Wednesday, April 08, 2009

Outrageous triumph of ideology over reality and custom

Spanking costs dad his daughter

A man who smacked his five-year-old daughter with a belt after she stole money has been fined $1000 and had her removed from his custody. The 42-year-old man pleaded guilty to the aggravated assault charge in Darwin Magistrates Court yesterday. The court heard he took a black leather belt from his bedroom, folded it over and hit the girl four times on the bottom with it when she would not tell him where she got the money from. She was walking strangely to stop the $2.10 in coins making a noise in her pocket after the man picked her up from school last month.

The court heard the girl and her father had a "wonderful" relationship. The court was also told the man had two older sons who lived with him at the time, he had recently separated from his partner, and was under stress at work. The girl is now living with a foster carer interstate.

In sentencing the man, magistrate Greg Cavanagh said the assault of the girl was "outrageous". "The trust that is given to adults and to fathers to bring up and nurture their young babies is a very precious thing indeed - the most precious responsibility and trust you'll ever have," he said. "You have abused that trust and you have abused your love of her by giving her a beating."

Mr Cavanagh said that even if the man had been brought up with similar punishments, society no longer accepted it. "In this modern age, physical punishment of children is seen to be barbaric," he said. "I'll bet you she screamed and cried when you did this to her."

The man wiped away tears as Mr Cavanagh sentenced him. He was convicted and fined $1000.


They're flooding in now

BORDER protection authorities have intercepted a boatload of 63 unauthorised arrivals, bringing to 187 the number of boatpeople detained this year. The interception by Customs, 31 nautical miles southwest of Ashmore Island, took place last Thursday - a day after authorities were forced to assist a second boatload of 50 illegal immigrants whose boat had run aground in the Torres Strait. The latest boatloads mean the number of unauthorised passengers to arrive this year has exceeded the total of 179 for the whole of last year.

The increase in the number of boatpeople comes after the Rudd Government last year softened Australia's treatment of unauthorised arrivals, shutting down the so-called "Pacific Solution" of offshore processing centres and abolishing temporary protection visas. People who make protection claims outside Australia's migration zone enjoy greater appeal rights, although they do not have access to Australian courts if their claims are unsuccessful.

The Opposition has said people-smugglers have registered the Government's changes to immigration policies as a softening of the rules, leading to an increase in boatpeople.

The delay in announcing the latest boatload of arrivals, believed to contain a number of children, prompted Opposition immigration spokeswoman Sharman Stone to accuse the Government of seeking to bury politically sensitive news. "You have to ask, are they deliberately trying to manipulate the public to try to reduce the impression that we do have a major new surge on our hands?" Dr Stone said. "The public really does have a right to know. Or is it a case that ministers (Chris) Evans and (Bob) Debus didn't know what was going on four days ago?"

A spokeswoman for Mr Debus, the Home Affairs Minister, defended the delay in announcing the interception, citing "operational" considerations. "Due to the number of people on board, we waited until they were safely on their way to Christmas Island," the spokeswoman said. Mr Debus said Thursday's interception showed Australia's border security arrangements were working.

Dr Stone said it was clear there had been a surge in people-smuggling. "The fact that boats are getting bigger would suggest it's a tried-and-true measure," Dr Stone said. "We're back on the map." This year's boatpeople tally of 187 and last year's of 179 represent significant increases on the 148 who arrived in 2007 and 60 in 2006.

Last Wednesday, a boat carrying 50 Sri Lankan asylum-seekers had to be assisted after it ran aground 65 nautical miles northeast of Thursday Island. The boat was being monitored by Border Protection Command, an inter-government agency, before it hit the reef. Sources have told The Australian those in the Sri Lankan vessel are believed to have sailed without the assistance of people-smugglers.

About 115 of the 282 unauthorised arrivals to pass through Christmas Island have been granted protection visas, an immigration department spokeswoman said yesterday.


Public hospitals a turnoff for expectant mothers

THE death of four Sydney babies involved in home births in the past nine months has obstetricians asking what they have to do to improve women¿s confidence in a hospital birth. It has also raised questions about what might happen next year when it could become illegal for midwives to attend such births.

