More than a month ago I promised Webdiarist Daniel Maurice my take on the merits of Labor not forcing Reith and advisers into the box on the children overboard scandal.

I didn’t get around to it, but luckily someone much more expert in these matters, former senior public servant John Neathercote, has agreed to do the job. He’s also a former Senate committee secretary, editor ofParliament and Bureaucracy and joint editor of The House on Capital Hill. He’s currently researching the modern public service, and is a regular spectator at children overboard inquiry hearings.

While I agree with John in theory, there’s some political considerations which make me forgive Labor a little bit, for now. The children overboard inquiry is investigating matters which most Australians don’t want to know about. Many say they don’t give a damn whether kids were thrown overboard or not. Others say the government should shoot the lot of them anyway.

Then there’s the inevitable partisanship of the committee, as the Libs defend their team and Labor attacks it. To attempt to force attendance in these circumstances would mean accepting significant political risk. Bad losers, obsessed with the past, no ideas for the future, blah, blah, blah.

I can see why John Faulkner came up with his ploy – to get an independent person to read the evidence so far and decide whether any of the cowards who won’t explain themselves have a case to answer, and, if so, to state that case.

Bringing independent, expert judgement to bear will increase the pressure on the recalcitrants and make it harder for the government to credibly hold its line. It sets up a better atmosphere for the Senate to press the issue.

None of this will matter, of course, if Labor doesn’t eventually take the plunge. Faulkner doesn’t rule out subpoena, but it may not be up to him in the end.

Accountability on this means accountability for Labor if it ever gets back power. It would improve standards on both sides through fear of exposure. It would be good for us, the people.

Since the government says neither it or the public cares about any of this, why is it working so hard to avoid allowing the buck to stop where it belongs? Because they DO care. It DOES matter. None of these people want to be fingered for conniving in lying to the Australian people, let alone on a matter like this. It’s despicable. They don’t mind they don’t mind knowing they lack integrity or ethics, as long as others can’t prove it and they don’t have to face themselves in any mirror but their own. Let the innocent cop the heat.

Before John’s piece, here’s a summary of the matters the missing witnesses would be asked to explain if they had the self-respect to account for their behaviour. Remember, most of these people are still on the government’s payroll.

THE DEFENCE MINISTER

Peter Reith: Former defence minister, now on a nice little earner as consultant to a defence company wanting government contracts. Says he’ll go to the High Court if necessary to avoid testifying.

Government’s excuse: Why should he? It’s found the perfect cover for lies – appoint someone who’s retiring to run your dirty tricks campaign, wash your hands of him after you win the election, and look after your hero on the quiet. An accountability free tactic, and it works!

The evidence:

11th Oct – Australian Defence Chief Chris Barrie tells Reith during a “testy conversation” that the photos do not depict children thrown overboard and were taken when the boat was sinking.

Probably on the 17th Oct or thereabouts – Barrie tells Reith that there are doubts about whether children were ever thrown overboard. Barrie: “I had a conversation with the minister in which I informed him that I had been told by the Chief of Navy and COMAST that there were doubts about whether children had ever been thrown over the side of SIEV4. I said to him the doubts seemed to be based on what the photographs showed – or did not show – and an inconclusive video.” [Certain Maritime Incident Committee, 12 April 2002]

31st Oct: Silverstone (Northern Commander) tells Reith (when he visits Darwin) that video does not show children in the water. According to Silverstone, Reith said to his staffer that was travelling with him, “Well we had better not see the video” Silverstone does not know who that was though he doesn’t think it is Hampton. (Hendy, Scrafton?)

7th Nov: Acting ADF chief Houston tells Reith there is no evidence that children were thrown overboard.

7th Nov evening discussion: Reith tells Howard that there are doubts about the video. What else did he tell him?

***

THE STAFFERS

Government’s excuse: There’s some convention or other under which political staffers don’t give evidence to parliamentary committees. When in opposition, the Government hadn’t heard of such a thing, and subpeonaed Labor staffer David Epstein to take the stand. And he did. Why won’t Labor do the same?

Peter Hendy, Reith’s chief of staff

8th Oct: Hendy receives the Department of Foreign Affairs Situation report 59 on the Adelaide’s dealings with SIEV-4, which does not mention children thrown overboard, just that “13 unauthorised arrivals jumped overboard”

31st Oct: Silverstone (Northern Commander) tells Reith (when he visits Darwin) that video does not show children in the water. According to Silverstone, Reith said to his staffer that was travelling with him “well we had better not see the video” Was it Hendy?

8th Nov: Peter Hendy spoke directly to Navy chief David Shackleton about releasing a new media statement after Shackleton told the media: “Our advice was that there were people being threatened to be thrown in the water and I don’t know what happened to the message after that.” Admiral Shackleton was pressured by Hendy to release a second press statement – to take the political pressure off the government on the eve of the election.

…

Ross Hampton, Reith’s press secretary, now press secretary to another minister.

7 Oct: After demanding more information about the children overboard matter, Ross Hampton received from Strategic Command a fax which states: “Fourteen SUNCS have jumped or have been thrown overboard”. No mention of children. Hampton continued to demand more information about the children overboard matter from Strategic Command on the 8th Oct. Strategic Command could find no written evidence to indicate that children were thrown overboard.

10 Oct: Brigadier Bornholt informs Hampton that the photos could not be taken on the 7th October because Strategic Command had told him that of the 14 people that they understood to be in the water there were no woman or children.

…

Miles Jordana, was and is Howard’s foreign affairs adviser.

8 Oct: Katrina Edwards – first assistant secretary of Department of Priume Minister and Cabinet – testifies that Jordana rang her asking for more material on the children who were thrown overboard such as their age, and the number who went into the water. Jordana was sent a number of reports (the committee is yet to find out what these reports were). No report ever came from Defence that mentioned children being thrown overboard.

10th Oct: Jordana received a copy of the Taskforce “Talking Points” for the 10th October which stated: “15 suspected authorised arrivals either jumped or were thrown overboard by other suspected unauthorised arrivals.” No mention of children.

7th Nov: Miles Jordana calls Bryant on 7th Nov to “refresh” Howard’s memory for National Press Club Address. Bryant says she supplied Jordana with reports from 8th Oct: DFAT SITREP 59. – HDHQ OP GABERDINE/OP RELEX 0800 BRIEF 8 Oct 2001. Jordana later tells Bryant they were not much help to him in preparing for Howard’s speech (probably because neither mentioned children being thrown overboard.)

7 Nov: Miles Jordana told by PM’s people smuggling task force chief Jane Halton that she has heard there are doubts about the photos and that they did not represent the children overboard incident. According to Halton, Jordana said that the Prime Minister’s Office already knew about the photos and they had it under control. The next day, The Australian reports that HMAS Adelaide sailors claim no chidren were thrown overboard. Asked at the Press Club about the claim, Howard dismisses it as hearsay on hearsay. He ignores a question on whether the photos were wrong. He reads from an Office of National Assessments (ONA) report that says children were thrown overboard.

7th – 8th Nov: ONA report attachment warns Howard that the report he subsequently uses at the Press Club on 8 November 2001 is flawed. Attachment is sent with ONA report to Howard, but Howard claims Miles Jordana separated the two documents, only gave him the reports, and didn’t tell him about its flaws. ONA rings Jordana again on the 9th Nov concerned about the way the ONA report is being used in the media. Once again Jordana does nothing to clear the record.

***

THE BUREAUCRAT

Mike Scrafton, Defence department public servant seconded to Reith’s office to advise him on defence.

Government excuse: There’s never been any talk of a convention about public servants being exempt from giving evidence, so Cabinet made up a new rule to look after its new mate. After the election, Scrafton returned to the defence department as a senior executive. He kept involving himself in the children overboard matter, but Defence Minister Robert Hill banned him from giving evidence even on his post-Reith activities. Another new rule – once a public servant/ministerial adviser, never accountible as a public servant. Hill later banned a junior defence department officer in Reith’s office as a liaison officer simply because she handled the famous captions to the famous photos which famously got lost. Another new Hill rule – a public servant who isn’t an adviser and is in his office as an officer of his department is exempt from giving evidence on anything the government doesn’t want her to.

The evidence

10th Oct: Maritime Commander Admiral Ritchie told Scrafton that the video did not show any children thrown into the water. Despite this Reith used the video to claim to the media that children were thrown overboard. Air Vice Marshal Titheridge also told Scrafton that the video was inconclusive mid October, when Scrafton asked for a copy of the video.

10 Oct: Scrafton receives the Strategic Command chronology which says in a footnote: “There is no indication that children were thrown overboard.”

11 Oct: Defence public relations officers Bornholt and McKenry told Scrafton that the photos were not of the 7th Oct incident. The photos were also emailed to Scrafton with the captions showing just that. The terrible irony for the navy – they thought the photos were a good news story of a courageous rescue after SIEV-4 sank. .

7 Nov: Howard speaks to Scrafton twice during the evening. According to Howard it was about the video. Note Howard’s qualification. Howard, 19 Feb 2002, Press Conference: “No my recollection of the conversations I had with Scrafton, the way he described it to me, my recollection is that it was inconclusive and that was the observation I made. Now he may have a slightly different recollection than that and I’m not saying his recollection is inferior to mine but that is my recollection.”

Late March 2002: Howard’s chief adviser Tony Nutt rang Jennifer Bryant – who did the firstabout Mike Scrafton’s evidence to Bryant, who did the Department of Prime Minister and Cabinet’s report on the scandal, about Scrafton’s written statement to her. “Mr Scrafton stated that he had been involved in or aware of a number of discussions between Mr Reith’s office and the Prime Minister’s Office and the Prime Minister, which he could not discuss.” According to Bryant, Nutt asked her if she knew what Scrafton was referring to. If not could she find out. She said it would be imprudent and refused to do so.

***

What servants are for

By John Nethercote

The so-called children overboard affair, the subject of investigation by an increasingly long-running select committee of the Senate, is deeply revealing about the current friendless situation of the public service in government, and of clear failings in accountability structures and mechanisms, including, perhaps especially, at Senate level.

For the public service, the affair demonstrates its fragility in the face of both ministers and, more perniciously, ministerial staffers. In the absence of adequate means to bring ex-ministers and ministerial staff to account, it demonstrates the vulnerability of the modern public service.

When the modern ministerial bureau was created nearly three decades ago by Gough Whitlam (on his very first day in office as prime minister), a major purpose was, as he expressed it, to “de-politicise” the public service. Instead, in the children overboard affair, it is the public service and the Australian Defence Force which are in the political front-line.

Like medieval malefactors, they are placed in the stocks before this Senate select committee for hours, even days.

Meanwhile, in this controversy, it is ex-ministers and their staffers who have been depoliticised. They are nowhere to be seen in precisely the very forum where they should be taking the lead. They have become an accountability-free zone.

The origins of this course of events may be found in the ideas governing the relationship of ministers and officials fostered throughout the Hawke-Keating governments and finally embodied in the new Public Service Act 1999.

A public service in the Westminster tradition is marked by character, experience, ability and a measure of independence under ministers; it should be frank and fearless in dealings with its ministerial superiors.

The touchstone example of this doctrine in action is the Loans affair, the international borrowings activities of the Whitlam Government. When the surreptitious activities of various ministers and departments came to light, there was a major face-to-face encounter between Prime Minister Whitlam and the Treasury secretary of the day, the legendary Sir Frederick Wheeler.

Disconcerted by Wheeler’s questions about the loans, and how the huge sums were to be used, the rattled Prime Minister told the determined Treasury secretary that he was “on the skids.” “Prime Minister, I simply seek to inform you of facts your ignorance of which will bring you down”, Wheeler retorted.

In children overboard, by contrast, there seems to have been an attitude that ministers and even top officials ought not to be informed of facts, their knowledge of which might bring them down.

Children overboard is a telling case of deprofessionalisation in government and government processes; it calls into question not matters or competence or ability, but what Sir Arthur Tange spoke of in 1984, as the new system was taking shape, as “backbone.”

In the dawn hours of 6 October 2001, whilst engaged in difficult manouvres with Suspected Illegal Entry Vessel 4, the commanding officer of HMAS Adelaide, Commander Norman Banks, received a telephone call from his superior, Brigadier Silverstone, in Darwin, seeking an update on the situation.

It is unusual for a commander in the field to be so interrupted.

The purpose of this interruption was not related to conduct of the operation, or any other naval or professional objective. The aim was to brief a minster – the Treasurer, apparently, not one directly involved in administration of the border protection policy – about to appear on TV.

Silverstone recorded Banks as saying that the passengers on SIEV 4 were threatening to throw or were throwing children overboard.

This aspect of the conversation has subsequently been the subject of contoversy. But, at the time, the message went up the military chain of command and beyond at virtually the speed of light. Immigration secretary Bill Farmer very soon put Minister Phillip Ruddock in the picture and he shortly passed it on to assembled media. Later that day the Prime Minister actually received a memorandum briefing him about the matter. He, too, spoke to the media.

It was a case of ultra-responsiveness in high degree. No public service needed to be told that under the new Public Service Act, a key value is “responsiveness.”

They also know that the old “frank and fearless” obligation was, well, a thing of the past. Certainly, that advice should be “frank” was in the Act, but only because a parliamentary committee had protested against its omission from the bill the Government – Peter Reith, indeed – first brought to Parliament.

There was no reprieve for “fearlessness.”

And all those involved, public service and ADF, know that in the new regime, tenure, the back-bone support of the traditional system, was also a thing of the past.

This was very fully appreciated in Defence where the unseemly removal of former Secretary Paul Barratt in 1999 was still a green memory. Itself a capricious act, it was only one of several questionable departures.

The incident, in these tense days, threw into sharp relief the weaknesses of values-based public service legislation without adequate institutional supports and protections.

The essential problem was plain: contentious information of uncertain accuracy, procured in non-professional circumstances, was allowed to pass into the public domain in the treacherous period between the calling of a House of Representatives election and polling day itself. No such alacrity accompanied corrective action once the veracity of the information, and photographs purportedly portraying the incident, came into question.

Those who had reservations were reluctant to press them and certainly avoided putting them into writing. A number of those involved defined themselves out of the action by narrow interpretations of their responsibilities and obligations.

Such is the system of administration bequeathed by the past two decades. Accountability has been restricted rather than enlarged; ministerial responsibility, in this case, is in remission – on which, more later.

But just how much the administration is at fault is unclear. Various administrators involved claim to have informed ministerial staff, and thereby ministers, of their concerns; Air Marshal Houston’s conversation with Reith in the week before the election is the most reported of these contacts. Even it was a telephone conversation without follow-up paperwork.

Inasmuch as the full truth can ever be known of this post-modern fiasco in which so little is recorded in writing, it requires examination of the ministerial/ministerial office side.

These people have scurried for cover: without them the Senate inquiry is like Hamlet without Rosencrantz and Guildenstern (and Claudius).

Their absence from the dramatis personae of the Senate select committee is the consequence of a farce featuring the Opposition (including the tenacious interrogator John Faulkner, himself an architect of the defective public service regime) and various parliamentary authorities.

Whilst the Senate committee itself procrastinated over calling those involved at the political (ministerial, ministerial office) level, and with awe-inspiring courage directed its fire especially at the public service but also any ADF officer unable to assist in showing up the Government, the Clerks of the Senate and the House of Representatives had a vigorous exchange of memorandums.(No recourse to telepohones here.)

Harry Evans, Senate Clerk, claimed that the committee had an extensive authority to call anyone apart from other parliamentarians exempted by self-denying ordinance. Clerk of the House Ian Harris countered with a view that the exemption of members of the House extended to former members at least in matters for which they have previously been responsible to the House. He, however, suggested that the select committee seek independent legal advice.

Evans disputed the value of seeking such advice, arguing that given the lack of materials necessary for a firm opinion, it would basically be settled by whether the author was pro-Parliament or pro-government. In the meantime he commissioned an opinion from Bret Walker of the New South Wales bar. The Walker opinion supported a very broad interpretation of the committee’s powers to call ex-ministers and ministerial staff:

“. . .[I]n my opinion the question in relation to the so-called former Ministers has only one correct answer: viz they have no immunity from compulsory attendance to give evidence to a Senate committee, because they are no longer Members of either House . . . there is no right in a former Minister who is no longer a Member of the other House to resist an order given under the undoubted power of the Senate.”

” Resistance is, in my opinon, clearly a serious contempt, and punishable as such.”

And regarding Ministerial staff:

” . . .[S]o long as nothing involving extended breach of Cabinet confidentiality is invited or required, Ministerial staff, whatever place they hold in or out of the public sector at the time they are ordered to appear, must comply with that order to appear and give evidence before a Senate committee.”

Eventually the select committee itself was brought to a vote by Australian Democrat Senator Andrew Bartlett. The Government senators abstained. The Democrat proposal was voted down by . . . the Opposition.

Clearly in this matter there has been no Pym or Hampden to attend to the Parliament’s, and the country’s, accountability interests.

Notwithstanding the congenial and unequivocal Walker opinion, summoning Reith and various ministerial staff (present and past) would be met with expensive and time-consuming court challenges. A need to protect taxpayers’ money was discovered. It took precedence over the need to protect the interest and integrity of government not only of taxpayers but other Australians as well.

Better, instead, to commission yet another luminary of the Sydney bar (reportedly Mr S Odgers, SC) to review the evidence and give advice on questions which ex-ministers and their staff should address – not so much a Clatdon’s solution as a Claydon’s obfuscation.

It has been left to Dr Ian Holland of the Parliamentary Library to speak truth about this slippery, evasive stratagem:

” … the Committee essentially capitulated in the face of the executive’s determination . . . it is not clear what an outside lawyer might achieve that would not be ably and properly achieved by the Committee itself.”

Dr Holland’s view is that “the approach taken by the Committee continues to give the executive the upper hand in its tussle with the Senate, despite the government lacking any unequivocal legal basis to its stance.”

“[u]ntil one of the Houses tackles a government over ministerial staff, using the full force of the powers available to it, ministerial staff will remain in the accountability vacuum so condemned by oppositions and beloved of governments.”

So, at present, there is noone with stomach for this fight, even in the present case where the balance of argument and public interest could not be plainer.

The real, unstated and unstatable reason for not pressing summonses on ex-ministers and their staff has nothing to do with spending taxpayers’ money, which is not invariably a top-priority consideration in Parliament House.

It has everything to do with keeping the Parliamentary Privileges Act away from judicial scrutiny, especially that of the High Court at a time when it is probably better informed than usually about parliamentary privilege. The consequence is that grave accountability weaknesses will not only persist but will be further entrenched.

For, notwithstanding the Walker opinion (obtained at what cost and for what purpose?), the enduring fact is that the opportunity to bring ex-ministers and their staff within the loop of accountability has been aborted by the ill-advised Opposition vote on the select committee.

A quest to bring an ex-minister and ministerial staff on an important matter has ended, after much bluster and grand-standing, in successful resistance by the Executive Government.

Declarations to the contrary, a precedent has been created; it will call for a far more serious matter, when time may be pressing, to overturn it. The cause of accountability has suffered a substantial and significant defeat.

The Labor Opposition, when it returns to office, will no doubt enjoy the fruits of this victory which it has ceded to the Government.

The consequence for the public service in particular, and other arms of government such as the ADF, is that they will remain in the front-line of accountability, with ministers and ministerial staffs, like the generals of the Great War, well way from the sound of the guns.

Where once, under ministerial responsibility, ministers had to stand up and answer for their officials, the vulnerability of the public service is now such that it must defend not only ministers but their staffs.

Such is the fate of Australia’s untenured public service.

Today, a mix of pieces from Webdiarists on everything from IVF to a working definition of the Third Way. To begin, Webdiarists recommend two ABC programs to lift your spirits.

Gavin Gamble likes “the current Books and Writing (Radio National – audio on demand) concerning the terrific and amazing story of the Borroloola Library and its cast of characters”.

“They include the various hermits of Borroloola – Bill Harney, Ted Egan (my fave for Australian President, singing heartfelt songs of social justice using a cardboard box) and, unbelievably but truly, David Attenborough.

“It’s a great Australian and human story exemplifying the antithesis of current Coalition values. It’s a vision of Australia combining the self educated noble stockman, Cunnamulla and an early Athens of the Gulf of Carpenteria and it’s a fabulous doco. I can’t wait for the book to come out.”

Lisa De Ferrari likes “The good citizen” series (abc), on Friday’s at 2.30pm.

“I think we will look back on the late “Howard period” (whenever it may finish) as to what it said about Australian democracy, the importance of the Constitution and of its principles of separation of powers and representative and responsible government. Just a brief look at issues in the last, say, 4 years, would give a list which included: the republic debate/debacle, the preamble to the constitution, reconciliation and a treaty/document with the Indigenous people, the attacks against the courts, the undermining of the independence of the public service, the “lead from behind” style of politics, the ever expanding power of the executive, the attempts against basic civil and political rights with the ASIO and anti-terrorism laws. Probably forgot a few, but you get the picture. Ah, yes, the role of the media.

“My view is that the debate should be one that looks at all the various strands together, and analyses events / trends / ideas in that context. This broader debate isn’t really happening in Australia – there’s bits of debate here, there and everywhere, but either there isn’t the time or the inclination to address the broader context. Whatever a specific issue is debated, it never gets put in a more general context of democratic principles and the rule of law.

“These programs on “The good citizen” are, I think, a very good start.”

TODAY’S ISSUE

1. Rod McIntyre says “I am beginning to find I have a lot to say”.

2. Sean Richardson is inspired by the census to resolve the IVF debate

3. Meaghan Phillipson on the youth vote.

4. John Wojdylo says The Third Way is about “keeping the feet on the ground while reaching for the open market Utopia”.

5. Roland Killick on ten ways to improve ourselves.

6. Professor John Quiggin king hits Aaron Oakley.

1. KIDS ARE US

Is this who we want to be?

By Rod McIntyre, Sydney,

When was the last time you watched little kids playing together? Preferably when there are lots of them and they don’t all know each other – like a community playground on Sunday afternoon. Preferably with a cafe right beside, so it’s an outing both for you and the kids.

Just watch them. It’s amazing really. They are so immediately social. Sure, sometimes there are dramas and falls and a tear now and then, but on the whole they are these guileless little people, sharing each others fun so enthusiastically. They compete to climb the highest, but you will notice that when one wins and the other stops short, the winner will climb down, because it’s no fun playing up there by yourself. You will notice on the big slide, the huge excited laughs are about the other kids slides just as much as their own. They share names, and point out their mums and dads to each other, they spontaneously launch into fantasy stories where everyone can be a superhero.

If you haven’t the opportunity to do the playground on Sundays thing, then take a bus from a busy suburb hub to a major shopping centre. If you’re lucky a Mum or Dad will sit close to you with a small child. Just watch the kid. You will be studied with huge inquisitive eyes. Smile, you will get a smile back. Say hello, you will get a hello.

Most likely by that stage, the ice will be broken. You might be introduced to the favourite action figure, or be offered a play with the racing car. Respond to this and you are a friend! You will be told with gravity and directness that Spiderman is sooooo way cooler than Batman, and that Obi Wan is better than anybody. Mum is going to make me a cape when we get home from the supermarket ! Bye, they will say as the bus stops, as if we will meet again for sure tomorrow.

These are beautiful little people. Rich/poor/black/white/ brown, that stuff isn’t important to our kids – hell, it’s not even considered. Beautiful, guileless, giving little people. A joy to have, a joy to watch, and my hope for the future.

My problem, and the reason I am writing this, is that when I look at all the things that make up where I live and how I live, this thing we call society , I don’t like what I see. I am not talking about not liking it as in `Oh, things are a bit rough but they will get better’, I am saying this is real bad, and I can see it getting worse.

What has happened to us? What kind of country are we going to leave for our precious children? The government is doing awful things in our names, and we are told it is what we want. We are told that a couple of thousand starving, broke, almost drowned refugees, whose home is so terrible they risk their lives to run away from it are a threat to our country. We are told that they are to be detained in a miserable place, indefinitely, or until we can send them back to the hell they have just escaped. The government tells me that this is what I want, what Australians want.

I saw a man on the news recently who said that those who are already in these miserable detention centres should be shot if they cause trouble. I was told by the news program that there were quite a few Australians supporting this man.

Before this I was shown pictures of little children in the sea, some about the same age as my son, I would think. I was told that their parents had thrown them into the sea, and for this, I should despise these cruel people. I was told that what I wanted was that we should treat them harshly and send them back.

Do you know what I thought? I thought what economic or military hell did these people come from that would cause them to do this terrible and desperate thing? I did not know that it was a lie at that time.

So here I am now, thinking about watching my son play on Sunday, maybe with your son or daughter. Here I am now, asking myself, is this who I want to be? When my boy grows to become a thinking person, with conscience and sensibility, am I the man I want him to see me as? The man who has been told I want to incarcerate woman and children, or even desperate men, but most likely desperate only to work, to feed their children, maybe to watch them play on a Sunday afternoon.

No. It is not who I want to be, and I don’t like being told that this is what I want, because it isn’t. The saddest thing is that I don’t understand why you all do.

2. ALL CARE, ALL RESPONSIBILITY

Find a friend, have a baby

By Sean Richardson, Sydney

I first dreamt up this idea in response to the IVF/single women/lesbians debate we nearly had earlier in the year. To begin: I have a problem with the idea that government funded IVF should be seen as an absolute right.

