It’s time for another weekend reflections, which makes space for longer than usual comments on any topic. Side discussions to sandpits, please.
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John Quiggin 
It was Joh’s racist & bloody-minded intransigence that gave Australia ‘Native Title’ via the ‘Mabo’ decision.
A Queensland Premier gave Australia ‘Mabo’.
I’ve been following the ‘VLAD’ (“bikie”) cases very closely and I’m beginning to wonder whether it might be another Qld Premier who might give Australia a ‘Bill of Rights’.
The “Yandina Five” have been in jail for a few weeks, they were dobbed in for having a beer together at the Yandina Pub, – not because they have been accused of doing anything that would normally constitute a crime – because they “associated” with each other.
Unfortunately, the fact that the ALP is about identically neo-con to the LNP (they supported these stupid laws) means that we will have to wait until we have a genuinely different party before we can electorally push for a Bill of Rights.
The ALP is ideologically opposed to a Bill of Rights – but that position might actually give us the double bonus of getting rid of the ALP and getting a Bill of Rights!
A quick book review of “On Offence -The Politics of Indignation” by Richard King.
This book seeks to explain the Lefts role in getting to its current state of impotence in the West ,and its role in the current lack of progress of ideas in the public arena .King says after the Left’s strength of the 60’s and 70’s, Communism collapsed , and the Leftists retreated into the University system. There they developed identity politics (in the 80’s and 90’s) based on Post Structuralism from the philosophy and English lit departments -that grew from there to affect every discipline of knowledge (the Post-Modern movement). This meant that the Lefts politics was not much defined by social class ,and it fragmented into several(as many as you want) kinds of identity politics -feminism ,race politics, environmentalism ,internationalism ,etc. All these are
premised on the idea that one should be very careful about speaking for ,judging ,or defining another. This big challenge to the dominant order generated the notion of political correctness so despised by it. For King this means the Left have vacated the ground of class -and the Right have now moved in there .The Right have only 2 classes ,us ordinary folk (from the person in the soup kitchen line to the billionaire), and, politicians (Leftist academics who dont understand the real world). Use of PC Identity politics on Left and Right is said to have caused our culture of outrage, censorship, and offence taking -this is not good for progress in the contest of ideas .Those on the Right now see themselves as a persecuted minority. King thinks that the freedom to offend is critical to free speech and the progress of ideas .
All that makes a bit of sense to me ,the Left have played a role in their own demise . King does not discuss the role of the Right because thats not the aim of the book ,and perhaps because their role is so much more straight forward (use their $ ,power advantage ,and, appeal to fear + neo-con legitimated greed) .
It certainly was Joh’s intransigence that allowed the Mabo Decision. Murray Island (Mer) was to be given to Papua New Guinea at the time of its Indepedence. Were it not for Joh’s intransigence in insisting that it remain part of Australia, the Mabo case would not have been possible.
@Charlene M
I was thinking more of Joh’s bloody-minded determination to take their land rights from them without compensation.
That approach was soundly thrashed in the High Court and we ended up with the “Mabo” judgment.
But yes, in a perverse way you are probably right (although I had no idea Joh was the deciding voice on matters surrounding PNG independence, is that true?).
I would not support a bill of rights without first knowing what was in it. A bit like I won’t support Australia becoming a republic without first knowing the proposed model. However if adequately crafted I would support a constitutionally or legislatively enshrined right to free association. If you wish to enlist support from those outside the left wing mould then I think it is far better to argue the case for enshrining a specific right rather than for some grand sounding but ill defined “Bill of Rights”. In other words do it incrementally.
That said Victorias charter of human rights, whilst not perfect, does seem half decent.
It sounds like Clive Palmer has gotten all the approvals for the port and rail for his big coal mine. Anyone think that deals may have been done behind closed doors and that Mr Palmer and PUP will be discovering common ground with Abbott’s government? What would a three way coalition – Liberal, National and Palmer United – deliver Australia?
@Charlene M
I didn’t know about Joh’s part. But, if that is right, wasn’t he right – as one has to admit he often was even if not for reasons we would have articulated in the same way (yes, yes, joke about articulation by Joh acknowledged) – to resist the incorporation of the island(s) in PNG on independence? I bet the islanders think so but accept that is not the only criterion. Wouldn’t transmission of disease and smuggling be a greater problem than it is????
@TerjeP
Yes, specific rights carefully considered over a long period and looked at from every angle.
