Admittedly Sarah Palin’s speech to the Republican National Convention was moose-free, but there was plenty about the sacrifice of soldiers, the wisdom of ordinary working people and the importance of family. It was a pitch perfect conservative speech that was strong on the candidate’s values and character and light on policy.

Just like when you’re field dressing a moose, you need to know what you’re doing when you give a high profile political speech. So not surprisingly, Palin had some help — this time from former Bush speech writer Matthew Scully. Scully started work on the speech before he knew who’d been giving it. The big themes came first and then the biographical details.

And while it was a great speech, it’s the biographical detail that has everyone excited. As talk radio host Rush Limbaugh put it "Sarah Palin: babies, guns, Jesus. Hot damn!" Even the cerebral Will Wilkinson couldn’t make into his second paragraph without exclaiming; "First, let me just get it out of the way: I think she is a tremendously sexy woman". As Will says, politics is often more about gut feeling than rational deliberation — it’s an animal thing.

No doubt for some guys it’s the guns and the hunting that gets their hormones racing. But that’s not true for her speech writer. While Scully is a conservative, he’s not a hunting enthusiast. In fact he’s a vegetarian and animal rights supporter. In an interview for the National Review he spoke about his book Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy:

One thing I noticed, reading articles and books by sport hunters, is that they themselves are often uneasy about the things they do. And I hope Dominion will encourage more of that self-examination among the relatively few people — about five percent of Americans — with a taste for bloodsport. Hunting, if it can be justified at all, falls into the category of the necessary evil. When the aim is just the pleasure of stalking and killing, or the pride of a "trophy," the necessity is absent and you have to ask yourself what’s left.

In the past Scully hasn’t been afraid to criticise Dick Cheney for treating birds as if they were skeet. So I can’t help wondering what went through Scully’s mind when he realised he was working on a speech for the gun-totin‘ governor of Alaska.

With my ANU colleague Alison Booth, I’m presently doing some research on racial attitudes in Australia. As part of that, Alison and I are hoping to get a sample of Australians to do an Implicit Association Test, which we’ve set up at www.iat.org.au.

If you’d be willing to publicise it through your blog, we’d be most grateful. Naturally, we’ll keep you posted on the results, and the test also allows people to enter their email address if they would like to receive a copy of the study.

Andrew could do this better if his current employer, the Treasury, had not required him to cease from blogging altogether.  But there you go.  Worse things have happened and we can all help out.

To get the ball rolling I will recycle Why Labor Rules which appeared on the ABC unleashed site (now edited a bit for my own site). The suggestion is that the Liberals shot themselves in the foot when they introduced conscription during the Vietnam war. The result was to precipitate a flight of the educated middle class activists into the arms of the ALP or further to the left, with a massive delayed reaction in terms of the distribution of organisational and propaganda talent between the two major parties.

The piece was written before the NT election which almost falsified the thesis that Labor rules from coast to coast. It remains to be seen what happens in the west. Whatever happens I think the argument is sound because the Liberals have been a bit like a rugby team that can’t win a scrum, a ruck or a maul, so they only get possession when the other side drops the ball. Not entirely fair, but sometimes it looks like that.

“Do we want to be more like France, Sweden, Denmark and the rest of Europe, with a hands-off policy when it comes to the Middle East, with a neutral love of life?”

Damn those Europeans.  If only they’d make up their mind whether they love life or hate it.  It’s messing with my holiday plans.

In the first days of the new parliament, the Opposition called for three Senate select committees. Its new found passion for accountability was deeply hypocritical: when the Howard government ruled the Senate it made sure there were no such committees. But the Opposition was unabashed. One of the committees is examining state finances and, by implication, Australia’s eight state and territory Labor governments.

The Opposition says it is deeply worried about these governments. Its manager in the Senate, Senator Chris Ellison mourned that “We have state governments around this country racking up debt and affecting this nation’s economy.” The shadow Special Minister for State, Senator Michael Ronaldson, was outraged that the states will soon have net debt of $80 billion.

These criticisms were popularised by the former treasurer, Peter Costello, before last year’s election. They are reflected in comments about “mushrooming debt” made by Victoria’s shadow treasurer, Kim Wells, and by the Opposition from four other states. But these criticisms about debt seemed to come only from the Opposition parties.

The committee received 43 submissions. Among the pithier was that made by Standard & Poor’s. It advised that “the credit quality of the Australian states and territories is very high”. Six of the eight jurisdictions have an ‘AAA’ rating and Tasmania has an ‘AA +’ rating. (The northern Territory is unrated.) The rating agency pointed out that outside of the United States it assesses 190 sub-sovereign governments and only about 16 per cent have an ‘AAA’ rating. Nor is the company worried about the states’ recent appetite for debt. While states cannot indefinitely increase borrowings, their debt is low and budget performance is adequate.

In coming to its judgement, Standard & Poor’s examines a state’s “system support and predictability, management capacity and institutional stability, financial flexibility, liquidity and debt management and off-balance sheet liabilities”. These reviews raised nothing which supported state Opposition concerns about debt. The papers lodged by Moody’s Investors Service came to the same conclusion.

The submission from the Australian Industry Group, described as Australia’s leading industry organisation, was critical of those who obsess about state borrowings. “Ai Group regards the current level of debt of the States and Territories to be conservative….It is our belief that the borrowings and debt positions of the Australian States and Territories have been overly conservative for some time….It is difficult to rationalise the excessive focus on reducing debt. It has little basis in good economic management but seems rather to be driven by an ideological position.”