On the one hand, any unbiased person who knows more than two gay people (of either gender) will have realised that many would make fine parents, probably in about the same proportion as the rest of us. I was going to make a smart arse comment about an exception regarding tackle practice for junior, but then again, Ian “Iron” Roberts. And in this day and age we all know any number of well adjusted adults who come from divorced and therefore “single” parents. Although it would seem that ready access to the parent who isn’t at home (or a committed substitute) does help.

On the other hand though, it is also true that having no knowledge about half of your biological ancestry hurts the kids involved. There are on-going legal struggles by “test tube babies”, as they used to be known, to gain some knowledge about their biological dads. Anyone who’s been to the doctor should know why: “is there a history of X in your family?” The now young adults involved also describe emotional dislocation, not to mention the nightmare scenario of innocently entering upon a romantic relationship with a half sibling.

And it really is a patent load of crap to assert that single parents don’t require more welfare support. This is especially true where the non-resident parent is completely out of the picture and therefore not making any support payments. As one of those weirdo married heterosexuals, I and others like me will find it a bit annoying if we have to make all the compromises of marriage, and work our butts off to support our own kids, and on top of that pay enormously increased taxes so that women who’d rather not have to put up with shavings in the sink can be supported from consolidated revenue.

What? Well, to hopefully enrage the right wing economists who’ve started hanging about the page with the temerity to compare themselves with empirical scientists (fnar fnar!), economies always come down to the collection and distribution of resources, and the money has to come from somewhere. Some will call for the disbandment of the defence forces but, while much of the world is still safe from democracy, I’d rather find another way to pay for a broadening of the idea of “family”.

Recently we’ve had one NSW MP saying that the problem is that old male commitment phobia. Whilst it’s great to see public policy ideas based on a Bett Middler movie, the actual statistical truth is that, for whatever reason, most divorces are initiated by women, so begging men to hang around wont solve anything. And of course Mr Anderson now asks the country to have a cup of tea, a Bex and good lie down. You don’t need the Oracle of Delphi to see the potential of this movement whilst ever women keep the vote.

But the Herald did say,in response to the census, that traditional political fixes weren’t going to work as society rapidly changed. And changing rapidly it is. Teleportation recently happened, and in Canberra! I bet Star Trek didn’t see that coming. We may be among the last humans for whom dying is not optional. And there’ll be no way to get chicks back in the kitchen now. Given the interests of the child and the constraints of the budget, public policy needs to get inventive.

To get the ball rolling on the family issue, heres my 2 cents which can be officially labelled Richo’s Nutty Idea.

It seems to me that there is a reason that human reproduction (no discussion of those femmo bonobos or nasty patriarchal chimps please) has always been a two person job well beyond the really fun part at the beginning.

Raising humans requires care, ie feeding, supervising, and teaching the ways of the world. It also requires the collection of resources for food, shelter, clothes, tools. Both of these are nearly full time jobs, and all of our advances do not seem to have changed that fact. So, although men can now feed babies with the amazing high tech of bottles and formula, and women can just buy red meat from the supermarket and don’t need a mighty hunter in the household, it still requires at least two adults to raise kids self sufficiently. The extremely rare “private income” aside, single parenthood and the constraints of the 24 hour day necessitate outside help.

Importantly to my proposal, I really think general self sufficiency is extremely important, as it underpins freedom and the very right to chose that has lead to this debate. Put very basically, if youre dependant on someone, they can tell you what to do. This is why employment opportunity is so central to feminism. As soon as we allow a system where certain people are required to live on hand-outs, liberty begins to erode: Structural unemployment to long term dole to work for the dole. And possibly: State supported single parenthood as a right to unsustainable welfare to no breeding without a licence.

So, given the accepted nature of even traditional marriage as a “contract”, how about this: For non-married persons to gain access to the IVF programme, at least two adults (“the Parents”) have to sign a Parenting Agreement. Neither of the Parents will be required to be of a particular gender or marital status, or be heterosexual.

One person agrees to be Parent A. Parent A agrees to take the Child into his or her physical care upon its birth, and to provide for it to the best of their ability, including financially, until majority.

Parent B also signs. Parent B need not be in a husband-and-wife style relationship with Parent A, they could even just be friends, but they must have known each other for a certain period of time. Parent B agrees to take the Child into her or his care and custody if Parent A can no longer care for the Child. Parent B agrees to make themselves known to the Child. Parent B agrees to support the Child financially until the age of majority.

Parents A and B work out a visitation schedule between them PRIOR to signing, which can be amended in the usual contractual way (by consent, or order of an appropriate court if necessary).

That’s the basics. I think such an agreement could also be applied to non-traditional families who don’t require IVF. For example, people who didn’t want to marry someone of the opposite sex for whatever reason, but who did want children and could find a like minded friend or lover could gain access to family tax benefits, allowances and so on by signing such an agreement. Perhaps as importantly, it would be a public, legally recognised commitment to becoming a parent, without having to pretend to be straight or married or whatever.

So the agreements could be yet more flexible. For covering the classic “two lesbians, a gay friend and a turkey baster” situation: Biological mum is Parent A, her lover is Parent B, Gay Friend and Biological Dad is Parent C. C’s agreement might be to be third in line for custody should the need arise (or the Family Court order), to provide financially jointly and severally with Parents A and B, and to make himself and his biological relationship to the Child known to the Child.

It wouldn’t take a doctor or lawyer to explain the level of commitment that went with the agreement. A simple low level briefing by a clerk somewhere (“18 years mate!”), followed by a compulsory one month cooling off period, would seem to make it unlikely that people would enter such agreements lightly or for the wrong reasons. At least as unlikely as entering marriage in the same way.

People having entered the agreements with eyes open, specifically because they want to be parents, there would seem to be less risk of one of the Parents becoming a “deadbeat”. Those who do could be dealt with in the usual hetero-divorce style. This would mean more work for child support enforcement agencies, but only because there would be more families. And those extra families would be as self-sufficient as the average married couple, and therefore usually net tax contributors (not to mention breeders of that important next generation).

As the census tells us that more people are choosing to live alone, never get married and so on, might not something like this proposal preserve the best aspects of family into the increasingly weird future? The offspring of such an agreement would know they were wanted, where they came from, and that they have the security of at least two parents, rather than one stressed, depressed and broke parent, constantly being persecuted by Centrelink for filling in the forms wrongly. I’d be interested to hear what people think: The target is up, please start shooting.

3. FOLLOWING IN OUR FOOTSTEPS

Know more, care less?

By Meaghan Phillipson

In his keynote speech to the International Democratic Union (IDU) in Washington, Prime Minister John Howard noted with some glee the rise in conservative voting amongst young voters in Australia. For Howard, this shift to the right is resultant of a broader shift by younger voters away from what he terms political party “tribalism” and towards materialistic or aspirational ends that are dependent on party performance rather than party loyalty. An interesting if not slightly self-conceited interpretation of why under-25 Australians are slowly trickling over to the right.

While Howard’s speech concerned itself with the converted, analysis over the voting habits of under-25s is largely punctuated by a belief in negative motives. If young people aren’t too apathetic to vote then they’re voting out of ignorance, insularism or materialistic reasoning. Yet these claims of why young people vote (or don’t vote) the way they do belie the complex nature of voting behaviour and that much of it is actually the result of an increase in awareness.

Judging by the tone of Ryan Heath’s article on the issue, Insulated against ideologies, the young have been captured by cynicism (smh, June 13) it must be a very bleak political landscape that he surveys. For Heath, a quarter of young people don’t participate out of ignorance and the rest are so riddled with mislaid cynicism that they can’t muster enough loyalty to stick with one political party for longer than the latest onslaught of media soundbites from Canberra.

While Heath rightly noted that any swing is cold comfort considering the high level of voter non-participation amongst under-25’s, he somewhat condescendingly used this trend of political disengagement to proffer the conclusion that this is indicative of ignorance amongst young voters. I for one have greater faith in the reasoning behind the actions of voters and non-voters in the under-25 age bracket, of which myself and (I suspect) Ryan Heath is a part of.

Non-participation should not automatically be equated with ignorant indifference but rather can be indicative of a refusal to choose between the major parties, which often don’t even acknowledge let alone represent young people in anything more than symbolic gestures.

Similarly, Heath’s concerns with a higher interest in issue-specific parties does not rightly lead to his conclusion that such groups should be denigrated to the harbingers of doom for liberal democracy. Since when has democracy been definable purely in terms of a straight two-party system? The rise of issue-focused parties and non-government organizations should be perceived as a celebration of a robust democracy that is able to accommodate dissenting views in the face of an increasingly stale and barely dichotomous relationship between the two major parties.

I think the interest in issue-specific political groups and non-participation amongst the young are closely linked as symptoms of a deeper dissatisfaction born of greater awareness rather than ignorance. We are a generation taught to question rather than believe or follow without reason precisely because we grew up watching our parents lose faith in loyalty when retrenchments and mortgage rate hikes dominated the early 90s.

We learnt of the struggle of Aboriginals for reconciliation and justice in school only to later discover the hard-heartedness of a government who could not acknowledge past suffering and, more recently during the last election campaign, we witnessed political opportunism overriding the basic tenet of civic duty, namely the protection of society’s most vulnerable.

On this point, it is important to emphasize that the loss of loyalty during the crash of the early 90s has left an indelible mark on the voting patterns of not only those who witnessed it but also the older generations who experienced it.

In this respect, the absence of “rusted-on” party loyalists is not anything peculiar to the young and should not be portrayed as so – one only needs to look as far as John Howard’s electoral 1996 election coup, in which he won over disaffected “aussie battlers” on a wave of anti-PC sentiment and promises of a brighter economic future.

Ryan Heath is right to worry about the future path of liberal democracy in this country yet this danger does not originate from ignorance or a lack of political passion among young Australians. Rather, the danger lies in the people who are really in most in need of civic education in this country – the members of the two major parties.

For the continued failure to rise above cynical politicking, which no longer passes undetected, and an inability to display compassion and integrity can only threaten to consume grassroots belief in democracy regardless of civic ignorance.

4. FREE TRADE, THE THIRD WAY

Sunrise of the Autocrats

By John Wojdylo

“Proponents of free trade should be outraged.” Indeed. Tim Dunlop’s excellent piece in Free trade: Nice work if you can get it (June 11) summarises much of the problematic side of world trade practice today. I have heard similar stories and points of view from a former US economics adviser and a Japanese economic adviser (who happens to be Australian), whose vantage point outside the U.S. economic dominion gave them a clear view of the brute force that often characterises American economic involvement in Asia.

A common (but not universal) view in Asia of how aid should be managed is to allow benefactor nations leeway to implement their own reforms. In a sense, this respects the “individuality” of the nation. After all, each nation has its own particular hurdles to overcome. Their message was, as long as it is acting responsibly, don’t bully the country into accepting your methods, which work for you in your circumstances. In this sense, this common aspect of Asian thinking is better at protecting individual rights than the reality of Western business practice!

The Americans are not alone, though, and it would be foolish to demonise the United States or the West. (Tim does not do this.) The former Soviet bloc, for example, is full of despotic economic players, and this is a reason why most of those economies are a shambles 12 years after the fall of communism. Perhaps the Americans have merely learned the lessons of the jungle, like everybody else, and wield their power accordingly. (Which doesn’t make it right.) Abuse of economic power is a world-wide epidemic: it has become accepted behaviour to screw weaker parties while bitterly defending one’s self-interest, in hundreds of modern instantiations of the Unequal Treaties. Autocrats do indeed play for keeps.

The EU, for example, is acting more and more dishonourably in expansion negotiations with accession countries. According to the International Herald Tribune (June 13), “Poland has absorbed so many exports from Western Europe that when the trade imbalance is added up for the last decade, Poland has bought about E60 billion more in goods from the EU than the other way around. Western European and American companies now control almost every major bank in the 10 accession countries and are profiting from the higher profit margins that the growing markets offer.

“A key mistake: Kalinowski, Poland’s deputy prime minister, says his country’s all-out rush toward the market economy left Warsaw without its principal bargaining chip – access to its market of 40 million people. `On a general level, as a country we made a mistake,’ he said in a recent interview at his Warsaw office. `We thought that the more we opened our economy the faster we would enter the EU. Now that I am active in the process and speaking with people from Brussels, I realize that without a doubt the only partner they respect is a strong partner’.”

At the negotiating table, power is all that counts. The law of the jungle. Pure utilitarianism, pure unthinking, short-term self-interest. Many – including George Soros – believe that without the current expansion round, the European Union experiment will fail. Europe cannot remain divided into rich and poor countries; it will just fall apart internally from the tensions.

But any sort of long-range thinking has vanished in EU debate these days. Moreover, historical memory has been wiped from the consciousness; all that remains is the bright future of our own prosperity. And the historical debt? How much more expensive would it have been for the West if Poles hadn’t stood up to communism and instigated the fall of the Soviet bloc? If the capitalist economy hadn’t been freed from the chains of the Cold War to pursue its golden calf?

Tim Evans (The Australian, June 11), incoming president and director general of the Centre for the New Europe (a market-oriented think tank in Brussels), is chuffed about the “new dawn”, and is delighted that “the sun is rising no matter how tightly [the reactionaries] close their eyes.” He is referring to the rise of the right across Europe. It is far from coincidence that simultaneously along with the rise of the right, we’re seeing a rise of shameless self-interest across the world.

What a tragedy it would be if the momentum against EU expansion continues gathering pace – the French because they feel their importance in Europe threatened; the Portuguese because they will lose a part of the giant subsidy they get from the EU; the Austrians because they fear that half the population of Poland will emigrate to their boring country; the Irish because a small, vocal fraction of the constituency can be bothered to turn up and vote against the Nice agreement in a referendum that can veto the entire EU-expansion process.

What a tragedy if Poland’s bid – in particular – is rejected or substantially delayed, after the country’s commercial institutions and market have been handed over to western European interests, under false pretences. Another great con job of history against the Polish people.

The pattern is a general one. In negotiations of any sort of business agreement, our debt to the weaker party – whether in recognition of our disruption of their way of life when supplying us with cheap labour; or for their rebellion against our enemy and creating the conditions for our prosperity – is as distant from our minds as yesterday’s news. We look forward, towards the future – our future prosperity.

Tim Dunlop quotes Nobel laureate, Joseph Stiglitz: “The issue that is commonly debated – namely, whether we should be “for” or “against” globalization – is not the salient one. As a practical matter there is no retreating from globalization. The real issue is the conduct of the international economic organizations that steer it.”

This has been obvious for a decade, yet the view has barely penetrated Western media. Simplistic “for” or “against” debate makes for sexier headlines, while perpetuating the dead issue ad infinitum, and guaranteeing more sexy headlines. Globalisation is a reality – the problem is to make the process more just.

After giving plenty of background, Tim writes, “Under such circumstances, free trade agreements are nothing of the sort: they are instruments of power, used by corporations and governments to enforce conditions favourable to the wealthy few, not the dependent many. When they don’t work as intended, the more powerful partner can just choose not to play by the rules.”

The conduct of rich countries – their companies as well as organisations like the World Bank and the IMF (Stiglitz gives the example of the IMF’s behaviour in Ethiopia) – too often smacks of colonialist arrogance. But the word “colonialism” springs to mind only because we’re looking at conduct across national borders (eg German supermarket giants in small Polish towns). The problem is more general than “colonialism”. The will to corporate power, to expansion at all costs – including breaking rules and agreements whenever one can get away with it – begins within national boundaries. This is part of the world view of too many corporate executives and government officials, and gets applied wherever they exert influence. It’s a problem of corporate culture. And a problem of democracy – voters let it happen. How do bad corporations get away with it?

If the issue, as Stiglitz suggests, is the conduct of economic organisations that steer economic activity, then the political-economic problem is how to enforce the agreements. The elements, then, of the solution to the “Third Way” question that we’re discussing in the Webdiary lie not in discovering a new economic theory, but in making better agreements (in the sense of being fairer to the workforce and environment; to the weaker party) and applying the law. The problem is getting the rich countries to lift their game.

Underlying this is the assumption that an open market is desirable. Maybe it’s desirable in some cases – after a nation gets to a certain point in its development, for example – and not others – when a national economy is in its fledgling stages, and too vulnerable to fend for itself in the jungle.

So we get back to the issue of corporate responsibility. Or, in the more general picture, the moral and ethical responsibility of the rich democracies. Relying on the ethics of shareholders, and the hope that shareholders are properly informed, is undoubtedly a recipe for corruption of corporate ethics. Corporate accountability – accountability of executives to the shareholders – is a bad joke if equated to “responsibility to be a good citizen”. However, the law cannot force people to become better ethical and moral human beings. So the problem is, at its core, a moral and ethical one. It is about the moral and ethical state of individuals of our society.

A brief note: there was a business conference (in Melbourne?) a couple of weeks ago, in which the question, “Should companies be forced to play a socially responsible role?” was debated. (I’m paraphrasing, as I don’t have the reference with me.) The “nays” won the day, scoring most points with the business audience through the assertion, “If executives have to factor in altruistic community support, then they will eventually cease to be responsible to their shareholders. And this is bad for accountability, bad for democracy.”

To give just one counterexample out of thousands – it took a major court case before BHP was made accountable for Ok Tedi: shareholders either didn’t know or didn’t care until the consequences of their company’s actions were stuffed in front of their noses and they were forced to watch. Entirely predictable. And a national shame.

Tim Dunlop writes, “It is not adherence to the beauty of neo-liberal prescriptions that matter, but how such agreements allow key governments and corporations to exercise control.” In a purely pragmatic sense, this is true. However, the “beauty of neo-liberalism” plays a great role in giving governments and corporations (through voters and shareholders, respectively) the mandate for striking the agreements.

In Australia, the Liberal Party is in power because it is seen as the best economic manager. Free market, conservative governments around Europe are being elected after proposing radical privatisation, low taxes and free trade – even though what they deliver is often something completely different.

Today, a particular busy reformist and good management image is given great credibility, while anything to do with unions is viewed with cynicism, even though the idea of unionism is certainly partly responsible for our high quality of life. Tim Evans (The Australian, June 11), writes: “Consider continental Europe, long considered a permanent stronghold of the Left. The EU presidency is held by Spain’s Prime Minister, Jose Maria Aznar, whose record of privatisation, deregulation and tax cuts has won his party two elections. In Italy, Silvio Berlusconi – who has pledged to trim taxes and dismantle the boot’s archaic labour laws – now rules with a huge parliamentary majority. Even left-wing journalists believe that he will stay in office for a full five-year term – a rarity in postwar Italy.”

Evans neglects to mention that all the right-wing governments in continental Europe today – apart from the French – were elected following populist, anti-foreigner election campaigns. Most are in power in coalition with right-extremist parties (Italy, Portugal, Austria). They owe their success to deliberately attracting voters with most abhorrent views. The centre-right leaders are deliberately unlocking a Pandora’s Box, for short-term electoral gain.

The irony is that despite the image these governments project – good managers, laissez-faire goals, all the good neoliberalist values – their actions often grossly contradict the image, in keeping with the authoritarian roots of at least the coalition partner. And voters accept the contradiction unquestioningly. Indeed, voters are even happier with government performance when it is merciless and authoritarian.

One example of such an economic contradiction is Costello’s spending spree on Fortress Australia announced in the recent budget: several billion dollars to hermetically seal Australia’s borders. Such a level of government spending ought to be heresy in the neoliberalist religion. But it is accepted by the general public because, as I argued in Rousseau and the Third Way (June 3) good neoliberalist management is a theistic belief, and whether it’s corporate imperialism or nationalism, or pure greed, or a belief in the Christian God, one form mutates into the other with consummate ease, and any one of them crush the individual, and all counterexamples from the “coal-face”. The theistic idea explains why Hitler and Stalin are two sides of the same coin, even though their paths converged from opposite directions. Brute force is given wings by ideology and Utopian visions.

Another example is Austria’s university reforms. Under the explicit and oft repeated slogan of making universities autonomous, the Austrian government is in fact about to impose a regime of control unseen in the history of the Austrian university system (apart from World War Two). The system that produced Ludwig von Mises’s “Austrian economics”, the psychoanalytic school of Freud and others, and an astounding variety of momentous intellectual achievements, is about to be destroyed. In its place, a system will be enforced that promotes pragmatic, short-term gain, and other utilitarian horrors.

More than any other example, the Austrian university reforms show that we are dealing with an ideology that is not interested in winning through fair and free competition; rather, it seeks to impose itself by bludgeoning its way into power. The character of what we’re seeing is that of revolution – “the biggest grab for power since the Russian Revolution”. It has its own momentum, its own logic.

How can governments preach, on the one hand, free competition, while on the other, aggressively carry out programs that completely contradict their professed good management values? Look at the history of the Soviet Union. Intellectual, as well as mundane, corruption (eg possession of vast amounts of personal property) was virtually universal in the elite ranks of the Soviet Union, even though all the elite were devout communists. They preached communism, applied some of its tenets when it benefited them, ignored other tenets when they did not fit their purposes. Communism is what they thought they believed in. But in fact, the words, symbolism and ideology were a ruse for grasping and holding onto power. The “religion” blotted out human compassion, to the tune of 50 million who perished in the Gulag Archipelago.

The world’s “pin-up boy of conservative, open-market politics” (our very own John Howard, no less, according to The Australian’s editorial, June 11) has just assumed chairmanship of the International Democratic Union (IDU). Tim Evans writes: “[Howard’s] speech before the US Government may capture headlines, but the chairmanship of the IDU may shape history. The IDU was founded by Margaret Thatcher and today is home to more than 80 Centre-Right parties from across the Western world. It is the communist Internationale in reverse – and future historians may well conclude that it ultimately had even more impact. Since 1983, the IDU has provided a little-noticed forum for free-market parties to exchange vote-getting strategies, revolutionary policies and organisational know-how. Over the years, visitors to the IDU would often rub elbows with Thatcher, then-vice-president George Bush, Jacques Chirac, now President of France, and many other of the great and the good.”

You can almost see the Pioneers of the open market holding hands at the IDU and singing Vstavai Firma Ogromnaya.

In fact, the impact of communism was to leave 50 million dead in the wastelands of Vorkuta and the basement of Lublyanka. The frightening thing is that Evans – and probably the vast majority of “future-oriented” new capitalists – don’t have a mind to know what might constitute the real impact of one’s actions. But this does not stop them, in the meantime, from deeply desiring to be part of a long march that changes history. To believe in something big and powerful.

How do economic organisations and governments get away with their poor conduct to such an extraordinary degree? It’s because enough voters fall for the image of responsible management, and the dream of economic prosperity for all – but especially for themselves. It’s because people are desperate for something to believe in.

Therefore I cannot agree with Kieron Convery in How many economists does it take to… , who asks me to provide him with an outline for a future and rational answers to all of Australia’s ills. “Give me real, workable solutions that outline what your `certain risks’ are.” I cannot agree that when I propose that one goes beyond theistic constructs, that one considers the individual as the measure of all things, I am giving “glib denunciations and smug-git philosophies.” In fact, I’m arguing against cop-outs like the sort of religion Kieron wants me to give him. It is much harder to live without the brain-deadening crutches of religion.

This does not mean I’m arguing blindly against everything. I am for intelligence, for human dignity. I am for understanding when, for example, interventionism is likely to work or fail – this requires economic knowledge, as well as historical, social, geographical insight.

I am against blanket prescriptions, such as that of Ludwig von Mises, founder of the Austrian school, who railed continuously against government intervention, saying that it amounts to “sabotage” of the economy.

I’m for knowing the limits of theory, and the distance between theory and reality. I do not believe that the tragedy of Australia’s Aborigines can be solved without interventionism; indeed, I believe that laissez-faire policies serve to strengthen the enemies of the Aborigines, which threaten to wipe out the culture within the next decade. On the other hand, I believe that if their culture is to be saved, then at some point, Noel Pearson’s view that Aborigines must learn to respect and help themselves, has to come into play. The Aboriginal tragedy is not going to be solved by a new economic theory: it needs a pragmatic idea and the political will. An economic theory will not stop the mining company K. from funding opposing sides in land rights claims, just to prove its thesis that Mabo is unworkable; nor is it going to stop publicans, pursuing the dream of personal empire, from destroying entire Aboriginal communities. Laws and positivist theories – like Ludwig von Mises’s Theory of Human Action” – will not make people morally and ethically better.

I’m arguing for a sort of street-wise intelligence that doesn’t pin its hopes on some master theory. (Keynesian as well as Austrian, and other, schools can give insights into economics. I want to know the strengths and weaknesses of various formulations.)

I’m for narrowing the distance between my vision of how things are and reality. If I implement an economic plan, I want to know the details of its consequences at ground level, at the coal-face. I want to be alert to injustice caused by my plan – and injustice is inevitable in the implementation of every public policy – I want to understand how I can alter the implementation to minimise the injustice.

I want to maximise prosperity for individuals, including myself, while minimising the misery I add to the world. But causing misery is sometimes necessary.

And herein, possibly, lies the criterion that sets conservative open-market reformers apart from social-democratic open-market reformers. Open market conservatives implement their market reforms in great swathes of destruction, as if believing that the neoliberalist Utopia is already a reality – as if living the dream of God – and they pay scant attention to the view from the coal-face. The master plan takes precedence over the misery it causes; knowledge of misery makes no impression, it is rationalised away, never to be felt again, never to add to the foundation of moral experience. The wheels grind on, regardless of the skulls being crushed in the name of democracy. The conscience is obliterated by belief in God.

Social-democrats have the vision of the open market Utopia in mind, look up at it as a distant goal, while trying to keep their feet on the ground. Their conscience – insofar as it is not obliterated by leftist theism – is still sensitive to the misery they cause. They implement reforms in gentler steps, trying to hang on to social justice. In trying to remain aware of the view at the coal-face, they drag their feet and appear bumbling. They’re condemned by those who believe that power – in fact, the plausible facade of power – is more important than ethical and moral good.

