement and security agencies is that we are now losing our edge to criminal enterprises.”

What the US tech companies may have failed to grasp, and with them their local lobby firms — which include Nexus APAC, TG Endeavour, Hawker Britton and Barton Deakin, according to the transparency register — is that they were up against a core value of modern Australian conservatism. Ever since the 2001 Tampa affair, Australian centre-right governments have staked their claim to policies that centre on notions of state sovereignty; it’s a world in which laws apply, unaltered and undiminished, in every inch of Australian territory.

Critics, of course, would dispute the premise that a democratic country’s sovereignty is absolute. Every international defence treaty, every trade agreement or reciprocal immigration deal we sign brings with it a lessening of sovereignty. Yet the tech companies’ argument that their operations are supranational, that their technologies and content can’t be tailored to the requirements of national regulation, was never going to fly. Dutton wasn’t merely bringing vocal companies to heel over Australian law enforcement agencies’ right to crack encrypted messages; he was sending the message that no global company operating anywhere from Christmas Island to Tasmania’s South East Cape was beyond the reach of Australian laws.

In his showdown with Silicon Valley, Dutton didn’t blink. In spite of legitimate concerns about the lack of independent oversight of the encryption laws and their impact on local tech start-ups, by the end of 2018 the new rules had been rammed through in an eleventh-hour parliamentary sitting. The government has promised to review the legislation, but big tech and civil liberties advocates concerned with the law’s privacy implications suffered a loss from which they appear unlikely to recover.

But Dutton’s feud with US technology giants had only just begun. When an Australian gunman entered two mosques in Christchurch in March, allegedly shooting dead fifty-one people, he broadcast his actions live on Facebook. For whatever reason, the platform dragged its feet in removing the content, and graphic images were beamed into countries around the globe, including Australia. This event would unleash one of the most forceful regulatory backlashes a US digital company has yet to witness, anywhere in the world.

Within weeks of the killings, the Australian parliament had adopted laws that included prison sentences for local employees of digital platforms that failed to remove “abhorrent violent material” in an “expeditious” way. Local employees of Facebook and Google could wind up spending three years behind bars if they failed to move fast, no matter where the offending content had come from.

These laws marked the nadir of the relationship between Canberra and big tech. The prospect of company employees ending up in the slammer over something uploaded by a kid in Uzbekistan was shocking — particularly in the light of the legislation’s fuzzy reference to the “expeditious” removal of “abhorrent” content. But even more concerning for the platforms was the underlying logic of the legislation, which was contemptuous of the tech giants’ argument that they simply don’t have the power to tailor global content to suit national regulatory requirements.

The message from Canberra was that it wanted to regulate the global platforms as though they were Australian television broadcasters. “Mainstream media that broadcast such material would be putting their licence at risk and there is no reason why social media platforms should be treated differently,” attorney-general Christian Porter said at the time.

It’s this recasting of their role that the platforms object to. The shift is evident in the apparent success of Australian newspapers’ campaign to have policymakers view digital platforms as publishers of content — a definition at odds with the platforms’ argument that they are merely neutral conduits linking readers to media content. And with the abhorrent violent material laws, the Australian government is telling the world that the regulatory imbalance between platforms and television broadcasters is coming to an end. If Facebook or, say, Twitter’s Periscope want to be in the business of pumping out video content, then they should expect to be regulated as though they were a fully fledged local TV company.

Politically, this tough stance comes at zero risk. News Corp has been an outspoken critic of the platforms in its submissions to the Australian Competition and Consumer Commission’s digital platforms inquiry — an inquiry that has produced a damning account of regulatory failures in dealing with Facebook and Google. MPs on both the left and the right of the political firmament appear to agree that tougher regulation is needed, and the platforms’ argument that their content is supranational — that it can’t be edited country-by-country — is being dismissed if not ridiculed. If Facebook has the technology to target advertising at individual users, critics believe it can be expected to muster whatever software is needed to avoid shoving images of fifty-one people being shot to death into the faces of Australian users.

If any of this mucks up Silicon Valley’s global business model or puts at risk the security of communications outside Australia — well, it’s not Canberra’s problem. Big tech may believe in a borderless world, but Australian policymakers don’t. The message from the government is that capital-S sovereignty is here to stay, no matter what technology is thrown at it. •

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Isaacs wrote those words when the nation’s top court confronted what was, until recently, the highest-profile criminal case in Victoria’s history. From the moment the “outraged” body of twelve-year-old Alma Tirtschke, the dux of Hawthorn West Primary School, was found in a city alley on the final day of 1921, Melbourne and its media were transfixed. They remained so when police arrested wine bar owner Colin Ross for her murder two weeks later, and through his six-day trial and his appeal before Victoria’s Supreme Court. Now it was the High Court’s turn in the spotlight.