The Reserve Bank of Australia’s submission gave scant attention to state and territory borrowings. It noted that in 2006-07 state general government budgets were, as a whole, incurring deficits, “predominantly reflecting a large rise in capital spending”. But the Bank seemed unconcerned: “net state sector debt is budgeted to remain relatively small as a share of GSP over the forward estimates period”. The Bank later told the select committee that state and federal spending had remained fairly constant in recent times and had only a minor impact on Australia’s recent high inflation.

But there is a suspicion that some committee members still believe that state debt is bad. That was an inference in a question addressed on the committee’s last day of hearings to Professor Henry Ergas, chairman of consulting firm Concept Economics. Ergas pointed out that states were responsible for most public sector infrastructure. It was thus sensible that they borrow so that the costs of capital would be borne by all of the generations which benefited. The short-hand term for this concept is intergenerational equity.

We should also remember that those who condemn debt must also condemn savings because one person’s savings is another person’s debt. You might have deposits in a bank, but those savings are the bank’s debt.

So, state debt at current and envisaged levels is not a concern. But this does not mean state finances are well managed. A major shortcoming is state reliance on Private-Public-Partnerships, PPPs. Another is poor selection of infrastructure projects. Other issues raised with the committee concern inefficient state taxes and the states’ poor revenue bases. These can only be solved with the Commonwealth. We shall see if the Opposition wants to address these real problems.

Palin spruiked herself, she spruiked McCain the wartime hero and took a series of swipes at Obama using the predictable terrorist appeasing, high taxing, inexperienced angles. She added a couple of small surprises – that she’s taken on big-oil, that she wants to see America weaned off foreign energy (a good thing for us all), and wants greater use of renewables. But she also proclaims the Alaskan wilderness as ripe for the raping – so my guess is that the renewables talk is just convention fluff, and big oil will forgive her once the tenders are out.

For all her sassiness, Palin said little about America’s economy except the usual ‘Danger: high-taxing liberals’ line. In contrast, Obama did talk about the economy in Denver, and although as I write, McCain is yet to speak, surely Obama holds the trump card in this most important of suits. Why? Because the Bush/Cheney Republicans have completely stuffed the US economy.

“Washington is broken and the original maverick will fix it”, says the GOP website, and “In politics, there are some candidates who use change to promote their careers. And then there are those, like John McCain, who use their careers to promote change” says Sarah Palin. There’s an awful lot of talk about change – and that’s because they must distance themselves from the tainted Bush legacy.

Bush and Cheney have pushed the small government/low taxes/strong America line for the last eight years (whether they achieved it or not is moot, that was their framing) and now the economy is in the doldrums. And it looks like McCain and Palin are pushing – you guessed it – the small government/low taxes/strong America line again but this time, somehow, it will be different because – well they’re Mavericks, and presumably they’ve got a completely different set of Republican mates to bring to Washington when all the old Republican mates are swept aside.

There could be, as Guy Rundle cleverly observes, some opportunities for the candidates themselves to swing this one way or the other in the presidential and vice-presidential debates, but there seems to me to be a bigger set of factors at play than can be steered by any candidates rhetoric.

The economy, as mentioned, is stuffed. Jobs and manufacturing are going offshore, and the US’s economic advantage over its big strategic competitors is waning. Anyone arguing for a strong America must surely be fixing that first. Obama can offer something new here. Something that hasn’t been tried at least since Bill Clinton was cooking with gas – while the GOP (to date at least) seems to offer more of the slop that’s been served up before.

Another factor to bear in mind is McCain’s longevity. Not the proverbial heartbeat, that would separate the ‘hockey mom’ from the nuclear launch codes, but the fact that McCain has said he’ll only run for one term. He’ll only be there for a couple of years before he becomes branded a lame duck President, as they always are when their term draws to a close and the cycle begins anew. So in this campaign McCain can only legitimately pitch a four year agenda to fix the economy and fix everything else that’s wrong with America, and he’ll really need to achieve the major changes within about two years. A hard ask given that George Bush has spent eight solid years at ruining it.

Obama can stress both a different approach, and that fact that he’ll be around for the whole time to see his plan through. It’s the sort of line that’s got to appeal to the residual protestant work ethic that middle America imagines it still has.

Nah McCain’s not going to take this one. America needs a change, and I think they know it. And the world needs a rest from the pious fundamentalist chest-beating Republicans. And the West needs America to become strong and vital and inspirational again. C’mon America we need you back.

That book is The Change Function by Pip Coburn. In brief, my review is this: keep your $6.

Essentially Coburn took a widely-read article published in a business magazine and padded it out into a 213-page book.

Maddening Bits

At first I was merely annoyed by the typography and layout. Coburn seems to have embraced the school of thought that writers should randomly bold different words in their text, apparently because this aids comprehension. He also likes to ask himself questions in a very cliched fashion. Is it annoying? Yes. Does he do it persistently? Yep. Does it improve his arguments in any way, shape or form? Not a chance.

This style of writing-by-numbers drives me insane; it’s a plague unleashed on the world by the unholy confluence of tips given to lazy journalists and the urge to sponge readership from the impatient morons infesting Digg.

Coburn also pads out with quote after vaguely-related quote. I can only suspect he was being paid by the word or the page, because the whole book is liberally littered with the damn things. I don’t mind a well-chosen epigraph or two, but by god there has to be some sense of proportion.

