Kidman was not the only target of snipers this year. The best Australian film of 2008, Elissa Down’s The Black Balloon, was so harshly attacked in some quarters that Down and her writer, the eccentrically named Jimmy “The Exploder” Jack, felt they had to use their moment in the spotlight at the AFI Awards to respond in a heartfelt, if misguided, manner.

It may not have been a vintage year for Australian films, but 2008 saw the release of Peter Duncan’s generally moving Unfinished Sky, Nash Edgerton’s sleek neo-noir The Square, Cathy Randall’s edgy teen comedy Hey Hey It’s Esther Blueberger and Benjamin Gilmour’s astonishing Pakistan-set Son of a Lion, plus the no-budget family drama Bitter & Twisted by Christopher Weekes and the inventive crocodile thriller Black Water by Andrew Traucki and David Nerlich.

We can all take pride in these films. Sadly, very few people went to see them, perhaps because they were badly marketed or because some of the reviews were negative, or maybe just because, in the eyes of many people, Australian films carry with them low expectations. It should be remembered that some of the screen’s most enduring works - Charles Laughton’s The Night of the Hunter, for one - were poorly reviewed and did no business initially, yet over the years have become acknowledged classics. I’m not suggesting the above titles are in that class, but they deserved better treatment than they received.

Get it, its our fault.  The last comment says it all about the myopic, self indulgent and forever blaming the public approach of the Australian Film industry.  Stratton seems to suggest that many of our films are diamonds in the rough or masterpieces which are hidden from view because of this or that mishap, incompetence or conspiracy by third parties.  But one day we foolish public will realise our mistake.

What tosh!  Just look at the product.  Most of it almost dares the viewer to sit and watch.  Black Balloon and Unfinished Sky, grim depressing pieces, are written for empty theatres.  Neither will be a Night of the Hunter.  Nor would we want them to be. Night of the Hunter is an acquired taste that won’t pack them in.  It is cineastes fair.  Perhaps a Juno, Charlie Wilson’s War, The Sting or a Pretty in Pink or some other funny, quirky, intelligent, and, heres a thought, entertaining movie might be a better template than the grim noir, fight against the odds in a suburban wasteland with characters who have all the emotional depth of sociopaths who have just jumped the fence of a major correctional facility that is served up with depressing regularity. Looks like Australia, which Stratton gave a qualified thumbs up is going to be a bomb, money wise at least.  Will someone tell me what is the magic of Luhrman and Kidman?  Luhrman’s first two outings were fun but since then he just annoys.  Kidman just plain annoys with only one decent outing, with To Die For.

Also on this day in 1890 the US Army massacred a village of Sioux men, women and children at Wounded Knee. Hard to believe such brutality at the height of the Gilded Age.  Bury My Heart at Wounded Knee moved me and took me from my whimsical love affair with the Western to a realisation that the taming of the West came at a terrible and still unpaid cost. The late Dee Brown deserves a special place in heaven for his work. I know look and smile with approval as Indian Tribes use their treaties to build casinos and operate other businesses outside the control of US Governments, driving them nuts in the process. Long range and long term payback. And why not. That is justice by another name.

While on the subject of films Salon has done its list of the best 10 indie movies of this year. Alas (or not) I didn’t see most of those films. Perhaps because most were not released in Australia. I am however happy to see Waltz with Bashir got a nod. It was a terrific piece of animation and a great story. The SMH, courtesy of Paul Byrne, has produced a very sloppy piece titled Our pick of the flicks and flops. I agree with his thesis that super hero films clog up the screen but he is just way too indy obsessed and anti hollywood. His top five best and worst are:

Best and worst

Five best

1. WALL-E

2. Hunger

3. In Bruges

4. Charlie Wilson’s War

5. My Winnipeg

Five worst

1. Disaster Movie

2. The Love Guru

3. Fool’s Gold

4. Rambo: To Hell And Back

5. The Forbidden Kingdom

Three of the top 5 are fair nuff I guess. WALL E was a terrific movie as was Charlie Wilson’s War. In Bruges is a good and in part great movie. My Winnipeg is just too off the scale of normality to justify being a top five anything. A little self indulgent. Hunger was grim, depressing self important dross. A good story badly structured and drearily told. Why no Dark Night, Iron Man or Waltz with Bashir?

Jim Shembri has another run at the films of 2008. Shembri’s individual reviews are fairly off key to my mind, preferring the quirky to the mainstream (but he is completely mainstream compared to the weirdness that Tom Ryan searches out and praises).  Paradoxically he calls for Australian movies to be, well, less quirky and more mainstream.  And fair enough.  Never a truer word is said when he wrote:

Unfortunately, it was another bad year for local cinema as Australian films appeared determined to demonstrate their irrelevance to Australian audiences. Of the 29 films released, about half took less than $100,000 (according to figures compiled by Inside FilmChildren of the Silk Road ($1.16 million); The Black Balloon ($2.26 million) and the epic Australia ($22.5 million and counting) (from Motion Picture Distributors Association of Australia data). And only three films hit a million:

It is crucial to note that, as was the case with Happy Feet in 2006, the epic romance by Baz Luhrmann is a freakish anomaly in the local film firmament. A well-marketed, plot-driven, mainstream film designed to please big audiences, Australia is precisely the opposite of what has become the norm for our industry — and an exaggerated example of what we need more of.

