Saturday, October 12, 2002

Parish Pump Picks
Pick of the Ploggers

In a vintage week in Ozplogistan, I have felt compelled to break my self-imposed quota of 6-8 Picks. I've linked lots more, and all of them are first-rate. There's more good reading in this week's Parish Pump Picks than in just about any Sunday newspaper, in my biased opinion. Take the time to read any that you missed during the week. You won't be disappointed.
  • Beating about the Bush - John Quiggin's take on Bush's Iraq strategy. I don't entirely agree, but a thought-provoking piece. Also see John's Neoliberalism and failure: some definitions.

  • Uncle from ABC Watch actually praises Media Watch for targeting (1) the push to "drought-proof" Australia; and (2) Margo Kingston. Also see Alien Uncle - Uncle's amusing take on Aboriginality and ethnicity in general (but Uncle is only 7/8 of a human being on my count. Important revelation or poor arithmetic?)

  • Suckering the left - The Citizens Electoral Council does it again - from Don Arthur. Also see Don's Just face it - you're a fruit loop .

  • US Imperialism? - a long but fascinating piece from Bargarz, probably provoked by my unkind suggestion that lots of people who call themselves "libertarians" really aren't. By the time Bargarz discovered I wasn't talking about him, he had done huge amounts of work and turned out a masterpiece. I should carelessly insult him more often.

  • Tim Blair's initial piece on Melbourne sociologist John Carroll's new book is undoubtedly a candidate for the Fisking World Hall of Fame. Tim's second instalment was not quite as good (sequels almost never are), and he seems to have reached the same conclusion, because the promised further episodes haven't materialised.

  • DNA testing? - from Robert Corr.

  • Tim Dunlop on gun control in light of the Washington sniper murders (Tim and family live there). See part 1 and part 2.  Scott Wickstein has also contributed 2 excellent pieces on the same topic - part 1 and part 2. It's well worth taking the time to read all four articles. This is dialectical blogging at its finest; not fisking, just strong, logical arguments.

  • I swore to myself that I wouldn't rank plogs when I started this exercise. However, if I was, in an amazingly tightly packed field, I would award Professor Bunyip the Plog of the Week award for his wickedly funny demolition of Muslim mouthpiece Keysar Trad.

  • "We’ll All be Rooned," says Hamilton - Alex Robson ferociously fisks a Clive Hamilton article opposing deregulation of university fees. His junket to the Old Country doesn't seem to have noticeably mellowed Alex.

  • Criminal Court - from Bernard Slattery (crime victim becomes offender in our wonderful legal system). The link is just the Slatts' site, because the Blogger gremlins have infected his permalink.

  • Nazism is not leftism - from Jason Soon of Catallaxy. Probably deserves the runner-up award for Plog of the Week (if I was awarding one).

  • Friday, October 11, 2002

    Uncle grows on you (but so does tinia)

    "Uncle" from ABC Watch has graciously conceded (following my stroppy email to him) that he was wrong in characterising my attitude towards the 15 year old Aboriginal sexual abuse victim about whom I recently blogged. Uncle colourfully christens the victim as the "ex-maid from Maningrida". However, he also makes the following excellent point, which no-one in the mainstream media has so far picked up: "Anyone up there going to keep an eye out for the interests of the ex-maid of Maningrida?"

    This has prompted me to pen the following letter to the editor of the local NT News:
    "Dear Sir,

    Justice Gallop's decision effectively to exonerate a 50 year old Aboriginal man, with a prior record for manslaughter, of sexually abusing a 15 year old girl should be condemned.

    The published facts strongly suggest a lack of consent on the young girl's (child's) part, both to the "marriage" and sexual intercourse, or at the very least "some element of compulsion which prompted the victim to submit" (as the sentencing magistrate held). Justice Gallop found that the magistrate had gone outside the facts relied on by the prosecution in reaching that conclusion, but failed to say how in his sentencing remarks. In any event, "consent" is of dubious relevance at best where the victim is a child and the offender a much older man. Justice Gallop's approach brings to mind Archbishop Peter Hollingworth's "she asked for it" defence of a priestly colleague who abused a child the same age as the one in this case.

    Claims by some Aboriginal activists that public outrage at Justice Gallop's actions amounted to "white oppression" of Aboriginal culture should also be rejected. Forced marriage, especially where a minor is involved, not to mention non-consensual sexual intercourse, contravenes numerous international human rights instruments. Some activists, however, make the relativist claim that a post-pubescent girl is regarded as an "adult" in Aboriginal traditional law. So what? Some girls reach puberty at age 10. In some versions of Indian traditional law, wives were regarded as chattels to be incinerated when their husband died, while some versions of Islamic Sharia law prescribe stoning for adultery. Does that mean Australian law should respect such cultural practices, or that failing to do so is "oppression"?

    I see that the Director of Public Prosecutions is considering appealing Justice Gallop's sentence. One would hope the appropriate decision is made. However, a question that has so far been ignored is what (if any) action is going to be taken by relevant authorities to protect the young female victim from continuing abuse. Has the Health & Community Services Department's child abuse team investigated? Does it now intend doing so? What about the Anti-Discrimination Commission? Fairly clearly, a white victim would have been treated very differently.

