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Careful What You Say !

The High Court decision in the Voller case concerns whether a publisher can be held responsible for comments readers post on its website. Specifically, the decision applies to Facebook but would appear to apply equally to any social media publisher, potentially including this website. Indeed, The Conversation seems sufficiently concerned to shut down all comment and discussion on the case in question – an over-reaction perhaps.

The majority High Court decision found that Facebook were a publisher, upholding the findings of the New South Wales Court of Appeal. The appeal judges had found that the media companies facilitated and encouraged the posting of comments by third parties on articles made available on their public Facebook pages. In doing so, the media companies participated and were instrumental in bringing about publication of allegedly defamatory matter, irrespective of whether others also participated in the publication

This decision may mean that any social media website can be sued in defamation as a publisher over any offensive or damaging comments posted by readers and contributors. Potentially, this means that moderation of every post will have to take place before it is published or alternatively that no third party comment will be invited.

So far, the major social media sites like Facebook, Twitter and the like have strongly resisted being tagged as publishers. They have maintained that they merely provide a platform to facilitate comment and discussion : all that may be about to change in Australia at least.

Watch this space as further clarification on this majority High Court decision takes place and the full implications on the implied right to freedom of speech are explored : ironically The Conversation a site where you would normally expect reasoned academic discussion have already decided that this subject is too hot to handle.

Interesting times !

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JobKeeper : Welfare for the Wealthy ?

You probably are aware that the first version of JobKeeper was plundered by businesses who, in many instances, were not adversely impacted by COVID-19 and in quite a few cases these were businesses who actually increased revenue and profits during the first twelve months of JobKeeper.

There has been a massive government coverup mainly to protect the architect of the scheme, Josh Frydenberg, from the adverse publicity and blame surrounding the bungle.

Newscorp have so far been silent on the matter and Sky after Dark have actually been mounting a protection racket for Frydenberg and blaming Labor for voting for the scheme. Not so the normally Right leaning Spectator Australia who, through their conservative columnist Judith Sloan, have stuck the boot right in ; this is Sloan in the Spectator Australia :

“But when it comes to government outlays, the wildly expensive JobKeeper will rank as the single most irresponsible and reckless spending program ever undertaken by a government. Lasting only 12 months, JobKeeper has ended up costing the Australian taxpayer close to $90 billion. It makes the Pink Batts and Building the Education Revolution programs look completely amateurish in terms of government spending for dubious benefit.”

The problem started with Josh, in his haste to show business that he was on their side, announcing a massive public spending scheme called JobKeeper. Payments of $1500 a fortnight were to be available to workers at firms that, depending on the size of the company, saw their turnover fall by at least 30 or 50 per cent during COVID-19. Josh told those businesses that if they reckon – perhaps on the toss of a coin – that they could lose revenue attributable to the impact of COVID on their business then they were entitled to dip into a pool of public money to enable them to continue to pay their workforce. Quite naturally many business enterprises snapped up the offer particularly when it was realized that the handout was open ended ; in other words you could keep the money even if you business did no suffer a revenue downturn and even if your business prospered during COVID.

So, the money was only meant to go to employers suffering material drops in revenue, yet it is estimated that $368 million was paid out to entities that more than tripled their revenue in the June quarter last year.

Clearly in a scheme dealing with public funds, you would expect that recipients of the government handout would be obliged to refund the money if in fact their revenues did not diminish during the period under review and particularly if they were able to increase revenue and profits. But according to Josh that’s not the way the scheme was designed – unlike Robodebt – so in effect it was a handout with no strings attached.

To be fair, some businesses have repaid some of the money received from taxpayers. Most notably retailer Harvey Norman repaid $6m in JobKeeper in August after it posted record profits in the 2020-21 financial year. The repayment is less than a third of the estimated $22m the company and its franchisees received.

There are several aspects of this bungle that are disturbing. The first is that it occurred at all on such a large scale but more importantly that the government have tried to cover it up and put the Treasurer in witness protection. At the very minimum there should be an open enquiry probably a Royal Commission.

Tonight, Sixty Minutes is doing a piece on this massive rorting of public money but evidently Frydenberg was not available to be interviewed : perhaps he had to wash his hair !

 

Cartoon by Alan Moir (moir.com.au)

 

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Oiks!

‘Working class Oiks’ was how my boss, in the office I worked in London, saw the Rolling Stones who had just burst on to the pop scene to thrill those of my generation: they gave London in the early 1960s what the Beatles had given to Liverpool and the swinging sixties were well underway.

Oik was a nasty slang term often used by the English upper classes in a derogatory sense to describe a person regarded as inferior, ignorant, ill-educated, or lower-class. That didn’t worry us, we liked Mick’s swagger and the non-conformist insolence of the Stones.

Now Charlie Watts, their impassive drummer for more that half a century has died: he never said much and showed little emotion but he held together the Stones, Mick and ‘Keef’ Richards, Bill Wyman and all too briefly Brian Jones and later Ronnie Woods.

I didn’t know Charlie Watts but I was raised in South London in those post-war years and I went to school a few miles away from where Mick went to school in Dartford – we played his school team in soccer.

At that time in the early 1960s the sharp young blades around town were very much into flash suits, stove-pipe pants and winkle picker shoes. There was a certain East End Jewish tailor, off the Whitechapel Road as I recall, who had caught the eye of Charlie Watts and his mates and they had their jackets and suits made up there.

