Australian Politics

Sex assault law reforms a ‘kangaroo court’ nightmare

Mordecai Bromberg being destructive again

Just when you thought we might not hear any more about the Higgins-Lehrmann scandal, like a bad dream it has come back to haunt us, and if the consequences of the latest episode succeed it will be a real nightmare scenario. There are attempts afoot to drastically change the onus of proof in sexual assault cases, so the defendant’s right to a fair trial will be compromised. As reported in The Australian (25/6), Australian Law Reform Commission president Mordecai Bromberg and commissioner Marcia Neave announced that the wide-ranging ALRC inquiry instigated by Attorney-General Mark Dreyfus into sexual assault laws might “deal with every issue” arising from the Higgins-Lehrmann case and “examine using” ‘civil remedies’ with a lower standard of proof” to satisfy complainants in rape and sexual assault cases.

This is a disastrous idea. It would result not only in negation of the rights of the accused but also no real justice for the complainant, who deserves to have rape treated as what it is: a serious crime. As Chris Merritt said on Sky News last week: “Rape is not simply a dispute between two individuals”, as is a civil case. Inevitably, using a civil standard of proof will result in unsatisfactory outcomes, as it has for Bruce Lehrmann, now branded a rapist after a defamation trial. Without the thorough standard of proof required in a criminal trial we can expect more people to be branded guilty of rape and sexual assault.

Dreyfus’s inquiry has been largely kept under the public radar. However, there are some genuine questions to be asked about whether the conviction rate in rape is too low and whether complainants are treated fairly. As for numbers of convictions, we also see the number of poor cases and false accusations. Five NSW judges have complained about the numbers of hopeless cases coming before them. Of course, one way to have few convictions is to run hopeless cases, especially in sex assault.

The report of a national ministerial-level roundtable meeting on justice responses to sexual assault convened by Dreyfus last August canvassed these issues, and features prominently in the inquiry’s terms of reference. Attendees included ministers Katy Gallagher, Amanda Rishworth and 22 non-government organisations, all from the feminist spectrum; throughout the report complainants, even future notional complainants, are referred to as “victims and survivors”.

The roundtable had some radical, even bizarre recommendations for “reform” in matters ranging from the treatment of complainants before trial to the rules of evidence in a trial. Some of the more outlandish suggestions include women-only police stations, police investigations to be “victim-led”; that is, where the investigation is driven by what “justice” looks like for the complainant – apparently, not the accused. The participants also called for the establishment of an independent civil body that conducts investigations and may reinterrogate investigations conducted by police. The treatment of defendants was also discussed, with the suggestion that the possibility of not just good character references for defendants to be produced, but bad character references too.

However, the most radical proposition is this: “The need for the inquiry to consider overhauling longstanding legal principles where needed.” This includes the defendant’s right to silence. It also includes “special” courts or tribunals for sex assault cases, which would do away with a jury and replace it with a judge and a person with “expertise” in the area. Is this the civil model – or a kangaroo court? None of this can be taken lightly given the weight Dreyfus has placed on the roundtable.

Despite the relentless left-wing, feminist, almost 50-year push to change the nature of procedure and evidence in rape trials to get more convictions, many procedurals and some difficult evidentiary issues arising from rape and sexual assault have already been dealt with. For example, much of a woman’s past sexual history, once used to besmirch her reputation and downgrade her complaint, is now inadmissable. The brutality of cross-examination has been softened and some suggestions at the roundtable would soften it further.

Some of the changes, such as the watering down of consent to the point that no one is sure if or how consent can be confirmed, are simply useless. Saxon Mullins is a director at Rape and Sexual Assault Research and Advocacy, a group represented at the roundtable. Mullins was a complainant in a high-profile rape case that ultimately failed at appeal over the issue of consent. Mullins’ views on “genuine” and “not genuine” victims are instructive. According to her, it is a false idea. “I find that so offensive … If somebody feels that they are a victim of sexual violence, they are.” And as for false claims of sexual assault: “I think this idea of false claims is so overblown. They are tiny when compared to the actual number of people who experience sexual violence in Australia.”

