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Category: Justice

Science Starts to Respond to the Legal System

2 June 2024

Scientists and others, like doctors, who are of a scientific bent have for years despaired of the legal system whose practitioners seem to have little respect for knowledge other than their own and accept very poor scientific evidence.  Now the high-profile head of the Australian Academy of Science, Prof Anna-Maria Arabia, who gave evidence in the Folbigg case has hit back.  Kathleen Folbigg was accused of killing 3 of her children, but later scientific evidence showed that they had a genetic defect.  Prof Arabia is looking at the relationship between science and the law and wants to put a bit more discipline into the science-law relationship. All power to her arm!

‘It could be any of us’: Top scientists sound alarm over unreliable evidence

By Michael Bachelard, Nick McKenzie and Ruby Schwartz

Sydney Morning Herald   June 2, 2024 — 8.00pm

Australia’s peak science body has called the triple-murder conviction of Robert Farquharson for driving his sons into a dam in 2005 into question, saying it was partly based on unreliable scientific evidence and his case would be ripe for review if the nation had a mechanism to reconsider old convictions.

Farquharson is serving a 33-year prison sentence in the protection unit of Victoria’s Barwon Prison after being twice found guilty of murdering his three children by driving them into a dam on Father’s Day in 2005, and with an appeal court affirming his guilt. But a number of legal and scientific experts have questioned the evidence that convicted him.

Australian Academy of Science chief executive Anna-Maria Arabia said, speaking generally, that courts were susceptible to “junk science” being admitted and that cases such as Farquharson’s demonstrated the need for significant legal reforms to try to prevent the use of unreliable evidence.

“Every member of the public should be concerned about a justice system that is not adequately informed by science. Any one of us could be Robert Farquharson,” she told this masthead and 60 Minutes.

Arabia said cases such as Farquharson’s, and the recent release of Kathleen Folbigg, who spent 20 years in prison for murdering her three children and manslaughter of the fourth, showed that expert scientific witnesses should be independently selected based on their expertise, and that the evidence they give should be proved reliable before a jury could hear it.

She also called for a review mechanism that sits alongside the court system to look at possible miscarriages of justice.

“The system ought to be more robust than it is. And it can be. It can be reformed. It takes some political will; it takes some courage,” she said.

Arabia said she had serious concerns about a number of the “strands” of the scientific and circumstantial evidence used to convict Farquharson. Among her concerns were the quality of the medical and traffic reconstruction evidence that convinced two juries and an appeal court of his guilt.

Farquharson told police he coughed and passed out in the lead up to the crash – a condition called cough syncope – which meant he was unconscious when his car drove into the dam.

Lawyers for Farquharson have flagged a new appeal later this year, under a Victorian law introduced in 2019 that allows prisoners to present “fresh and compelling evidence” to the court where a conviction constitutes a substantial miscarriage of justice.

Farquharson’s lawyer, Luke McMahon, said this was a high legal bar which “places the onus back on the accused”, and was “not really an examination of how things unfolded”. Since the convicted person is often in prison, the appeal mechanism also often requires lawyers to work pro bono, or without pay, to take on cases.

Arabia said that “in the vast majority of cases, that is not enough” to address problematic cases.

The Academy of Science has called for a standing tribunal like those in New Zealand, the United Kingdom and Norway, which employ dedicated staff to identify and investigate possible miscarriages of justice. Known as a Criminal Cases Review Commission in the UK and New Zealand, these bodies can examine cases where there are developments in scientific or other evidence, then refer them, with advice, back to the courts or the government.

Asked if the Farquharson case would be a lead candidate for such a tribunal, Arabia said the medical evidence of cough syncope “would be considered new evidence that should be assessed by something like a Criminal Cases Review Commission to see if it meets a threshold to reopen and re-examine this case.

“It should not be beyond the realm of possibilities to establish a criminal case review commission in Australia and to resource it adequately. After all, this enables the delivery of justice to the Australian people. It should be a bare minimum requirement as part of our justice system,” she said. “Australia really is an outlier in this area.”

Police involved in the Farquharson case declined interviews, but Assistant Commissioner Glenn Weir said in a statement that Victoria Police “stands behind the rigorous investigation which led to the 2010 conviction of Robert Farquharson”.

“We consider this matter finalised and will not be commenting further. In the event of any appeal by Farquharson, we will respond as required,” he said.

A recent book by Stephen Cordner, the head of international programs at the Victorian Institute of Forensic Medicine, and retired physician Kerry Breen, said the UK case review commission had referred 657 cases to the court of appeal over 22 years, with 441 convictions quashed.

Translated to Australia, that would mean eight or nine wrongful convictions a year, they wrote in their book, Wrongful Convictions in Australia.

In the United States, the Innocence Project had overturned more than 350 cases. False confessions, inaccurate eyewitness evidence, misleading forensic evidence, police misconduct and bad defence were key errors, they wrote.

Arabia has also called for changes to the treatment of expert evidence. Currently, people accepted as experts can give their opinions in court based on their knowledge, but they are selected by the parties – prosecution and defence – and are not always the most qualified people, Arabia said.

“How do we get the right experts before our judges and juries, selected for the right reasons, not … because they’re good presenters in court, but because they are the best possible expert who has the best available knowledge?” Arabia said.

The Academy of Science also wants a “reliability standard”, so that courts do not admit expert evidence unless it can be demonstrated that it is reliable.

In the absence of such a standard, Arabia said, “pseudoscience and junk science can be admitted into court, and juries and judges will consider that as part of their deliberations. I think most people would … be shocked by that.”

Arabia said accomplished scientific experts often did not want to give evidence in courts because “it is such a hyper-adversarial situation, and what ends up happening is that those experts are asked about matters that are well beyond their area of expertise.

“We have scientists who come to the Australian Academy of Science, having been expert witnesses in a case, thinking they’re doing the right thing, who have felt so cornered or manipulated in that process that they will never do it again,” she said.

“What a great loss for our justice system, that some of the most reliable and best minds in our country feel that that is a forum where they can’t present their best, their knowledge.”

Arabia said reform would require attorneys-general at the state and federal levels to “roll up their sleeves and commit to looking at improving the systems so that they can deliver justice for everyone equally”.

Victorian Attorney-General Jaclyn Symes declined requests for an interview on the academy’s proposals. In a statement, a departmental spokesperson said: “Victoria’s justice system has processes in place to ensure the quality and reliability of forensic evidence presented in court.”

