Wednesday, December 07, 2011

Global cooling hits my home State

Queensland's summer cold snap breaks records. I've been wearing a flannelette shirt for a couple of days now -- when temperatures would normally be around 90 degrees F -- JR

QUEENSLAND'S summer cold snap has turned into a record-breaking streak, with a string of southern and western towns recording their coldest December days in years - some up to 15C below average.

It came as forecasters predicted almost a month of wet weather, running through Christmas to at least January 3. And it's already started with rain falling over the southeast this morning.

Brisbane is predicted to reach a maximum of 23C today – well below the December average of 29.4C. Coolangatta yesterday dipped to 20.7C, its coldest December day in 46 years.

Applethorpe, on the Granite Belt, dropped to a record 13C, breaking its previous coldest December day in 1986. Nearby Stanthorpe had a top of 13C. Its previous record was 13.1C, also set in 1986. Balonne's previous all-time low of 18.4C, recorded in 1975, was surpassed at 3pm yesterday when the southern town registered 17.5C.

Weather bureau climate scientist Jeff Sabburg said days of cloudy, windy and rainy conditions had produced the low temperatures.

"It's quite amazing," Dr Sabburg said. "We are close to, or have records broken at, quite a number of places. A lot of it is down to this cold air coming in from the south."

In Brisbane it also was doona weather, with temperatures dropping to 17.9C overnight. With a wind chill and low humidity factored in, the city made a low of 16.4C.

Other places at record or near-record lows were Toowoomba, Thargomindah, Texas and Goondiwindi. Forecaster Peter Otto said Brisbane was about 2C below average overnight.

Although the south was hit hardest, the cold patch affected much of the state, with Mount Isa 4C below average, Cloncurry 5C below and the Maryborough region 6C to 8C below.


Same Sex "Marriage" and the Australian Constitution

Below are some excerpts from a long article which quotes extensive legal precedents for arguing that the meaning of marriage in Australia is constitutionally fixed and therefore homosexual "marriage" would be unconstitutional

Section 51(xxi) of the Australian Constitution gives the Federal Government jurisdiction over marriage. Unlike the situation in the U.S., in Australia there cannot be as many marriage laws as there are states. State and Federal Governments can choose to give married and unmarried couples the same rights and services in any area under their respective jurisdictions, but only the Federal Government can tell us who are married. But this does not mean that it can take control of any grouping by calling it "marriage".

As Justice Brennan put it, in the case of Fisher v Fisher (1986):
[C]onstitutional interpretation of the marriage power would be an exercise of hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power. ... [T]hose words do not empower the Parliament to legislate upon the customary incidents of marriage so as to affect the nature of the marriage relationship.

Marriage had a specific meaning under the common law at the date of the Constitution - and it goes back not simply to 1362, but as far as human memory runs.

And what is that meaning? I shall merely cite the relevant case law prior to 1900.....

Two years later, the matter arose again, this time in the case of a marriage contracted in Japan. Again, Justice Hannen ruled, in Brinkley v A-G (1890) 15 P. D. 76 at 79:

A marriage which is not that of one man and one woman, to the exclusion of all others, though it may pass by the name of marriage, is not the status which the English law contemplates when dealing with the subject of marriage.

His Honour then went on to determine that, since Japanese marriages do indeed follow this pattern, they are automatically valid under the common law. He also pointed out that, although it is often called "Christian marriage" as a shorthand phrase, Christianity need have nothing to do with it.....

What else needs to be added? If polygamous and potentially polygamous unions, which have a long and venerable history, and have been practised by a majority of the world's population, are not recognised by the common law, or section 51(xxi), what chance same sex unions, which have never been treated as marriages except in a few small societies in aberrant times?

Not only that, but the parliamentarians know it - or should know it. In 2002 they sought legal opinion on the subject. The conclusion was that, although there was not complete unanimity in the High Court, the majority opinions suggest that such a law would have a very hard time passing muster. Furthermore, there would be many people who would have standing to contest it: a state government, an heir or next of kin sidelined by such a "marriage", a public servant who objects to registering it, or a celebrant who may be forced to celebrate it.

The social deformers are pretending that marriage is the product of the law, and is merely whatever grouping of people the law wants to consecrate. But it isn't. As Sir William Scott pointed out as far back as 1795, it is the fundamental basis of society, which pre-dates the law (and probably the human race), which the law recognises and regulates for the benefit of society, but which it does not create.

That is why I have consistently put "marriage" in quotation marks when referring to same sex unions. It is all a game of "let's pretend". But, as Abraham Lincoln is alleged to have said: "How many legs has a dog? Only four. Calling the tail a fifth leg doesn't make it one."