Australia is one of the safest countries in which to give birth or be born but these statistics cover up a growing discontent with our impersonal maternity system. It is this discontent that is behind some women’s decision to opt for a riskier home birth. The recent tragic outcomes of that choice have put a spotlight on the need for reform.

A Government review of maternity services that reported in February called for a major overhaul of the system to give midwives a greater role.

Fears about the nation’s high caesarian rate, a lack of access to birth centre services and some women’s distaste for turning what is a natural process into a clinical nightmare drives the choice for a home birth.

Obstetricians said overcrowded and overworked public hospitals where the care is impersonal was also a factor. The Australian College of Midwives said there was no continuity of care for pregnant women using public hospitals. They may never see the same midwife or obstetrician twice and can often wait for up to five hours for a quick pre-birth check up. As a result many women approach labour with fear, College president Professor Pat Brodie said.

Most women turned off by a hospital birth who choose to have their baby at home have positive birth experiences. But Westmead Hospital clinical director of women’s health Andrew Pesce said the safety of home births had been taken for granted. Those advocating them do not do enough to acknowledge the risks involved, he said.

Australian studies showed the chances of a baby dying in a home birth were three times greater than in a hospital setting. “There are one or two extra deaths per 1000 home deliveries and we wish people would acknowledge that,’ he said. Dr Pesce was also alarmed that in the past nine months there were eight “very bad outcomes” from home births that he knew of. Four of those babies died and four of them may have brain damage.

While mothers have a right to choose how they give birth, there were concerns that sometimes decisions were being made for ideological reasons without the clinical risks being properly assessed. Older mothers, those who have previously had caesarians, those undergoing a breech birth who have higher risks attached to their births were choosing sometimes to go it alone. “When it leaves the realm of health science and becomes politics and ideology you’re not thinking clinically, you’re thinking ideologically,” Dr Pesce said.

He said some of the coronial inquiries into home birth deaths in New Zealand showed midwives refusing to do vaginal observations on women in labour in case they distress her with news of slow progress. “They are only reacting to disaster at the last minute when the only way to minimise deaths is to minimise the risks,” he said.

Home birth advocates counter with claims about the damage hospital births often inflict on the mother and baby. Home births represent a very small number of all births that take place in Australia each year - 0.25 per cent. In 2006 there were 708 babies delivered in a home birth out of 277,436 babies born. More than 97 per cent of babies were born in a hospital. Even in New Zealand, where home birth is government-funded, only 2.5 per cent of mothers go ahead with a home birth.

Home births in Australia could get even riskier from next July when a new national registration scheme for health professionals kicks in. From then health professionals will need indemnity insurance to gain the registration they need to practise. Midwives working outside the hospital system have been refused insurance since the indemnity crisis of 2001. Unless the Government offers to pick up the indemnity bill, they will be unable to practice home births from next year.

Professor Brodie said if women were unable to get a midwife’s help for a home birth they would be forced to go it alone and “that is completely unacceptable”. But Dr Pesce questioned whether the government should be indemnifying higher-risk home births.

Both obstetricians and midwives want the maternity system reformed. They agreed women needed continuity of care, a link with a midwife or doctor they know and trust for the entire pregnancy. Dr Pesce hoped such a system might make a hospital birth a more appealing option for those women he now calls refugees from our health system.


Human rights crusaders rely on lies

BEING accused of using purple prose by lawyer Geoffrey Robertson - as he does in his new book, The Statute of Liberty - is a bit like being lectured about honesty by Bernie Madoff. And speaking of honesty, there are two ways you can to argue the case for an Australian charter of rights: honestly or dishonestly. Regrettably, the rights debate is deeply infected by a couple of grand lies.

The first falsehood is that an Australian charter would not transfer political power to judges because human rights are essentially self-evident, absolute and uncontestable. Rights are, according to this ruse, legal in nature and the corollary is that any limitations, conditions or quirks in their application will be minor, obvious things of a technical nature that could easily be sorted out by judges, with no need for political involvement.

Yet even the most obvious candidate for an unchallenged, absolute right - the right to life - demonstrates the magnitude of this lie. In many countries, the right to life is a deeply political issue, with abortion, euthanasia and capital punishment the key battlegrounds.

Today’s human rights cause du jour - where the rubber hits the road, so to speak - is the human right of bikies to freedom of association. Many of us may question whether the individual right of bikies to gather in drug dens and armed fortresses trumps our human right to avoid getting caught in their crossfire, but more on that later.

