Peter A Clarke

The Sydney Morning Herald and the West Australian cover a case of a Perth man being charged with using a nanny cam to video his female flatmate. 

The story follows a familiar theme, camera trained on area where females will undress and connected to VCR or digital recording device in a remote or adjacent location.  In the workplace it is often sleazy boss setting up pin hole camera in the toilets.  Here it is sleazy flate mate putting camera in bedroom.

It is an offence in all states to use such surveillance devices to record a private activity.  And so there should be.  But why isn’t there an invasion of privacy.  There isn’t any common law right yet.  Why not.  Isn’t there any expectation of privacy?  It is just ridiculous that the law has not made the jump to protect and enforce privacy rights, as is the case in New Zealand, the United Kingdom and the United States. 

I am one of the diminishing band who think Tony Abbott gets a bad rap from the press and the punters.  Distilling last years coverage he was the “Mad Monk” who went off the reservation (to mix metaphors).  I quite like him because he actually thinks about issues and is not afraid to put his views out there.  It would be better if he developed the charm and warmth that John Button had when being candid.  A few less sharp edges would go a long way. But he enjoys that jesuitical aesthetic which journalists see as zealatory. 

Yesterday’s article in the OZ Even the rich need a helping hand (almost certainly not his choice of title – a smart arse sub editor no doubt) is enough to kick him off the stoop where the angels gather and muck about with the rest of the compromisers and rent seekers.  The party professes to get back to basics.  Not a bad thing  after 5 or so years of fiscal drift and compromise.  It then looks a bit odd for one of its senior players not only to support the policy of throwing millions of  non means tested payments to familys and interest groups but to embrace it.  It was one of the worst aspects of the governments pretty ordinary fiscal policy. 

Abbott’s arguments mark him out as an old fashioned Tory of the MacMillan mode or an Eisenhower Republican.  There is no problem that a vat of cash can’t fix.  Abbott’s conservatism has a special glaze, Catholic socialism.  Bob Santamaria must be looking on with pride.  Ugggh!!!!

Some of the justifications for keeping this largesse flowing into the leafy suburbs of our capital cities:

It’s easy enough to rail against benefits, such as a child care rebate or Family Tax Benefit Part B, being paid to millionaires or their spouses. These benefits, though, aren’t income supplements so much as a recognition of the costs associated with being a parent. Of course, low-income working mums deserve greater government support, and receive it, but aren’t all working women entitled to some support with child care? Low-income families deserve greater government support and receive it, but don’t all families deserve some official acknowledgment of the cost of rearing children?

You posed the Quesition Tone so lets answer it.  Government support and policy is not about acknowledging that it costs money to raise a child.  Government provides support when the individuals can’t support themselves.  The phrase safety net comes to mind.  It is not a merit badge wrapped in $100 notes.

The essential test of a welfare system is whether it helps to build a fair society. Taken as a whole, do government payments ensure that no one misses out on the chance of a reasonable life?

Nu uh!  Again that safety net analogy.  If you are rich there is a fair chance that you are going to have a reasonable life.  And……

Government benefits were increased, especially for families with children; taper rates were reduced so that more families benefited; and budget surpluses funded one-off payments for especially needy groups such as carers and pensioners.

One off payments were an electoral fiddle.  What is the benefit of a one off payment?  I mean was there one year where things were hideous as compared to others of wine and roses. 

The question for the critics of so-called middle-class welfare is which specific benefit would they withdraw: the deferred pension plan that encourages people to stay in the workforce; the senior health card that goes to middle income, self-funded retirees; the lower taper rates that reduce low-income earners’ disincentive to work; the mega-surplus bonuses to carers, pensioners and seniors; or the baby bonus that seems to be associated with a significant increase in the fertility rate?

Not surprising but disappointing to see Abbott pull the time worn “pose the question with the impossible answer.”  He invites us to be the grinch.  Hell, I’ll oblige:

• Means test the baby bonus (if you want to have one, which I don’t). 
• remove the health card to middle income self funded retirees. Again, means testing is not a dirty word.
• Mega surpluses are not designed for churning.  Why not put the money towards, I dunno, infrastructure if  you don’t want to have a real change to the tax system.