Here is what part of the Third Way must be, if the Third Way is to meaningfully differentiate itself from neoliberalism: the essential difference lies in the implementation of measures that are supposed to make society head towards the open market Utopia. Believers in the Third Way have to accept that different mixes of interventionism and open market policy are desirable, depending on national circumstances. The Third Way must hold that it can be desirable that the open market Utopia is never be realised, even in “advanced” societies. Different national circumstances (historical, cultural, geographical) allow for different optimal end states. The Third Way is about keeping the feet on the ground while reaching for the open market Utopia.

The model is a fallible construct; its implementation must emerge from below. The purely metaphorical picture I imagine is that the Third Way reform process is like a blanket of mist that rises gradually from the ground upwards, then disperses. In contrast, neoliberalists act as if their model can be implemented without taking immediate human concerns into account; as if the social fabric does not exist so it is meaningless to claim it is being torn to shreds. Sometimes they try to patch things up later. The model is God, and God’s will is to be enforced from above.

None of this is supposed to answer whether the open market Utopia is a desirable goal.

…

Finally, returning to mundane matters – but it is actually part of the bigger picture I have been trying to present – I want to address Gerard Jackson’s reply in How many economists does it take to… to my comments apropos his article published in an Internet magazine called the “New Australian”.

In my article, I was concerned with exposing pitfalls of economic theism. I had written, “The economic model becomes an ideal in the true sense of the word, itself sealed off from reality, apart from humanity and individuals’ lives – it becomes a deity. [The economist’s] faith is then theism.”

I cautioned against believing in the infallibility of one’s economic methodological prescriptions, lest a great distance arise between the conclusions of the model and the human reality. In particular, I was concerned that the vehemence of Gerard Jackson’s piece, in expressing his belief to the effect that “interventionism has caused Singapore’s economy to be a failure”, could not be justified, on two grounds:

1) Jackson had failed to consider Singapore’s broader historical and geographical context, therefore his model lacked realism;

2) as lynchpin of his rebuttal of another author, Jackson had assumed as an inviolable economic truth a statement (“savings fuel investment”) that is clearly false under certain circumstances. “Savings fuel investment; … They are economic facts”, wrote Jackson.

None of Jackson’s reply requires me to change my position. My charge of economic theism requires no retraction. He still has little idea of Singapore’s (and Hong Kong’s, for that matter) history, society or geography – the close-up view from ground-level, the view at the coal-face, a concerned interest in the destiny of a people, rather than a hodge-podge of context-free facts and statistics gleaned from cursory reading.

I only address the point about “savings fuel investment” in a small amount of detail, since this is a direct economics issue. I firmly believe it’s important that the general public not by cocooned from professional-level debate done at a generally understandable level – we have too much compartmentalization of knowledge in the media and society already; the intelligent layperson ought to be given the means and opportunity to form their own point of view.

I’m concerned with identifying theism, which includes models and conceptions that are “sealed off” from reality because one or another belief obliterates the process of information acquisition. But this does not imply a view with no perspective, where anything goes: one has to learn how to judge what’s important, what gets you closer rather than further. The challenge, when understanding a society and a people as an outsider, is to form a view, decrease the distance between conception and reality, to strive to see things from ground level, while also discerning the principles.

Regarding Jackson’s view that “Malaya, of which Singapore was, a part, was saved from General Peng’s barbarism by British, Australian and New Zealand troops”, all I can say is that he has his geography wrong by about 5,000km, as General Peng Dehuai commanded Chinese communist forces in Korea during the Korean War, not in Malaya. There was no “Korean War” in Malaya. Moreover – perhaps this is what he somehow meant – there were no Chinese forces fighting the Allies during World War II – they were on our side, remember? They weren’t all commies back then.

As for the heroism of Australian and British forces “saving Singapore”, Mr. Jackson has forgotten the most humiliating defeat in Australia’s military history, the fall of Singapore. Or perhaps Mr. Jackson somehow construes the fall of Singapore as “saving Singapore from General Peng’s barbarism”, so that, “In other words, it was because of the British that Lee survived to implement his interventionist policies.” The British returned to Singapore only after the Japanese surrendered, in September, 1945 – the Singaporeans were abandoned in 1942 to bear the brunt of Japanese atrocities alone. They did; and understood that they could not rely on others: they knew their destiny was in their own hands. This is why social stability and fair distribution of prosperity is a high priority in Singapore. Independence shapes the mentality fundamentally – as does being a colonial or religious subject.

Also, a long tour through Hong Kong’s New Territories – its deserted beaches, plains and national parks with often gently undulating hills – would cure Mr. Jackson of the belief that there is little room in Hong Kong suitable for housing. It was only in the last couple of decades or so (especially after the electrified railway was built) that the New Territories – which themselves have a land area of over 700 sq. m., compared to Singapore’s 638 – were settled, and now 3 million people (half of Hong Kong’s population) live there. And one can still visit secluded beaches and empty plains – and a national park comprising 60% of the land area of Hong Kong.

The overriding reason for Hong Kong’s immense population density is urban planning, together with people’s desire to live (and consume) in the city. It is certainly not an excuse for Hong Kong’s home ownership rate (55%) to be half of that of Singapore (a staggering 93%). Moreover, as Mr. Jackson points out, the average size of living quarters in Hong Kong is about 7 sq. m., compared to about 23 sq. m. in Singapore. The reason is pure and simple: the Singapore government cared more for Singaporeans’ quality of life than the British did for their colonial subjects.

Now to the main point. A streak of dour contrarianism is evident in Mr. Jackson’s alternative view of economics, which, though seemingly well-developed, rejects as “bilge” elementary definitions that the corporate world takes for granted. The term, “recession”, is used officially in the U.S. to denote two consecutive quarterly decreases in GDP. Looking at the 1990 figures, the annual change in GDP was, respectively: 19 (2nd quarter), -29 (3rd), -63 (4th), -31 (1st, 1991), 27 (2nd). Two decreases in a row happened twice in 1990-1991. So that was officially the U.S. recession of 1990-1991.

Mr Jackson may claim to have deeper insight into economic workings, but to reject out of hand a completely standard view accepted as an official definition by the vast majority of professionals in the area smacks of stubborn and petty contrarianism.

But this would no doubt explain his passionate embrace of the libertarian cult guru Ludwig von Mises – and of his disciples – who, from his Austrian (and later American) vantage point, in all ignorance of Asian culture, blindly denounced government interventionism as “sabotage of the economy”, even when it is clearly the best option for fledgling economies as well as more developed ones when the circumstances demand it.

More important than just working definitions are dynamic relationships that might cause a recession. These are often open to interpretation. What is indisputable, though, is that “consumer confidence” crashed during this period – and Jackson agrees that consumer confidence crashes signal recessions (“In any case, if an increase in saving were the cause then consumption would have been hit first, followed by the higher stages”). Let’s have a look at the figures, and see if they support Jackson’s view. For the same time period as above, the consumer confidence index reads: 105, 90, 61, 65, 77. In the standard model – it seems to capture at least a grain of truth – savings is defined in such a way that lower consumer confidence, at the same disposable income, means more savings. (“Consumer confidence” is gauged in the U.S. from a monthly survey of 5,000 households. There has been some debate as to the usefulness of the concept – see the IHT, June 10.) In any case, Americans indeed saved more during the Gulf War – and through mechanisms that are fairly well known, this – as far as economic analysis can be certain of anything – led to an economic slowdown, and worse.

That Jackson has a broader – perhaps even deeper – definition or explanation of “recession” than that held by most of the rest of the world may well be commendable, but before he rudely rejects fairly well-known stories, he’d be better advised to check his facts.

***

5. JUST DREAMING

Ten home improvements

By Roland Killick, Sydney

Following Tim Dunlop’s suggestion and Tony Scanlan’s imperative (see Free trade: Nice work if you can get it) , I made a list of “10 things we should think about to improve the way things are”. Obviously there are many supporting events which would need to occur in order to make these practical, and perhaps identifying them is more interesting than arguing the merits of each.

(1) Start an “Indian Ocean Alliance” to change the “United Nations System of National Accounts”. For example: http://unstats.un.org/unsd/sna1993/introduction=.asp

Assets Definition: “Assets are entities that must be owned by some unit, or units, and from which economic benefits are derived by their owner(s) by holding or using them over a period of time.” (Paragraph 1.26).

Change the definition to “Assets are entities which, if they were absent or destroyed, would require human labour to restore or replace.”

John Wojdylo in Rousseau and the Third Way (June 3) reminded us that economics of whatever colour or numerical order is an artifice. Based on mathematical foundations no doubt, but with human choices at the core of them. We can therefore change them to produce different outcomes. (Hope for Africa?)

(2) Create an “Australian People’s Institute” to advise us all on which cultural values have been neglected in the framing of our Constitution and Laws, particularly in respect of those held by Australians who do not share a Western, Christian background. And furthermore, to suggest changes to the Laws to make them compatible with these different values.

(3) Empower members of the “Order of Australia” [AC, AO] to appoint and dismiss judges and senior officers in the Armed Forces. Remove this right from Parliament.

(4) Develop a “Citizens Concord”, being an individual agreement between the State and an individual, whereby the individual agrees to certain duties, (like avoidance of sedition or masquerading as another) and in return receives certain privileges, (like freedom of speech or a legally protected identity) Have a special concord for children, and another for guests.

(5) Make all voting accountable, (no secret ballots.) If we don’t like the bullying and stand-over tactics (as demonstrated in Parliament) make all voting private.

(6) Scrap the role of Governor-General. Appoint the GG of each State in turn, (or say the PM, a man, and a woman,) to act for 5 years as “Grand Steward(s) of Australia”. Limit the role to protecting the land and peoples of Australia, as well as representational activities. Better still, do as the English did, and invite a foreign, penniless princeling to be King (but not hereditary please).

(7) Describe a way to identify National Assets (such as roads or the telecommunications infrastructure) and promote legislation to protect them. Also to limit the charging of them to cost recovery from all beneficiaries without invoking the silly “user pays” mantra.

(8) Recognise that the rearing of a socially adept and emotionally secure generation to secure our future is probably the most important Public Service job in the country. Establish a Department, with management structures and training programmes and meetings for which one parent in a family can work, receiving a decent wage, at home, raising their children.

(9) Scrap the HSC altogether. At 16 make all children go walkabout in the Bush learning traditional skills and to do without modern technology for a year.

(10) Limit the total number, (or maybe the density,) of people at offices and work sites in one city to 50,000.

PS: Here’s a book for all Webdiary economists. “The crisis of Vision in Modern Economic Thought” Robert Heilbroner / William Milberg Cambridge University Press 1995

6. RIGHT OF REPLY

John Quiggin, Australian Research Council Senior Fellow, Faculty of Economics and Commerce, Australian National University

Aaron Oakley wrote: “Why is it that people with little understanding of economics like Tim Dunlop feel free to give economic advice? Perhaps he should also be telling brain surgeons how to do their jobs.” (For those who give two hoots, May 10).

The same Aaron Oakley took violent offence when I pointed out that most of the thousands of `scientists’ touted by The New Australian and others as sceptics on the subject of global warming were totally unqualified to comment and that, of the few who had relevant qualifications, the majority were affiliated with right-wing thinktanks and/or paid consultants for the fossil-fuel industry. His diatribe is at newaus, Professor Quiggin’s green McCarthyism. Apparently it’s OK to comment from a position of ignorance as long as you agree with Oakley.

Hi. Brendon Hammer’s evidence went by the board last week, as did Webdiary, when I got tied up writing news on SIEV-X for the Herald. The story is gaining momentum but, as many of you have remarked, it’s very complicated and very incremental.

Some have asked what I think really happened. David Eastwood writes:

“It’s f…ing hard to follow the threads of this SIEV-X caper. Perhaps there’s something clever your on-line wonks could do with technology and graphics that makes it easier to digest for those of us in the non-verbal neuro-linguistic zone?

Am I to understand that by negligence, incompetence or worse, my government and/or public service and/or armed forces may have contributed to the death of 350-odd wretched souls?

“We’re not at war, so it’s not a war crime. International waters, so I guess we’re not liable by international convention as such, but the “law of the sea” as I understand it (I am at times a mariner of sorts) does require all ships aware of an impending disaster within reach to render assistance if possible, at least by convention if not by letter.

“I’m not aware of too many international precedents for this. The routine Bangladeshi and Philippine ferry capsize disasters are usually human error or neglect by commercial enterprises, albeit poorly regulated.

“Outside war, how many other governments (using that term broadly) are complicit in this way?”

…

David, I don’t know where all this will lead, and I’ve given up constructing theories because the tale twists in mighty strange ways. The story is at the stage where the facts are emerging bit by bit, document by document, testimony by testimony. “The matrix of evidence”, as one lawyer on the inquiry puts it, has to be in place before theories can take shape. The contradictions are legion but their meaning is still moot.

For me, the saddest disclosure last week was that the vessel the children overboard inquiry dubbed SIEV-X (X is for unknown) actually did have a name. The minutes of the Prime Minister’s people smuggling task force I wrote about last week show that defence named it SIEV-8 on October 22, two days after it sank, with the tragic annotation, “Not spotted yet, missing, grossly overcrowded, no jetsam spotted, no reports from relatives”.

After it sank, defence removed its name, and transferred it to another boat on the way. The return to anonymity of SIEV-X makes the evidence of incoming navy chief Admiral Chris Ritchie that “it is not a SIEV (Suspected Illegal Entry Vessel) as far as we are concerned” rather flippant, to say the least.

The Weblog Zarook has compiled a comprehensive archive on SIEV-X from the drownings to the inquiry evidence, and Weblogger Marg Hutton is constantly updating it. She’s produced a fantastic resource for those of you interested in the saga. http://zarook.com/SIEVX/

TODAY’S ISSUE

1. My news story today on the latest developments.

2. Possible and actual references to SIEV-X in the PM’s people smuggling task force minutes.

3. A piece by Tony Kevin, the bloke who first raised questions about what we knew of SIEV-X before the tragedy, on the implications of the latest developments.

4. Reader comments from Nicholas Crouch and Mary Dagmar Davies.

***

Here, there, wherever

By Margo Kingston

The government yesterday backtracked on its claim that 353 asylum seekers on mystery boat SIEV-X drowned in Indonesian waters, outside the range of the comprehensive defence force aerial surveillance of international waters between Indonesia and Christmas Island.

Defence minister Robert Hill reversed his position less than two days after telling the Herald he stood by his March assurance that “all indications” were that SIEV-X sank in the vicinity of the Sunda Strait in Indonesian waters. Asked yesterday if “you still maintain that boat was in Indonesian waters”, Senator Hill said, “We – well we don’t know exactly where it sank – what we do is that we didn’t have a capability to assist it because we didn’t know where it was”.

The backflip exposes the Prime Minister to charges that he misled voters during the election campaign on October 24 – the day after Australian Federal Police intelligence said SIEV-X sank in international waters – that “it sank in Indonesian waters – it had nothing to do with the actions of the Australian Government”.

Senator Hill’s reversal leaves Admiral Geoffrey Smith, the head of the defence force search, interception and return operation ordered by the government after Tampa, with yet more questions to answer on the tragedy. He told the inquiry last month that SIEV-X “foundered in the Sunda Straight”, after retracting his evidence that the navy knew nothing of SIEV-X either before it sank on October 19 or when Indonesian fishing boats rescued survivors on October 20.

In his letter of retraction, he admitted he had done nothing to search for SIEV-X after intelligence reports on October 18 and 19 that it was reported to have departed for Christmas Island and on October 20 that it was grossly overcrowded. On October 18, defence briefed the Prime Minister’s people smuggling task force that two boats were expected at Christmas Island with “some risk of vessels in poor condition and rescue at sea”.

A spokeswoman for the defence force said the navy would respond to Senator Hill’s remarks this afternoon.

Coastwatch chief Admiral Marcus Bonser has told the inquiry there was no need for a special search and rescue mission for SIEV-X because “a comprehensive surveillance pattern was in place doing nothing but looking for those boats.” But Admiral Smith’s retraction letter said that on October 19 he had pulled back aerial surveillance much closer to Christmas Island.

Speaking on the Nine Network’s Sunday program, Senator Hill appeared to withdraw his ban on the head of the defence force children overboard inquiry task force, Admiral Raydon Gates, giving evidence on Friday on his review of all intelligence the navy received on SIEV-X before it sank. Last week he banned Admiral Gates giving evidence as scheduled.

Senator Hill said he would now ban Admiral Gates giving evidence only on alleged witness tampering of a defence force witness by Dr Brendon Hammer, a senior office in the Prime Minister’s department. Admiral Gates made the allegation of witness tampering in a memo to Senator Hill on April 29.

***

2. THE PM’S TASK FORCE MINUTES

Thursday, October 18:

Further Prospective arrivals

Intelligence re 2 boats with total 600 PUAs (possible unauthorised arrivals) expected at Christmas (Island), with one possibly arriving today … Some risk of vessels in poor condition and rescue at sea. No confirmed sightings by Coastwatch, but multisource information with high confidence level.

Other issues

Status report to be prepared for PM on above issues

…

Friday, October 19

Current state of play

Coastwatch advised 2000 still linked to boats, next boat to CI (Christmas Island) could be 250

Christmas Island

New vessel 60+ N miles NE of CI carrying 100+. Likely to reach contiguous zone in 8-10 hours. (HMAS) Arunta boarding in 1.5 hours and (HMAS) Warramunga may be asked to attempt return, but 2.5 days to get back to CI.

Other issues

Status report to be prepared for PM.

…

Saturday, October 20

Further arrivals

Second boat expected at Christmas tomorrow. If arrives, assessment to be made whether possible to return (the) larger vessel. Arunta to relieve possible overcrowding … Need to consider how to handle 2 boats – simultaneous or sequential returns – noting return will take 48 hours at 4 knots?

…

Sunday, October 21

Other issues

Check Defence P3 is maintaining surveillance over Christmas Island.

Monday, October 22

SIEV 8

Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives.

…

Tuesday, October 23

Indonesia

Detailed report from 19 yo Afghani male survivor – reports sunk vessel departed 0130 hours 18/10 with 421 on board, including 70 children. Stopped near Karakatu group of Islands at 0900 where 24 left vessel. 397 still on board. At 1400 on 19/10 vessel was taking water out of sight of land. Sank very quickly but resurfaced. About 120 people on surface. 7000 litres of fuel escaped? Seas rough. Only 70 ifejackets – none worked. 19-20 hours in water from 1500 on Friday 19/10 till rescued by 2 fishing vessels around 1100 on Saturday, 20/10. One fishing vessel rescued 44 people; another rescued 5 – 4 deceased and 1 survivor. 41 adults and 3 children survived, 352 drowned. Survivors taken to Jakarta – being cared for by IOM (International Organisation for Migration) at Bogor outside Jakarta. Vessel likely to have been in international waters south of Java. (Margo: Task force member Katrina Edwards says this report was from the AFP.)

…

Wednesday, November 1

Other

Post (Australia’s Jakarta office) advises that Quassy (the people smuggler who organised the SIEV-X voyage) is likely to only be charged with immigration offences in relation to drownings as he was not in charge of the vessel.

***

3. THE WHISTLEBLOWER

Tony Kevin in Canberra

Last week’s public release of sanitised People Smuggling Task Force (PST) summary minutes from 28 August to 9 November takes to a new level of credibility and urgency my queries since March about what the Australian border protection system knew about the sinking of SIEV-X, and why no effective safety of life at sea action was ever taken to try to save the 400 people on this grossly overloaded vessel.

More than 300 people drowned when SIEV X sank on 19 October more than 30 miles south of Java in international waters, bound for Christmas Island, with an Australian navy frigate only 4 hours sailing time away.

What later became known as SIEV-X was discussed in PST on 18, 19, 20, 22, and 23 October (and probably also on 25 October: there is a large blacked-out section in that days minutes, I would guess on SIEV X). It was even given a number in the series – SIEV-8 , a number later transferred to another vessel that did arrive. SIEV-X just vanished from the record until the release of the task force minutes.

On 18 October, it was one of two boats expected at Christmas Island (SIEV 6 was the other it arrived on 19 October) . On 19 October it was forecast it might have 250 on board. On 20 October it was entered as expected to arrive the next day. On 22 October, there is this spine-chilling minute entry: “SIEV 8 not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives”. On 23 October, there is a detailed summary from an Afghani survivor account (presumably to an Australian embassy official in Indonesia, suggested by Katrina Edwards in her testimony to be from AFP) which ends with the key sentence “vessel likely to have been in international waters south of Java”.

This means that all member agencies in the PST are implicated in a systematic cover-up of Australian official knowledge of SIEV X, that has been going on in the Senate Committee since Senators asked the first questions in early April. This is hugely important, even for people and there are unfortunately many who care nothing for the lost lives of 353 asylum-seekers.

What we are also seeing here is a serious systemic failure of our Westminster system of checks and balances in governance. The Executive, supported by a few senior officials who seem to put their personal career interest ahead of the public interest in truth and respect for Parliament, has been during the past 10 weeks cynically kicking sand in the face of the Senate Committee system of public scrutiny and accountability. This matters, and to a much wider constituency than the refugee human rights constituency .

It is not just that officials have given incorrect evidence about what Operation Relex knew about SIEV-X. We have gone from “We knew nothing” in April, to “We had too many confusing reports to draw any firm conclusions from” in May and June.

Senators have also been seriously misled about how the general boat interception system operated; what surveillance there was to find or to try to find SIEV-X; and where SIEV X sank.

It is a complex and laborious to trawl through 1500 pages of transcripts to find the lies and inconsistencies. But here goes an effort at summary.

According to Operation Relex chief Admiral Geoffrey Smith in April, we had a three-stage layered system of intelligence reports from Indonesia triggering air surveillance in “windows” where boats might appear, up to as close as 30 miles from Indonesia, which is within range of where SIEV X sank.

But incoming navy chief Admiral Chris Ritchie on completely contradicts this in his evidence on June 4. He says intelligence reports did not trigger air surveillance. Air surveillance was not close to Indonesia, but was in regular broad sweeps of “funnels” much further south, nearer destination points. So there was no way SIEV-X could be tracked it never got far enough.

They can’t both be right. My money is on Smith – he was not under pressure at the time, but proudly explaining how well Operation Relex had worked. Ritchie on 4 June was very much under pressure.

Ritchie’s version is also undermined by that telling PST minute entry on 22 October, which suggests that RAAF Orions were looking for the boat or its wreckage. Why is this still being hidden? Are we still trying to claim that we knew nothing to confirm SIEV-X’s existence till we heard on CNN that it had sank? The PST minutes have sold that pass.

And here is the third leg of the failed cover-up, the claim that SIEV X sank in Indonesian waters. This starts with the Prime Minister on 24 October assuring the media “This boat sank in Indonesian waters” (subtext: so we are in no way responsible).

Yet on 23 October, the people smuggling task force had an Australian Federal Police report that the boat was likely to have been in international waters south of Java.. Media at the time (Australian, ABC, and others) reported that same location.

The false claim that it sank in Indonesian waters was sustained through to 22 May. Tell the lie often enough, it might be believed. It was in Navy’s April testimony, in Senator Hill’s March letter to Mr Crean, and still in Smith’s letter of clarification of 22 May. Only Bonser tried to encompass the range of truth, when he testified that it could have sunk anywhere between the Sunda Strait and 80 miles south of Java which, he also said, was in Operation Relex’s air surveillance zone.

The cover-up is falling apart the cover-up about what the Australian system knew about SIEV-X before and after it sank, about what air surveillance was tasked to look for it, and about where it probably sank.

The last big question now is why was there no attempt at effective search and rescue action when there might have still been time to save lives?

Every other question I have asked about what we knew about SIEV X has been shown to be well-founded. This last, biggest, one will too.

It will happen a lot faster and less painfully for Navy if senior officials stop trying to protect what should not in honour be protected. If there was political interference here let’s get it out in the open now, for the sake of the good name and morale of our Navy and our country.

***

4. READERS COMMENTS

Nicholas Crouch

Margo, I am generally a fan of your Webdiary and consider myself to be pro-refugee, but the focus you have been putting on the kids overboard inquiry is just way overdone. You seem to be obsessed with this matter, and even though I find the conduct of Howard, Reith etc disgusting, I am no longer reading your web diary posts, as they are the sort of thing that only some sort of hardcore left-wing political junky could find interesting.

If there is a big development in the enquiry then by all means cover it, but this endless prattling on about SIEV-X, and all the rest of it is getting me to the point where if something better does not appear soon, I may just stop checking the Webdiary altogether. And that is something I seriously don’t want to happen as I have enjoyed the Webdiary immensely in the past.

I was looking forward to hearing you and the Webdiarist’s views on what Bob Brown had to say about Telstra last week, but evidently you are ignoring big political issues of the day in favour of commentary on even the most insignificant of testimony at the Senate hearing. Can you please lay off the refugee stuff for a while – I know there was some stuff on the Third Way a couple of times, but you have to admit you are very engrossed in the kids overboard. I have the feeling that you are one of the few people who are – even amongst those of us who are pro-refugee.

…

Margo: You’re right – I am engrossed. I’m writing SIEV-X news for the paper now, and using the Webdiary to explore the material in greater depth. This is a plus of the net. I haven’t got time to do anything else at the moment. I take your point completely, and recognise that I’m losing Webdiary readers. I believe this story is important, not only in finding out what really happened, but in exposing the current workings of power by this government, the pressure it has put on the defence force, the public service and the future of parliamentary accountability for Government actions.