But will our home grown industry step out of the black clad ghetto they inhabit. Don’t hold your breath.

Now that I have a blog I can go all misty from time to time. And Christmas day is the time to do it. Here it is:

We take pleasure in answering thus prominently the communication below, expressing at the same time our great gratification that its faithful author is numbered among the friends of The Sun:

Dear Editor—

I am 8 years old. Some of my little friends say there is no Santa Claus. Papa says, “If you see it in The Sun, it’s so.” Please tell me the truth, is there a Santa Claus?

Virginia O’Hanlon

Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies. You might get your papa to hire men to watch in all the chimneys on Christmas eve to catch Santa Claus, but even if you did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived could tear apart. Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives and lives forever. A thousand years from now, Virginia, nay 10 times 10,000 years from now, he will continue to make glad the heart of childhood.

It is written in in the 19th century style, it was written in 1897, so appears a little stilted to our eyes. I love that slight formality. It remembers a time when people love working language for its own sake, for the cadence and rhythm. For more information about this wonderful story and the author of the piece have a look here.

A Merry Christmas to all who read this. May you have a happy and holy festive season!

His  top 10 movies of the year, and honourable mentions are:

1. Caramel , Nadine Labaki, Lebanon
2. Lust, Caution , Ang Lee, China
3. Flight of the Red Balloon , Hou Hsiao-hsien, France
4. Happy-Go-Lucky , Mike Leigh, UK
5. The Dark Knight , Christopher Nolan, US
6. Australia , Baz Luhrmann, Australia
7. Burn after Reading , Joel & Ethan Coen, US
8. Waltz with Bashir , Ari Folman, Israel
9. The Edge of Heaven , Fatih Akin, Germany
10. Wall-E , Andrew Stanton, US

Honourable mentions

■ The Band’s Visit (Israel)
■ Before the Devil Knows You’re Dead (US)
■ The Black Balloon (Australia)
■ The Diving Bell and the Butterfly (US)
■ Frost/Nixon (US)
■ Juno (US)
■ Lemon Tree (Israel)
■ Persepolis (France)
■ Salute (Australia)
■ The Visitor (US)
■ You, the Living (Sweden)

Most are of the seriuos, sombre, worthy variety.  Interestingly, and relevantly, very little in the way of US product.  I have seen most of those movies and agree with some of his views.  Dark Knight is the stand out for the year.  Lust, Caution was great as was Wall – E. Waltz with Bashir is also a top tenner.  After that it is a bit of a self indulgent list drawn up by someone addicted to wearing black.  In the honourable mentions while I liked The Bands visit and the Lemon Tree they were definitely in the Indy class of worthies.  Happy Go Lucky was self indulgent nonsense.  The Black Balloon should be on no list.  It was dreary story that defied the viewer to watch it.  Juno was cute.  A bit like a sugar fix.  Instant gratification courtesy of a witty script.  But the characters lacked depth.  They were essentially the sum of their super witty wise cracking.  Let’s see how the second effort of the script writer pans out.  I got the feeling that her all went into this effort.  As for Burn After Reading, I am in the anti camp (much to my extreme disappointment). It was awful, plain and simple.

What Ryan omits is really illuminating.  For example Tropic Thunder?  It was biting, subversive and funny into the bargain. Forgetting Sarah Marshall was the stand out comedy.  Interesting to see virtually no comedy in Ryan’s selections.  Typical.  Worthy is only what matters.  OK, on the worthy monitor what about There will be Blood.  Mongol was breathtaking.  Iron Man was the sleeper hit.  It was by far the best super hero film since Batman Begins and was only half a peg below Dark Knight. 

On the worthy list The Savages was excellent.  On the Indy Scale what about The Wackness. 

The bottom line is that Tom Ryan is never so happy as when he is glum and seems to feel that a film isn’t a film unless it is screened in a Independent cinema. 

Australian Movies

Tom Ryan is part of the problem with Australian movie industry demise when he peddles this drivel:

WHILE bean counters might deploy box-office returns for locally produced films as their measure for how well the Australian film industry is doing, there are other ways of assessing films’ worth. And from where I sit in the stalls, it’s been a solid but unremarkable year.

Gee Tom, how silly for some to regard returns as being relevant in considering the state of the industry.  Poor box office means poor attendance.  Poor attendance means people are staying away in droves.  If people don’t want to see Australian Movies the problem isn’t in the lap of the punters.  It is fairly and squarely the fault of producers, directors and scriptwriters.  Tell a good story and make it interesting and………..they will come. 

But Ryan gives the industry a pat on the shoulder, rather than the well deserved kick in the ass, with this sanctimonious sludge:

And, while it’s more intimate in approach, Elissa Down’s The Black Balloon is equally affecting. An irresistible family drama with a tough mind and a gentle heart, it creates a world full of vibrant life: a wonderful collection of characters, a lived-in suburban Australia and a home that’s alive with meaningful clutter and bustle.