Incorrect Bits

Coburn makes a number of quite glaring mistakes of fact. For example:

This is the reverse of the illogical ad hominem argument. An ad hominem argument is one that follows this supposition: If “Jim” thought of the idea, it is a bad one, because Jim is “bad”. Here, if Bernard Schwartz thinks it is a good idea, it must be, because Bernard is “good”. — p 66

No. An ad hominem is a direct attack on the arguer without relevance to the argument ¹1. Update: Though see the comments thread for argument on whether I got this right [↩]. What he described is the fallacy of ad verecundiam — argument from authority.

And this historical howler:

… even as Apple’s destiny appeared locked into third-tier status and Microsoft was bailing them out. — p 60

Microsoft never did any such thing. They bought $150 million of non-voting Apple shares in 1997 as part of a complex deal including undertakings from Apple about default software, patent cases in dispute and the like. At the time Apple had billions in cash and a larger market capitalisation than McDonalds.

Some failures he simply misdiagnoses. For example, he talks about the death of the Alpha chip family. This chip family was, for quite some time, easily the fastest in the world, by a generous margin. He argues that the Alpha failed because the cost of adoption was too high and the advantages too few. In fact Compaq killed the Alpha because Carly Fiorina decided that doing the same thing as everybody else (Windows on Intel) was a swell strategy for improving profit margins. Or rather, the Alpha was killed by an Intel press release about the Itanium, which has never performed very well.

Here’s one of my favourite quotes, though:

The technology community fell hard for the concept of electronic business-to-business exchanges … –p 99

What? Technologists (who are the poor, misguided fools of the entire book) find nothing more tedious than “enterprise” software. Really. It’s the next worst thing to being an accountant, without the well-trod pathway into upper management and board sinecure. B2B was a buzzword invented by people like Coburn to convince other people like Coburn to invest money in companies run by people like Coburn to sell expensive rubbish to other companies — also run by people like Coburn. Somewhere along the way, a journalist-analyst type like Coburn churns out a dozen articles on the new-new thing. Technologists are, if anything, making jokes about the latest buzzword for the whole period.

Speaking of Coburn and the Technologists

Coburn really does have a bone to pick with we nerds — we ‘Technologists’. He talks about us finding technology easy; and he’s right. He says technologists often favour features over simplicity; and he’s right. But he also arrogantly talks about Earthlings through the whole thing, as if technologists were aliens. And, unsurprisingly, completely misses the point of Clarke’s Third Law of Technology.

It transpires that Coburn has an MBA from Harvard rival Wharton. Or, more accurately, he is an MBA from Wharton — business schools seem to indoctrinate, not teach — since he accepts any fuzzy idiocy and feelgood pseudoscientific quote but still considers himself to be a hard-headed businessman. Unlike those pesky alien technologists.

What is the damn change function, anyhow?

Here, let me save you $6.

Coburn says that a new technology or product solves a ‘crisis’ — out here in orbit around the Earth we technologists call it ‘fulfilling a requirement’. And a new technology has a perceived pain of adoption. We call it ‘cost’. If the benefit outweighs the cost, then the technology succeeds.

ie, if the expected benefit outweighs the cost for most users, it will succeed.

Amazing! Earth-shattering! Orbit-shaking! Someone resurrect Adam Smith and make him cry. So unexpected!

I mean there’s a bit of a fluff, but that’s really the whole show.

I bought this book hoping for a more rigorous, systematic treatment. I knew the basic thesis, it’s mentioned in reviews and on Amazon. But I expected some sort of checklist, or table of issues, or perhaps some hard quantitative research. Maybe some stuff on psychological biases or somesuch. Such a list or framework would be extremely handy for people developing new technologies, or those who have a technology they’d like to bring to market. But you won’t find it in Coburn’s book in any useful form. Or much else of any value, for that matter.

Save your $6. Buy a sandwich and a milkshake instead.

If you loved The Wisdom of Crowds, easily the best bestseller I’ve read since The Theory of Moral Sentiments and that was published in 1759, you’ll lerve this post by Michael Nielsen. Michael himself is quite an achiever. A graduate of the Uni of Queensland, he’s not only a scientist of some considerable standing (judging by the claims made on his website), he’s a truly fabulous writer. Check out these simple but compelling standards, and see how he meets them in this essay on the chess game of the century.

It had me reaching for the Wisdom of Crowds, which sadly has no index, but I’m pretty sure it’s not discussed at any length in there. What’s fascinating is the role of the ‘information broker’ and how they get to play that role (by acquiring a reputation!). I think it’s something when someone can be so good at one thing (straight cutting edge science at least judging by what is said on his website) and is then so damn good at another quite different skill. It’s not fair.

In the meantime, if you really want to settle into the Michael’s article, you may want to see some commentary as you go through the game - open a new tab here. And the game can be played over the net by opening a new window here.

At the same time, he reaffirmed the Tories’ belief in free markets and the liberalism of Friedrich Hayek. While arguing for greater fairness and social mobility, he insisted that these could only be achieved by conservative means. This sounds a lot like the ‘progressive fusionism‘ promoted by the Cato Institute’s Brink Lindsey. In a 2006 essay for the New Republic, Brink described it as “A movement that, at the philosophical level, seeks some kind of reconciliation between Hayek and Rawls.”

