Red Rag

I should mention that I have a new blog.

Fitter, healthier and more productive
A pig
In a cage
On antibiotics

As I am now Another Suit on the Terrace™, this blog is on a permanent hiatus.

For your all your left-wing blogging needs, I recommend Larvatus Prodeo and those comrades listed on its sidebar.

There are a couple of errors in The Australian’s editorial tomorrow. The first:

And there is no explanation, no justification, that can excuse any nation from killing an individual who has broken the law. There never has been and there never will be.

I think they mean for. To say there is nothing that can excuse you from some thing is precisely the opposite of saying nothing can excuse you for it. The sentence as published says every nation must execute every individual who breaks the law: a ridiculous suggestion, and obviously a mistake because the editorial is strongly — and rightly — opposed to the death penalty.

The second:

The Howard Government has not questioned Singapore’s right to apply its own laws, and neither should it. We have simply, repeatedly, unavailingly begged for clemency.

With that one little word, The Australian admits what everyone knows: that it regards itself as part of the Howard Government. Or perhaps it’s just a telling typo.

The LHMU has put together a funny video about 36 Ways to Get Fired under WorkChoices. Yes, it does star Damo from Home & Away…

Apparently, this is a caricature of Fred Leuchter, a Holocaust denier who developed technology for executing people.

At first glance, though, I thought it was someone whose politics are quite far removed: Bob Brown.

25 November is White Ribbon Day or, to use its full and official title, the International Day for the Elimination of Violence Against Women. By wearing a white ribbon, men demonstrate their opposition to rape, sexual harassment, and domestic violence.

While almost every man is opposed to violence against women, we don’t say so as often or as loudly as we should. We need to make sure other men take issues like rape seriously. Some people would prefer to change the subject, deny that there is a problem, or (most disturbingly) pretend that men are the real victims. That’s not good enough, because it creates an environment that encourages and protects the perpetrators of violence against women. We need to make it clear that the so-called men’s rights movement doesn’t represent us.

The Australian White Ribbon Day committee offers some good reasons for men to wear white ribbons:

• We have heard about the pain and suffering that violence inflicts on women. We know that a fist in the face, a kick in the ribs, being forced into sex, having one’s daily life controlled and policed and tormented, we know that these are horrible things that should never happen;

• We care for our wives, our girlfriends, our sisters, daughters, our female friends, our co-workers;

• We know it is men’s wives, mothers, sisters, daughters, and friends whose lives are limited by violence and abuse; and, whether we know about it or not, many of the women we know have been subject to men’s violence;

• We know that men don’t have to be violent, that men can do better, that men can be and often are loving, caring, and nonviolent;

• We want girls and women, and boys and men, to be free from the threat of other men’s violence;

• We know that we, and all men will benefit from a world free of violence against women, a world based on gender equality: in our relations with women, instead of experiencing distrust and disconnection we will find closeness and connection. We will be able to take up a healthier, emotionally in-touch and proud masculinity.

So this Friday, every Australian man should wear a white ribbon. You should take the opportunity to inform yourself about the problem, and think about what you can do (pdf) to prevent violence against women. And most importantly, if you are concerned about a friend’s behaviour — or your own — you should call the confidential 24-hour hotline on 1800 200 526.

Violence against women will only cease when men join with women to put an end to it.

[Cross-posted at Larvatus Prodeo.]

Yesterday I had my Last. Exam. Ever. Or at least my last university exam — I’ll eventually have to sit some more when I do ATP, but since I’m not heading to a law firm right away I’ve got some breathing room.

The US Government’s policy of attacking journalists and media organisations is not merely rhetorical; it has a nasty habit of bombing people who refuse to be “embedded”, who ask tough questions, and who challenge US policy. Still, while this has been common knowledge for quite some time, nobody thought George W Bush would be stupid enough to say it out loud.

In today’s Crikey email, Christian Kerr pointed to an interesting exchange with John Howard, in which interviewer Sarah Ferguson “refused to be put off by the usual Howard bluster and obfuscation”:

SARAH FERGUSON: You cited the Blair Athol case in Parliament the other day. Were there lessons from that case that were influential in the drafting of the legislation?

JOHN HOWARD: No, I just mentioned it in passing.

SARAH FERGUSON: I don’t believe you mention anything just in passing. You must have had a good reason for mentioning it.

JOHN HOWARD: I know why I mention things. You can assert a contrary view, but you’re asking me the context in which I used it, I’m giving you the answer.

SARAH FERGUSON: What was that context?

JOHN HOWARD: In a debate.

SARAH FERGUSON: You didn’t just pluck it out of the air.

JOHN HOWARD: I knew about it.

SARAH FERGUSON: So what is it about it you think is interesting?

JOHN HOWARD: It illustrated something.

SARAH FERGUSON: What was that?

JOHN HOWARD: It illustrated how, in certain circumstances, people can double dip, if they are paid a redundancy and then claim in some way that their redundancy has amounted to an unfair dismissal.