When conducting its review the Liberal Party should ask the question of every policy with “Why is this Government’s role?”  That should clear the wooly headed thinking that afflicts Abbott at the moment.

French women not only don’t get fat they fade away.   First the book now the law!  France has always been fond of social control legislation.  Strict privacy and defamation laws and laws protecting cultural amenities right down to ensuring irregular verbs stayed a regular part of the lingua franca.

Now another unenforceable law is about to hit the books.  Judges are to enforce laws which ban inducement of excessive thinnes on blogs, websites and ads.  Never a problem I have been inidced to have.  What will be too thin?  Perhaps the honourable beaks will have a body mass index, where anybody a size above Kate Moss is overweight and many end up being obese, when checking out blogs and ads. 

Let the body image police loose.  It has got to be a lot easier than looking parents in the eye and say “So what are you doing you dopey gits” (or the French equivalent). 

The LA Times article is quite detailed but wrong in part.  It says:

In 2006 the international fashion world was shaken by the deaths of two models, one Uruguayan, the other Brazilian. They had literally starved themselves to death, the Uruguayan by living on a diet of lettuce and soda, the Brazilian by eating only apples and tomatoes for three months.
The Uruguayan model died of a heredity heart condition. 

Yet another snub for Freedom of Speech, even if it is stupid. 

It was said that Franklin Delano Roosevelt had a second rate mind but a first rate personality while Richard Nixon had a first rate mind and a second rate personality.  No argument who was the better President and who left the more enduring mark on the nation.  Malcolm Fraser has a second rate mind and a third rate personality.  His latest scribblings in today’s Australian highlight his bankrupt legacy and his penchant for weasle words.  Better that he fessed up and said he got it wrong from the get go.  If he said “Mugabe was bad, I didn’t see it.”  Then he could have said “…and I left a weak legacy as a Prime Minister and left it to the ALP to make the changes that the country desperately needed.” 

His article is a marvel in doublespeak, evasion and assertion.  It does give an insight into the shallowness of his reasoning and his one constant, rising to protect his ever diminishing modest legacy.

 FACT, mythology and vain hope are mixed together in Hal Colebatch’s article about Robert Mugabe. Certainly Mugabe should have gone, and long ago, but Colebatch has a short memory of history.

• As is Fraser’s way he doesn’t identify what he claims is myth and vain hope. 

A veteran Australian diplomat was leading a delegation of observers during the election that Mugabe’s party won.

• And who might that be Malcolm.  Easy to referred to an unnamed source….

He would ask people in the villages about the recent past.

• Which village?  And the old “he would” do this and do that.  Witnesses who say “I would have” and “could have” invite a torrid cross examination.  There is plenty to cross examine Fraser over. 

How difficult had it been? Was there anyone who would help you when you needed it? Would the government people help you? No. What about Bishop Abel Muzorewa; were his people any help? Don’t be foolish. Was there anyone you could turn to for help? The local Mugabe man.

• What homespun drivel which can not be substantiated or tested.  Unnamed diplomats passing on second hand about unnamed persons from an unidentified village.  Really, really credible.

That diplomat predicted a Mugabe victory in an election, largely organised and sponsored by the British and Ian Smith’s regime.

• Again with the eponymous diplomat.  And so what if he predicted victory.  Should anyone have backed Mugabe from the get go.

The diplomat’s questioning gave a simple answer as to why. Any effort to install Muzorewa in power would have involved Margaret Thatcher taking her army out of Northern Ireland and placing it in what became Zimbabwe.

• And his evidence is what?  An assertion backed up by nothing.  Here is a thought.  What about Joshua Nkomo. 

If you are not prepared to impose a solution, which she was not, you have to have a solution the warring parties are prepared to accept. It was that simple argument that led to Thatcher’s change of mind and to her acceptance that there needed to be change in Zimbabwe.