You might expect that a British conservative would struggle most with the Rawlsian part of this philosophical fusion. But surprisingly, it is Hayek’s ideas that Osborne chokes on. In his speech, he seems to deliberately avoid confronting one of Hayek’s most important insights.

Osborne insists that a “a fair society is one where people are properly rewarded for their effort and ability” and that “the free market economy is the fairest way of rewarding people for their efforts.” But Hayek argued that markets can never be fair in this sense. As Hayek scholar Jeremy Shearmur writes:

… Hayek argued — pace the wishful thinking of some conservatives — there simply is no moral merit to the distribution of wealth within such a society, and that one cost of such a society may thus be that it generates forms of economic inequality that we find morally unattractive (p 153).

Markets are efficient, but they are not engines of distributive justice. No doubt that’s a tough message to sell to a focus group.

Hayek distinguished between two kinds of fairness. The first is procedural justice. If we all sit down to play a game of poker and everybody sticks to the rules, then nobody can go home saying that the end result was unfair. It may be that you were unlucky and couldn’t possibly win with the cards you were dealt. But your bad luck doesn’t make the game unfair.

The other kind of fairness is what Hayek called ’social justice’. Social justice is about outcomes rather than procedures. An outcome is socially just if everyone ends up with what they deserve. Depending on who you talk to, this might mean equal shares for everybody or it might mean proper reward for ability and effort.

Schools often aim at this kind of fairness. Tests and assignments are designed to reduce the impact of luck. Often a school will make allowances for a student who becomes ill or gets caught up in a family crisis. The aim is to make sure that everyone is rewarded according to ability and effort. A talented student who works hard, should always do better than a dull and lazy student. If this doesn’t happen, then the rules need to be changed.

Hayek argued that markets were only fair in the first sense. He called it the game of catallaxy — a game where the results are partly the result of skill and partly the result of luck:

It is indeed because the game of catallaxy disregards human conceptions of what is due to each, and rewards according to success in playing the game under the same formal rules, that it produces a more efficient allocation of resources than any design could achieve. I feel that in any game that is played because it improves the prospects of all beyond those which we know how to provide by any other arrangements, the results must be accepted as fair, so long as all obey the same rules and no one cheats (p 63-64).

As he wrote in The Mirage of Social Justice:

It has of course to be admitted that the manner in which the benefits and burdens are apportioned by the market mechanism would in many instances have to be regarded as very unjust if it were the result of a deliberate allocation to particular people (p 64).

Osborne seems unwilling to accept that this is the price we pay for the benefits of a market society. Instead, he insists that a “a fair society is one where people are properly rewarded for their effort and ability” and that “the free market economy is the fairest way of rewarding people for their efforts.” He contrasts this to government led efforts to ensure fairness:

A planned economy may seem fair in theory but is unfair in practice.

As economists from Adam Smith to Francis Edgeworth to Friedrich Hayek have demonstrated, however well intentioned the central planners and bureaucrats may be, they will never have the knowledge to allocate resources fairly. They will never have anything approaching perfect knowledge of everyone’s needs, abilities and efforts. Only the invisible hand of the market, where people choose freely to transact with other people, is able to do that a consistent way.

What Hayek actually argued was that central planners and bureaucrats can never have the knowledge they need to allocate resources as efficiently as the market. And unless the Conservative Party can learn to tell the truth about markets it will continue to make promises to the electorate that it will be unable to keep.

Some are purely political problems in the wake of Labor’s recent close encounter with electoral oblivion. However, the really big challenges are fiscal and policy ones.  The largest are in education and indigenous affairs, signalled by PM Kevin Rudd’s announcement this week of the next stage of his “Education Revolution”.

Although partly a calculated distraction from gathering economic storm clouds, Rudd shows every sign of being serious about forcing the States and Territories to publish data on comparative school performance, pay teachers on merit, and insist that welfare entitlements are tied to school attendance.  Each element poses problems for the NT Labor government.

Paul Henderson lost no time in claiming publicly that Territory parents already have access to detailed data on schools’ performance.  All they had to do, he said, was phone their local school principal. Curious parents might want to try this and see how they go.  I don’t fancy their chances of obtaining meaningful comparative information.

One suspects that the chaotic implementation of the government’s middle schooling policy will produce some embarrassing results when Rudd forces the NT government to make comparative school performance data freely available. 

According to Australian Education Union secretary Adam Lampe, many middle school teachers are being required to take classes in subjects in which they have no training or expertise whatever, while timetabling practices in some schools make basic middle schooling principles impossible to implement.

However, the big issue for Labor is student attendance in remote indigenous schools.  If Rudd’s plan to link welfare entitlements to school attendance achieves its objective, Treasurer Delia Lawrie will need to find large sums of money to fund extra classrooms, many extra teachers and remote housing for them to live in. 

The former CLP government staffed remote schools on average student attendance rather than actual numbers of school age children.  Low attendances meant they could divert some federal funding to pork-barreling the electorally critical northern suburbs of Darwin.  Clare Martin happily embraced the same policy, until the Little Children are Sacred report and then the Howard Intervention embarrassed her government into belated expenditure increases.

Those increases together with planned borrowing for the Darwin Waterfront project have resulted in stalling of significant reductions in net state debt achieved in the first years of the Martin government.  The Territory still has net debt running at a shade over 10% of GDP, twice the level of any other state or territory except NSW. 