Also worth noting are the animated feature Global Haywire (directed by Bruce Petty), Rats and Cats, written by and starring Jason Gann and Adam Zwar (previously collaborators on Wilfred), and Nash Edgerton’s The Square. None did a jot of serious business, but they are all, in their different ways, worth seeing.

I love Film Noir but it didn’t take a genius to figure out that The Square was going to play to empty houses.  Australian Noir is unremittingly bleak and grim, usually set in the wilderness of outer suburbia involving characters who should be on anti psychotic or anti depressant medication (or both).  Novice directors and screen writers are addcited to this type of film.  At least with the superior product neo noir out of US and France can excite and at times amuse.  As for the Black Balloon who cares whether it is affecting.  Affecting only gets you a hard core audience who want to be put through the ringer for an hour and a half and feel they have done something………..yes………worthy.  Not exactly the demoagraphic of the average viewer. 

An interesting article in today’s SMH, Rule of three can’t explain our flops which is a reasonable analysis of why the Australian Film Industry is in such a woeful state.  It would be nice if in 2009 the word went out to anyone involved in the movie industry that for every “worthy” film there must be 10 comedy/dramas or caper movies or screwball comedies.  And perhaps also that every film should have at least one character which the audience could somehow empathise with.  Oh, and a story that can’t be summarised on the back of a stamp.   Maybe there should be more than one draft of a script (or at least it would appear so). That isn’t too much of a Christmas wish is it?

Strike out application (paragraphs 4 - 5,  8 & 10).

Features of a strike out application are:

• the rule applies to the adequacy of the pleadings only;
• the facts are not under any consideration.  In fact the facts are assumed to be true;
• the test as to when to strike out has been variously described but the most common formulation is that the statement of claim does not admit of reasonable argument;
• that it is an interlocutory order from which appeal can’t be taken without leave; and
• where a court determines that a claim should proceed it will hesitate in striking out that portion of the claim whose legal basis may be doubtful or problematical.

Summary judgment application (paragraphs 6 - 10).

Features of this form of application are:

• there is an analysis of the facts outside the pleadings;
• that it is essentially a summary trial;
• the test is that the proceeding has no reasonable prospects of success;
• it is easier to obtain summary judgment than strike out because the applicant in the former need only show that there is no dispute of material fact ; and
• an order granting summary judgment is final and appellable as of right.  Where summary judgment is granted for less than the totality of the claim it is arguable that those orders may be interlocutory (see paragraph 9).

Barnes v Addy

Finkelstein J, in his refreshingly crisp prose, summarised the core requirement of a Barnes v Addy claim,  knowledge, at paragraph 15 as:

For a knowing receipt claim under Barnes v Addy, there are three elements: (1) receipt by the defendant of (2) trust property with (3) knowledge of the facts that (a) the property was trust property and (b) receipt was pursuant to a breach of fiduciary duty or misapplication of the property: Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285 at [54]-[60] and especially [55]. The banks attack both the second and third elements. The second element of course depends on whether there was a trust over the loaned shares in the first place. The applicant’s claim for the existence of a trust is founded in various causes of action: (1) an equity of redemption based on the allegation that the investors mortgaged rather than sold their securities to Opes; (2) a claim for rescission based on the argument that the investors entered into the securities lending agreements with Opes under the unilateral mistake that they were mortgaging rather than selling the shares; (3) breach of express trust, on the basis that Opes made representations reflecting an intent by Opes to hold the shares on trust for the investors; (4) estoppel, based on the allegation that Opes made representations that the investors remained the beneficial owners of the shares and the investors relied on those representations to their detriment; and (5) breach of fiduciary duty, based on the allegation that Opes had a conflict of interest arising from its on-lending relationship with the banks (pursuant to which it wished to place the investors’ shares in jeopardy) giving rise to a fiduciary duty to disclose to the investors the true nature of the share lending transaction.

At paragraph 27 Finkelstein J states that in pleading knowledge for the purpose of a Barnes v Addy claim it is sufficient to:

to plead and prove knowledge of facts that would put an honest and reasonable person on notice (but not merely inquiry) of a real and not remote risk that the transfer was in breach of trust or fiduciary duty or involved the misapplication of trust property..

As to what constitutes knowledge Finkelstein J said, at paragraph 28:

..In my view, it would be simpler to adopt a uniform approach to Barnes v Addy scienter based on the standard categories of mens rea (in descending order): (1) intent; (2) actual knowledge; (3) recklessness (which I would define in these circumstances as a conscious disregard of a substantial and unjustifiable risk that the property was subject to a trust and was received pursuant to a breach of trust or of fiduciary duty or a misapplication of trust property); (4) negligence (here, a failure to perceive a substantial and unjustifiable risk that the property was so received); and (5) strict liability. Categories (1) and (2) are self-explanatory and clearly sufficient to establish liability; it is also now clear, after Say-Dee, that strict liability (ie an unconscionability or unjust enrichment approach) is not applicable. There is a bit more difficulty with categories (3) and (4), but I think it is also safe to say that negligence is out. In Say-Dee, the High Court suggested (at [175]-[178]) that the fifth Baden category (knowledge of facts sufficient to put an honest and reasonable person on inquiry) would not suffice to establish Barnes v Addy liability in Australia. To my mind, the rejection of a duty of inquiry is effectively the rejection of a negligence standard.