Anything which throws everything open to judicial interpretation or prejudices to the extent it has in other countries, most notably the US (though the European Court of Human Rights seems to be creating problems now, especially for common law countries) would quickly prove that the perpetrators simply didn’t know enough judges. Many advocates suffer split minds on this. I have heard people whose opinions could matter both criticising judges and proposing to hand carte blanche to them (and then, I daresay, deciding to micro manage with minimum sentences and abolition of suspended sentences……)
BTW Megan’s “the ALP is ideologically opposed to a Bill of Rights” surprised me. Would Megan or someone care to enlarge on why that might be a justified statement?
@Megan
As I have already said in another response
BTW Megan’s “the ALP is ideologically opposed to a Bill of Rights” surprised me. Would Megan or someone care to enlarge on why that might be a justified statement?
@Neil Hanrahan
See any statement on a Bill of Rights by Bob Carr who exactly duplicates the claims about ‘unelected judges’ advanced by Howard and the US right.
See the recent government’s completely negative and dismissive response to the Brennan inquiry into a bill of rights.
See the recent government’s dismissal of any number of UN findings on treatment of refugees, the NT Intervention and income management.
@Alan
You beat me to it!
Furthermore, The Australian opinion piece writers are close to unanimous in their opposition to a bill of rights. As we all know, as the Murdoch tail wags, so follows the LNP dog…
@Megan
The Gillard government became the first in Australia’s history to respond to an adverse human rights finding with ‘Australia respectfully disagrees’. Not even the Howard government was ever that blatant. It would probably be an interesting thesis to try and work out just why the ALP is so intellectually isolated on this issue.
A Murdoch organ calling for the US Bill of Rights to be repealed is literally unthinkable. Why then does it happen all the time in Australia?
@Alan
My take on it is that the ALP has been overrun, infested, infiltrated etc… by neo-cons who are so ideologically driven that they don’t even care if they suffer electoral wipeout (a la NSW, Qld & 2013) as long as they get to ram through as much of the neo-liberal agenda as possible before they go.
For example, the easiest thing in the world politically would have been for the Qld ALP to vote against the VLAD laws, and other similar recent legislative abominations, and position themselves as ‘Law & Order’ with respect for the separation of powers and civil liberties – but instead they voted with the LNP and only criticised the laws as not being tough enough!!
Similarly, ALP got elected in 2007 mostly because they appeared an alternative to Howard on: cruel treatment of refugees, do-nothing climate action, wars/US imperialism, ‘intervention’ & neo-liberalism. By 2013 they had equalled and surpassed Howard on all these and more.
I’m certain that the ALP is beholden to ‘right wing’ forces that believe they can just sit tight and they will eventually get their turn on the treasury benches to continue the ongoing project.
@TerjeP
With the greatest respect, you are scaremongering. Australia could only adopt a constitutional bill of rights by referendum. You’d get ample time to consider your position after the text was finalised.
The myth of wildcat judges that you seem to share with Bob Carr and the Murdochracy is purely that, a myth.
There is a specific situation in the US where the polity incorporates so many veto points that legislating on anything becomes almost impossible, and far too many decisions default to the courts because the legislature cannot act. That pattern has not been seen in any other democracy with a constitutional or statutory bill of rights. That cannot be a non-trivial fact because Australia is now the only democracy without a bill of rights.
@Megan
The problem with your analysis is that ALP opposition to a bill of rights long predates the appearance of neoconservatism. Don Dunstan, for example, was violently opposed because of a couple of child labour judgments by the US supreme court.
@Alan
Good point. I guess it waxes and wanes to some extent (ie: the influence of ‘hard right’/ultra-conservative ideology over the ALP). Of course, way back they invented the ‘white Australia’ policy.
Apparently sometime in the 1980s they actually had a policy platform for a Bill of Rights but it never got anywhere because it was stymied by the same type of people in the ALP back then – I would still argue that was due to the influence of the thing we now call ‘neo-cons’ but simply in its earlier incarnations, remembering that Cheney and Rumsfeld and so many others date back to the Nixon years and even earlier. And remember that it was common even in the late 1970s for ALP up-and-comers to do the “CIA” trip to the US to be schooled.
I prefer to call the thing “fascism” but for now it seems to go by the label ‘neo-conservatism’. I don’t believe there is any real difference of substance between the two.
@ Megan @ Neil Hanrahan: Yes, it was Joh who campaigned for the Nine towns that were to be ceded to PNG to remain Australian. Had Joh not been successful in this Mer (Murray Island) would not have been part of Australia, and neither would Eddie Mabo (or any other Murray Islander) have been Australian.
Joh consequently was revered in the Torres Strait. Gough, the one whose idea it was to cede part of Australia to a (new) foreign country, and who was determined to do so, did not prevail.
That Joh’s (well known) policy on indigenous land rights was a catalyst for the activism that culminated in the Mabo (& later Wik) decisions is an almost delicious irony.