What role should a national court play in the nation’s criminal cases? That question has been debated for much of the High Court’s history. When the Australian Constitution’s “founding fathers” devised the nation’s new “federal Supreme Court,” they were inspired by its United States counterpart but decided to give the Australian court an extra role. On its creation in 1903, the High Court had the power to choose — “grant special leave” — to hear appeals from every court in the country, a role it initially shared with the Privy Council in London. At the time, most criminal convictions couldn’t be appealed, but that changed just four years later when England, reeling from a spate of miscarriages of justice, created a court of criminal appeal and the rest of the Empire followed suit.

These developments left the top courts in Britain and Australia in a quandary, each of them loathe to provide a second level of appeal to every convicted criminal in the Empire or nation. In 1914, the Privy Council decided to intervene only in criminal cases that would create an “evil precedent in future.” The High Court promptly made the same decision (over Isaacs’s furious dissent), but abandoned that stance as unworkable just six months later. The judges then declared that their “Court has an unfettered discretion to grant or refuse special leave in every case.”

Seven years later, Colin Ross understandably opted to bring his last-chance appeal to the High Court in Darlinghurst rather than the Privy Council in Westminster. His barrister flew to Sydney armed with a fistful of reasons for the national court to grant special leave, including fresh evidence, procedural errors at the trial, and unchallenged evidence of an alibi at the time of the murder. But he found a national court acutely aware of how “special” his case was.

“Our practice as to allowing appeals in criminal cases is more liberal to the prisoner than that adopted by the Privy Council,” allowed the majority, “but we must never lose sight of the fact that, in regulating our practice, the interests of the community, as well as those of the prisoner, have to be considered.” The majority judges’ particular concern was that allowing criminal defendants a second appeal “might amount to practical obstruction of the ordered administration of law.” They didn’t say what they meant, but everyone knew.

Three weeks later, Ross promised his family that “the day will come when my innocence will be proved.” Hours later, he became the first High Court litigant to hang, dying in agony following a botched execution. Forty-four years later, the national court similarly refused special leave to the last such litigant, Ronald Ryan, who told his hangman, “God bless you, please make it quick.”

It is always startling to see how justice used to be done. Colin Ross’s journey through the criminal justice system — arrest, committal, trial, appeal, denial of special leave, and execution — took just three months from go to woe. By contrast, it has now been nearly thirty months since George Pell was charged and eleven since his conviction for child sexual offences. Pell received neither death nor life in prison, but rather a six-year sentence. A loss in the High Court will still leave him free on parole in around three years (but also officially branded a sex offender for life and beyond).

On the other hand, Ross’s application for special leave received a three-day hearing before five judges of the High Court, who issued a twenty-two-page judgement the following Monday, including a concurrence and a lengthy dissent. By contrast, had Pell lost last Wednesday, his case would have ended with neither a hearing before the national court nor an explanation from the mere two judges who would have considered his case. Even now, his application for special leave could still be dismissed without any explanation, albeit after a hearing before at least five judges.

These changes in the national court are relatively recent. For its first nine decades, the High Court routinely gave convicted suppliants the treatment they gave Ross, with five or more judges hearing full arguments on whether they should grant special leave. Procedurally at least, there was no difference between the famous — Ronald Ryan (in 1966), Lindy Chamberlain (in 1983) and Roger Rogerson (in 1992) among them, all of whom received five-judge hearings of their applications for leave — and the less famous.

But such hearings are now a relic. A few years after Australia’s parliaments ended petitions to the Privy Council, the High Court started listing all applications for leave before small panels of judges: three at first and then just two. The hearings were speedy affairs, with a dozen or so scheduled for a single day, twenty minutes given to each lawyer to make their case and no reasons for the judges’ decision. More recently, the High Court announced it wouldn’t even do that much for most cases, instead simply publishing bimonthly lists of applications with the words “granted” or (almost always) “dismissed” next to them.

When news emerged last Monday that George Pell’s case was to be included in that week’s list, it looked like his case could end not with a bang but with a whimper. (Word of his listing somehow leaked from the court thirty-six hours ahead of its usual release.) Most cases dealt with in this way lose, but that’s because most of them are hopeless. The former archbishop’s sex-offending convictions were being dealt with in the same way as some guy trying to pay his taxes with a “promissory note,” or umpteen immigration appeals.

I was making no predictions this time. The High Court’s special leave decisions operate as a black box, with listings, selections of judges and the ultimate decision never explained. The odds are always against a grant of leave, especially when the case isn’t given a public hearing. On the other hand, special leave has been granted “on the papers” in seven cases so far this year.

