Dangerous sex as the state of NSW enters the bedroom

If you are a man, sex got a whole lot more dangerous. Consider this scenario. A woman meets a man in a bar or at a party. She likes the man. He likes the woman. She may not normally be a sex on the first night kind of girl. But they have a number of drinks. Fuelled by alcohol, they put aside their inhibitions. The woman goes home with the man. She says yes to sex. In the morning, the man makes it clear it was a one-night stand. The woman is deeply offended and regrets her drunken decision. She claims rape. Under new rape laws introduced in NSW this year, that man is likely to be convicted as a rapist. He is likely to go to prison.

Rape reform in NSW means that post-coital regrets can now be refashioned into rape claims that send innocent men to prison. That's why Gold Coast Titans footballer Anthony Laffranchi is a fortunate man. He walked free from a rape charge last week after the prosecution failed to establish lack of consent. He and his then Wests Tigers NRL teammates met a woman at the Sapphire Club in Kings Cross in September 2006 and continued to party at a teammate's apartment. The footballer said he had consensual sex. The woman, who was "significantly affected" by alcohol, claimed she was raped. Had Laffranchi met the woman after January this year, he would probably be a convicted rapist facing a long stint in prison.

Let us be clear. Rape is wrong. It is a crime that calls for imprisonment. It can destroy a victim's life. But let us be clear about something else. Wrongful claims of rape are made. And they can destroy a man's life. No one knows whether a rape occurred that night when Laffranchi had sex with the woman. But under the old laws of rape, the defendant's actual state of mind was critical. If the accused had an honest belief that sex was consensual, the rape charge failed. And when the evidence became a simple contest between "he said, she said", a reasonable doubt would lead to an acquittal. Criminal law says that is as it should be; we are talking about a serious crime and imprisonment.

Not anymore. Now the rules have changed. Now, in a contest between he said it was consensual and she said it was rape, a jury may be forced to convict the man of rape without any further corroborating evidence. The new laws say that if a woman is "substantially affected" by alcohol, she may lack the capacity to consent to sex even if she says "yes" to sex. More disturbing, even if a man honestly believes consent was given, his state of mind is now irrelevant. Now, the man is effectively deemed to have knowledge of lack of consent if there are no reasonable grounds for believing consent was given. And it gets worse. When asked to determine whether the man had no reasonable grounds for believing the woman gave consent, the jury must ignore the fact that the man was drunk.

In other words, the fact that the woman who says "yes" to sex is drunk is highly relevant: it may vitiate her consent. But the man's intoxication must be ignored when working out whether he had "reasonable grounds" for believing consent was given. It is a curious law that says alcohol only affects the cognitive abilities of women.

These new rape laws degrade women. They treat them as helpless victims, stripping them of the power to make decisions about sex after consuming alcohol. Down a few too many Bacardi Breezers, and the law says you are no longer responsible for your actions. Is this really the message we want to send to young women? And for men, it's even more serious. As the President of the NSW Bar Association, Anna Katzmann SC, has pointed out, these new laws mean that the intoxicated man will be treated just like "the true rapist, the aggressor who inflicts himself on his victim, knowing they do not consent". There is no gradation of penalties.

Why is this happening? Lawyers point to the perfect storm. The intoxicated man is trapped between a strident but misguided feminist agenda and the law and order lobby driven by perceptions that rape conviction rates are too low. In reality, the low conviction rates reflect nothing more than the reasonable doubt that arises when, absent other evidence about an alleged crime in private, a woman claims rape and a man claims sex was consensual.

Stephen Odgers, a senior Sydney silk who chairs the Criminal Law Committee of the Bar Association, told The Australian that, while we all want a civilised world where people treat each other with mutual respect in all walks of life, including sexual interactions, the new rape laws are a "very blunt and brutal instrument" to educate and civilise us about sexual relations. He fears that the new rape laws, in effect, can be used to criminalise those who merely treat others with disrespect after a night of sex. "And people will end up going to jail for long periods as a result." That is why his committee, made up of almost equal numbers of prosecutors and defence lawyers opposed the reforms.

So how does a man navigate the consent nightmare? Bring a witness into the bedroom? Perhaps bring along a lawyer to guide him through every stage of consensual sex from foreplay to orgasm to ensure that the final, breathless and drunken "yes, yes, yes" is genuine consent? Similar rape reforms in South Australia led independent MP Ann Bressington to suggest earlier this month that perhaps "parliament could devise a sex contract which men could carry around in their pocket, next to their condoms". Bressington is concerned that otherwise sensible rape reform has gone too far, leaving "very little room for a decent defence of a man who has been falsely accused".

False accusations are helped along, says Heather MacDonald in the winter edition of City Journal, by feminist victimology and rape industrialists intent on redefining drunken sex where a bloke wants to get inside a girl's knickers in terms of the classic case of domination rape by power-hungry men.

If you are a man, you are entitled to be frightened by the new order. While society is still committed to a 1960s model of sexual liberation, encouraging men and women to explore their sexual desires, the state is also entering the bedroom trying to educate us about appropriate sexual conduct. Unfortunately, we may discover that civility cannot be legislated by criminal sanction without innocent men going to prison.