In a world of alternate history, one where Gough Whitlam had beaten Joh Bjelk-Petersen, and thus the Mabo decision could not have happened, it would have been interesting to see what or which case (if any) could have achieved the same clear and decisive outcome as the Mabo decision.
@ Megan @ Alan et al. I suppose the word “ideologically” was one element that made me stop and wonder. I used to think of “ideological” in what I took to be the Marxist view that it concerned the view about the arrangement of society that suited one’s class interest – in Marx’s day rather obviously mostly concerned with money unless one was of the forelock tugging lower orders who knew their place until “false consciousness” had been overcome.
I have more recently heard it used to describe a personal world view which forms the basis of justifications or at least excuses for in the minds of the perpetrators of such behaviour as domestic violence by men (say 90 per cent of DV). It is in a world view in which the subordinate position of women is very important to the male. So, “world view which organises one’s thoughts on matters that one regards as important”. If that is applied to views on rights (as in Bills of Rights) then it would not be inappropriate to note the rise of a prosperous “New Class” who don’t want to be pushed around by judges – but, here is something important to consider, logically and perhaps actually because they are pretty worried about some of the potential drafting of the rights to be protected and what currently fashionable or next generation’s fashions might do in interpreting and applying them. If one considers what the Wran government did, which a Commonwealth government could not have done, in expropriating the rights to minerals under their land which, in NSW but not other states, belonged to the freeholder it is not surprising that some people got skittish about letting the politicians they knew and loved, but also knew rather too well, providing a template for political appointees to run away with. I can see Labor hardheads being wary about Green left policies getting a boost through some kinds of Bills of Rights.
Since Mordy Bromberg, a Labor lawyer appointed by Labor to the Federal Court bench recently said Toyota couldn’t seek an agreement with its workforce, whatever the workers wanted, to vary their terms of employment, I see that is being adduced as reason to suspect that he was biased in the Bolt case. (In fact Bolt should have been sued for defamation by the few plaintiffs in respect of whom he got some relevant facts wrong. It wouldn’t have had to be tried before a jury, which would have been a risk for the plaintiffs, and it would have saved those who “ideologically” pushed the use of Sec 18A producing such damaging unintended consequences as they are likely to see after 1st July.). Anyway, the US position is far from irrelevant to Australia’s situation because the whole legal culture there (including attitudes to justice) is poisoned by the politicised character of the courts made manifest in cases which rely on the bill of rights amendments. It wouldn’t be just the LNP right which would suspect the likes of Bromberg as being inveterate lefty ideologues (and I think I remember it was Labor which had to completely sideline an Industrial Court “judge” who persisted in non mainstream views; i.e Marxist of a kind). And it would often be completely unfair and unnecessarily destructive of trust in the law. Bromberg may well have arrived at his decisions, for all 99 per cent of us will ever be able to say, by the strictest application of traditional judicial method: the opposite of “judicial activism”.
It is worth considering whether the divisions in the Supreme Court of the United States are caused, not by some blatant departure from proper judicial decison making but by the nature of the task they are given when having to apply the bill of rights, especially when it is so old and invites honest differences about the way a “right” created in the 18th century should be interpreted in the 21st century. After all, Scalia J does not lack IQ points. Nor did Rehnquist CJ for another “conservative” example.
And BTW, such important ALP figures as the late Richard McGarvie was an active proponent of a Bill of Rights. Whether that was a position generally shared by fellow “participants” like John Cain, John Button and others who temporarily suppressed the hard Left in Victoria I don’t know but it seems likely that their beneficiary Gough Whitlam was in favour of one. Curiously a view that a government run by him could put forward an acceptable Bill of Rights (he being of the “often wrong but never in doubt” character) would have been consistent with his highhanded attitude to the rights of Baltic states, Vietnamese refugees, East Timorese and Torres Strait islanders!
@Neil Hanrahan
You are wrong.
Almost consistently. That is impressive, even for a News Ltd reader. But this is blatant:
No, the judge said that Toyota couldn’t demand a unilateral change to terms they had agreed to in previous negotiations about changes to the agreed terms. Toyota and the unions agreed that any changes would have to go through a process involving consultation and a vote.
All the judge did was apply the existing deal. No ‘judicial activism’ was involved, just proper judicial process and the proper application of the law.
Neil
Crown ownership of minerals has been part of Australian law since a proclamation of 1851 claiming all gold in the colony of NSW for the crown. The principle was progressively extended to other minerals by statute or proclamation, usually shortly after discovery of a new mineral deposit.