Word spread and I ended up getting a suit made by this same tailor – there was a photo of Charlie in the window of the shop modelling a suit. In those days the fashion was for two buttoned, short jackets, Bum-freezers as they were known.

Later in 1963 I took a ten pound assisted passage to Australia – best investment I ever made – the suit stayed at my parents home and probably ended up in an op shop as I married a Queensland girl and stayed in Australia.

Meanwhile, Mick and Keith opened up a corner shop in leafy Surbiton to see them through their retirement, just ask Michael Caine:

 

 

Farewell, Charlie Watts, you entertained us for a generation – not bad for a classy oik!

 

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When news is not enough : we make it up !

Sky News Regional – a new free-to-air television offering – has just launched in regional areas across Australia with such luminaries as Alan Jones, Andrew Bolt, Cory Bernardi, Paul Murray, Rowan Dean and Peta Credlin hustling to get into our loungerooms, to flood regional airways between Cairns and Kalgoorlie, with anti-immigration rhetoric, climate denialism, conservative claptrap and vaccine misinformation all masquerading as news.

In the meantime, Sky News has been banned from uploading any new content to YouTube or live streaming for a week after violating the social media site’s misinformation policies.

This follows Alan Jones – the poster boy for after dark conspiracies – being dumped from his regular Daily Telegraph column after his misinformation on COVID-19: Newscorp said that Alan Jones ‘no longer resonates with our readers’.

At least six videos from Sky News Australia hosts Alan Jones, Rowan Dean and Rita Panahi have been deleted from YouTube for spreading COVID-19 misinformation about the effectiveness of hydroxychloroquine or ivermectin as treatments.

You may well wonder why it falls to the Google-owned YouTube to be governing content quality coming from Sky News Australia and why the Australian Communications and Media Authority (ACMA) is not acting against the divisive, dishonest and damaging enterprise that has become known as Sky-after-Dark: after all ACMA is a government-controlled entity who tell us that their job is to regulate communications and media to maximise the economic and social benefits for Australia. The reason that ACMA have failed to act and left it to a foreign social media site to provide content governance on Australian media output is possibly due to the fact that they have no teeth and this Liberal government is unlikely to change that situation while they continue their unhealthy relationship with the Murdoch organisation and its entities.

What is at stake here is the right of a so-called news organisation to deliver far-right conservative rhetoric, conspiracy theories and outright lies under the guise of news but avoiding the inconvenience of fact-checking, research or traditional investigative journalism. They label it as ‘opinion’ which means that none of these standards apply: this is the business model that Murdoch successfully adopted with Fox News in the US and which his organisation are trying to replicate through Sky News in Australia.

The new free to air offering will potentially reach millions across the nation as a result of the partnership it has developed with two television networks: WIN and Southern Cross Austereo.

Two former prime ministers have warned us about the dominance of the Murdoch media in Australia and the control exerted on our politicians. Kevin Rudd told the Media Diversity Enquiry that:

The “Fox News-isation” of the Australian media was well underway thanks to Sky News Australia breeding climate change denialism and encouraging far-right political extremism, Mr Rudd said.

Malcolm Turnbull told the Enquiry that :

News Corp had evolved from a reasonable media organisation into a highly partisan one which is a danger to democracy. “The most powerful political actor in Australia is not the Liberal party or the National party or the Labor party, it is News Corporation,” he said.“ And it is utterly unaccountable. It is controlled by an American family and their interests are no longer, if they ever were, coextensive with our own.”

Even James Murdoch, the younger son of Rupert, recently resigned from the board of News Corporation citing “disagreements over editorial content”. He told US regulators, he disagreed with some “strategic decisions” made by the company. Whilst he was not specific, he had previously spoken out against the climate change denialism promoted by the company and its editorial positions.

The question is how do we as a society regulate a news organisation so that there is a clear distinction between what is properly researched and balanced ‘news’ coverage and what are alternative facts and the opinions of a group of right-wing conservative ratbags, masquerading as journalists. Clearly, they have a right to freedom of communication and free speech as they will frequently remind us but when it comes to manufacturing fake news and conspiracy theories it is time to call them out.

At an early stage in its evolution, FOX News in the US carried the slogan ‘Fair and Balanced’ but they walked away from that when they cottoned on to the revenues they could generate from far-right fakery, spurious opinions and alternative facts.

Take care, Australia, these people have an agenda: remember the IPA wish list to which they enthusiastically subscribe –

Item 14: Abolish the Australian Communications and Media Authority (ACMA)

Item 15: Eliminate laws that require radio and television broadcasters to be ‘balanced’

Item 50: Break up the ABC and put out to tender each individual function

Item 51: Privatise SBS

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They would not listen, they’re not listening still. Perhaps they never will !

Those words were taken from Don Maclean’s ballad Vincent a tribute to Vincent van Gogh. The way this government toys with us, it’s enough to make you want to scream as Norwegian expressionist artist Edvard Munch may have said back in 1893 when he created his cry from the soul of humanity.

When it comes to the Morrison, Joyce government, not only do they not listen, they don’t care what we think, they are driven by their own egos, ideology and big business interests.

The recent G7 meeting in Cornwall, England in May came out with a commitment to stop international financing of coal projects by the end of 2021 and to progressively phase out such support for all fossil fuels, to meet globally agreed climate change targets. Australia is not a member of the G7 but Scott Morrison was there as an observer but evidently missed this bit, possibly because he was quaffing scrumpy cider and eating Cornish pasties in appropriately quaint pubs.