I’ve noted you email address, and will let you know when I can return Webdiary to its usual program. I’m sure many others feel the same way – let me know if you do and I’ll do the same. I hope some people will persist in the journey to unravelling this mystery.

***

Mary Dagmar Davies

 

My father was a Naval Officer, as was the man I loved and still love, and in my opinion Mike Carlton’s article `Smearing Navy Latest Sport for Axegrinders’ (See Battle lines drawn, June 9) was way off target. Like Mike Carlton I have known people in many branches of the service and been a guest in their homes and in the wardrooms of ships and shore stations here, in Singapore, Malta and the UK. I have experienced the tradition, dignity and glamorous power of the Navy which has my lifelong and steadfast loyalty. I also know terrible things can happen to exceptionally fine people when governments interfere with the operational procedures of the Navy. Even very senior officers can beguiled into behaving unbecomingly, cruelly, and destructively while believing they are acting in the best tradition of the service.

Margo’s question `What is going on in the Navy?’ is fair enough when Commander Norman Banks RAN, the Captain of HMS Adelaide, has to put his career on the line in a press conference and then to the Senate Inquiry in order to defend the truth that no children were thrown into the sea.

The Captain and his crew accomplished one of the most successful rescues in Maritime history their bravery and valour should have been acclaimed by Government, the Department of Defence and the Australian people. But instead his ship to shore signals were first misinterpreted, then misrepresented and then disregarded as the `children overboard’ lie became central to the boarder protection component of the election campaign.

Admiral Barrie and others were prepared let Commander Banks hang out to dry, just as their predecessors had let the blameless Captain John Robertson RAN hang out to dry during the Voyager Royal Commission. Had it not been for Air Vice-Marshall Houston RAAF (who told Reith straight no children were thrown overboard) another distinguished RAN officer could have been destroyed in the `best tradition of the service’. While, as Carlton says, the `RAN officer corps is imbued with the traditions of integrity and duty’ it seems this ‘funny old fashioned stuff’ is not shared by superior officers influenced by political imperative.

Retired Vice-Admiral Sir Richard Peek said in November 2001, just prior to the election, that under the Government’s current rules the services are completely muzzled and treated rather in the way the German population was treated by Dr Geobbels in World War II. So how could personnel from many ranks speak openly to Mike Carlton, who is such a high profile member of the press and who has publicly attacked the government’s stand on Asylum Seekers? Harking back to another quaint tradition, was Mike Carlton press-ganged?

Questions about Siev-X must be asked. Former Ambassador Kevin cannot be dismissed as someone promoting conspiracy theories. Until very recently he was entrusted to head the Australian Diplomatic Mission in some of it’s most sensitive and volatile posts. And government must be prevented from interfering in the Navy’s operational procedures because the Navy has big and dangerous toys and sometimes people can die.

During WWll Winston Churchill, wishing to impress his new ally Stalin, personally planned Fleet Air Arm strikes from aircraft carriers in the North Sea. The Royal Navy suffered appalling losses of aircrew. Orders remained after the element of surprise was gone. Aware of the risk an entire squadron took off and never returned … they ceased to exist. The oldest airman was 22, he was the only married man, and his wife was pregnant. His child was born three months after his death. I am that child.

The terror of a slow and painful death in violent and treacherous seas is not outside of my imagination. Every life is equal and every life should be acknowledged. I did not know the 353 of Siev-X but I grieve for them. I did not know my father but I grieve for him.

I am proud to be the daughter of that officer and proud of the Navy in which he served. I believe had he lived he would demand to know what happened to the people of Siev-X.

The children overboard inquiry is sitting tomorrow, with senior public servant Dr Brendon Hammer under the hammer. Here’s a preview.

It’s a nasty, labyrinthine bureaucratic game these days, avoiding the taint of the children overboard lie. It’s also very unfair, because the big boys fingered for the cover-up – including Peter Reith and staffers – are refusing to play. It’s like the captain sitting on his easy chair watching his troops die on television in the war he ordered and directed. Let the small fish fry.

I discussed the emerging crisis in the Department of Prime Minister and Cabinet (PM&C) – Australia’s premier and most powerful public service organ – in Edging towards the desk where the buck stops. Since then, it’s deepened with a report by department head head Max Moore-Wilton, whose `investigation’ of alleged witness tampering by a senior officer was so unsatisfactory to the Senate that it asked a committee to decide whether to cite one or more public servants for contempt. From there, a criminal charge could be considered. It’s got so bad that when PM&C learned that the defence force had accused one of its staff of witness tampering, it saw fit to withhold that information from the Senate inquiry until AFTER the alleged victim began giving evidence. The reason? PM&C thought the inquiry would ask the right questions to get the information out of the witness.

The public has had the pleasure of an unprecedented and still unfolding expose on the inner workings of a public service operating in a culture of fear. Ironically – is there room for irony these days or is it ironic for something not to be ironic? – the Coalition government crafted a new Public Service Act in 1999 which legally enshrines an “Australian Public Service (APS) Values and Code of Conduct” statement.

Before analysing the details of Hammer affair, some background on what the government now officially requires from public servants, courtesy of a speech by Public Service Commissioner Andrew Podger at a May 31 conference called Improving Government decision-making

The new Australian Public Service (APS) Act enacts a supposedly legally binding “APS Values and Code of Conduct” statement. “One of the major responses to the increased pace of change for the Service has been the shift away from central prescriptive rules of operation, to a principles-based Public Service Act,” Podger said. The key, legally binding APS `values for decision-making’ are that it is apolitical, performs its functions in an impartial and professional manner, has the highest ethical standards, and is openly accountable for its actions to Parliament and the Australian public. An APS employee must behave honestly and with integrity, act with care and diligence, treat everyone with respect and courtesy and comply with all applicable Australian laws.

“Key words here are impartial, professional, ethical, accountable, fair, effective, courteous, honesty, integrity, compliance with the law,” Podger said. “The ethical emphasis is important. The public which has vested power and authority in public servants rightly expects that power and authority to be exercised in the highest ethical manner.”

Podger also stressed “crucial guidelines for good administrative practice” from the audit office, the ombudsman, the National Institute for Governance, and his office. They include “the importance of evidence and systematic information support, along with proper record-keeping”.

Podger cited the Auditor-General, Pat Barrett, with approval: “Documentation is important for an agency to:

* demonstrate it has taken all reasonable steps to identify and manage risks;

* provide assurance to management that the administrative processes are adequate and have integrity;

* record significant events and decisions;

* be able to review its decisions and processes thereby identifying strengths and weaknesses in the process, drawing out lessons for the future;

*in some circumstances provide support for the Commonwealths position in the event of a legal challenge; and

* meet its accountability obligations to the Government, Parliament and other stakeholders.”

Podger made two crucial points to the children overboard inquiry at a recent roundtable discussion.

* “The values and the code of conduct are in the law. They are in sections 10 and 13 of our act. There are obligations in the act on agency heads to uphold and promote the values and to ensure that there is compliance with the code of conduct.”

* “There is some tension between the values, and we should recognise that. The value about being apolitical, impartial and professional does not actually say we are independent. If we took that value on its own to an extreme, we would have major problems about responsiveness of the service to the government of the day. I also note that the responsiveness value actually includes within it the terms `frankness’, `accuracy’, `comprehensiveness’ and `honesty’- that is, if we are truly responsive to the government of the day we have got to be careful that we understand that a short term responsiveness to meet an immediate apparent requirement is not being responsive if we fail to give the frank and more detailed advice that is necessary and with full accuracy.“.

On these principles, more than one public servant would have got the chop already. But of course the government which legislated these values and standards for public servants is the same one ordering them to breach them. Yuk.

***

Here’s my May 7 Herald column on the case Moore-Wilton and Hammer had to answer after the evidence of Commander Stefan King on May 2.

PM’s man out on a shaky inquiry limb

By Margo Kingston

Months into the children overboard inquiry, it seems that early in the election campaign just about everyone in Canberra knew that kids weren’t thrown overboard and the photos proving the lie were fake. The trouble is, no-one let the voters in on the joke. As the inquiry grinds on and it becomes obvious that someone’s head has to roll, the bureaucracy appears to be playing musical chairs, while panic responses to the latest revelations are becoming surreal.

Take last week’s bombshell. Why on earth is Max Moore-Wilton conducting the investigation into whether one of his senior officers, Brendon Hammer, committed a contempt of the Senate or a criminal offence by attempting to influence the evidence of a witness at the children overboard inquiry? Let’s look at his qualifications.

First, as head of the Department of Prime Minister and Cabinet (PM&C), he presided over an internal report on the fake photos which kept his department out of the frame. In January, the officer Moore-Wilton appointed to detect “what efforts were made to correct any misinformation” found PM&C knew nothing. The Senate inquiry has established that since October 11, PM&C knew at senior levels that the photos were fake courtesy of a briefing from the Defence Department through PM&C’s defence liaison officer, Commander Stefan King.

Second, in February Moore-Wilton gave evidence to another inquiry that “None of the information … was released outside the Department of Defence. It was not released to the Department of Prime Minister and Cabinet … This constant effort to consistently say that the department was aware that the photographs were not of October 7 is not true.”

This, by itself, calls into question the quality of Moore-Wilton’s stewardship of the department.

Third, we don’t know what Hammer did with the shock news. Did he, as King expected, confirm it and report to superiors – of which there are few? If he didn’t – and Moore-Wilton must know what happened by now – Hammer should have resigned, just as a junior officer did for similar behaviour during the travel rorts affair in John Howard’s first term. And if he did pass the information higher, PM&C and its boss are out on a limb that could be cut off when Hammer gives evidence on May 22.

Fourth, Hammer’s junior Harinder Sidhu – who King also briefed – gave evidence that when Hammer ordered a private meeting with King and her to discuss the October 11 briefing, “I just gained the impression that it was not actually his idea … It was almost as if `It has been suggested to me that it would be a good idea if we got together to refresh our ideas’.”‘

If Sidhu’s impression is correct, there are very few people senior to Hammer who could have made the suggestion.

It was at the March 11 chat at the Kurrajong Hotel, which Sidhu agreed was a “rehearsal”, that Hammer, according to King, tried to cross-examine him about his recollection and suggested that “Another or a better way to describe that might be …”

Fifth, Moore-Wilton knew more than a week ago, at the latest, that Hammer stood accused of trying to tamper with a witness. Yet three days later the department told the inquiry – only after King made the allegation public – that he was “commencing a process to establish the veracity or otherwise of the allegations in order to determine what further action by him might be required”.

All this is not to suggest that Moore-Wilton is guilty of anything, but that it is farcical that he have carriage of the investigation into Hammer. In the circumstances, the Public Service Commissioner and the Federal Police are the appropriate investigators.

Attempting to influence a witness is a contempt of the Senate, which it can punish with six months’ jail or a fine. But it is much more serious; under the Parliamentary Privileges Act, it is a criminal offence to attempt to influence a witness to a parliamentary inquiry or attempt to induce this witness to refrain from giving certain evidence.

The finely woven web of omission and cover-up has now unravelled so far that attention has shifted from the Defence Department to focus squarely on John Howard’s department.

Bit by tortuous bit we edge closer to the desk at which the buck stops. Does it stop on Dr Hammer’s desk, or do we go higher?

It is time now, surely, that Moore-Wilton and others intimately involved in, or inexplicably kept in the dark about, the scandal step aside and let the truth emerge. At last.

***

As foreshadowed, Max’s report is unsatisfactory (see right-hand column for its text) and for proof I cite the fact that he saw the need to defend HIMSELF three times in the course of clearing his officers. “I can confirm that at no stage during the relevant periods in 2001/2002 have (the officers concerned) consulted me or advised me in regard to any of those matters”.

And: “I consider it worth restating that at no time did I seek to raise issues relating to `children overboard’ with you (the PM) prior to the November 2001 election.”

And: “I cannot accept the proposition that concerns were brought officially to the attention of PM&C management.”

Max’s report is a statement of the background, a collation of statements he sought – in writing for once – from the officers concerned – in writing for once – and his “comment” and “conclusion”. Such a pity no-one wrote ANYTHING when the incident actually happened. Max notes that “there are no written records or recollections that have come to light”. That’s a prima facie breach of administrative guidelines and a big impediment to accountability. Breach of the new Public Service Act, perhaps? From the man responsible for the department’s practices – the man expected to lead the public service as a whole – not a word of criticism. And no analysis, no questions, no teasing out of inconsistencies. In contemptuous fashion, he doesn’t even explore King’s sworn evidence, some of which contradicts Max’s witness statements. And no questioning of King or of the man who advised the government of alleged witness tampering, Admiral Gates. Why? He says privately it was because he was only responsible for his officers. But Hammer had moved to another department, and King was seconded to PM&C at the time of the incident!

Despite crucial conflicts of evidence between the two men on the block – Hammer and his boss Michael Potts – he ignores them and concludes: “On the basis of the material available to me to date I am of the view that there are no grounds for taking disciplinary action under the Public Service Act against Dr Hammer or any other officer of this department.” Really! Since he decided what material was before him, no wonder! I wonder what Andrew Podger would have done?

***

Now to poor Dr Hammer, the meat in this nasty little sandwich. He says he was “deeply shocked and found it difficult to concentrate” when told of the allegation that he had attempted to tamper with a witness. And doesn’t it show in his statement. He has to explain no less than five problematic incidents or personal judgements between October 2001 and April this year. Most are contradicted or disputed by other witnesses, and his recollections on one swings wildly from nothing to enormous detail.

1. What King told him, and on what basis.

Hammer states that at the meeting with Commander King on October 11, King told him “he had heard of a rumour within ADF circles that photographs in the press relating to children being thrown overboard had been taken at a different time to the time everyone thought they had been taken.”

King hotly disputes this. This was no rumour, but a formal briefing to Hammer – after a briefing from a senior officer in defence – which he expected Hammer to pursue. After all, he’s called a “defence liaison officer”, and his job was, as he put it, “to facilitate movement of information”.

Faulkner: Would you describe the two meetings you had on that day as formal meetings – where you present a brief to officers?

King: Yes.

2. Hammer’s reaction

Hammer says he doesn’t remember what he said in reply. He decided to do nothing because:

(1) He had “no real grasp” of the significance of the information, as “I had barely been following illegal immigration and people smuggling”.

(2) He was preoccupied with “a massive additional workload” upgrading Australia’s security after September 11, and

(3) The issue was being handled by PM&C’s people smuggling task force, and he assumed defence would tell them.

As to (1), such ignorance is unacceptable in a senior public servant in PM&C – the department’s core responsibility is to co-ordinate and monitor information across portfolios in a big picture way, to ensure consistency. Children overboard was central to election campaign news and the photos to `prove’ it made page one across the nation.

As to (2), since the matter was outside his area of direct responsibility he had three responsible choices. He could advise his superior Michael Potts and get back to his own work, just as his junior, Harinder Sidhu, had done when she arranged an urgent meeting with Hammer so King could brief him. He could telephone the task force and tell them what he’d heard and get back to his own work. He could ring Defence and check the information, then take one of the first two choices. None of these course of action should have taken more than 5 minutes.

I have spoken to many public servants on this matter and all are incredulous. The job of a senior public servant is not to box himself into his speciality as an excuse not to be proactive, but to pass on such information, formally or informally.

Let’s be very clear on this. During the travel rorts scandal in Howard’s first term, it was revealed that a PM&C officer junior in rank to Hamme, had failed to advise superiors, and therefore the PM”s office, of information on the rorts. Howard had claimed no knowledge, and the public servant resigned. Is the new rule that you’re out if you embarrass your masters and in if you don’t? If so, that’s not public service, that’s political sycophancy. In any event, a public servant should never judge whether politicians will welcome the truth or not – second guessing politicians is always fraught with danger.

Stefan King had been defence liaison officer in PM&C for three months before briefing Hammer and got a good sense of the PM&C culture. “In considering the information I had received (about the photos) it was very clear to me that my function was to provide this advice to my two senior officers in International Division (Sidhu and Hammer) such that they could advise their seniors as appropriate. My logic for this was that … it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and other ministers was consistent. As this matter was only a day or so old, I thought it could be corrected quickly.”

Faulkner: Having formally briefed Ms Sidhu and Dr Hammer, did you have an expectation about what action those officers might take?

King: I guess I had two expectations: That he would say to me, `We actually need to define this issue more clearly and we need to formalise our understanding of it,’ or he might do that himself. It was not a surprise to me that he would have gone about that himself … my professional expectation was most probably that Dr Hammer would call someone at his level – perhaps Vice-Marshall Titheridge – and ask him whether there was any truth to the issue or at least establish in his own mind that there was.”

…

King: I assessed that (Hammer) acknowledged that the information was sensitive but he did not give any indication to me about what action he would take in response … It is a series of expression and body language, if you like, into acknowledging, “Yes, I hear that information” … It is body language, expression – maybe a pursed lip or a raised eyebrow. It was just a professional assessment that I made, and I am quite satisfied with it.

Faulkner: I want to be assured that you are confident that Dr Hammer understood the import of your briefing to him. Are you satisfied about that?

King: Yes, I am.

Faulkner: Could you say why?

King: My experience of Dr Hammer is that he is an extremely astute and intellectual man. In the trade you would say he does not miss a trick.

Faulkner: So you are saying he got it on board, basically.

King: Yes.

Moore-Wilton’s response? Hammer was right not to go outside “the chain of command” What? The whole mess started when Titheridge rang the PM’s task force after a rushed call to HMAS Adelaide’s commander while he was in the middle of the SIEV-4 drama – disregarding the defence chain of command and tradition of advising ministers only after written reports – on the orders of politicians wanting to tell the media something sexy. PM&C officers constantly rings other departments with questions and constantly relay information between themselves. It’s their JOB. Is Max really saying that if a senior officer gets highly relevant information disputing the PM’s public claims he should keep it to himself on a `chain-of-command’ basis? If he is, how on earth does he justify Hammer not reporting the matter up HIS chain of command to Michael Potts?

3. Meeting at the Kurrajong Hotel

The Hammer/Sidhu/King coffee at the Kurrajong is the incident on which Hammer’s career hangs.

(i) Why did he call the meeting?

Hammer says Potts suggested he call a meeting with Sidhu and King “to refresh … respective memories” of the October 11 meeting. Hammer specifically asked Potts “whether such a meeting was appropriate”. Potts replied that “it was normal for people to talk to one another to refresh their recollections on matters which could be of interest (to Senate Estimates committees)”.

“My impression was that he (Potts) wanted me to use the proposed meeting … to develop a good understanding of what had happened within his Division on the `children overboard’ matter,” Hammer said.

Potts was VERY interested in that, according to Hammer. Potts raised a possible meeting in mid-to-late February, followed it up later, and by early March had “been asking me to meet with Ms Sidhu and Commander King for some time”.

Potts flatly denies Hammer’s statement, saying he asked Hammer only to work out WHEN the October meeting occurred, in whatever way Hammer liked. A phone could would do that. Just a phone call.

“I can recall pressing each of the two officers separately on the matter on at least two occasions. Ms Sidhu indicated she had conscientiously tried to recall the rough timing of Commander King’s approach, but that the more she pressed her memory, the more hesitant she became about its reliability. Dr Hammer also indicated that he was unable to recall when the exchange had taken place. I suggested to him that the question of timing was important and pressed him to provide at least a rough approximation of the timing (eg early November, mid-November etc). I also said that, if necessary, he should consult both Ms Sidhu and Commander King in order to get a better sense of the timing of Commander King’s advice. He said he thought he would do so.”

Either Potts or Hammer is wrong. If Potts is right he is out of the frame on alleged witness tampering and Hammer carries the can. If he’s wrong, they’re both in the frame.

Moore-Wilton’s response? He ignores the dramatic inconsistencies and finds “there are no grounds for taking disciplinary action under the Public Service Act”. Privately, Moore-Wilton stresses that he has an out, citing this sentence: “I am conscious that sworn evidence remains to be given … I do not propose to consider any further action … until they have been dealt with by the Senate Select Committee.”

Yes, he’s got an out, but WHY and HOW, given the crucial inconsistencies between Potts and Hammer, does he clear both “on the material before me”?

(ii) What was said at the meeting

Hammer says he’d “virtually forgotten that the October meeting had taken place”, but that the meeting “very much helped to trigger my own recollections”.

“I accept that it is possible that I may naively have experimented with ways of drawing memories forth.” Thus King’s evidence, supported by Sidhu’s, stands. Hammer tried to ask King questions as if he were an inquiry member and get him to answer. King refused several attempts to do this. Hammer also suggested to King that “another or a better way to describe that might be…” Hammer asked: “What happened when you told Dr Hammer about the photographs?”

Hammer’s defence to the charge of witness tampering is that he was “naive”. A senior officer in the top echelon of the top department was naive, but not naive enough, according to his own statement, not to query Potts about whether a meeting would be “appropriate”.

4. What did Hammer report to Potts?

“A brief oral account of the recollections we had shared,” says Hammer. In his estimates evidence Potts stressed that he had not asked Hammer for an account of the meeting because it would be inappropriate given that Hammer would be giving evidence. Hammer told him only that the meeting had taken place. Oh dear.

5. Hammer’s refusal to give a statement to the inquiry

On March 28 the inquiry formally asked Hammer to make a written submission. “I declined to do so because I felt at that time that the meeting that the meeting in my office in early October 2001 had been a small episode which would be of little interest to the Committee.”

Incredible. Potts said he did not ask Hammer what happened at the Kurrajong Hotel meeting because “it was pretty clear that there would be a select committee and obviously he might be an individual witness before it”.

Faulkner: Beyond having an indication from Dr Hammer that this (meeting) had occurred, you did not try to satisfy yourself as to what that particular fix was?

Potts: No.

Faulkner: Wouldn’t having that understanding have helped you at any inquiries?

Potts: … I think that at that stage my mindset was that things would have to fall where they fell, that there was no point in my adding an extra layer to matters.

Senator Faulkner: What do you mean they would have to fall where they fell?

Potts: That people would be called to give evidence and that evidence would be tested by a select committee.

Max’s response to Hammer’s almost inconceivable lack of judgement? Nothing. Ignored.

I’ll be at the hearings tomorrow, and report to you tomorrow night.

Julian Burnside is hot! Here’s his speech to the fund-raiser dinner launching `Just and Fair Asylum’ in Sydney tonight. It’s an impassioned, high energy speech from barrister advocating his own core beliefs, as a human being and as an Australian. And people do care – 190 of them paid $150 a pop tobe there. Ad man John Singleton was master of ceremonies.

Refugees: Australia’s moral failure

By Julian Burnside

The so-called refugee problem facing Australia is not a problem of national security; it is not a political or legal problem: it is overwhelmingly a moral problem. It is a moral problem that has been driven by party politics and politicians in recent times. The law which creates the problem has been implemented by the parliament and validated by the courts (despite the best endeavours of some lawyers working in the area). More recently, and most disturbingly, it has been vindicated by the electorate in the overwhelming endorsement of Howard’s policies in the November elections. Yet it remains a moral problem which we as a country are dealing with extremely badly.

I suspect that one reason we are dealing with it so badly is that the true nature of the problem has remained hidden for so long. It has remained hidden because it suits the politicians to dress it up as a problem of national security, a problem of border control, and a problem of sovereignty; so that in the famous Howard expression: “We will determine who comes into our country and in what circumstances.”

The moral dimension of the problem has been disguised by the fact that the politicians have either deliberately or inadvertently elided three distinct elements of the matter: they are the questions of border control, immigration policy and the treatment of refugees. All are quite distinct, separate problems. All require quite different thinking, and all require separate solutions, and yet somehow our political masters have managed to run these problems together and use the ugliest bits from each.

I want to deal with three matters – the Pacific Solution and where it is leading; the system of indefinite mandatory detention and where that might take us; and the alternatives we have available to us.

The Pacific solution

The Pacific Solution was an immediate and astonishingly popular response to the Tampa case. I doubt that there has ever been a case that so innocently and inadvertently provoked such a savage legislative backlash. The Howard government won the approval of an unthinking electorate with its response to Tampa, but it forever sacrificed any claim to moral decency.

The insidious thing about the Pacific Solution is that it preys on impoverished countries who have no real choice whether to lend themselves to the wishes of an Australian government willing to throw millions of dollars at them.

I heard someone not so long ago draw an analogy with prostitution. If a woman has no income and no way of supporting herself, then prostitution is an available, if undesirable, response. I think Nauru can be fairly regarded as one of the fallen women of the South Pacific. For this we don’t blame Nauru, we must blame the Australian government.

Nauru’s constitution bans detention without trial, with only limited exceptions. One of the exceptions, which comes nearest to the present circumstances, is detention for the purpose of deporting a person who arrived without the permission of the relevant authorities in Nauru. One might think that perhaps that justifies that these people are being held entirely against their wishes on Nauru. But it turns out that the visa application for the Tampa people was a single bulk application – a very lazy bit of work – it is simply a single sheet of paper for the 482 people “as per the attached list”. It was signed on their behalf, but perhaps not with their knowledge, by an officer of the Nauruan immigration office. Thus, they cannot be said, on any view, to be people who had arrived against the wishes of the Nauruan government. Added to this of course, it would seem that the Australian government did some kind of political deal with Nauru to allow the people to come in.

These people are being held unlawfully, in a way that is unconstitutional in Nauru. The Australian government could just as easily have locked them up here without constitutional protection. Rather, it was thought it politically expedient to ship them off to Nauru at a cost to Australia that is obscene. How the government seeks to justify that is extremely difficult to know, but I suppose having taken the first step in prostituting Nauru, the rest is just a quibble.