In this case the applicants did not plead facts giving rise to an inference of recklessness in the Barnes v Addy claims.

I am forever grateful to read that his Honour describes the law of constructive trusts as being in a mess!  I have 5 turgid tomes on equity evidencing that fact.

At paragraph 11 Buchanan summarised the three key principles in awarding costs:

11 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

• Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

• Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

• A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties’ costs of them.  In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

The principle in awarding costs is not to punish but compensatory.  The rationale is that the successful applicant/plaintiff had to incur costs in bringing an action because of the respondent’s/defendant’s conduct.  Similarly if the respondent/defendant wins the rationale is that he/she/it had to defend an action which should not have been brought. 

Buchanan highlighted but did not endorse the comments of Finkelstein and Gordon JJ in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) where they critisised the ordinary rule and called for a broader discretion generally when a party is successful overall but not on all the issues it pleads. Their Honours called for some form of apportionment in those situations. 

This is a live issue for practitioners where the facts are complex, particularly when deciding how to formulate the clients case .  There is a strong temptation to plead as many causes of action the facts support.  During the interlocutory process, particularly after discovery,  the focus often changes.  Then at trial the evidence will push a case in unexpected directions.  That often means counsel either not pressing a cause of action already pleaded or abandoning it entirely.   Sometimes the winning issue might be a point pleaded, with leave, during the running of a trial itself.  This is an issue that increasingly worries the bench if recent judgments on pleadings and are any guide (eg see my comment on  Hydedale)  

Buchanan J found that the departure from the “ordinary rule” on costs is the exception. He also found the exception applied here because the applicant failed on the case it brought to trial.  The oral and written submissions were focused on that case concept.  The respondent’s case was based on that premise.  This matter is unusual because the case wasn’t ultimately conducted on the pleadings.  The applicant succeeded because of concessions made by the respondent on the second day of the trial which entitled the applicant to press points not previously considered or forshadowed.  It happens. 

The court awarded the applicant 50% of its costs, primarily on the basis, as Buchanan said at 13:

PRL is entitled to some compensation for its costs as a result of ultimately succeeding in its application. To put it another way, applying the test in Vadarlis at [12] there can be no doubt that “the respondent’s conduct made it necessary for the applicant to bring the proceedings”.

Pleading multiple causes of action may be warranted on the facts.  Not to do so has its dangers, such as if holds against the applicant and then helpfully suggests that another cause of action would have been appropriate. At minimum that s embarrassing (but often worse).  But with courts increasingly critical of parties pressing a multitude of claims in an action (to cover every eventuality) with the consequent longer trial and greater costs practitioners have to carefully weigh up their options before finalising their claims.

The article

The article in a weekend piece was:

“A PEEK AT THE DIARY OF …..

Sir Elton John

What a few days it’s been. First I sang Happy Birthday to my dear, dear friend Nelson Mandela – I like to think I’m one of the few people privileged enough to call him Madiba – at a party specially organised to provide white celebrities with a chance to be photographed cuddling him, wearing that patronisingly awestruck smile they all have. It says: “I love you, you adorable, apartheid-fighting teddy bear.”

The next night I welcomed the exact same crowd to my place for my annual White Tie & Tiaras ball. Lulu, Kelly Osbourne, Agyness Deyn, Richard Desmond, Liz Hurley, Bill Clinton – I met most of them 10 minutes ago, but we have something very special and magical in common: we’re all members of the entertainment industry. You can’t manufacture a connection like that.

Naturally, everyone could afford just to hand over the money if they gave that much of a toss about Aids research – as could the sponsors. But we like to give guests a preposterously lavish evening, because they’re the kind of people who wouldn’t turn up for anything less. They fork out small fortunes for new dresses and so on, the sponsors blow hundreds of thousands on creating what convention demands we call a “magical world”, and everyone wears immensely smug “My diamonds are by Chopard” grins in the newspapers and OK. Once we’ve subtracted all these costs, the leftovers go to my foundation. I call this care-o-nomics. As seen by Marina Hyde“

The allegations

The court helpfully extracts the meanings alleged, at paragraph 9, of the article:

“7. In their natural and ordinary meaning the words complained of meant and were understood to mean that the Claimant’s commitment to EJAF and its aims and objectives is so insincere that he

1) hosts the White Tie & Tiara Ball knowing that once the costs of the Ball have been covered only the small proportion of the money raised which is left over is available for EJAF to distribute to good causes and;

2) uses the White Tie & Tiara Ball as an occasion for meeting celebrities and/or self promotion rather than for raising money for EJAF and the good causes it supports.

8. By way of innuendo the words complained of meant and were understood to mean that the commitment of the Claimant to the stated aims and objectives of EJAF is so insincere that he dishonestly or falsely claims that all the money raised by the White Tie & Tiara Ball goes to EJAF whereas the true position is that once the costs of the Ball have been covered only the small proportion of the money raised by the Ball which is left over is available for EJAF to distribute to good causes.

