Justice – Page 4 – Dr Arthur Chesterfield-Evans

12/03/2021

Time to Look at the Legal System

12 March 2021

As a schoolkid, I was a good debater and the vocational guidance advice was that I should be a barrister. My father was dead against this idea. His dictum was, ‘Don’t go to court, you will get law but you will not get justice’.

He was a surgeon and to prove his point he took me to a court case where he was an expert witness. A company that manufactured concrete pipes was having an industrial dispute. The workers had stopped work and the union delegate was standing on a pipe giving an impassioned speech about how terrible the company was and that they should all go out on strike immediately. As he spoke a runaway truck crashed through the fence, knocked him off his pipe and broke his leg. It seemed obvious that was injured but he was not at work. The Union claimed that he was at work. The employer argued that he was not at work, and threw in that he was not injured either, which was why an expert witness was needed.

My father’s point was the process had nothing to do with the truth of the matter- it was just a talkfest that would give me the sh-its after a while. He won in the sense that I did not do law.

40 years later I went to a Family Law barrister as a support person for a friend getting divorced. The barrister, unprompted, said that he had thought about being a doctor, and regretted having done law as, ‘there is right and wrong on both sides, it all becomes adversarial, it is random which side you are on, and it is all about money.’

When I lived in New Zealand there was a high profile trial where a man had allegedly shot his brother in law. The brother in law was to inherit the family farm and he was jealous. The evidence looked very strong. His barrister managed to create a shadow of doubt in one of the juror’s minds and he walked free. It then came out that the man had been released charged with damaging farms, killing stock and burning buildings where he felt that he had been slighted, But the jury had not been allowed to know this. The defence barrister, Greg King, a family man with two children suicided a few months later. (Radio NZ 17/10/13). In his obituary people said he was a good kind man who did jobs that had to be done but no one else wanted.

I had a barrister acquaintance who said he had had a bad week in that he had been vehemently abused by a stranger as he tried to buy a pizza. He had been recognised by his critic as the defence barrister for a paedophile. He felt that this was completely unreasonable as he was ‘just doing his job’.

Our legal system is adversarial. Effectively there is a debate, with one side saying that the person is guilty and the other that they are not. It is about winning the argument; the truth is often an early casualty. The people running the system are as affected as those in the dock, albeit differently. The adversarial model in our legal system spills over into our parliamentary party system. It is more about winning than the truth.

Napoleon reformed the French legal system by making it inquisitorial rather than adversarial. The object of all parties to the court proceedings is to get to the truth, then the judge deals with that. Lawyers trained in our system think this is a terrible idea, but it seems very reasonable to me.

Now, because the complainant in the alleged rape by Christian Porter is dead there supposedly cannot be an inquest. No adversary, no action. No truth either.

Minter Ellison is a big end of town law firm which advised Christian Porter. Now its chief executive, Annette Kimmitt is being forced to resign because she questioned the firm’s support for him. Is giving him advice supporting him? Obviously she is not alone in thinking so.

Is there any chance of Australia getting a cost-effective, affordable legal system that gets to the truth, or is it too long after Waterloo?

SMH article today

MinterEllison boss exits after Attorney-General all-staff email

MinterEllison’s board and its chief Annette Kimmitt have ‘‘mutually agreed’’ she will leave the law firm after she sent an all-staff email critical of a senior partner for providing advice to Attorney-General Christian Porter about a 1988 rape allegation.

In an email to staff this week, MinterEllison chairman David O’Brien said the board had come to an agreement with Ms Kimmitt that she would depart the firm.

Managing partner Virginia Briggs, who heads the firm’s infrastructure, construction and property division, will serve as acting chief executive while the board considers a permanent replacement.

Ms Kimmitt has faced pressure since she sent an all-staff email last week that was critical of veteran partner Peter Bartlett for not following ‘‘consultation or approval processes’’ before he provided advice to Mr Porter. The Attorney-General has denied the allegation.

She apologised in the email to staff who may be experiencing pain over ‘‘the nature of this matter’’ and said that she too had been ‘‘triggered’’.

The email divided the firm and implicitly questioned whether the firm was right to represent Mr Porter.

Mr Bartlett, who also provides advice to the Herald, wasn’t aware of the email until it landed in the inboxes of the more than 2000 staff and partners it was sent to, some of the firm’s lawyers have said.

Tammy Mills, Chris Vedelago

06/03/2021

JobKeeper becomes an Unaudited Subsidy to Big Business

6 March 2021

It seems that while JobKeeeper did help employees, some businesses did not actually need it, but got it anyway. Now it is ‘moral issue’ that they give it back- that is to say it is voluntary. If they have already taken it as executive bonuses or shareholder dividends it is probably not refundable.