This is a staggering enterprise, on any view: about 1500 people have been hijacked at sea and transported against their will to a pile of bird-droppings in the Central Pacific. There they are strictly confined within 2 camps, in abominable conditions, in breach of Nauru’s Constitution. For its complicity in this bit of hostage-taking, Nauru has been promised tens of millions of dollars. To perpetuate this system of state-sponsored piracy and kidnap, the government has committed Australian taxpayers to a staggering $1.2 billion over the next few years.

Moreover, the Pacific Solution is a fraud on the Australian people. It does not deal with the problem, it simply hides it: because by deflecting people around Australia’s borders and dumping them on Nauru, we make Australians somehow feel more secure. It is a totally false sense of security, and does not in any way deal with the true problem of border control. In some vague way, most Australians feel as though the government has acted in a strong way and has dealt with the problem. That is a fraud. Nauru is already protesting that the plan for which it subverted its Constitution was meant to last only a few months. It has been going now for almost 9 months, and there is no end in sight. Meanwhile Mr Ruddock has been running around the world trying to persuade various countries to take the Nauru hostages off our hands. There are so few of them that it is hard to see why we do not take them ourselves. We may be forced to in any event: the rest of the civilized world has recognized the Pacific Solution for the scandal that it is.

Indefinite mandatory detention

The next matter I want to touch on is the system of indefinite mandatory detention of informal arrivals. Unfortunately, the words `indefinite mandatory detention’ have become a simple mantra which have no real impact.

It is a startling thing to think that, at the beginning of the Twenty First Century, we have a system which, by legislative mandate, involves people being locked up without any judicial order in what, on any view, is a prison. They have no recourse to the courts to review the question of whether they should be locked up. They are being locked up for a period that no one can predict: it is indefinite. When they go inside, unlike any common criminal, they cannot count the days before they will be free again.

Furthermore, unlike the orthodox prison system, eighty per cent of asylum seekers are kept in facilities that are so remote from any centre of civilisation that, if they had the prospect of anyone coming to visit them, that prospect is lost. Broadly, this is because to visit Woomera, or Port Hedland or Curtin involves literally days away from your ordinary activities. I said that the conditions in the detention centres are worse than would be tolerated in the prison system. It is a little surprising at first because they are for the most part run by the same people who run the prisons, but the fact is that conditions in the centres are appalling.

I was interested recently to come across some observations of Professor Richard Harding who is Western Australia’s Inspector of Custodial Services, and a person familiar with the prison system. He visited Curtin in June last year, and he said this:

“The so called education program was largely a charade (bear in mind how many children are kept in these places, bear in mind that the DIMA contract with A.C.M. (Australian Correctional Management] requires that education be provided appropriately to all people who need it).”

“That insight,” he said, “really set the tone for the whole place. The huts in which the people lived were grossly over crowded, many of the toilets were broken, some of the washing machines were also broken, and the so-called shop was abominably stocked and rather inaccessible. The system for sending mail breached all standards of privacy and confidentiality, and above all, medical and dental facilities were inadequate. In summary, the conditions that exist in the Curtin centre are almost intolerable. Such evidence as exists indicates things are little better at the other centres, yet these things are also largely invisible except when riots occur.”

It is easy to be thought to be exaggerating when you talk about conditions in detention centres. This is a letter written to us in February by one of the Afghani people from the Tampa. He is currently in Nauru. He mentions the water supply:

“I mean that we do not have enough water for going to toilet, taking bath, or washing our clothes. For example in one corner of the camp there is one water store, in which most often only one water tank is delivered everyday and here are almost 500 people consuming water from the same tank.

“An interesting story is that when Mr Phillip Ruddock came here our water stores were all full. And we tried to utilise it to our best. Most of us bath when it rains heavily, however our water is spent very soonly and then for the rest of the day and night our toilets are awfully smelling and there are thousands of flies and mosquitoes in each toilet”‘.

This is a person who has been writing to us now for a few months and who has been extraordinarily restrained in his comments about conditions, but whose personality is gradually deteriorating. Things are intolerable there. And those words are matched perfectly by reports that you get from Curtin, and from Port Hedland, and from Woomera, and to a lesser extent from Villawood and Maribyrnong.

It is not easy to choose the things that illustrate most economically the problems of conditions inside of the detention centres. They have to queue for soap. It is common to be subjected to the minor, but irritating torment of queuing for half an hour for soap at Woomera and to reach the head of the queue; only to be told to come back half an hour later, for no reason at all. All you want is a piece of soap but they send you away and have you come back later. The people who are in charge of these places develop very rapidly, it seems, the mentality of guard versus prisoner.

I had an interesting experience myself a few weeks ago in Maribyrnong. Kate Durham and I went out to Maribyrnong to visit a couple of people there, and it happened that I was due to represent one of them in court the next day.

When you go to Maribyrnong you get a piece of paper at the security entrance. You write your name, you write your address and phone number, the names for the people you want to visit and your connection to them, and then you show them a passport to prove who you are. Kate wrote the same two names as I did because we wanted to see the same people. She wrote that her connection to them was `friend’. I wrote that my connection was `barrister’. This was in the 7-9pm social visiting spot. Kate sailed through the double security lock, but I was told that there was a problem with my form.

I said: “What’s the problem, Chris?”

“You’re a barrister, aren’t you?”

“That is true.”

“Lawyers’ visiting hours are between 9 and 5.”

He clearly took pleasure in saying that.

I said: “Oh, but surely it can’t mean that lawyers aren’t allowed to visit in the evening visiting slot?”

And he said: “Well that’s the rule: visiting hours for lawyers are between 9 and 5.”

“Surely the rule can’t mean that.”

“Well it’s the rule.”

“Can we have a look at the rule and check whether that’s what it really means?”

“No.”

“Why not?”

“It’s confidential.”

It was all very good humoured. He was obviously enjoying himself. Having stepped through the looking glass, I was quite amused by it all. I had another run at him, but it was to no avail.

I said to him: “Look, I’m a friend to one and a lawyer for the other, what am I meant to do?”

“You’d need two forms.”

“Perfect, can I have a second form please?”

“No.”

“Why not?”

“You’re not allowed two forms.”

Now I’m sure there is a luxurious pleasure in jerking around a lawyer who doesn’t represent your own view of the world. But if he was prepared to do this to me, with the reasonable expectation that I might make a fuss about it (although I didn’t), what is he likely to do to people who are hopelessly dependent on the ACM guards? If detainees get on the wrong side of any of the ACM people they can expect to be treated badly. The potential for torment is appalling, and torment of course there is.

In the desert camps, when a woman has her period, she must fill in a form requesting sanitary pads. She must then queue to see the nurse and hand in the form. She will be given a packet of 10. If she needs more, whe will have to fill in another form and explain why she needs more.

A few weeks ago when a friend of mine was in Woomera. She saw a couple of teenage Afghani girls wandering around wearing nappies. When she asked why that was, she was told that the stress had made them incontinent. These are teenagers, reduced to wearing nappies. Perhaps that is the best reflection of what the conditions are like: just look and see what it does to the people.

Kate and I have organized a campaign of writing letters to detainees. We have received hundreds of replies. They give a powerful and terrible picture of what we are doing to people.

This is from a letter written by someone at Maribyrnong. He wrote:

“I received your letter on the 11th February and I was happy very much. Please you give information about our situation to Australia because some people have not any information about detention centres. Today I had two visitors who came to my visit for the first time. One of them was journalist. One of them was girl, 25 years old. They had not any information about detention centres and could not believe. And the girl was crying after we talked to her. But I believe that we don’t must look at our situation like sentimental people, we must look very deeply to these circumstances so that what we’re eating and that we have a lot of suffering is on the second level. But first you must see why the people are coming here, and why for a long time they are staying in detention.”

He goes on: “I don’t must be sensitive and I don’t must cry, because the cry make happy the enemy. But finally I will write for you the difference between detention centre and zoo: in the zoo the humans care for animals but in detention centres the animals care for humans.”

Also from Maribyrnong:

“Being detained without any crime is very traumatic, shameful, self destructive and awful hardship, prisons may sound very hard but knowing an exact duration of a sentence is less stressful. But while we are in detention you do not know when you are going to be released and what will happen to you. It is a dreadful frustration. Sometimes I have a sense that no help will come, I feel like I’m in a grave with four walls. Nobody can enjoy confinement in cramped detention centres, walls topped with razor wire.”

Villawood:

“I want to live as a human not like an animal in Villawood detention centre. Please contact me and visit me because I have many things that I can give and show you imagine how I can live 3 years in the detention centre. I am not a criminal I did nothing to put me in a prison I am a refugeePlease help me, do something for me I’ll be crazy I want to be out. I’ll die.”

Port Hedland:

“My hope really is finished for make life in your country. I don’t know what happen to me in Iran, but I know death in my land is better than dying in this detention or in this hell. I lost everything. I lost my life, my love, my family and now I think maybe if I stay here I lose my mind.”

Woomera:

“I really appreciate your paying attention to Woomera detention and especially to me. You had just watched, read about what happened, but the fact is bigger than that. The ACM officers had changed to monsters, they couldn’t see anything except how to hit the people. They entered the compound with the blue uniform so that you couldn’t see any part of their bodies. They were like an army. They used the sticks and hurt the people without any mercy or thinking about women or childrens.

“After that they used the teargas against the families and they were avoided to film when they used that gas. Then at 2 0’clock in the morning they came to the buildings and pushed all the people to go to the mess for head account without paying attention to the pregnant women or the childrens when the weather was too cold. They hit and hurt anyone refused to move. Then they had chosen 40 men and they had put handcuffs on their hands and ordered them to sit on the ground till morning like criminals. They did not allow us to smoke or go to toilets or even pray. I wondered at that moment if this is where we had chosen and asking for protection. What the difference between this and our countries, and why we escaped from there.”

The Alternative

Contrary to the government’s alarmist rhetoric, there are very few refugees in Australia at present. They are people who have been accepted into the country after months or years of detention. By comparison with other countries, the total number of refugees we have accepted is pathetically small. Asia has 8 million; Africa has 5.5 million; Europe has 5.6 million; North America has 1 million. Australian and New Zelanad together have only 76,000.

We have about 2,500 in detention presently seeking to be accepted as refugees. They have committed no crime, unless it be a crime to flee persecution in a pitiable attempt to give their children and themselves a chance of a life worth living. They are not “illegals”: they are human beings. There are about 4000 informal arrivals each year. It is a tiny number. These people do not pose a risk to our national sovereignty.

They are being held in gaol. It is hypocrisy to call it detention. Their human rights are ignored, their conditions are kept secret. When ultimately they are released from detention each refugee is indebted to the Commonwealth for the cost of their accommodation, at the rate of about $120 per day. Thus, a person who suffers the misery of Woomera for 24 months is asked to pay more than $100,000 for the privilege. So, even at the end of the torment, we add insult to injury.

We have a choice: imprison asylum seekers, in defiance of international law, or let them into the community after initial screening, whilst their claims for asylum are assessed. There should be a maximum of 3 weeks initial detention, to be extended only if a judge rules that the circumstnaces justify continued detention. Community release after initial health and security checks could be secured by bail conditions. Bail works very well in the criminal justice system. There is no evidence that it would not work for innocent people seeking asylum. Since more than 80% of asylum seekers turn out to have good claims to our help, it seems barbarous to lock them up for years while we consider whether they are entitled to our protection.

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On the 14th of February this year a man wrote from Port Hedland:

“I wanted to write to someone outside because I don’t have anyone outside and I need to write some letter because I forget everything this two years I am in this prison. I am very happy this time because I learn some good Australians support us. Please we need freedom like every human. I have two years and I don’t hear anything about my family in my country.”

He finishes: “Please don’t forget us, we’re humans.”

Howard and Ruddock have abused these people, calling them `illegals’ and `queue-jumpers’, they falsely accused them of being the sort of people who would throw their children overboard. Asylum seekers are human beings and they deserve to be treated properly like human beings.

We diminish ourselves by the way we treat them. Once we recognise that these people are human beings, we will see that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it.

We must not rest until this outrage to humanity is ended.

Reader Tony Scanlan has sent one of those emails which brings me back to the purpose of Webdiary and makes me wonder if I’m still fulfilling it.

A big aim of Webdiary is, as I say in its charter, “to help meet the unmet demand of some Australians for conversations on our present and our future, and to spark original thought and genuine engagement with important issues which effect us all”. This is why I love getting perspectives outside those of most of my readers and invariably publish them. But maybe my passions on refugee policy, children overboard and terrorism laws are setting back this aim.

Still, I reckon the Third Way debate is getting somewhere. Now its instigator, Tim Dunlop, has written another piece on the assumption that `free trade’ would be a great thing if the inverted commas could be dumped. I hope Kieron Convery, who in How many economists does it take to …pleaded for some constructive ideas rather than just cutting down other people’s theories, gets some hope from it.

Today Tony Scanlan and Tim Dunlop lead this entry, then Dr Aaron Oakley, Paul Walter and James Woodcock respond to yesterday’s TW discussion.

The TW debate has spread beyond these pages, to David Morgan’s Elitist weblog http://elitist.blogspot.com, elitist. David replied to Tim’s opening salvo in Third Way: Window dressing for capitulation (May 7), and Tim and he got into extended discussions thereafter. David writes:

“I’m no economist, but I’ve also tussled with Tim and lived to tell the tale. It all started at TWelitist1 and continued at TWelitist2 and TWelitist3 before concluding (I hope) at TWelitist4.”

So Tony Scanlan, Webdiary readers are having a go at the genuine engagement thing, I reckon. Do you agree?

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Tony Scanlan

Having lived out of Australia for 2 years, I occasionally tune in to the Herald to fill up on news from home and I occasionally read your articles. I am really struck by how you and a number of other writers on both sides of the left-right divide always tend to boil down complex issues into the fact that the Coalition/right or ALP/left are responsible for all the troubles in the world or at least Australia.

What I find really amazing is that sitting outside Australia with the benefit of some distance is how pointless and of little relevance this kind of debate is. Both sides of this divide are really quite similar.

What really matters for Australia is a debate on how best to secure a better future for Australia in a world where creativity and innovation are paramount; rather than this worn-out old debate based on an increasingly irrelevant ideological divide.

I used to do my best to ignore you and other left-right warriors, hoping you would eventually get over your issues and move on. But lately I have come to realize that this doesn’t seem to be happening – you and your brethren are so noisy you’re drowning out what Australia really needs to debate. So PLEASE take a deep breathe and emerge from your blinkered ideological ways and move on. Start talking about some things that are really relevant in the 21st century.

It might be hard just as its hard for the old warriors in Northern Ireland or the Middle East who have learnt to make a living through perpetuating needless division – but I have have faith in you and in your humanity and in humanity in general. I know you can do it.

PS: Please feel free to send this e-mail to anyone you really despise on the opposite side of the left-right divide and tell them that this message applies equally to them. Then invite them to dinner to discuss all the things you have in common. .Go on do it! I know you can! It will be good for your soul.

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Tim Dunlop wrote the piece below before reading yesterday’s Webdiary. He wrote later: “I really liked Kieron Convery’s criticism of me and John Wojdylo and others. I understand his craving for answers to specific problems like the ones he mentions. I stand by my answer that it is okay just to criticise, but I’d like to move in the direction he asks for. (The piece I just sent you is a step in that direction.) I’m now working on a piece that tries to offer some “answers”? I’m happy for Kieron to contact me in the meantime (tinota@starpower.net). I’ll probably do it in the form of something like “10 things we should think about to improve the way things are”. It’s a bit of a tall order to offer a fully formed alternative view of the world, but we can at least throw up some positive ideas for discussion. That’s what I’ll try and do.”

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Free trade and why it would be nice to have some

By Tim Dunlop

The discussion of the third way and related matters prompted by my recent article on the topic suggests to me the need to take a few steps back from where that analysis started and deal with a couple of more basic questions. Chief amongst these is our understanding of what is commonly called “free trade”.

The central question is not about free markets-v- planned economies or some variation on it. It is about who gets to decide the rules and the way in which the rhetoric of “free trade” sits with the practice. In other words, it’s about power.

Consider the reality of international commerce. Far from seeking to open up trade between countries – especially between the developed and the developing world – the international instruments and the powerful governments that support them, embodied in organisations like the WTO, the World Bank, the G7/8, and the EU, constantly renege on their commitments. A recent report by Oxfam lays bare the deceit:

* Developing countries lose $US100 billion a year because of trade barriers put up by the developed world.

* The tariff barriers in rich countries are four times higher for poor countries than for industrialised countries.

* Rich countries have increased agricultural subsidies instead of cutting them, costing developing countries $US20 billion a year.

* Rich countries continue to restrict the international trade in textiles and garments, trade items that are amongst the most important to developing countries.

* Industrialised countries reinforce trade liberalisations in their favour through the loan conditions applied to money provided by the World Bank and the IMF – one recent IMF review of 23 of its programmes found that they included 186 loan conditions related to trade. Many of the allowances made for protection of national industries that were available to the Asian countries, and that had some measure of success in promoting growth there, have been withdrawn in agreements with other developing nations.

This information comes from a report called Eight broken promises: Why the WTO isn’t working for the world’s poor. A more complete report, also by Oxfam, is Rigged rules and double standards: Trade, globalisation and the fight against poverty. Read it, especially if you support free trade. You might wonder what’s being done in its name.

Under IMF and World Bank financing arrangements it is less global integration that is being pursued than a modern form of colonialism. For example, IMF documents show 167 loan conditions (as they are called) attached to a finance package for Ecuador. They included orders to raise the price of cooking gas by 80 percent; to eliminate 26,000 government jobs; to cut real wages for the remaining workers by fifty percent in a four-step timetable drawn up by the IMF; and to transfer ownership of its largest water system to foreign operators.

Another example is Tanzania. World Bank and IMF documents show that “assistance” to that country required 157 conditions including demands that the government charge for hospital treatment, charge for school attendance and a general requirement to sell off state-owned industries, which basically means the transfer of ownership of utility and communications industries to foreign multinationals.

The results have included a 53 percent drop in the number of people being treated in hospitals (in a country where 1.3 million people have AIDS) and school enrolment dropping from 80 percent to 66 percent and still declining. Also, over fifteen years, the GDP rate per capita in Tanzania dropped from $309 to $210 and poverty now afflicts 51 percent of the population. When reports showed that there was some hostility to these measures, the World Bank noted sadly that, “one legacy of socialism is that most people continue to believe that the State has fundamental role in promoting development and providing social services”.

These examples come from a book by journalist and lawyer, Greg Palast. He has plenty more just like them, but all with the same theme – the imposition of draconian trade and financing conditions on developing countries. All result in massive social dislocation and civil unrest, death and impoverishment, a net transfer of wealth from the poor countries to the rich – all in the name of “free markets”, “free trade” and “globalisation”.

If you actually believe in free trade and you think these international organisations are fighting the good fight in the name of open markets, the book is probably worth a read.

Palast relies on leaked documents from the IMF and World Bank which are rather more blunt than the ones that usually see the light of day. For those who prefer their facts from more pure sources, Joseph Stiglitz is your man. As a former US government adviser and chief economist at the World Bank, not to mention a Nobel laureate in economics, they don’t come any more reputable.

Stiglitz is clear: “The issue that is commonly debated – namely, whether we should be “for” or “against” globalization – is not the salient one. As a practical matter there is no retreating from globalization. The real issue is the conduct of the international economic organizations that steer it.” Stiglitz cites the example of Ethiopia, where the IMF suspended its aid program. The reasons for that suspension were unfathomable if your criteria is standard economics, a little more transparent if you apply the logic of power politics.

One reason for withholding aid was because Ethiopia had a balanced budget. This wasn’t good enough for the IMF or the USA, according to Stiglitz who, remember, was privy to the negotiations. They wanted Ethiopia to produce a surplus, which would require cutting services or raising taxes, “a difficult action in any country, but especially in a desperately poor one”.

Another reason for withholding assistance was that Ethiopia had repaid a US bank loan early, using some of its reserves. The IMF and the US didn’t like this, and were willing to cut off the funds because Ethiopia hadn’t consulted them before doing it. But as Stiglitz asks, “Why should a sovereign country – one whose policies had convincingly demonstrated its capability – have to ask permission of the IMF for every action it undertakes?” At the time the IMF and the US were chastising Ethiopia and punishing it the country had no inflation, growing output and a Prime Minister, Meles Zenawi, who was committed to economic reform.

For those who think that the IMF, World Bank etc are independent institutions operating outside the realm of base politics and national power tactics, it is as well to remember this description from “free-trade” advocate, Robert Kuttner: “The United States, as the world’s largest economy and as devout believer in laissez-faire, is the system’s special patron.” A more delightful euphemism I dont think I’ve ever seen.

The point Stiglitz and others are making is that those who set the rules for it do not abide by their own rhetoric, not even the “special patron” who is such a “devout believer” in it. They never have. “They don’t care,” says Stiglitz, “if people live or die.”

But the loudest proponents of “free trade” characterise protestors against the World Bank, the IMF, or perhaps the World Economic Forum as being “anti-globalisation”. The media falls for it. Thinking people shouldn’t. The label is an effective propaganda tool but that’s all. Such protestors are not against greater global integration; they just object to the way such measures are enforced by the rich over the poor.

Thus the objections from Oxfam, Stiglitz and other concerned critics are not based on a rejection of international trade but on an increase in it. Only a liar could characterise this as “anti-globalisation”.

What we see, then, is less the weaknesses of neo-liberal policies themselves (which is a whole other story) and more the vagaries of the raw application of power which those in control of it choose to call “free trade”. As was noted with approval by Marc Levinson in Foreign Affairs magazine in regard to the implementation of the North American Free Trade Agreement (NAFTA), a trade treaty between the USA, Mexico and Canada: “The underlying purpose of NAFTA was not to promote trade but to cement Mexico’s economic reforms.” In other words, the idea was to ensure that any future government, a “democracy opening” as Levinson put it, would be “locked into” a series of agreements favourable to the US.

There are other examples where the official literature makes clear the reality of “free trade”. The OECD, in regard to high tech industries, tells us that “Oligopolistic competition and strategic interaction among firms and government rather than the invisible hand of market forces condition today’s competitive advantage and international division of labour in [these industries]”. This quote comes from Who’s Bashing Whom: Trade Conflict in High Technology Industries by Laura Tyson, Dean of London Business School and former US Government economics adviser. It’s another good read.

NAFTA and agreements like it not only serve the purpose of “locking in” countries to terms of trade and economic arrangements favourable to the dominant partner, they also act as disciplinary measure within countries. Again, it is not adherence to the beauty of neo-liberal prescriptions that matter, but how such agreements allow key governments and corporations to exercise control.

One of the tools of this is to increase worker insecurity. No less an authority than Alan Greenspan, head of the US Federal Reserve, has acknowledged the efficacy of such an approach. He told the US Senate Banking Committee in 1997 that “sustainable economic expansion” thanks to “atypical restraint on compensation increases, appears to be mainly the consequence of greater worker insecurity”. In other words, economic expansion is aided greatly by the wage restraint bought about by worker insecurity. Greenspan wasn’t objecting.

How do NAFTA and trade instruments like it achieve this end? Check out economist Kate Bronfenbrenner’s report, available here. Professor Bronfenbrenner is an economist at Cornell University and she summarised her reports findings in testimony before US Trade Deficit Review Commission (and from which the above Greenspan quote comes). “Under the cover of NAFTA and other trade agreements,” Bronfenbrenner testifies, “employers use the threat of plant closure and capital flight at the bargaining table, in organizing drives, and in wage negotiations with individual workers. What they say to workers, either directly or indirectly, is if you ask for too much or don’t give concessions or try to organize strike or fight for good jobs with good benefits, we’ll close, we’ll move across the border just like other plants have done before.”

She continued: “Our research shows that in NLRB certification elections, more than 50 percent of employers made threats to close all or part of the plant during the organizing drive. This is nearly double the 29 percent of employers who made plant closing threats during NLRB campaigns in the late 1980’s [sic] before NAFTA came into effect.”

Of course all such threats – let alone actually closing down plants in this manner – are illegal under these “free trade” agreements, though, as Bronfenbrenner’s report shows, this doesn’t stop them being made. Threats can be direct or indirect, but when corporations decide on the latter course subtle is not the word that springs to mind. During the “UAW campaign at ITT Automotive in Michigan in March 1995, management removed an entire production line overnight, wrapped it in shrink-wrap, set the equipment on 13 flatbed trucks in front of the plant with hot-pink signs that said, Mexico Transfer Job”.

For those who argue that such “free trade” arrangements represent a “dispersal of power” and opportunities for more worker control over their lives, Bronfenbrenner has this to say:

“The ripple effect of public anxiety over job loss and the effects of NAFTA goes far beyond the relatively small number of companies that shut down plants and move operations to Mexico and other countries. Thanks to a combination of employer threats of plant closings, actual plant closings, and media coverage, a climate of insecurity has been fostered which affects every worker, union or non-union, in every industry.”

Under such circumstances, free trade agreements are nothing of the sort: they are instruments of power, used by corporations and governments to enforce conditions favourable to the wealthy few, not the dependent many. When they don’t work as intended, the more powerful partner can just choose not to play by the rules.