The government was monitoring the effectiveness of these processes, the statement said, and was “reviewing any opportunities for improvement, including discussions with other states and jurisdictions”.

NSW Attorney-General Michael Daley’s spokesperson said there were “existing mechanisms in place” to allow the state’s courts to consider scientific evidence and also for “ad hoc inquiries into convictions, as occurred with the 2022 Folbigg Inquiry”. The state’s experts code of conduct said their “paramount duty is to assist the court impartially”.

Federal Attorney-General Mark Dreyfus declined to comment.

Arabia said courts were doing their best, but advances in science made it difficult to be across all the detail.

In the Farquharson case, Arabia said she was concerned by medical evidence about cough syncope which painted the condition as “extremely rare”, and the traffic reconstruction evidence, in which police experts said the car was subject to three conscious steering inputs by the driver, who therefore could not have been unconscious.

She said there were also questions about the memory evidence of two key witnesses. One, Dawn Waite, did not come forward until four years after Farquharson drove into the dam. Another witness, Greg King, told how his memory of a conversation incorporated more features over time of events that had subsequently occurred.

“We know scientifically that memory evidence is quite unreliable. And memory can be open to change based on external stimuli, things like media reporting, things like discussion, things like looking at photos, dreams,” Arabia said.

Victorian Criminal Bar Association vice chairman Jason Gullaci, SC, said most lawyers would welcome another layer of review from a criminal cases review commission.

“It’s an excellent idea. And I think it’s got real merit,” Gullaci said. “Where there are advances in science that then call into question previous expertise and opinions that were thought to be valid, but that if it has had a significant impact on a trial and conviction and is likely [to have] caused a miscarriage of justice, I think the criminal lawyers would want that rectified, whichever side of the fence they stand on.”

 

This article was at www.smh.com.au/national/victoria/it-could-be-any-of-us-top-scientists-sound-alarm-over-unreliable-evidence-20240528-p5jh7q.html

Watch the 60 Minutes special episode here. https://www.9now.com.au/60-minutes/season-2024/episode-18

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Building Regulator Toughens Up- Joke?

House collapses, the builder is charged with 9 offences and flees. When he turns up, is tried and convicted he is fined a total of $5,450. He calls it minor and continues working for a friend.  None of the convictions were for the collapse.

May 23 2024

A house collapses, the builder is charged with 9 offences and flees.  When he turns up, he is tried and convicted and fined a total of $5,450. He calls it minor and continues working for a friend. None of the convictions were for the house collapse.

Is this some sort of joke?  No.  It is another example of our legal system in action- in this case the ‘beefed up’ NSW Building Regulator. Building Minister Anoulack Chanthivong says the charges reflected the new powers of the Building Commission.

See SMH article below:

On the run for months, builder of collapsed home convicted of fraud

By Anthony Segaert and Olivia Ireland

May 23, 2024

The man whose company built a Condell Park home that collapsed in the dead of night last year has been found guilty of a string of fraud-related charges.

Thirty-five-year-old George Khouzame, director of Hemisphere Constructions, was on the run from authorities for nearly two months at the beginning of the year, before he handed himself in to NSW Police in March.

Khouzame, from South Hurstville, pleaded guilty to nine offences relating to using an unlicensed contractor and the fraudulent lodging of insurance applications on three different worksites, but Building Commission NSW and the state’s police failed to secure any prosecutions relating to the Condell Park home collapse.

When asked about the charges, Khouzame told the Herald that, after having his building licence cancelled shortly after the collapse, he had paid out “every single home owner” who had contracted him for work and his fraudulent insurance claims were “just negligence from my office”.

“It was a very, very, very, very low-end fraud. It was literally an honest mistake from my staff in the office,” he said of the nine convictions: three charges of publishing misleading material to obtain financial advantage, two charges of dishonestly obtaining financial advantage by deception, three charges of making false or misleading statements in an insurance application, and one charge of engaging an unlicensed contractor.

Investigation began before the collapse

Attention turned to Khouzame and his company on Good Friday last year, when a young family renting the home built less than 12 months earlier was woken at 4.30am by the sound of the ceiling collapsing.

Neighbours described hearing what sounded like an explosion as a portion of the house in Sydney’s south-west fell down, hitting several cars parked underneath. A previous tenant of the property said one room had earlier “completely flooded”.

But the collapse was less surprising to authorities, who had launched an urgent investigation into Hemisphere Constructions a month earlier. Only a day before, NSW Building Commissioner David Chandler had made an unannounced visit to a worksite in Concord operated by Hemisphere Constructions and found what he described as “pretty obvious” unsafe work practices.

“There is a strong correlation between unsafe worksites and the potential for serious defects to be incorporated in the project,” he told the ABC.

After cancelling Hemisphere’s building licence the following month, Fair Trading, the predecessor to Building Commission NSW, and investigators from Bankstown Police spent the year looking into the company. By January, they were ready to arrest Khouzame.

On visiting multiple homes connected to him, they encountered a problem: Khouzame was nowhere to be found.

After another month of searching, NSW Police obtained an arrest warrant and appealed to the public to find the wanted man.

“George Khouzame, aged 34, is wanted on an outstanding warrant in relation to fraud offences,” NSW Police posted on social media. “Anyone with information into his whereabouts is urged to not … approach him but to call triple zero (000) immediately.”

He handed himself in at Bankstown Police Station at 5.30am on March 6, and was arrested on the spot.

‘You should be saying thank you’

The builder in May pleaded guilty to the offences relating to his management of homes in Punchbowl, Macquarie Fields and Chester Hill.

At two of the three sites, Khouzame significantly understated how much his building projects were worth on insurance applications.

For a Macquarie Fields dual occupancy construction project worth $900,000, Khouzame was accused of writing in his Home Building Warranty Insurance that it was worth $520,000.

“Had the correct value of construction been stated on both insurance applications the value of the insurance premiums would have totalled $14,799.00 creating a deficit of $7517.94,” the facts tendered to the court read.

For a home renovation in Punchbowl, Khouzame listed the construction value to the insurance provider as $150,000 instead of $400,000.

He also pleaded guilty to engaging an unlicensed contractor to install windows and doors at a site he was renovating in Chester Hill.

Khouzame, who called the Herald on Wednesday from a private phone number after numerous attempts to contact him for comment, said the offences were “all they [the investigators] could come up with over a 10-year investigation and 350 homes”.