So, no one should have been surprised by either a grant of leave or a refusal last Wednesday. Instead, the big surprise was that the national court did neither.

“In this application,” said Michelle Gordon, the High Court’s fifty-second justice, speaking also on behalf of its fifty-third, “Justice Edelman and I order that the application for special leave to appeal be referred to a Full Court of this Court for argument as on an appeal.” The waiting media could tell that Pell’s case wasn’t over yet, but were understandably baffled. What just happened?

The answer is that the High Court — or perhaps just its two most junior judges — had opted to deal with George Pell’s case the way it used to deal with most criminal appeals until the early 1990s. Pell would make his pitch for the national court to take his case before at least five justices, rather than the usual two, just as Ross, Ryan, Chamberlain, Rogerson and a thousand or so other convicted criminals once had.

Did Pell get singular treatment? No and yes. No, because this is at least the thirtieth time the High Court has dealt with a special leave application in this way in the past decade, including more than a dozen criminal appeals. Yes, because it is the first time it has done so in five years, since around the time the national court stopped holding hearings for most applications.

What will happen now? Most likely, Pell’s case will proceed like any case for which leave has been granted. The parties will put in full written arguments. (The court’s website already has a timetable up: we’ll read the arguments from Pell’s lawyer, Bret Walker, early in January and then the responses from Victoria’s top prosecutor, Kerri Judd, early in February, suggesting a hearing in March or maybe April.) The judges will likely “reserve” their decision after a day’s arguments and Pell will learn his fate around June.

At least, that’s how around three-quarters of referrals to five-judge panels turn out. The court sometimes does things this way to prod a proceeding along at one party’s request. (There’s been no word that Pell or his prosecutor asked.) And sometimes the judges want their suppliant to refine the grounds of appeal. (The court keeps any such letters to the parties secret from the public.)

Less often, the national court just wants to retain the option of staying with the case as long as it wants but ending its involvement at will. “The trapdoor can open at any moment,” Justice Dyson Heydon once told two tax evaders in Pell’s position nine years ago. It stayed shut in their case, but has opened in half a dozen others this decade. Pell’s case may end similarly next March, with the judges suddenly returning from lunch or a short break and ending the hearing without explanation.

Or perhaps the High Court had a reason specific to Pell. There’s a precedent of sorts in a recent high-profile case. In 2015, Queensland prosecutors’ application for leave to argue that Gerard Baden-Clay’s conviction for murdering his wife Allison should be restored was likewise dealt with “on the papers,” meaning that the controversial case had just one live hearing in Australia’s top court. The five judges sat in Brisbane and needed to provide an overflow room with a live feed to accommodate all of the spectators. The circuses that accompanied Pell’s Victorian hearings make it easy to see why the national court would avoid holding two hearings in his case.

The difference in Baden-Clay’s case, though, was that the High Court opted to grant special leave on the papers, rather than defer the prosecutor’s application to the next hearing. Why didn’t the court do the same with Pell? We will never know, but I wonder if the court’s hesitation this time was about whether its current processes could withstand the public scrutiny that is applied to all things Pell. How can such a controversial case be judged (and, especially, ended) by just two judges out of a bench of seven, with no reasons given? That question — which I think ought to be asked about every criminal appeal that reaches the national court — would have been front and centre of any coverage of Pell’s application, but for the High Court’s surprise decision on Wednesday.

The High Court has been involved in many divisive cases before, but they are usually constitutional cases on which all seven judges sit. It has also been involved in many high-profile criminal cases, but, since the national court stopped giving convicted suppliants hearings before at least five judges, none so divisive as Pell’s. It is the only comparable national court that currently resolves applications for leave to appeal in criminal cases with just two judges. The US Supreme Court takes cases whenever any four of its nine judges want to. New Zealand’s top court assigns panels of three of its five judges to hear every application and provides brief but specific reasons for every refusal. The Supreme Courts of the United Kingdom and Canada likewise assign panels of three to each application, and also provide an automatic right of appeal where, respectively, a lower court certifies a case of worthy of further consideration or at least one judge dissented from the lower court’s ruling.

It’s obviously a delicate matter to hint that any court has given different treatment to a particular high-profile case. The High Court and any lawyer who appears before it would be very vocal in denying such a possibility. But I see such a suggestion as less about the public sensitivities surrounding Pell and more about the institutional sensitivities of any national court that is forced to make sharply contested decisions where emotions run high. Indeed, much the same could be (and has been) said of recent decisions by Britain’s top court and coming ones in the United States.