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Great Aboriginal con

INDIGENOUS affairs is a tough gig. The decisions are difficult technically, socially and politically. There are plenty of people doing a great job in the fight to overcome disadvantage. But the fight is made more difficult by a large con job that operates in the background.

The con is when Aboriginality is exploited for personal or organisational benefit and it is permitted by either weak, ineffective bureaucracy or an uncritical mainstream Australia. The con operates on a national scale and there are perpetrators and victims on both sides of the cultural divide.

The 2020 Summit saw a revival of the con artists. The same old personalities attempted to hijack the debate and put governance and recognition above overcoming the social scourges affecting Aboriginal people around the country. It is a warped set of priorities that would have symbolism more important than overcoming substance abuse and improving household safety, education and economic participation.

It is easy for well-known personalities to remain at the podium delivering tired old rhetoric. But indigenous Australia has heard that message a thousand times in the past two decades and it isn't improving anybody's life. Sadly, there is an industry built around indigenous affairs and many of the stakeholders will fight tooth and nail to keep the status quo. We now need technically effective programs to overcome indigenous disadvantage. The time has come to call the real problems for what they are and to remove the false barriers.

The old style of administration in indigenous affairs has been marred by a game of dishonesty played by both sides of the cultural chasm. The game is played where there is a benefit to be obtained by one side so long as it is not questioned by the (usually all-too-compliant) non-indigenous accomplice. The perpetrator of this trick is hiding behind a "cultural curtain" and is telling non-indigenous Australians to have absolute trust in everything they are told by an Aboriginal person because, so the scam goes, anything less would be offensive or culturally inappropriate. It establishes a form of behaviour whereby a notion of culture, be it romanticised or perverse, is given greater importance than the lives of human beings.

Such behaviour is dangerous at a societal level. There are millions of mainstream Australians who want to believe in and support the indigenous cause. But offering support without questioning the real priorities is not helpful. Many have been tricked into directing energy into peripheral issues. Instead of being angry when they see shocking images of poverty, neglect and abuse, so many people have allowed themselves to be convinced by high-profile Aboriginal people that they should instead be focusing on representation and some sort of treaty. It is time for mainstream Australia to be critical of the old messages.

At the policy level, the effects are devastating as each year millions of dollars are wasted either on or by indigenous people who trade off their culture for personal or family benefit. Sadly, many non-indigenous bureaucrats either contribute to, or won't do anything about, this corruption. The defence is a misguided belief that such behaviour is a matter internal to the indigenous community or somehow is founded in Aboriginal culture.

Many policy solutions are wrongly personality-based rather than delivering measurable improvements. Instead of being sacked, the architects of these policy failures just do the rounds. There is a small sub-industry in indigenous affairs of bureaucrats who move from department to department or from one level of government to another. The result is that Aboriginal Australians suffer under soft social programs hopelessly incapable of solving complex technical problems. Politicians wanting to "do the right thing" make the easy or popular decisions rather than address the core problems, and year after year the scam continues.

There are many high-profile indigenous people who continue to benefit through this form of theatre in front of the uncritical masses. The past 20 years appear to have been a wasteland in terms of practical leadership and innovation. However, during this era, many so-called Aboriginal leaders have had the ear of the federal, state and territory governments, they have had access to big business and they have been well funded without having to produce an outcome. Opportunities, goodwill and billions of dollars have been squandered.

The common rule for sport and business is that you either perform or you are replaced. That is how teams and companies maintain a path of improvement. But for some bizarre reason this rule doesn't apply to indigenous affairs. Instead foisted upon us year after year is the same technical incompetence.

It's time for a new approach: eschew the personalities and tackle the problems. As a nation our goal should be to overcome indigenous disadvantage within 10 years; to say it is going to take a generation to turn around is defeatist rubbish. I would suggest anyone advocating change over a generation or two is most likely trying to secure their own working future through into retirement (or maybe they are doing a post-doctoral longitudinal study of an indigenous community somewhere).

It is time to apply technical solutions to technical problems. Under the new approach we need people with the technical capacity to bring about substantial and sustainable improvements. The people with the necessary skills may not be Aboriginal and no doubt this will horrify the old guard. The important thing is to get the right skill set. Highly influential indigenous leaders will resist this at all costs, as it will undermine their profiles. But we must be able to recognise a con.

Change will not come any time soon unless we cast aside failed ideologies of the past and programs that cannot demonstrate measurable improvements. Community-level solutions are required to address substance abuse, improve education and enhance economic participation. It may well be that some form of representation is necessary if it is connected to community-level solutions, but let's not have the tail wag the dog; the last thing we need is a reinvention of Aborigines Talking Shit In Canberra (ATSIC).

I would suggest the real action doesn't even happen in Canberra. It is the states and territories that have carriage of responsibility for the important day-to-day services which have the greatest influence on the quality of life for indigenous people. Even though most self-respecting activists probably love to hate the federal Minister for Indigenous Affairs, it is the states and territories that deliver (with varying degrees of success) services such as policing, health, education and housing. When these services are neglected, entire communities suffer and people live without hope.