“The charges were dismissed in relation to the fraud and I pled guilty to only one charge for the home warranty application,” he said. “OK buddy?”

But after the Herald read out his nine offences, to which he pleaded guilty and was fined a total of $5450, Khouzame repeated his claim that it was “very minor fraud”.

“We failed, our staff failed, to update the home warranty to reflect the variations [in project costs] … It was just negligence from my office, and I did accept it, and I apologised.

“So we had existing 24 open projects when the house collapse happened and the licence was cancelled, and we paid out every single home owner and every single client.

“I didn’t run away from the problem. I approached the problem head on and I [had] done what I had to do to make sure that every client and every home owner has been supported by me personally.

“You should be saying, ‘Thank you, good work’.”

In its first six months, Building Commission NSW has cancelled, suspended or disqualified 136 construction licences.

“We’re starting to see the dividends of the expansion of powers the NSW government provided to the Building Commission,” Building Minister Anoulack Chanthivong said.

“It now has an expanded tool kit to improve build quality and weed out those who don’t play by the rules.

“Already this year, we’ve had a nearly 100 per cent increase in the number of building work rectification orders issued, helping to deliver compliant, safe and trustworthy homes.”

Chanthivong did not respond to questions about why charges had not been laid over the house collapse.

With his licence suspended, Khouzame is now working as a labourer for a friend’s food company.

 

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The Law is a Dangerous Ass

3 March 2024
For some inexplicable reason, people seem to think that the legal systems in the Anglosphere are good or at least adequate. They have huge delays, cost a fortune and quite often come to absurd conclusions. I will leave the last point for the moment and just consider one of its most significant current delays.

Four years ago, the unsuccessful Presidential candidate, Donald Trump, did not accept the election result and encouraged his supporters to invade the Congress. People were killed.
Most people would call this a ‘Coup Attempt’.

Yet years later the legal system now has the US Supreme Court, some of whom were appointed by Trump, deciding whether an ex-President can be charged for encouraging a coup or can pardon himself if he is re-elected. The Supreme Court is not expected to be able to come to a conclusion by November, so 4 years after the attempted coup, Trump will get another go.

Would any non-Anglo country tolerate such absurd delays? If it happened in a South American country our media would lampoon their system. The headline would be ‘Coup Leader Walks Free’ or similar.

You may have seen the 4 Corners of 26 February where a reporter tracked down an alleged Rwandan genocider living in Brisbane and wondered about his extradition and the Australian legal system’s response. Part of that program was a discussion of how the Rwandans had used a form of community discussion justice to punish the genociders, give them sentences and achieve a national reconciliation between the tribes. It was food for thought.

We all say the ‘The law must take its course’ or ‘Due process must be followed’. It is time someone said, ‘Processes that take more than 4 years to call a revolutionary coup leader to account are not satisfactory’, or ‘Exaggerated respect for this unsuccessful legal system may give the whole Western world the leader that destroys it’, and actually did something about it.

Here is an article in today’s Sun Herald pointing out that Trump is still likely to be able to stand in the elections. It is pretty wordy.