Do you remember the Northern Australia Infrastructure Facility better known as the NAIF, set up in 2016 with a bank of $5 billion to provide loans to new and innovative ventures in the North of Australia – essentially from the Tropic of Capricorn North. At the time it was thought by some naughty left-wing people that this may be a National Party slush fund but to counter any such mischievous thinking, it was written into the legislation that loans could only proceed with the approval, not only of the NAIF board, but also the government of the relevant state or territory – essentially Queensland, the Northern Territory and Western Australia which, the more perceptive of you will have noted all have Labor governments.

After five years the NAIF had to be reviewed and among the matters that the federal government thought appropriate was to bypass the approval of the state and territory governments (to streamline the process you understand), to allow the federal government not only to ‘lend’ money to worthy enterprises but also to take an ‘equity’ position in such enterprises – that means that the money doesn’t actually have to be paid back which was an innovation sought by the National Party.

The state veto got up the federal government’s nose when they wanted to lend money to Adani. If you remember, Queensland Premier Annastacia Palaszczuk took the position that money should not be loaned to the Adani project writing to then Prime Minister Malcolm Turnbull stating

‘…my Government provides formal notification to the Commonwealth that financial assistance should not be provided to Adani for the North Galilee Basin Rail Project. As such the Government is exercising its veto right under section 13(4) of the Investment Facility Mandate in response to the Adani loan application.’

In January last the NAIF Board approved loan funding of $280 million for the Kaban Green Energy Hub a renewable energy project located in the Atherton Tablelands of Far North Queensland. The project consists of a 157 MW wind farm with approval for a 100 MW battery backup and a network upgrade. It came as a surprise when the minister responsible for the NAIF, National party stalwart Keith Pitt, decided to use his discretion under the act and stop the loan. He said at the time that the funding was ‘inconsistent with the objectives and policies of the commonwealth’.

So, quite a few eyebrows were raised when the NAIF recently announced a $175 million loan to develop a new coalmine in central Queensland.

So far the minister has not exercised his discretion to veto this loan of public money so we must assume that it is ‘consistent with the objectives and policies of the commonwealth’.

So, to those of you who may have cynically said that the NAIF was a National Party slush fund : it seems you were spot on !

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“Reputation, reputation, reputation!” O, I ha’ lost my reputation, I ha’ lost the immortal part of myself, and what remains is bestial!

There has been a flurry of politicians to our defamation courts in recent times. These delicate petals are concerned that their reputations have been sullied and, as noted by Shakespeare in Othello once their reputation has been lost ‘I ha’ lost the immortal part of myself, and what remains is bestial’. Perhaps Peter Dutton was ‘left with the bestial part’ when he ventured into the defamation courts to sue the pants off a citizen – but more of this later.

It has always been a point of contention in the arena of free speech that the only remedies for those who believe their reputations have been tarnished was either to challenge the offender to a duel or drag him before our courts of justice in an action for libel or slander, now collectively termed defamation. Do you remember how the Marquess of Queensberry in 1895 was somewhat peeved that his son Alfred was having an intimate affair with playwright and poet Oscar Wilde?

Queensberry left his card at Wilde’s club (as you do) with the scrawled message “For Oscar Wilde, posing as a somdomite” – not known for his spelling capabilities was the Marquess. Even so, this prompted Wilde to sue Queensberry in Libel however, things didn’t go too well and Wilde withdrew the action. Inevitably the case had revealed publicly that Wilde was an homosexual and that he had engaged in acts of ‘gross indecency’ which by the standards of the day were a crime : he was subsequently charged under the criminal law and after several trials with hung juries he was convicted and served two years in prison – his career was also brought to an end and he spent his final days in exile in France.

Politicians don’t generally seek to drag people through the courts with claims that they have been defamed and their otherwise impeccable characters and reputations tarnished. The reason for this is largely due to politicians not having impeccable characters and reputations but more specifically, having been granted ‘parliamentary privilege’ to say what they want in parliament without the risk of being sued, it has been considered as unseemly for them to mount actions against anybody who hurts their feelings beyond the parliament.

Which brings us to Peter Dutton who made it known in March that he would take a more aggressive stance against false and defamatory statements made about him online. ‘Spud’ as he is fondly known was as good as his word when he initiated a defamation action against refugee advocate Shane Bazzi. Dutton had told Sky News that female refugees held on Nauru were claiming they needed to come to Australia for an abortion following rape, but changed their minds when they arrived. “You could question whether people needed medical attention,” he said. Bazzi called Dutton a ‘rape apologist’ as well as a few other choice names notably beginning with an F and a C. In the preliminary hearing the appointed judge, justice Richard White, ordered the parties to attend mediation by 31 August and suggested the case could be settled without a trial.

What our politicians, including Porter and Dutton seem to overlook when they rush to the steps of the court is that judges – unlike lawyers – don’t really want to take up the time of the court with these defamation actions which in many cases (see Barilaro) are quite petty and even if the politician wins, their dubious reputations are rarely enhanced.

Mediation merely requires the parties sit down with a mediator, frequently appointed by the court, and discuss their differences and arrive at a compromise thus saving themselves and the courts a lot of time and money. The idea being that once an agreement between the parties has been struck and approved by the court, they go their separate ways and avoid the temptation of yelling to the media, “I won, you lost”. Not that this discouraged Christian Porter who, following mediation and having agreed to withdraw his action against the ABC, called it a “humiliating backdown” by the broadcaster, despite not having obtained an apology or the damages he had sought.