PARTICULARS OF INNUENDO

1) The programme for the 10^th White Tie & Tiara Ball carried an introduction from the Claimant which stated that “…every penny raised goes to [EJAF].”

2) In the premises, the said facts and matters would have been known to a substantial but unquantifiable number of readers of the words complained of and these readers would have understood the same to bear the meaning set out at paragraph 8 above.”

The Defence

The Guardian denied the words meant or could mean what was alleged. It also pleaded, in the alternative, fair comment:

“11. If and insofar as the words complained of bore the meaning that the Claimant’s conduct in arranging a lavish celebrity ball was distasteful and wasteful, because all of the money spent on the ball should have been given to EJAF, they were fair comment on a matter of public interest. The matter of public interest was the Claimant’s method of fundraising for his charity.”

To defeat the fair comment complaint Sir Elton pleaded malice.

The Decision on meaning….

When embarking on the exercise of determining whether words complained of are capable of bearing the meanings attributed to them the context is an important starting point. As the court pithily commented, at paragraph 19:

the meaning of words, in law as in life, depends upon their context.

The factors the court considered were:

• the article was written in the Weekend Section of the paper. It was not, nor could it be expected to be, regarded as a hard news piece.
• no reader could regard the piece as having been written by Sir Elton;
• it was either a humorous piece or at least an attempt at humour;
• the article is an exercise in irony.

Irony can be defamatory. As the court said, at paragraph 24 & 25:

Irony is a figure of speech in which the intended meaning is the opposite of that expressed by the words used. The words complained of are obviously words written by the journalist, who has attributed them to the Claimant as a literary device. The attribution is literally false, but no reasonable reader could be misled by it. ….

and

Irony is not always a form of sarcasm or ridicule, although it is often used in that way. It is the Defendant’s case that that is what it is in the present case. The Claimant accepts that the words complained of are obviously an attempt at humour, as well as being a snide attack on the Claimant. Nevertheless, his case is also that the reasonable reader could understand the words complained of to be statements of fact about the Claimant. As he puts it, the device is to take factual matters and put words into the Claimant’s mouth to reveal his true attitude.

The court found that the words complained of could not sustain the serious allegation made against the Guardian. The court accepted the Defendant’s submission that it was a form of teasing. It also stated, returning to the theme of context, that “…If that was the allegation being made, a reasonable reader would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news.”

It is a useful decision in considering the issue of fair comment involving a light weekend piece.

• Father Frank Brennan SJ AO (Chair)
• Mick Palmer AO APM
• Mary Kostakidis, and
• Tammy Williams

Mr McClelland said the consultation implements another Rudd Government election commitment and provides an opportunity for all Australians to share their views on how human rights and responsibilities can be better recognised and protected.

 “The consultation does not presuppose any outcome, although the Government has made it clear that any proposal must preserve the sovereignty of Parliament. We want to encourage broad community debate on a range of human rights issues, not only on whether a Charter or Bill of Rights is necessary.”

Cutting through the waffle, it is a lightweight committee filled with do gooders but with very little in the way of analytical skills or intellectual muscle.    A transcript of a press conference by the Attorney General was released about an hour and a half ago.  Why release this meandering stream of conscience is beyond me.  You judge:

ROBERT MCCLELLAND: Today I have the great honour of announcing a National Human Rights consultation. It’s going to be chaired by Father Frank Brennan, also assisted by Mick Palmer, Mary Kostakidis and Tammy Williams, all distinguished Australians, all bringing a variety of perspectives and I’m sure they will perform an outstanding role in canvassing the views of the Australian people on those three issues.

                                           What fundamental rights and freedoms do Australians regard as requiring protection? Secondly, are those fundamental rights and freedoms sufficiently protected, and thirdly, should we be doing something to further promote and protect those fundamental rights and freedoms?

                                           The Government has no pre-conceived views, and indeed, I think it’s fair to say that the chair, Father Frank Brennan has no pre-conceived views on the matter. He has indicated that he is very much a fence sitter on some of the important aspects including, in particular, what has been an issue of controversy, and that is whether or not we recommend or shouldn’t recommend that consideration of a bill or a charter of rights.

                                           The other members of the committee bring their own skills - obviously each is highly competent. Each will have their own views on varying aspects, but their main role is to engage in a dialogue with the Australian communities. That dialogue, in short, we believe, will not only canvas the views of the Australian community, but will also have a degree of a positive effect in terms of just a dialogue with the Australian community, as to the significance of fundamental rights and freedom, how they are, I believe, part and parcel of the fabric of our community, and should we be doing more to enhance, promote and protect those fundamental rights and freedoms. But, I’m very happy to answer any questions that people might have on the process or the committee.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: For that very reason, [indistinct] not only for that very reason, but the fact that he has declared himself as a fence sitter was a most attractive, a most attractive aspect aside from his tremendous service to our nation. He has a genuine interest and is a person who genuinely has been promoting throughout his life the fundamental rights of those in the community, particularly Indigenous Australians, but the fact that he has no pre-conceived views, I think he is particularly significant in his role as chairman.

QUESTION:                        [Inaudible question].