Improving school attendance in remote communities is vital because welfare dependence and the idleness, boredom and frustration it produces are key causes of horrific levels of alcohol-fuelled violence. Education, skills training and jobs are the only solutions in the long run. But for the Henderson government dramatic improvements in remote school attendance will impose significant short-term budgetary pressure. 

Whether just tying welfare payments to school attendance will actually achieve improvements in the latter is another question.  Indigenous academic Larissa Behrendt found that the recent Halls Creek trial of such a system achieved no measurable improvement. Maybe more sophisticated strategies are needed in addition to the blunt instrument of withdrawing welfare payments.

However, the picture on indigenous education isn’t all bleak.  The Accelerated Literacy (AL) program is currently undergoing extensive field trials largely under CDU auspices.  Involving 10,000 children mostly in remote indigenous schools, it is showing impressive preliminary results.  Initially devised by ANU Professor Brian Gray while teaching at an Alice Springs school in the late 1980s, AL is allowing indigenous kids to catch up with mainstream literacy levels at 1.7 Individual Reading Levels per year.

Current research suggests that attendance is not the only key to improving indigenous literacy.  Teacher performance is even more critical.  There are some excellent and committed teachers in our remote schools, but there are also quite a few confused, unmotivated ones who fail to engage their students or create a love of learning.

Research by ANU academics Andrew Leigh and Chris Ryan has shown that average literacy and numeracy levels of teachers themselves have fallen by 13% over the last 20 years.  As they observe: “It’s hard to see how you can become a smart country without smart teachers.”

That’s where the Rudd government’s intended national policy of  improving teacher quality comes in, partly through mandating higher performance-based pay for excellent teachers moving to disadvantaged areas.  Chief Minister Henderson may feel free to embrace Rudd’s demands despite inevitable teachers’ union hostility.  NT Labor owes the teachers no favours after the AEU orchestrated anti-government demonstrations during the recent election campaign.

It won’t be easy to persuade many excellent, experienced teachers to relocate their families to remote indigenous communities for four years.  Conditions in most communities are confronting and often depressing to put it mildly. It might even be necessary to offer innovative teaming arrangements where urban-based teachers staff remote schools in 3 week rotation on a “fly in-fly out” basis rather like highly qualified mine workers.  That would be expensive and certainly require additional federal funding support, but innovative approaches like that may well prove essential to achieving Kevin Rudd’s objective.

Nevertheless, it’s good news for the Territory that these issues are finally being taken seriously at a national level.  Aboriginal Territorians comprise 30% of our population and own 50% of the land, and unlocking their largely wasted “human capital” is central to the NT’s future social and economic prosperity.

The February meeting of the Shellharbour council, on the NSW south coast, was to start at 7.15pm. But the majority of councillors, Labor Party members, refused to assemble until an undesirable left the public gallery. He seemed harmless, frail and aged, with a walking stick, a limp and a bunch of military medals. He caused no problems as he sat in the public gallery, waiting. But at 7.50 pm, police evicted him.

It seems of no concern to the NSW police force - or to the government - that the police officers had no legal power to act against this man. He had done nothing wrong that night in the council gallery. He was ejected because the council had previously ordered that he not attend that meeting. That decision was unlawful: the council had no power to make it. And the police unlawfully diminished his rights by supporting the council.

It is ironic that the NSW government subsequently sacked Shellharbour council because councillors had no “proper understanding of their roles and responsibilities”. The same could be said of the police, but you can assume the government has not taken any action against these officers. They were doing the government’s bidding.

There are other instances where police act improperly if not unlawfully at the government’s behest. A recent example - aired on ABC radio - was an order made by police during Friday’s World Youth Day event requiring several would-be protesters to move-on. This conflicted with a Full Federal Court decision issued three days earlier. The three Justices unanimously found that a state regulation empowering police to act against a person who “causes annoyance or inconvenience to participants in a World Day event” was invalid. The Court decision found that “The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction”.

But these police were concerned more about achieving the government’s policy goals than protecting protesters’ civil liberties. The constabulary wanted to ensure that World Day events were not disturbed by the discordant. It was of no concern that police were legally powerless because protesters were not causing a safety risk and were not obstructing a World Day event. And they were not causing fear or harassing others or dealing in drugs. These points of the law did not concern the police: the government’s clear wishes mattered.

The same thing happened last week when NSW police moved-on homeless people who would have been seen by World Youth Day participants. A precedent had been made for September’s APEC meeting in Sydney, except that then the federal government funded accommodation for the city’s homeless. The NSW government liked the outcome but refused to pay for alternative shelter, so the state police misused their powers to clear the parks of the dishevelled homeless. Uncharitable and unbiblical? Certainly. But the pilgrims’ joy had to be preserved.

In return for the police force supporting the goals of the state government, governments support their police service. The minister for Police, David Campbell saw nothing wrong last year when five police cars and nine officers attended an incident involving Rugby League football player, Hazem El Masri and his lawyer manager. El Masri is a well-respected and skilled player who is seen as a model for Muslims. He exercised his right not to show his identity papers to two policemen. Notwithstanding the presence of excessive force, the police relented: they had inadequate grounds to force their demand.

NSW might not yet be a police state, but it could easily drift into such a condition. The Police Act 1990 talks about the police protecting human rights, but more important is the clause allowing the government to issue directions to the Police Commissioner. This means it can enforce its political wishes on a range of police activities. And the public never see these directions. They are secret. When there is a conflict between achieving government policy and defending what the NSW Police Act calls “the rights and freedoms of individuals”, the police and state are too often as one.