    Fearlessly independent retired Anti-Discrimination Commissioner Dawn Lawrie has gone on record as strongly condemning Justice Gallop's decision. I have no doubt she would have exercised the Commissioner's powers appropriately had she been re-appointed to the position. In fact, the strength and independence or otherwise of the appointee to this crucial position will tell us a lot about the genuineness of the Martin government's commitment to openness and democratic accountability."

    I'll keep you posted.
    Update - Uncle posts another strong piece on the "ex-maid from Maningrida".
    Bunyip goes for gold

    John Quiggin reckons it' s been a vintage week in the ozplogosphere. I have to agree. It won't be easy choosing the Parish Pump Picks tomorrow morning. John probably didn't have Professor Bunyip in mind when he made his remarks, but he should have IMHO. The Professor has excelled himself with his latest item, which continues his crusade against Muslim mouthpiece Keysar Trad, with a passing sideswipe at anti-discrimination guru Chris Puplick. Bunyip's a fair way to the right of my views, but I have to guiltily confess I found his piece sidesplittingly funny. Read it and enjoy.
    Judicial activism in slow motion?

    Mark Harrison from Catallaxy has posted a piece titled "judicial activism", in which he eulogises pro-Republican pundit Thomas Sowell.

    It provides a textbook example of why one should always doubt, and never take anything at face value. Sowell's article deals with a New Jersey Supreme Court decision following the late withdrawal of Democrat Senator Robert Torricelli as a candidate for re-election after ethics charges led to his falling behind in the polls. The Democratic Party nominated a substitute candidate after the date specified in the New Jersey electoral legislation. It applied to the NJ Supreme Court for orders allowing the late substitution.

    Sowell describes the Supreme Court's decision as "judicial activism", "judicial corruption", partisan and anti-democratic. Here is the passage Mark Harrison extracted from Sowell's article:
    "If Houdinis on the bench can escape the laws that are on the books and substitute their own personal preferences as the basis for their rulings, then democracy becomes an illusion and the reality becomes a judicial ad-hocracy, overruling whatever laws the judges don't like, whether explicitly or by free-ranging "interpretation."

    Laws do not enforce themselves. If courts are too corrupt to enforce them, then our last line of defense is the press, which can alert the public to what is happening and let the voters decide what they are going to do about it. But if both the courts and the press are willing to turn a blind eye to those illegalities which meet their political approval, then the corruption is complete. "

    Now, as a statement of abstract principle I heartily agree with all those sentiments. Moreover, on a first glance at the legislative provisions in question, I would have to concede that the NJ Supreme Court's interpretation appears fairly loose, perhaps even strained. The problem with Sowell's "analysis" (and Mark Harrison's uncritical adoption of it) is that it completely ignores the historical and current reality. The New Jersey Supreme Court has been interpreting this and similar time limit provisions in its electoral laws in the same way since at least 1952!! Judicial activism? Corruption? This sort of hysterical hyperbole does Sowell no credit.

    The most recent beneficiary of the Court's settled interpretation was a Republican candidate in 1991 (in Catania v Haberle). Politically partisan? In Catania, the Court explained its approach in the following terms:
    "Concerns have been expressed that by giving this deadline provision a directory, rather than mandatory, construction we will create doubts about many other sections of the election law, a law that is driven by deadlines. Our only response is that this Court has traditionally given a liberal interpretation to that law, "liberal" in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day. Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them."

    Can we therefore say that the Court's interpretation was anti-democratic? First, the New Jersey legislature has had 50 years to legislatively overrule the Court's approach if it disagreed with it. Secondly, the effect of the Court's approach is to ensure that, wherever possible, voters have a full field of candidates to choose from. The effect of the current Republican position which Sowell advocates (the reverse of the one the GOP adopted in 1991) would be that the only effective choice for voters would be (surprise! surprise!) the Republican candidate. Sowell's definition of "democracy" would no doubt be heartily endorsed by Saddam Hussein.
    Political compass

    I'm sure I've done this Political Compass quiz before. Several members of the ozblogosphere (e.g. Bargarz) seem to be doing it though, so it can't hurt I suppose. Like most multiple choice polls, I found there were quite a few questions where none of the permitted choices accurately described my attitude. Nevertheless, for what it's worth, here are my results:

    Economic left/right: + 0.12 (i.e. almost precisely in the centre, with an almost imperceptible bias to the right);
    Authoritarian/libertarian: - 4.51 (i.e. strongly libertarian, although not quite as much as Bargarz who scored - 5.23 on this axis).

    Interestingly, despite my reservations about polls of this type, the results coincide almost precisely with my self-image (which is conforting, I guess).

    Thursday, October 10, 2002

    The justice of Justinian

    It isn't often I find myself simultaneously cheering wildly and snarling with unrestrained anger. That's the effect Richard Ackland's column in today's Sydney Morning Herald had on me. The cheers were for Ackland's powerful advocacy of the interests of hapless victims of the closed shop legal system, and the snarling was directed at the judges and lawyers who maintain that closed shop.

    Ackland's article concerned the persistent refusal of courts to allow unrepresented litigants to be assisted by anyone other than a fully qualified, admitted lawyer with a current practising certificate. The judges' professed rationale is that they are protecting professional standards, and shielding consumers from unethical, dishonest or incompetent behaviour by unqualified advocates not subject to the "disciplines" of a law society or bar association, or their duties as officers of the court. However, any standards maintenance function performed by the legal self-regulatory bodies is largely incidental, or at least very much subordinate to their primary focus of maintaining a rigid professional monopoly, allowing lawyers to continue gouging premium prices from captive consumers. The hallowed principle of the "rule of law" tends more often to resemble the "rule of lawyers" (so says this class traitor).