Anyone who hopes to see Trump in prison soon will be disappointed

The Economist- in Sun Herald 3 March 2024
The flimsiest of the cases is set to go first, and all face delays or uncertain penalties.
The prosecutors trying to convict Donald Trump face a highly unusual deadline. Retaking the presidency would offer Trump his best escape from jeopardy: once back in the White House, he would be able to squelch or pause the four criminal cases lodged against him. Hence prosecutors’ urgency – and a public interest – in concluding those trials before November. Miss that opportunity and he may never be held accountable in a court of law for his alleged crimes.
The 91 felony charges against Trump are both serious and picaresque. The weightiest are related to his role in the attack on the Capitol on January 6, 2021. His attempt to overturn his defeat in the 2020 election was the most shocking and serious assault on the constitution in decades, if not since the civil war; whether a jury would see Trump as guilty or innocent has obvious salience as voters prepare to decide whether to return him to the presidency. There are additional allegations about election interference in Georgia and the mishandling of state secrets. And, there is also a plot involving a payment to a porn star.
Trump insists he has done nothing wrong in any of the cases discussed in this article, and has so far incorporated all of them deftly into his restoration narrative of victimhood and revenge seeking. The fact that two of the criminal indictments were brought by district attorneys elected to their offices as Democrats has provided ballast for his claims that he is being targeted by political enemies.
Still, he will frequently appear before judges as an accused felon over the remaining eight months of the campaign. Indeed, Americans are already growing accustomed to a splitscreen of scowling courtroom appearances and Make America Great Again rallies that has no precedent in past presidential elections.
Yet, Democrats who wish to see him locked up by election day will be disappointed. It seems probable that at most one or two trials will conclude before voting starts, and even if the former president is convicted of one or more felonies, he is likely to avoid or at least delay a prison term until after the election is decided.
A trial in the January 6 case could take place in the US summer or early autumn, depending on how Trump’s appeals unfold. If it does go forward during the campaign, wall-to-wall news coverage will refresh memories of how Trump’s Big Lie and his attempt to stop Congress from certifying the vote led hundreds of his supporters to storm the Capitol. Five people died as a result of the attack and more than 150 police officers were injured.
However, instead of a trial-of-thecentury about an event of plain historical significance, the flimsiest of the four cases may go forward first. That trial is scheduled for March 25 in Manhattan.
Alvin Bragg, a Democrat who is the borough’s elected district attorney, brought an indictment that does not lack ambition. Trump stands accused of 34 felonies for falsifying business records to hide hush money paid to Stormy Daniels, a porn actress, before the 2016 election. Prosecutors allege that Trump ordered his lawyer, Michael Cohen, to buy Daniels’s silence for $US130,000. After he won the election he reimbursed Cohen and marked those payments as legal expenses.
FIRST BUT NOT FOREMOST
The case is convoluted. Normally, the charge would be a misdemeanour. To elevate it to a felony, prosecutors must prove the records were falsified with intent to commit another crime. Bragg has alluded to several other offences in legal filings. He could say the payments violated federal campaign finance laws since they were not declared as contributions, or that taxes were not paid on them.
Bragg’s case falls in a legal grey area. Federal election law pre-empts state prosecutors from bringing cases about federal races. By pursuing an untested legal theory, Bragg has bolstered Trump’s claim that he is the target of a partisan prosecution, says Jed Shugerman of Boston University School of Law.
There are other problems with Bragg’s case. The star witness, Cohen, lacks credibility, having lied to Congress and a federal judge. The carnivalesque nature of the trial – a former tabloid publisher and a former Playboy model will probably testify will play to Trump’s advantage, making the case seem like reality TV, a format in which he is highly practised. Even if Trump is convicted, there seems to be little chance that the judge would sentence him to prison on such novel charges involving the manipulation of records.
A BIG QUESTION MARK
The January 6 case was lodged in federal court in Washington DC by Jack Smith, a special counsel in the Department of Justice (DOJ). Smith charged Trump with four crimes, including conspiracy to defraud the United States and to deny voters their rights by using lies, ‘‘fake’’ electors and other schemes to thwart the lawful certification of the electoral-college vote by Congress on January 6. The indictment was tight, conservative and designed to move quickly, says Ryan Goodman of New York University School of Law. Though it lists six alleged co-conspirators, only Trump was charged. (The others may be later.) No count relates directly to the violence of the Capitol riot. That would have been a heavier lift for prosecutors.
A charge of insurrection or seditious conspiracy – used to convict a number of far-right militia leaders who stormed the Capitol – would have required proof that Trump knew the protests that day would turn violent. Incitement would have elicited a potentially strong First Amendment defence. Still, Smith will need to show criminal intent. Trump’s lawyers contend that he genuinely believed he won and that advisers said his pressure tactics were legal. That may not be a winning defence: plenty of people repeatedly told him he had lost. But it is a viable one. Rebecca Roiphe of New York Law School cautions against calling the case rock-solid.
The biggest question mark is the trial’s timing. Initially, the presiding judge, Tanya Chutkan, an Obama appointee, moved the case along quickly. But in mid-December she froze trial preparation so that Trump could argue in a federal appeals court that the case should be thrown out on presidential-immunity grounds. A three-judge appellate panel unanimously rejected his request earlier this month. The Supreme Court agreed to hear the case this week, adding a delay of perhaps months.
By July at the latest, Judge Chutkan should have a green light from the Supreme Court to unfreeze the proceedings. (Hardly anyone expects the justices to side with Trump on immunity.) Several weeks of preparation will need to be recouped before the trial actually gets under way. Then the trial itself will take about two to three months. That gives decent odds of a verdict by election day.
If Trump is convicted, sentencing will be up to Judge Chutkan. She has required prison time for every convicted Capitol rioter whose trial she has overseen. But that seems highly unlikely for a former president. A more plausible scenario would be a fine, probation or house arrest. In any event, he would remain free while he appealed against the conviction.
THE GEORGIA AFFAIR
If Smith’s federal indictment over election interference is a targeted harpoon, its state counterpart in Fulton County, Georgia, is a giant trawl net. Both rely in essence on the same facts and witnesses. The big difference is that Fani Willis, a Democrat who is the elected district attorney in Fulton County, named 18 co-defendants alongside Trump, whom she charged with 13 felonies. All were indicted under an anti-racketeering statute first used against the mafia. A conviction can result in prison time of five years or longer. Willis says she wants the trial to start in August and, given the number of co-defendants, expects it to run into 2025. Three have pleaded guilty so far.
But the case has been derailed by revelations of an affair between Willis and a lawyer she hired onto her team. The defendants want her disqualified, prompting a mini-trial about the nature of the relationship. They argue that Willis has a personal stake in prosecuting them, to see her paramour enriched – he made $US728,000 on the job, and paid for at least a share of the couple’s holidays together. Willis denies any impropriety and delivered combative testimony in her own defence at a hearing on February 15.
If the judge, Scott McAfee, disqualifies her, a state agency will appoint a new prosecutor, which could take a year or more. Her replacement could alter or even dismiss the charges. Even if Judge McAfee lets her stay, he will probably allow the defendants to appeal against his decision and pause the case. Don’t bank on a trial before the election, in other words.
STRAIGHTFORWARD BUT SLOW
On the face of it, the case brought by Smith involving Trump’s alleged mishandling of classified documents is the most straightforward. But the judge randomly assigned to the case, Aileen Cannon, who was appointed to the bench by Trump, has moved slowly, and there appears to be little chance that it will reach trial before November.
Here the facts and the law are uncomplicated. Federal prosecutors charged Trump with 40 felonies over his alleged wilful retention of national defence papers and his refusal to give them back. According to prosecutors, after Trump left the White House, he ordered aides to hide dozens of classified documents from the FBI. They were caught on video shuffling boxes.
Trump appears to have misled his own lawyers, who certified to investigators that everything had been handed over. It took a raid on Mara-Lago, his Florida estate, to get them back. Some dealt with America’s nuclear arsenal. Trump is said to have twice shown documents to visitors and acknowledged that they contained secrets.
What makes the case thorny has less to do with its merits than with procedural hold-ups. In national security prosecutions the government tries its best to withhold classified evidence from the defence, not to mention jurors. The judge decides what material has to be disclosed and to whom; those decisions are contentious and can be appealed against. The backand-forth means delays.
Whenever the trial does start, it will be held in Trump’s backyard in Florida and could draw a sympathetic jury. A single holdout juror can block criminal convictions, which require unanimity in America. Even if he is convicted, sentencing will be up to Judge Cannon. In normal circumstances someone found guilty of the alleged crimes would risk going to prison for a few years. But again that seems unlikely in this instance.
I BEG MY PARDON?
Say Trump wins in November and gets convicted and sentenced in any of the four cases before taking office: what then? If he is convicted in either of the two federal cases, he will appeal. After the inauguration he might try to pardon himself, or better yet issue a blanket prospective self-pardon. (His attempt to pardon himself would not help him in either of the state cases, since presidential pardons do not cover state crimes.) No president has ever attempted that. When Richard Nixon contemplated it during the Watergate scandal, the DOJ said it was improper and he was let off by his successor, Gerald Ford. In any event, the Supreme Court would have the last word.
A surer bet would be for Trump to appeal against his conviction, and then, while the case was winding through higher courts, order his attorney-general to drop it. Again, that trick would not work in Georgia or New York, since state cases sit outside the Justice Department’s purview. Yet DOJ policy says a sitting president cannot be prosecuted, and while the advisory opinion is unclear about state matters, it seems likely that all of Trump’s criminal cases would be paused while he held the presidency. Prosecutions might resume in 2029 when he leaves the White House. At that point, he would be 82.
Trump is partly right about the charges he faces. They are political – not in the sense that the cases are partisan attacks, but because of how they may or may not change America’s political trajectory. Over the next eight months the American justice system will be tested by Trump’s defiance and delay. How that system performs will provide a measure of its own integrity and resilience.
It will also determine whether a candidate who sneers at the rule of law is able to manoeuvre his way past the charges against him long enough to win in November and become a law unto himself.
The Economist

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Gaza: The Final Solution?