• Again with the “only one alternative.”  What nonsense.  Mugabe came out of the bush with blood on his hands and up to his elbows.

Nothing I say should be taken as condoning any of the excesses of a most terrible regime but, for those who have asked in recent years, I have spoken my mind quite plainly.

• He speaks plainly in two stages.  Says the first 10 years were good and then says it was awful.  The reality was that Mugabe showed his teeth from early on both with Nkomo and dissenters in the countryside.

Years ago there were significant disturbances in Harare. CARE had then, and still has, an office operating in the country. The director of the office rang me to make sure that I did not say anything publicly about the disturbances in Zimbabwe because he feared it would put at risk people working in CARE in remote parts of the country. It was advice I accepted at the time.

• Who in Care said this?  Again with unnamed types.  Gutless writing.  Now Malcolm is suffering in silence for the sake of others.  Yeah right!

Because the past 15 years have been so increasingly bad, people forget that initially Mugabe started reasonably well.

• That is just plain wrong.  Mugabe killed at least 10,000 in the mid 80s, 5 or so years into his tenure.  He sent a North Korean trained brigade into the bush and killed dissenters. 

While his first wife, Sally, a Ghanaian, was alive,

• Here is the rationale Fraser trots out.  Sally was the steadying influence so while she was around the government had the “good” Mugabe (the one Fraser dealt with)

the government was much more moderate.

• Try telling that to the victims of the 80s.

He sat down and discussed reconciliation with Smith.

Given the past relationship between Smith and Mugabe, I doubt if I would have been able to do that.

• Relevance?

When Mugabe was in jail, Sally Mugabe was in England and their only child, a boy aged five or six, was very ill. An English bishop said he would play hostage for Mugabe in jail in what was then Salisbury if Smith would allow Mugabe to visit Sally and give support to her because of the severity of the child’s illness.

Smith’s answer was a blunt no: it was a communist trick, he would have none of it. Soon after, the bishop repeated the offer, but with a difference. He would be hostage for Mugabe in jail if Smith would allow Mugabe to go to England to be with Sally at the boy’s funeral. Smith’s response was as blunt as before: he had already said that it was a communist trick. The fact the child was dead did not alter that.

How many fathers could sit and talk reconciliation with such a man?

• What a diversion.  From this Mugabe is raised up and Smith is demonised.  But it misses the point.  Mugabe was still an autocrat through this time.

It is easy to forget such instances.

• If it isn’t mentioned it is because it is hardly relevant.

It is easy to forget the first eight or 10 years because of the deprivation, the stupidity, the brutality, the injustice, almost the rape of Zimbabwe that has occurred during recent times.

Through my life I recognise sometimes that however much you want to change a person, if they are not changeable then it won’t happen.

There is an inflexibility, a determination that is beyond reach. The Commonwealth tried on one or two occasions, but the architects of those trials were Tony Blair and John Howard. Howard led the mission on Zimbabwe. The Commonwealth showed a grievous error: a white face was not going to work, it was not going to be successful, it was going to open the door to Mugabe’s vitriol. From the outset the Commonwealth should have taken a different tack.

• And Fraser did what at the time.  Very good to snipe at his bete noire Howard (as he does here) but what did he say or write about it.  I bet precious little.

When Olusegun Obasanjo was president of Nigeria, he certainly wanted to act in relation to Mugabe, but anything he did was not going to be successful unless he had the full support of South Africa and Thabo Mbeki. Mbeki was never prepared to give that support and still is not prepared to do what he ought to do.

All the countries of southern Africa suffer greatly because of Zimbabwe. There are three million Zimbabwean refugees in South Africa alone, exacerbating unemployment, housing and poverty, but also setting an extraordinarily bad example in terms of land policy and other policies that make it even harder for South Africa to maintain stability.