Hate speech law not well reasoned

By James Allan, Garrick professor of law at the University of Queensland.

I AM delighted to live in a country in which someone is perfectly free to voice his opinion on why Australia's racial vilification or hate speech laws, used to take Andrew Bolt to court, and indeed to force his employer to print a judge-authored pseudo apology, are jolly good laws.

Of course, the author of this defence of these hate speech laws enacted by a former Labor government, Ron Merkel, is hardly a disinterested or impartial observer. He was the main lawyer for the plaintiffs who used these hate speech laws successfully to sue Bolt. He is the lawyer who, in running that case, made reference to eugenics, Nazis, anti-Semitism and more.

Yet Merkel is an honourable man. Still, consider what he said in that opinion piece of his (The Australian, November 21). First off, Merkel claimed that the problem was that Bolt got his facts wrong. That, asserted Merkel, is why he lost.

The judge in the Bolt case, Mordecai Bromberg, had a slightly different take on things, however. In paragraph 461 he said: "It is important that nothing in the orders I make should suggest that it is unlawful (under these hate speech laws) for a publication to deal with racial identification including challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and HWT to have contravened s18C simply because the newspaper articles dealt with subject matter of that kind. I have found a contravention because of the manner in which that subject matter was dealt with."

Put differently, the judge didn't like Bolt's tone. So Merkel's talk of this all being solely about getting the facts wrong should be made of sterner stuff. (And I leave aside here Justice Bromberg's bizarre decision to assess the "reasonably likely to offend" test in these hate speech laws by reference to some objective member of the group claiming victimhood, not by reference to a reasonable member of the community at large -- a game winner for Merkel's side right off the bat.)

Merkel, who writes not to praise Bolt, though possibly to bury him, goes on to characterise what is at stake as a "freedom to vilify". But that's plain bizarre for anyone such as me who cares strongly about free speech and ensuring as much scope as possible for people in a vibrant democracy to speak their minds.

My point is that one honourable man's vilification, someone such as Merkel, is another honourable person's fair and reasonable comment, someone such as Bolt. So the Merkel characterisation stacks the cards in his favour right off the bat. We are talking about the need for free speech here, not some subsection of it that Merkel (no doubt because of the hate speech laws) gets to denominate in advance as vilification.

Put differently, it's a tad circular to say "we need this legislation because we don't want the sort of vilification that is only counted as vilification because of that same legislation".

Merkel goes on to equate these hate speech laws with defamation laws and the limits on speech such defamation laws impose. Now Merkel says that, and certainly he is an honourable man. But one can't help noticing that, as the lawyer for these plaintiffs, Merkel chose not to sue in defamation, and try for the sometimes significant monetary damages a victory in that realm can bring.

Instead he went after Bolt using only these hate speech laws, ones where the remedy was an Orwellian judge-drafted pseudo apology and the banning of publishing the "offending" pieces. Was that because Merkel wanted to avoid the jury that usually comes with a defamation case? Was it because he reckoned he couldn't win a defamation case (my view)?

Certainly on this score and in his choice of how to pursue Bolt, our honourable Merkel did not seem ambitious.

Then we get to Merkel's nod in the direction of the judicially created implied freedom of political communication. Now, though I am a very big free-speech proponent and like the general outcomes of these cases,

I think they are simply awful judicial decisions as far as honest interpretation of our Constitution goes.

So the fact these cases now build in an abridging inquiry, or reasonable limits test as Merkel alludes to, is neither here nor there. In a strong democracy the people, the voters, do not rely on seven unelected judges to fix their awful legislation. They vote for people who will repeal it using the democratic process.

Next, Merkel asserts that those, such as me, who want these hate speech laws repealed are inconsistent because they don't support free speech when it comes to Holocaust deniers. But as it happens, though in the Canadian context, I have said precisely that -- that using hate speech laws against moronic Holocaust deniers is counter-productive. Get these views into the daylight and show how idiotic they are. And I know that Brendan O'Neill, another Bolt defender, has said the same. Perhaps Merkel could get his facts correct?

The countries where Holocaust denial is most alive, as it happens, are in the Arab world where free speech is most curtailed.

Oh, and last, Merkel points to other countries that also have hate speech laws. Of course, that is no justification for a bad law. But anyway, what Merkel omits to mention is that Canada, a country one assumes he would be happy to compare us with, is now looking as though it will repeal its notorious s13 hate speech law equivalent.

Now, I speak not to disprove what Merkel spoke. As a keen proponent of much scope for all of us to speak our minds, I'm all in favour of hearing a defence of our egregious hate speech laws that is self-serving (coming from one who was the lawyer who used them successfully); that mischaracterises them (it's about a judge's view of tone, not just facts); that gets the facts wrong itself (about what's happening overseas, about the supposed inconsistency of Bolt defenders); and that wants it both ways (by pretending this is like defamation when that legal option was shunned by the writer as the plaintiffs' lawyer).

