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Category: Accountability

17/03/2021

Porter’s Defamation Case Against the ABC

17 March 2021

Many were surprised when Attorney-General Christian Porter sued the ABC, using the very defamation law that he has criticised as favouring the plaintiff.

What will happen? Will it go ahead? Will he win? And what will be the effect?

I do not pretend to be an expert on defamation law, but I did run a live radio programme that called tobacco executives mass murderers most weeks for 14 years and I gave some thought to avoiding being sued. The advice was basically that if you spoke about a class of people, it was OK, but if an individual was identifiable you were in much more danger.

Defamation was defined merely as likely to lower the opinion of someone in the opinion of their peers, so was relatively easy to prove.

The defences were that it was true, or that it was in the public interest, or it was ‘fair comment’ on a known situation. (There was also ‘qualified privilege’ if the allegation was made to a closed body entrusted with maintaining standards, such as a complaint to a Medical regulatory body).

But after the lawyers had given this rather bleak advice, they said that main question was whether it would actually be in the interests of tobacco companies to sue a little-known doctor speaking on a little-heard community radio station. They could send him broke, but the issue would get a lot of publicity and how many people they killed would compete with how callous they were to stuff up the life of a little truth-teller. So I was to be careful, but not fearful.

Porter has raised the stakes in that if the ABC wants to run the truth defence, it has to prove it, which is hard with Katherine Thornton dead and the Police saying that without even a sworn testimony there was no hope of proving the case. If the story is not true, then arguably it is not in the public interest to discuss it, and since the ABC raised the issue, it is hardly fair comment on an existing discussion. Most people did not know which individual it referred to, but some did.

I am unsure to what extent comment will be shut down by the fact that it in sub judice, but I think if it is not a jury trial, judges are supposedly uninfluenced by the media, and you can comment on civil but not criminal matters. There is no doubt that everyone in the pub or tea room will have an opinion. If the ABC settles without running the case, Porter will claim a big victory. If the ABC fights and loses, he will also claim a big victory, but the damage done to him in the process is likely to be terminal. Most people are likely to continue to believe the story and he is likely to look like a privileged pratt using a bad law. This is not good when both he and his party have to face the voters.

Also, if the ABC loses, it will have a large budget blow, a loss of prestige and probably a budget cut from a vengeful government. But the process may have damaged the government enough to turn the next election and Labor may then restore the funding.

If you look at the tide of history, this issue is one that’s time has come. The coverage and discussion of the issue will make this a watershed moment where high legal costs are merely an investment in hastening a major social reform, though we cannot reasonably expect the ABC’s lawyers to see it that way.

Crikey looks at the strength of Porter’s team and case.

www.crikey.com.au/2021/03/16/christia-porter-defamation-trial-of-the-century/?fbclid=IwAR1_dcbIg1jexXl3TUkooK73YSy9yEIlKjTJ6CvMuE68BSqqZtKENo-TbvU

14/03/2021

Ex-Solicitor-General Calls for Inquiry into Porter’s Rape Allegation

14 March 2021

The former Solicitor-General, Justin Gleeson has made the case as to why there needs to be an investigation into Katherine Thornton’s rape allegation against Attorney-General, Christian Porter.

The mechanism for this would be that Morrison should ask the Solicitor-General for advice as to the situation. This Morrison has so far declined to do.

Interestingly, Justin Gleeson was highly respected Solicitor-General who resigned in 2016 after a very public argument with the then Attorney-General George Brandis, when Brandis wanted all referrals to the Solicitor-General to go through his office. Gleeson felt that this was restricting his freedom to give advice and effectively politicising his office. Prior to Brandis’ restriction he had made a statement about the legality of refugee legislation. (Guardian 24/10/16) The Prime Minister not asking the Solicitor-General now and the Solicitor-General not making a statement does sound like the same issue. Brandis, like Porter, was also accused of making poor appointments (of political party hacks) to judicial bodies.

In terms of the reasons for having an inquiry into the rape allegation, this opinion is as good as it gets. At least as an ex-Solicitor-General, Gleeson can speak publicly.

www.abc.net.au/news/2021-03-09/christian-porter-historical-rape-allegation-gleeson/13229880

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

07/03/2021

iCare Doesn’t Know and Doesn’t Pay Underpaid workers

7 March 2121

The incompetence of Perottet’s iCare never ceases to amaze.