No country has more to gain from a well-governed Zimbabwe than South Africa, so why has Mbeki refused to act? Why was he unwilling to support Obasanjo? Together the two would have been supported by almost all the countries of southern Africa in seeking to change Mugabe or getting him to go. Together the two would have been a powerful voice and neither could have been accused of having a colonial history.

No white face has been capable of changing Mugabe for many years, if ever. Why the quality of his Government changed so dramatically after the death of Sally Mugabe is an open question.

• I prefer Fraser when he just dissembles rather than moves in to pop psychology.  It is even worse when he doesn’t even do pop psychology properly.

The central mistake that Colebatch makes is failing to recognise that to keep Muzorewa, would have involved substantial British forces being sent to Zimbabwe, forces Britain did not have.

• What is his evidence for this?  It is an assertion pure and simple based on what he writes.

Ireland was on the boil at the time and no British government would have been prepared to send forces to Zimbabwe anyway.

• And he knows this how? 

Almost certainly it would have prolonged a civil war in Rhodesia that had already claimed more than 25,000 lives.

• Again another assertion and no evidence.

Mugabe was installed as prime minister in Zimbabwe only after a protracted negotiated settlement that was applauded by the entire global community and a democratic process that was universally judged as free and fair.

• He was known to be autocratic and had himself admitted to his communist adherence.  Hell, he calls his cabinet the Politburo. There were purges of the liberation movement in the bush war. 

It is a sad chapter in the history of the human race, but me playing a role and perhaps being instrumental in getting Thatcher to see that there had to be a negotiated solution, as opposed to an imposed solution, was merely recognising the reality of the time.

• Again Fraser doesn’t say why he kept his bib shut.  Oh yes, this Care person who begged, on bended knee, for him not to say anything. For how long was that?  Fraser conveniently keeps that vague.

The quicker Fraser bows out of the public debate, or any debate, the better.  The Liberal Party long ago turned its back on him.  It is about time everyone else did.

Crikey has been copping flak for choosing to publish audio snippets of the extraordinary staff meeting at The Age last week. The Age Independence Committee, and other staff, are not pleased with us.

Here are our reasons for deciding to publish. There is room for disagreement, of course, but we didn’t make the decision lightly.

First, while it was not a public meeting, it was hardly a purely private conversation. Had this been a meeting between a handful of people, then the expectation of privacy would probably have outweighed any public interest considerations. As it was, more than 235 people were there, and they were discussing a matter of considerable public concern – the status and future of journalism at The Age, and independent journalism at Australia’s “quality” newspapers more broadly. The public interest considerations, we thought, outweighed any limited expectation of privacy.

Second, we decided to focus on the words of editor, Andrew Jaspan. All journalists are public figures to some extent, editors in particular. They therefore have a reduced right to privacy in respect of their public roles. All the more so for an editor in chief of a major metropolitan newspaper.

Third, some argued with us that publishing the audio tapes would be counterproductive to the aims of The Age staff, in that it would inflame management. We doubt this is the case. Staff can hardly pass a motion like this without inflaming management, and the publication of the audio can hardly change that much. But in any case, this is not an argument journalists can properly consider. Imagine a leak from the Labor Party in the lead up to the election. Would a journalist be right to not publish because doing so might damage the party’s election prospects? Of course not.

We are journalists too. We have many friends at The Age. Our sympathies are inevitably caught up in these events, but it is our job to try and get the story as completely as we can, rather than to self censor in an attempt to influence the outcome of events.

Finally, if an Age journalist got a newsworthy audio recording of a shareholders meeting, or a union meeting closed to the public, or of the closed part of a political party’s national conference, would they really not use it? We doubt it.

We think this is analogous.

