Doctor and activist


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Tag: Justice

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

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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

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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

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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?

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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

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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
While Porter parties, his protection racket inflicts misery BY: BERNARD KEANE As Alan Tudge tried to protect Christian Porter from embarrassment, so Porter is trying to protect Alexander Downer from scrutiny over his role in the bugging of Timor-Leste. Privilege protects privilege. So it seems after further revelations today about how Alan Tudge pressured an ABC journalist to delete a photo taken in a Canberra night spot that, according to Four Corners’ bombshell report on Monday, would have embarrassed and compromised Christian Porter. Any minister of the Crown learning that a colleague may have placed themselves in a position to be compromised should have immediately alerted the prime minister, possibly for referral to intelligence agencies. Public Bar in Manuka is a well-known locale for politicians, staffers and journalists, the latest in a succession of such nightspots in Canberra. Don’t think people connected to foreign intelligence services weren’t mingling there on Wednesday nights as well. Who else took a photo of Porter, more surreptitiously? In any event, Tudge, a child of Melbourne privilege — elite Haileybury, Melbourne University, Harvard — sought to protect another child of privilege, Christian Porter, whose offensive frat house behaviour as a young man — as opposed to his alleged continuing partying these days — was well documented by the ABC. Significant as it is in itself, the incident is the perfect symbol for what party boy Porter himself is doing for Alexander Downer. Downer ordered ASIS to bug the cabinet rooms of the Timor-Leste government in 2004 in order to give Australia an advantage over the fledgling state in negotiations over resources in the Timor Sea. The advantage gained would accrue to resources company/de facto government agency Woodside. After leaving politics, Downer took a job with Woodside. His DFAT secretary of the time, Ashton Calvert, took a directorship. Porter’s authorisation of the prosecution of Witness K and Bernard Collaery for revealing ASIS’ crime is intended to punish them for exposing Downer and the Howard government. Porter’s conduct in the prosecution, however, is designed to cover up Downer’s role.
He has sought to make the trial secret, he has repeatedly intervened in proceedings (separately from the DPP; Collaery and K face two legal oppositions — the barristers of the DPP, and Porter’s barrister trying to keep as much as possible secret); Porter has so stymied and delayed the trial of Collaery that his barrister has been twice chided by magistrates for delays. There is a key question in this trial about Downer: what authority did he have to authorise ASIS’ conduct? Did prime minister Howard, his cabinet or the National Security Committee approve it, or did Downer decide himself? We may never publicly learn the answer to that crucial question because Porter is trying to keep it secret. Privilege protecting privilege. Only, instead of demanding the deletion of a photo, Porter is trashing basic rights like open trials and long-standing norms like the Commonwealth’s status as a model litigant. Porter’s conduct has had enormous impacts on K and Collaery — two men who have served their country and protected its national security in ways Porter could only dream about as he sleeps off another big night on the dance floor. K remains unclear exactly as to what he is being asked to plead guilty to, having indicated that, given his health and the mental toll Porter’s vexatious prosecution has inflicted, he wants the whole thing done with. Collaery’s practice has been wrecked and he is living on borrowings. The process has so far dragged on for more than two years, with 42 hearings so far without a trial date in sight — the majority driven by Porter’s interventions. It includes the juvenile tactic of requiring Collaery to travel interstate to view, but not retain, the allegedly secret brief directed against him. All while Porter, according to footage aired by the ABC, carried on carousing, and allegedly compromising himself as a national security risk far worse than even the fantasies claimed by the prosecution of K and Collaery. The bugging of Timor-Leste and the persecution of K and Collaery are the biggest political scandal of recent decades in Australia. That the press gallery seems to have been mostly uninterested in it — or have fallen for Porter’s tactic of dragging things out so long people forget about it — doesn’t change that. It’s been a raw demonstration of the ugliness of how power is used in Australia by well-connected corporations, their political shills and the parties that protect and enable them. Power used at the expense of the people of Timor-Leste. Power used at the expense of K and Collaery. And despite Porter’s efforts at secrecy, at least some of it has occurred in plain sight at the ACT Law Courts building, in full view of the press gallery if they wanted to come five minutes down the road. Like Porter’s alleged behaviour in Public Bar, in full view five minutes in the other direction from Parliament House. If you’re not enraged by the smug, smirking indecency of it all, you might want to check your moral compass. It’s an obscenity.
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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

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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

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05/06/2020

Aboriginal Deaths in Custody are not far from the US situation. 5/6/20

Australians looking at the riots happening in the US may be tempted to feel smug that it does not happen here. The riots don’t, but there has been a long history of Aboriginal deaths in custody, seemingly unchanged by a number of Royal Commissions. This is long overdue to be addressed, and is the peak of the tendency to criminalise our social problems.

You might argue that the policeman who tripped a 16 year old to arrest him did so because the youth threatened to break his jaw, but you cannot argue with the many deaths and inquiries’ findings.

We need to put our own house in order.

www.theguardian.com/australia-news/2020/jun/04/morrison-says-australia-should-not-import-black-lives-matter-protests-after-deaths-in-custody-rally?CMP=share_btn_fb

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