Feminists don’t do their cause much good to downgrade a crime by denying false or exaggerated claims or making up statistics. Nor is downgrading of evidentiary standards and the presumption of innocence for the accused a good idea. Yet feminists are not worried that this will corrupt the right to a fair trial for any crime, not only rape. The erosion of the presumption of innocence is an important issue, no matter who you are. For that reason, a public conference will be held in Sydney in August, hosted by Australians for Science and Freedom:

https://www.theaustralian.com.au/inquirer/sex-assault-law-reforms-kangaroo-court-nightmare/news-story/71ac0d91f7758b11a3e8d4ef185ce122

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The payoff from Payman

I don’t care about the political future of Fatima Payman. She’s a nobody junior senator from Western Australia, was third on the Labor ticket for that state, whom most of us had never heard of before she quit in a storm of teary petulance over the issue of Palestinian statehood.

Now? She’s launched an almighty rocket into the ALP and its parliamentary agenda, returning the gift of preselection with both the destabilisation of the government’s agenda and the spectacular undermining of an already weak Prime Minister. Add to that, her name is stuck in my head like the theme song from The Love Boat. Honestly? I could do without that.

While others are dissecting the politics of what’s happened and what her stunt means for the government and for the Labor Party, I want us to consider what this little episode in self-indulgent petulance means for the rest of us.

Payman was elected to represent the people of Western Australia and advance their cause in our federal parliament. She is an elected and paid public servant (like the rest of them) of the people of Australia. Would that they all remember this.

She tearfully told the media that she is “the true voice of West Australians”. That she is speaking for them. The chutzpah of such a statement? Senator Payman, where were you during the vote on the live export industry this week, the results of which will spell disaster for much of rural WA? That’s right, you were missing in action. You didn’t vote. You abstained. So the people of Western Australia were without your apparently indispensable voice this week.

Senator Payman’s behaviour is a great example of what happens when you don’t discipline kids. It’s also an example of what happens when you preselect kids. She spoke of not having a “support person” when going to see the Prime Minister. The embarrassing immaturity of such a statement.

Payman chooses to come in on a wrecking ball over an issue about foreign statehood for a people that has no bearing or relevance to the day-to-day lives of the people she is paid to serve.

I will labour that point, because it’s the substantive one.

Her role is not to enjoy flights of fancy on single issues on foreign soil. He role isn’t to attempt to make a name for herself politically, consulting as it’s been reported that she has with so-called preference whisperer Glenn Druery in order to seek more influence than she deserves or should carry.

Again, this is all about an attempt to engineer a policy outcome that has zero impact or benefit for the people of Western Australia, or the rest of us.

Whether or not you like the government’s agenda (and spoiler alert, I’m not a huge fan), they were voted in to do a job. And now, that job is parked out the back while a baby senator has her moment in the sun.

As an aside, Labor’s response was entirely expected if not so late as to be damaging. You join a party that has bonded voting? Then you know the rules of the game. Payman has cried victim. They’re freezing me out, it’s because I’m a woman of colour.

Her posture and her comments are an insult to every one of us whose families have fled other countries to start a new life in Australia, who came here with nothing. Spare us, senator. You are no victim. If you can’t take the hits, get out of the game.

For the rest of us, frustrated, maligned voters, increasingly weighed down with the cost of living and by the apparent indifference to all of this carry-on, high levels of political disengagement make sense.

But that doesn’t mean it makes good sense for us. There is a price for everything. There is just as much a cost for inaction as there is for the decisions we make. Possibly more. Evil flourishes when good people do nothing.

People are talking a lot about the Quiet Australians; maybe you consider yourself one of them. But is being quiet the answer this hour requires?

I don’t think it is.

I think now is the time to be heard. I have stirring inside me the belief that now, more than ever, those of us who might have previously tuned in, turned on and dropped out need to do the opposite.

When you take a step back and consider some of the absolute nonsense that gets tolerated simply because most of us just want to go about our days and our lives, it’s almost a collective dereliction of duty.