15 February 2024

As the Israeli army threatens to invade the last part of Gaza, Australia, Canada, NZ, the UN and most of the world ask them to stop.  The citizens of Gaza were already crowded into a very small area. Then they were moved to the South, then into ever smaller areas.  Now military action will kill large numbers who have nowhere to shelter. It is like shooting fish in a barrel.

Netanyahu says that he wants to destroy Hamas and that the hostages must be there somewhere.  Presumably as he has not found them in the areas he is already occupying.

He is still trying to defeat Hamas militarily and always has intelligence that they are hiding in the civilian population.

The idea that Hamas is separate from the population it governs is absurd. It may have a military wing, but it is a political party that was voted in. The reason that they were voted in was because the Palestinian Authority were seen as patsies for the Israeli government, corrupt and concerned with land rezoning kickbacks in the putative capital of the West Bank Palestinian state, Ramallah.

But even if the Israelis killed everyone associated with Hamas, their actions have guaranteed generations of hatred for the Israelis. The ‘war on terror’ was a silly slogan, as terror is a means of fighting that underdogs use, not a religion, a cause or a people.

Which begs the final question; what is Israel doing?  Netanyahu is under a great deal of pressure personally in that he is facing corruption changes and he has actually passed legislation to disempower the courts. This was a cause of many demonstrations before the Hamas raids on 7 October that triggered the current war. He is also dependent for power on far-Right Zionist parties for the survival of his government.  In a way he needs the war.

But I wonder if this final stage is actually the final solution of the ‘Palestinian problem’.  Israel has pretended that there would be a ‘two state solution’ as it pushed Palestinians off their land and out of their Jerusalem houses, gave their jobs to immigrant guest workers so that they had no means of support, and kept them in a gated city, Gaza.  Having deliberately made a two state solution impossible, they then made peace with adjoining countries and talked about a ‘regional solution’, which sounded very like ‘you take the Palestinians’.  Now, they may be saying to the rest of the world, ‘Are you going to open the border and let these people escape to the Sinai or will we kill them all?’  Of course if they go to the Sinai they will be a huge refugee problem, but it will not be Israel’s problem, it will be the world’s problem- a ‘regional solution’, as Israel will not take them back.

Israel is already a pariah. It has nowhere to put the Palestinians and would have to rebuild Gaza, which it will not want to do. It cannot integrate them as is being attempted in post-Apartheid South Africa, as the enmity is probably now worse than it was in South Africa. And Netanyahu’s far-right religious backers probably see this as an opportunity for a final solution. Do we really believe the stated reasons for their actions?  Who will blink first?

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Gaza Outcomes

4 February 2024

As Israel destroys all of Gaza and the refugees huddle on the beach one might ask what is the end point?

Israel claims it wants to destroy Hamas, because it is a ‘terrorist organisation’

But what does this mean? A terrorist is someone who uses attacks on civilians to create fear in a population to achieve a political end.  One could ask if that was what the Israeli occupation of the West Bank was doing already, failing to recognise land title, awarding Palestinian-occupied land to settlers and then sending the Army to defend the donated land for the ‘settlers’.

But leaving that aside, it is true that Hamas or groups associated with it used terrorist tactics on October 7th.  Terrorist tactics are almost always used by the weaker side for the simple reason that they cannot hope to win a more conventional conflict.

But Hamas were the elected government of Gaza, elected largely because the Palestinian Authority was seen to be corrupted by land development money and a patsy organisation for the Israelis.

Palestinians are actually quite an nonreligious people, but saw Hamas as at least on their side.

The Israelis response was at first called ‘self defence’ but the idea that killing 28,000 mostly civilians and flattening a whole city is an appropriate retaliation for 1,200 deaths seems totally unreasonable.

It is also unreasonable to think that Hamas can be defeated militarily. It is not a military problem.  Even if every last Hamas member were killed, their ideas will never be separated from the rest of the Gaza population. They have witnessed this unrestrained killing and destruction of their homes- it would be difficult to believe that in the long term they will not hate Israel.

So what is Israel’s objective? One could answer that it is the short-term survival of Netanyahu politically, but that is too simple.  Israel has pretended it wanted a two-state solution, which means giving the West Bank to the Palestinians. Yet it has systematically placed 750,00 settlers on all the high points of the West Bank, supported them and armed them to the teeth. It has deliberately made a two state solution impossible as a policy for the last 70 years.  As Netanyahu made good relations with Qatar, Dubai and Saudi Arabia, he started to speak about a ‘Regional Solution’ to the ‘Palestinian problem’.  This sounded very much like asking his Arab neighbours to take Palestinians as refugees/migrants.

Now the Gazans will have nowhere to go.  Their city is totally destroyed.  Who would pay for its rebuild?  Who will govern this wasteland?

It seems obvious that the Israelis want the Gazans to go into the Sinai desert in Egypt and then become a refugee problem for the UN and the whole world- i.e no longer a problem for Israel.  It has worked with the Rohingyas in Myanmar.

Biden is talking about a two-state solution, and not having the Gazans go into Egypt. How realistic is this?

 

Fillipo Grandi was Commissioner -General of UNRWA (the UN Relief and Works Agency) and visited Australia as a guest of the UN Association of Australia in 2012. He was Italian, a consummate diplomat and in charge of relief for Palestinian refugees. I chaired a meeting at the Sydney Peace Foundation at Sydney Uni where he was the guest speaker. He was extremely careful not to criticise Israel to the extent that I as a debater and politician marvelled at his skill as he fielded loaded questions from each side of the debate.

According to Wikipedia UNRWA now has 30,000 staff and employs a lot of Palestinian refugees to help administer their aid programme. This is hardly surprising.  There are few jobs for Palestinian refugees and the UN needs relatively cheap staff. Naturally they would use Palestinians to help their own people. It is therefore hardly surprising that with Hamas as the Gaza government, some UNRWA staff would be involved with them, and also unsurprising that some would be sympathetic to Hamas.