The tomato wars between the US and Mexico illustrate the point. Under the terms of NAFTA, Mexico had increased its exports of tomatoes to the US. (They are more efficient and technologically advanced producers than their US counterparts.) US producers complained, accusing Mexico of “dumping”. The case went to the International Trade Commission (ITC). The ITC voted 4-1 against the Americans, arguing that Florida’s farmers were not being disadvantaged. Still, the farmers continued to pressure the US Government to impose tariffs. The Clinton White House was also involved, well aware of the fact that Florida had switched from George Bush I to Clinton in 1996. They wanted to make sure they stayed switched. Mexico was threatened with tariffs and eventually agreed to a “voluntary” quota system, which in free trade terms is a worse result than a tariff.

Mexican farmers are punished while those from Florida, the ones from the country with “a devout belief in laissez-faire”, are protected. But this is only a worry if you actually believe in free trade. It isn’t so bad if you need Floridian votes. As usual, rhetoric and action don’t match.

We in Australia, then, would do well to keep these matters in mind and to maintain pressure upon our government as it continues to pursue “free trade agreements” with countries in our region and most especially with the United States. Yes we would like something done about the ridiculous subsidies paid to agribusiness in the US that keep our agricultural products out, but we have to be careful of what we are giving away into the bargain. These guys play for keeps.

Ultimately, as Oxfam and other serious critics of international trade practice note, the argument is not just about whether “globalisation is inherently good or bad”, it is about the conditions under which it is being imposed.

We might paraphrase Gandhi who, when asked what he thought about British civilisation, replied that he thought it would be a good idea. So too with free trade. As a principle it may be all very well, but what the record of current “free trade” practice shows is that the agreements and conditions that govern it are less the instruments of genuine trading opportunities designed to integrate poorer countries into the world market place, than disciplinary tools that favour the already wealthy. Proponents of free trade should be outraged.

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Dr Aaron Oakley

Good on you for publishing Gerry Jackson, despite his “incorrect” views.

When Glen Condell challenged me to read Joseph Stiglitz, I pointed out that none of us (Condell and I) were in a position to judge Stiglitz’s work.

Interestingly enough, economist Dr Frank Shostak, who also writes for The New Australian, sank the following boot into Stiglitz in newaustralian. I would advise Mr Condell to read Dr Shostak.

Also, it is worth clarifying my position re The New Australian. I was once an environmentalist, and wilderness society member. I opposed the Franklin dam, the Wesley Vale pulp mill, and other developments.

As a science undergraduate at the University of Tasmania, I gradually came to realise that the green movement had lost the plot. I now believe that the movement has been hijacked by fanatics who are prepared to use any argument, no matter how badly thought out, no matter how unscientific or wrong, to frighten the populace into supporting their agenda.

I write for The New Australian (fee gratis!) on environmental issues – mainly exposing green bias in the press and on the ABC, and exposing falacious claims made by Greens. I feel my scientific training allows me to do so.

I do not write on economic matters, feeling that I am not qualified to do so. When I say qualified, I do not mean in the sense of formal qualification, but in the sense of having the depth and breadth of knowlege.

It is worth stressing that I receive no funding from industry to support my work. I am a junior academic at an Australian university. I write for the New Australian in my own time and at my own expense.

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Paul Walter in Adelaide

Reading an article by Tim Colebatch in The Age crystallised thoughts I have had lately reading Webdiary. The really good political/economy writers(Grattan, Steketee, Gittins, Davidson and the like) are able to write economically and get a point across by, paradoxically, confining themselves to an aspect or fragment of the wider discourse they wish to elaborate upon. They use that as a means for illuminating some more universal point involving “the system” that may not be working too well at the time, rather than trying to produce a “unified theory of everything” using incomprehensible words of six syllables or more and employing convoluted language, and a patronising exclusive tone in the exegesis.

I have done the above myself repeatedly as a low level arts student. Examiners of my essays constantly warn me about the perils of this “Post-Doctoral Thesis” tendency, and I often incur mediocre marks for my pains.

Last year, when Webdiary tended to be crisp, short and sweet, involving any voices and more diverse subject matter, the reader benefited from this sharp editing. Unfortunately people pushing particular barrows seem to have decided that the time is ripe for colonisation of these spaces, and Webdiary is suffering for it.

I am NOT saying that attempting to deal with deeper subjects in greater depth has been wrong.They are complex subjects sometimes involving much professional expertise and specific jargon which must be understood at the basic level if a reader is to progress to a deeper understanding of underlying issues of control and distribution of wealth, meaning and power, and hidden agendas.

It just seems that some contributors have seemingly almost deliberately tried to complicate issues rather than explain them or expose their real significance.We know “Academic” writing is an art, and required for the transmission of ideas between experts in given fields. But if Webdiary is to remain accessible – a people’s page – then at least a few contributors would need to alter their styles(but not substance) in order to successfully elaborate on the issues that concern them for a wider community audience.

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James Woodcock

A quick observation from a economic non-expert leftist.

Gerard Jackson’s reply proves that if you give an economic rationalist enough verbal rope they will eventually hang themselves. In defending economically correct Hong Kong against interventionalist Singapore Jackson states:

“Wojdylo’s accusation that the British didn’t try to alleviate the housing problem is just not true. By 1964 about 20 per cent of the population were living in government re-settlement blocks, shanty towns were being cleared and old tenements torn down.”

Whoops! Twenty percent of the population living in government housing hardly sounds like a “value-free” market setting its own levels. Sounds downright Socialist to me.

In the spirit of John Wojdylo’s Rousseau piece, people may like to read or re read John Ralston Saul’s Voltaire’s Bastards. His main thesis is that often systems of thought (like current economic theories) are internally logical or consistent yet when subjected to external metrics like history or raw human experience, they fall hopelessly apart.

This does not however stop people in power imposing these self-fulfilling realities on us all. With great style and wit he manages to tie together French public health policy, the arms trade and economic rationalism. and shows how by moving beyond these constructs there is a better way out there.

The ASIO parliamentary committee, under the chairmanship of former Liberal minister David Jull, has followed the precedent set by the Senate’s terror legislation committee in calling for a sweeping overhaul of the government’s ASIO terror plans.

Jull and Coalition colleagues Paul Calvert, Sandy McDonald and Stewart Macarthur joined with Labor’s Kim Beazley, Robert Ray and Leo McLeay to produce a bipartisan report faithful to Australia’s democratic traditions and freedoms and with a healthy skepticism of unfettered state power. For my report on the constructive style and approach of the hearings, see Take em on, Beazley.

Because of the importance of the matter and the quality of the report, I publish extensive extracts. The full report is at parliament

It again looks like the Government’s jack-boots instincts will be held in check by a dedicated group of Australians who made submissions, parliamentary committees whose members have a firm grasp of the need for balance and have listened to the evidence, and a concerned Liberal backbench determined to take on Cabinet on despite the emotional momentum behind its cause.

This saga has proved a breath of fresh air and a credit to the Australian democratic system. It will be great to see Attorney-General Williams and the Cabinet which backed him suck eggs yet again.

ADVISORY REPORT ON THE ASIO LEGISLATION AMENDMENT (TERRORISM) BILL

CHAPTER 1 – INTRODUCTION

…1.3 The ASIO Terrorism Bill is the most controversial piece of legislation ever reviewed by the Committee. Over 150 submissions were received, most of which were opposed to the provisions in the Bill.

…1.10 ASIO is the Commonwealths domestic security intelligence organisation. It is responsible for protecting Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on our defence system and acts of foreign interference.

1.11 The purpose of the Bill is to amend the ASIO Act 1979 by expanding the special powers available to ASIO to deal with terrorism.

1.12 Specifically, the Bill proposes:

* including the definition of a terrorism offence in the ASIO Act;

* providing a power to detain, search and question persons before a prescribed authority; and

* permitting personal searches to be authorised in conjunction with detention warrants.

1.13 The Attorney-General, in his second reading speech, stated: “Importantly, we have introduced a range of new terrorism offences. In order to ensure that any perpetrators of these serious offences are discovered and prosecuted, preferably before they perpetrate their crimes, it is necessary to enhance the powers of ASIO to investigate terrorism offences.

1.14 The amendments contained in the Bill will empower ASIO to seek a warrant from a prescribed authority (PA). A PA can either be a Federal Magistrate, a Deputy President or a legally qualified member of the Administrative Appeals Tribunal (AAT). The warrant provides for the detention and questioning before the PA of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed terrorism offences.

1.15 The warrants may provide for:

* a person to be immediately taken into custody by a police officer and brought before a PA for questioning and detained under arrangements made by a police officer.

* detention for a period up to 48 hours. Proposed subsection 34D(2) empowers the Director-General of ASIO to seek a warrant which allows for the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or prosecuting those who have committed terrorist offences.

* Successive warrants can be issued, subject to the limits proposed in subsection 34C(5), which require warrants allowing detention beyond 96 hours to be issued by a Deputy President of the AAT.

* detention incommunicado. Proposed subsection 34F(8) states that a person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention. This prohibition may be qualified by the terms of the warrant or a direction issued by a PA.

* a person not being able to decline to give information or produce a document. Proposed subsection 34G(3) states that a person who is before a prescribed authority for questioning under a warrant must not fail to give any information requested in accordance with the warrant (penalty: imprisonment for 5 years).

1.16 ASIO may not seek a warrant without the Attorney-General’s consent. In consenting to such a request, the Attorney-General must be satisfied that:

* there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence (proposed paragraph 34C(3)(a));

* relying on other methods of collecting intelligence would be ineffective (proposed paragraph 34C(3)(b)), and,

* if the warrant involves detention, there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained he or she may alert a person involved in a terrorist offence, may fail to appear before the prescribed authority or may destroy, damage or alter evidence described in the warrant (proposed paragraph 34C(3)(c)).

Accountability measures

1.17 The Attorney-General, in his second reading speech, indicated that the Bill “contains a number of safeguards to ensure that a person is treated fairly whilst in custody or detention”. For example, when a person appears before a prescribed authority, that authority must explain what the warrant authorises ASIO to do and the period the warrant is in force. In addition, the person will be advised that they can make a complaint to the Inspector-General of Intelligence and Security (IGIS) or the Ombudsman.

1.18 The IGIS will be provided with a copy of all warrants issued and a statement containing details of any detention that has taken place.

1.19 The Bill, however, does not appear to contain penalty clauses for officers who do not administer parts of the Bill correctly. In addition, there is no provision in the Bill for redress or compensation in the event that a person is wrongfully detained.

… 1.26 (The definitions of a terrorist act in the ASIO bill are the same in the general terrorism package. The ASIO committee backed the Senate commitee’s adverse findings on the definition.) In relation to the ASIO Legislation Amendment (Terrorism) Bill 2002, the broad definition of terrorism would seemingly allow for the detention and questioning of individuals without legal representation who may not know anything about a terrorist activity, but could belong to or support various protest groups and organisations, or could merely be relatives or associates of persons suspected of engaging in activities within the scope of the broad definition of `terrorism’.

International comparisons

1.27 Australia is not alone in adopting a legislative response to the terrorist attacks of 11 September. Both the United Kingdom and the United States of America responded to 11 September by extending their pre-existing anti-terrorism laws.

1.28 Unlike Australia, however, which has not implemented anti-terrorist legislation previously, both the United Kingdom and the United States have had a long history of terrorist violence. The United Kingdom has had anti-terrorism legislation for over four decades while the United States ofAmerica has had such legislation for approximately two decades.

United Kingdom Prevention of Terrorism Acts

…1.31 The Prevention of Terrorism (Temporary Provisions) Act 1974 came into being in response to a prolonged period of terrorist activity in the United Kingdom. This Act was intended to expire within 6 months but it lasted until 2000.

1.32 The key elements were:

* the Act proscribed the IRA and made support for it illegal;

* the legislation allowed the exclusion of persons involved in terrorism from the United Kingdom; and,

* the Act permitted the arrest and detention of any person whom the police reasonably suspected was subject to an exclusion order, guilty of a related offence, or concerned in the commission, preparation or instigation of acts of terrorism. These persons could be detained for 48 hours and the Secretary of State could extend this by a further 5 days.

The Act also permitted the Secretary of State to issue orders allowing police and immigration officers to stop and search persons at ports or borders.

1.33 Detention was reviewable by a writ of habeas corpus (a legal action which compels authorities to bring someone in custody before a court.) However, despite the large number of detentions under these provisions, such writs were rare. Moreover, given the short duration of detention, such action was practically unavailable in most cases.

1.34 The Terrorism Act 2000 largely reincorporated these provisions but also made some significant changes. The power to extend detention was transferred from the Secretary of State to the judiciary as a safeguard measure.

1.35 Only a judicial authority therefore could extend detention if satisfied that doing so was reasonably necessary to obtain or preserve relevant evidence and that the relevant investigation is being conducted diligently and expeditiously.

Legislation in the United States

1.36 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001) focuses on proscribed organisations, associated offences and law enforcement powers.

1.37 The Act provides for the mandatory detention of any alien whom the Attorney-General has reasonable grounds to believe is an inadmissible alien. This was defined to include persons who have incited or engaged interrorist activity and members or representatives of foreign terrorist organisations. The Act does not apply to US persons.

1.38 The Act extends the definitions to cover persons who use a position of prominence to endorse or espouse terrorism, or belong to a group thatendorses terrorism, in a way that undermines United States efforts toreduce or eliminate terrorist activities. It also broadens the definition of engaging in terrorist activity to include incitement, preparation, information gathering, planning and soliciting funds or members for terrorist activities or organisations.

1.39 The Act provides that decisions by the Attorney-General may be reviewed by writ of habeas corpus. Thus, there is no administrative review, although it is claimed that the habeas corpus review grounds closely parallel some of the judicial review grounds.

Objectives and scope of the inquiry

1.40 The majority of evidence to the inquiry has called for the Bill to be abandoned in total or key provisions removed. The Committee heard these calls but also sought to seek solutions which would ameliorate the major concerns that were raised. Witnesses were tested along these lines about a range of possible measures which would improve the Bill. The key areas of the Bill on which the Committee focused its attention includes:

* the status of the prescribed authority;

* access to legal representation;

* the maximum duration of the detention period;

* the need for protocols governing the detention of persons;

* application of the Bill to persons under 18;

* the issue of self-incrimination;

* access to judicial review; and

* a range of accountability measures including adequate reporting of the number of warrants issued and the use of a sunset clause to strengthen public confidence.

CHAPTER 2 – WARRANTS

Background

2.1 Under the Bill, provision is made for the issuing of two types of warrants, a questioning and/or a detention warrant. These warrants would grant ASIO for the first time the law enforcement power of questioning, but not arrest powers.

2.2 Proposed paragraph 34D(2)(a) sets out the criteria for issuing a warrant requiring the appearance of a person before a prescribed authority. Failure to appear would carry a penalty of 5 years imprisonment.

2.3 Proposed paragraph 34D(2)(b) provides for a warrant to be issued that requires a person to be taken into custody and detained for 48 hours. Under this warrant a person may be denied contact with anyone not specified in the warrant.

…2.5 Proposed section 34C describes the process by which the Director-General of ASIO may apply for the warrant by seeking the consent of the Attorney-General and the factors which need to be considered by the Attorney-General in issuing these warrants.

2.6 Proposed section 34D provides that a prescribed authority may issue warrants for questing and/or detention. The process that the prescribed authority must follow is outlined in this section.

Conclusions

2.24 The status and role of the prescribed authority (PA) is a critical part of the Bill. The PA must be of a certain status which ensures transparency, accountability and provides confidence to the public. This can only be achieved if the authority for issuing a warrant is judicial. The Administrative Appeals tribunal (AAT) is an instrument of executive government and therefore should not be given the power to issue warrants.

Recommendation 1: Proposed section 34B, and consequential parts, of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for:

* Federal magistrates to issue all warrants;

* Federal Judges to issue all warrants where detention will exceed 96 hours; and

* members of the AAT, as set out in proposed subsection 34B(1), to undertake all other duties of the prescribed authority excluding the power to issue warrants.

***

Proposed section 34C – duration of the detention period

..2.34 There was considerable criticism and some confusion in relation to the length of time a person could be detained under the proposed legislation. At a public hearing the Attorney-Generals Department confirmed that a warrant could be extended for an indefinite period of time.17 This was criticised by the Law Council of Australia who stated in their submission: “Of utmost concern is that the Bill envisages that second and subsequent warrants each up to 48 hours may be obtained. There is no restriction whatsoever on the number of such warrants which may be obtained and hence the overall period of continuous detention, except that where warrants will result in a continuous period of more than 96 hours, warrant authority must be sought from the Deputy President of the AAT.”

2.35 Amnesty International stated that the ability to further extend the initial period of 48 hours detention indefinitely by repeatedly reissuing new warrants violates obligations regarding arbitrary detention. 19 Article 9 of the International Covenenat on Civil and Political Rights (ICCPR) recognises the right not to be arbitrarily detained. Further to this, they suggest that at the very least, a limit must be placed on the number of warrants obtainable against the one person.

2.36 The Castan Centre for Human Rights Law argue that article 9(1) of the ICCPR prohibits arbitrary detention. Further to this they advised the Committee that articles 9(3) and 9(4) of the ICCPR require oversight by a judicial body, rather than a quasi-judicial substitute.

2.37 The Australian Section International Commission of Jurists add support to this stating in regards to the legislation as a whole: “The Bill, if it becomes an Act, will breach our obligations under the International Covenant on Civil and Political Rights. This Bill is an unprecedented affront by Australia, if enacted, to the instruments to which we have adhered over generations and which were promulgated by the United Nations.”

Conclusions

2.38 The provision for indefinite detention proposed in the legislation is an issue of some concern. A person who has not been charged with an offence should not be detained for an indefinite period of time.

2.39 The Committee therefore proposes to introduce a maximum limit for detention of 7 days (168 hours). Therefore, a person could not be detained for longer than 7 days under the Committee’s amendment.

2.40 In relation to ASIO’s powers to seek warrants, ASIO indicated that the Director-General may only seek a warrant `if the Attorney-General consents to this’. The EM in relation to proposed subsection 34C(5), states

that ‘if the Director-General is seeking a further warrant in relation to a

person who has already been detained under two consecutive warrants,

the Director-General must seek the warrant from a Deputy President of

the AAT.’ It is not explicit that, in seeking a further warrant, the Director-General

has first requested the need for a further warrant from the

Attorney-General. This should be made explicit in the Bill.

Recommendation 3

2.41 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the maximum period of detention of a person is no more than 7 days (168 hours), and at the expiry of that period a person must be either charged or released.

***

Proposed section 34D – Being brought immediately before a prescribed authority

2.43 Proposed section 34D provides for the issuing of warrants by a prescribed authority. It sets out the types of warrants that may be issued, under what conditions and what may be included in the warrant. The obligations of the person subject to the warrant are also set out.

2.44 A person may be held incommunicado under a detention and questioning warrant. The warrant under proposed subparagraph 34D(2)(b)(ii) will specify all those whom the person is permitted to contact while in custody or detention. Under this provision, a person may be denied legal representation.

… Analysis

2.46 A 28-day period in which a person may be taken into custody is currently provided for under paragraph 34D(6)(b). This 28-day period was criticised as being too long, and misleading in relation to the 48 hours detention proposed under a detention and questioning warrant.

2.47 Subparagraph 34D(2)(b)(i) authorises that persons under a 34D(2) warrant are to be taken immediately into custody by a police officer and brought before a prescribed authority. It is not, however, specified that a person should be taken immediately before the prescribed authority.

2.48 It is conceivable therefore, that a person could be taken into custody but not immediately taken before the prescribed authority. Thus they could spend a number of days in custody before the 48-hour warrant begins.

2.49 Dr Greg Carne states: “The 48 hour time limit for detention is also misleading. The concepts of custody and detention are differentiated. Police have the task of bringing the named person into custody and ensuring custody in periods outside interrogation. The 48 hours detention does not commence until the police first bring the person in custody before the prescribed authority for interrogation. The bill does not specify as to when this interrogation must occur.”

2.50 ASIO stated that, certainly it is not the intention that someone be picked up and kept somewhere for 21 days before being taken before a prescribed authority.

2.51 The purpose of the 28 day custody period was explained by the Attorney-General’s Department as to allow, `for the warrant to be issued and then for the person, for example, to be found. The warrant would stay active for that 28-day period. But the warrant would only allow a period of detention for up to 48 hours.”

2.52 It was the opinion of ASIO that this was an inadvertent omission which could be made clearer in the legislation.

Conclusions

2.53 It is the view of the Committee that subclause 34D(2)(b)(i) needs to be amended so that when a person is taken into custody they are then immediately taken before a prescribed authority. The logistical problems of finding someone named in a warrant is recognised by the Committee however a loop-hole in the legislation which would allow for someone to be kept in custody for a length of time before being brought before the prescribed authority in the Committees view is not justifiable.

Recommendation 5

2.54 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the word immediately is inserted into subsection 34D(2)(b)(i) so that a person is immediately bought before a prescribed authority.

***

CHAPTER 3 – DETENTION

3.1 This chapter examines some of the most contentious aspects of the proposed Bill including, detention of persons, detention incommunicado, the rights and obligations of detainees, and the treatment of persons in detention.

3.2 The Bill provides for the detention of persons who may not themselves be suspected of a crime. Under the proposed legislation, a person may only be detained if the prescribed authority is satisfied that there are reasonable grounds for believing that the person may alert a person involved in a terrorist offence that the offence is being investigated; may not continue to appear or not appear again, before a prescribed authority as required by a warrant; or may destroy, damage or alter a record or thing the person has been requested, or may be requested, under the warrant to produce.

3.3 While in detention, a person may be detained incommunicado without access to legal advice so as to avoid the possibility that the legal adviser would alert terrorist suspects.

3.4 The general provisions for detaining a person are set out under proposed section 34F. Proposed section 34G gives directions as to the requirements of a person when appearing before a prescribed authority for questioning. A person subject to a warrant may not refuse to give information even if doing so might incriminate them.

3.5 Proposed section 34J concerns the treatment of persons while under a warrant issued under proposed section 34D. A direction is given that the person must be treated with humanity and with respect for human dignity.

3.6 No age limit is given in the Bill in relation to persons who may be detained. It is therefore possible for children to fall under the ambit of the legislation and be held in detention and incommunicado without their parents knowledge.

Proposed section 34F – Detention of persons

… 3.13 The provision for detention appears to be a precautionary measure. Detention is proposed:

* as the person may pass on information to someone suspected of planning a terrorist activity that ASIO is investigating;

* because the person may destroy or alter records that may be important to an investigation; and,

* so ASIO may continue to question someone if there is a belief that the person may not continue to appear before the prescribed authority.

3.14 A number of individuals and organisations expressed strong concerns relating to the detention provisions. These concerns relate to:

* detention incommunicado without access to legal representation;

* the absence of any protocols concerning the circumstances of detention of persons; and

* no protection against self-incrimination for information, relating to a terrorism offence, provided at an interview;

* lack of penalties for officials who fail to comply with the legislation; and

* the detention of children.

Proposed section 34F Incommunicado detention and legal representation

3.15 Proposed subsection 34F(8) provides for a person under a warrant to be held incommunicado. A person will be refused the right to contact any one not specified in the warrant. Thus a detainee may not be able to contact their family, their place of work, and most importantly have access to legal representation.

3.16 The Castan Centre for Human Rights Law commented that “the incommunicado aspects of the detention is one of the most potentially dangerous aspects of this Bill”.

3.17 The Attorney-General’s Department justified the need for incommunicado detention on the basis of ensuring that a potential terrorist could alert other terrorists or dispose of evidence. What “was primarily behind this provision was the operational aspects of how the agency thought that it would do its work and how best to ensure that somebody who might be in a position to pass out information that then could result in either a terrorist attack happening or letting people know that they are in custody”.

3.18 It was argued by Amnesty International that one of the key premises on which the provision is based, that detaining people will lessen the chance of a detainee being able to tip off someone involved in a terrorist activity, will simply not work. “Amnesty International finds it difficult to believe that a person’s disappearance for 48 hours without contact with their family or friends would not draw similar attention to an investigation.”

3.19 One of the focus areas during the scrutiny of incommunicado detention was the possibility that a person would be denied access to legal representation. The Law Council of Australia commented that it sees “no reason why a citizen who is subject to the potentially frightening prospect of having to give evidence against their neighbour or someone like that should not have the right to legal representation.”

3.20 During hearings, the option of having a panel of lawyers, who are security cleared and appointed by various law councils, available to provide legal representation was examined. The Law Council of Australiastated: “If you have a concern about a lawyer being a possible breach of security requirements, there are ways in which that can be overcome. But the fundamental right must be that a person taken into custody by administrative action and not supervised by judicial process has access to legal advice and can take certain steps, whatever they may be, to secure some form of justice. This legislation does not permit that. It is a gross departure from every standard that currently governs the way in which we legislate for criminal and other conduct.”

3.21 The NSW Council for Civil Liberties acknowledged that the creation of a pool of cleared legal representatives would be “a basic minimum standard that could be applied”. However it warned that the problem is “if you create that environment, you may get someone who is not going to look after the best interests of the person because they are in a compromising position: if they do that, they may have their security clearance rejected or revoked.”

3.22 Professor George Williams supported the proposal for a pool of legal representatives “as long as those people were chosen, say, in consultation with the Law Council of Australia or some other appropriate body to make sure that there was outside input”.

3.23 The Islamic Council of Victoria supported the proposal but warned that some of the lawyers selected should have knowledge of the Muslim community.

3.24 ASIO indicated that the possibility of providing legal representation from a pool of cleared lawyers was not canvassed during the development of the Bill. However, ASIO did raise the following concern about the proposal. “I have no comment on the suggestion that someone detained should have access to independent legal advice. However, I would have concerns from where I sit about someone detained having access to a legal representative, up front, to engage in an adversarial process. I believe that would defeat the purpose of the timely intelligence in certain crucial situations.”