It might surprise you to know that I’m not a member of any political party. I’d never been to a rally of any kind until October 7. That was my tipping point. The burning Israeli flag and chants of what many still believe was “gas the Jews” on the steps of the Opera House. It was the full revelation of the depth of anti-Semitism in academia and sections of politics and media. The hate-filled terror apologists who crawled out like cockroaches from under rocks. That was my tipping point. That was what prompted me to step up and speak out. What’s yours? Find it before it’s too late.

https://www.theaustralian.com.au/inquirer/time-for-quiet-australians-to-start-making-some-noise/news-story/2353470e98ea47cfe7864c687d2e62d1

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Media Watch Dog: ABC’s lack of viewpoint diversity – another blatant example

As avid Media Watch Dog readers know, the ABC is a Conservative Free Zone without one conservative presenter, producer or editor for any of its main news and current affairs programs. ABC management denies this – but no one has been able to name even one conservative in such a role.

By and large it is producers, not presenters, who determine what talent will be invited onto ABC programs. Take ABC TV News Breakfast, for example. It runs a Newspapers segment which is devoid of input from political conservatives while finding time to hear from many left-of-centre types.

For example, personnel from the avowedly leftist Guardian Australia get a gig along with personnel from the avowedly leftist The Australia Institute. But conservative types from the Menzies Research Centre, the Institute of Public Affairs and the Robert Menzies Institute are not invited.

The leftist Australia Institute/ABC Entente was in action again on Friday 5 July when Ebony Bennett, the Australia Institute deputy director, commented on the morning’s print and online newspapers.

As is her wont, she said what should be in the newspapers – rather than commenting on what was in them.

Early on, Comrade Bennett re-interpreted an article in the Courier Mail to bag its story on the importance of the coal industry to the Australian national economy. She declared it was a “puff piece” and blamed the Queensland coal industry for extreme weather in Queensland. Ignoring the fact that Australia is responsible for just over one per cent of global emissions.

Then Comrade Bennett commented that Senator Fatima Payman was “resigning from the Labor Party really over the issue of genocide in Gaza as she described it”. Ms Bennett provided no evidence of genocide in Gaza.

Then co-presenter Michael Rowland felt it was time to declare that News Corp newspapers certainly do not have the influence they had years ago. Whereupon Comrade Bennett concurred “That’s absolutely right”. Which make you wonder why she bothers to get up early in the morning to discuss newspapers on the taxpayer funded public broadcaster.

MWD has no problem with Comrade Bennett running political lines on the ABC. The problem is that the ABC does not provide alternative views. This is another example of the ABC’s lack of viewpoint diversity.

https://www.theaustralian.com.au/commentary/media-watch-dog-abcs-lack-of-viewpoint-diversity-another-blatant-example/news-story/5b88175469a277bd72b6f4721c2ba431

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Private hospitals in trouble

The country’s largest operator of non-profit private hospitals has declared the crisis in private health is crippling its ability to care for patients as it threatens to walk away from negotiations with one of Australia’s biggest health funds.

St Vincent’s Health Australia blindsided health insurance giant NIB on Thursday when it took its contract fight to the public arena and warned that the health fund’s 1.3 million members may no longer be able to use their hospital cover for surgery at the non-profit group’s 10 hospitals across NSW, Victoria and Queensland.

The unprecedented move would leave those with NIB hospital cover unable to use their policy to cover the costs of surgery at 10 private hospitals operated by St Vincent’s after October unless the stalemate can be resolved.

Many of the hospitals, including St Vincent’s Private in inner Sydney, the Mater on Sydney’s north shore, St Vincent’s Private Hospitals in Fitzroy in East Melbourne, and St Vincent’s Private Hospitals at Kangaroo Point and Northside in Brisbane, are well-known as facilities of excellence where some of the country’s most skilled and in-demand surgeons run operating lists.

Amid crumbling viability in the private health sector, St Vincent’s Health Australia chief executive Chris Blake said the group had asked NIB for a fair funding agreement that recognised the rising costs of providing private hospital care but alleged it had been rebuffed.

“NIB has not put a fair offer on the table and has closed the door on any reasonable proposal from St Vincent’s,” Mr Blake said.

If the stalemate cannot be resolved, after October NIB members having surgery at St Vincent’s hospitals will fall under the second-tier default benefits scheme, in which NIB would only have to fund 85 per cent of the patient’s hospital costs. That could leave the average hip replacement patient having to pay a bill of more than $4000.

