Assorted links; minimal commentary

1. Brian Walters SC - president of Liberty Victoria, also involved in the Gunns 20 litigation (and AWB!) - gave a lunchtime speech at the Melbourne Uni Law School yesterday on problems faced by public interest groups when faced with a suit from corporations and bully-boy governments. A number of points came out that are disconcerting enough to repeat. One, is that community groups aren't listened to by courts - c.f. the US, where the ACLU and other organisations don't face the same issues of proving standing. Two, that they're doubly financially disadvantaged in funding or defending litigation, by having limited funds and aren't subject to tax concessions for legal action like corporations. (And in the instance of cases against governments, don't have a vast public purse to pilfer from.) Three, is the great big joke of our Attorneys-General as giving proper legal advice whilst also being members of Parliament. Conflict of interest was nicely evinced by the Port Philip dredging case, where the A-G (Rob Hulls) was also Minister for Planning. Very independent.

One wonders whether it would be better to have an appointed, non-Parliamentarian person in the role of A-G, as in the US and UK. Particularly the UK, where Lord Goldsmith - for all his shady Iraq advice - was at least an experienced lawyer and judge before his appointment.

So who do we have to keep the government in check? No one. Can we, as citizens, actually have our voices heard? Apparently not. Voting in elections simply isn't sufficient. Vote them out? Fine - but the damage is already done. We have no way of keeping the government accountable whilst it is in office. There is precious little access to media, and the media itself often self-censors (I'd give a reference for proof, but it's mere personal communication from someone in the know) rather than face a phone call from someone in the government. Lord knows I've written letters to The Age over the years, and not had them published.

2. On a lighter note - a real life Vicky Pollard. Of course, there are thousands of 'em, but it's always amusing to see someone living down to the stereotype.

3. Sir Anthony Mason on a Bill of Rights - judges are trustworthy? I'd certainly agree they're more trustworthy than politicians. The fact they're not elected - thus do not have a vested interest in populist, knee-jerk policies - is a good thing. And it is naive to suggest that we have a truly representative government. As long as MPs follow the party line, as long as the public is not involved in political and governmental affairs, as long as there are pre-selection battles and secret backroom deals, we have no representative government.

We certainly have no responsible government. We are treated with contempt by the PM and his Ministers - I won't even start on the misnomer of 'the Opposition' (opposition to what?). And the catchphrase of the Howard administration is surely one which decries all responsibility and knowledge...

I wrote an essay last year on autonomous action and decided that responsibility - being taken as responsible - derived not from subjective autonomy but how others view the act itself. Now I think that applies even more pertinently to the government, particularly as it is a product of collective attitudes and ideals (even if those attitudes and ideals are, well, wrong. I'm no relativist.)

In any case, if you've ever seen a judge speak and then heard a politician, it isn't hard to work out who is more on the ball. There's always talk about making sure judges are sensitive to minorities and so on - such a high burden is placed. No such thing on politicians - surely no less important.

4. For once in my life, I wish I was French. Seriously. They may have a mad Interior Minister (I'm sure someone funnier could make jokes about the title alone), but at least people still have the guts and the freedom to have a proper riot and get arrested.

Okay. Enough ranting. Back to thrills and spills of reading.

I'm not a liar, says PM.

Um. Right.

It's all a bit too close to Liar's Paradox as far as my brain is concerned. Then again, this is the man who brought us the non-core promise, so he's clearly no more subject to rationality and classical logic than he is to international legal obligations and the notion of responsible government.

Moderately amusing miscellany

Graeme Orr,"Verbosity and richness: current trends in the craft of the High Court"(1998) 6 TLJ 291.

The title is a clue on how to read the article. It's worth a look.The footnotes are particularly delicious.

E.g. 'This has even spawned a journal dedicated unashamedly to the ambition its authors have in being cited by the High Court. Bond University's High Court Review publishes only commentaries on pending High Court cases, with the promise that copies of the commentaries are sent to both the parties and the court prior to the hearing. The attempt to achieve de facto amicus status, is necessarily ephemeral, and so exists publicly only in Internet format: http://Bond.edu.au/Bond/Schools/Law/publications/HCR/. I have not, however, been able to find any instances where the High Court has "taken up the offer" and cited this review.'

