Sunday, July 02, 2023

Two standards of justice in Victoria

The director of public prosecutions in Victorie, Kerri Judd, is a KC, but his decisions would seem to have much to do with politics and little to do with law. The totally specious case against Cardinal Pell is a permanent disgrace to him but there is more

In the US there is increasing debate about the emergence of two standards of justice: a soft one for left-of-centre liberals (in the North American sense of the term) who vote for the Democrats and a harsh one for right-of-centre conservatives who vote Republican.

American lawyer Alan Dershowitz is a Democrat who voted against Donald J. Trump in the presidential elections of 2016 and 2020. However, he is concerned that there appears to be one law for high-profile Democrats and another for Republicans.

Meanwhile in Victoria, concern is emerging about a double standard within the Office of Public Prosecutions, which is presided over by Director of Public Prosecutions Kerri Judd KC. Writing in the Herald Sun on June 26, state politics editor Shannon Deery quoted someone whom he described as a seasoned Melbourne legal expert as saying: “The complete lack of judgment and objectivity down at the OPP gets plainer every week.”

The reference was to the refusal of Judd to lay charges against individuals involved in the Lawyer X case. This involved Victoria Police engaging a defence lawyer, Nicola Gobbo, as an informant to provide information about her clients that could lead to convictions in what was called the gangland wars of recent memory.

The engagement of Gobbo to inform on some of her clients to Victoria Police ran counter to the legal principle that everyone is entitled to a fair trial in which it is up to the prosecution to establish its case in a criminal trial beyond reasonable doubt. The actions of Victoria Police in this instance were effectively condemned by the High Court in a unanimous judgment on November 5, 2018.

Writing in these pages on June 22, Victoria editor Damon Johnston reported how Victoria Police spent millions of dollars of taxpayers’ money to prevent Victorians from finding out about the scandal until the High Court’s decision to end the embargo. Johnston was editor of the Herald Sun newspaper at the time. The full story is told in Lawyer X (HarperCollins) by Andrew Dowsley and Patrick Carlyon.

In time, the Labor government in Victoria, led by Daniel Andrews, set up a royal commission to look into the matter. It recommended the establishment of the Office of the Special Investigator to examine whether there was sufficient evidence to prove that offences had been committed by Gobbo and/or by current or former police.

Geoffrey Nettle KC, a former High Court justice, was appointed to this position. Under the legislation covering the OSI, Nettle was prevented from filing a charge concerning alleged offences unless this was agreed by the DPP.

On June 20, Nettle wrote to the clerks of the Victorian Legislative Council and Legislative Assembly advising that he considered it “pointless” for the OSI to continue and that it should be wound up. He said there was sufficient evidence to lay charges against several individuals. However, his recommendation had been overruled by Judd. In time, the advice was accepted and the OSI was closed.

And so it came to pass that one of the greatest scandals in Australian criminal law has come to naught. As Johnston wrote, “it’s difficult not to conclude that the cover-up has worked for police”.

Nettle is widely regarded as one of the finest legal minds in Australia. Yet his view on the need to lay charges was finally dismissed in condescending correspondence by Judd dated May 26, 2023.

In this letter, the DPP went to the extent of suggesting the OSI might have been proposing what amounted to “an abuse of process” in this instance. This led to an emphatic repudiation by Nettle in correspondence dated May 29, 2023. He told the DPP that the strength of her arguments “do not improve with repetition”.

There is a side history here. Nettle was a member of the High Court, led by Justice Susan Kiefel, which on April 8, 2020, quashed the conviction of Catholic Cardinal George Pell for historical child sexual abuse. Judd appeared for the OPP before the High Court.

To those who watched the hearings or read the transcript, it is evident that Judd could not explain how the alleged offences could have taken place. Then there was the question of performance. Shortly before the judgment was delivered, Melbourne Law School professor Jeremy Gans tweeted that all seven judges “were really on top of the factual details … way more than … Judd”.