    Bob Carr in New South Wales frequently expresses his low regard for the lawyers' trade unions, but consistently fails to do anything to restrain their self-interested, anti-competitive behaviour. Maybe it's because he is surrounded by lots of lawyers in his Cabinet and Caucus. However, the Northern Territory exhibits a similar paralysis when it comes to taking effective action to restrain the anti-social aspects of lawyers' self-interest. Clare Martin's Caucus contains no lawyers at all, while the CLP opposition contains only one. So maybe it's because lawyers have a better command of the tools of advocacy than most other groups, and also know how to pull the levers of power very effectively.
    Backdate - Note my previous piece called DIY Litigation on a closely related topic. Richard Ackland also mention Family Court Justice Faulks' plan for a DIY litigation website. I wonder why the ACCC doesn't investigate the lawyers' monopoly. Maybe Jason Soon might have some observations
    Fisking fisking

    Calpundit (link courtesy Tim Dunlop) contributes a truly inspired dummy fisking of Lincoln's Gettysburg Address. He follows it up with these observations, which I enthusiastically adopt:

    "Yep, that's what most of them sound like. Childish, petulant, ignorant, and willfully trying to miss the bigger point. Almost autistic in the certainty that their hyper-rationalism has dealt a devastating logical blow to their safely-out-of-sight opponent.

    Folks, there's a reason you don't see "real" pundits do this kind of thing in the New York Times, and it's not because of liberal media bias. It's because it's stupid. Knock it off.
    "
    Deregulation of university fees?

    This is another recycled piece from someone else's comment box. Robert Corr blogs on Federal Labor's announcement that it will oppose the Libs' plan to deregulate university fees (effectively allowing the major sandstone unis to raise more funds by charging higher fees to students, while leaving regional and smaller universities swinging in the breeze, and poorer students with no choice but to attend the latter despite inevitably falling standards through lack of funds).

    The trouble with Labor's move is that it leaves unstated whatever plans the ALP might have to revive and adequately fund our universities (something they desperately need). Deputy Labor Leader Jenny Macklin's press release is long on condemnatory rhetoric about Coalition plans, but says nothing whatever about Labor plans or how they might be funded.

    In reality, there is no alternative but increased taxation (probably an effective income tax rise of 2-3% for all but the lowest bracket). I think that's politically sellable by a competent communicator capable of projecting the vision and the reasons for it, and inspiring the community behind that vision. However, I see no sign that Crean (or Jenny Macklin) has any of the necessary qualities.

    I suspect it's more likely that Labor will "do a Keating" and try to convince the electorate that it can deliver the necessary reforms without increasing taxes (remember Keating's "L-A-W law" tax cuts? Any such strategy will fail dismally. The reason why Barry Jones' Knowledge Nation plan was unceremoniously dumped (apart from the "noodle" diagram) was that it honestly acknowledged that large amounts of revenue were needed to achieve its objectives. The same is true of any such reform plans.

    Labor seems unwilling to try John Howard's gamble of selling a new tax (or tax rises) to the electorate. Of course, it's much easier to do that from government than opposition, so maybe a cheap stunt like promising not to introduce fee deregulation is all we can really expect. Without a credible alternative policy backing it up, however, it's pretty meaningless and likely to be electorally counter-productive except with self-interested uni students.
    American imperialism?

    John Quiggin has an excellent piece demonstrating the imperial aspects of the "Bush doctrine", and pointing out that it isn't only lefties who hold concerns about such tendencies. The following is a republication of my comments on John's blog. I am responding to a comment by Tim Dunlop suggesting that the US has been an imperial power since WWII and is just being more honest/overt about it now, and one from Scott Wickstein who says that Bush's evident imperial aspirations are the reason why he remains nervous about an Iraq invasion:

    I agree with Scott. That is the main reason (as well as the possibility of large civilian casualties) why I remain uneasy about Bush's Iraq regime change plan. I have never really understood how the supposedly "libertarian" warbloggers manage to be so sanguine and supportive of the authoritarian, imperialist strands of Bush's rhetoric and plans. I suspect many of them like the sound of the label "libertarian", but are really just old-fashioned conservatives with a hypocritical liking for demanding protection of their own personal freedom under the guise of principle.

    On Tim's point, I think you need to be either cautious with assigning labels or explain more clearly your definition. The US has certainly had the capacity to project imperial power since WWII. It has also exercised what is usually called "cultural imperialism", partly through the attractiveness of its cultural product and partly through the economic power of its corporations. It has occasionally exercised direct imperial power (e.g. as in Chile), but mostly projects power through tied foreign aid, and the policies of international bodies it dominates, like the IMF, World Bank, WTO and WIPO. These are constrained exercises of power which, while they may have some imperialist undertones, are insufficiently unilateral or direct to attract the label without heavy qualification. All nations use these methods to achieve their national objectives, it's just that the US can do so much more effectively because of its economic and military muscle.

    The distinction between that and the new Bush doctrine is that there appears to be a new willingness to project naked political and military power to achieve US aims. That really WOULD be imperialism. It might or might not on balance be a good thing, depending on (a) the extent of paralysis of the UN as an even slightly effective security body; (b) the extent to which US internal democratic checks and balances, and whatever regard it might have for the views of key allies, results in a benign rather than utterly self-interested exercise of imperial power.