The stoush comes as the sustainability of private hospitals is currently being examined by a federal health department rapid viability review. About 70 private hospitals have closed over the past five years, many private maternity and psychiatric wards are currently sitting idle, rehab facilities have closed, and many more entire hospitals are on the brink of bankruptcy.

“There is a crisis in private healthcare in Australia,” Mr Blake said. “The reality is private hospitals are failing.

“The long-term issue is that the system itself is within years of being unfundable. If one part of the system fails, we all fail. The last thing St Vincent’s wants to do is end up in a situation where we are going out of contract with insurers, it’s an absolute last resort, and the proof of that is that we’ve never done it before. But the best outcome for us in this negotiation doesn’t even cover our costs.”

If the contract lapses, it will not be the first time customers of a health fund have had to rely on the default benefit scheme safety net because their insurer’s agreement with a hospital has been ripped up.

But it is an extremely concerning development for the industry that a not-for-profit hospitals provider – which is attempting only to cover its costs where making a profit is not a consideration – should deem the contract negotiations so unfair it was willing to abandon them.

NIB chief executive Mark Fitzgibbon issued a short statement in response to St Vincent’s position, saying “NIB has a long partnership with St Vincent’s, is sympathetic to St Vincent’s financial position, and that of other private hospitals, and has made a very fair and reasonable offer to St Vincent’s”.

“It’s disappointing they have elected to argue their position publicly,” Mr Fitzgibbon said. “But we will continue discussions with them, noting that our partnership has several months remaining.”

The Australian Medical Association said the dispute highlighted the need for an independent regulator for the private health system.

“Disputes like this should never be allowed to happen,” said AMA president Steve Robson.

“Australians pay their health insurance premiums in good faith and rightly expect to be able to use their policies when they need them.”

Private Healthcare Australia chief executive Rachel David warned against that call and criticised the tactic of taking the negotiations public.

“There’s no suggestion that patients are going to be penalised at any level,” Dr David said.

“I think part of this is designed to put some political pressure on the government to undertake some kind of intervention. I also don’t think that’s appropriate. I think the sector needs to show that it can manage within its means and deliver a product that’s value for money for consumers.”

Private hospitals have not yet recovered from the severe impacts of the Covid-19 pandemic, with the benefit payments being provided to operators under contracts with private health insurers lagging well below health inflation and the rising costs of staff and equipment.

The private hospitals industry as a whole is operating on a profit margin of just 1 per cent while insurer profits have been rising year on year.

Newcastle Business School professor Francesco Paolucci, an expert in healthcare systems, said the breakdown in a crucial contract negotiation between a big insurer and private hospitals operator was predictable amid the multiple pressures on Australia’s public-private health system model.

“This outcome is not surprising,” Professor Paolucci said. “We are going to see more of this. The problem that we currently have is we have a system that is fragmented, with a number of stakeholders involved in funding something that needs co-ordination and integration, which is the purchasing of healthcare.”

Parties to contract negotiations never reveal the numbers on the table, but a general guide is that offers by insurers often tend to broadly align with their latest approved premium increase.

For NIB, that was 4.1 per cent, one of the largest increases of all funds, and well above the industry average rate rise of 3.03 per cent. The health fund paid out only 79 per cent of its premium revenue of $1.9bn in the 2022-23 financial year, and its management expenses were 12.3 per cent.

Catholic Healthcare Australia’s director of health policy, Katharine Bassett, said St Vincent’s was justified in its stance.

“It is totally unacceptable for insurers to put the squeeze on patients and hospitals while increasing their large profit margins and bank balances,” Dr Bassett said.

“Today, St Vincent’s is rightly taking a stand against insurer power and greed. Other hospitals may need to do the same.

“While it’s St Vincent’s and NIB today, it could be another hospital and insurer tomorrow as funding from insurers has not kept pace with the rising costs of delivering care.

“Insurers have been banking record profits while returning less to patients and hospitals. We’ve reached the breaking point.”

https://www.theaustralian.com.au/health/major-contract-between-nib-and-st-vincents-private-hospitals-on-brink-of-collapse/news-story/d928c2806a3758a496855804a3590e61