ROBERT MCCLELLAND: Well again, the Government has no pre-conceived views on it. I should say that the committee itself will be proposing to the Government, various options. They will be [indistinct], in so proposing various options, they will be outlining strengths and weaknesses of those options, but at the end of the day, it’s going to be very much up to the Government as to what view we take in terms of the protection of human rights.

                                           Again, I’ve been at pains to point out that the Government has no pre-conceived views on the outcome that will flow from the process.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: The issue is of controversy. I mean, just picking up the papers today, the issue as to whether a bill or a charter of rights would shift the focus of political power to the  judiciary as opposed to the parliament. This is always an issue of controversy.

                                           I should say in that respect that the Government has made clear that we would not favour an outcome that resulted in the loss of sovereignty for the parliament to determine these issues of crucial national policy making. But that aside, we’ve got very much an open mind as to what the outcome of this process will be.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: I don’t want to get into the pros and cons of a charter, but there are various models around the world. There are a range of options, I suppose, you could be looking at, you could look at, and the committee will look at, obviously their own range of options, but I would think they will look at the issue of whether there should be a charter or bill of rights. They will look at the issue as to whether we have sufficient scrutiny of our legislation before it is passed by the parliament. It’s been suggested, for instance, that one view may well be along the lines of the Treaties Committee of the Federal Parliament that currently looks at provisions of treaties and indeed canvasses the views of Australians as to whether < ?xml:namespace prefix =”" st1 ns =”" “urn:schemas-microsoft-com:office:smarttags” />Australia should ratify important treaties before they’re adopted by the parliament. That has been suggested as one option, an enhanced scrutiny of bills process.

                                           Other options include - should there be provisions in the Acts Interpretation Act or some other Act that requires courts to have a regard for fundamental rights when they’re construing the provisions of legislation or regulations. That’s also an issue for debate. Another issue for debate is whether our anti-discrimination acts are solid - whether there is more to be done to unify those. Other issues will be, is enough being done by governments at all levels to engage Australians in the concepts of human rights and just what does this mean in terms of a cohesive society?

                                           These are all important issues.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: Yeah, I might give a long-winded introduction, because it’s something I feel strongly about. We’re celebrating today, the 60th anniversary of the Universal Declaration of Human Rights. That was entered into by very hard men, so - very few women on the international political stage at that time. They were very hard men, but as a result of the traumas of World War II they recognised that the absence of respect or human rights was one of the factors that led to the conflagration of two world wars.

 

 

 

 

 

                                           These were hard people. These weren’t pacifists. These had been men leading countries at war, they knew protecting and promoting human rights was fundamental to world peace. I think those principles, while we don’t confront the challenge of totalitarianism these days, I think the principles underlying the bill of rights is just as important.

 

 

  In terms of the threat of radical extremism and radicalism, I think the principles of the Universal Declaration of Human Rights are just as relevant today. All research suggests that one of the most potent antidotes to radicalisation or the development of violent extremism is promotion of religious tolerance and fundamental human rights. And I think these principles are just as relevant to protecting people in this day and age as they were 60 years ago.

                                           In terms of the immediate issue, clearly the issues of development and comments and so forth are a matter for individual agencies and I won’t get into the details. But obviously the Government and I think the Australian people, and without judging these comments have been made or not, but certainly I can say that the comments that have been attributed to the individual, both the Government and the Australian people would find offensive and completely contrary to the ideals of the Universal Declaration of Human Rights that we celebrate today some 60 years after it was adopted.

QUESTION:                        [Indistinct] before any public funds going [indistinct]?

ROBERT MCCLELLAND: I can’t comment on the terms of the details of applications and so forth, but the goal of the Government is to encourage respective religious tolerance and the ideals of the Universal Declaration of Human Rights. And we will not be putting any resources into any organisations that do other than promote social cohesion.

QUESTION:                        [Indistinct] human rights [indistinct] in Australia?

ROBERT MCCLELLAND: I think we are entitled to pride ourselves on the fact that for the best part of 60 years [indistinct] we have been a leading proponent of human rights around the world. And I think fundamentally we pride ourselves on being a country based on the principle of a fair go.

                                           But equally I think there are areas where we could do better. I think the fact that we are seeing just completely outrageously unacceptable levels - no level of violence against and children is acceptable. But what we’re seeing is outrageous and unacceptable. We’re seeing in our region, again, unacceptable treatment of women, whether it’s education, whether it’s social opportunity, employment opportunities, deaths during childbirth, in the worst case scenarios human trafficking. Much more we can do in our region.

                                           In the area of disabilities there’s much more we could be doing. In the area of the treatment and the living standards of Indigenous Australians, clearly there’s much, much more we could have been doing and should be doing. And I think all these issues are issues that legitimately should be part of the dialogue.

QUESTION:                        A bill or charter, how would you change that situation [indistinct]?

ROBERT MCCLELLAND: Well, again, without getting into the merits of the particular issue, I think the dialogue should be around these things - areas where we can, should and need to do better. Again, a bill or charter may be one recommendation. Equally, a scrutiny of bills process may be another. A range of issues will arise in that discussion but I specifically want to avoid commenting on the pros and cons of any of those options prior to the discussion occurring.