When mediation fails or is not adopted by the parties – as with the case involving Ben Roberts-Smith – the matter will go to court and the parties will go at each other in an adversarial fight to the death, not unlike the duels of days past. Whilst not a politician, Roberts-Smith has much to lose in defending his character against charges made by the Nine media network and relating to his army service in Afghanistan. A battle of the Titans of Australian media with Roberts-Smith is an executive with Seven media. His adversary, Nine media are adopting the defence of ‘truth’, a complete defence that they will be called upon to demonstrate as the case progresses. Should he fail, Roberts-Smith will be placed in much the same boat as Oscar Wilde, with the possibility of criminal charges to follow.

Mounting defamation actions is not for the faint hearted and much like entering a casino, you must be prepared to lose and to lose heavily if the cards don’t fall your way.

Shakespeare explains it well: “Who steals my purse steals trash; ’tis something, nothing; ’twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.”

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The life of a little girl and our dignity as a nation, hang in the balance

Peter Dutton has a particular view on children born in this country of parents who had sought asylum after entering Australia without the proper paperwork. ‘Spud’ called them Anchor Babies.

What ‘Spud’ was trying to imply was that asylum seekers who had babies, frequently whilst in detention, did so for the purpose of using their babies to ‘anchor’ their ability to stay in Australia.

This is nonsense as the The Australian Citizenship Act does not confer Australian citizenship on a person simply by virtue of them being born in Australia. Section 12 of the act states :

Citizenship by birth

(1) A person born in Australia is an Australian citizen if and only if :

(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

So the notion of ‘anchor babies’ as applied to the ‘Biloela family’ is a mischievous fallacy promoted by the Morrison government as Australian law does not allow the parents to use their Australian born babies – Tharunicaa and Kopika – as an automatic right to residency. However, the minister does have discretion to allow them to stay but this is rarely if ever exercised : this government it seems would prefer to fight the matter through the courts and in the meantime hold the family in detention, at a reported cost of six million dollars a year

Now three year old Tharunicaa is in hospital in Perth, she had reportedly been unwell for ten days with high temperatures, vomiting and diarrhoea, as her family called for more medical help. It now appears that she has untreated pneumonia that led to a blood infection.

Tharunicaa, together with her parents and her sister, Kopika, have been in detention on Christmas Island since August 2019.They are the only two children in immigration detention in Australia.

The family had initially settled in the Queensland town of Biloela where they were welcomed and quickly became contributing members of the community until early one morning their home was raided and the family was taken into custody by Australian Border Force personnel in March 2018 – they have been detained since.

The family has been engaged in legal appeals since 2012. Tharunicaa’s father and mother are both Sri Lankan nationals who arrived in Australia by boat seeking asylum in 2012 and 2013 respectively. They arrived without visas and are considered in law to be “unlawful maritime arrivals.” Although Tharunicaa and six-year-old Kopika were born in Australia, they too are “unlawful maritime arrivals”.

Former Home Affairs minister Peter Dutton (now Defence minister but with considerable authority within Cabinet) has repeatedly said the family is not owed protection. They are part of a caseload who had their claims for refugee status determined and denied under a “fast track” process. The Australian Human Rights Commission has found significant issues with the “fast track” process and has called for a compassionate response to this family.

The current drawn out legal action centres around the obligations of the government to consider whether Tharunicaa can apply for a visa in Australia. This can only happen if the new Home Affairs Minister (Karen Andrews) personally intervenes, which it seems she must in the prevailing circumstances.

Only minister Andrews or Immigration Minister Alex Hawke have the power to allow the family to live in the community whether it be on Christmas Island or in Biloela on bridging visas. Andrews recently said she was still taking advice on whether she would allow them to live in the community. Her difficulty will come from Dutton who is taking this issue personally. But both he and Morrison are alert to public calls for this to end. They would both be aware that in 2018, following a similar medivac situation a Queensland coroner found delays in diagnosing and removing Iranian asylum seeker Hamid Kehazaei from Manus Island directly contributed to his death from septicaemia.

Karen Andrews, as the senior minister responsible, is under increasing public pressure to do more for the family and she should now accept an offer by our more compassionate neighbours, New Zealand, who have indicated that they are happy to take the family and resettle them.

However, we know from past experience that what seems sensible, humane and compassionate doesn’t necessarily intrude on the stubborn intransigence of ‘Spud’ Dutton. Morrison could step in but he is wary of the Right wing faction led by Dutton. So this could be a big test of his authority as prime minister.

Whatever happens, the next few days are critical and this little girl should she survive, cannot be returned to detention on Christmas Island or elsewhere.

 

 

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Is Jack as good as his master ?

In a move that would have Karl Marx and George Orwell high-fiving on Broadway, New York Uber (and Lyft) drivers have decided to take on their masters (who by a quirk of capitalist legal fiction are not really their masters according to the law) and create an ‘app’ that will challenge the dominance of these ride-share gurus.

It has dawned on these drivers that they may have been conned into believing that the GIG economy would make them self-employed masters of their own destiny.

As an aspiring self employed driver they may have missed the bit about having to supply and maintain their own vehicle, pay for their own fuel, insurance and repairs out of their own pockets with their share of the fare they have collected being considerably less than that of the owner of the ‘app’ who, remember, is not their employer. Thus has no obligation to provide employment conditions such as paid holidays and sick leave, workers compensation or superannuation. In fact theses workers are a modern version of the serf of feudal times.