    You need some institution to quell international anarchy, and if the UN's structure makes it incapable of taking effective action then some other body having the capacity to do so (i.e. the US) is going to fill the vacuum. It's almost Hobbesian, I think. However, there needs to be some form of social contract between the US and the rest of us who cede some part of our freedom in the interest of peace, security etc, to guard against American hubris and totalitarian excess. As with the US Constitution, if the US is to overtly assume some degree of world executive power in an overt way, it needs to be subject to effective checks and balances, which nevertheless allow it to take decisive action when needed. If the so-called "libertarian" warbloggers were really libertarians, THEY would be discussing these issues more actively, instead of just acting as a Bush cheersquad and "fisking" anyone who dares to express any doubts.
    Update - Bargarz blogs an excellent response containing lots of links and quotes. He seems mostly to agree with what I'm saying (I think). Bargarz seems to be the thinking person's warblogger, and a principled libertarian.
    Soon on nazism

    Jason Soon has excelled even his own usual high blogging standards with an impressive piece on Nazism and its politico-philosophical roots. It should be compulsory reading for John Ray, but I highly recommend it in general.
    Snide about snerds

    Gareth Parker has an item which links and endorses a fairly weak article titled "Revenge of the Snerds" by some right wing hack called Ian McFadyen. A snerd, according to McFadyen, is a caricatured vaguely left-leaning politically correct type (just the sort of person McFadyen loves to hate).

    What interested me, though, was how many supposedly snerd-ish tastes I have:

    "They support the Australian film and television because we need to "tell our own stories", but detest Neighbours and Home and Away." Guilty as charged.

    "They are people who live for books (Peter Carey, Phillip Adams, Angela's Ashes), French Provincial cooking, imported cheese, domestic wines, the ABC subscription series, walking, Absolutely Fabulous, antiques, art galleries, Japanese gardens, woks and brass bedsteads. They believe in bike tracks although they never ride a bike." Guilty on most counts. Phillip Adams isn't one of my favourite pundits, though, although he is sometimes worth listening to or reading. I don't attend ABC subscription series concerts, but only because I live in a city that doesn't have an ABC orchestra. I believe in bike tracks, but I do ride a bike just about every day.

    Snerds, it seems, are also people who think "that Blackadder, Mr Bean and Absolutely Fabulous are brilliant while Roseanne, Home Improvement and Friends are American crap ...". Again, guilty as charged.

    The main attribute McFadyen says snerds exhibit, however, is their propensity to "sneer" at anyone who doesn't share their tastes. Well, I don't think I'd be so rude as to sneer at a fan of the listed American sit-coms, but I also wouldn't be taking a lot of notice of their viewing recommendations.

    Of course, the ironic aspect of McFadyen's article seems to have completely escaped him (and Gareth, for that matter). McFadyen spends his entire article doing precisely what he identifies as the principal attribute of the "snerd". His article is just one long sneer.

    Wednesday, October 09, 2002

    Rob's hot lap

    No, this piece isn't about sex. Get your mind away from your groin, you filthy beast. This is motor-racing jargon, what with the Bathurst 1000 almost upon us. Robert Corr is on a "hot lap" of blogging. He has posted excellent pieces on Northern Ireland, DNA testing for Aboriginality, and the death of a rejected Colombian asylum seeker. All are well worth reading.
    Sex and cynicism

    The Parish Pump is getting far too solemn and serious. So this piece shifts the focus from putting law and politics under the pump, to good old-fashioned rumpy-pumpy. The following quotable quotes about sex are courtesy of Suzy Kruhse (a friend who I might one day convince to start blogging):

    Tom Clancy: "I believe that sex is one of the most beautiful, natural wholesome things that money can buy."

    Steve Martin: "You know "that look" women get when they want sex? Me neither."

    Drew Carey: "Sex without love is a meaningless experience, but as meaningless experiences go, it's pretty damned good."

    Woody Allen: "Having sex is like playing bridge. If you don't have a good partner, you'd better have a good hand."

    Rodney Dangerfield: "If it weren't for pickpockets I'd have no sex life at all."

    Rodney Dangerfield: "My wife said she'd like to have sex in the back seat of the car... and she wanted me to drive."

    George Burns: "It isn't premarital sex if you have no intention of getting married."

    George Burns: "Sex at age 90 is like trying to shoot pool with a rope."

    Lynn Lavner: "There are a number of mechanical devices which increase sexual arousal, particularly in women. Chief among these is the Mercedes-Benz 380SL."

    Harvey Korman: "Using Viagra is like putting a new flagpole on a condemned building."
    Justice speared?

    Yesterday's saga of the judge who apparently condoned the sexual abuse of a 15 year old Maningrida girl by her 50 year old Aboriginal "husband" is not the only current controversy surrounding judicial recognition of Aboriginal customary law punishments in the Northern Territory. Earlier this week an Alice Springs magistrate released a man charged with murder on bail for one week to suffer tribal payback, despite objections from the Crown Prosecutor.

    ABC news reported a Criminal Lawyers' Association spokesperson as saying that "courts are not moving toward sanctioning traditional punishment"

    I am sure I heard a story on ABC TV news last night to the effect that the payback had gone badly wrong. The accused murderer had been set upon by a large mob when he arrived back at his community, and they had tried to kill him. He was reported to have been quite seriously injured and in hospital in Alice Springs. However, I can't now find any mention of the story on the ABC website or elsewhere.