QUESTION:                        What about offshore processing the [indistinct] critical of what they describe as a [indistinct] on Christmas Island.

ROBERT MCCLELLAND: Chris Evans, who’s the Minister for Immigration - giving him a plug - I think he’s one of the really solid and unsung performers of the Government. I must say that one of the first acts he did as a minister was to dismantle the Pacific Solution.

                                           The Pacific Solution cost about $310 million on the basis that people, including men, women and children, were detained on Manus and Nauru - for an average period of 500 days.  It cost in the order of $189,000 per person for the Pacific Solution. That was dismantled by the Government. We have maintained however the excision of islands, and as part of that detention process we have maintained the facilities on Christmas Island, and that detention facility still remains operational and indeed any person seeking unauthorised entry to Australia from an unauthorised boat arrival will be taken to Christmas Island.

QUESTION:                        [Indistinct], you’ve talked about in the bill [indistinct] that it’s important to obtaining parliamentary oversight [indistinct]. What form should that take?

ROBERT MCCLELLAND: Okay, again, I’ve got to leave that very much to the committee. I don’t want to…

QUESTION:                        Why is that important, because you talked about it before in the past?

ROBERT MCCLELLAND: The Government’s philosophy is that the parliament is democratically elected by the people of Australia to obviously introduce their policies and their programs consistent with their electoral platforms and commitments, and we don’t want to see the centre of gravity shift from the democratically elected parliament to, as competent as they invariably are, to the judiciary, where they don’t face that same accountability to the parliament.

                                           Obviously in applying, construing, interpreting legislation they’ll have - they’ve have regard to, important provisions. How that’s done I’ll leave to the committee.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: Again, these matters, as the extent to which the committee believes the judiciary should have a role in the oversight of fundamental human rights and freedoms, is something that they’ll obviously consider.

The immediate media response has been fairly predictable, from both ends of the spectrum.  Steven Freeland’s Our fundamental human rights can’t be taken for granted is a soft sort of endorsement of some form of instrument.  Janet Albrechtson has rewarmed her earlier offerings on the evils of activist judges and bills of rights and offered up Keep power with the people.  Her arguments start at spurious and race towards shrill fueled with a tankful of assertions.  It is worth a view:  

ANALYSING calls for so-called reforms should always start with a few golden rules. Follow the money. And follow the power. This week both paths lead you straight to the legal profession and to the heartland of politically driven activists. Like pigs sniffing for truffles, lawyers can smell the enticing waft of money and power in the air as they push open new legal industries. For the activists, it’s about influence as they seek to move from the irrelevant fringe of political life to the centre of the action.

Ah, the conspiracy theory.  There is an organised movement of greedy, grasping solicitors and barristers plotting and scheming to open up the chest of gold coins that will come with rights based litigation.  Perhaps an explanation might be that lawyers are often the activists on this issue because they see the inadequacy of the law as it now stands protecting their rights.

To coincide with the 60th anniversary of the Universal Declaration of Human Rights, today the federal Government will announce a process to introduce a legislative charter of rights. Lawyers will be smiling. They will profit the most from the inevitable rights litigation unleashed by a charter. Inevitable because a charter is deliberately drafted in such vague language that only litigation will determine the ambit of the rights.

The experience in Victoria and the ACT is that the Charter of Rights will drive most counsel to the poor house if they chose to specialise in this area.  I am sure there are a few lawyers who have pocketed a shekel or two but the scope of action is fairly limited.  Consider how weak the Charters are.  There is a massive gap between the Bill of Rights in the USA or the Human Rights Act in the UK and the insipid legislation in Victoria and ACT.  The legislatures of Victoria and ACT have little to fear from activist judges or rapacious on this score.

Hence the Law Council of Australia and just about every law group across the nation have been at the forefront of pushing for a charter.

 

And……………? ????? Perhaps the Law Council of Australia and other representative groups are motivated in rights rather than as a guild seeking out further work.   A bit of flesh on the bones of this argument wouldn’t go astray.

  Not just a charter of rights that duplicates the International Covenant on Civil and Political Rights but also the much more ambitious International Covenant on Economic, Social and Cultural Rights. More on that in a moment.

Talk about putting words in the mouth of the evil activists.  Mmmmmm……More on that in a mo……

Not far behind the lawyers are equally delighted political judges who relish the chance of having greater power to call the shots about these rights. And third in the queue are the happy activists, finally able to secure their political agenda via the courts instead of having to battle with tiresome old democratic processes in parliament. Political because delineating the reach of so-called rights is, in essence, a political, not legal, issue.

Here is where it gets all very weird.  Janet believes that Kirby J is just the tip of the iceberg of rampant judicial activism.  She perhaps should have a look at the decisions coming out of the appellate jurisdictions of Australia in the last decade, starting with the High Court.  Wild movements and activist law making from the bench is an anathema to the bench.  Pushing the envelope on contractual and tortious issues is at best a slow frustrating process, as it should be in the normal course (until the justice requires a real tectonic shift).  What I never understand about Albrechtson, the lawyer, is her ignorance of how common law operates.  Change is gradual but constant.  She seems to think the Australian legal system has swung to the the civil code, based soley on legislation.

