Monthly Archives: May 2006

Sedition law slammed

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I posted about the Howard government’s new(ish) sedition laws last year when they were going through Parliament, and expressed the view that they might well breach the implied cosntitutional freedom of political speech.

Constitutional law academic George Williams expresses a similar view in today’s SMH, and also agrees that a narrower provision would nevertheless be  justified as long as it was carefully drafted to avoid infringement of important rights and freedoms in a democratic society.   Williams points out that the Australian Law Reform Commission has just released a discussion paper which recommends substantial changes to the sedition provisions (including no longer calling the offence “sedition”):

Prof Weisbrot said the ALRC makes 25 proposals for reform. “The provisions need amendment to make clear that the Crown must prove beyond reasonable doubt that the person intentionally urged others to use force or violence, and intended that this force or violence would occur.

I wonder if this marks the beginning of a pullback from some of the more extreme liberty-restricting responses to international terrorism in the wake of September 11 and Bali?   Of course, there’s no reason to believe Howard would actually take any real notice of such an ALRC recommendation,  although he did commission it in the wake of last year’s amendments, partly in order to quell backbench concerns among residual “small l” liberals.    Or will Howard instead crank up the rhetoric of fear  and enact even more draconian legislation in a bid to reverse an apparent drift in the Coalition’s standing in opinion polls?   The lack of any ‘bounce’ from the big budget giveaway must be causing a bit of angst, one would think.   We’re probably only a year or so out from the next federal election, and Howard certainly wouldn’t want a negative polling trend to get established.  

On the other hand, I don’t imagine either he or Costello would be  losing  much sleep at this stage with Kimbo at the Labor wheel.    Nevertheless, a succession of bad news stories for the government, along with another interest rate rise or two, and ongoing resentment about unfairness flowing from the IR  reforms,  might conceivably set up a negative  momentum that would take some reversing.   I wouldn’t be putting any money on a Labor win just yet, and I’m still very pessimistic about the Great Circumlocutor’s ability to seize the day, but you never know …

Indigenous employment: is tourism the answer?

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When Ken Parish  blogged on  remote Aboriginal communities  last week, prompting John Quiggin to blog  more specifically on employment subsidies,  I was reminded of the visit I paid last  year with my family to Tjapukai Aboriginal Cultural Park,  twenty km north of Cairns. On that visit, after the shows and activities, I chatted with some aboriginal staff in the souvenir shop.  I learned that the enterprise had a substantial indigenous workforce, and was regarded by them as a good employer.

Tourism readily suggests itself  as an answer to the issue Ken addressed. After all, if aborigines can create viable enterprises based on their own culture and their native environmental expertise, it means they can earn an income, continue living in their own ‘country’, and preserve their heritage all at the same time.

Scratching around on the web for more information on Tjapukai, I discovered that the directors, Don and Judy Freeman, gave evidence last year to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, which has a subcommittee looking into indigenous employment.

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Prediction is difficult – especially about the future.

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Courtesy of my brother, here’s a quote which would be nice on our banner above, but which is a little long.

The one really rousing thing about human history is that, whether or no the proceedings go right, at any rate, the prophecies always go wrong. The promises are never fulfilled and the threats are never fulfilled. Even when good things do happen, they are never the good things that were guaranteed. And even when bad things happen, they are never the bad things that were inevitable. You may be quite certain that, if an old pessimist says the country is going to the dogs, it will go to any other animals except the dogs; if it be to the dromedaries or even the dragons…It was as if one weather prophet confidently predicted blazing sunshine and the other was equally certain of blinding fog; and they were both buried in a beautiful snowstorm and lay, fortunately dead, under a clear and starry sky.

G.K. Chesterton, The Illustrated London News, April 17, 1926

Of guns and constitutions (2)

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PM Alkatiri (right) and National Parliament Speaker Francisco “Lu Olo” Gutteres at the recent Fretilin Party Congress which confirmed Alkatiri’s leadership

Further to my previous post, it appears that Australia is exerting significant and fairly open pressure to persuade East Timor’s unpopular Prime Minister Mari Alkatiri to step down.   The Australian reports this morning:

On the weekend, former guerilla commander turned president Xanana Gusmao was formally asked to take a more hands-on approach to matters of state, particularly in matters of defence and national security.