It may be that Neville Wran time-travelled back to 1851 and zombified Governor Fitzroy. It may be that Fitzroy was a secret member of the Ajp generations before the party existed. It may also be that an alternate history of mineral ownership in Australia where subsoil mineral rights belonged to the freeholder is, like many of your posts, best characterised as fondly imagined nonsense.
Ahem, *ALP…
Reading about ‘the dismissal’ the general mood and Oppositions desperate(and sometimes dirty) tactics seem so similar to to those of the recent (short again)Labor stint in office. The Coalitions born to rule indignation and the sense of crisis manufactured with a willing press protected entrenched privilege . After that the 2 big parties came together in neo-con consensus so that they were virtually indistinguishable before the GFC. I remember being shocked at the level of conservative outrage after Kev’s win given how similar the 2 parties seemed .Post GFC some differences emerged ,whether many of these are material differences or not is debatable. Maybe more material diff will emerge next year when significant cuts are proposed -where to get them ? from those least able to cope or from those better off ? I hope this question will focus the mind of the electorate and open space for a Tea Party v’s socialism debate .
P.S. The Herald Sun is a disgusting abomination .It is not true when Conservatives say ‘but Rupert supported Kev in 07’ ,the Herald Sun certainly did not.
@Megan
Your prejudiced reading, or perhaps excessive tendency to reduce things to over simple B & W, has blinded you to the fact that you are telling me nothing. Instead of bothering to look up the precisely correct formulation to satisfy people who might be as pedantic as I sometimes am I made if very clear (a) that I was noting others reaction and (b) I proffered the possibility that Bromberg was being a strict constructionist in one of the respectable modes of traditional judicial method…..
@Alan
I don’t think you took the point I was making. It was simply that some would have been frightened or at least disconcerted by Neville Wran’s taking *existing* valuable property rights without compensation in a country which, on federating, had taken the trouble to require its national government to pay just compensation for any compulsory acquisition of property. (Though few know it, it is the fact that the critical failure of Chifley’s bank nationalisation legislation in the late 1940s was its failure to guarantee the “just compensation [or terms]” – more important than Sec 92. Perhaps Wran, as a law student or young lawyer, was, despite his later capitalistic incarnation, pissed off at the Australian Constitution imposing such a bourgeois idea as just terms for acquisition, or maybe it was a cynical sop to the left in his government which was even going to be good for the budget).
My own view, FWIW, was always that, a bit like Aboriginal interests in minerals (and they have done much better than the NSW freehold owners in most recent cases) the value for acquisition should be the value before it is (i) proved that there is a resource and (ii) its extent and value has been fully assessed; i.e. only the element of value derived from the minerals which could have been sold with the land as a whole if the existing owner planned to sell the maximum title. I am not quite sure to what extent native title in its various forms carries rights to explore for and mine resources which only modern technology can even locate. Obviously there is quite a lot of value in it. It is interesting that it is handed over tax free to the control of people who, if elected in any way democratically by anyone, are certainly not representative of an Aboriginal “nation” of the kind that those who want a treaty imagine. And BTW (because I hope someone will react) “nation” does seem a bit of verbal inflation for the reality of clan or tribe with attachment to relatively small particular parts of the whole continent.
Have we hit 100 broken election promises yet?
If you google ‘strict constructionism’ you will find that most sources describe it as a movement within US legal philosophy. Its use outside that country is not evidence of any knowledge, only of an enthusiasm for aping the intellectual pretensions of the US right.
A strict construction of your text gives no comfort to your effort at recovering from a schoolboy howler in legal history. The doctrine of Crown ownership of subsoil mineral rights applies in every state and actually dates from the earliest days of the colonies. Initially these exceptions were included in the deeds of grant.
The very first deed of grant we have in the records retains any timber on the land for the Crown. All a series of legislators were doing, from Fitzroy to Wran, was moving title exceptions from title deeds and land grant documents to ordinary legislation.
@sunshine
It is tempting for those who were actually involved in politics in the mid 70s or were at least passionately concerned then to dot i’s and cross t’s when someone who clearly has only read about or watched TV docos on the dismissal relate it all to recent events and no doubt lots of learned similarities and continuities can be conjured up. But, really, Whitlam’s government except as an explosion of actions of bright adolescents who had been repressed by the older generation was absolutely appalling – and there are plenty of Labor insiders to not just acknowledge it but assert it. Moreover whatever remnant of “born to rule” types may have been in the Liberal and National Parties back then (think, disconcertingly, of that born again lefty Malcolm Fraser) it is a ridiculous characterisation of the contemporary Liberal and National Parties, especially when contrasted with the contemporary ALP and its private school boys. If anything they are in danger of the careerists bred in-house as staffers taking over though without the advantage the ALP union officials who have led the way to the modern oligarchic ALP with their considerably greater association with people whose votes need to be practically tied to their financial self-interest (as they can be made to, or already to, conceive it, rightly or wrongly).