There was always a doubt that Pell should have been charged. In the event, Victoria Police laid 26 charges but only five made it to court. The first jury was hung and the second convicted Pell after four days of deliberations. Pell’s legal team filed a notice of discontinuance before the second trial, which was dismissed by Judd without reasons.

The Victorian Court of Appeal divided two to one in a hearing in which the OPP could not explain the prosecution’s case – as even journalist David Marr, a Pell antagonist, conceded. And, likewise, Judd failed to do so before the High Court, where she was criticised by the Chief Justice.

The OPP case had been subjected to devastating criticism by Justice Mark Weinberg’s dissent in the VCA. The High Court reached similar conclusions.

In a letter to Nettle dated March 16, 2023, Judd wrote that there was no reasonable prospect of conviction due to the shortage of evidence. This despite the fact the OSI submission ran for 5000 pages. As Weinberg pointed out in the VCA, there was no evidence whatsoever against Pell apart from the complainant’s allegation.

Writing to Nettle on March 26, 2023, Judd claimed the “passage of time … would have to be taken into account in determining whether it is in the public interest to proceed with a prosecution”. In fact, the passage of time was longer in the Pell case than with respect to the Lawyer X matter.

For his part, Andrews publicly sided with Judd. This stands in contrast with his decision to effectively criticise the High Court’s unanimous decision in George Pell v The Queen.

In the state of Victoria there appears to be a law for Victoria Police and another for the late Pell and some others.


Labor’s Censorship Bill a threat to democracy

Who do you trust to determine what is true and what is false? To determine which news and opinion is allowed to be published, and which should be banned to ‘protect public health and safety’?

It’s a fair bet that Twitter, Facebook, the media, and the government aren’t at the top of your list. Yet last week, the Albanese government released a Bill gifting itself and Big Tech new powers to censor information it doesn’t want online. According to the Minister for Communications:

‘Mis and disinformation sows division within the community undermines trust and can threaten public health and safety. The Albanese government is committed to keeping Australians safe online.’

There are many red flags raised by this Bill. Perhaps the biggest is the fact that Albanese has exempted anything from his own government or the media from being considered ‘misinformation’.

Yet anything said in response to the government by the Opposition or another political party, or by any member of the public, can be considered misinformation and censored.

For example, if a Minister of the government made a clearly deceptive claim such as that the Voice would never campaign to change the date of Australia Day, and the media uncritically published stories about this on social media, that can’t be considered misinformation. But if you comment on that post and point out the Voice would be free to lobby government on any matter it chooses and that some of the government’s top advisers on the Voice have been denouncing Australia Day and calling to change the date for years, you may well find your post tagged as misinformation.

In the lead-up to this Orwellian ‘combating misinformation’ Bill being released, ‘misinformation’ suddenly became Labor’s new buzzword for any opposition to its divisive Voice referendum. In February this year, a carefully coordinated media drop from the Prime Minister’s Office to the Sydney Morning Herald read:

‘Prime Minister Anthony Albanese will link the growing international wave of misinformation to the campaign against the Indigenous Voice to Parliament, saying he is optimistic Australians will look past a confected culture war and support the referendum.

‘In an attempt to discredit his critics, Albanese will on Sunday claim that democracy is under threat…’

So on one hand, Labor says stopping misinformation is about ‘keeping Australians safe online’. On the other hand, the Prime Minister says misinformation is people who don’t agree with his divisive proposal to embed a new bureaucracy in our Constitution.

For left-wing governments and commentators, ‘misinformation’ has become the new ‘hate speech’ – terms used by the left to justify legal punishment against any opposing views.

Let’s not forget that social media companies have been happily censoring and banning those who criticise left-wing ideologies for years. It’s an ominous sign that the Albanese government demands still more censorship and wants to give itself powers to enforce it.

The inevitable result of the Labor government threatening massive fines against social media if they don’t censor content further is that those companies will block content and debates they know left-wing governments don’t like. Albanese’s government has cunningly drafted its legislation to ensure that when your posts are censored or your account is banned as a result of his laws, there will be no right of appeal to the government, and they’ll be able to blame the social media platforms.