Take a look at the Covenant on Economic, Social and Cultural Rights. Its motherhood statements are meaningful only when we decide on the detail. But who gets to decide the exact meaning of “safe and healthy working conditions” or the “rest, leisure and reasonable limitation on working hours” as mandated in the covenant? We, the people, as part of the cut and thrust of democracy? Or a handful of unaccountable judges who think they know better than us?  

How is this at all relevant to anything? What is the gossimer thread that links a Charter of Rights to the Covenant.  A Charter or a Bill is the sum of its provisons.  That a waffly Covenant is full of motherhood statements is hardly anything new.  But how does that relate to the law of the land.  

The charter being proposed will allow judges to second-guess the decisions of elected politicians and only a brave politician will reject a judge’s determination once it is draped in the deceptive language of protecting a “human right”.

There are plenty enough politcians who are more than happy to have a whack at judges.  The whole law and order debate is an oblique attack on the bench’s approach to sentencing.  The conservative side of the aisle ran through the Thesouras in giving the High Court a thumping over the Mabo and Wi k decisions.   

 

 There is no judical lobby pushing for a Charter of Rights.  There are a few who call for it, namely Kirby.   Albrechtson drags Kirby to the fore as the living and breathing .   

Make no mistake. The push for a charter depends on a deceitful process aimed at duping the people. Academic and charter king George Williams, in his best comedy skit, says: “Any Australian who wants to should have a say.” Yet Williams has presided over so-called independent consultative committees that decided from the outset that Australia needed a charter. That is not consultation. That is the first step of the charter charade, where activists can do an end run around democracy.

The US has a Bill of Rights.  Does anyone suggest that it is an end run around democracy.  There is a continual friction betwen the Supreme Court and the Congress., particularly when the court has an activist bent, but that has been factored in.  In reality the Court has had to carry issues which the legislature is more than happy to give up..  

But then lawyers and activists have never had much time for democracy, and nothing thrills them more than indulging their disdain for democratic processes while locating the next gravy train to fill their pockets.

You have to be joking Janet.  How may lawyers are in Parliament and how many are involved in political parties.  This is just a typical assertion and groteseque stereotype.  Even if it is just an opinion piece a little bit of supporting data would go  a long way to adding some credence to the argument.  

Here’s the next bonanza. If you thought climate change was solely an issue for scientists, religious-minded green activists and governments, think again. The legal profession is busily working out how best to get its snout in this trough, too.

There is a tiny proportion of the Bar and the profession generally that has any inclination to litigate in this area.  The bleak (or not so bleak) reality is that Human Rights litigation is poorly paid for the practitioners.  The bench is not particularly generous.    

Late last month Stephen Hockman QC, a former chairman of the Bar Council in Britain, proposed an international court on the environment to mirror the International Court of Justice in The Hague. This new international court would enforce a “convention on the right to a healthy environment” and allow individuals and non-governmental organisations to protest against environmental injustices. “The time is now ripe to set this up and get it going,” Hockman said. British Prime Minister Gordon Brown is considering it. Actor Judi Dench loves the idea. Well, that settles it.

Hockman is full of reform ideas. Last week he suggested that sharia law be written into English law. Perhaps we could intermix his innovative ideas. In the spirit of mutaween, the Arab world’s religious police who enforce sharia law, the new international carbon police - the greenween, perhaps - can impose a sharia solution to reducing the evil carbon footprint: cut off the feet of climate change sinners.

As tempting as it is to kid about Hockman’s reforms, he is no fringe dweller. The International Bar Association has also jumped on the global warming bandwagon as a new legal growth industry.

How is this the semi loopy waffling (assuming of course Albrechtson’s representations are accurate) by a UK QC is at all relevant to this debate?  I doubt he will have any impact on the debate beyond that of the right’s whipping boy. The International Bar Association is a glorified letterhead who will not cut through in the debate.  Assume it does dip its toe in the water, so what. 

So, too, has barrister Peter King, the former member for Wentworth who now has some time on his hands. Addressing the NSW Bar Association last week, he encouraged lawyers to get more involved in a debate about rights in climate change law. Predictably, the activists love the idea of a new environmental human right enforced by an international court.

If Peter King is the beach head of the . 

Like a charter of rights, international law has become the lawyers’ and activists’ version of Second Life, that weird cyber space game where you get to live out your grandest fantasies. International law allows them to operate in a parallel universe, unfettered by boring constraints of democracy and national sovereignty, dictating to nation-states how they should be governed. It’s done under the grand auspices of law. But it is really about power and influence of the worst kind. A group of globe-trotting, self-appointed guardians of morality get to hijack the domestic political agenda of nation-states.

Whether we are talking about a charter of rights or an international court to enforce some newly concocted right to a clean environment, the critical issue remains the same. Who should determine the ambit of these political issues so seductively couched as rights? One need only watch the Rudd Government grapple with climate change to realise this is a political, not a legal, issue.

Even a cursory look at the looming charter rights reveals these are unsettled political questions, not legal rights set in stone. If we are unhappy with how our Government responds to these issues, we can respond at the ballot box. That is the power of the people. But lawyers and activists prefer to vest power in a smaller group of people: themselves.