And…. there is no comparison in incompentence between the Rudd-Gillard governments and the Whitlam government though the latter had other vices and none of the Whitlam grandeur (or should it be folie de grandeur?). A few of the women aside perhaps it was hard to see anything but a breed of oligarchs who were based on unions and enough old-fashioned unionism to be capable,despite their profession of free market economics, of buggering up the competitiveness of the economy once its mineral bounty and the construction for its exploitation would no longer make life easy for nearly all of us (or at least a lot easier than 99 per cent of us have earned).
Gotta go. Back to counter provocations later….
@Alan
Was there or was there not an existing right to the ownership and exploitation of minerals or some of them which went with the freehold title in the 1970s? That is the only point. If you can’t see that I don’t know how you can even pretend to get into legal arguments with any authority or even tincture of learning. Are you a lawyer? You must have been a bad one.
Back to your silly point about “strict constructionism” later.
@Alan
The logic that you show by learning (from Google no less!) that “strict constructionism” is a movement in US legal philosophy and leaping to its use in an argument which touches on appropriate judicial method in Australia is so defective as to suggest the autodidact clutching at straws (the great autodidact Phillip Adams would rarely come close to such solecisms as of at least 20 years). Actually I might have referred to “originalism” of which Scalia J is the best known supporter (and has been at many conferences in Australia in case you don’t know. That would have been a truly US product. For Australia, without going into the excellent paper on judicial method which Justice Blackburn had published in the Australian Law Journal about 40 years ago, one might use as shorthand “strict legalism” as in ….. well surely the origin of its fame as phrase in Australia springs immediately do your learned mind???? Don’t play with adults, especially using misplaced attempts at pedantry, unless you want your nose rubbed in your petty and baseless sneers.
@Neil Hanrahan
You said “I made if very clear (a) that I was noting others reaction”.
But that is not what you did at all. At #19 you made the following as a statement of fact to which “others” had reacted:
It was 100% wrong as this passage from the judgment shows:
@Neil Hanrahan
While I congratulate you on your ability to mobilise pomposity in the defines of vacuity, I wonder could you actually comment on what I’m saying rather than on the source?
Throughout this thread you have consistently made claims that fail when tested, indeed they have at times failed so spectacularly you’ve later scrambled to redefine them into something vaguely related to the world of fact. You have documented nothing.
If your sources are so vastly superior to mine, it is a surprise you consult them only to produce damp squibs. I could point to any number of books and articles discussing strict constructionism, although I suspect your actual command of those would be as feeble as your time-travelling Neville claim shows your grasp of legal history to be. Google is extremely useful, not to document strict constructionism, but to indicate where it is used.
It seems to me, and I’m happy to be proven wrong, all you’ve given us is a string of rightwing tropes originating in the US and supported by ‘evidence’ imagined out of whole cloth. The interest is not, therefore, what silly claim you will make next. It is rather what ridiculous method you will use to prove your claim. Judging by your performance to date, substantive argument will not be one of them.
@Alan
Neil has made a number of assertions that don’t stand scrutiny about The Dismissal as well. (I was there too, Neil, and I’m sure my recollection is at least as sharp as yours.)
Whitlam’s achievements: Medibank (later reincarnated after the last round of Tory wrecking as Medicare), sewering the outer suburbs of cities which had previously relied on septic tanks or nightcarts, getting us out of Vietnam, ending the obscenity of the barrel-o’-death method of conscription, finally paying for the F-111 (ordered by Menzies) – there are many, many more, but I can’t be bothered listing them.
Whitlam’s failings: trusting Rex Conner, putting Jim Cairns in as Treasurer, abandoning East Timor. That is all.
I’m always impressed by people who make predictions that were unfashionable at the time but turned out correct. That puts Rex Connor high in my esteem with his prediction that the eastern half of Australia would run out of gas before the west. This was the mid 70s before coal seam gas and fracking. Rex’s attempt to engage a spiv to find finance for a transcontinental pipeline may have been the single act that cascaded into The Dismissal.
Now some 40 years later Connor’s successor Ian Macfarlane has identified the same problem (see ABC factchecks) except now The Market will solve it. The Market vs The Dismissal which is better?
@David Irving (no relation)
I would perhaps add to Whitlam’s failings: appointing Kerr.