Everybody knows that the internet is full of false information. A good government should trust the public they work for to process and critique what they read and see online accordingly. The best remedy to misinformation is free and open debate, supported by a fair media which doesn’t simply regurgitate the fashionable opinions of the day from social media because it’s cheap and easy journalism.

Instead of that liberal and democratic approach, the Albanese government is choosing the path of censorship and suppression. Government that appoints itself and fellow elites as the arbiters of truth is the worst possible response – one that authoritarian regimes have chosen since the beginning of recorded history.


Soldiers of misfortune

In The Fog of War former United States secretary of defence, the late Robert Strange McNamara (1916-2009), described how prior to nuking Nagasaki and Hiroshima in the second world war, the US ran a fire-bombing campaign across Japanese cities. The civilian devastation was horrendous. McNamara and Airforce General Curtis LeMay concluded they’d be tried as war criminals if the US lost.

Fast forward to recent history and President Obama’s record in office was one of the most lethal for civilians out of any US President during the global war on terror (GWOT). Instead of facing war crimes, Obama was awarded the Nobel Peace Prize. There is a perverse imbalance between what is acceptable for those in power compared to those deployed by that power when it comes to executing their task with extreme prejudice during times of war.

Under Obama, the US lowered the threshold for who could be regarded as a fighting-aged male in a strike zone and boys and men over the age of 16 became legitimate targets. And get this, only where evidence was brought to light after their death, were they determined to be innocent. This was conducted under the watch of Obama’s bitter CIA director John Brennan, and known as the ‘signature strikes policy’. He’s one of those intel guys who signed a letter saying the Hunter Biden laptop was ‘Russian disinformation’ during the 2020 US Presidential campaign.

UK-based rights group, Reprieve, argue lowering the threshold for who could be classed as a fighting-aged male allowed the Obama administration to claim low civilian casualty figures and a high number of militants killed. Reprieve’s analysis estimates between 2002 and 2014, US drone strikes in Yemen and Pakistan killed 1,147 unknown people in failed attempts to kill 41 named individuals. The Council of Foreign Relations (CFR) estimates that 3,797 people were killed in drone strikes during Obama’s tenure, including 324 civilians. The figures are never going to be exact, but you get the picture. According to the Bureau of Investigative Journalism, Obama’s first airstrike in Yemen was a disaster. Instead of eliminating al-Qaeda with cluster munitions a tribal group was hit, killing 55 people. Twenty-one were children – ten of them under five. Twelve were women, five of them pregnant.

It was under Obama that al-Qaeda in the Arabian Peninsular leader and US citizen Anwar al-Awlaki was killed in 2011. A US citizen was executed without trial. Despite all of this, in 2021 the US warned Australia’s Defence Chief that allegations Australian special forces soldiers killed prisoners and civilians in Afghanistan may trigger a law prohibiting assistance from the US. Which reminds me of a Pashto proverb, Da khra mina laghata da – Donkeys show their love by kicking you.

This is worth thinking about as we watch the crucifixion of Australian soldiers during their time in Afghanistan. It appears much of the controversy flows from conflicting eye-witness accounts; many who appear to be rivals. And yes, there are images that from the comfort of our safe spaces appear questionable. The most high-profile example is the defamation case involving Victoria Cross recipient and Special Air Service soldier Ben Roberts-Smith. US Navy Seal Eddie Gallagher is another high-profile example. In 2018 Gallagher was arrested and imprisoned, accused of war crimes in similar circumstances to Roberts-Smith. Eventually Gallagher was pardoned. The media pile-on was the same. How the media and politicians love glorifying these soldiers when it suits their purposes. Remember how ‘operator beards’ were all the rage during the GWOT.

And hey, do a search and you will find how the same mainstream media commentators carried the narrative of how painful and agonising it was for Obama to twist and turn through legalities. The same commentators did the opposite for Roberts-Smith and Gallagher. They were just ‘bad men’. Probably all that nasty ‘toxic masculinity’.