It underpaid injured workers but was not sure how many. It was initially 240,000. Then it changed its to estimate to 52,000 people underpaid up to $80 million. Then possibly as little as $5 million. In March it is 23,000 and $20 million. They don’t actually know. After 18 months 25 have actually been compensated!!!
This is all treated as some of ‘management error’ as if this makes it OK. These are a lot of abstract words, but few concrete ones. The idea of abstract words is that the concepts can be discussed better. But mostly management words are so general as to be meaningless, and principally serve to make everything non-specific and also euphemistic. No one says, ‘They did not know or care and their incompetence led to immense suffering for the families who were underpaid’. It becomes, ’There was a lack of management understanding and focus and some workers may have been paid less than their entitlement’.
Naturally no one will be punished.
All I know is that even the routine service takes about 3 weeks to get anything done. I had a patient doubly incontinent after a spinal injury. It takes up to 10 working days to get a claim approved, then up to 10 working days for them to approve an MRI and a specialist consultation. This is normal. When they delay things it is worse, and sometimes they refuse to pay at all.
www.smh.com.au/national/nsw/scathing-icare-review-finds-a-need-for-cultural-change-20210301-p576tq.html

06/03/2021

Scathing PWC Report Finds Perottet’s iCare Incompetent

6 March 2021

A 100 Page report by consulting from international PWC (Price Waterhouse Coopers ) found weakness in performance and governance, and the Board did not hold management to account.

We might also consider that the Minister, Dominic Perottet did not hold the Board accountable, and appears to show no interest at all in the injured people for whom the whole scheme supposedly exists. We might note that no doctors or patients appear to have been interviewed either- Hey, it’s all about money you know! One could ask why PWC did a report when Justice McDougall was simultaneously doing one that it coming out in April? Perhaps he is a lawyer and does not know enough about money.

The bottom line is that it was run from the top by people who only knew about money with little input about its proper function from the people at the coal face, who presumably should have some knowledge of the people that they are supposedly helping. (I say that with reservation, as the case managers that I deal with have high turnover, little insight and seem to assume that a large percentage of their cases are fraudulent, the doctors are hell-bent on inventing pathologies to over-treat and they have to follow elaborate protocols designed to ensure that no one could under any circumstances get one cent more than was absolutely necessary).

So we digest the Management-speak of this report and await the McDougall report which had terms of reference that allowed little input from patients or doctors, held no hearings and seemed to exist principally to take the heat off the Minister from last August until its April release.

It seems that there has been a generic concept since the 1980s that managers know best, that other degrees and knowledge from lesser beings or lesser ranks and incomes are not of value or to be listened to. It has come unstuck in so many situations that its time that some little boy (or girl) points out that ‘The Emperors have no Clothes’. Then we can go back to an older time, where people had appropriate training, worked their way up, knew their jobs, were promoted on merit and had small salary increments reflecting their incremental status rise. But I suppose that this would rely on people having permanent jobs and depower the whole new managerial class and their symbiotic consultants and reduce the workplace ‘flexibility’ that allows the obscene salaries at the top and insecurity at the bottom.

If Anglo society does not want to fall to more realistic societies in Germany and Asia, there needs to be a large rethink of the Harvard 1980s management nonsense that is the foundation of these sort of debacles.

www.smh.com.au/national/nsw/scathing-icare-review-finds-a-need-for-cultural-change-20210301-p576tq.html

06/03/2021

Insurance for Farmers with Coal Seam Gas

6 March 2021

I have minimal faith in insurers. Many years ago, one of my friends was killed falling down a crevasse hiking on a NZ glacier. A meticulous person, he had checked his AMP insurance before he left- the only exemptions were scuba diving and private flying. The company told his widow with her 6 month old baby that it was a dangerous sport and he was not covered and the broker he checked with had no right to say that he was covered. They offered her half. She was of substance, hung on and they settled on the steps of the Supreme Court rather than go on with their unwinnable case.Another friend had his house burn down, and was only given the depreciated value rather than the replacement, which was about half; small print as usual- do you feel like fighting Goliath?An acquaintance, who was a merchant banker with a lot of money got a nasty brain tumour and needed expensive chemotherapy. The gap between his Top Cover health insurance and what the bills were was so great that he left St Vincent’s Hospital and readmitted himself to Westmead as a Medicare patient. (Sadly the medical outcome was as expected).Every day I see people injured in Workers Comp or motor vehicle accidents have their treatments denied by insurers on grounds that could only be called spurious. In my practice’s statistics IAG (NRMA) refuse a higher percentage of treatments than any other insurer.It is, of course, impossible to say that fracking for Coal Seam Gas is safe. It involves breaking the rock strata to let the gas come up. Presumably these fractures will also let the water move to a lower level and be less available to the surface. And chemicals are pumped in so that the water may not be fit to drink, and there is no natural mechanism to purify it. Now unsurprisingly the insurers do not want to cover the farmers. For once I am on their side. Fracking is simply not safe. The gas companies will get their gas and move on-the farmers may have land that is useless, or at best less productive than it was before. Because of the nature of the law, farmers only own the surface of the land- mining rights are a separate thing, which is why the government can give companies the right to do what they like below the surface. The government needs to stop this- it should not be left up to the farmers. What a neat piece of nonsense that they are now supposedly protected from Public Liability claims- it might protect them if they are defendants, but it is far more likely that they will be plaintiffs!