Stop the presses! A judge admits his earlier ex tempore (off the cuff to the occasional lay observer) comments to an application is wrong. Actually that is harsh. Judges and the occasional Magistrate with the wisdom that only quiet reflection can bring do change their minds. And why not. Pleadings and discovery fights can be every bit as complex as a hearing. How his Honour did it is a linguistic work of art: Read the rest of this entry »

Biota v Glaxo will be one of the big court room battles this year. It is in the commercial list though it was issued in May 2004.  That sort of progress is long even by the n Read the rest of this entry »

Malcolm Fraser had a very very late mid life crisis.  He didn’t ditch the wife, tried to hang out at live bands and relive a lost youth or even toke on a joint or three (though his ramblings might suggest otherwise).  His mid life crisis was political.  He went all lefty and suddenly discovered human rights issues, womens issues and developed a Central European anti Americanism that made him the darling of the commentariat.  Now the likes of Phillip Adams can point to Malcolm as proof that not all conservatives are bad.  Malcolm can fill out an invitation list where a token conservative is the done thing.  Fred Chaney, Bruce Baird and Marise Payne have sage company.

I guess you can’t blame the mutt.  He was turfed out in his 50s tried his hand at business (sort of) and didn’t really make a mark.  He wasn’t rich enough to live the life of the rural squatocracy and he wasn’t connected (or liked) enough to get a few comfy directorships and spend his leisure hours at the Melbourne Club.  One option, the Liberal Party, had enough of him.  He showed not much loyalty and when he had the main job ignored party principles and left it to the ALP to put in place all the wide ranging reforms of the early eighties.  The party made its feeling felt when he tried for the presidency of the Party at the 50th anniversary conference in Al bury.  I was there and as Fraser approached the crowds parted.  There was a 10 meter exclusion zone around him.  He pulled out just before the election.  I felt a bit sorry for him being treated like typhoid Mary.  The Party should have looked after him better. 

But on Zimbabwe he should should be put on the stocks for a decade.  He shoe horned Mugabe into power.  Fraser says Mugabe should have quit after the first decade.    Yeah right.  He forgets The Gukurahundi  which involved a massacre of 10,000 – 30,000 Matabeleland and Midlands by a North Korean trained brigade.   Mugabe forced out Nkoma and just applied all the authoritarian tricks he acquired as a maoist in his pre Presidential days.  Mugabe is a progeny of Fraser’s mispent time as a failed world leader.  Mugabe was rotten when in opposition, he started out an authoritarian as President and just graduated to sociopath over time.  That Fraser can give himself an out for his complicity in the sickening mess that is Zimbabwe by saying that Mugabe was good for the first ten years shows him to be a second rate intellect with no moral compass.  He makes me sick!

For all reviews by the Federal Government it seems that the Attorney General/Justice portfolio has got off relatively unscathed.  That must be a hgute disappointment to the glorified time and motion experts at the various consulting firms.   Attorney General McClelland has been remarkably restrained in the media releases this year – a total of 8 and most of them department driven. 

The AG posted a transcript on the offical web site describing the “legal knots crowding the in tray”…

Here are all the tough challenges:

SAME SEX COUPLES – DISCRIMINATION (A Fran Kelly favourite – soft, left and social policy)

FRAN KELLY: Equal rights for same sex couples, military surveillance of Japanese whalers, how to incorporate the recognition of indigenous Australians into our constitution and the fallout from the Haneef affair. These are just some of the legal knots crowding the in-tray of new federal Attorney-General Robert McClelland. He’s only been in the job two days. Robert McClelland, good morning.

ROBERT McCLELLAND: Good morning, Fran.

JOURNALIST: Now that the new Opposition leader Brendan Nelson has supported equal rights for same sex couples there’s nothing stopping Labor in fulfilling its election pledge to end the discrimination faced by same sex couples and amend those 58 laws that the Human Rights and Equal Opportunities Commission identified. How soon will the Labor Government move on this?

ROBERT McCLELLAND: As soon as we possibly can. We need to do it in a comprehensive way. I mean, in one sense some 58 laws have been identified and, in fact, it’s more realistically the case that probably there are additional laws that require amendment. If you’re going to do this it’s worth doing it properly, so we’ll be taking advice on both the whole range of laws but also the appropriate mechanisms.