The welfare recipients who had spent money and were accused retrospectively of Robodebt could not repay it either, but were hounded till the end. All that will happen to the big end of town is a few days of newspaper articles.

It is surely a reasonable principle that if taxpayers’ money is given away there should be monitoring of where it goes. If it was too hard to set up a monitoring system quickly, the obvious solution would be to make a regulation that it had to be used for purpose and would be checked and there would be prosecutions if it were misused. This would have allowed follow up, a few prosecutions and majority compliance. This government seems incapable of any sensible management of anything, unless you think that deliberately handing money to mates is an unwritten policy.

Now even small businesses are annoyed.

www.smh.com.au/politics/federal/pretty-close-to-theft-small-business-slams-big-corporate-jobkeeper-profits-20210304-p577sn.html

03/03/2021

Christian Porter’s Rape Explanation

3 March 2021

I just watched Attorney-General Christian Porter out himself as the Cabinet Minister accused of rape. He was live on ABC News Channel 24 at 3pm (but 8 minutes delayed, so they played the newsflash of NSW Sports Minister resigning after his property dealings were referred to ICAC).

I had deduced that Porter was the minister, as there had been a 4 Corners about him in November and his birthday made him the exact age that the alleged victim said her rapist was. We knew what he would say, as the media said that he was not going to resign, so as a debater I was as interested in his rhetoric as its contents.

He started by saying he was very sorry for the family of the alleged rape victim for their loss. He said that he had heard rumours of the allegation since November but he was unaware what was alleged. He denies the allegation completely, but was concerned about the effect on his colleagues.

He was also concerned that the journalists were trying him by media and were not following due process. He said that they had flowed due process when a previous Opposition Leader was accused of sexual harassment, clearly implying that the media were giving him a worse time. (There was no mention that one was alleged sexual harassment, the other alleged rape and suicide).

He said that he, unlike the media, was following due process.He in his professional life had been a prosecutor and had always tried to stand up for the victims and protect them.

He is now working hard but may now be removed by an accusation. If he were to resign it would mean ‘no rule of law’ and that an unsubstantiated media accusation would be enough to force Ministers to resign, so he will not stand down and set a bad precedent.

(Presumably the alternative is that no one stands down until ‘proper process’ has them convicted, which will very convenient for sports rorts and other current government activities).

He is taking a 2 week break on his doctor’s orders, and his friends are standing by him.

He expanded on the story somewhat during the questioning. There were 4 people in the debating team, 3 men and one woman. They went to her room and she showed him how to iron a shirt as none of them had ever ironed a shirt. He may have told her that ‘she would make a good wife one day’. He may have gone to dinner but he absolutely denied that he demanded oral sex or raped her. It did not happen. He pleaded with the media to ‘imagine for a second that it is not true’. Their faces were not shown on TV, but it seems from their voices that they found this hard to imagine.

He had had no contact with that person since January 1988, for 33 years, so he could not remember details, but she was a ‘bright, happy person’.

He cannot explain the story and he cannot test the evidence, so he does not favour an inquiry as he will be ‘asked to disprove something that did not happen’. Others may decide to have an inquiry. He wonders at ‘conspiracy theories everywhere’.

He spoke to the Prime Minister on Wednesday, presumably 8 days ago, not yesterday, and believes that he has the Prime Minister’s support.

My bet is that there will be a delay, then an inquiry, and then he will resign to save the government from embarrassment, but not be charged with anything. I could be wrong. Certainly the ‘Me Too’ movement has changed the paradigm in the entertainment industry and now even in Australian politics. But we are still nowhere near the old standard when Barry O’Farrell resigned as NSW Premier when he did not remember receiving a bottle of wine from a dodgy donor, or the Dutch Cabinet all resigned recently over a situation like Robodebt.

If Porter limps along, he will be lead in the Liberals’ saddlebag for a while. The election is a year away, so many will forget, but some will not, and a negative impression of the government grows stronger. These impressions eventually coalesce onto a ’gut feeling’ that the government has to go and the government becomes doomed. Usually the Canberra bubble of both politicians and their journalists are the last to realise.

20/02/2021

Mental Health and Cheating

20 February 2021

I like to think that my credentials as a mental health advocate are pretty good. I was responsible for the NSW Parliamentary Select Committee of Inquiry into Mental Health in December 2001 which reported in 2003. The result of this inquiry was an increase in the mental health budget in the following year of $320 million, a new accounting system so that the money could not be transferred by hospital administrations to other areas, and publicity which led to a similar Senate Inquiry in Canberra. This reported in 2006 and led to psychologists being put on Medicare. (Not that my contribution was noticed by the Parliamentary press gallery).

One of the elements of recognising mental health is having it treated the same as physical health.