The Factcheck piece doesn’t seem to line up very well with Rex Connor’s prediction as you describe it. NSW is not “the eastern half of Australia”, and the Factcheck piece rated MacFarlane’s claims as “unverifiable”, while also noting that Queensland is set to start exporting significant quantities of LNG. That isn’t really consistent with “running out of gas”. Macfarlane also seemed to be talking out of the other half of his mouth when he claimed Australia will become one of the world’s biggest gas exporters (which Factcheck rated as a “fair bet”). Macfarlane’s comments seem to be a pretty transparent attempt to put the frighteners on NSW residents for the benefit of the fracking industry.
If Rex Connor did make a prediction such as you describe, it stands to reason that he would be right, given that the known gas reserves in the western part of Australia dwarf those in the East. But I think we’ll have a wait a while longer before we can declare him to be proven correct.
I see a Royal Commission into bad parenting and poor private sector employee training has started. Oh wait, it’s not that at all. It’s a Royal Commission into why the Rudd government didn’t sufficiently infantilise the adults that volunteered to be paid to install and supervise the installation of insulation which we all know is a more dangerous activity than skydiving without a parachute. Give me a break. Funny I missed the Royal Commission into 2 wars of choice based on lies that led to the foreseen deaths of tens of thousands. Maybe that’s next week.
@Tim Macknay
The graphic in this article shows the eastern gas grid
http://peakenergy.blogspot.com.au/2013/12/australian-natural-gas-comes-off.html
as isolated from WA. When NSW feels the pinch it will rebound on SA, Qld, Vic and Tas as they are joined. While the direction of flow could be reversed in some pipes to share resources that is unlikely. That text and other articles give a better perspective than the ABC.
My point remains that RC saw this 40 years ago. Not many of our present crop of politicians could be described as visionaries. Gladstone LNG exports using pooled east Australian gas are supposed to start late 2014.
True enough.
@Megan
Still missing the point that I wasn’t concerned about the precise particulars or adopting the view that Bromberg had done something wrong legally or otherwise although if you want (a) something on the topic you choose to raise and (b) a refutation of your factual errors let me say
1. that I am not a “News Ltd reader” in the sense you must have intended (after all you are not likely to be critical of yourself for your – superior knowledge – of the products of News Ltd… if that is its name still). The only newspapers which enter my house regularly are a daily from Fairfax Media and the Weekend Australian;
2. Forget anything I said. You might care to consider whether the law as correctly or incorrectly interpreted by Bromberg does prevent Toyota from simply putting to its employees a proposed agreement or variation of agreement which could have a strong bearing on Toyota’s ability and willingness to stay in Australia. Do you suggest that there is a simple way under the Fair Work Act to do that? And here is some of what others think which, you may remember, started with an exploration of people’s, and specifically the ALP’s attitudes to a Bill of Rights:
Paul Sheehan in the SMH:
” “As the motor industry analyst Joshua Dowling observed after reading Bromberg’s judgment: ”The fate of Toyota Australia’s manufacturing operations has effectively been sealed by a decision in the Federal Court today. The court’s decision to block Toyota from asking its factory workers to vote tomorrow on changes to shift flexibility and overtime bonuses means … the entire Australian car industry is likely to grind to a halt after Ford’s factory shutdowns in 2016, Holden’s closures in 2017 and a likely end to Toyota’s operations in 2018, when the current Camry ends its run.”
On Thursday, Toyota workers begin their three-week Christmas holiday, the longest shutdown in Toyota’s global manufacturing operation. Plus there’s their 17.5 per cent holiday pay loading, plus double time-and-a-half when they work on Sundays, plus shift premiums, plus generous long-service leave, plus no medical certificates for sick days, plus time off to give blood (usually on Fridays) – all of which the chief executive of Toyota Australia, Max Yasuda, has warned is unsustainable.
All of which, by the way, is subsidised by taxpayers, in the misguided, anachronistic idea that Australia can support heavily unionised, government-subsidised heavy industry. It can’t. The vehicle manufacturing industry is gone. The shipbuilding industry is next.
Which brings us back to Justice Bromberg and his decision not to allow Toyota Australia workers to even vote to consider changes to their workplace agreement. Toyota argued that it was acting within the workplace agreement if the majority of employees voted to re-open negotiations. Bromberg disagreed, saying the law did not allow such latitude.”
And that’s before he says anything nasty about Bromberg who apparently was overturned on appeal when he gave a judgment favourable to unions who objected to the Baillieu governments refusal to accept tenders from construction companies which had excessively expensive enterprise agreements with unions.
And this is from The Australian of 13 December:
“TOYOTA Australia’s cost-cutting strategy has received a major setback after a Federal Court judge blocked the company from holding a meeting of employees today to consider changes to their workplace agreement.
