ZEG

Conservative Australian cartoonist ZEG has just offered his take on the Chinese Olympic censorship issue.




Caution about new High Court judge

The announcement that Federal Court judge Robert French will become Australia's new chief justice of the High Court has received resounding praise from across the nation. By any measure it has been a veritable love-in. A black-letter lawyer with a heart, some say. A fine jurist who has sailed under the radar, say others. He is, we are assured, not an activist in the genre of High Court judge Michael Kirby or former High Court judge William Deane.

He will not have any immediate impact on the direction of our most senior court, we are told. He is apparently a judge who cannot be pigeonholed. These observations are meant to make us feel easy that French is a traditionalist, a judge who will eschew the activism of some of his predecessors on the High Court.

Not so fast. Watch and wait, I say. Consider the Mason precedent. When Anthony Mason became chief justice in 1987, having been on the High Court since 1972, The Sydney Morning Herald rushed to judgment, claiming that he would steer the court into calmer waters. It was assumed that Mason's legal stripes as a traditional, conservative-minded judge were fixed. They were not.

Mason took the High Court on the most activist jaunt in its history, implying rights to free speech into the Constitution in a way only an activist judge can do and allowing an unprecedented leap in the common law in Mabo. Whether you agree with those decisions or not is irrelevant. The point is that the Herald later concluded that Mason was the "most radical chief justice we have ever seen".

Few could have predicted Mason's transformation. He succumbed to the great judicial temptation of using the bench to mould what he regarded as a better world. He grew bored with being a black-letter lawyer. He preferred the role of philosopher king. As one judge remarked, Mason was seduced by the "siren song of left-wing intellectuals" into becoming a judicial innovator. Is history repeating itself? Will the lamb become a lion? It is entirely possible that the descriptions offered in effusive praise of French give us more than a few hints that,as chief justice of the High Court, he may be unable to resist the temptation to do a Mason.

For starters, any judge breathlessly embraced by left-wing legal academics and commentators immediately deserves a question mark over their so-called safe, black-letter lawyer credentials. George Williams, a left-wing academic and the leading proponent of a charter of rights for Australia, is excited about French because "he's very difficult to predict because of the approach he takes to the law". Williams is no lover of black-letter lawyers. He has built a career by pushing for a more activist judiciary armed with a charter of rights that enables courts to decide important social questions.

Here's another clue that French may succumb to the Mason temptation. Gillian Triggs, dean of the law faculty at the University of Sydney, told ABC radio that French had a wide view of the role that law played in society, from local matters of indigenous rights to the influence of international law. Excuse the scepticism, but that is generally code for a judge who is not your traditional, black-letter lawyer. Indeed, now that Richard Ackland, the Herald's dour legal commentator, who has little time for conservative judges, also has enthusiastically embraced French, it's time to look a little closer at whether the West Australian judge is in fact a safe, conservative choice for the High Court.

The most important clue to what the 61-year-old French will do as chief justice is to be found in his published views on judicial activism. I shared a podium with French at the Constitutional Law Conference earlier this year on the topic. French said statutes were invariably vague, calling on judges to make decisions about what words mean. The common law was a moving creature, developed for centuries by judges, he said. No quibbles there.

Of course, judges make law when they are called on to decipher vague words and develop the common law. But that is a different thing from an activist judge who, with a healthy dose of arrogance, ignores parliament's clear intent and regards the common law as a judicial playground for pushing their preferred agenda.

We know from interviews with our most senior judges conducted by American academic Jason Pierce that the Australian judiciary has plenty of judges who regard parliament as a bunch of generally slow, incompetent populists whose legislation (or lack of it) needs to be corrected by a more intelligent class of being. Few dispute that Mason was an activist. The only question is whether you like it.

And it's here that French may have revealed his true colours. He peddled the line favoured by supporters of an activist judiciary. He said judicial activism defied definition. And if you couldn't define it, he said, it didn't really exist except in the imagination of misguided conservatives. The judicial activist was, French concluded, "so hard to pin down and define that it will turn out to be a mythical monster". This is akin to saying that because people can't agree on a definition of happiness, happiness doesn't exist.

Indeed, the death-by-definition trick is a standard tactic of those judges, and their boosters in academic circles, who hanker for a more activist judiciary. The aim is to present judicial activism as a concoction to sideline the debate so they can get on with pursuing a more activist role.

Whether French will tire of being a black-letter lawyer and instead follow the activist role that seduced Mason remains to be seen. But it is a safe bet that those judges likeliest to succumb to judicial activism are the same ones who, like French, treat the topic with disdain. To be sure, as one of seven judges, French cannot change the direction of the High Court overnight. But if future vacancies on the High Court are filled with judges who share French's enthusiasm for a wider view of the law and his desire to treat judicial activism as a fantasy, there is every chance that French may prove to be a more radical chief justice than the unquestioning media have led us to believe. That, of course, may be the aim of the Rudd Government in choosing a judge who, to date, has chosen to play below the radar. Judgment, as they say, is reserved.

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'No deal' on offer in case of black killer

One law for blacks and whites! How refreshing!

Crown prosecutor Nanette Rogers has drawn a line under a legal convention allowing Aborigines accused of murder in the Northern Territory to be treated differently to white counterparts by refusing to cut a deal with an indigenous man who beat his wife to death in an Alice Springs town camp. Most Territory Aboriginal defendants are offered the chance to plead guilty to the lesser charge of manslaughter and rarely face trial for murder.

But Dr Rogers -- whose revelations in 2006 of shocking levels of child sexual abuse in NT communities led to the federal intervention -- refused to be party to such a deal after hearing how Ronald Djana whipped his wife with a hose, belted her with a stick, pounded her head with a rock, stomped on her abdomen and stabbed her in the vagina.