Former British prime minister Winston Churchill appreciated the moral dilemma of warfare when he approved the establishment of the Special Operations Executive – a courageous bunch of self-starters sent behind enemy lines often disguised as goat-herders, fishermen or even German soldiers – they were masters of sabotage. Yet Churchill was reprimanded by his own side. SOE members were criticised in the House of Commons for the ungentlemanly way they fought. Think about that. They were fighting the Nazis and still people wanted the fight to be fair.

In unconventional environments such as Afghanistan, Iraq, Pakistan and Yemen, war is fought by, with and through the population. It is an unnerving feeling when sipping tea with a group of villagers knowing some are planning right there and then to kill you on the way home. Even the people working for you could be plotting to do you in, given the right incentive. The green-on-blue attacks that saw Australian soldiers killed by local Afghans who worked for them was a tactic used by the Taleban.

So who is a legitimate target?

Road-side bombs or IEDs accounted for almost 50 per cent of soldiers killed in Iraq and Afghanistan. Nothing symbolised these war zones like the IED. It made your skin crawl with fear driving down any road. Yet at which stage of involvement turns one into a legitimate target? How about the guys digging the hole to put them in; they are unarmed? What about the dude on the cell phone watching the vehicle go past the trigger point from which to key in the detonation number? What about the logistics line of jingo trucks, donkeys and skinny guys on bikes bringing in the equipment and components?

The reality is, as George Orwell wrote, ‘people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf’. Except there is a line that can be crossed by presidents. Given many in the West are gunning for a confrontation between the US and China, we might need a new generation of ‘rough men’.

When conducted with extreme prejudice, warfare is brutal and violent, and its bloody reality often offends. The last thing we want is for Australian soldiers, and our elite Special Air Service, to have the tips of their spears blunted. ?


The lies behind "Voice"

The Uluru Statement from the Heart is a vulnerable document. It is sometimes silent when Aboriginal failures are visible, but vocal in condemning Australian people for misdeeds that never happened.

Without doubt, the Indigenous people have had many legitimate grievances about their sufferings and slights ever since British convicts and marines arrived in 1788. Hosts of Aboriginal people were killed in frontier conflict, though the historians’ statistics of death tend to contradict each other. Most Indigenous people died from diseases to which they had no immunity, and such deaths far exceed those suffered in warfare since 1788.

Countless Aboriginal people died from the excessive consumption of alcohol: rum and brandy rather than beer and wine were their temptation. Moreover, most Aboriginal people preferred novel foods such as sugar, flour and mutton rather than the plants they had skilfully gathered during an ingenious way of life that also kept them fit. The sight of so many overweight Aboriginal people today would confound their lean ancestors, if by chance still alive.

The loss of their lands, their “dispossession”, of course created resentment. But Aboriginal leaders tend to think they were the world’s only such sufferers. In fact, the ancestors of most mainstream Australians painfully lost their lands in some faraway era and received no compensation.

Thus in 1066 the Norman Conquest of England and the actual killing or enslavement of so many people, and the raping or castration of others, was probably as devastating as the British conquest of Australia. In contrast, no Aboriginal people were turned into slaves. English people who suffered severely from the consequences of the Norman invasion in 1066 must have outnumbered the Aboriginal people who suffered severely from the conquest of Australia in, say, the 70 years after 1788.

Likewise, ancient Aboriginal people themselves were champions at dispossessing their neighbours, and one day that fact should be taught in Australian schools. In every known part of the world the semi-nomadic hunters and gatherers had been deadly in their tribal warfare.

Inside the Uluru statement, two major accusations are expressed in one pithy sentence: “In 1967 we were counted, in 2017 we seek to be heard.” The Aboriginal leaders who met at Uluru believed their kinsfolk were not even deemed worthy of being counted – until the referendum of 1967 raised their political status. Anthony Albanese himself, while understandably basking in his political honeymoon, affirmed this accusation, and continues to do so in parliament. If true, the accusation is a serious blemish on the Australian nation during the past century and a half. But it is not true.