Toyota said last night it would consider appealing against the decision by judge Mordy Bromberg after he ruled that the carmaker had breached the Fair Work Act.
Following legal action by four shop stewards, Justice Bromberg ruled Toyota’s bid to “reduce employee entitlements” and achieve cost savings had breached the no extra claims provision of the workplace agreement covering employees.
He made the order just hours before the vote of employees was to open at midnight.”
I can’t imagine why you want to try and win verbal spats in the kids playground when you could be braving rejection by the inundated letters editors of major newspapers and putting thousands of people and mainstream journalists right…..
Finally, this I believe was from a former Deputy Secretary of the Treasury. The person who sent me it (amongst other stuff) didn’t tell me whether the AFR or whatever published it but its source is significant perhaps.
Your editorial on the Productivity Commission’s initial analysis of the motor vehicle industry notes the rejection by federal court judge Bromberg of Toyota’s attempt to re-negotiate it’s agreement with unions if a majority of workers agreed. When seeking ALP pre-selection for a federal seat in 2001, Justice Mordecai Bromberg reportedly indicated his primary objective was to reverse the Workplace Relations Act [and, before being appointed to the judiciary in 2009, he acted more than once for the Construction Forestry Mining and Engineering Union. (“High costs and workplace laws will cause job losses”, 21-22/12).
Justice Bromberg’s interpretation of the Fair Work Act in the Toyota case overlooks the need to recognise that changes in economic circumstances should allow for possible changes in terms and conditions for labour under existing awards or enterprise agreements where these can be shown to be outdated and uncompetitive.
Yet, under the Fair Work legislation, Toyota and several other manufacturing businesses have developed higher labour costs than those in other similar companies and this has led to job losses .
The Fair Work legislation ought to be adjusted to allow businesses to seek changes in terms and conditions. A special branch of the Productivity Commission could be created to examine claims for change. If approved this would avoid the provision of taxpayer funded assistance.”
*******************************
@Alan
Particulars please, not just self confident waffle. What legal qualifications do you have? Have you practised at the Bar, if so for how long and in which courts? Have you held a judicial or quasi-judicial position and if so what? Have you held an academic position teaching law, and, if so what? I can answer all these affirmatively so over to you. Your problem is to substitute a mindblowing collection of clichés for precise thought or evidence. You are even still going on about “strict constructionism” as though you had a point. (I have no doubt you could cite a number of books dealing with the subject thanks to Google, but it doesn’t advance your case, whatever it is, to say so).
Apparently you don’t even recognise the provenance of the expression I quoted “strict legalism” (not literalism be in note by way of superabundance of care). It is of course “There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism” which Dixon CJ famously used to explain how the High Court could and should deal with great matters, especially constitutional, in a way which didn’t destroy respect for the court and even the judiciary generally as was always threatening in the US. Dixon was criticised by Henry Bolte in much the same way as any left bien pensant might criticise judgments reached by conscientious attempts to adhere to traditional judicial method. He had about 50 years experience of the problem and knew whereof he spoke.
Note that I have not chosen, on the kind of inadequate evidence which is sufficient for you and Megan to make big but unjustified assumptions and perpetrate misrepresentations of others’ words, to suggest that Bromberg is other than a meticulous follower of the traditional judicial method which, obviously, I support. That some judges use their mastery of such traditional method to achieve results they personally prefer is obviously true to anyone with a serious interest in the law, the judiciary and legal history but it does mean they can be distinguished from such disgraceful disregarders of judicial propriety as Lionel Murphy. (By contrast one might want to criticise Michael Kirby – and I have even heard a senior judicial figure describe part of his judgment in the Hindmarsh Island case, or maybe it was him for writing it, as “mad” – but he was a conscientious judicial technician in a way that Murphy was decidedly not….. Yes, David Irving could surely add the appointment of Murphy to the bench as another Whitlam error….)
@Tim Macknay
Is that a bad thing? And while you are clearing up any doubt on that would you care to classify candidates for visionary status and to explain how one distinguishes the good from the bad.
It would never occur to me to call Margaret Thatcher a “visionary”. Not only was she no Joan of Arc but she was intensely practical and detail minded not to say single minded.
Yet, like Whitlam, she had to wait a long time for the chance to do what she had long thought was necessary. (Well, maybe she had the light before her to follow; but she was also pretty adaptable as her changing views on Europe, and, after retirement, AGW, illustrate.. It is hard to see in Whitlam’s record or attitudes to lesser colleagues that he was much open to pragmatic change or was very adaptable. Maybe he just didn’t have time).
Stalin, Hitler and Mao were all visionaries were they not? And maybe President Obama is or was but, if so, the frustrations he has had in office must be particularly galling.