The case also broke new ground with the decision by 21 Aboriginal witnesses to testify against Djana, 32, who had five previous counts of assaulting his wife, Janie Norman, and three restraining-order breaches. Members of the jury wept openly after hearing how Norman -- the 32-year-old mother of Djana's four children -- was killed in May.

Djana's conviction for murder and sexual assault without consent means under Territory law that he will serve a minimum of 25 years in jail, but in pleadings to judge Dean Mildren on Thursday, Dr Rogers asked for a longer sentence, given Djana's history of abusing Norman. If successful, it would be the longest sentence handed down to an Aboriginal man in the NT and would ensure that Djana was treated no differently to white man Bradley John Murdoch, sentenced to 28 years in 2006 for the murder of British tourist Peter Falconio and the accompanying assault of Joanne Lees.

The defence argued that Djana had either not caused all Norman's injuries or did not form the intent to kill her because he was drunk. But Dr Rogers told the jury: "Janie Norman may have lived a lifestyle very different to yours. You may not approve of her lifestyle but she is entitled to the same protection of the law as any other person. "Just because she lived in an Alice Springs town camp, surrounded by alcohol abuse, and lived a chaotic lifestyle, does not mean that her violent death is just another statistic."

Jane Lloyd, chairwoman of the NT Domestic and Family Violence Advisory Council, said she was not celebrating what would be a long sentence for Djana, but said it was right that he was treated as a murderer. "In the past, juries have been somewhat indifferent to violence by Aboriginal men against Aboriginal women," she said. "That did not seem to be the case here. I had the sense that overall ... some kind of value was placed on her life."

The most recent available NT statistics show that in the 10 years between 1996 and 2006, 109 Aborigines were convicted of manslaughter or a dangerous act causing death, and only 12 were convicted of murder. There was a greater will to charge white people for murder in that same period, with 26 convicted of manslaughter or a dangerous act and 13 convicted of murder.

The view has often been that Aboriginal men lead such despairing lives that they ought to be cut some slack when it comes to charges. Dr Rogers's prosecution office in Alice Springs is increasingly demanding that in cases where intent can be clearly shown, Aboriginal killers be charged with murder.

Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council co-ordinator Vicki Gillick welcomed the decision of indigenous people to give evidence. "It is often the case that Aboriginal witnesses can be reluctant to be involved. But it's a credit when they do, and it's a credit to the prosecutors that they were able to get them to come forward," she said. Djana will be sentenced on August 25.

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Sneering public broadcaster takes a hit in court

Australia's most experienced mountaineer, Tim Macartney-Snape, has received $448,500 in damages after the NSW Supreme Court yesterday ruled the ABC defamed him in a 1995 Four Corners program. Judge David Kirby handed down a lengthy judgment finding the ABC's flagship current affairs program defamed the twice-honoured Order of Australia recipient and Everest climber by implying he used his public profile to recruit Sydney school students for a scientific cult.

In the episode titled TheProphet of Oz, Four Corners alleged Macartney-Snape was the disciple of Australian scientist Jeremy Griffith, portrayed in the program as a cult leader who saw himself as a figure greater than Christ. The episode, which first aired on April 24, 1995, and again on May 2, 1995, was narrated by Reverend David Millikan, a minister of the Uniting Church, who was also sued by the pair and alleged to have misrepresented himself to Mr Griffith.

More than five years ago, a jury found the ABC defamed Mr Griffith by claiming his work as a scientist was of such a poor standard that it had no support from the scientific community. The jury also found Macartney-Snape, 52, was defamed by the implication he had deceived schools that invited him to talk about Mt Everest by exploiting the occasion to promote Mr Griffith's ideas.

In response, the ABC claimed the defences of truth, qualified privilege and fair comment in relation to the imputations brought against Macartney-Snape and Mr Griffith in the current affairs program. The 32-day trial canvassing the ABC's defences and damages found that in relation to Mr Griffith the imputation was true, that is, he did hold himself out as a scientist, and published a work of such poor standard that it had no support at all from the scientific community. Justice Kirby, therefore, found the ABC did not have to pay damages to the 63-year-old scientist.

However, in relation to the allegations made about Macartney-Snape, none of the broadcaster's defences held up in the court, including that of truth. The ABC was yesterday ordered to pay the mountaineer $300,000 in general damages to reputation and a further $148,500 in special damages for loss of income as a speaker. The payout could exceed $1million once costs and interest are added.

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At-risk Iraqis offered asylum in Australia

A select group of almost 400 Iraqis who worked for the Australian Government in the war-torn country have been brought to Australia on special visas. Under a policy adopted by the Rudd Government, local Iraqis employed by the Australian Defence Force have been the first to benefit. Many Iraqis who worked for the US-led coalition military forces since 2003 have faced death threats and intimidation from various militia groups.

A Defence Department spokesman told The Weekend Australian that 387 Iraqis had come to Australia as permanent settlers under the scheme. All of them worked for Australian military forces in southern Iraq in al-Muthanna and Dhi Qar provinces.

With the last Australian troops having withdrawn from Tallil air base in Dhi Qar two months ago, the department has worked closely on resettling Iraqi staff who feared for their safety once the withdrawal took place. Other Iraqis who worked for Australian government agencies in other parts of the country, including Baghdad, will be assessed for resettlement on a case-by-case basis.

Under the program, the Iraqis are provided with full travel costs and initial accommodation after arrival in Australia. The Rudd Government's decision to allow the resettlement of at-risk Iraqi employees mirrors that of the US and British governments.

Since 2001, more than 11,000 Iraqis have been resettled in Australia under the offshore humanitarian program. The latest special visas for Iraqis who worked as local employees are in addition to the 13,000 places available under the Department of Immigration's 2007-08 humanitarian program.

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