We cannot (and should not) expect a court’s judges to wholly ignore how, in a high-profile case, they — and their processes — will also be judged. In the case of the four judges who denied special leave to Colin Ross, the final judgement came fifty years after the last of them died. In 2007, Victoria’s Supreme Court — relying on fresh evidence — recommended Ross’s posthumous pardoning for the murder of Alma Tirtschke. •

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Congressional Republicans seem set to adopt a similar response to the impeachment proceedings. Reports suggest they will acknowledge that Trump used US military aid to force Ukraine to investigate Joe Biden and his family, but will insist that it wasn’t illegal and certainly didn’t rise to the level of an impeachable offence.

Trump’s day-to-day response to impeachment follows a familiar script. He accuses his opponents of whatever he is accused of — treason or illegal behaviour, for example — and then throws dirt and obscenities at them. In recent weeks he has repeatedly attacked the whistleblower who made the original complaint (and demanded to know his identity, in contravention of a number of legal protections), slammed anyone who has testified to congressional committees, and lambasted the few Republicans (or “human scum”) who have objected to his conduct.

His most savage remarks have been reserved for House leader Nancy Pelosi and House Intelligence Committee chair Adam Schiff. He has accused Schiff of lies, “massive fraud” and treason, and suggested that Pelosi is guilty of “High Crimes and Misdemeanors, and even Treason.” Both of them, he insists, should be impeached. He doesn’t care and may not even know that such a course of action would have no legal basis.

Previous presidents, by contrast — even those facing imminent impeachment, like Bill Clinton and Richard Nixon — understood that, in the end, respect for the rule of law means complying with the law. But ignorance of the law is embedded in Trump’s approach to the presidency. His willingness to both use and abuse the law, a practice learned from his father, has been an essential part of his business practice.

Fred Trump, who made much of his real estate fortune by exploiting federal housing programs and tax loopholes, is described by one of his son’s biographers as a businessman who “never missed a chance to bend the rules.” In 1973, when the federal Department of Justice accused Trump Management of clear-cut Fair Housing Act violations at thirty-nine Trump-owned apartment buildings, young Donald retained lawyer Roy Cohn, a fixer notorious for being chief counsel during senator Joseph McCarthy’s hearings. Together they launched a protracted battle against the charges of racial discrimination, including a $100 million countersuit accusing the Department of Justice of defamation. The Trumps also filed a contempt-of-court charge against one of the prosecutors, accusing her of turning the investigations into a “Gestapo-like interrogation.”

After two years of legal wrangling, the countersuit was dismissed and the Trumps signed a consent decree that required costly restitution but no admission of guilt. Donald Trump claimed victory and Trump Management continued the violations. A few years later they were back in court accused of breaching the consent decree.

The 1973 lawsuit had long-lasting consequences: it not only brought Trump and Cohn together in a relationship during which Trump learned from an expert how to abuse both the legal system and those who opposed him, it also gave the twenty-seven-year-old his first, addictive taste of public attention. Cohn died in 1986 but his legacy lingers in the White House today. Once, in a fit of rage at then attorney-general Jeff Sessions over his recusal from overseeing the Mueller probe, Trump reportedly demanded, “Where’s my Roy Cohn?”

When Trump was running as the Republican presidential nominee in 2016, USA Today undertook a massive investigation that found he and his businesses had been involved in at least 3500 lawsuits. These included disputes over multimillion-dollar real estate deals, defamation suits and even petty cases against individuals over casino debts.

Although the Trump Organisation described this as “the cost of doing business,” the USA Today analysis showed that Trump was involved in more legal cases than the five top US real estate business executives combined. That unprecedented number grew by seventy in the year after he announced his candidacy for the presidency in June 2015.

The pattern continued once Trump decided to contest the presidency. His campaign and his associates undoubtedly violated the law in their drive for electoral success, both by cooperating with Russian interference — as the Mueller inquiry found — and by paying hush money to two women in a clear violation of campaign finance laws. (The latter might explain why the president has failed to nominate new members to the Federal Election Commission, which now lacks a quorum and so cannot meet, investigate complaints, issue opinions or fine violators.)

Trump was accompanied into the White House by an ever-changing phalanx of personal lawyers, including Michael Cohen (now in jail), Jay Sekulow and Rudy Giuliani. But he has also sought to co-opt administration lawyers, from whom he also expects loyalty rather than fidelity to the law. Increasingly, those who work for him either reflect his own ethos and conduct or — as in the case of FBI director James Comey, attorney-general Jeff Sessions, secretary of state Rex Tillerson, White House counsel Don McGahn and deputy attorney-general Rod Rosenstein — are sacked or resign.