But I am also a tennis fan, not a tragic, but a fan. In the quarter finals of the Australian Open, Ash Barty, Australia’s favourite and No 1 seed was eliminated by Karolina Muchova of the Czech Republic. This might not be remarkable were it not for the fact that the game had Barty winning easily until Muchova took a 10 minute medical timeout. After this, the game and momentum swung totally Muchova’s way and she won. Muchova admitted that she wasn’t injured, she just took time off to get her head together. Obviously she did that, and Barty was sufficiently disconcerted to lose the match. The public waited the 10 minutes and the TV filled the break as usual.

Barty was magnanimous in defeat, saying that Muchova had the right to take a medical break, but one has to ask whether taking a 10 minute break to compose one’s head if one is not doing well in a match will become the new norm Hey, there is no rule against it, and now a precedent for it!

It will be hard for a tournament referee to say to a player, ‘I do not accept you injury, get back on and play’, but what is the alternative? This is a bad precedent. This is not mental illness. Any suggestions how it should be dealt with?

06/02/2021

Welfare Repayment for Some- Nick Scali Optional?

6 February 2021

We all saw the callous and incompetent saga of Robodebt, where the tax database and the welfare database were imperfectly matched, the welfare recipients were accused of understating their incomes and put in the unenviable position of having to prove that they system was wrong, as their support payments were cut to below survival level.

Now we see some companies who are doing very well getting Jobkeeper and being asked politely if they would mind paying it back.

Nick Scali, the furniture retailer has done very well out of the lockdown as people still at home and working, with forced saving on their out of home recreations have upgraded their furnishings. His profit has risen 99% to $40 million, and the share price from $3 to $10.51 in the last 12 months. The dividends are up 60%. Nick Scali as the major shareholder with 13% of the company will make $4.4 million personally. The company has received $3.5 million in Jobkeeper payments, so Labor MP Andrew Leigh has asked that it be repaid. Of course, Scali has done nothing illegal and has taken money that companies were entitled to. But the Government which is so careful and niggardly when it comes to poorer people getting money is totally silent on this situation. They are very thorough when it comes to giving out Jobseeker or any type of pension, yet seem unable to restrict much more generous handouts to business, let alone having a mechanism to get it back. The stockmarket profit reporting season is just starting so we are likely to see many more examples of this.

The only explanation I can find is ‘For to every one who has will more be given, and he will have abundance; but from him who has not, even what he has will be taken away.’ — in Matthew 25:29, Revised Standard Version.

www.smh.com.au/business/companies/nick-scali-s-profits-double-in-covid-boom-triggering-dividend-bonanza-20210204-p56zfl.html

28/01/2021

Crikey- While Porter Parties, his protection racket inflicts misery, By Bernard Keene

https://www.crikey.com.au/wp-content/uploads/2019/02/20181204001374704937-original-600x320.jpg

22/01/2021

Justice for Some 11/1/21

As NSW builds more prisons (SMH 28/12/20- 1000 bed prison at Camellia) and inequality grows apace, it is interesting to look at what penalties are given for what. Here is an article about a multimillion dollar owner of aged care homes where 38 residents died of COVID.

He was charged with 101 counts of rorting a government taxi scheme that subsidised fares for disabled people, pleaded guilty to three to the value of $3000 and got no conviction and 6 months community service.

His nursing home is being investigated and faces a class action on behalf of residents. He resigned when the media drew attention to his lavish lifestyle. His lawyer warns against defaming his client.

The full story is below

With a justice system like this it is hard to see how we could possibly need more gaols.

http://theworldnews.net/au-news/aged-care-mogul-once-pleaded-guilty-to-deception-charges

05/01/2021

Assange has Avoided Extradition to the USA for now. 5/1/21

But Judge Baraitser accepted most of the US government’s arguments that journalism could be espionage, that he would get a ‘fair trial’ in the USA. and that his extradition would have been legal, though political crimes are supposedly excluded from the extradition agreement. He has not actually been freed, and one might reasonably ask why he is being held at all, since the trumped up Swedish rape case is no longer being pursued. There is also a possible appeal from the US government, at a time when Trump is on his last legs and looking for publicity and a legacy.

Julian Assange is still in danger from COVID in Belmarsh prison. It is hard to see anything other than the British, US and Australian Establishments trying to destroy him, if not by COVID, then simply psychologically. One shudders to think what his mental state will be after being locked up for a decade with no substantial charge and having tried to do good. ‘All journalists beware!’ is the message.

http://www.informationclearinghouse.info/56130.htm

01/01/2021

The International Criminal Court has Declined to Prosecute Britain for War Crimes in Iraq. 1/1/21

Some have said that the ICC is where the big countries prosecute small dictators. The ICC has, in a 184 page document declined to prosecute British soldiers for war crimes in Iraq. They have also declined to say that the 2nd Iraq war was illegal. To do this they have quoted British rationale about the need to find Weapons of Mass Destruction, WMDs and ignored that fact that the weapons inspectors said that they have not found any, the Iraqis were cooperating better and that they wanted more time.