The cameras didn’t seem too comfortable including boyfriend Lachlan in the frame, but Mathew wasn’t phased and just alternated between kissing his mum and his lover. They didn’t have much choice then did they! A small act of humanity, like Nicky Winmar’s iconic pointing to the colour of his skin. And yet there was no anger or defiance - just natural affection. Makes me feel all good inside.

Congratulations Mathew Mitcham - Troppo’s official Cutie of the Week!!.

“The rich beauty of Dr. James Orbinski’s writing contrasts with the stark poverty and suffering of the people he has served. . . . This book exposes truths most of us would rather not know. Do not put it down. . . . See who you become after reading it.”

Canadian Medical Association Journal

I was equally moved by an interview with the author on tonight’s LNL. The unsparing clarity of his insight into suffering and redemption after years on the frontline with MSF in Rwanda, Somalia and Afghanistan is a dark and beautiful gift.

You’re right that we’ve reached a political consensus on neoliberalism in public policy, Mark. There is no battle of ideas anymore, save the many little battles within broader long-term questions of ‘how do we convert this or that social democratic structure into a neoliberal one?’

Source.

Social democracy is so deeply entrenched in our political institutions that it is in the fine-tuning and adaptation phase, not the original new thinking phase.

Source.

I am also guilty of this. Is it because we in the political class are exposed in debate to the arguments of our most ‘extreme’ opponents and therefore have a skewed view of what is happening? I reckon I sense a few PhDs worth of work here — in Economics and Psychology to start with.

Edit:

It hasn’t occured to anyone that there is no longer a battle of ideas, because neo-liberalism won the battle?

Source.

I feel very differently.

Final edit, I promise:

Finally, the fact you can only think about these things in a war-like, battle context is really sad, and I think highlights a tragic tendency.

The war is all in your head dudes - you think most people give a shit about this (even the informed ones)? What about - I don’t know, it’s so wacky - the policy solution that will engender the best solution? What about getting departments to actually do the research to find out what the best way forward is, rather than rooting about like truffle pigs trying to find the rare treasure that jusitifies the already taken intellectual position?

Source.

That’d be nice, but it flies in the face of what the shrinks have learnt about biases, about how people selectively perceive ‘proof’ of existing beliefs, how self-worth gets muddled up with consistency, and how important social standing and conformity are.

We’re all stuck inside these rather dodgy meat machines; it can be difficult to disentangle ourselves, our beliefs, and the probability that there’s an objective reality separate from either.

The high price of justice

Nazi Sex Romp!

Now I’ve got your attention I’m going to talk about legal procedure. After the lecture we’ll return to the sex romp.

Attorney General Robert McClelland has joined the chorus of condemnation seeking better access to our courts. In cases both large and small, the cost of litigation is often hugely, absurdly – to quote the Attorney “totally disproportionate” – to the value of the claim.

No-one’s solved the problem – anywhere. We haven’t solved it for the same reasons we’ve not tamed over-regulation. The devil’s in the detail. And as life gets more complex and computerised, the detail just keeps growing.

In our system the opposing sides – generally their lawyers – construct the case by following the rules of a procedural game, each trying to get the upper hand. The judge’s role is to adjudicate this contest; and only indirectly to find the truth. This provides cover for delay, denial and obfuscation.

As High Court Justice Hayne recently put it “Usually only one side . . . will be anxious to isolate the determinative issue in the case and have that decided quickly. The other side will have powerful reasons to avoid that being done.”

The biggest shakeup of the system occurred where it all began. In the late 1990s, English reforms stemming from Lord Woolf’s comprehensive report introduced much stronger disciplines on parties to solve or narrow disputes before trial and greater judicial powers to manage cases.

The reforms succeeded in clearing the backlog in the courts – but failed to the extent they’ve simply pushed costs back to earlier pre-trial interlocutory proceedings.

In Australia too, despite bold, Woolf-like legislative declarations that the “overriding purpose” of civil procedure “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” (NSW Civil Proceedings Act 2005), huge cultural and structural problems remain. Judges are often uncomfortable managing cases. And as Justice Sackville has argued, sufficiently vigorous refusal to indulge a litigant in putting their opponent to the test on every minor point could lead a case to miscarry on appeal for bias.

Under the leadership of Chief Justice Spigleman New South Wales has led on civil procedure – sufficiently to become business’ jurisdiction of choice. But it’s no legal nirvana. Spigleman complained recently that the flag fall for discovery of documents for a significant commercial dispute is often $2 million.

To match or better NSW’s legal competitiveness, the Victorian Law Reform Commission has been hard at it, recently publishing a sensible and comprehensive 700 plus page report, its 177 recommendations running over 20,000 words.

It highlights the poverty of data on which to make sound decisions. But it’s too much the creature of the legal culture it’s trying to tackle. Its proposed Civil Justice Council which would carry much of the future agenda is a specialist stakeholder body, an unlikely driver of substantial micro-economic reform. And there’s no recommendation to experiment – perhaps in some specialised court – with a truly inquisitorial process like Europe’s civil law system or our own Royal Commissions where the judge is chief investigator, not the umpire between legal opponents.

And where UK courts now charge for their time – with discretion to publicly fund to avoid hardship – the Victorian report shies away from anything so bold. I hope some enterprising State or Federal Treasurer understands what easy pickings this could make for their next razor gang.