    I don't think there is anything wrong in principle with a judge or magistrate taking into account on sentencing the fact that an offender has already been subjected to tribal punishment (or even that he certainly will be), and discounting the "whitefella" sentence a little as a result. That is consistent with basic notions of fairness and the "double jeopardy" principle. It may even be okay to release an accused offender on bail knowing that he will more probably than not be subjected to tribal punishment. However, it seems to me that there is a qualitative difference between that and releasing a person for the specific purpose of undergoing tribal punishment. That comes perilously close to judicial complicity in the crime of aggravated assault.

    Whether Australian law should in fact formally recognise some types of tribal punishment (e.g. ritual spearing), as opposed to merely taking into account on sentencing the fact that it has occurred, is a difficult question. On the one hand, the arguments discussed by Alison Humphry (see yesterday's piece) make a reasonably persuasive case for the proposition that spearing may (at least in some cases) be a more humane option than prolonged imprisonment. It might also be more effective in deterrent terms, given its immediacy and the element of community shaming. However, tribal punishments frequently go wrong. This week's Alice Springs incident (if I heard rightly) is not an isolated occurrence. Even if ritual punishment does not degenerate into vigilante mob violence, sometimes the spear severs a vital nerve or artery, instead of just penetrating the fleshy part of the thigh. Many Aboriginal men are somewhat less practised at using a spear than they once were, and sometimes their faculties are affected by alcohol or other drugs. On the other hand, sometimes there are credible reports that tribal punishment did not in fact occur at all. An offender may falsely assert its certainty to win a reduced sentence, and his defence lawyer may make a submission to the court without adequately checking the truth of his client's assertion.

    I don't argue that formal recognition of Aboriginal customary law in "whitefella" law should be rejected out of hand. I do, however, suggest that it needs very careful analysis by any Parliament which contemplates it.
    Welcome Back Blogger

    Stephen Hill is a serial blogger. He started a blog some months ago, but then had a midlife blogging crisis. Now he's back! Stephen describes his blog in the following terms:
    "While it will have a literary focus, I've kicked off with the brave but stupid attempt to guess the Nobel Prize for Literature winner, probably from time to time I'll vent my spleen on whatever issue is perplexing me - the fearmongering of shock-jocks, asylum seekers, de-regulation of the education market."

    With that sort of focus, Stephen is a welcome re-addition to the ozblogosphere. He might like to kick off by giving his viewpoint on this piece from neo-liberal economist Alex Robson.
    Balancing the ledger on Israel

    Harvard law professor Alan Dershowitz has published an excellent piece on the current petition being circulated at that university urging a boycott of Israel as a "pariah" state (link courtesy Silent Running).

    I endorse most of what Dershowitz says. His article should be compulsory reading for anyone minded to join the Pilger brigade and condemn Israel out-of-hand for its treatment of the Palestinians. Israel is (1) a liberal elective democracy (unlike just about any Arab country); (2) respects the rule of law; and (3) mostly tries hard to minimise civilian casualties and even to avoid mistreatment of terrorist suspects. Those are pretty impressive boasts for a country under unremitting terrorist attack, by organisations like Hammas sworn to Israel's destruction, and whose operatives deliberately hide in urban civilian areas, making it almost impossible to conduct military operations against them without imperilling civilian lives. Turning the other cheek is not an option that would be taken by any country I can think of in such a situation.

    I do, however, have a couple of reservations about Dershowitz's article. First, it effectively repeats the patently false Israeli propaganda line that the Camp David peace offer should have been accepted by the Palestinians (see my previous piece on this).

    Secondly, Dershowitz asserts that "Nor is Israel the only country that is occupying lands claimed by others. China, Russia, Turkey, Iraq, Spain, France and numerous other countries control not only land, but people who seek independence." While that is true in one sense, there is a very large difference between claiming sovereignty over land where some (or even most) of the people "seek independence", and the situation of the West Bank and Gaza Strip. These are territories over which Israel has no sovereign claim, and which it invaded and continues to occupy in defiance of international law and a succession of UN resolutions. The only one of the situations listed by Dershowitz that comes anywhere close to that is China's occupation of Tibet.

    The numerous telling points in Dershowitz's article are rather undermined by his studied failure to acknowledge Israel's false position in this regard. An uncritical "my country right or wrong" stance may be persuasive for the "true believers", but is less likely to impress the majority who deplore excesses on both sides of the intractable Middle East bloodbath. Someone has to take the first step towards peace, and it isn't assisted by one-eyed advocacy, whether by Alan Dershowitz or blatant and wilfully blind Palestinian apologists like John Pilger.
    Update - The comments box below contains some long and thoughtful posts that are well worth reading.

    Tuesday, October 08, 2002

    Law an ass?

    Many will think the title to this piece is a rhetorical question with a self-evident answer. I'm beginning to think they might be right. Bernard Slattery has an item titled "Criminal Court" which appears on its face to be just as alarming as the NT Supreme Court decision about the Aboriginal man and his 15 year old "wife" (discussed immediately below).