This is another example of the misguided outcomes from the 2020 Summit. The summit's emphasis of federal bipartisan support for indigenous affairs is not all that relevant, considering it is the Labor Party heads of states and territories that are consistently under-performing through ill-conceived, ad-hoc programs designed to market action rather than actually solve problems. In each jurisdiction substantial changes are needed to their methods of operation. There's not much the federal Opposition Leader can do about that. Under the new approach we need to hold accountable the states and territories.

The paralysing effect of consultation is yet another problem on the list of con jobs that must be managed. The trend in recent years has seen indigenous programs subject to debilitating consultation, as if for some reason Aboriginal communities must reach consensus on all matters. Granted, there are plenty of instances where consultation will improve the effectiveness of a project, however there needs to be a balance between the legal or business outcomes and the benefit of imposing additional time and costs. There isn't much time to build strong communities when people spend their time in an unending stream of meetings.

Under the new approach we need to hold accountable Aboriginal leaders of communities and organisations. Within their membership or geographic area there must be performance outcomes in the fight to overcome disadvantage. There should be no latitude when people attempt to hide behind or exploit culture while spending taxpayers' money.

If there is any bureaucrat that questions whether such accountability is appropriate in Aboriginal culture, then we will know the old confidence tricks are still alive and well.

Next time you are at an event and an indigenous person is expounding a course of action; ask yourself who is the real beneficiary and whether what they are proposing will help build safe, vibrant and economic communities

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A republic would give a lot more power to Canberra

And reduce the independence of the States

AUSTRALIA since Federation has been in many ways a crowned republic, but one with some unique historical and constitutional features that have subtle but important ramifications. Under the present system it is a more or less working federation. Under a republic it is hard to imagine how federalism could continue to work.

Any change to a republic, including, and even especially, the minimalist change of substituting a president for the Queen or whatever, doesn't stop there. Not by a long shot; the radical nature of the change is not immediately obvious.

The weight of constitutional scholars' opinion is that the governor-general, not the Queen, is the Commonwealth of Australia's head of state. The posts of the governor-general and of the state governors are more than merely ceremonial: they carry with them the reserve powers to, as a last resort, sack governments. It is very doubtful the Queen could do this in Britain, but it can and has been done in Australia. As the Kerr-Whitlam sacking proved, the Queen does not intervene in Australian politics either. (Labor asked the Queen to intervene and was told that this was impossible.) Governor-general John Kerr sacked the Whitlam government in 1975 and governor Philip Game sacked the Lang government in NSW in 1932.

These powers have been used sparingly, just twice since Federation. Arguably, they should have been used more often when there has been manifest misgovernment and malfeasance in various states, but they are unquestionably there and for real.

The point is that the state governors make their oaths to the Queen, not to Canberra. If it became necessary to sack them, it would be the Queen who formally did so. In a republic, the only person who could appoint, and take the oath of loyalty from the state governors would be the governor-general, el presidente or whatever the federal head of state was called in the new system. This would mean that the state governors would act in the governor-general's name, not the Queen's. The governor-general would also have the power to sack any state governor who displeased Canberra and appoint a new one.

This would mean they would be subordinate to the governor-general, but also - and this is the nub of the matter - it would mean, given that the state governors have the power to sack state governments, that Canberra, using the state governors, would have the power to sack state governments. This would basically mean, for better or worse, the end of the Australian federal system as we know it.

This is not a party-political issue: both Labor and the Coalition when in government at the federal level have shown strong centralising tendencies, though only Labor has a formal commitment to abolishing the states. The Whitlam government made a very determined push to destroy the states' independence through the Australian Assistance Plan, centrally funded and administered regions and other initiatives. The last days of the Howard government saw other centralising tendencies in not only industrial relations and some Aboriginal affairs (the latter certainly for compelling reasons) but also what looked like an attempted takeover under Malcolm Turnbull of inland waterways, contrary to section 100 of the Constitution, which clearly reserves control of waterways for the states. The accumulation of central power is a constant process unless there is law to stop it.

If Canberra were given such additional power as a republic would bestow on it, there is no reason to believe that it would not use it sooner or later; indeed, even the knowledge it was there would probably be enough. A federation where the constituent states do not have definite areas of independence is no federation. If a US president tried to sack the government of a state - although the US is a federated union, not a federated commonwealth, as with Australia - the result would be a political earthquake on any scale up to civil war.

In fact in the US polity the idea does not even arise. In Britain today, London cannot sack the Scottish National Assembly. The Australian prime minister, alone or with the governor-general acting on his advice, already has far more power than a US president. He alone can call elections, summon and close federal parliaments, declare war, appoint ambassadors and appoint judges to the Constitutional Court without the congressional approval necessary in the US. He de facto appoints the head of state. Should the head of state de jure control the state governors, and through this control the lives - and therefore the policies - of the state governments, this would be a huge expansion of these already great powers.

If most Australians in most states want such a huge change in the Constitution, so be it. But they should be aware of what they are doing. Even a minimalist republic means far more than merely replacing the Queen.

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