We might ask who discovered the connection between a dozen UNRWA workers and Hamas? Israeli security?  Now we see the US, Australia, the UK and others stopping funding to UNRWA.  The Gaza refugees are already starving.  Who does this aid cessation benefit?  Israel of course. The last hope of the Gaza refugees is taken away.

It seemed that the only two possibilities for a resolution of the Israeli/Palestine problem were either a two-state solution or a one state solution as advocated by Jeff Halper in his book ‘An Israeli in Palestine’ which was an Apartheid  reconciliation process similar to what happened in South Africa.  The chances of either of these solutions seems remote now, so the Israeli solution, of bombing and starving Palestinians out of Gaza and into Egypt initially and then anywhere else may be the only one.  In the West Bank, with their land taken and the menial jobs now being done by imported Sri Lankans, Filipinos and Indonesians rather than Palestinians, there will be pressure for them to follow their Gaza compatriots into exile.

I hope that I am quite wrong about this, but I doubt it.

Here is a new word for irreconcilably taking someone’s home, Domicide, in an article in The Guardian.

 

www.theguardian.com/world/ng-interactive/2024/jan/30/how-war-destroyed-gazas-neighbourhoods-visual-investigation?CMP=share_btn_link

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What is Israel’s End-Game?

25 November 2023

It is hard to see an end to the Palestinian conflict.

Zionists believe that God gave the Jews the historic land of Palestine, and this idea has been supported by some Christians who took the Old Testament literally.

After WW2, the Zionists did terrorist attacks on the war-weary British who let them return to Palestine. In 1948 they ‘Declared the State of Israel’ when they were about a third of the population, killed a village of Palestinians, which made the others flee. They then said that no land title prior to the State of Israel existed and all land titles had to be re-registered and all unoccupied land belonged to the State.  They have then declined to register Palestinian-owned land, so they can give away farms in the West Bank or even unoccupied houses in Jerusalem. Settlers, especially from Eastern Europe, are willing to fight to retain land that they are given on the West Bank.

In Jerusalem, the Palestinians had the menial jobs, which made it hard to pay the high rents there, and more recently Sri Lankans or others are given the jobs, so the Palestinians have to go to Ramullah to find work, which does not pay as well, so they have trouble paying their Jerusalem rent. If they move out or do not visit much, as checked up on by their electricity, water or phone location records, their houses are ‘unoccupied’ and given away. The bottom line of all this is the Palestinians being gradually squeezed out of the West Bank and Jerusalem. If they ever leave Israel they may not be permitted to return.

The settlements on the West Bank are now in a pattern on the high ground linked by roads so that the Israeli military can support any settlers troubled by the Palestinian farmers, now defined as terrorists, who try to defend their land. In Jerusalem, Jews own the West side and now take houses in Palestinian East Jerusalem, house by house.

As all this has gone on incrementally for years, Israel has pretended that it has a ‘two state’ solution, as it put the 700,000 settlers in the area that could or would have been Palestine. In other words it was happy to pretend that there was a ‘two state solution’ as they systematically made it impossible.

Hamas recognised that this was a nonsense. They won the elections in Gaza because the Palestinian Authority was corrupted by land deals.  Israel bullied Jordan and Egypt into compliance then started making wider friendships with Qatar, Dubai and Saudi Arabia and started to talk about ‘regional solutions’ to the Palestinian problem. It looked like the ‘solution’ for them was to go as refugees to anywhere but Israel.  This is why Hamas struck. Naturally everyone is upset about this, but no one suggests what they might have done as an alternative. Perhaps just attack an Israeli military base?

Now Israel has struck back. It is hard to see that flattening Gaza is a rational response.  Netanyahu, being personally corrupt, has retained power by sharing it with evermore dodgy coalition partners, from the fanatical Zionists to the fanatical Right wing. He has also tried to undermine the judiciary to avoid personal corruption charges. Now the much-vaunted Israeli spy network has been caught off guard, probably because they relied on AI tracking of Palestinian communications networks, which Hamas, sensibly enough, decided not to use.  Netanyahu, who was in trouble already and will now be blamed for the Hamas success has hit back to be the strong man.  But simply flattening a city with all its civilians may be revenge, but it is not a solution. He has flattened the Northern half of Gaza, while telling the citizens to move to the South, but cut off all food, water and medical supplies. Now he is bombing the South as well.

Where to from here? Israel seems more bent on revenge than having any rational policy. The other possibility is that they will make Gaza unlivable, and force the US and UIN to allow the Gazans into Egypt as refugees, which will start as temporary and become permanent as Israel does not rebuild Gaza, or let them return to Israel.  Israel will be pariahs, but they are already, and the refugees will be someone else’s problem. Numerically there are as many Palestinians as Jews and even if the Gaza population were moved, the West Bank Palestinians would remain.

The other alternatives are:

  1. The ‘Two State solution, with Israel either moving its 700,000 settlers from the West Bank, or getting them to live with the Palestinians sharing the land that they once owned or
  2. Israel grants equal rights to Palestinians within Israel, admits it was an apartheid state and has a reconciliation process based on the South African model.

In that the ‘Two State Solution’ and the ‘Apartheid reconciliation’ model both look absolutely impossible with the bloodshed, killing and bitterness that has been rekindled as never before, it is very hard to see a solution.  Yet there are still those who want Israel forced into a ‘Two State solution’ by sanctions, as seen below:

 

Two solutions for the “Question of Palestine”

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Myanmar- some hope in Rebel Victories.

23 November 2023

Three groups in northern Myanmar have joined together in Operation 1027,  after the day they launched their offensive (27 October). They have been very successful against the hated military dictatorship.  The question is whether this will be the beginning of the end for the junta, who have been helped a great deal by the Chinese, presumably for economic concessions.  But the Chinese may not be happy with the regime, as it has tolerated a ‘scam industry’ near the Chinese border, and it may also be that the Chinese are not sure that the junta have enough control of the country to allow a rail line to be built to a port on the Myanmar coast, which the Chinese want to use to export via the Bay of Bengal and the Indian Ocean without needing to go around the Malay peninsula.

 

It is speculated that the Chinese have given tacit support to the rebels, and if this is the case the junta will have more trouble.