    Of course, we can't condemn the magistrate's decision unequivocally without knowing the full facts. It's possible, I suppose, that the shopkeeper over-reacted and used excessive and unnecessary force on the intruders (as with the 16 year old kid bashed with an iron bar by a publican, discussed at length in the ozblogosphere not so long ago). On the face of it, however, you would have to think that fining the shopkeeper $2000 was grossly excessive. You might even have expected the magistrate to say, as Justice Gallop inappropriately observed in the case discussed below, that "It's very surprising to me (he) was charged at all".

    I think there's a good argument for a liberalised defence of self-defence, including defence of one's property, in a break-and-enter situation. We had our home broken into 3 times in a 12 month period, not so long ago. On one of those occasions we heard the thieves while we were in bed, and our reaction frightened them into fleeing. But it was a very confused, scary situation in the middle of the night, where we really weren't sure what was happening, how many thieves there were, or exactly where they were in the house. Luckily, by the time we worked it out they had bolted. However, I can't help wondering what would have happened if we had stumbled across them and accidentally cut off their escape route.

    I think householders and business-owners should be entitled to err on the side of caution and use abundant force against intruders, unless it is clear that they are fleeing or otherwise pose no threat. The danger in such an extended defence, of course, is that some vigilante types may abuse it and severely thrash an intruder for retributive rather than genuinely defensive reasons. That's why any such proposal needs careful thought, but I don't think the idea should be rejected out of hand.
    Aboriginal customary law

    Scott Wickstein blogged earlier today on a Northern Territory story in The Australian newspaper, dealing with a case where a Supreme Court judge effectively exonerated a 50 year old traditional Aboriginal man on charges of unlawful sexual intercourse with a 15 year old "promised" wife. Scott remarked that he found the judge's actions "alarming". I can see why. It is clear that the girl did not consent, either to the "marriage" or to sexual intercourse with this old man. Even more disturbingly, the "husband" had previously been convicted of manslaughter of a previous wife.

    Nevertheless, as the girl's parents were "concerned she was playing up at nights with local boys in her hometown of Maningrida in western Arnhem Land, they decided it was time for the promise to be fulfilled, and for her to learn her duties and responsibilities as a wife."

    The judge may have thought that the girl "knew what was expected of her". However, I suspect the reality is that, like many young Aboriginal people, she is caught between two cultures; stuck with the expectations of the residual traditional culture, but having many of the same beliefs, hopes, aspirations and expectations of a young girl anywhere else in Australia. Being forced to marry an ugly, violent old man when you're still a child does not fit with those aspirations and expectations. It also doesn't fit with what the dominant western culture regards as primary values of individual rights and freedom. Should a judge be free to ignore those values and prefer instead Aboriginal customary law and values, in the absence of Australian legislation giving him an express duty to do so? Should the judge be free to ignore the fact that the young female victim had fairly clearly expressed her non-acceptance of customary law in its application to her?

    Certainly, a contributor to the comments facility on the Australian website agrees strongly with Scott:

    "Had this man been white he would be reviled as a pedophile and an exploiter of Aboriginal girls. Had the girl been white there would be counsellors all over her. Had both of them been white there would be much gnashing of teeth from social campaigners. What the nation can expect however is the exact opposite.


    He is humiliated and embarrassed that he has had to explain his backward and repugnant traditions of buying children. We can no doubt expect an apology to flow from the government of the Northern Territory for the “insensitivity” shown towards him. She is in “no need of protection from white law” and “knows what is expected of her”. Clearly she (a child) is to be left alone to fend for herself. That such marriages may be common and morally correct under Aboriginal law is indeed proof that we do not need two parallel legal systems in this country. That a judicial officer would bow and scrape before Aboriginal custom at the expense of the rights and freedoms of an Australian citizen is both horrific and disappointing. "


    Many of my immediate reactions coincide with Scott and the above comments. However, there are more issues involved, and they're not simple. We are reacting from the frame of reference of our own individualist western culture; Aboriginal traditional law and culture are very different. These two quotes from an excellent article by David Lea titled "Individual Autonomy, Group Self Determination and Assimilation of Indigenous Cultures" explain the differences:

    "'In traditional societies, we would expect values to be based more on recognition than on choice, with the result that the collective and individual identity and well-being would be less open to volition than, in say liberal individualistic societies. This, I claim marks the major difference between native communities and our own'.


    Another commentator makes similar observations:

    'Members of the (indigenous) community are expected to participate in communally orientated functions, and to respect the authority of the community and its traditions and values; withdrawal from participation is equated with withdrawal from the community, since membership can mean nothing other than participation.' "


    How do we resolve clashes between western individualist law and culture and Aboriginal customary law? Alison Humphry deals with some of the issues in an article in Murdoch University's E-Law journal:

    "The converse situation is that where the traditional punishment for an offence is seen by the national legal system and international human rights instruments as too harsh. An example of this is the incidence of tribal pay-back killings, or tribal spearings/ woundings as punishment for serious transgressions.