Conclusions

3.25 The Bill provides for detention incommunicado. No provision is made for the person who is the subject of a warrant to have access to legal representation. Evidence to the inquiry was opposed to this arrangement particularly in view of the fact that a person would not have the right to silence. The Committee agrees that this is an unacceptable situation, which must be rectified.

3.26 The Attorney-General’s Department suggests that access to a lawyer could lead to information about the person in detainment being made public. This position is unsustainable. The Committee notes that there is not the same concern about the provision of interpreters under proposed section 34H and the provision of a medical practitioner under proposed subsection 34M(3).

3.27 The Committee proposes the creation of a pool of legal representatives, possibly selected by the Law Council of Australia, who will be security cleared. A person who is detained for questioning under the provisions in this Bill will have access to these legal representatives from a list supplied by the prescribed authority under proposed section 34E.

3.28 The Islamic Council of Victoria suggested that some of the legal representatives should have knowledge of the Muslim community. The pool of available lawyers should, as far as possible, be representative of Muslim and other communities.

Recommendation 6

3.29 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for legal representation for persons who are the subject of a warrant. The following framework should apply:

* a panel of senior lawyers recommended by the Law Council of Australia to be formed who could represent persons being held in detention;

* the Bill should be amended to allow these lawyers to sit in on the entire proceeding of the prescribed authority, and representa person at any further hearings which seek to extenddetention; and

* the lawyers on the panel may have to be security cleared so as to be eligible to represent people in detention.

Proposed section 34E should be amended to ensure that the prescribed authority must advise the person, when they first appear before the prescribed authority, that they have access to a legal representative from a list that will be given to the person.

***

Protocols governing custody, detention and interview

3.30 It became evident during hearings that there were no guidelines on how certain legislative provisions relating to detention and interview would be implemented and governed. For example, what arrangements would be made when police took a person into custody? Where would a person be detained? Would ASIO officers be with police officers when a person was taken into custody? What are the steps that are taken during the first 48 hour period? How long should an interview be conducted before a break is required? As these issues were discussed, it became clear that a protocol governing custody, detention and the interview process should be developed.

3.31 Dr Greg Carne discussed some international comparisons relating to the issue of a protocol. He indicated that similar provisions are provided for in the UK Terrorism Act. The Minister provides a code of conduct which must then be tabled in the Parliament.14 Dr Carne stated: “Thirty years of experience has suggested that it is both better for national security and better for the states reputation to set down these things in clear terms for minimum compliance with these human rights provisions and to ensure the reliability of evidence.”

3.32 The NSW Council for Civil Liberties commented that “there are very few considerations or protections in place and anything that can be added is of benefit”.

3.33 The Administrative Appeals Tribunal (AAT), which will provide members to act as prescribed authorities, called for protocols to guide the operations between ASIO and the AAT. The AAT commented that “the development of a sensible and fair protocol in relation to all parties would be something that we would see as a priority, once the final form of the legislation is known”.

3.34 Professor Williams supported the need for protocols but advised that there would also be the need for oversight and enforcement. Professor Williams commented that “if that was to happen then you would need a process following that where ASIO would need to demonstrate that they followed their protocols and indeed that this committee perhaps, or the inspector, could actually examine to see whether that occurred”.

3.35 The Castan Centre for Human Rights Law pointed out that an enforceable protocol could act as a powerful accountability mechanism governing the operation of ASIO. Professor Kinley stated: “But woe betide ASIO if it is found out that they did not abide by those, and they did have people standing up against walls etcetera. Maybe one of the statements of intent that could be part of that undertaking would be a protocol. I could see that adding to it. In a way, it is a good compromise because it gives ASIO the opportunity to state these things, yet it gives the judge the opportunity to say, We expect you to abide by these. This is your statement of intent.”

3.36 ASIO accepted the need for the development of a protocol for the treatment of persons in detention. ASIO stated: “I believe it would be a good thing to develop a protocol about the conduct and responsibility of ASIO officers in relation to detention and how people should be treated. I believe such a protocol would be needed anyway and believe personally that, in terms of public trust and confidence, it ought to be approved by the Inspector-General and considered by this committee”.

Conclusions

…3.38 The Committee proposes that ASIO should develop a protocol, which guides the operations of the Bill, in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General. The Committee should be briefed on the protocols as soon as they are developed and then subsequently they should be tabled in the Parliament. The Bill should not commence until the protocols are developed and in place.

3.39 The Inspector-General of Intelligence and Security should monitor the use and application of the protocols. Where a breach of the protocols is discovered, the IGIS should not wait to report this event in his Annual Report. The Committee should be informed of the breach immediately.

3.40 Some of the issues that should be included in the protocols include:

* arrangements for informing the AAT and the IGIS about an impending warrant;

* arrangements for informing the Police;

* arrangements for custody and detention;

* interview duration periods and breaks required during a 48 hour detainment period.

Recommendation 7

3.42 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a proposed section which requires the development of protocols governing custody, detention and the interview process provided for under the Bill.

ASIO should develop the protocols in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police, and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General; the Committee should be briefed on the protocols which should then be tabled in the Parliament; and the Bill should not commence until the protocols are developed and in place.

***

Proposed Section 34G protection against self-incrimination

3.43 The main purpose of the legislation as put forward by the Attorney-Generals Department is to gather intelligence relating to a possible terrorist or terrorist activity.

3.44 The powers provided under section 34G that relate to giving information and producing things are therefore considerable in scope. The proposed legislation reverses the onus of proof which requires that the person prove that they do not have something required under the warrant. Refusal to give information or produce a required record or thing carries a penalty of 5 years imprisonment.

3.45 Declining to give information or to produce a record or thing on the grounds that you might be incriminating yourself is no grounds for refusal.

Analysis

3.51 Scrutiny at public hearings of proposed section 34G focused on the combined issues of the refusal of the right to silence and no protection against self incrimination for information relating to a terrorism offence provided at an interview.

3.52 Terrorism offences are punishable by imprisonment for life. Under proposed subsection 34G(3) a person does not have the right to silence. The penalty for failure to comply is imprisonment for five years. Therefore, a person who provides incriminating evidence relating to a terrorism offence could get life imprisonment or alternatively if the person fails to provide information they could get five years imprisonment. The inadequacy of this arrangement was identified during hearings. In addition, the evidence indicated that it was incompatible for a person to have their right to silence removed and, at the same time, have no protection against self-incrimination for information relating to a terrorism offence which is provided during an interview.

3.53 A further aspect of the investigative powers under the Bill is that they are not primarily a tool to collect evidence for the purpose of prosecution. Rather, the powers are designed for intelligence collection with the purpose of preventing a terrorist attack. It was suggested during hearings that this point seemed to undermine the argument for having a self-incrimination provision. ASIO stated that “in terms of principle, the new powers are intended as an enhancement of ASIOs existing intelligence collection powers”.

The Law Council of Australia stated: “Really, what is happening here is an investigative exercise. It is not an attempt to find evidence against the suspect. It is aimed at, as we see it, people who are not suspects but who are people who know. They are just witnesses. It is never intended that they will be charged or convicted of any criminal offence, necessarily. They are going to provide evidence against other people”.

3.54 The Attorney-General’s Department advised that there were provisions in a range of legislation where it was an offence to refuse to answer questions. These include the National Crime Authority Act, Taxation Administration Act, Education Services for Overseas Students Act, Ozone Protection Act, Census and Statistics Act, Quarantine Act, Migration Act and Motor Vehicle Standards Act.

3.55 At the same time, however, many of these Acts provide protection against self-incrimination. The Law Council of Australia indicated that there were a range of agencies such as the Australian Tax Office, the National Crime Authority and Royal Commissions which provide

protection against self-incrimination for information provided.

3.56 ASIO confirmed that if protection against self-incrimination was provided for, then things said during an interview would not diminish the information that they would be likely to obtain from that person…

Conclusions

3.58 Proposed section 34G requires a person to provide information at an interview. This provision removes the right to silence. In addition, this section does not provide protection against self-incrimination for information relating to a terrorism offence which may be provided at an interview. If a person provides information relating to a terrorism offence they could be subject to life imprisonment or five years imprisonment for failing to give information.

Under this arrangement, logically, a person would remain silent and take the five years imprisonment. This approach is contradictory and incompatible with ASIO’s primary objective, in relation to this Bill, of collecting intelligence to prevent a terrorist attack.

3.59 If the Bill must include a provision where the right to silence is removed then a person must have protection against self-incrimination for the provision of information relating to a terrorism offence. This approach would provide a fair balance if the right to silence were removed. In addition, this approach should, potentially, be a more effective way of collecting intelligence relating to terrorism offences.

3.60 The provision of protection against self-incrimination for information provided at an interview is not the same as immunity from prosecution. A person, for example, could not confess, at an interview, to undertaking a terrorism offence and then gain immunity from prosecution. It is only the information taken at an interview which could not be used in a prosecution. If law enforcement agencies could collect alternative evidence then they could use that information to conduct a prosecution.

Recommendation 8

3.61 Proposed section 34G of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide protection against self incrimination for the provision of information relating to a terrorism offence.

***

Proposed section 34J Humane treatment of persons specified in warrant

3.62 Proposed section 34J of the Bill provides that a person being detained under a warrant must be treated with humanity and not subject to cruel, inhuman or degrading treatment.

3.63 In addition to section 34J, there are a number of other sections in the proposed Bill, described by the Explanatory Memorandum, as providing safeguards in relation to the treatment of detainees. These include:

* The Director-General must ensure that video recordings are made of the proceedings before the prescribed authority or any other matter that the prescribed authority directs. These recordings must be provided to the Inspector-General of Intelligence and Security (IGIS).

* The Bill requires the prescribed authority to inform the person being detained under the warrant of the effect of the warrant; the length of time the warrant is in force; the legal consequences of non-compliance with the warrant and the right of the person being detained to communicate with the IGIS and the Ombudsman. Interpreting services must be provided before any questioning can take place if the person detained is unable to communicate in English.

* The person detained has the right to make a complaint in relation to ASIO to the IGIS or, if their complaint relates to the AFP, the Ombudsman. On request, the person detained is to be provided with the facilities to communicate with the IGIS or the Ombudsman.

* The Bill also requires ASIO to give a copy of any warrant issued and a statement containing details of any detention that has taken place to the IGIS. The Attorney-General will also receive a report from ASIO on each warrant…

Analysis

3.65 Proposed section 34J serves an important purpose which is to ensure that officials applying the provisions in the Bill treat a person with humanity and with respect for human dignity. However, there is no incentive in the form of penalties to ensure that these goals are delivered. Scrutiny of the Bill reveals that there are no penalties in the Bill. Professor Williams commented that “this legislation does not provide penalties for, for example, inhumane treatment”. The Federation of Community Legal Centres stated: “What penalties are there for ASIO or for police who violate the processes set out in this act? If an ASIO officer does actinappropriately, how do you take action against them, because it is illegal even to name them? You are not even going to know their name necessarily.”

3.66 The Attorney-General’s Department confirmed that there are no penalties for non-compliance with proposed section 34J or with other “provisions such as that”. However, the Attorney-General’s Department did qualify this answer: “It is rare in legislation to provide criminal penalties for officers going outside the legislation, but one of the key safeguards that overlays this is that, when you put in a legal rule like this, if officers go outside that and can be shown to be negligent, legal action could be taken against the officer, the agency and the Commonwealth.”…

3.68 The Law Council of Australia stated: “..without access to independent legal counsel, the guarantee in s.34J of treatment with humanity and respect for human dignity, and freedom from cruel, inhuman or degrading treatment, is effectively meaningless whilst a person is undergoing questioning or detention. Moreover, no attempt has been made to give any content to this standard in the context of compulsory questioning and incommunicado detention, and hence to provide authorities with any guidance as to the minimum standards of treatment to be applied.”

Conclusions

3.69 The omission of penalty clauses in this Bill is an area which requires rectification. It is unacceptable for the types of measures contained in this Bill not to have penalty clauses attached for actions by officials who do not comply with the legislation. The most prominent omission relates to proposed section 34J which requires the humane treatment of a person specified in a warrant.

3.70 The Attorney-General’s Department indicates that it is rare in legislation to include criminal penalty clauses because, in any event, legal action could be taken against an officer if it could be proven that they were in breach of a legal rule. This is not a satisfactory response. The inclusion of a penalty clause applying to proposed section 34J, and other sections in the Bill, would send a clear message to the public and government officers, that severe penalties will be incurred for non-compliance with the law. Therefore, proposed section 34J, and other relevant sections, should have a note attached to them indicating that penalties apply.

Recommendation 9

3.71 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include penalty clauses which will apply to officials who do not comply with the provisions of the Bill. In particular, a penalty clause must apply to the operation of proposed section 34J.

***

Detention of Children

3.72 The Bill does not place an age restriction on who may be detained. It is therefore possible that children could be detained under the legislation. The only reference to children in the Bill comes under proposed subparagraph 34M(1)(e) which places an age restriction of under ten years on strip searches.

Analysis

3.73 In a radio interview for the Law Report, Radio National, the Attorney-General was asked if children would be included under the legislation. He commented that “anyone who has information would be appropriate to be detained”.

3.74 The Attorney-Generals Department on being asked by the Committee why the provision for strip searching 10 year old children was in the proposed legislation stated:

“This is a replica of the Crimes Act provisions in sections 3ZH and 3ZL, dealing with the strip search. The same rules apply as to police in the Crimes Act. The key thing is that the power can only be accessed if there are reasonable grounds to suspect a person has an object that could be a danger to a person or assist their escape. So in practice the situation where a 10-year-old would have such an item would be extremely limited. Nonetheless, if they did – and there are real circumstances where a 12-year-old may have a gun or something like that – rather than artificially say You can never do anything about it, the provision lays down a mechanism so that you can talk to the prescribed authority, meet the safeguards and remove that item.”

3.75 ASIO acknowledged that children could be subject to the legislation. “There is nothing in the bill that distinguished detention of adults and detentions of people who are below the age of 18 and I think there ought to be some room to work on that.”

3.76 The Law Institute of Victoria, Young Lawyers Section pointed out disparities between the treatment of children under the Bill and the provisions for their treatment under the Crimes Act. “The proposed Bill provides that a child under the age of 18 may be detained for 48 hours the same period as for an adult. Presently under the Crimes Act 1914 (Cth) a child may be detained for only 2 hours – half the time of an adult.”

3.77 In relation to strip searches the Law Institute of Victoria stated: “The proposed Bill provides for children between the ages of 10 and 18 to be strip-searched without sufficient protection against abuse of the process. Presently under the Crimes Act 1914 (Cth) a Magistrate is guided as to what they must consider in deciding to permit a strip search of a suspect under the age of 18.”

3.78 Some groups, in evidence, raised concerns about the lack of guidelines for questioning children. For example, the length of time children might be detained or who might be there to support and protect the rights of the child. The submission from Amnesty International states: “It is unreasonable that under this legislation a 10 year old child could be held and questioned without the ability to notify his or her parents of the fact of their detention, and the place that they are being kept in custody. It is also unreasonable that a child is not able to have an `interview friend’ present with them during questioning.

3.79 Dr Jenny Hocking from Monash University stated: “It is extraordinary that a democratic nation adhering to notions of the rule of law can even contemplate the passage of legislation which would permit children to be taken and held incommunicado without their parents knowledge, let alone consent. That children can be held without suspicion of their involvement in any offence, without legal representation, strip searched and questioned is an appalling proposal and one which has no place in a humane and just society.”

3.80 Mr Gabr Elgafi, from the Supreme Islamic Council of New South Wales pointed out to the Committee the culturally sensitive issues involved in strip-searching. He commented that, in Islam, we are prohibited to appear nude in front of someone. On the particular issue of the stripsearching of children he further stated: “If a husband sees his wife or his 10-year-old kid being searched it is going to be traumatic for him; it is going to cause a lot of disharmony. He is not going to look nicely at them in the future. This guy will be carrying a grudge because he has seen his 10-year-old kid terrified. Searching a 10-year-old kid, asking them to strip, is a major issueand not just for me, I am sure, but with any Anglo-Saxon as well.”

3.81 The Law Institute of Victoria, Young Lawyers Section claimed that the proposed legislation “contravenes 6 articles of the Convention on the Rights of the Child to which Australia became a signatory in 1991”.

Conclusions

3.82 It is a major concern that children could be subject to the provisions in the Bill. The Committee does not support the right to detain or strip-search children as provided for under the legislation. There already exists a procedure under the Crimes Act which allows for the questioning of children.

3.83 The legislation as it currently stands would allow for the detention of a child without the parents’ knowledge. The Bill would also provide for strip searches to be undertaken of children 10 and over. Many protections could be put into the legislation with regard to children under the age of 18, however, it is the view of the Committee that it would be simpler and safer to have the legislation not apply to anyone under 18 year of age.

Recommendation 10

3.84 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that no person under the age of eighteen years may be questioned or detained under the legislation.

***

CHAPTER 4 – ACCOUNTABILITY MEASURES

Introduction

4.1 A constant theme that arose in the evidence was the lack of accountability measures in the Bill and the consequent possible diminution of civil liberties. The powers contained in the Bill are significant and it is essential that a balance is struck between these powers and accountability mechanisms which provide transparency and help to provide greater levels of public confidence.

4.2 In 1999 the then Parliamentary Committee on ASIO, in an advisory report to the Parliament, commented that it “is important that a balance be achieved and that mechanisms be established to give the community confidence that ASIO is performing its functions in a way that is lawful and respects individual rights and liberties”. The Committee considers that the current Bill requires that the balance between secrecy and accountability be reviewed.

4.3 In chapter 3, recommendations were made regarding the need for protocols which govern the detention process. In addition, it was proposed that penalty clauses be applied to key sections of the Bill. In particular, penalties should apply to officers who fail to comply with proposed section 34J requiring that persons specified in a warrant be treated humanely.

4.4 This chapter focuses on the need for higher level accountability measures which focus on the overall operation and timeframe of the Bill. For example, annual reporting of the total number of warrants for questioning and detention will provide the Parliament and the public with greater insight into the operation of this Bill. A further measure is the need for the inclusion of a sunset clause which will terminate the Bill at a predetermined time.

4.5 In addition to these measures, this chapter will discuss the need for enhancements to Parliamentary scrutiny by this Committee and greater powers for the Inspector-General of Intelligence and Security.

Annual Reporting

4.6 The Australian Security Intelligence Organisation (ASIO), under section 94 of the ASIO Act, must provide the Minister with an Annual Report as soon as practicable after each year ending 30 June. The Minister must then table a copy of the report, minus any deletions, in the Parliament within 20 days. In practice, the Minister receives a classified report and will then table an unclassified version in the Parliament. A copy of the classified Annual Report is also provided to the Leader of the Opposition. The 2000-2001 report includes information about ASIO’s corporate governance; people, information and building management; security of ASIO; purchasing practices; use of consultants and contractors; and accountability.

4.7 In relation to accountability, ASIO states that “investigations can be intrusive, so we adhere to a range of accountability measures and safeguards that govern the way we operate’.

4.8 During the inquiry, the issue of reporting the number of warrants sought and granted for questioning or detention was debated. ASIO indicated that the classified Annual Report provided to the Minister and the Leader of the Opposition would “include details regarding the issuing of any warrants under the new powers”.

4.9 ASIO indicated that its public Annual Reports do not include the number of warrants issued. The prospect of aggregated reporting of the number of Ministerial warrants issued was raised in an inquiry by the previous Parliamentary Committee on ASIO. ASIO presented reasons why the number of warrants generally are not publicly reported. However, in relation to public reporting of warrants issued for questioning and or detention under the current Bill, ASIO was less concerned about providing details on these warrants.

ASIO stated: “I would accept in terms of logic that, if this proposed legislation is enacted by the parliament, clearly the secret part of it relates to someone being brought in and questioned. After that is completed – or when an annual report comes around or whatever – the confidentiality of whether you had detained one person or two people or no people during the course of that year I would have thought would have dissipated.”

4.10 The prospect that ASIO will report the total number of proposed section 34C warrants was welcomed by a range of groups. The NSW Council for Civil Liberties supported the proposal but suggested that the measure should be extended to all types of warrants. Similarly, Professor Williams agreed that while the proposal for reporting 34C warrants was an advance, he “would prefer a far higher degree of scrutiny of every case”.

4.11 The Victorian Council of Social Services acknowledged the proposal for public reporting of 34C warrants but commented that “just having an annual report that documents how many times it was used in a year is still not good enough”. The Castan Centre for Human Rights Law was positive about the prospect of comparing the number of warrants sought with the number of warrants issued. “That information would be very useful in at least giving the public some impression of the extent of the use as well as the extent of, for want of a better word, acquiescence of the prescribing authority.”

Conclusions

4.12 ASIO does not currently report aggregate number and type of warrants that are issued. Certain security matters have been raised defending this position. This information is provided in a classified report to the Minister and the Leader of the Opposition.

4.13 The warrants proposed in the current Bill are more intrusive than existing warrants because they affect an individual’s personal liberty and therefore greater accountability is required. ASIO has agreed to publish the aggregate number of section 34C warrants issued. The aggregate number should show the total number of warrants sought, the total number of warrants issued for questioning and the total number issued for questioning and detainment under proposed subsection 34D(2).

4.14 While some groups consider this to be a minimum requirement, the value of scrutinising this information should not be underestimated. The public will have a greater understanding of the use of the measures in this Bill. This Committee scrutinises, on an annual basis, the administration and expenditure of ASIO. The number of section 34C warrants issued will a focus of examination.

Recommendation 11

4.15 The Australian Security Intelligence Organisation must include in its declassified Annual Report the total number of warrants issued under proposed section 34C of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Annual Report should show the total number of warrants sought, the total number of warrants issued for questioning and the total number of warrants issued for questioning and detainment.

Sunset clause and Parliamentary review

4.16 A sunset clause is a legislative instrument that places a fixed time frame on the duration of an Act. It serves the purpose of terminating an Act when it is considered that the purpose of an Act will expire and not be necessary. In addition, a sunset clause can serve as a significant accountability mechanism. A controversial piece of legislation which has a sunset clause will need to be publicly debated and the Government will need to defend its continuation. It is in the context of the latter point that a sunset clause was debated during the inquiry into the ASIO Terrorism Bill.

4.17 The views of a range of groups were sought on the merits of a sunset clause. There was wide ranging support for this proposal…

4. ASIO did note some reservations about the use of a sunset clause commenting that the “the gap in existing powers, which we are seeking to fill is not time specific”. ASIO stated:

“The sort of situations that I think are likely to lead to detention warrants being sought are September 11 type situations. It is not possible to predict when such situations might arise. For instance, you could put in place a three- to four-year sunset clause, have the act expire and have a major incident six to 12 months later. Practicalities would likely prevent the act being resuscitated quickly, for instance, if we were in the middle of an election period.”

4.20 In relation to Parliamentary review, the Attorney-General in his second reading speech introducing the Bill, indicated the Committee “will be asked to review the new powers and provide a report on their operation twelve months after their commencement”.

Conclusions

4.21 The inclusion of a sunset clause in the ASIO Terrorism Bill, in addition to public reporting on the number of warrants sought and granted, is the most powerful accountability mechanism that the Committee can recommend. It is simple in design but sends a confidence boosting message to the Australian public that the Australian Government will need to account and argue the case for the continuation of these powerful laws.

4.22 From a comparative perspective, a sunset provision operates in the US Patriot Act. The Committee was advised by Mr George B Lotz II, Assistant to the Secretary of Defense for Intelligence Oversight that a sunset provision acts to expire certain authorities by 31 December 2005.

4.23 The use of a sunset clause and the proposed review of the Act by this Committee in 12 months, as indicated in the Attorney-General’s second reading speech, should be linked to maximise the quality of the review. There should be a three year sunset clause. That is, at the end of three years, the Act will terminate.

4.24 This Committee should review the provisions in the Bill 24 months after the Bills commencement and not 12 months as proposed by the Attorney-General. This will ensure that the findings of the Committee’s review is a critical part of the consideration of the relevant parts of the Act shortly before they expire as set out under the provisions of the sunset clause.

4.25 It will be up to the Government of the day to argue for the continuation of proposed Part III, Division 3 of the ASIO Act which will be inserted by the Bill. The timing of the Committee’s review will ensure that the Government could, if necessary, prepare and introduce a replacement Bill when the relevant part of the Act expires.

Recommendation 12

4.26 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a sunset clause which will terminate the legislation three years from the date of commencement.

The Inspector-General of Intelligence and Security

4.27 The Inspector-General of Intelligence and Security (IGIS) has wide ranging powers of oversight and scrutiny of the Australian Intelligence Community as set out under the Inspector-General of Intelligence and Security Act 1986.

4.28 The ASIO Terrorism Bill refers to the right of a person, who is subject to a warrant, to make a complaint orally or in writing to the IGIS. The IGIS has the power to review all files relating to any cases of the agency and make determinations about compliance with relevant legislation. The concern was raised during hearings that this may not be a sufficient accountability mechanism because the work of the IGIS is considered to be ex-post facto.

Dr Greg Carne stated:

“The more practical issue then would simply be: when is the review going to take place? This is the problem with this sort of window-dressing aspect, where you can communicate with the Inspector-General, you can communicate with the Ombudsman, but all of that is ex-post facto. It is all after the event.”