It sparked an angry response from the Prime Minister and a thinly veiled warning to President Gusmao – he and Alkatiri cannot stand each other – expressing confidence that he would not “cease to respect the constitution”, which is diplomatic speak for “be careful about moving into my patch”.

Meanwhile, ABC News is now reporting:

Prime Minister Mari Alkatiri is facing growing demands that he step down and allow President Xanana Gusmao to appoint a government of national unity, to try to reassert government authority and drag the country out of its current crisis.

It is believed that President Gusmao’s supporters, including Foreign Minister Jose Ramos Horta, have been examining the constitution to see if it is possible to dismiss the Prime Minister.

I think I can save them the trouble.   It isn’t.   As I commented previously, there’s a respectable argument under the Timor Leste Constitution that the President can assume day-to-day control of the East Timor armed forces without the Prime Minister’s consent.   He can also declare a state of emergency, although only with the authorisation of Parliament (section 85(g)).   Some reports suggest that the President has declared a state of emergency,  though whether either Parliament or the Prime Minister have authorised it is unclear.     However, the only relevant  express powers the President has to dismiss the government or Prime Minister are found in section  86 (f) and (g):

f) To dissolve the National Parliament in case of a serious institutional crisis preventing the formation of a government or the approval of the State Budget and lasting more than sixty days, after consultation with political parties sitting in the Parliament and with the Council of State, on pain of rendering the dissolution null and void, taking into consideration provisions of Section 100;
g) To dismiss the Government and remove the Prime Minister from office after the National Parliament has rejected his or her programme for two consecutive times.

None of the preconditions listed in either sub-section currently exist.   Otherwise the Prime Minister’s position is governed by section 106(1) which provides:

The Prime Minister shall be designated by the political party or alliance of political parties with parliamentary majority and shall be appointed by the President of the Republic, after consultation with the political parties sitting in the National Parliament.

It’s fairly clear that, in the absence of the conditions listed in section 86(f) or (g),  Alkatiri cannot constitutionally be forced from office by the President  as long as he remains the parliamentary leader designated by Fretilin, which has the overwhelming majority of seats in Parliament.   Dislodging a determined Alkatiri will probably require number-crunching within Fretilin (which clearly can’t be done by the Australian government, either ethically or practically), unless Alkatiri can be made an offer he can’t refuse.

Update - This morning’s report in the SMH indicates that the Timorese leadership may be moving towards a somewhat more limited Ministry “reshuffle” that leaves Alkatiri in place as PM.   That would certainly reflect the constitutional difficulties  I see with the President dismissing a PM who doesn’t want to go.   On the other hand, this story clearly represents the Alkatiri forces’ spin on the situation, and doesn’t necessarily mean that Gusmao, Horta et al have given up their efforts to prise Alkatiri out of the top job.   Fretilin (not just Alkatiri)  would certainly be very reluctant to embrace a “government of national unity” option, given the loss of ministries and attendant power and patronage that would involve, if there was any choice.

On the other hand, it might be possible for Gusmao and Horta  to construct an argument that the President has implied powers of dismissal in addition to the limited express ones in Constitution section 86.   For instance, to dismiss a PM who refuses to resign after losing an election or after losing the confidence of Parliament following defections from ranks of the governing party.   Some such powers arguably need to be implied to give force and  effect to express provisions such as those governing parliamentary terms and elections, and the requirement in section 106 that the President appoint as PM the leader of the majority party in Parliament.   It would, however, be a rather large step from there to positing an implied power to dismiss a PM  because of  chaos and complete loss of control of governance, when that PM still  retained a strong  Parliamentary majority.   Shades of the Whitlam dismissal.  