    It seems obvious therefore, that tribal killings are in conflict with the national legal system (which does not condone capital punishment), and every international human rights instrument. It is less obvious whether a State must, under the convention, condone physical punishments such as spearing or other forms of wounding. As stated earlier, human rights instruments generally contain proscriptions of cruel and inhuman treatment or punishment. However, as is pointed out in the Law Reform Commission report, it may be a moot point as to what is more cruel to various peoples. Certainly the high rate of Aboriginal deaths in custody has made it open to question whether imprisonment per se is less cruel and inhuman. See for example the submission of HC Coombs to the Law Reform Inquiry on customary punishment: "punishments...such as prolonged imprisonment especially among alien strangers and away from their own country are markedly more "inhumane" and unconscionable" than a spear through the thigh - usually voluntarily accepted as part of a consensus settlement""


    However, the situation we are discussing does not involve a traditional punishment seen as overly harsh, but rather an Aboriginal "civil" law concerning marriage and conjugal rights and duties, which clashes with western norms, and is criminalised by western law. There are some parallels with the case of Aboriginal activist Murrandoo Yanner, who was convicted of an offence for spearing a crocodile. The High Court overturned the conviction, basically because he was acting in accordance with Aboriginal customary law and practice. However, even if one accepts the logic of that decision, the current situation raises additional dilemmas. There is a child involved, whose legal rights (not to mention her body) are being violated against her will and in a fundamental way.

    David Lea suggests that there is a fundamental contradiction between Aboriginal self-determination (which necessarily requires economic self-sufficiency) and maintenance of traditional law and culture:

    "My conclusion is that if the survival of indigenous communities as distinct cultural enclaves is guided by a policy which aims for autonomy and self-determination, it is difficult to avoid the economic imperative which links self-determination with a degree of financial self-sufficiency. The political autonomy of the community may depend on an effective command of financial resources.


    This means that members of these communities must be capable of engaging in income earning pursuits and otherwise participating in the modern, growing global market economy, either on an individual basis or in concert with other community members through viable economic organisation. This means the formation of corporations and financial associations which actually work commercially and which are more than symbolic vehicles for the political ascendancy of particular individuals. However, the more successfully the community becomes integrated into the economic mainstream, the more irrelevant the traditional cultural context may become. ... Obviously, Aboriginal societies, unlike the Quebecois, have a non-Western religious culture, but the other points will apply equally. As traditional communities become integrated into the modern market economy, it is unavoidable that their values and choices will become determined by a dominant economic culture even if the presence is subtle."


    Lea suggests an alternative to this inevitable erosion of customary law and traditional Aboriginal society, in that he advocates that Aboriginal communities which wish to retain their culture and society intact should be supported by the taxpayer to do so, as a matter of "fiduciary" and "moral" duty, and without any expectation that the community will achieve economic self-sufficiency. In effect, he advocates that Aboriginal communities have the option of becoming taxpayer-supported "museum cultures". I have serious problems with this suggestion, primarily on the basis that it can't possibly work. You would have to create an impenetrable "iron curtain" around the "museum" communities, to avoid the danger of young people being infected by the contagion of western consumerist values and individual rights culture. The recent experience of the Soviet Union and its satellites suggests that this is impossible.

    Indeed, it's already too late, as our 15 year old girl's attempted resistance to forced marriage illustrates. In every Aboriginal community I have visited, however remote, young people manifest clear aspirations towards western culture and values in myriad ways. They have voted with their feet. It's too late to turn back the clock, even if we thought it was desirable. Land rights and self-determination should be seen mostly as circuit-breakers, designed to give Aboriginal communities the breathing space to find their own ways to adapt to 21st century cultural and economic realities. I argue that they have no choice but to adapt, and that we don't do them any favours by fostering or acquiescing in an illusion that preservation of a "museum culture" is possible. Justice Gallop did our 15 year old sexual abuse victim no favours by siding with her abuser on misguided customary law grounds, but in a wider sense he also hasn't helped Aboriginal society itself to begin confronting these vexed issues in a realistic way.
    Quiggin on neo-liberalism

    John Quiggin has an excellent analytical piece this morning on neo-liberalism and his thesis that it is dying. I added the following observations to his comment facility (and thought they were worth highlighting here):

    I agree with most of your points. My main quibble is with your assumption that Labor is likely to remain in power in most of the states and territories. If/when there's a housing price crash in Sydney and Melbourne, the incumbent governments are likely to go (which is no doubt why Bracks is currently firting with an early election option). I also wouldn't put money on the ALP retaining government in the Northern Territory, and I don't know enough about the other states to make a confident prediction.

    My other quibble is with your conclusion that Australia's federal government has abandoned neo-liberalism. They've certainly reverted to traditional conservative "hot button" issues for eletoral purposes, but it isn't apparent to me that they've abandoned neo-liberalism as an economic strategy. A couple of tax levies don't prove your point. Howard ran down the surplus to negate adverse reaction to the GST and secure re-election (before they implemented the Tampa strategy and got the lucky break of S11). He is simply trying to paper over the cracks with these levies while he waits for natural revenue growth to rebuild the budget surplus. Occasional "wedge" tactics on traditional conservative issues (dole bludgers, single mums, law and order, refugees etc) will keep the punters distracted. Moreover, the strategy will probably work, unless Labor lifts its game and presents a credible, coherent alternative (which I doubt will happen given the dearth of talent). You might be right that Howard will lose the next election because of a housing price crash in Sydney and Melbourne, but I wouldn't be so sure. It's more likely that state governments will be punished, and the housing crash is likely to be confined to those two cities.

    Thus Howard will have the opportunity to compensate for any lost seats in Sydney and Melbourne by concentrating resources on winning marginal seats in other states and in country NSW and Victoria. Labor managed to win a couple of elections by those sorts of careful marginal seats strategies (notably in 1990 and 1993) despite falling overall support, and the Coalition has an even more formidable political machine now. The Coalition is also significantly freer than Labor to implement "wedge" tactics on a much wider range of emotive issues than Labor (which remains burdened with quite a few social democrats with some inconvenient remnants of conscience that the factional system has not completely extinguished).