4.29 The IGIS indicated that proposed section 34T of the Bill states that “this Division does not affect a function or power of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986”. The IGIS has interpreted this to mean that he “could attend these interrogations and assure myself that they were being conducted with propriety”. However, there was less clarity on what action the IGIS could take if he observed non compliance with the legislation or an impropriety occurring during the interrogation. In response to the possible actions that the IGIS could take during an interview, he stated:

“As I have said, my initial intention would be to attend those interrogations. It would also be my intention, between now and when this legislation comes into operation, to discuss with the Director-General of Security procedures that would enable me to do that.”

4.30 The IGIS indicated, in a supplementary submission, that while most inspection work is carried out ex post facto, some inspection work is carried out on current activities. The IGIS commented that conducting real time inspection work in relation to the section 34C warrants “is particularly desirable given the powers that would be conferred by the legislation and the public interest in having reassurance as to their responsible exercise”.

4.31 The IGIS indicated that he would at the start of the operation of the warrant provision seek to attend the first series of interviews. However, he considered that it may not be necessary to make legislative provision for his attendance at all interviews.

4.32 More importantly, however, was the opportunity for the IGIS to attend any interview and have sufficient warning to make that decision. The IGIS suggested that a procedure could be developed whereby he was made aware of any impending activity at the earliest possible time. The IGIS suggested that this would make it unlikely that questioning could begin before he arrived. The IGIS suggested that this process could be achieved through agreements between him and the Director-General of ASIO “along the lines of agreements we already have for the conduct of inspection activity by the Inspector-General”. Alternatively, the IGIS suggested that the notification regime could be required by the legislation.

Conclusions

4.33 The Inspector-General of Intelligence and Security (IGIS) performs an essential role in the oversight of the Australian Intelligence Community. Under the ASIO Terrorism Bill, persons who are the subject of warrants will be able to make complaints orally or in writing to the IGIS. However, the evidence to the inquiry suggested that much of the work of the IGIS is ex-post facto and in practice may be of little use to a person who is subject to a process that does not comply with the law or if some other impropriety occurs. This is a fair observation and therefore the powers and rights of access of the IGIS need to be clarified in the Bill.

4.34 First, the ASIO Terrorism Bill must contain a provision which ensures that as soon as the Director-General seeks the Minister’s consent to request a warrant then the IGIS must be informed immediately and provided with the details of the warrant.

4.35 Second, the IGIS must have the power to intervene immediately at any stage of an interview if the IGIS is of the view that there is non-compliance with the law or any form of impropriety has occurred. The IGIS should have the power to suspend the interview and refer these matters to the Director-General who would then have to take appropriate ameliorative action.

4.36 Both these measures should provide additional reassurance and confidence to the Australian public.

Recommendation 13

4.37 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that when the Director-General seeks the Minister’s consent to request a warrant, under proposed section 34C(1), the Director-General must immediately provide details of the warrant to the Inspector-General of Intelligence and Security.

Recommendation 14

4.38 The Inspector-General of Intelligence and Security Act 1986 be amended to provide the Inspector-General of Intelligence and Security with the power to suspend, on the basis of non-compliance with the law or an impropriety occurring, an interview being conducted under the warrant procedures in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Inspector-General of Intelligence and Security should immediately report the nature of such cases to the Committee.

Judicial review

4.39 During hearings, it became evident that the Bill is not clear on what opportunities a person would have for judicial review of their detention. For example, as discussed previously in this report, a person could be held incommunicado indefinitely with no apparent opportunity for judical review. The proposal was raised during hearings that a person should have the right to judicial review after 24 hours detention and after every subsequent attempt to renew the warrant. If a person is detained incommunicado and it is ASIO’s view that secrecy should be maintained then it is proposed that the court session be closed.

4.40 The Castan Centre for Human Rights Law commented that this “would alleviate some of the problems because it would guarantee some level of judicial intervention after 24 hours”.

4.41 The Federation of Community Legal Centres acknowledged that this proposal would provide ‘minor improvements’ but there are still problems that remain. It warned that it would still be the responsibility of the person to request the right to go to the Federal Court. The problem was that the types of people that could be detained might “have no experience of the court system in any way except in a very disempowered way”.

Conclusions

4.42 The proposal to provide persons who are the subject of a warrant with the opportunity of judicial review would provide further reassurance to the public of the accountability measures applying to the Bill. This would help to remove concerns about executive government control over the process of detention. The Committee has already made recommendations about the maximum duration of detention that should be permitted and the right to legal representation. The measure of judicial review will reinforce the accountability measures already recommended by the Committee.

4.43 The process would place a discipline on ASIO and ensure that the reason for detention was not frivolous, because at a later stage ASIO may need to defend their decision in court.

4.44 Some concerns were raised during evidence that a person may not understand their rights or opportunities for judical review. This problem is offset by the Committee’s recommendation that a person should have access to legal representation. In addition, the Committee proposes that the right to judical review after 24 hours and at every subsequent attempt to renew a warrant should be included as an item in proposed section 34E. Under proposed section 34E, the prescribed authority must explain the warrant and certain rights of the person. Under the Committee’s proposal, the PA will need to advise the person that they can seek judicial review after 24 hours of detainment.

Recommendation 15

4.45 That proposed section 34E of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a requirement that the prescribed authority must advise the person that they have the right to seek judicial review after 24 hours of detention and at every time a subsequent warrant is sought.

Today, a piece from me on the Ruddock-v-Judges test match, passionate reaction from Steve Apps, Malcolm Martin and Rod Olsen to my opinion piece on SIEV-X in today’s Herald and Robert Lawton and Tim Dunlop on the marvellous John Wojdylo.

But first, details of the agreement between Liberal dissidents and the Cabinet on the terrorism bills. Great effort by the Libs, except that they didn’t completely knock off proscription. They did get a tightening of the definition of `a terrorist act’ and a reversal of the reversal of the onus of proof. On proscription, the Attorney General can still ban political organisations, but subject to disallowance by the House of Representatives or the Senate. And if anyone is prosecuted for belonging to or assisting the banned group, the government must prove that it is a terrorist organisation, that the defendant knew it, and that the group was engaging in terrorist activities.

In line with his usual failure to articulate anything, Daryl Williams called a press conference to say he’d got agreement but that he wouldn’t discuss any details, he’d put out a press release in five minutes, and bye-bye. The sooner the Government grants him his wish to become a judge the better. Perhaps he might atone for his woeful performance as Attorney-General on the bench.

The devil has proved to be in the detail on this issue, so we await the actual amendments with interest. Let’s hope Labor has the guts to persist in knocking out proscription altogether. More than one Liberal would be tempted to vote with Labor on this.

All in all, this is an good result for our democracy and a credit to the Liberals brave enough to take on the government on such an emotive issue. There’s bound to be a little more toing-and- froing when the package is debated in the Senate this month.

The next big hit is due next Tuesday when the Parliamentary ASIO committee will pass judgement on the ASIO bill. Damien Lawson, a Victorian lawyer and lobbyist against the excesses of the terrorism package, sends this piece on the government’s plan to let ASIO detain and interrogate people not even suspected of terrorism without access to their families or a lawyer.

***

Tian Chua slams Australian minister for backing ISA

(from malaysiakini.com, a leading Malaysian newswebsite)

Leong Kar Yen

6:27pm Mon Jun 3rd, 2002

An Internal Security Act detainee today ticked off Australian defence minister, Senator Robert Hill, for approving the use of the controversial Malaysian law which allows detention without trial.

“It is regrettable that Senator Hill had not only failed to raise Australia’s concern for the deterioration of democratic rights in Malaysia, but he had unwittingly become the propaganda mouthpiece for the Malaysian government,” ISA detainee Tian Chua said in a statement made available to malaysiakini today.

“I am even more astonished to hear from Senator Hill that the Australian government too is considering a law to enable the authorities to detain terrorist suspects without trial,” he added.

Last Thursday, Hill raised eyebrows among Malaysian civil society groups when during a visit to the country, he said that “extraordinary responses” were needed to deal with “those not prepared to accept the norms of reasonable behaviour”.

“I’ve argued that you may take pre-emptive measures and administrative actions that don’t curb civil liberties, but should endeavour to ensure that you don’t go further than is necessary,” Hill had said.

Chua, who is currently serving a two-year ISA detention, said the Malaysian experience shows that such measures could easily become an instrument of state coercion. “A law which provides the arbitrary power to deny the rights of individuals to due process will inevitably invite the emergence of authoritarianism,” said Chua, who had completed his university education in Australia.

In April 2001, Tian and nine other Keadilan and reformasi activists were arrested under the ISA for alleged involvement in a plot to overthrow the government. While four have been released, Chua who is Keadilan vice-president, party leaders Mohd Ezam Mohd Noor, Lokman Nor Adam, Dr Badrul Amin Bahron, Saari Sungib and malaysiakini columnist-cum-film maker Hishamddin Rais remain in detention.

Chua added that authoritarian regimes have been the root cause of poverty, instability and violence. “Therefore, efforts to eradicate violence must go hand in hand with the promotion of democratisation in the region,” he said.

He also questioned the authorities’ lack of transparency in exposing allegations behind those arrested. “Among those detained at present are many members of legal political entities that are struggling through peaceful means. Although some ISA detainees have been accused of being Islamic militants, the government provides no evidence to substantiate the alleged terrorist links,” Chua added.

In addition to the reformasi leaders, the police has also embarked on a crackdown against 62 suspected Islamic militants, both before and after the Sept 11 terrorists attack on United States. Among those detained include several PAS activists including Nik Adli, son of PAS spiritual advisor Nik Aziz Nik Mat.

***

Daryl Williams press release: Counter-terrorism package

The Government has finalised its amendments to the counter-terrorism package of legislation following the report of the Senate Legal and Constitutional Legislation Committee. This very important legislation will provide our security and law enforcement agencies with the tools they need to combat terrorism.

The horrifying events in the United States last September drew Australia, and the rest of the world, into a new and largely unpredictable security environment. It is crucial that we are able to identify, prevent and, if necessary, punish those who would harm, or threaten to harm, to our families, our friends and our communities.

In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system. We think the legislation does just that.

It is important that we get this legislation right. The amendments reflect extensive and considered deliberation of the legislation by the Senate Legal and Constitutional Affairs Committee and discussions with Coalition members and senators.

The counter-terrorism package considered by the Committee is comprised of the Security Legislation Amendment (Terrorism) Bill 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002; Suppression of the Financing of Terrorism Bill 2002; Border Security Legislation Amendment Bill 2002; and the Telecommunications Interception Legislation Amendment Bill 2002. On the whole the Committee’s recommendations are reflected in the proposed Government amendments.

The Government’s amendments include:

* Amending the definition of `terrorist act’ to include the additional element of intended intimidation or coercion;

* Removing the limited reversal of the onus of proof, which requires the defendant to disprove fault, from the offences of possessing a `thing’ connected with a terrorist act and collecting or making a document connected with a terrorist act, and the maximum penalty for these offences being lowered to 15 years’ imprisonment;

* Replacing the reverse onus terrorist training offence with three different levels of offence carrying different fault elements of negligence, recklessness and knowledge and carrying graduated penalties from 10 to 25 years’ imprisonment;

* Replacing the existing `proscribed organisation’ provisions with a new definition of `terrorist organisation’ as:

– an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act; or

– an organisation that the Security Council of the United Nations has decided is an international terrorist organisation, and a regulation has been made listing an organisation as such; or

– an organisation that is listed by regulation as a terrorist organisation, based on evidence of the organisation’s terrorist activities.

An organisation would only be treated as a terrorist organisation for the purpose of the latter two limbs of the definition once the parliamentary disallowance period has passed. Regulations made under these two limbs will sunset two years after they are made unless the regulations are remade.

* Adding a new section detailing offences relating to terrorist organisations, carrying graduated penalties for negligence, recklessness and knowledge. These offences cover activities including directing the activities of terrorist organisations, recruiting for them, training with them or supporting their activities. In the case of membership of an organisation, only the `knowledge’ offence would be available. Further, a person can only be found guilty of being a member of a terrorist organisation if the prosecution first proves in a court that the organisation is a terrorist organisation in accordance with the first limb of the definition (see above). The prosecution will not be able to rely on a regulation made under either the second or third limbs of the definition in prosecuting people alleged only to be members of a terrorist organisation. The membership offence will also be subject to the defence that the person took all reasonable steps to cease to be a member as soon as practicable after the person knew the organisation was a terrorist organisation;

* Providing for a review of the terrorism package of legislation by the Parliamentary Joint Committee on ASIO after three years;

* Amending the treason offence to include a defence that a person’s conduct relates to the provision of humanitarian aid;

* Ensuring that it is clear that the fault element of intention in the financing of terrorism offence is fully explained as applying to the provision or collection of funds;

* Provide for regulations setting out procedures for the freezing of assets and for notifying those whose assets are frozen; and

* Excluding the financing of terrorism offences from the definition of “political offence” in the Extradition Act 1988 and, by reference, the Mutual Assistance in Criminal Matters Act 1987 to implement Article 14 of the International Convention for the Suppression of the Financing of Terrorism.

The Government will not be adopting the Senate Committee’s recommendations in relation to the Telecommunications (Interception) Act 1979 provisions but will review these issues as part of the ongoing review of that act by the Interception Consultative Committee.

The current Bill clarifies the existing law in relation to access to stored data by means other than an interception warrant. Contrary to suggestions by some critics, the proposed change does not allow law enforcement agencies to read e-mails and SMS messages at whim. Rather, it recognises that an interception warrant is not appropriate for a situation in which no interception is necessary and that other lawful means, such as a search warrant would be more useful.

We have emerged from this consultative process with a strong and effective package of legislation. I thank the members of the Senate Committee and the Government for their contribution to that process.

We will be discussing these amendments with the Opposition and I look forward to their support of these Bills, which strengthen Australia’s ability to deter and protect against terrorism. It is expected that the counter-terrorism package will be debated by the Senate during this sitting period.

***

Innocent, your honour

Don’t ya just love it. Attorney-General Daryl Williams abdicates his traditional duty to defend the judiciary from unwarranted or misconceived political attacks and tells the judges to defend themselves instead . They do, and Philip Ruddock tells them to shut up or resign and enter politics.

This ultra-tawdry politics reminds me of a disgusting incident during the debate over whether the Government should overturn the Northern Territory’s mandatory sentencing laws for children. UN Secretary General Kofi Annan was visiting for talks and Howard asked him not to raise the issue at their meeting. He complied, only to see Howard tell the public that because Annan didn’t raise the matter he was happy with the government’s refusal to act!

At least the federal court’s decision to hold Ruddock accountable for his incendiary allegations against the judges brought Williams out of his coward’s castle. He confessed yesterday that he had privately counselled Ministers not to wantonly attack judges, and thus the judicial system, an institution just as important to our democracy as Parliament.

“I’ve regularly spoken to colleagues and pointed out they shouldn’t be attacking judges personally,” he said.

At last, the truth. All that Williams’ many speeches defending reneging on the duty that used to make an Attorney-General special – his overriding duty to protect the independence and perceived independence of the judiciary and the importance of the rule of law – amounted to this: I’m not game to chastise my colleagues in public so the public better understands the issues and my colleagues think twice before repeating their attacks. I’ll do it in private instead; for all the good that evidently did.

Ruddock’s behaviour has been red hot. In the lead-up to the first big test of the legality of his pre-election border protection laws he’s laid on the vitriol, laying the groundwork for bitter public reaction if the case goes against him. He’s accused judges of “finding ways and means to deal them back into the (immigration) review game”, of pretending to be law-makers, of acting like politicians, and that he’d change the law again if they ruled against him.

The fracas is over the new laws’ purported abolition of appeals on questions of law to the Courts from decisions of the Refugee Review Tribunal. Labor fought this move for years, on principle, before caving in on the eve of the election.

Labor’s trashed principle is a fundamental one. With no review rights, the government can corrupt decision making by tribunal members by refusing to reappoint those who displease it after their short-term contracts expire. More than that, the news laws purport to exempt the minister and all his officials from any judicial review of their actions. Absolute power corrupts, remember Phil, proud member of Amnesty International?

This danger is the reason why Australia has an independent judicial decision with judges appointed for their working lives – to stop government corruption of process and ensure fair treatment to all citizens. If the government can opt out of judicial accountability at will – as it is also trying to do by allowing detention without charge or judicial authority under the ASIO bill – it has a precedent to extend its hegemony to others areas of the law it doesn’t want questioned. Our lack of a a bill of rights makes it extremely difficult for judges to protect our freedoms from a rapacious government intent on destroying them.

The federal court is now hearing a case that will decide if Ruddock can create this profound precedent. So Ruddock questions their motives and suggests they are overstepping the judicial mark.

Yesterday Chief Justice Michael Black asked the Solicitor-General, David Bennett QC, for a please explain. “We are concerned that members of the public might see the minister’ statements as an attempt to bring pressure on the court in relation to these appeals, to which he is a party. We are also concerned that members of the public might see the court as amenable to such pressures, including pressure upon it in relation to issues that are before us today”.

Behind the rhetoric, of course, is the suggestion that Ruddock could be in contempt of Court.

And behind the rhetoric is the fear of this form of destructive populism. Federal Court judge Graham Hill recently warned that “the rule of law and freedom are both too hard-won to be taken away by stealth … Ultimately societies have to maintain human rights and freedoms. And they are at risk.”

With the Pacific Solution, Ruddock removed the courts’ jurisdiction to judge the treatment of new boat people by changing Australia’s territorial boundaries for the purpose of immigration law. Now he’s trying to do the same to refugee applicants on our soil.

Today, laughably, Ruddock told the court that he “does not believe that his statements, properly recorded or taken in context, would be construed in that way by members of the public. He regrets that the court considered that members of the public might construe them in that way.”

He excused his accusation that Justice Hill had spoken like a politician and should resign by saying it was “made before he knew of your honour’s remarks”.

Hogwash, all of it. A cynical tailoring of his spin to suit the court-room, and another one to suit the masses.

Today the Australian Financial Review published a great 1998 John Howard quote on the issues at stake. “The law is a valuable bulwark against tyranny and a slide into authoritarianism. As we have seen only too sadly in one or two places recently, the first sign of a drift to authoritarianism is an apparent encroachment by the executive upon the absolute independence and the absolute integrity of the courts of a nation.”

Amen to that.

***

SIEV-X

Steve Apps

Margo Kingston’s article re the above subject cased me a great deal of angst. I know something of the Navy as I have given 14 years service as a diver in the Navy Reserve. My role is to repair battle damaged ships and clear mines from our harbour when we are at war.

Let me tell you something of this institution that you are so gleefully anticipating to sully. Morale throughout the permanent forces is absolute rock-bottom. This I know through anecdotal association. But don’t believe me, have a look at the sorry record in recruiting and retention that is common throughout the three services. The Navy is in a slow-motion death spiral as both the experienced and the recruit sailors leave, or are making plans to leave. This is no exaggeration – a looming personnel crisis will become apparent in the next two years.

You would know that the role the Navy has had to play in keeping out the asylum seekers is distressing to the average sailor. Some of these people are barely out of their teens when forced to undertake this dangerous and thankless task which is so left-field of their core defence role.

These days, sailors are ordered not to wear their uniforms outside working hours within their own country to avoid the physical and verbal attacks from the Public they serve. There is no high status in declaring yourself a member of the armed forces. The income is very ordinary, the work is stressful and dangerous and the workplace itself is sad.

In my experience, at Officer level, the best ones never applied, the better ones soon leave and the least of them bat on because they’re like that. The heads of the Navy you see now are the products of that process.

You might see big guns and big ships tied up at Garden Island but don’t get the idea that the Navy is strong. It’s not strong enough for you to sink the slipper. Reputation? The Navy barely has one to hold onto.

Perhaps you could limit your attack to the personalities at the top to minimise the damage to those of us below who feel we are still contributing something to this country.

***

Malcolm Martin

Your diatribe against the Navy in this morning’s Herald is no more than I’d expect from a milksop socialist. As you indulge in more hand-wringing over illegal immigrants and their demise, you might find time to congratulate the Howard Government for its border protection policy and the Pacific solution that has stopped the odious people smugglers dead in their tracks.

At least your precious boat-people will no longer drown after being forced into rotting fishing boats, or suffocate in containers. For that you bleeding hearts should be eternally grateful to the fine example Mr Howard has set to the rest of the world, but will we hear one ounce of gratitude? We’ll be waiting a mighty long time for that!

***

Rod Olsen in Canberra

I write to comment on your recent article “Mass drowning case could sink navy’s reputation”.

I am well aware of the draconian laws of libel in Australia and the limits on free speech and the media imposed by these laws. Nevertheless, I think it unfair of you to join in the Government’s scapegoating of the Royal Australian Navy (RAN) over the drowning of most refugees aboard SIEV-X.

It is in the public domain that all relevant Australian agencies knew in advance of this vessel, the overcrowding, the sailing date and the destination. Given the event occurred during the 2001 Federal election campaign, no lowly Navy clerk or Admiral would have made the critical decision not to intercept the vessel and so cause the refugees to drown.

For all its faults, the RAN is a “disciplined force” that operates under Government authority. I have no doubts if a decision not to intercept was made, it would have been by authority higher than the RAN.

If such a decision was made, we will never have definitive proof of who decided not to intercept and to let the refugees drown as “… a lesson to intending refugees about the dangers of paying people smugglers to get sea passage to Australia”.

The documentary evidence, records of meetings and intelligence briefings would have been shredded long ago. Any of the RAN and/or public service personnel with direct knowledge of the truth would have been repeatedly reminded of the jail terms for those contravening the Official Secrets Act. Besides, without documentary evidence, their testimony would be dismissed as hearsay.

There is no justification for helping to scapegoat the poor b—-y RAN. There will be enough of that in the sham courts martial used to shaft those chosen as public scapegoats.

I realise you have to report something. Just, please, do not “aid and abet” the scapegoating of the RAN. Incidentally, I have never been in the RAN, nor any of my family. I am just concerned about natural justice.

WOJDYLO-SPEAK

Robert Lawton in Adelaide

Wojdylo’s latest contribution – Rousseau and the Third Way – is magnificent. I think I will pack in my keyboard right now.

What trash the “greats” of Australian analytical journalism put out compared to this man. Shanahan, Sheehan, Steketee, Gordon, Kelly…they should all sit at Wojdylo’s feet. Along with the clowns: Adams, McGuinness, Saluszinsky.

***

Tim Dunlop in Washington(Tim started the Third Way debate in The Third Way: Window dressing for capitulation, May 7)

Thanks to John Wojdylo for some interesting expansion and tangential comments.

He finds fault with the fact that I don’t offer a positive alternative to the third way, and that I’m too negative. Maybe so on the latter point, though I do actually acknowledge this and offer a brief explanation.

Still, I don’t resile from it: The third way is a sham and its proscriptions would take us in a direction I find unacceptable. Yes that’s negative, if you like, but there it is.

Additionally, the idea that we can’t criticise something without offering a `positive alternative’ is pure nonsense. Of course it is perfectly valid to find fault and leave it at that. Much journalism, political debate and even scientific investigation would cease to exist if we insisted on this `rule’. At an academic level, peer review is basically hole-punching and fault finding. Ultimately, it is from such criticisms that positive alternatives can be built. Maybe I will write such a piece one day.

He also writes, “Dunlop’s piece lacks an explicitly asserted principle that gives it a unifying backbone’ and that “Dunlop hints at fatal internal contradictions”.

Not true. It lays out the key point early and argues closely to it throughout. I write: “The problem that kills the third way, therefore, is its internal incoherence. The nature of that incoherence is this: at the social level it advocates a enhancement of community, shared morality and trust and participatory democracy, but at the same time it advocates at the economic level policies that undermine the conditions for that social program.” I conclude the piece with a restatement of this central point. Hardly just a ‘hint’ and certainly a unifying backbone.

John also comments: “Throwing up the hands and saying “but the Third Way has no principles” (Payne and Gain) just evades intellectual responsibility, which is to inform the audience of the substance of what he is criticising.”

This is a nice bit of out-of-context quoting and really, unworthy. Given the extent to which Latham and other 3Wists are quoted throughout the piece this criticism, too, is unsustainable.

In fact, I specifically cite what Latham himself calls his `guiding ideology’ and it is worth recalling the prominence and context I give it: “Mr Latham, to his credit, tries to extract a core element, a unifying theme from his well-read excursions through the literature of the third way: `I believe the Third Way has a guiding ideology – a single philosophy which links all parts of its policy program. It is this: the true socialist principle of our time is the dispersal of economic, social and political power. This is the defining feature of information age politics: the chance to break down hierarchies and democratise power and social opportunity’.”

Then I write: “This is a brave call, and a reasonable conclusion. But it is also the very thing that brings us up against the central contradiction of the third way and helps explain why we should discard it as a viable program of leftist action. If we can show that the program fails to deliver on this core element, then we have shown that the program is fatally flawed.”

So in addition to the “thesis statement” of my piece which I’ve already quoted, we have Mr Latham quoted at length spelling out his key principle, with me acknowledging the point and then setting it up as the point from which I will take my critical departure. Combine that with the extensive citing and acknowledgment of 3W works and I’d say I give a pretty fair account of that which I am criticising.

John also writes: “Incidentally, I think more intellectuals should focus on the concentration of power and consequent magnification of incompetence implicit in neoliberalism.”

This is a good point. In fact, many have approached the third way in this manner, including Alex Callinicos, Andreas Busch, Michael Ehrke (specifically about the Neue Mitte in Germany) and Edward Herman. It was an approach I considered, but in the end I went another route, concentrating on logical flaws and structural inconsistencies. But it is certainly a path worth pursuing.