In his many overseas trips Albanese has performed calmly and courteously. But at home, on the question that is now his very first priority, he seems sometimes to be at sea. It is fair to say he went overboard when in the Marrickville town hall on October 14 last year he told a packed gathering that Australia since 1788 had a “brutal” history, full stop. We all make unwise or sweeping statements from time to time.

Albanese’s favourite message is that Australia is “the world’s oldest living culture”. But New Guinea was occupied by human beings at about the same time as – or earlier than – Australia, and accordingly it also might be the world’s oldest living culture. Aboriginal people on the whole now have the higher quality of life, but wide is the gap between most city and big-town residents and that minority struggling in the outback communities. Closing the Gap has several meanings.

We learned how determined Albanese was when he affirmed, alongside the Uluru statement, that Aboriginal people were crippled by “powerlessness”. Now he is scaling the Mount Everest of Australian politics by seeking a drastic change to Australia’s Constitution. Thereby he will empower Indigenous people and simultaneously reduce the power of the great majority of Australians. But what if the Uluru statement, with its errors and omissions, does not justify an upheaval in Australia’s democratic system?

The Uluru statement is militant. It offers no sentence of respect or gratitude to the Australian people. Yet it is hailed by Albanese as warm hearted and generous. He even announced in a memorial lecture in Adelaide recently that it was an invitation extended “to every single Australian in love and grace and patience”.

A disciple of Bruce Pascoe, Albanese admires his nonsensical Dark Emu theory. Pascoe believes Aboriginal Australia was the first real democracy in the world and for 80,000 years a haven of peace and prosperity. Albanese believes this utopia – in fact, it never existed – can in some ways be honoured if Indigenous people are compensated with special powers and rights.

Parliament in its recent debate did nothing to validate the Uluru accusation that mainstream Australians had refused for generations even to count Aboriginal people. In fact, these proud people were being counted before any one of us was born.

We can appreciate the sense of hurt in young, politically active Aboriginal people when they hear the myth that they, their parents and grandparents had not been deemed worthy of being counted in a census. More insulting, the young are led to believe that the sheep had been counted regularly – as undoubtedly they were – but not the Aboriginal people.

In parliament last month Tanya Plibersek mistakenly announced, in an otherwise informative address, that in 1901 the “Aboriginal people weren’t counted in the census or commonly allowed to vote”. Her ministerial colleague Catherine King told parliament that Aboriginal people – in the words of one informant – were powerless “simply because we were never identified as humans”. That can’t be true.

Day by day, all shoppers at Coles supermarkets receive on their printed receipts a highly selective message based on Uluru. The directors of Coles Group do not seem to realise that, through the years, their own executives – in recommending places where the next dozen stores might or might not be opened – must have known where most Aboriginal people lived.

Linda Burney, born in a small Riverina township, is deservedly praised for making her way from a humble Aboriginal home to become a cabinet minister in Sydney and now in Canberra. But she has mistakenly insisted that as a young girl she was never in a census. “The notion that you weren’t worthy of being counted was very painful,” she exclaimed in July 2017. She once misinformed parliament that until the age of 10 she was not even a citizen. Instead, she claimed she was merely ranked under “the flora and fauna act” of NSW. Such a policy did not exist.

The first census to be conducted by commonwealth officers was in 1911, and the federal attorney-general instructed them to count “full-blood Aboriginals”. Understand­ably, the officers had to retreat when they reached remote areas where local inhabitants had seen no white person or heard a word of English. But tens of thousands of Aboriginal people were actually counted, often with enormous effort, in the accessible regions.

For a logical but slightly complicated reason, they were not – after the actual counting – included in the final tally of population. For instance, in apportioning a share of the federal customs revenue to each state, the smallish Aboriginal populations were not “reckoned” when finalising the payments to each state. Helen Irving’s book To Constitute a Nation neatly explains the reasons and the practice.

Today, visitors to the National Museum in Canberra are informed that not until 1971 were “Aboriginal and Torres Strait Islander peoples counted in the Australian census”. On the contrary, they had been counted in every federal census since 1901, and counted moreover in the face of obstacles confronted by few other national statisticians. Thus the state officials then in charge of that 1901 census specifically counted them. They set up a special category that comprised “full blood Aboriginals” and those “nomadic half castes” who were living with them. In the five mainland states they totalled 41,389. An even larger number could not be counted, being nomadic and too far distant.