In recent weeks it has become clear that the president’s personal lawyer, Rudy Giuliani, has been running a campaign of shadow diplomacy in support of Trump’s own interests. His attorney-general William Barr, meanwhile, together with Justice Department attorneys and White House counsels, has been representing the president rather than the government. Challenged, Trump says that he has an “absolute right to do what I want to do with the Justice Department.” His model of an attorney-general is someone who “protects the president,” as he claims Eric Holder did for president Barack Obama.

During frequent overseas trips Barr has been pushing Trump’s Ukraine agenda. He broke the law by keeping the original Ukraine whistleblower’s complaint from Congress. Under his auspices the Justice Department has even begun a criminal investigation into the Mueller inquiry. Small wonder that New York University law professor Stephen Gillers recently referred to Barr as “Trump’s new Roy Cohn.”

Former acting attorney-general Matt Whitaker disclosed his Trumpian views when he said that “abuse of power is not a crime.” Trump’s personal attorney William Consovoy recently told a federal judge that, as president, Trump could not be prosecuted even if he shot a person on Fifth Avenue. One thing the president can legally do is order his subordinates to violate the law and promise them pardons for doing so, and Trump has done exactly that.

The impeachment proceedings against Donald Trump are not about violations of tax law, campaign financing regulations or the emoluments clause of the constitution. They are about whether the president pressured Ukrainian president Volodymyr Zelenskyy to investigate the business ties of former vice-president Joe Biden’s son, and whether he withheld federal military aid to make that happen.

At the heart of this and previous impeachment proceedings is one common theme: that a president has abused the power of his office and so is unfit to serve. Presidents can abuse power in many ways, legal and illegal, and in these cases impeachment is the sole mechanism of accountability. Trump calls the House of Representatives’ impeachment enquiry a “witch hunt” but the constitution and whistleblower laws explicitly provide for Congress, as a co-equal branch of government, to scrutinise wrongdoing within the executive branch.

The Wall Street Journal recently looked at the efforts of Trump’s lawyers to give him sweeping immunity — not just from prosecution but also from investigation — even if he were indeed to commit murder on Fifth Avenue. They have pushed for him to be considered beyond the reach of any other federal, state or local institution and to be immune to civil lawsuits, judicial orders, criminal investigations and congressional probes.

In a memorandum dated 8 October 2019, White House counsel Pat Cipollone lays out Trump’s rationale for keeping the entire executive branch from cooperating with the impeachment inquiry. The inquiry “lacks any legitimate foundation” under the constitution, he says, and is constitutionally improper because it seeks to overturn the results of the election.

In the Atlantic, legal expert Kim Wehle says that if the Justice Department’s legal opinion on the whistleblower complaint or Cipollone’s memo on impeachment were part of a filing in a federal court, they would be thrown out on the grounds they violate the Federal Rules of Civil Procedure. These are the rules designed to prevent lawyers from making arguments that are frivolous or have no legal support.

While this isn’t the first administration to invoke executive privilege to deflect scrutiny, it has pushed that law to an extreme. A letter about the Mueller inquiry sent by Cipollone to the chair of the House Judiciary Committee in May effectively rejected congressional oversight as illegitimate. “Congressional investigations are intended to obtain information to aid in evaluating potential legislation,” it said, “not to harass political opponents or to pursue an unauthorised ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice.”

No surprises here: Trump declared his intent to resist all congressional inquiries long before the impeachment process started and has an established pattern of resistance. By one count, he is currently defying as many as twenty different efforts to examine his conduct.

Members of the executive branch requested or subpoenaed to testify to Congress are left with an excruciating dilemma. Some, like lieutenant colonel Alexander Vindman and acting Ukraine ambassador William Taylor, have chosen to defy Trump and testify; others, like Russell Vought, who heads the Office of Management and Budget, intend to defy the subpoenas. Former national security aide Charles Kupperman has asked the courts to decide whether he must obey Congress or a White House order. Kupperman was John Bolton’s deputy, so the results of this lawsuit could determine whether Bolton himself testifies.

Trump is reportedly angry that so many of “his employees,” as he refers to them, are going to Capitol Hill and testifying. He has apparently asked for copies of witness statements so he can decide how to criticise those he perceives as disloyal, and has complained that his lawyers are not doing enough to stop people from talking. He has even encouraged Republican members of Congress to question the credibility of people working in his own administration.

As a recent article in the Guardian points out, each new controversial memo, opinion or tweet maligning individuals who speak out feeds a running debate about “where assertive lawyering ends and malpractice begins.” The pattern of resistance and use of executive privilege is leading inexorably to the conclusion that it is undertaken in bad faith. As such, it is another abuse of presidential power. •

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