 

I visited Myanmar in 2017 when Aung San Suu Kyi was theoretically in power, but with the unpopular military junta still really in control. (There are a number of posts on my website, chesterfieldevans.com if you search ‘Myanmar’).

 

There was a coup in 2021 and Aung Sang Su Kyi was forced from her figurehead power and charged with treason because she had a few walkie talkies to talk to her staff, which were made ‘illegal’ because the junta could not eavesdrop on them.  There was some  resistance to the coup and unarmed people were shot, but it has led to more organised resistance.

 

Myanmar is a very divided country so there are different ethnic groups and armies resisting with varying success in different parts of the country. Not much news of this has been  in the mainstream media here, until this rebel success.  The military are universally feared and hated, which was evident even to the most casual tourist. They are not done yet, but if they lose Chinese support and the people believe that they can be overthrown, they will be.

 

https://thediplomat.com/2023/10/operation-1027-a-turning-point-for-myanmars-resistance-struggle/

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The Hamas Perspective on the 7 October attack on Israel

10 November 2023

Terrorism is a word that is often ill-defined.  To call someone a terrorist is to assume that they are sub-human, cannot be negotiated with and must be destroyed at all costs or by all methods.

 

It is forgotten that the US is credited with inventing guerilla warfare during their war of independence aka revolution against Britain. It is also forgotten that when large numbers of Jews wanted to return to Palestine after WW2 the Irgun, their militant group, placed a terrorist bomb in the King David Hotel, the military and civil headquarters of the British Mandate in Jerusalem in 1946.  The war-weary British allowed increasing numbers of Jewish refugees into Palestine, and Ben Gurion declared the State of Israel  in 1948.

 

Terrorism is the use of violent action to achieve a political result.  It is a tactic usually deployed by the weaker side, as they cannot win a military or political struggle.  It naturally strikes fear into the civilian population as they recognise that any one of them could be a random victim; hence the emotive force of the word ‘terrorist’.

 

But those who use terrorism usually do so in a calculated way, and if progress is to be made in resolving the issue, there must be rational calculation in the response to it and dialogue if possible.  An emotive or irrational response is likely to worsen the situation, and Israel’s carpet bombing of Gaza would have to be in this category.  Unless all Palestinians can be removed from Israel, there is likely to be strife  in Israel as long as the Palestinains survive, and if they are removed from Israel, there will be a nidus of hate outside Israel.

 

Here is the Hamas perspective which needs a response:

https://fb.watch/odoTimrgOg/

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Corruption and the Law

8 July 2023

I am no fan of our legal system. My view is that is a money-making talkfest, a debating plaything with justice when it is achieved, in no way cost effective.  It is hugely stacked towards the rich and powerful, cumbersome and petty pedantic and it leaves huge issues of justice unacknowledged and unaddressed.

Many years ago the Non-Smokers Movement tried to stop tobacco sponsorship advertising on TV. It was perfectly obvious that Marlboro was a major sponsor of the Australian Grand Prix in Melbourne, that all the cars and signs were set up for a TV extravaganza of Marlboro exposure on Channel 9. Non-Smokers Movement had been going about 20 years trying to get rid of tobacco and smoking.  We presented all the evidence with photos of what had been set up the livery of the cars. The judge ruled that we did not have ‘standing’ to bring the case as we would not lose money from the telecast, because we did not have an ‘interest’. An ‘interest’ equalled money, and we were considered lucky that the judge allowed us to present the case as he knew we did not have an ‘interest’ or ‘standing’.  Be grateful for crumbs- we got the publicity, though of course the telecast went ahead, and they were awarded their costs (which in fairness Kerry Packer did not demand).

When I was in Parliament a whistle-blower nurse, Nola Fraser was on 4 Corners making allegations that there was a big problem with health care in Campbelltown and Camden Hospitals.  She was relatively senior nurse, who was sometimes night supervisor at Camden.  I contacted her and she told me about the corruption in the hospital.  She had over a hundred reports, some details on about 70, the names of about 35, reasonable detail of about 15, and a lot of information on about 7 cases.  Her stories were credible. The patients were dying because doctors were not available, trying to cover both the ED and the wards at the same time, or in theory on call at two hospitals at the same time, and ambulance protocols had resulted in at least one death, as inter-hospital transfers were low priority, but resulted in a lessening of interest at Camden, as the patient was ‘about to go’.  She had tried to speak to senior management as the ‘case conference’ meetings produced no results, and management had referred her to an officer who could not do anything but refer her back to the senior management in a sort of endless fob-off merry-go-round.  She used the word ‘corrupt’.  I asked her if she meant a corrupt process or if some of the hospital staff were on the take.  ‘No’, she assured me, ‘they are not making any money, it’s a corrupt process; they are supposed to be helping people, but they are killing them and covering it up’.  Clear enough.

I initiated a process which led to an inquiry on the complaints system within NSW Health and concentrated on Campbelltown and Camden Hospitals.  She was a major witness; a lot of problems were found and South Western Sydney Area Health Service got an extra $360 million in the following year’s budget.  But it went further. NSW ICAC initiated an inquiry to look at Nola’s allegation of corruption.  Unfortunately I did not follow the mechanics of this closely enough.  After an inquiry for some time at a cost of $1.3 million, Nola Fraser was excoriated as a person of no credibility as she had not proved her allegation of ‘corruption’ against the senior staff.  But no one had asked the obvious question; what did she mean by corruption?  She was talking about process; they could only think of money- the legal definition.  After the sanctimonious verdict, her life was largely destroyed.  What use was the legal system in getting justice?  Nil.

Now we have findings of corruption against Gladys Berejeklian, who had been brought up in a rather sexually sheltered domestic environment and then chose a dodgy boyfriend and protected him. (SMH 30/6/23) No corruption there as she did not personally gain any money?  It is up to NSW ICAC.

Of course the other big news this week is the Robo-debt Royal Commission. (SMH 8/7/23) Morrison started it; Attorney-General Christian Porter knew about it, and Ministers Alan Tudge (alleged sexual harasser) and Stuart Robert (Morrison loyalist, corporate enabler and generally recognised incompetent) were also responsible. Presumably none of them made any money from the Robo-debt scheme, so they were not corrupt and cannot be prosecuted?  We will see.  The sealed section of the report apparently makes recommendations to the NACC, but can they act on this in the legal system we have?  It is said that there are 4 to be referred to NACC, and the Commissioner waited until NACC was established to release her report, which means that she wants some consequences.  But we have National Anti-Corruption Commission (NACC) chief Paul Brereton saying ‘It is possible for conduct to be corrupt but not criminal’.  Sure is. But does this mean that there is no prosecution no matter how dodgy the politicians allocating the money are?  Looks like it. Endless ‘discretion’?