There were precise censuses even before 1901, thus contradicting Albanese and the Uluru leaders. For example, South Australia, holding a census on Sunday, April 2, 1871, recorded the exact districts and towns where more than 5000 Aboriginal men and women lived.

Eye-opening was the census held on the same Sunday in gold-rich Victoria, where 731,528 people of all races were counted. Conducted by Henry Hayter, the census commanded respect from leading overseas statisticians. The main results were in the hands of parliamentarians barely two months later – a feat that is unimaginable in the age of fast computers.

Of those Victorian officials who took part in the detailed census, 918 went on horseback and 650 on foot. They investigated remote townships, huts and tents where only one or two Aboriginal people could be found. That the tally of these people had fallen since Victoria’s previous census in 1861 was evident, and it would continue to fall.

Four out of every 10 of the Victorian Aboriginal men said they were following a paid occupation; and that was a higher proportion than can be found in many remote Aboriginal settlements today. In Victoria, two of every five Aboriginal children of school age could read but fewer could write. Five Aboriginal adults were recorded as blind, and seven were over the age of 70, according to the census teams.

Hayter was meticulous. In the big printed edition of the census report he added a minor correction to the tally of 61,000 “Chinese and Aborigines” who had been separately counted: please “take 1 from the males and add 1 to the females”. Generally, the Aboriginal populations had considerably more males than females.

Across the globe most people alive in 1871 had not yet been counted officially. It is therefore remarkable that Aboriginal people in various towns and regions of Australia were systematically counted.

Other of our censuses were held before 1871, the year Albanese’s own ancestral land of Italy held its first nationwide census. One generation later, in 1897, the initial census in Russia’s vast empire at last enumerated famous individuals such as Finnish composer Jean Sibelius and Russian writers Leo Tolstoy and Fyodor Dostoevsky.

Unfortunately, the allegation – “a people not worth counting” – is now endorsed by some of the biggest business houses, by the football leagues and even by universities that are world-ranked for their research.

The leaders at Uluru insisted that their people had been powerless for generations This lament is also far-fetched.

In stressing the “torment of our powerlessness”, they did not know that in the late 1850s, in the three populous Australian colonies, most Aboriginal men were allowed to vote. This was a momentous event: most of Europe’s tens of millions of men had not yet won the right to vote. Indeed, a forgotten man of Aboriginal and convict ancestry won the rural seat of Young in NSW in 1889.

Another landmark – unknown to Uluru – was a general election held in 1896 in South Australia. This was probably the first government in the world to allow women not only to vote but also to stand for parliament. New Zealand women already had the first right but not the second.

In this same 1896 election in South Australia, even more revolutionary was the sight of Aboriginal women attending the polling booth. Martin Luther King might well have shaken his head in surprise if he had known of it.

Just pause and ponder for one minute: South Australia’s innovation occurred when 99 per cent of the women in the world did not have a vote. In renowned cities such as Paris, Berlin, London, New York, St Petersburg, Tokyo and Beijing, not one woman had the privilege now exercised by female Aboriginal voters in South Australia. Five years later in the first federal election various Aboriginal women must have voted – an election in which no white woman in the four eastern states was entitled to vote. These triumphs contradict the Uluru manifesto.

Indigenous people hope to gain a major say in shaping a beneficial treaty with the Australian nation; they demand a truth-telling tribunal dominated by the Indigenous; and they call for the right at times to influence vital spheres such as foreign policy. They will also break the golden rule of democracy: one person, one vote.

Meanwhile, their cry of “powerlessness” is a kind of crocodile tear. In the past half-century Aboriginal groups have been handsomely recognised by their acquisition – under the Fraser and Keating governments – of ownership or certain rights and interests in 55 per cent of the Australian land mass. Few Australian voters know this fact. It constitutes one of the largest peaceful transfers of land in the history of the modern world.




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