The creation of this gig was a capitalist’s wet dream : create an ‘app’ to give an electronic access point to the traditional taxi market and then encourage a group of people to think of themselves as self-employed while you exploit them and watch the money roll in.

In New York, a number of these drivers are getting together and forming a co-operative where the drivers become shareholder owners of the business thus participating in the profits and genuinely becoming entrepreneurs in a self employed enterprise. What these drivers have done is to cut out, not the middle man so much, but the leech who seeks to take on the role of the Lord of the Manor in his feudal paradise.

In Australia matters have not yet evolved to the stage they have in New York with our sardonically named Fairwork Commission – also known as a grazing paddock for Liberal Party mates, currently bulging at the seams with a President, two Vice Presidents, nineteen Deputy Presidents and twenty commissioners with a couple more on the reserves bench – maintaining that gig workers are self employed and that they just love the flexibility of low paid work.

In the UK things have taken a different turn with the Supreme Court of the United Kingdom unanimously dismissing an appeal brought by Uber against earlier rulings. The Court determined that Uber drivers are “workers” for the purposes of relevant employment legislation and are entitled to, among other things, being paid at least the minimum wage, and to receive annual paid leave, paid sick leave and rest breaks.

The UK decision, which may be influential on any future court challenge in Australia, looked at five key criteria to determine that the drivers were workers who were subject to the control of their “employer”.

These were:

  • Uber sets the fare for rides booked through the app and drivers are not able to charge more than the fare calculated;
  • Uber specifies and imposes the terms on which the drivers perform their services;
  • the drivers’ choice about whether to accept requests for rides is constrained by Uber, for example by penalising drivers who decline trips too frequently;
  • Uber exercises control over the way drivers perform their services, via a rating system; and
  • Uber restricts communications between passengers and drivers to prevent any continuing relationship beyond an individual ride.

The next move in Australia will be to take the issue to the courts for determination but in the meantime a driver owned co-operative seems like a good alternative for the drivers : after all it doesn’t take much to set up an ‘app’, does it ?

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A Humiliating Backdown – Really?

Christian Porter just doesn’t know when to leave sleeping dogs lie – he just has to have another twist of the tail, another kick in the guts.

After agreeing during mediation to withdraw his expensive defamation action against the ABC and their investigative journalist, Louise Milligan, to wear his own legal costs, not to insist that the ABC report in question be taken down and not to receive any of the damages he had been hoping for. He took these body blows like the Black Knight in Monty Python and the Holy Grail responding that this was just a scratch, a mere flesh wound, and that the ABC had been forced into a “humiliating backdown”.

The facts of the matter are that he was wisely advised during mediation to drop his dalliance with defamation which, had it gone into the court room could have left him with a shredded reputation and very light on in his bank account; although it had been rumoured that a well-heeled and ABC hating Liberal Party donor was funding his legal costs.

While Porter was trumpeting that he had had a win and the ABC a humiliating backdown, the ABC issued this statement:

“Christian Porter has decided to discontinue his defamation action against the ABC and Louise Milligan.

All parties have agreed to not pursue the matter any further. No damages will be paid.

The only costs that the ABC will be paying are the mediation costs.

The ABC stands by the importance of the article, which reported on matters of significant public interest, and the article remains online. It has been updated with this Editor’s Note:

On 26 February 2021, the ABC published an article by Louise Milligan. That article was about a letter to the Prime Minister containing allegations against a senior cabinet minister. Although he was not named, the article was about the Attorney-General Christian Porter.

The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted.

The ABC stands by our investigative and public interest journalism, which is always pursued in the interests of the Australian community.

The ABC stands by Louise Milligan, one of Australia’s foremost and most awarded investigative journalists, and all our journalists in their independent and brave reporting on matters about which Australians have a right to be informed.

Media contact

Sally Jackson | ABC Communications”

Perhaps Mr Porter could learn something from Kenny Roger’s The Gambler – all together now:

You’ve got to know when to hold ’em
Know when to fold ’em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealin’s done.

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He Said, She Said !

Warning references to sexual assault and rape are contained in this article.

Normally I wouldn’t be repeating quotes from Peter Dutton, particularly as Spud has made it known that he will sue anybody who doesn’t show him the respect to which he feels he is entitled. Even so, when he glibly dismissed sexual assaults and our justice system, referring to a rape allegations as coming down to a contest of “he said, she said,” he did have a point.

Much publicity has followed the sexual assault case involving NRL footballers Jack de Belin and Callum Sinclair. The first trial resulted in the jury being discharged in March 2020 after having failed to reach a unanimous verdict : the alleged assault described as aggravated sexual assault had taken place in December 2018 so it had taken two years to get to court. A second trial was ordered and we now know that the jury after five days deliberation and having been given the opportunity of a majority decision were unable to reach a verdict on five of the six charges and acquitted de Belin on that charge – a third trial is unlikely.

Last week in the second trial of another footballer Jarryd Hayne – the jury in the first trial had been unable to reach a unanimous decision – resulted in a guilty verdict on one of two charges – he was found ‘not guilty’ of the charges of aggravated sexual intercourse without consent inflicting actual bodily harm, but was found guilty of the sexual intercourse without consent charges – he was sentenced to five years and nine months imprisonment of which he must serve three years and eight months – he has already lodged an appeal.