One other tricky little question will come out in all this- will the public servants be prosecuted? They did not give ‘frank and fearless’ advice and at least some of them knew it was not legal, or might not be.  Probably they knew that it was going to happen anyway, and their own careers would be adversely affected if they made a fuss.  It is very likely that they were correct in this last opinion.  Does the Public Service Act compel them to be honest when there is no such compulsion for politicians? I note the article in The Saturday Paper speaks about public servants being ‘sanctioned’ for breaching the ‘code of conduct’. Sounds like being hit by a wet lettuce- possibly bad for your career in the short term.

The relationship between the public service and political system is interesting. The British comedy series ‘Yes Minister’ showed the public service as foolish. The more relevant Australian series ‘Utopia’ shows it the other way around. Who should have the power and how much?

Years ago the NSW Electricity Commission decided that NSW needed to commission a number of new coal-fired power stations to open every few years to meet projected energy demand. They were engineers and would obviously have work for their working lives implementing this project. Electricity demand did not rise as anticipated and at one time, NSW had generating capacity of 76% greater than peak load.  No accountability, no transparency, no discussion.

In the 1980s I worked at Sydney Water and one morning, when in the foyer waiting for a lift, the man standing next to me said, ‘This is the time of day I hate’.  I asked why and he said, ‘When I get to the office I will have to look at the fax machine and see what the Minister has thought of overnight and what I will have to deal with.’  (The Minister was Tim Moore, who was a relatively environmentally active in the Greiner government).  Gradually engineers who had come up the ranks were replaced by politically active managers, who knew nothing about water or sewerage, and staff numbers were cut from 17,500 to about 3,000 staff.  The new managers supervised private contractors, the infrastructure upgrades ceased, no apprentice training was done, no unemployment programs ran, and people with lifetime expertise in niche areas were made redundant.  Large ‘dividends’ from the ‘State owned enterprise’ were put in state coffers. Politicisation was complete by the early 1990s. This happened all over the public service, Federal and State. We have gone from one extreme to the other.

An article on the ABC asked if economists were to blame for Robo-debt, having decided that a certain level of unemployment was necessary to stop inflation. The obligation for governments to achieve full employment was lost, and as government got smaller and welfare was seen as an evil, those who could not get jobs are demonised.  I have written before about the 8 ‘apartheid buses’ that take children from our wealthy suburb to private schools. They make it possible for wealthy kids to avoid contact with much of society. From private schools to universities to political jobs- where is the reality contact? Religion may play a part too.  The world is full of sinners who will be judged and rewarded of punished in the end, so there are ‘deserving’ and ‘undeserving’.  Just as God has all wisdom, so does the neo-liberal market.  The system that allocates resources in a medieval market model, where the townsfolk choose which vegetables to buy, is now assumed to optimally distribute resources with any interference to the model being seen as a disturbance of the natural order of things.  Those who can accept that God must decide whatever the consequences seem to find it easy to believe that the market will sort out jobs and income distribution, and they judge the deserving and undeserving.

I am postulating an out of touch, judgemental government exercising its discretion, creating Robo-debt as the implementation of a philosophy.  Now, what is the crime in this crass stupidity, and what remedy does the legal system or other system in our society have for this folly?  I am not hopeful that there will be significant sanction on either politicians or public servants, though I think the former are far more guilty.  I fear that after a lot of tut-tutting and few resignations from powerful positions, there will be assurances that it can never happen again, but there will be no preventive program for next time either. The only hope is for greater transparency, though Labor’s Liberal-lite policy seems against even that.

NACC at least exists now, so we will see what can be done. Helen Haines, the Independent for Indi who pressed for the NACC has an article in the Saturday Paper of 8/7/23 that urges continual vigilance and effort.

www.thesaturdaypaper.com.au/news/politics/2023/07/06/robo-debt-breaking-news

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Modi’s Melbourne Rally has Australia Kow-Towing Again.

24 May 2023

The spectacle on tonight’s ABC news of visiting Indian Prime Minister addressing a rally in Melbourne sent shivers up my spine.

I had realised that Modi was acting as a Hindu nationalist, and doing quite bad things to Muslims Sikhs and other minority groups.  He was and is using religion as a way of increasing his vote as over 80% of Indians are Hindu.  But in a country of 1.3 billion people are lot are not Hindu, and areas in the North of the country have been suppressed, with the historic separation of Pakistan and Bangldesh (formers called East Pakistan), as well as problems in Sikh Kashmir, where the people actually want independence from both Hindu India who controls them and Muslim Pakistan who wants to.

Modi has used very authoritarian tactics, but has got away with it because the Indian economy has done well. 

Australia is very pro-India at present as the China trade embargos have meant that we are looking to diversify our markets and a rising nation with 1.3 billion people looks just the ideal partner.  Not to mention defence ties, though India has traditionally tried to create a group of non-aligned nations to cool whichever Cold War is going on at the time.

But the rally in Melbourne as shown on ABC News tonight had a huge stadium shouting with Modi in the centre like a rock star.  Our Prime Minister, Anthony Albanese, said that the last time he saw this was a Bruce Springsteen Concert and the crowd were more adoring of Modi than they had been of the Boss, Springsteen. They also hugged, like footballers after scoring.  But it went on. Modi stood alone in the centre and addressed the crowd in their own language.  It was doubtless staged for the Indian elections which are next year.  It seems that our government was complicit.  It is very hard to think that they were unaware of what was being organised, and their part was as direct an endorsement of Modi personally as could have been done.

Having kow-towed to the US on defence last week, and mumbled a few platitudes about Julian Assange, this was another example of the Albanese government being very weak on human rights, or even standing up for anything.  We should have been friends with India without such a party-political statement.

www.themonthly.com.au/the-politics/rachel-withers/2023/05/24/yes-boss?utm_medium=email&utm_campaign=The Politics%20 Wednesday 24 May 2023&utm_content=The Politics%20 Wednesday 24 May 2023+CID_646eeca792ac1e467a7fad04b06e163a&utm_source=EDM&utm_term=Read on free&cid=646eeca792ac1e467a7fad04b06e163a

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