To quote one commentator reviewing the Woolf reforms, delivering true proportionality “seems unlikely without a much more fundamental reform, such as moving away from the adversarial system”.

In fact civil law systems have problems too so they’re no panacea on their own. We need to search for a felicitous hybrid that melds the best of both systems – a subject for another column.

Meanwhile back in England, pity poor Max Mosley having a quiet S&M night with five friendly prostitutes. (He’s the high profile son of Oswald Mosley, British Fascist leader and Diana Mitford. Hitler attended their 1936 wedding.) Max was secretly videotaped by News of the World. He won £60,000 damages for invasion of privacy.

But even though the basic evidence – the tape and newspaper article – was already public, the costs of both sides still came to fourteen times the damages or nearly £1 million.

So much for proportionality in post-Woolf England.

And so much for your rights to privacy if you don’t have a million odd to wager.

A costs decision handed down in the NSW Supreme Court in February showed National Australia Bank spent $75 million defending a suit brought by Idoport Pty Ltd, a company run by a technology entrepreneur, John Maconochie.

The case ran for 223 hearing days until it was dismissed when Idoport, which had spent $11 million on the case, ran out of money.

The bank’s bills included $35 million for its solicitors, Freehills, $23 million for reports by expert witnesses, $11 million for barristers and an extraordinary $4 million for photocopying.

I’m publishing an op ed on civil procedure in the Fin this coming Tuesday and below are some notes on the subject necessitated by the fact that in an op ed one only gets 700 odd words, and one has to spice it up - one has to engage the reader.  While this shouldn’t - and generally doesn’t - involve any loss of value in the sense of just setting up diversions, the requirement to engage does dictate certain things about the way one makes one’s points.  So here’s some additional material.

The problems are manyfold and tricky - as I say in the article, the devil is in the detail.  One might say that there are three problems - one inherent in our current institutions, the other two inherent in the situation.

• The adversarial system means that the judge is an umpire rather than a truth finder. This means that the side with the weaker argument on any point (or in general) will labour the business of being beaten on the point.  They’ll put their opponents to as high a standard of proof as possible, even if it’s all pretty much a lost cause.
• The problem is also one of asymmetric information. Even if it’s not an adversarial system, each side and the one in the middle, whether they be a judge in an adversarial system or an inquisitor in a civil law system has imperfect knowledge.

Here’s the problem as outlined by High Court Justice Haynes.

Except in unusual cases, it will be in the interests of one side . . . to obfuscate and delay. Usually only one side of the record will be anxious to isolate the determinative issue in the case and have that decided quickly. The other side will have powerful reasons to avoid that being done.

This calls for more ‘case management’.  But there’s a bunch of problems here. Even if he’s keen to manage the case, the judge, and perhaps the side wanting to go on a fishing trip or to put its opponent to the test, won’t know what they’ll find.  So it’s invidious, even kind of psychologically difficult for the judge to call off the search.  And despite strongly worded overarching directions in legislated and regulated statements of the objects of procedure - such as NSW’s directions that the object of procedural rules is “the just, quick and cheap resolution of the real issues in proceeding” there are strict restrictions on how far judges can actually take their case management.

Ronald Sackville is an active voice in the call for more active attacks on the cost of litigation including case management, yet he wonders in hindsight about his own preparedness to let one litigant resist his preference for fewer expert witnesses, and more ‘hot tubbing’ which is the practice of experts giving their evidence together - enabling them to take each other up on various points.

As it happened, the expert evidence on competition issues took a substantial, but not excessive amount of hearing time. Nonetheless, with the benefit of hindsight I have little doubt that it would have been feasible for the experts to have given their oral evidence concurrently. Such a procedure would have been likely to save several days of hearing time without any loss of clarity or cogency in the presentation and testing of the experts’ opinions. Indeed, I suspect that the market definition issues would have been exposed more starkly had the experts been able to address each other directly than in fact occurred through the orthodox process of cross-examination.

The upshot of all this for me is that we’re unlikely to make much real progress until we go further towards an inquisitorial system - not the Spanish Inquisition (which no-one expects of course) but an exercise in which the judge has the primary task of coming to conclusions on facts and law with the parties there to put their oar in to defend their own interests.

That’s enough for one post, and I’d appreciate people’s thoughts on it.

Then I would hope to follow up with as second one further elaborating the way I would like to see things go. As a quick road map, I’ll concede that at least as far as revealed preference is concerned, the common law system actually seems superior to the civil law system. That is it’s preferred by business, which is a good test of what works in practice. I’ll argue that the common law has indeed got a bunch of critical things right, but that in terms of procedure, an inquisitorial system provides the way forward - but it would have to be a hybrid which retained the best aspects of the common law system, or not only might it fail to be a forward step, it might indeed be a backward one. (That having been said, I think the better things of our own system, in particular the respect for the autonomy of the litigants and for the ways in which communities have evolved of getting things done, would not be in any danger of being compromised. Political and professional support for them is too strong.)

The recent resignation of former Labor MLA John Bailey and two other members from the Darwin Harbour Advisory Committee raises some important issues.

The previous CLP government always had a gung ho attitude towards Darwin development, along with a seeming disregard for independent planning processes and checks and balances taken for granted in other states. Bailey’s resignation highlights the fact that the Labor government is no better.  We don’t have an independent Environment Protection Authority, local council involvement in planning approvals is merely token, and long term planning instruments like the Darwin Harbour Regional Plan of Management are treated by government as little more than window-dressing.