In the context of historical rape allegations, that is those not reported to police immediately after the assault, the process of gathering forensic and compelling evidence is greatly diminished. The police, as a matter of procedure, must assemble a bundle of evidence sufficient to convince a prosecutor that a successful prosecution can be mounted and persuasive enough to sway a jury, to a standard that will convince them beyond a reasonable doubt that the assault has actually taken place ; that penetration [in the case of rape or sexual assault] did in fact occur and that this was without the free and willing consent of the victim – injured party or survivor are alternative descriptors but the English language has limitations in how to describe with dignity a person who has been assaulted.

If the assault is historical as has been the case in matters raised recently in connection with our parliament and its officers, the task of the complainant and the police becomes even more difficult and some would say almost impossible to mount a case unless the defendant admits the assault which is unlikely to occur.

In the case of a federal politician accused of an historical sexual assault we were told that the rule of law must apply to the extent that, because the victim had since committed suicide, it was inappropriate for an enquiry to proceed or even for the alleged assailant to be interviewed by police.

The case of Brittany Higgins falls into the category of an historic event having allegedly occurred in March 2019 but not formally reported for investigation by police until some two years later. Despite the publicity, the investigation will encounter all of the hurdles that historic cases face : the lack of forensic evidence being foremost and of course the alleged assailant will have the presumption of innocence, the right not to answer any questions and the high standard imposed on a jury to achieve a conviction if charges are ever laid and the matter proceeds to court. No charges have been preferred at time of writing.

In the UK, over the past five years, cases reported to police and initially recorded as rape have risen sharply. However, the proportion making it to court (prosecutions) in that time has more than halved. In the year to March 2020, just 1.4% of rape cases recorded by British police resulted in a suspect being charged. In the same year 58,856 cases of rape were recorded by police forces in England and Wales, these led to just 2,102 prosecutions. In Australia only one in 10 reported cases of sexual assault results in a conviction.

The assault itself will be a traumatic event in the life of any young woman – or young man – but the way our justice system is arranged, the pain will only get worse as the lumbering processes of the law takes over, if the assault is as recommended by the authorities, reported shortly after it has occurred.

All of the state jurisdictions have similar procedures designed not so much for the benefit or well being of the injured party but rather, to meet the demands of our adversarial legal system. The advice from the Australian Federal Police in the ACT illustrate the situation and give a hint to the tortuous procedures about to take place :

“… don’t shower, drink liquids, smoke or change your clothes following a sexual assault. This will assist police and medical staff to collect forensic evidence that may belong to the offender and be used if the matter goes to court.”

The injured party will be admitted to a rape suite or a hospital, have their clothing replaced with a smock, have swabs, probes and photographs taken of any injuries or bruising particularly in the genital area ; all of which will at a later date be trawled over in court by a jury to establish the degree of physical injury to support the prosecution case.

The alleged offender will of course be granted the presumption of innocence and will not be required to make any statement or give evidence unless inclined to do so – the burden of proving the case beyond a reasonable doubt rests wholly with the prosecution.

The injured party will, however, be subjected to excruciating cross examination and probably humiliation at the hands of the defendant’s barrister. The prosecution will have to establish that the assault not only took place and that penetration to one or more orifices occurred but that this happened without the willing consent of the complainant. It is generally the law that a person cannot be considered to having freely consented if they were under the influence of alcohol or other substances or if they are asleep or otherwise physically helpless at the time of the offence.

The jury will then endeavour to determine the guilt or innocence of the defendant and must establish this to the required criminal standard, beyond a reasonable doubt. If the jury, or even one jurer, in the case of a unanimous decision, have any reasonable doubts based on the facts as presented, then they must acquit. To assist a hung jury a judge will frequently allow a majority decision of eleven to one but even this didn’t assist in the de Belin case.

We continue to follow the principle known as Blackstone’s Ratio that “It is better that ten guilty persons escape than that one innocent suffer.” But, the inevitable question that arises is this : is our system of law and justice fit for purpose when it comes to sexual assault or is it an absurd pantomime serving only the legal fraternity and leaving the aggrieved parties humiliated, abandoned and disillusioned ?

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Be Thankful for small Mercies !

It’s worthwhile quoting verbatim from The Guardian on the good news flowing to free to air television viewers in regional Australia who have been the subject of the Sky-after-Dark muppet show since regional television operator WIN started broadcasting into the regions including where I live :

“Sky News Australia will lose a large chunk of its audience in July after it was dumped by regional broadcaster Win, which has carried the pay TV channel in Tasmania, regional Western Australia, Victoria, Queensland and southern NSW since August 2018. The deal saw Sky After Dark beamed into unsuspecting free-to-air households which had previously been immune to Andrew Bolt, Peta Credlin and Alan Jones unless they had a Foxtel subscription.

Three years ago, Sky was trumpeting this larger footprint when it signed the historic deal with Win to launch in 30 markets to a potential audience of 8 million people.

But along came Nine Entertainment last week to ruin the party by inking a new seven-year deal to broadcast its metropolitan free-to-air television channels 9, 9GO!, 9GEM and 9Life into the regional markets, displacing Sky because it has no room.

Sky News did not respond to a request for comment.”

This is such good news in so many respects. As a pay television broadcaster Foxtel/Sky has a minimal audience for the far-right rantings of Jones, Bolt, Dean, Credlin, Murray and others. They rely heavily on fringe right-wing politicians to guide the viewers and spin their conspiracy theories : Craig Kelly, Barnaby Joyce and Matt Canavan are luminaries in this regard.