That sort of ill-defined “reserve power” would make the role of President an extraordinarily powerful one and could arguably destabilise Timor Leste’s constitutional system over the long term.   Moreover, it would be doubtful whether the country’s Supreme Court would hold any such dismissal to be constitutional anyway (although the extent to which the Court has yet developed a culture of robust independence and intellectual rigor – given that the country lacked a significant class of trained and experienced lawyers prior to independence – is uncertain).  

The cold war: The Torn Curtain

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Anyone who missed them should try not to miss the repeats of ‘Torn Curtain’ the ABC Hindsight programs on the cold war. Excellent radio documentary and not too late to pick up one of the most alarming episodes. How Richard Nixon wanted the Russians to think that he was mad and might launch a nuclear attack on them – no joke. Sadly it seems they can’t be downloaded, only listened to online. So the large benefit and convenience of downloading is to be withheld (presumably) so the ABC can make a few pennies selling cassettes and CDs.

I’m not blaming the ABC which is encouraged and funded to act in such a way, but it’s bad economics. Anyway, that’s not the burden of this post. Try not to miss the shows. They’re very good.

Postscript: As indicated in comments below, my claim about the ABC’s not allowing downloads is completely untrue. Total bollocks.   Damages claims should be sent to PO Box 303, Port Melbourne, Vic, 3207.

JS Mill turns 200: you heard it last on Troppo

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Visiting this site I discovered that we’ve missed JS Mill’s 200th birthday which occured on the 20th May 2006. He was a good guy and, exemplifies much of what was uplifting about the tradition of classical economics begun by our old friend Adam Smith. Like Smith, Mill abhored slavery, though Mill was more active in his opposition.

As Sandra Peart and David Levy have documented at great length both on the web and in a book, classical economists throughout the nineteenth century had a noble role supporting the anti-slavery movement.

It was because they preferred that horrible and impersonal ‘cash nexus’ between employer and employee to master and slave relationship that their discipline was first christened ‘the dismal science’ by supporters of slavery like Thomas Carlyle (whose views were supported by other people of great literary sensibility like John Ruskin and Charles Dickens).

Go and read the web account of the story if you’ve not read it before. It makes for very interesting reading. In the meantime, John Stuart Mill’s words adorn our banner every eight or nine times you visit.

Here’s a fuller reproduction of the quote – which is from on Liberty.

He who knows only his own side of the case, knows little of that. . . . He must be able to hear the arguments of adversaries; . . . He must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of. . . . Ninety-nine in a hundred of what are called educated men [do not do this], even those who can argue fluently for their opinions. Their conclusion may be true, but it might be false for anything they know. They have never thrown themselves into the mental position of those who think differently from them, and considered what such persons may have to say, and consequently they do not, in any proper sense of the word, know the doctrine which they themselves profess.

Streets paved with gold?

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An apt cartoon from NT News cartoonist and Troppo blogger Colin Wicking

As Colin Wicking acutely observes, the debate about  responsibility for appalling conditions in remote indigenous communities has degenerated into a predictable  federal/NT slanging match

A similar divide is evident in the discussion about causation amongst op-ed pundits.   The right (e.g. Christopher Pearson in today’s Oz) emphasise the need for strong law and order policies and the malign influence of customary law.   They make some  good points.   I don’t share the latte left belief in the sanctity of customary law as an element of “self-determination”.   That especially applies to practices in relation to “promised” brides, but my objection is wider than that.   Even in  their original traditional guise, most forms of customary law “payback” “justice” were  dreadfully barbaric and contrary to basic norms of international law.   Degraded by alcohol and substance abuse as they are today,  these practices are  little more than licences for intimidation and indiscriminate mayhem.   Alcohol-fuelled violent crime followed by equally alcohol-fuelled “payback” often gives rise to an endless cycle of retribution and counter-retribution.

Left-leaning pundit Adele Horin makes an even stronger point.   She points to a recent joint Commonwealth/NT study into government spending at Wadeye/Port Keats which showed significant underspending per capita compared with the NT average. The most seemingly blatant example was education, where the NT government only spent 46 cents for every dollar spent on average elsewhere.

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