They use British names for Iraqi places, refer to the Iraqis as ‘insurgents’ in their own country and took refuge in the fact that the ICC does not have to investigate war crimes if the country that committed them is itself investigating. They then look at how the British investigations have gone, which is actually nowhere.

The author of this piece says he was a great fan of the ICC, but now concludes that it has no credibility. It is not a short piece, but this can be excused as it summarises the 184 pages of the ICC’s decision not to prosecute.

It is sad, but unsurprising that there is no credible enforcement of international law at an individual level, or in statements as to the actions of countries.

http://www.informationclearinghouse.info/56113.htm

28/07/2020

Workers Compensation in NSW and Victoria- ‘Immoral and Unethical’ – 4 Corners Exposes It. 28/7/20

This is what I have been saying for years. If you think the banks are bad, you have not dealt with insurers. They will do anything rather than pay people’s legitimate medical and living expenses.

My poor patients literally starve. They change their addresses each visit as they couch-surf their friends. The foreign patients with no Medicare cannot even get GP treatment, and because they are often paid sub-award wages in cash cannot even prove their incomes. Most specialists simply will not operate for the Medicare rebate, and even if they will the waiting time is a year. I tell the patients where the soup kitchens are. They are in huge pain and the most I hear from governments are warnings that they have been on narcotics too long, as they wait for the surgery that the insurers have refused to pay for.

The patient Scott with his supportive wife, at the beginning of the 27/7/20 4 Corners tells the story of his shattered life, which is just like what my patients tell me.

The Victorian the Ombudsman, Deborah Glass did an investigation into WorkSafe Victoria, the callous government insurer there. She found appalling behaviour and says so very clearly.

In NSW it is the same- the appalling, hopeless iCare, who should be called ‘I Don ‘t Care’ put together a bunch of insurance executives who had no experience in working with people. They all got awarded huge salaries and set about having computer algorithms to replace claims clerks. So when a claim goes wrong (which takes a while to figure out as 3 week delays are pretty much the norm), you call and ask to speak to the case manager. You can’t. But if you persist eventually you find one, but he or she only got the claim yesterday. i.e. There had been no person managing it until you hassled like hell, and it is often refused anyway.

Meanwhile the patient had no treatment and the fat cats at the top had not noticed that their system had a few glitches. And most of the concern in both the management echelons and the media is about some financial deficit which, if we are to believe the totally out-of- touch iCare CEO, Ken Nagle, depends how you do the accounting.

No one seems to remember that this is just a health insurance scheme to help Workers’ Compensation and Motor Vehicle accident Victims. If Medicare worked it would be completely unnecessary, and it cannot even manage to function like a private health insurer. It assumes that all doctors are crooks who cannot be trusted to order just the tests and operations necessary- they all have to be evaluated and denied by insurers who get every dollar that they refuse to pay, and who seek out dodgy doctors to carry out ‘Independent Medical Examinations’ (IMEs) to deny normal treatments. If the IME doctors do not do what the insurers want they get no more work from them.

The directors and top executives of iCare should be sacked and the whole thing given to ICAC to examine. ICAC needs more resources also.

SIRA (State Insurance Regulatory Authority) has been more hopeless than ASIC and APRA were with the banks, and should be abolished also. This story came from a whistle-blower, not from SIRA, the responsible agency, though some of us have been trying to get SIRA to act for years.

SIRA became a bit more interested after the Hayne Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry reported in February 2019, presumably as they realised that if the Commission has been given enough time to look at insurance, they would have had their own hopeless regulatory efforts scrutinised. They had an internal investigation, the Dore Inquiry (no, you almost certainly have not heard of it), but it did actually find that iCare was behaving appallingly. The report release was delayed 5 months (July-December 2019) and released just before Christmas with iCare’s reaction, which was to admit that they had made ‘mistakes’ and that they accepted all the recommendations. Great PR! Released on a busy day to avoid scrutiny and if you as a journo were a tiny bit interested, there was no story because iCare accepted the changes suggested. The SIRA strategy worked- no scrutiny of either iCare or SIRA.

At last there is a 4 Corners on this! Watch it if you missed it!

Let us hope that when it goes to ICAC some major changes are achieved. It seems that 4 Corners is the only regulatory force in the country. I guess that is why the government wants to de-fund the ABC.

https://youtu.be/fxIvKogrE2Q