Thursday, June 21, 2007

Leftist elitism again

In America, there seem to be only minor grumbles about politicians who claim to represent "the little guy" flitting about in private jets and living in huge mansions etc (The Clintons, John Edwards and Al Gore spring to mind), but egalitarianism is much more deeply embedded in the Australian psyche and the story below about Australia's Federal Leftist leader will be very critically received by many Australians.

Rudd might claim that his preferential treatmment was the work of the restaurateur rather than his own doing but many Australians would have expected him to wait his turn. Conservative Prime Minister John Howard is known for lining up patiently on election day and waiting for his turn to vote.

The pic is from a Brisbane free newspaper (of June 14) called "City News" and the story appeared on p.17

In case the text is not clear, I reproduce it below:

Ruddy fish thief

DOESN'T it warm the cockles of your heart that Australia is an egalitarian nation where power and privilege won't curry you any favours? Yeah, right. Reader Josh ordered the salmon when he and his mates went for lunch at swanky Eagle St Pier eatery II Centro recently. They then noticed prime ministerial hopeful Kevin Rudd and a bunch of 'suits' arrive. Within 10 minutes they had food on their table, despite arriving after our luckless Josh, who noted our Kev had also picked the salmon. Then I was told that they'd run out of salmon and I had to choose something else. "Bloody Rudd was eating my lunch," Josh told Buzz.

Police "too busy" to stop dangerous party

Australian police are "too busy" for most things, it seems. See also my posting of June 8th. It's lucky that no-one mentioned below was killed or seriously harmed

DRUNKEN girls as young as 14 were cavorting naked in a street during a wild pool party, neighbours said last night. Older men tried to lure some of the children into their utes, and a few of the girls had passed out. A neighbour said about 150 youngsters attended the party in an inner-city Darwin suburb on Saturday night. "Some of them were really young girls who were very drunk," she said. "And there were lots of gatecrashers."

The party spilled into the street. "Several of the girls were vomiting in the gutter by my nature strip," she said. "There were people lying in the middle of the road."

The neighbour, who has two young children, said many of the girls were in bikinis. Others were topless or naked. She cared for two girls who had passed out until they were collected by their guardians. "I was worried about the people on the street and that someone was going to get run over," she said.

The neighbour said some of the teenage girls were calling up their friends and bragging about being drunk and naked. "The guys were trying to get the girls to walk off with them," she said. "It looked like everyone was trying to get laid, which is awful for kids at that age."

The neighbour said the party started about 6pm and didn't finish until 3am. She telephoned police about 11.30pm, but was told they were "too busy". Police turned up around 1am.


Labor party supports tough proposals on black welfare

INDIGENOUS policy faces a revolution no matter who wins the federal election, with Labor backing Noel Pearson's push to link welfare and personal responsibility. Opposition indigenous affairs spokeswoman Jenny Macklin has thrown Labor's support behind radically restructuring welfare payments, while the Howard Government is preparing cabinet submissions that would ensure welfare was quarantined for use on housing and food.

The plans embrace proposals put forward by Mr Pearson, the Cape York indigenous activist, who wants Aboriginal families to be stripped of welfare payments if their children are abused or miss school. He has spent a decade arguing for an end to passive welfare but until now has failed to win bipartisan political support.

A report by Mr Pearson's Cape York Institute, to be launched today, calls for an overhaul of the Aboriginal work for the dole program, CDEP, under which 35,000 Aboriginal people work in return for welfare. He suggests abolishing the program for anyone younger than 21, and placing them under "conditional income management" if they do not begin a traineeship or find a job within three months of finishing school. The report also calls for an expansion of private home ownership, with a subsidy for families who want to construct houses in remote communities.

Indigenous Affairs Minister Mal Brough said he was preparing several cabinet submissions in line with Mr Pearson's hard-core approach. Under Mr Brough's plan, all families - white and black - that spent welfare money on alcohol, gambling and drugs would be forced to direct-debit part of their benefits to pay for rent, electricity and food.

Ms Macklin said while she did not agree with everything Mr Pearson proposed, anything that supported the interests of children deserved to be taken seriously. "The principle that family tax benefits follow the interests of the child is one we strongly support for both indigenous and non-indigenous children," she said.

While Ms Macklin gave cautious support to Mr Pearson's plans, Labor federal vice-president Linda Burney, the first Aboriginal cabinet minister in the NSW parliament, expressed her concern. "It really is about playing god with people's lives," Ms Burney said. "It feels a bit like a rerun of punitive practices in the past that proved fruitless."

On Queensland's Palm Island, which has unemployment of more than 90 per cent, the proposal for a community-based "cop" with power to withhold welfare payments was also universally rejected. "There are other reasons kids don't go to school other than parental neglect," said Mayor Delena Oui-Foster, who said the proposal smacked of racism. School attendance on Palm Island is high, largely because an increasing number of parents, such as Nazareth Foster, place enormous value in education. Her children, Mia and Teri, have not missed school this year: "I want them to have a good education - these days, you get indigenous people getting certificates and degrees, and that's what we've got to aim for here."