JOURNALIST: Those laws that HREOC has identified deal mainly with financial equality. Labor doesn’t support gay marriage, it doesn’t support IVF for gays, it doesn’t support gay adoption. Aren’t these discriminatory practices too? Why doesn’t Labor support those?

ROBERT McCLELLAND: Well, we’re basically taking one step at a time. We’re basically committed to removing discrimination. The Labor Party in Opposition supported in federal Parliament legislation defining marriage as being between a male and a female, in the traditional sense, however, clearly we intend to sit down with state and territory governments to work through hopefully a national – a nationally consistent method of registration that the state and territories may adopt. We think that would be desirable and clearly that’s going to be a live issue in the ACT, we anticipate.

JOURNALIST: It looks like it’s going to be…

ROBERT McCLELLAND: In the coming months.

JOURNALIST: …a live issue very soon in the ACT because the ACT Government has indicated it wants to have another crack at introducing its civil unions for same sex couples. Are you suggesting that the federal Labor Government won’t intervene to block that as the Howard Government has and, in fact, you’d support all states looking at something like civil unions?

ROBERT McCLELLAND: I’m sitting down with Simon Corbell on Friday. I have considerable respect for him. He’s a very decent – a very decent man and also an intelligent man. I haven’t seen the text of what he’s proposing but I’ll certainly be putting to him, look, it’s in everyone’s interest that there’s a nationally consistent standard. Some states already have a registration process, basically sitting down, looking at what’s already been done, and looking at other areas where we can – where states have got other intentions and just trying to develop a nationally consistent framework. I mean, I think in this area it’s unseemly for there to be effectively tourism based on what state or territory has more lenient or differing registration or ceremonial processes. I don’t think that is a desirable way that we should approach the issue.

JOURNALIST: Robert McClelland, one decision where you might have to act on – almost immediately is the whole issue of whaling. Japanese whalers are on their way now to the Antarctic for this season’s hunt. Humpback whales will be targeted. Labor has promised sea and air military surveillance of that hunt, to gather evidence to take the whalers to international courts. When will that surveillance start?

ROBERT McCLELLAND: Well, these are issues that, well, not so much me, I’m getting advice on the legal issues but certainly my colleagues are obtaining advice on from their own departments, but from a legal perspective I’ve already requested advice in respect to the potential for international legal action and also looking at one domestic case that’s before the Federal Court of Australia as to the appropriate course of action in light of submissions made by my predecessor, Philip Ruddock. So these are issues immediately under active – active consideration.

JOURNALIST: What about sending the navy out though to at least start the surveillance? I mean, presumably you’re gathering advice on the likelihood of success in the International Court of Justice. Former Environment Minister Malcolm Turnbull had said all the advice the Government had is that that could fail, very well fail, which could backfire, could give a cloak of legitimacy to Japan’s actions, but that aside, is the Australian Government preparing to send the military out to at least keep surveillance, the navy out, rather?

ROBERT McCLELLAND: Well, I’ve, as you’d expect, I’ve had some discussions with Joel Fitzgibbon, the Minister for Defence. I know this is a matter that he is obtaining advice on but clearly he would be the best person to discuss that issue, in light of the advice he’s received. It would be inappropriate for me to comment on that.

JOURNALIST: Are you getting legal advice about the likelihood of success in the International Court of Justice?

ROBERT McCLELLAND: Obviously these are very complex. There’s been effectively four major streams of advice that have been presented in respect to the issue. We’re certainly getting expertise, legal expertise to draw together existing work but also looking at – looking at obviously the potential for future action. So it’s complex but we’re committed to do it and there’s some very talented people looking at the issue.

TERRORISM (Another Fran Kelly favourite – and one that is shared by most lawyers)

JOURNALIST: Robert McClelland, obviously Australia’s terrorism laws will be a big issue for you over the next three years. In the more immediate, the case of Dr Mohamed Haneef, Labor had suggested, had been pushing for some sort of judicial inquiry and I think you’re still getting advice on perhaps a broader inquiry, but will Labor rule in or out Dr Haneef receiving compensation and having his visa reinstated?