These deficiencies have recently been brought into sharp relief by the Henderson government’s handling of the proposed Inpex gas development.  It requires a considerable leap of faith to have complete confidence that  appropriate “world’s best practice” environmental safeguards will be imposed by a government which has just run an election campaign on a central theme of securing the Inpex development at any cost.

This “shoot from the hip” development mentality goes back at least to 2002, when a newly elected Chief Minister Clare Martin announced that all future heavy industrial development, including LNG plants, would be situated at Glyde Point on the Gunn Peninsula.  The announcement seems to have been made mostly to appease green groups and amateur fishermen, and with little examination of whether it actually made any sense. 

In fact it didn’t, resulting in another policy backflip as soon as Conoco Phillips’ Wickham point LNG project became an imminent prospect.  Developing Glyde Point for heavy industry would have taken the better part of a decade and cost billions of dollars to build essential road, rail, port, power, water and other public infrastructure which already exist near Middle Arm. 

Moreover, constructing new infrastructure would have destroyed far more virgin savannah scrub than building at Middle Arm, and it’s no more acceptable to pollute air, water and land around Glyde Point than anywhere else.  The real issue is that “world’s best practice” environmental management is needed wherever heavy industry is located.

It was hardly surprising that Middle Arm/Wickham Point was chosen both for the Conoco Phillips plant and for the proposed Inpex one.  It really is the only sensible location.

However, putting heavy industry at Middle Arm raises important wider planning issues.  Darwin’s population is growing rapidly and that looks set to continue, especially if the Inpex project proceeds.  There is now quite limited scope to accommodate major new suburban residential development without making a start on a new satellite town as soon as Palmerston’s last suburb of Bellamack is completed. 

Previous long-term planning instruments designated Weddell (between Berry Springs and the harbour) as the site for the next satellite town, and the current government’s Creating Darwin’s Future document still reflects that plan.  However, Weddell is immediately adjacent to Middle Arm where all the heavy industry is being placed. 

Even though air and water pollution can be prevented with proper environmental management, it doesn’t make planning sense to deliberately build major new residential areas right next to a heavy industry zone if that can be avoided. 

Maybe that’s why the Henderson government has made another ad hoc decision to develop Berrimah Farm and the current Darwin Prison site for imminent suburban subdivision, instead of moving quickly to develop Weddell.  The problem is that subdividing Berrimah Farm and surrounding areas fundamentally contradicts the original planning concept of leaving significant undeveloped green space between Darwin and Palmerston, and would result in undesirable continuous urban sprawl.

There’s an even bigger future development issue on the horizon.  Weddell is only the first of several planned satellite cities intended to stretch around the Cox Peninsula to accommodate major population growth over the next 50 years and more.  The recommending of the Kenbi Land Claim for grant has thrown those plans into severe doubt, but the government’s Creating Darwin’s Future document continues to refer to “possible future expansion to the Cox Peninsula”.  Although successive federal Ministers have had the Kenbi report in their “too hard” basket for almost 8 years now, it’s reasonable to assume that it will one day be granted.  That will foreclose options for large-scale suburban development on Cox Peninsula.

The Howard government’s land rights reforms a couple of years ago, which opened up the possibility of 99 year residential and commercial leases on Aboriginal land, might provide some limited scope, and the Larrakia people seem to be quite pro-development.  But only full freehold title that can be freely bought and sold provides an adequate basis for large-scale urban development.  Darwin’s history shows this very clearly.  Our development was stifled for the better part of 20 years in the 1950s and 60s after the federal government imposed an ill-conceived form of leasehold title on most of the then township of Darwin.  It wasn’t until the old “Darwin Town Area Leases” were liberalised and later converted en masse to freehold that Darwin began to grow rapidly into the modern tropical city we know today.  Deliberately building future Darwin suburbs on leasehold land would be an extraordinarily stupid decision.

The combination of all these factors means that future Darwin development plans need to be revised urgently.  We might choose to develop the Gunn Peninsula instead; position new satellite towns southwards “down the track”; pursue higher density urban infill strategies to accommodate population growth within the existing boundaries of Darwin-Palmerston-Howard Springs-Humpty Doo; or some mix of those options.

The remarkable thing is that none of these issues have been the subject of meaningful public discussion either before or during the recent NT election campaign.  It’s time we all began taking Darwin’s future development much more seriously.   

Women who are raped or who suffer domestic violence are somehow thought of in the popular imagination as a stereotype. According to this, the women are asking for it, dressed inappropriately, provoking it – responsible for it.

No evidence that I could see was cited for this.

The methodology of the paper appears to be this:

1. Interview women who have been raped within relationships
2. Begin the paper with a poem
3. Let yourself go

According to the paper, the overwhelming majority of the women who were interviewed said that the men who raped them wouldn’t recognise what they did as rape. The conclusion?

It appears that there is a disparity between the rights of women as expressed in Australian law and the way women are related to by their husbands, partners and professionals.

So there you go - rape really is on the end of every wolf whistle.  I guess, if I wasn’t tapping away on this keyboard, I could be raping someone right now, and unless there’s something wrong with the research methodology it’s overwhelmingly likely that I wouldn’t even recognise what I was doing as a crime.

I didn’t realise it before, but like so many things, it seems obvious when pointed out.