@Tim Macknay
You are being too kind. Rex Connor’s prediction had nothing of value in it for any practical purpose. The time value of money is something most politicians have trouble with, in the actual calculation if not in the concept itself never coming to mind at the right time (like “opportunity cost”). Still I can only think of a few politicians that I would ever have been happy to see as trustees for any people or cause that I cared about assuming management of money was involved and a very small number indeed who I would have real confidence in as investors. Red Ted Theodore comes to mind as a candidate, and perhaps John Moore from Queensland too. Not many more non-ALP than ALP….
@David Irving (no relation)
“A number of assertions that don’t stand scrutiny”! Oh what a helpful piece of solid information so lucidly and persuasively expressed. Care to front up with some detail?
Mind you I am not sure that I am interested in someone so one-eyed about Whitlam who can’t even remember his catechism correctly either. it is not just East Timor that you must mention when acknowledging sins: the Baltic State are right up there surely. And his view that the Vietnamese boat people were to be resisted like “f***ing” Balts surely rings a bell or two.
I won’t bother you with arguments which require figures such as the reality about Medibank that only a small minority were without effective insurance against medical expenses of a serious kind. This was partly because public hospitals were free and not working too badly: indeed private health insurance was low in Queensland because more health care there was free than anywhere else (sorry if some detail wrong but never my special subject and no reason to think about it recently, but the point remains valid unless you say mandatory universal uniform cover was important – and hadn’t learned anything much from the declining efficacy of the UK National Health Service and its serving the well off much better than the poor. Also, btw, the AMA managed to damage at least the economics of Medibank severely by their lobbying, did they not? It tended to be aging surgeons who rather liked the idea of appointment to a paid regular job with pension attached that supported the scheme enthusiastically. It was after all, not a health scheme but a scheme for financing health – and making some specialists a lot of money, not least pathologists and radiologists. And that, come to think of it, is without counting the opportunities for fraud which were opened up and gratefully taken advantage of by those nice GPs… and a few entrepreneurs for whom medicine was as good as a football team for being able to afford the bimbos).
@Neil Hanrahan
The expression you first used was ‘strict constructionism’. You’ve since changed that to ‘strict legalism’.
Demanding qualifications is deeply irrelevant to your claims. Your’e welcome to describe yourself as the chief justice of the high court. The problem is not your qualifications or lack of them, it’s the feebleness of the arguments you post in these threads and your willingness to misrepresent facts to try and sustain your arguments.
Example, your claim in this very comment that you sued the term ‘strict legalism’ when you actually used the term ‘strict constructionism.’ The two terms are not congruent and trying to treat them as if they were discloses either an abysmal ignorance of the subject or another example of your willingness to deal with facts deceptively.
USA judges are popularly elected.
USA supreme court judges sit until they die.
so USA supreme court has no pool of ex judges and judges can be gaga and still occupy that position because it is almost impossible to unseat a supreme court judge.
Australian judges are appointed.
Australian supreme court judges are hoiked out upon reaching the age of 70.
so Australia has a pool of institutional memory for the supreme court and the chances of a gaga judge are minimised.
the term “activist judge”being propagated looks like sour grapes and a load of old cobblers.
@David Irving (no relation)
Sorry David Irving I hadn’t realised how much of what I said you hadn’t contested at all, including the views of later ALP politicians about Whitlam and his government. It’s just that I took your sentimentality about Whitlam as meaning more than just that.
BTW, FWIW, I didn’t and don’t think it was necessary or desirable to bring down Whitlam immediately, though justifiable, in late 1975. Hayden was about to do sensible things with the budget and it is inconceivable [no, read “extremely unlikely, even in prospect”] that the electorate would not have tossed Whitlam out at the next election anyway, if not by such a large margin. While people (of all political hues and professional and business positions, connected by them all liking to have an opinion they could utter sententiously and gravely as if all should take notice) were saying the country would be “ungovernable” the much smaller problem was created that Malcolm Fraser’s lack of understanding that post-war social democracy as a means for politicians of all parties to claim to be Keynesian and spend money to buy votes had run out meant that he didn’t overcome the inhibiting effect of doubts about legitimacy in the way he forced the Dismissal and failed very substantially from the point of view of Liberals who already understood that what some call neo-liberal reforms, then more often called (approvingly by not a few union leaders like Ted Mansfield) “economic rationalism” were necessary in an increasingly competitive world where, also our terms of trade were in decline and it looked as though both oil supply and prices, and inflation, would be long term serious problems.
@Neil Hanrahan
My comment was in reply to Hermit. I’ve no idea why it apparently pushed your buttons, and I have no interest in entering a pointless discussion about it.