    Monday, October 07, 2002

    Giving academics a bad name

    Tim Blair delivers the mother of all fiskings to Melbourne academic John Carroll, who has written a seemingly pretentious, absurd and repulsive tome philosophising about September 11, its causes and consequences. This is a fisking tour de force, and compulsory reading in my view. It seems it's only Tim's first instalment. I'll be staying tuned, and you should too.
    Another Washington shooting

    Tim Dunlop has another powerful piece about the Washington shootings, in the wake of yet another one. This time a child walking into school on Monday morning. Tim had just taken his own child to school. I can imagine how Tim, and every other parent around Washington, must be feeling right now.

    Tim has another go at advocating gun control. I wonder whether American sentiment (at least in Washington) is starting to turn around on this subject. There was certainly a huge groundswell of public support for gun control laws in Australia in the wake of the Port Arthur massacre. It gave politicians the intestinal fortitude to take decisive action, because they knew the gun lobby would be overwhelmingly seen for what they were: an extreme, moronic, self-interested minority who could safely be ignored.

    I suspect America's culture is much different, with gun ownership far more entrenched and the gun lobby's absurd mantras ("guns don't kill people, people kill people" etc) seen as holy writ. I suspect that the existence of constitutional protection of a right to gun ownership (the Second Amendment) plays a part in that public mindset. It certainly severely constrains legislative options even if politicians did somehow acquire the guts to take on the gun lobby.

    Lastly, I can't help but wonder (as have lots of "warbloggers") whether this is a terrorist-orchestrated action. Although less cataclysmically spectacular, there's no doubt that these shootings have succeeded in engendering terror into the heart of America, every bit as effectively as September 11. It's stupid to assume that's the case, America has plenty of home-grown homicidal lunatics (as Oklahoma City shows), but it must be regarded as being at least a possibility, especially given the location in the US capital.
    Telstra making the desert bloom?

    It's a rare day in the media when the SMH's arch-conservative correspondent PP McGuinness and its leftie ABC secondee David Marr actually agree with each other. And even rarer when The Parish Pump concurs with both of them. What could possibly give rise to such an unholy consensus? Answer: the current campaign by the Federal government-sponsored "Farmhand" drought relief appeal to "drought-proof" Australia by turning our northern rivers inland!

    Marr actually has the more in-depth analysis of this bizarre phenomenon. He detects the influence of Telstra and its corporate allies. They're trying to trick cow cockies into believing that, if they go along with flogging off the rest of Telstra notwithstanding that services to the bush are still hopeless, all the money will get spent on a latter-day Snowy Mountains Scheme. If I was a bushie, I'd be bloody offended that Telstra (and probably John Howard) thinks I'm so naive and stupid.

    Sunday, October 06, 2002

    Rugby league's national pretensions

    Gareth Parker has weighed in with an opinion on rugby league's NRL competition (whose grand final occurred last night). He suggested that the NRL was a bit presumptuous in claiming to have a national game. The pretext for the argument was, of all things, the singing of the national anthem at the NRL grand final by Jimmy Barnes' kid David Campbell. Incidentally, Campbell butchered the anthem, and Jenny Morris's rendition of the NZ anthem was even worse. It might have been better if they had been inflicted with Billy Idol's sound system problems, so we wouldn;t have had to listen to either of them. What an unprofessional embarassment! These guys couldn't organise a root in a brothel.

    Gareth's thesis was that rugby league was a non-event in Perth, so it really wasn't a national game. Scott Wickstein weighed in in Gareth's comments section with an observation that league was also a non-event in Adelaide. He failed to mention that it also doesn't rate in Tasmania, although it's fairly popular in the NT (though lagging well behind AFL). Scott suggested that the NRL hadn't really been serious about going national, because it hadn't persisted with attempts to establish a WA team (the Western Reds). In fact, Scott was talking about the NRL's predecessor, the Australian Rugby League. The NRL didn't come into existence until after the Super League debacle.

    In fact, the Super League debacle was the very reason the Western Reds died. The Murdoch group (which created and bankrolled Super League) insisted, as a condition of its agreement to re-unification of the competition, that the previous 20 team ARL competition must be reduced to 14. That meant some teams had to go, and the Western Reds ended up being one of them. Personally, I think it would have been sensible to force a couple of the Sydney-based teams to relocate interstate (as South Melbourne did to form Sydney Swans, and Fitzroy to form Brisbane Lions). However, the parties had enough on their plates trying to get their fractured football code back together at all, without also confronting the powerful local vested interests involved in forcing a long-established club to shift interstate. In fact, the formula the NRL adopted to achieve the 14 team target did contain modest incentives for merger and relocation. However, they clearly weren't sufficiently attractive. The Manly-Norths merger and move to the NSW Central Coast was a complete failure, and the Wests Tigers merger and move to Cambelltown is also struggling. No-one attempted an interstate move.

    The real problem with rugby league (apart from the fact that its rules create a static, stop-start, predictable game) is that the talent pool is spread too thin to sustain more than about 14 top-notch professional teams. Moreover, the available talent is spread between rugby league and rugby union. There are around 58,000 adults playing league, and around 50,000 playing rugby union. Compare that with the 180,000 or so who play Australian Rules.