As I said, I'm always in favour of reading the self-serving, mischaracterising, factually wrong, two-faced defence of our hate speech laws. Alas, I'm not sure that sort of opinion piece will bring all that many new converts to the Merkel point of view.


Aboriginal beliefs threaten $30 billion gas bonanza in Australia

It's the business of the State to empower and reinforce a particular set of religious beliefs? This would violate the separation of church and State in America

A PROPOSED $30 billion gas hub at James Price Point on Western Australia's Kimberley coast would disturb sites used for secret Aboriginal "men's business", lawyers say.

Documents seen by the Herald show a song cycle, a path sacred to the Goolarabooloo and other people of the Dampier Peninsula, which runs through the James Price Point site, 60 kilometres north of Broome. Woodside plans to build a liquefied natural gas terminal there to process gas from its Browse field. Late last month Chalk and Fitzgerald, lawyers for a traditional custodian, Joseph Roe, wrote to Woodside and its joint venture partners in the Browse development - Chevron, Shell, BHP and BP - requesting that site clearing works be suspended as they may be in breach of the WA Aboriginal Heritage Act.

Andrew Chalk of Chalk and Fitzgerald expects shortly to commence legal proceedings to require the WA Registrar of Aboriginal Sites to include the song cycle on the sites register, as was determined in 1991.

Mr Chalk said the registrar had "not explained why the song cycle was not listed in accordance with the standard procedures nor why the office has not taken the usual approach to protecting the site that was notified in July this year, which is to treat it as a site until investigations are carried out to determine otherwise".

The Premier, Colin Barnett, has described James Price Point as an "unremarkable beach" but in 1989 a report by the WA Department of Aboriginal Sites identified James Price Point, also known as Walmadany, as an area of "major" heritage significance, the highest category, with archaeological integrity and dense material over extensive areas including hearths and bone remains.

In 1991 the WA Mining Warden rejected an application for a mining exploration licence by Terrex Resources, based on objections from the Goolarabooloo Aboriginal Corporation and recommendations of an all-male subgroup of the Aboriginal Cultural Material Committee, established under the Aboriginal Heritage Act.

Warden John Howard then heard evidence from official anthropologist Nicholas Green, who had been commissioned to document the song cycle, that the song cycle was of "critical" significance to the Aboriginal people of the West Kimberley because it was part of the initiation of young men into Aboriginal law.

"The essence of that law has been placed in the ground," said Mr Green. "Not only at the name places but at all points between those name places."

Mr Green said he had personal knowledge of the song cycle having "attended a ceremony a number of years ago and witnessed for myself the actual songs". He had recorded a lot of information on audio tapes, which had been transcribed, but the evidence was not provided to the court because of its "extreme, sacred nature".

Woodside said yesterday it had obtained all necessary regulatory approvals and consents required to conduct land clearing and geotechnical studies at James Price Point.

"Woodside engaged senior traditional owners to complete detailed anthropological and archaeological surveys and received the appropriate cultural directions in order to conduct our work within this area," the company said. "We have taken this approach to ensure that our work program does not interfere with any potential heritage sites. Traditional owners are providing ongoing assistance to our contractors by monitoring our approved site activities."

But Mr Chalk said Woodside's "approach to the song cycle was one of recklessness, given its significance and of which they have been on notice for many years. It is arguably also illegal."

Mr Roe's challenge recalls the Hindmarsh Island controversy in South Australia in the mid-1990s, which led to a royal commission into allegations that Aboriginal opponents of a proposed bridge to the island had fabricated claims that the project would interfere with "secret women's business".

On Tuesday Chief Justice Wayne Martin in the WA Supreme Court will hand down judgment on a separate challenge by Mr Roe's brother Phillip, and Jabbir Jabbir man Neil McKenzie, to the validity of the WA government's notice of compulsory acquisition of the site at James Price Point.

The threat of compulsory acquisition was used by Mr Barnett, who supports the gas hub, to pressure traditional owners to surrender their native title rights over the James Price Point site and accept a $1.5 billion deal, championed by the Kimberley Land Council, allowing the Woodside project to go ahead.



Paul said...

Secret men's business? Don't what they may do there but here it involves lots of brown glass. I suspect though it is something involving initiation rites, if its not simply another Hindmarsh Island scam.

Anonymous said...

Paul, if you do not understand Aboriginal Law & Culture please keep your stupid comments to yourself.

Anonymous said...

Given that in 2001 the Federal Court found that Women's Business on Hindmarsh Island WAS NOT a lie you need to do your homework