And: The way all the federal courts handled the extraordinary media interest in the waterfront dispute of 1998 reflected the conundrum of the modern judge in the information age: live electronic coverage of oral judgments can make for dramatic news coverage, and offer a chance for the judiciary to explain its role to a wide audience. However, the alluring pitfalls of such attention and fame, while well known, are difficult for all but the most meek to resist, let alone for judges, who being accomplished and successful people, are not all possessed of either humility or a repressed ego.

Yes, a good way to reduce my BP after the horrible UI of Westlaw.

Better yet, it led me to this gem from Kirby J in Johnson v American Home Assurance Company:
"The ninety-first Psalm reflects the common human fear of injury to the foot. The Psalmist promises rescue from various misfortunes. The angels, we are assured, will take charge over the righteous[1]:

"They shall bear thee up in their hands, lest thou dash thy foot against a stone."

Unfortunately, angels did not intervene to protect the appellant's foot. But he had an insurance policy. This case concerns his attempt to obtain earthly rescue from the insurer. The question is whether the courts below misconstrued the policy. It provided coverage, in certain circumstances, for "permanent total loss of use ... of [a foot]". The insurer says that if, as a practical matter, use of the foot for mobility could be restored by the use of an insert in the shoe of the insured (an "orthotic"), the injury would necessarily fall outside the cover. The insured contends that the sole "loss of use" to be judged is that of the foot, as a foot. In issue is which construction of the policy is correct. Upon the resolution of that question depends the insured's entitlement to pursue his claim."

1984 cometh?

WARNING: The following post was written in a state of disbelief and anger. The author reserves the right to avoid actual reasoning and simply express horror.

Apparently, the Federal Government's planning to use deprogramming to turn terrrrrists into good guys.

No doubt there is a good legal argument to be made for why this may well violate the prohibition of torture, with lots of thrilling mentions of jus cogens norms and the torture convention and, for the jurisdictionally confused, cruel and unusual punishment.

I'm more bothered about the concept of deprogramming and the implications it has for personal autonomy. Are the actions of a deprogrammed person (assuming, with a quarterweight of salt, that it's possible) their own? Should the government be actively interfering in a person's ability to make their own decisions?

Doubtless, one could advance an argument based on the need to prevent harm - thus justifying a certain degree of government intervention. But harm prevention can be done by other means. Locking them up, for instance, which the government hasn't had qualms about for innocent people, never mind terrrrists.

I find it absolutely mind-boggling that someone would seriously advocate attempting to change a person's ability to make decisions. Whether one likes those decisions is irrelevant - this is an attempt to interfere with who they are and their right to self-determination. Fair enough to limit what people say, but how they think?

Furthermore, isn't it also often said that terrorists use brainwashing/(de)-programming to induce others to think and act in certain ways (think Patty Hearst as the paradigm example)? This is repugnant, irrespective of who advocates it. A government that should know better surely shouldn't come out with these dystopian ideas.

On the other hand, I have been puzzling over a provision in the Victorian Human Rights Charter for a while - the ACT has something similar. Amongst the usual pointlessness of stating that only humans have human rights (my guinea pigs will be very disappointed) and the provision that allows Parliament to ignore anything in the Charter (very useful), there is a delightfully Orwellian statement.

Apparently, the Charter guarantees 'freedom of thought'.

Maybe not for much longer.

An interesting/unfortunate juxtaposition

Two articles next to each other on The Age's Breaking News section this morning:

Detention manager gets $5.7m payout

Boy sues govt over psychological harm

It's nice to know that you can collude in an operation causing children to attempt suicide - at a cost of $400m to taxpayers ('Oh no, I'm sorry, we've no money left for the poor now') - plus do a generally shoddy job, and receive a generous reward/pay-off for it afterwards.

The lucky country has never seemed luckier...as long as you're not in Immigration detention.

Which, now I think about it, really should have been featured in the new tourism ad campaign. Hmm...that gives me an idea.