www.abc.net.au/news/2021-03-05/big-on-spin-light-on-detail-as-gas-industry-touts-new-insurance/13216226?fbclid=IwAR26XpOCZk9aqusgrEukN44T-esmX-OhNFe4sgj4X7A9-Drtt9_3V-L6SxY

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

05/03/2021

Research shows Gambling Increases Mortgage Defaults

5 March 2021

05/03/2021

Subsidies for Inequality

5 March 2021

As a child our family moved to Port Kembla, and we lived on Hill 60, just above the rocks where a lot of people have drowned recently.

I went to Port Kembla Infant’s School, which was overcrowded but interesting. Half the kids there came from the migrant hostel in the old WW2 army camp where ‘displaced Persons’ (as WW2 refugee families were called) lived. These kids arrived in kindergarten without a word of English. This was taken as normal by the teachers, who just plugged on. The kids from the hostel were called ‘Hostels’, but it was a descriptor rather than a pejorative. By the time we got to 2^nd class in our 4^th year (Kindergarten, Transition, 1^st Class, 2^nd Class) there was no difference between Aussie borns and Hostels. There were 46 in my 2^nd class and girls filled the top 6 places. There was minimal racism in kids leaving this school.

There was no anti-discrimination legislation or bureaucracy in the 1950s but all the parents had jobs in the steelworks or associated industries and the Housing Commission was building suburbs full of affordable housing as fast as it could. If you had a go, you got a go. The ABC Radio had an awkward segment before the news called ‘Learn English with us’ where some somewhat stilted practical speech exercises lasted about 2 minutes. I used to wonder how the new migrants all tuned in for this little segment if they could not understand the rest. But the intention was there.

In 1966 there was a movement demanding ‘State Aid for Church Schools’ on the basis that they had paid their tax, and now they had left the state system they were paying twice. The government wanted to win the election, and this was seen as critical for the Catholic vote. The Democratic Labor Party, which had split from the ALP were the champions of this and still represented a significant threat to the ALP as they preferenced the Libs. State Aid came in.

Some time later there was a lot of emphasis on ESL (English as a Second Language) classes at TAFE, which were held during school hours. Their target was migrant women and their objective was to encourage English speaking to allow the women both to meet each other and to participate in society more easily. John Howard defunded the programme; ‘user pays’ was the new paradigm.

I now live in Sydney in a relatively central affluent suburb. Each morning 8 private school buses start near my door ferrying students to 8 private schools. No public transport needed- the school takes care of it all. Others students in private school uniforms catch subsidised public transport to the schools of their parents’ choice. But the cost of ‘choice’ is ‘residualisation’. Schools where there are a lot of ethnic students suffer from ‘white flight’, and so have concentrated social disadvantage and a lack of native role models. One school I visited in Western Sydney had had a stabbing in the playground about 25 years ago. The school photos in the foyer had no white face for the last 20 years. That was as far back as the photos went.

When we wonder if the Cabinet have any idea how the poorer folk live, my opinion is that they do not. These social dynamics have now been going for long enough that it is possible to be old enough to be in Cabinet and have no idea how the other half live. Some think that people without jobs have ‘wasted their opportunities’ or have alcohol or gambling problems. Add a little self-ri ghteous religion, ‘the poor are always with us’, a touch of arrogance and a peer group that thinks the same, and you have policies that are increasingly dismantling the fair go and equity that should be at the heart of our culture. It may be that you cannot make all people equal, but you can give all children equality of opportunity, and all adults enough to live on. We have to change direction and do just that.

Here, at the risk of being repetitive, is an article on Christian Porter.

www.themandarin.com.au/150633-christian-porter-the-unshakeable-belief-of-a-white-man-born-to-rule/?fbclid=IwAR2PbktE5jzTIgIjcL4orzdW1TO8ax03VpOBCFDTzDbRUepQnigaB1WG24Q

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.