Sky were trying to create a mirror image of their US compatriot, Fox News, in Australia but clearly the pay TV subscribers were not going to achieve this for them. With their access to regional free to air Murdoch had a potential audience of some eight million additional viewers to influence and peddle his brand of snake-oil.

Now it’s not going to happen and Sky can return to its echo chamber and no longer affront the good folk of regional Australia, unless Lachlan can convince a very compliant coalition to give him a free to air television licence or find another carrier – let’s hope not !

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Freedom of Speech is Dead!

“Free speech is dead and controlled by leftist overlords.” Thus the shrill voice of Donald Trump Jr. informed those who were prepared to listen to him. I know, I know you are saying why would anybody listen to a junior Donald Trump? It’s akin to listening to a fence post although the latter serves a very real and important function that cannot be attributed to the former.

There is no legal responsibility for any privately-owned platform to host anybody. Indeed there is a strong argument that social platforms such as Twitter and Facebook have a duty of care to ensure that what they allow on their platforms – dare I say what they publish – should be moderated to standards generally accepted within our community.

Trump senior has used Twitter constantly for four years to peddle his misinformation and lies and so far he has been able to get away with it. But when he uses a privately owned social media platforms to whip up hatred, perpetuating unfounded claims of a stolen election with no supporting evidence, that’s another matter entirely.

In weighing up the rights and wrongs of shutting down Trump’s Twitter feed I thought of how it was before these platforms were created. In those days, if we had something to say we would write to out local newspaper and take our chances on being published. If you live in Queensland as I do, you would write to a News Corporation publication as there are no others.

But should you want to write a critique of an article by Andrew Bolt for lack of balance or Miranda Devine for lack of objectivity or accuracy that would immediately go into the bin at News Corporation offices.

So, freedom of speech it seems to me is very much in the eye of the beholder. Rupert is evidently very much in favour of Donald Trump’s rights to speak freely and without censure. The memo it seems went out to his editors, print and online, that he was aghast that the leader of the free world should be so arbitrarily shut down by Twitter and Facebook. Sky-after-Dark went off like the proverbial ‘frog in a sock’ to support Donald’s right to his constitutionally guaranteed freedom to speak his mind. But they seem to forget that we probably all agree with the right of the president to speak on matters of global and national importance but that doesn’t include the right to incite violence or to tell lies.

If he wants to communicate with the world he merely has to call a press conference with the White House press pack in attendance and it would – at least for the next ten days – be considered by all the major networks for national and global coverage, but he would be questioned: and that’s as it should be.

In my view Twitter and Facebook have every right, indeed a duty to ensure that their platforms are suitably moderated – just a pity they didn’t think about it earlier.

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Assange has a Window of Opportunity!

In a fairly lengthy judgement, District Judge (Magistrates’ Court) Vanessa Baraitser of the Westminster Magistrates’ Court in London has given Julian Assange breathing space by denying the application for his extradition to the USA, made by the Trump administration. This extradition essentially for publishing information provided to Wikileaks by Chelsea Manning was not pursued by the Obama administration who evidently considered that issues of freedom of speech would make a prosecution unlikely : Obama also commuted the sentence of Chelsea Manning who had been the original source of the Wikileaks releases.

Interestingly one of the arguments against the extradition raised by Assange’s team was that there exists in international law a Right to Truth and that in publishing the information Wikileaks, despite the embarrassment to the government of the USA, was merely publishing the truth. The Judge rejected that defence :

138.The defence have not established that the principle of the “right to the truth” is a legal rule that is recognised in either international law or domestic law. They identify no international convention or treaty that enshrines it as a free-standing legal right,still less one that has been ratified by the government and incorporated into domestic law. I accept that the phrase “right to the truth” appears in UN resolutions adopted by several UN bodies, but I have been provided with no authority to demonstrate that this translates into a right enforceable in English courts. I therefore reject the defence submissions that this principle would render Mr. Assange’s acts lawful in this jurisdiction.

This finding will no doubt be the subject of much interest and discussion in journalistic circles.

Judge Baraitser in her judgement skimmed over or dismissed several arguments concerning freedom of speech and other human rights issues and went straight to the Extradition Act 2003 (UK) and the physical and mental condition of Assange and his suitability for extradition balanced with the possibility or indeed probability that he would seek to commit suicide while in detention in the USA.The section of the act that the judge has relied on reads :

91 Physical or mental condition

(1)This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.

(2)The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.

(3)The judge must—

(a)order the person’s discharge, or

(b)adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

Accordingly, with ample medical and psychiatric expert evidence the Judge made the Order [at 410]

“I order the discharge of Julian Paul Assange,pursuant to section 91(3) of the Extradition Act 2003.”

Even so on Wednesday UK time an application will be made to release Assange on bail pending what is likely to be a long and drawn out appeal process, if that course is adopted by the incoming Biden administration. Based on the judge’s findings concerning Assange’s ‘physical or mental’ condition it would seem that the bail application must surely succeed rather than continue his incarceration at Britain’s Belmarsh High Security jail where COVID-19 is also a very real risk : in the judgement the judge noted [at 346] that ” I find that Mr. Assange’s risk of committing suicide,if an extradition order were to be made,to be substantial”.

The difficulty for Assange is that, whilst he may be bailed and ultimately acquitted in the UK there is always the possibility that, should he return to Australia or another jurisdiction outside of the UK, he could again be confronted with an extradition request from a future vindictive US administration unless, of course, he receives a pardon from incoming President Biden or, less likely, the outgoing Trump administration.