Judicial arrogance attacks freedom of the press

LAST week, the High Court of Australia displayed a disdain for a jury verdict that went to the heart of free speech in this country. It concerned the small matter of a restaurant review. I say small because in the scheme of things a restaurant review is hardly cutting-edge commentary. But when restaurant critics are gagged, it does not augur well for free speech.

By and large, we are fortunate in Australia to have a sensible bunch of judges on our highest court. But when they go awry, sidelining common sense, they really go for broke. Which is what they did when they set aside a jury verdict that decided a review about a swank Sydney restaurant, while critical about some of the food and some of the service, did not defame the restaurant owner.

In 2003, The Sydney Morning Herald food critic Matthew Evans was unimpressed with Coco Roco, which billed itself as “Sydney’s most glamorous restaurant”. The limoncello oyster had flavours that “jangle like a car crash”. The carpaccio arrived with a “dreary roast almond paste”. And, Evans asked, what was the chef thinking by adding apricot halves to a sherry-scented white sauce adorning a prime rib steak? Food critics can be a snippy lot. But that’s the gig. Anything less and they become spruikers for prime rib steak laced with sherry-scented sauce and apricot halves.

The restaurant owner sued for defamation under NSW’s 7A system where a jury decides whether something is defamatory. In a separate later hearing, a judge decides on whether defences are made out and on damages payable. The jury found Evans’s review did not defame the owner of Coco Roco. On appeal, the NSW Court of Appeal tossed the jury verdict in the bin, preferring its own view that the review was defamatory. Late last week, the High Court agreed.

Although Australia has a new set of uniform defamation laws, in some states and territories the jury will still determine what is defamatory. That is why the High Court case sends a chilling message. According to justices Ian Callinan and Dyson Heydon, the restaurant review was defamatory and any other finding was unimaginable. There was no point sending the issue back to a jury for redetermination, Callinan said during argument, because you might end up with the same perverse finding.

Which raises the question: why bother with a jury at all? Of course, courts have powers to overturn perverse jury verdicts. But was the jury’s decision so perverse? Or was it a case where reasonable minds may differ, where criticism of some bad food and some poor service did not reflect on the competence of the restaurateur? No, said the High Court. No room for reasonable debate here.

Even more troubling, the majority judges said community standards were irrelevant in determining whether the review amounted to defamation of a business. It’s an odd rule that lowers the defamation bar for businesses. (Even stranger given that if a business incorporates, it cannot sue for defamation.) Again, so why bother with a jury comprised of men and women from the community? By effectively telling us to skip the jury trial where something negative is said, the High Court has told critics that they can expect litigation if they are too honest in their opinions.

Equally concerning was the tone of the judges during the hearing. Argument got off to a rollicking start when Justice William Gummow asked: “But when were (the restaurateurs) going to get their hands on some money and how?” Slow down, judge. Damages are determined after defamation has been established and after a court rejects defences.

Now, I’ve seen some scary-looking Santas in my time, but none more so than when a judge such as Gummow does his Santa routine, looking around for someone else’s money to dole out to a disgruntled plaintiff. It’s a quaint and other-worldly judicial view that regards newspapers as so influential that one review is so obviously defamatory as to send a restaurant bankrupt. The Sydney Morning Herald and The Age have been campaigning against the Howard Government for the past decade. And to no avail.

So did the review really destroy the restaurant? Or was it the poor food? Indeed, some bad reviews bring in the crowds. Am I the only one who goes to see a movie after it is panned by certain trendy critics? A give-it-a-miss review from certain quarters almost guarantees that it’s a movie not to bemissed.

The decision to throw out the jury verdict evinces not so much an air of unreality about how the world works as a thick fog of arrogance that judicial views on questions of fact ought to supplant those of ordinary beings who make up a jury.

In a curious turn of events, Justice Michael Kirby - the great dissenter - injects a healthy dose of common sense into this case. Usually he’s busily crafting the law to suit his own preference, often disguising his views under the cloak of community standards. But then, as the saying goes, even a broken watch is right twice a day. Here he is full of judicial humility and restraint. He deferred to parliament’s intent to have a jury decide defamatory material according to community standards and rejected the view of his haughty buddies who preferred their view to that of a pesky parliament or a jury.

Callinan’s apparent disdain for the jury is especially odd. In a speech given just after his High Court appointment, he scoffed at elitist criticism of juries and cited the view of Patrick Devlin, a former lord justice of Britain’s Court of Appeal, that “trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows freedom lives.” As Callinan will soon step down from the High Court after a distinguished career, hopefully he won’t mind the criticism.

After all, his spirited defence of juries was accompanied by an admission that criticism of judges is par for the course. Criticism of judgments is rather like being on the end of a stinging theatre review, he mused. He then cited a few colourful reviews including a damning criticism of a J.B. Priestley play, When We are Married, where the critic described the play as “an ideal treat as a night out for your despicable in-laws”.

After the High Court effectively sidelined juries last week, tilting the playing field against free speech, we may no longer be able to enjoy such robust criticism of theatre, books, restaurants and the like. Judges may prefer to live in an overly precious society where polite talk replaces honest criticism. But it will dull the lamp that shows freedom.


1 comment:

Anonymous said...

Well, surely the blame for the 'fish incident' should fall on the proprietors of the restauraunt not Mr. Rudd and his colleagues. How were they supposed to know that they were getting preferential treatment?