The content of our rights, their limits and conditions is the very essence of political debate. Lawyers have no more moral right or expert skill to decide these things than any other profession. Delegating power to courts to settle the finer details of human rights set down in broadly sweeping platitudes makes no more sense than delegating this power to the Royal Australasian College of Surgeons, the Australian cricket team or any other unelected body. Our rights - and their precise content - are matters for us, to be determined by those we elect to make decisions on our behalf.

This leads to the second grand deception infecting the Australian charter of rights debate. An honest argument for a charter would go like this. By definition, politicians are elected by the majority and pay insufficient attention to the rights of the minority. To get elected, politicians pander to populism, to our base instincts and lowest-common-denominator politics. Even worse, they are too dimwitted and slow, too afflicted by venality and imprisoned by self-interest to care about human rights. They either pass bad laws or refuse to pass the laws they should. These defects require correction by wise, experienced, unelected people not subject to the vagaries and shortcomings of the political process: those who know what we want and how to engineer a more just society. These people are judges. And you won’t be surprised that many judges and lawyers share this view of judges as the people’s saviours.

This argument that unelected wise men need explicit power to correct the folly of politicians is honest but suffers from one serious flaw. Australians don’t buy it. Or at least they haven’t in the past when referendums were proposed in 1944 and 1988 to give judges broad powers to interpret new constitutional rights to free speech, freedom of religion and trial by jury. Rights advocates know this, though publicly they put it down to Aussie apathy.

Witness Robertson’s pompous prose, revealing his disdain for Australian voters: “When the sun shines and the beach beckons, a better world is difficult to envision and too much bother to build.” Crusading elitists such as Robertson never admit that the way Australians vote at referendums may reflect cautious wisdom rather than complacency.

Knowing that they can never win using honest arguments, they once again give the debate a much less honest turn. Rather than propose a constitutionally valid power for judges to correct explicitly the human rights failings of politicians, they now seek an indirect way of reaching that same result by subterfuge. Academics such as Hilary Charlesworth describe a charter as a modest little garden-variety law that will leave parliament supreme. Judges have the minor role of filling in the blanks: settling the technical stuff, stuff that apparently should not concern us mere mortals. Stuff such as: how far does a bikie’s right to freedom of association stretch? Excuse the purple language, but that’s more dishonest baloney. A statutory charter would become, and is intended to become, a super statute against which all other laws are measured.

Take the anti-bikie laws that apply in South Australia and are soon to come into force in NSW. Civil libertarians claim these laws are egregious breaches of the right to freedom of association found in the Victorian and ACT charters of rights. No doubt they are right. And of course Cameron Murphy, president of the NSW Council of Civil Liberties, would say that “this is exactly the sort of tactic that is used in fascist dictatorships to alienate groups or political parties that the government doesn’t like”.

If, as the Victorian Police Association fears, drug-dealing bikies swarm across the border into Victoria to set up shop in Prahran instead of Petersham, could Victoria enact legislation similar to that in NSW? Technically, of course it could. Any lawyer would tell you that a specific anti-bikie law passed by the Victorian parliament after the charter takes precedence over the generally worded charter to the extent of any inconsistency.

But here’s where a charter morphs into a super statute, changing the ordinary rules. It is deliberately constructed to hamper the operation of later laws. Assuming that bikie fans don’t win in the first round by simply pointing to the charter as reason enough why such laws should not be passed, then it’s on to the second round when such laws are passed.

Judges, and even civil servants, are directed by the super charter to interpret all laws as far as possible consistently with charter rights. So they have a broad power to re-interpret new anti-bikie laws as they deem fit. Remember, they get to fill in the blanks. The last line of attack under a super charter is that a Murphy-type judge or civil servant can issue a declaration of incompatibility, declaring the laws to be Third World instruments of oppression that breach charter rights. Only a brave government will ignore such a judicial sanction about some lofty “human right”. Meanwhile the big blokes in leather will thank their lawyers - and the present crop of charter crusaders - for their right to freedom of association.

Dishonest tricks aside, can those pushing for a charter now try telling us with a straight face that a charter is not a super statute that will transfer political power to the judiciary? Didn’t think so.


No comments: