Another problem with the ICAC “reforms”

The NSW government assures us that ICAC won’t be able to initiate prosecutions without DPP approval. A report in today’s Australian reveals how problematic that still is:

The NSW corruption watchdog handed over evidence to the ­Director of Public Prosecutions that allegedly omitted statements made in favour of former NSW SES commissioner Murray Kear before his criminal trial.

State Emergency Service assistant commissioner Mark Morrow gave a long statement to ICAC that is understood to include material supporting Mr Kear that was then not provided to the DPP.

The evidence emerged … on October 14 in a case between ICAC and Mr Kear, who is charged with breaching the Whistleblowers Act. The alleged omission casts doubt over the ­effectiveness of NSW Premier Mike Baird’s compromise for the DPP to act as a check on ICAC.

The latest claim follows ICAC’s investigation into former Labor minister Ian Macdonald — who faces charges of misconduct in public office — where evidence ­favourable to him by Labor frontbencher Anthony Albanese was suppressed.

The practice of suppressing ­exculpatory evidence from public hearings could be even more widespread, with ICAC Inspector David Levine confirming he had received several complaints.

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It should never be a crime to offend a person

Reported today in The Australian:

Sydney’s Archbishop Anthony Fisher said it was “truly alarming” that any Australian would face proceedings before a tribunal for stating traditional Christian ­beliefs.

“Catholics, like the overwhelming majority of Aus­tralians, support freedoms of religion and speech,” Archbishop Fisher said. “Just as no one should be ­ridiculed or demeaned in the ­marriage debate, so too no one should be dragged before tribunals merely for stating one side of that debate.”

He said fair-minded readers of the bishops’ booklet “Don’t Mess With Marriage” would see that it was carefully worded and compassionate, and not designed to provoke or hurt.

… The commission’s decision was also attacked by champions of freedom of speech.

“This case highlights the ­attack on free speech represented by anti-discrimination law — it should never be a crime to offend a person,” said Simon Breheny, of free market think tank the Institute of Public Affairs.

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Top 3 articles from this week you must read

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Conor Friedersdorf

1. In London’s Telegraph on Saturday, Charles Moore argues that judges in the the home of the common law have too much power and need to be reined in

2. On Monday, Conor Friedersdorf highlighted in The Atlantic the new intolerance of student activism, and how a dispute over Halloween costumes devolved into an effort to censor opposing views

3. And in The Spectator, writer and historian Hal GP Colebatch has an excellent piece describing the political danger Prime Minister Turnbull is exposing himself to by opposing any reform to section 18C of the Racial Discrimination Act ($).

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NSW Young Liberal President warns against “muscled-up” ICAC

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NSW Young Liberal President Alex Dore has a terrific piece in the Sydney Morning Herald today criticising moves to grant increased powers to the Independent Commission Against Corruption:

…it makes sense to reconsider ICAC’s structure and reach, but time and time again ICAC has sought to do the opposite. Rather than work within the confines of its jurisdiction, it has sought to expand it.

Earlier this year, it sought to argue that all sorts of acts – for example, lying to a public official – should constitute “corrupt conduct” and therefore fit within the jurisdiction of ICAC to investigate.

It took an appeal by the eminently capable Margaret Cunneen for the NSW Supreme Court and the High Court to reject ICAC’s overstep. How many others could command Ms Cunneen’s intellect, resources, and guts to successfully do the same?

“[ICAC’s interpretation] would also enable the ICAC to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration,” read the majority High Court judgment.

But this defeat, and the corollary legal costs, has done nothing to dent ICAC’s ambitions. This week, the state government has given ICAC the power to launch criminal prosecutions for common law offences by issuing a court attendance notice on the advice of the Director of Public Prosecutions. It insists that it is simply restoring powers rejected by a local court judgment and that it can already do so for statutory offences.

In a liberal democracy, conservatism demands that institutions that have served us well be protected: the rule of law, including procedural fairness, is amongst them.

One of the great things about Australians is our healthy skepticism of any institution which gains too much power, and if we’re honest with ourselves, isn’t that exactly what ICAC has become?

Read the full article here.

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If you don’t like it, don’t watch it

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Tom Elliott’s article in the Herald Sun today on the calls to ban Ultimate Fighting Championships events in Victoria is well worth reading:

Worried that violence in the ring leads to anger in the streets? Well, if MMA must be banned on that basis then surely the Grand Prix must go as well.

Day in and day out we’re told by earnest police officers that “speed kills”. Because of that, motorists are routinely fined huge sums for exceeding often arbitrary limits by just a few kilometres per hour.

Yet every March our State Government spends more than $60m of public funds subsidising the Melbourne Formula One Grand Prix. And what is it that drivers do in this race? Routinely travel at speeds over 300km/h in an effort to win. That is five times the legal limit around Albert Park.

… Footy is another contest several aspects of which are banned away from an oval. If you hold on to the ball in a game of Aussie rules, I can legally tackle you to the ground (and probably receive a free kick for my efforts).

… Yet if performed against an unwitting pedestrian on Collins St, [a tackle] would garner an assault charge. Sport is often and rightly different from everyday life.

The same is true for MMA. Most adults are smart enough to differentiate between fighting in a ring controlled by a referee and a drunken brawl outside a pub.

Just because some people enjoy watching two willing participants battle it out according to a pre-agreed set of rules doesn’t mean the same spectators will return home and commit an act of domestic violence.

Continue reading here.

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Free speech under attack in Tasmania

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Freedom of speech is under attack after the Tasmanian Anti-Discrimination Commissioner’s decision to hear the case against Archbishop Porteous.

Tasmania’s Anti-Discrimination Commission has decided the Catholic Church has a case to answer in response to a complaint made by Greens candidate Martine Delaney this year. Delaney complains that a booklet outlining Catholic teachings on marriage, which was distributed to parents of Catholic high school students throughout Australia, is offensive and therefore breaches Tasmania’s anti-discrimination laws.

“The complaint against Archbishop Porteous ought to have been dismissed,” says Simon Breheny, Director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

“The booklet produced by the Australian Catholic Bishop’s Conference carefully outlines the Catholic position on marriage. The booklet was distributed to parents of students at Catholic schools. The booklet is a reasonable statement of Catholic teaching couched in a measured tone.”

“If the Catholic Church cannot distribute a booklet on Catholic teaching to Catholics, who can it distribute them to?”

“This case highlights the attack on free speech represented by anti-discrimination law. It should never be a crime to offend a person.”

“The position outlined by the Catholic Bishop’s Conference is the position that had been taken by every leader of the two major political parties right up until last year – and it is now potentially illegal,” says Mr Breheny.

The decision not to dismiss the complaint is relevant in the context of the upcoming plebiscite on the redefinition of marriage.

“The legitimacy of the result in the upcoming plebiscite depends upon the existence of a free and open debate. Both sides must have the opportunity to present a case to the Australian people,” says Mr Breheny.

“This is why both supporters and opponents of same sex marriage ought to be concerned about the complaint against the Australian Catholic Bishop’s Conference,” says Mr Breheny.

For media and comment: Simon Breheny, Director, Legal Rights Project, Institute of Public Affairs, [email protected] or 0400 967 382.

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Only 13 Victorian MPs vote against a blatant attack on free speech

Terrible laws which elevate the right to walk around certain buildings without seeing something objectionable at the expense of peaceful protest passed the Legislative Assembly of Victoria late yesterday, with barely a dozen MPs opposing.

The Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 seeks to establish 150 metre exclusion zones around fertility clinics, and to criminalise, not only that which is already unlawful (such as harassment and obstruction of access to private premises) but also prohibits:

communicating in relation to reproductive health services in a manner that is able to be seen or heard by a person accessing, or attempting to access, premises at which reproductive health services are provided

That this restrictive piece of legislation has passed the lower house with such little opposition is a disgrace. Any attempt to argue the laws are reasonable is not credible, as 150 metres is immensely disproportionate to the already illiberal objectives of the bill. The penalties too are disproportionate: section 185B provides that engaging in prohibited activity within a “safe access zone” will result in 500 penalty units (which equates to approximately $75,000 this year) or 12 months in prison.

The Legislative Council should give this bill more consideration than the Assembly gave it, and reject it altogether.

UPDATE: The 13 MPs to oppose the bill were Neil Angus, Richard Riordan, Gary Blackwood, David Southwick, Tim Bull, Murray Thompson, Robert Clark, Bill Tilley, Martin Dixon, Nick Wakeling, Michael Gidley, Graham Watt and David Hodgett.

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Can political correctness be taken seriously now?

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You might have heard about the protests at the University of Missouri this week, where a group stopped a student journalist from approaching a “safe zone”, with a journalism professor going so far as to call on ‘muscle’ to remove him.

Jonathan Chait in the New York Magazine explains why the episode demonstrates that political correctness can no longer be laughed off:

Even if it were the case that political correctness was totally confined to campuses, it would not make the phenomenon unimportant. Colleges have disproportionate influence over intellectual life, and political movements centered on campuses can spread well beyond them (anti-Vietnam began as a bunch of wacky kids, too). But to imagine p.c. as simply a thing college kids do relieves us of taking it seriously as a coherent set of beliefs, which it very much is. Political correctness is a system of thought that denies the legitimacy of political pluralism on issues of race and gender. It manifests itself most prominently in campus settings not because it’s a passing phase, like acne, but because the academy is one of the few bastions of American life where the p.c. left can muster the strength to impose its political hegemony upon others.

… The upsurge of political correctness is not just greasy-kid stuff, and it’s not just a bunch of weird, unfortunate events that somehow keep happening over and over. It’s the expression of a political culture with consistent norms, and philosophical premises that happen to be incompatible with liberalism. The reason every Marxist government in the history of the world turned massively repressive is not because they all had the misfortune of being hijacked by murderous thugs. It’s that the ideology itself prioritizes class justice over individual rights and makes no allowance for legitimate disagreement.

The whole article is well worth reading.

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The battle for Ningaloo Station

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Ningaloo Station is a large pastoral lease about 130 kilometres south of Exmouth, WA.

The station has been managed by the Lefroy family since the 1930s. The Lefroys currently run the station as a camp site, dedicated to conserving this pristine slice of Australian natural beauty.

The Lefroys have been in a long-running battle with the Western Australian government over the future of Ningaloo Station. The current lease has been renewed from 1 July 2015, however a condition of renewal was that the lands minister could remove parts of the land to be managed by government, as provided for under the Land Administration Act 1997.

In 2002, the then-Labor government attempted to do just that. The 22 hectares of land represented not just 48% of the entire pastoral lease but also the lion’s share of the critical infrastructure, including watering points, laneways, holding paddocks, sheep yards, an air strip, workshops, and the heritage-listed Ningaloo homestead.

After initially agreeing not to excise land from pastoral leases in the lead up to the 2005 state election, the Coalition government is now attempting to do just that. Lands Minister Terry Redman has indicated that he wants to incorporate a series of local pastoral leases into the neighbouring Ningaloo Marine Park.

The land should remain in the hands of the Lefroy family. From both an economic and a conservationist standpoint this is the most sensible course of action, a point well made by Pastoralists and Graziers Association of Western Australia president Tony Seabrook:

“People up there who know that country and know it well.

“They are far better off to manage it than a government department working a five-day week with little understanding of how the rangeland works.”

Bureaucratic management of the station will not improve the environmental outcomes in this beautiful part of the world. Private operators are incentivised to manage resources well.

The Lefroy family has also spent considerable sums of money over many years improving and developing the land. They have the right to enjoy the fruits of their labour.

The Lefroys should be left to manage their own small piece of paradise.

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