We shall see, but at least things are heading in a positive direction for Assange despite his having been all but abandoned by the Morrison government.

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Now would be a good time to pick up the phone to Beijing, Scomo !

I’m paraphrasing some media reports from the past week :

“An Australian expeditioner has been medically evacuated from Antarctica, following a multinational effort by land, air and sea that spanned thousands of miles on the remote continent.

The Australian, United States and Chinese Antarctic programs collaborated on the five-day operation, which Australian officials on Friday called “an outstanding success” thanks to teamwork and, of course, good weather during the Antarctic summer.

“The synergy of operating capabilities, incredible expertise and a favourable weather window enabled us to bring the patient back from Antarctica to Australia within a week,” said Kim Ellis, the Australian Antarctic Division director, in a statement.

Officials declined to release information about the individual, citing medical confidentiality, but said the patient’s condition is not related to COVID-19. The patient had been stationed at the Davis research station in east Antarctica.

The Chinese icebreaker MV Xue Long 2 happened to be in transit to China’s Zhongshan station, about 75 miles from Davis, officials said. On Dec. 20, the ship’s helicopters transferred a team of Davis expeditioners to a site 25 miles inland, where they spent several days constructing a ski landing area or skiway.

Australian expeditioners constructed a skiway for aircraft equipped with skis at a site near the Davis research station.

Meanwhile, 870 miles east along the southern Antarctic coast, another team worked to prepare a glacial runway at the Australian-operated Wilkins Aerodrome. The aerodrome is a terminal for intercontinental air service, located about 40 miles southeast of Australia’s Casey Station.

The U.S. flew a ski-equipped aircraft 1,300 miles from its McMurdo Station in Antarctica to the aerodrome, where it picked up an Australian doctor. It then made a 1,700-mile round trip to retrieve the patient from the skiway near Davis and return to the aerodrome.

From there, an Australian Airbus A319 picked up the expeditioner and flew some 1,800 miles to the city of Hobart, Australia, arriving just before Christmas Eve.”

The weather in Antarctica briefly offered a window of opportunity : the diplomatic window has also opened briefly – a wise leader would seize this opportunity to extend the hand of friendship, cooperation and mutual respect to the Chinese in recognition of their unconditional and vital support in this medical evacuation… and then keep talking.

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Red’s Under the Bed in Tasmania or Uncle Eric’s Got Your Back !

One of the odd provisions of our now dilapidated and ramshackle Constitution is the manner in which the composition of our Senate is mandated : each original state gets twelve senators and the mainland Territories, two each – a total of seventy six. Paul Keating once designated this esteemed group of odd balls as ‘unrepresentative swill’.

What Keating was pointing to is the way that some states perhaps have a disproportionate influence on our upper House and the wisdom emanating from the Red Chamber. For instance, Tasmania with a population of around half a million has the same Senate representation as New South Wales, with a bit over eight million, Victoria at six and a half million and Queensland around five million and so on.

So, with this clear imbalance you would be forgiven if you thought that our Senate is supporting a gerrymander : defined as ‘a practice intended to establish an unfair political advantage for a particular party or group by manipulating boundaries (and populations) in such a way as to favour one group over another’.

In effect, the make up of our Senate does clearly favour the likes of Tasmania and to a lesser extent the Territories by giving their respective senators disproportionate influence. Hence the need periodically for the government of the day to ‘bribe’ certain senators to get their vote on a piece of scurrilous legislation to, for instance ban humane medical evacuation of sick and ailing refugees from remote Pacific islands – looking at you Senator Lambie !

So why do I raise this now, you may ask ? Well it was during the week when Senate Estimates were underway – a bit like a Star Chamber where senators get to ask difficult questions of public servants and others : questions like “who didn’t get a Cartier watch at Australia Post ?” or trick questions like “how much did you pay for a block of land at Badgery’s Creek valued at $3million ?”

Or as happened when Tasmania’s crazy uncle, Eric Abetz fronted up and asked three Australian citizens of Chinese heritage :

“Can I ask each of the three witnesses … to tell me whether they are willing to unconditionally condemn the Chinese Communist Party …”

What an odd question even from uncle Eric. Can you imagine being asked in another setting whether you were prepared to unconditionally denounce and condemn the Liberal Party of Australia : the National Party not so much of an issue as nobody admits to being a supporter of the Nationals do they ?

For some reason it reminds me of the question posed of the philosopher Voltaire by a priest providing Last Rites to the dying Voltaire : “do you renounce Satan and all his works” asked the Priest. Voltaire never one to be easily tricked is said to have replied, “Father, would you not agree that this is no time to be making enemies ?”

Wisely, the three Australian Chinese undergoing questioning probably thought of Voltaire and declined to answer this nasty line of questioning.

Uncle Eric says there is nothing racist about his question and he just doesn’t want people of an Asian persuasion coming to this country and harbouring feelings of affection for the land of their birth and its political arrangements. A far as Eric is concerned, if you respect a regime that has in twenty years brought a billion people out of poverty into middle-class prosperity you are a ratbag and you should be sent ‘home’ preferably after spending ten years on one of Spud Dutton’s remote islands.

Senate Estimates is the best show in town, perhaps they could learn something from SAS and do us all a favour by pushing Uncle Eric out of a helicopter backwards : now that’s reality TV !


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