ROBERT McCLELLAND: Again, in terms of the immigration issues, that’s again not my call. In respect to issues of compensation, I mean, I think you’ve got to take all these things one step at a time. I, again, have obviously been speaking to agencies within my portfolio area and I must say, as they’ve pointed out, you’d be naïve not to have internally reviewed what’s occurred in respect to the Haneef case so I’m in the process of gathering together what those internal reviews have revealed or suggested, the extent to which practices have been modified and so forth.

• For a minister that comes across as down to earth and direct his dodging and ducking with weasel words like the above does not fill one with confidence.

In terms of any issues of culpability, obviously they’re things that we want to get a handle on and ensure that any either representations or acknowledgments are soundly based. Obviously we need to look at that.

JOURNALIST: Robert McClelland, mindful that you have to go and catch a plane, there’s lots of other issues to bring to your attention but just could I ask you briefly, some time in the next three years, I understand the Government is planning to introduce a landmark piece of legislation, a charter enshrining the rights and responsibilities of the nation’s legislators. Is this a bill of rights or something less than that? What will this do?

ROBERT McCLELLAND: We’re committed to a process of public consultation. Again, insofar as the rights and perhaps even obligations, would be those of the Australian public. It’s something that we’ve committed to engaging with the public on but certainly from own perspective, I do think it’s odd that we, as one of the only western democracies, don’t have such a charter of rights. That’s a view. But we’re committed to getting the public’s view on it. Certainly we’re looking at a framework that refers to government action, that is legislation, regulations and administrative action, rather that which applies to citizens or corporations but I think it most certainly is something that we should and intend to engage the public on and canvass public views on the matter.

• So when does the public consultation start?
• Seeing is believing. It is hard to believe this govenrment would want to have the judiciary muscle up any more than the last government did.  But if it is going to happen it needs to be done quickly.   

JOURNALIST: Robert McClelland, we look forward to part two of the interview with the Attorney-General. Thanks very much for joining us.

ROBERT McCLELLAND: That’s my pleasure.

• Why wouldn’t he be happy.  As interviews go it is soft

JOURNALIST: Australia’s new Attorney-General, Robert McClelland.

A few areas of interest to our AG might be:

• Reviewing the ridiculousClassification (Publications, Films and Computer Games) Act 1995  and its enforcement arm, the Office of Film and Literature Classification.
• Giving real teeth to the Privacy Act so that breaches by data collectors can be criminalised. It would also be useful to educate people and companies that the Privacy act is not a convenient of denying material.  BOPA (Blame it on the privacy Act) is the common refrain by those who want to avoid transparency.
• Increasing resources to the Federal and Family Courts
• following through on Judicial Appointments review that means something.

The Victorian Court of Appeal in Leek v XY considered the standard of proof in a civil claim of assault. In this case the allegation was sexual assault by the defendant/appellant against the plaintiff/respondent. There seems to be a steady but thankfully small trickle of cases involving health professionals who have difficulty in keeping their interest in female patients professional.

REDLICH JA gave the substantive judgment.

On the standard of proof he said:

9 In civil litigation the standard of proof is proof on the balance of probabilities…The balance of probabilities remains the standard of proof even where serious or criminal allegations are made. The learned trial judge quoted the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. The strength of evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Thus authoritative statements have often been made to the effect that clear[5] or cogent[6] or strict[7] proof is necessary “where so serious a matter as fraud is to be found”.[8] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct[9] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[10]

10 …..Generalisations about the need for ‘clear and cogent proof’ in cases involving competing and mutually inconsistent evidence should not be understood as affecting the civil standard of proof required.[11] Referring again to the joint judgment in Neat:

The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion.[12]

11 The requirement of ‘clear or cogent proof’ described where criminal conduct or fraud is alleged relates to the strength of the evidence that is necessary to establish such a fact on the balance of probabilities… That is to say the nature of the issue affects the process by which reasonable satisfaction is attained… So where allegations of a serious sexual nature are made in civil proceedings, due regard must be given to the considerations mentioned in Briginshaw requiring the exercise of caution and careful scrutiny of the evidence proffered in proof of the allegation…
12 …. applied the civil standard while recognising that he was obliged to take into account, as an important factor, the improbability of a grossly improper sexual advance towards a vulnerable psychiatric patient by a well credentialed and experienced psychiatrist. …

In short the Court needs to put the plaintiff’s evidence under an atomic microscope and should let it be tested strongly before accepting it.

On the issue of prior consistent statements his Honour pithily summed up the law, as he is becoming very good at doing, thus:

23 It is settled law that a witness, whether a party or not, may not support their testimony by proof that on some prior occasion they made a statement to the same effect. There are two well recognised exceptions. The first, with which we are not presently concerned, is in the case of sexual offences where evidence of timely complaint is admissible, not as evidence of proof of the commission of the offence, but to rebut consent and negative the possibility that the charge is an afterthought. The second arises in any civil or criminal trial in which a suggestion of recent invention is made so that evidence of a prior consistent statement may be admitted to rebut the suggestion that the witnesses testimony is a recently fabricated story.

In the commercial and common law world in which I inhabit it is the second category that arises from time to time.

26 …it has sometimes been said that for a statement to rebut a suggestion of recent invention, it must have been made ‘shortly after the event in question’ so as to rebut the suggestion that the witness testimony was a ‘belated concoction’.[… Dixon CJ said in The Nominal Defendant v Clements..that the statement was admissible if it was made by the witness ‘contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that the account is a late invention or reconstruction. But contemporaneity of the statement with the event in dispute is not essential. Expressions such as ‘recent invention’ ‘belated concoction’ ‘afterthought’ or ‘recent fabrication’ all presuppose some point of time after which it is suggested the statement was made so that a statement made at an earlier date consistent with the evidence alleged to be concocted will rebut such an allegation. The adjective ‘recent’ has been viewed a misnomer as the doctrine applies to any fabrication alleged to have occurred subject to the events in question but anterior to the trial…. In my view a statement will be admissible whenever made so long as it pre-dates the event said to provide the motive for the recent invention or the time when the recent fabrication is alleged to have occurred – so that it logically rebuts that suggestion…

His Honour has loosened the cord somewhat in determining when the prior consistent statement can be made.  Pushing it from an almost contemporaneous statement as Dixon J stated to any time which pre dates the time when the motive for recent invention arises.  or that the recent fabrication occurred.  That can throw up some very interesting fact situations.  It will certainly make for interesting cross examination in the future.

What is the purpose of a prior consistent statement.  It is not evidence of the truth of the contents of the statement.  It all goes to credibility.  As Redlich stated:

30 …whether ..the content of the prior consistent statement as evidence of its truth. Such evidence is admitted to restore the witnesses credibility… Its effect is to rebut the claim that the witness belatedly fabricated their account of events. As with evidence of ‘recent complaint’ the evidence is admitted as evidence of consistency of account which re-establishes or bolster the credibility of the witness. Such a previous consistent statement, once admitted, reinforces the witnesses credit and may be used in that way in considering the weight to be attached to the witnesses sworn evidence…
31 A hearsay statement admitted to prove a fact other than the truth of its contents, does not upon its admission become evidence in the case… Thus in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd[30] the High Court whilst upholding the admissibility of statements by a testatrix about her son’s misconduct which were tendered to prove her reason for excluding him from her will, held that the statements were not evidence of the alleged misconduct. Similarly, evidence of recent complaint made out of court, is admissible as an exception to the hearsay rule because of its consistency with the witnesses testimony or conduct, the evidence having itself no probative value as to any fact in contest.[31]

A very interesting case where the Court of Appeal went through the Appellants appal points and knocked them over like so many skittles.  The Judge at First Instances decision held up and Dr Leek continued to have a very bad day at the office.