But as Ferguson suggested, the Blair Athol case is significant not because of any double-dipping, but because “a black list was drawn up of union members who were targeted for dismissal.” However, they fought the company for four years, and in August their unfair dismissal claim was finally upheld — but Rio Tinto’s lawyers, Freehills, have been seconded to draft the WorkChoices legislation. They’ll make sure their clients can get away with it next time.

The 151 Academics’ submission to the Senate inquiry explains that the relevant part of WorkChoices is not designed to prevent “double dipping” — it’s designed to shield unfair, anti-union employers from prosecution (pp 12-13):

Employees who are dismissed for ‘genuine operational reasons or reasons that include genuine operational reasons’ will be prohibited from seeking a remedy because it is also harsh, unjust or unreasonable. ‘Operational reasons’ are defined as including ‘economic, technological, structural or similar’ reasons. If even one of the reasons for the dismissal is a ‘genuine operational reason’, the AIRC must find that an application pursuant to the harsh, unjust and unreasonable provisions is invalid. … For example, certain employees may be victimised and targeted for dismissal in a redundancy process. Such employees should not be denied access to unfair dismissal remedies. Moreover, ‘economic’ and ‘structural’ factors potentially go well beyond instances of genuine redundancy exemplified in the explanatory memorandum. For example, if an employer decided to replace award-covered workers with cheaper employees on the minimum standards, this would provide an economic advantage to the employer and could therefore constitute a genuine ‘economic’ reason to exclude any unfair dismissal claim under the Bill.

The Minister has explained that this provision is aimed at preventing retrenched workers from ‘double-dipping’ by obtaining redundancy pay on top of compensation for unfair dismissal. However, there is nothing in that provision of the Bill that refers to redundancy payments. If this were the purpose, then the legislation would only need to require that the Commission deduct redundancy payments from the maximum amount of compensation a worker could receive. In reality, such a provision would be unnecessary, since the AIRC already takes redundancy payments into account in determining compensation, as one would expect the parties to do in reaching a settlement. In practice, this provision would enable a worker to be dismissed in ‘harsh, unjust and unreasonable’ circumstances, by a firm of any size, if the firm could successfully argue that it was partly for ‘operational reasons’. The worker would be unable to lodge a complaint about unfair dismissal.

The Prime Minister has told Parliament that this provision is to ‘clarify’ the situation that arose when sixteen workers at the Blair Athol coalmine in Queensland were sacked. In 2001 the AIRC found that Blair Athol management had created a ‘black list’ of union members who were ‘singled out for termination’ via a redundancy process. Mine management ‘went about demeaning’ those targeted for termination; for example they were ‘allocated menial tasks such as chipping weeds with a hoe rather than using a weedicide as was normally the practice … and painting tyres with a broom as opposed to spray painting which was the normal practice’. The ‘strategy’, which according to the AIRC ‘could be likened to ‘blood sport’’, was ‘designed to force (unionists) to accept the redundancy package’. Management introduced a performance appraisal scheme which had ‘no procedural fairness or due process’ and in which a group of unionists were denied ‘opportunities to perform work which would have provided an opportunity to have improved their…rating’. It was then used as the basis for dismissing the 16 workers. Only a ‘whistle blower’ witness revealed the existence of the ‘black list’. The situation experienced by the workers is detailed in research analysis. This case was pursued by the workers under the unfair dismissal provisions. After numerous cases, appeals, further appeals and delays, most of the workers were reinstated and the case was settled with the unanimous approval of the workers seven years after the dismissals. Under the Bill, these workers would have been unable to pursue their claim.

Although the Blair Athol case identified weaknesses with the law, these had nothing to do with ‘double dipping’; rather, they were about the difficulties the blacklisted workers faced in obtaining reinstatement in a timely manner: justice delayed is justice denied. The proposed inclusion of these provisions would only worsen the inequity that occurred for several years at Blair Athol, and create opportunities for other unscrupulous employers to use this provision to contrive arrangements to dismiss workers for ‘economic’ reasons.

This is what WorkChoices is about. It’s a scheme cooked up by big business, and drafted by big business lawyers, to give them the right to sack union members or anyone else who speaks up about unfair wages or unsafe conditions.

Sometimes I wish I could take to the Labor frontbench with a sharpened pencil. The most recent example is the silly decision to call for Amanda Vanstone’s resignation over a speech she gave on the weekend.

The minister’s crime was to point out that using plastic knives on an aeroplane was a great inconvenience to passengers, while doing almost nothing to hinder terrorists. She gave some graphic examples to support her argument, including the violent use of a broken wine glass or a HB pencil.

Vanstone’s right — so why is Labor complaining? This is the Opposition’s version of crying wolf. If you demand resignations every time someone opens their mouth (even when a Minister criticises her own Government!) then nobody will pay any attention when heads really should roll.

Yesterday The Australian used its front page to spruik for the Right’s candidate for Labor’s WA presidency. It was a ridiculously unbalanced article that mentioned the six candidates running against her, but only quoted her supporters. Today they’ve got another article that effectively endorses her — based on the incredible revelation that a Right-wing MP thinks the Right-wing candidate is worthy of support. Yawn. Far more interesting is that the incumbent State Secretary is being challenged for the position, but they’ve got nothing about that.

Occasionally I am forced to express my disappointment at the Gallop Government’s willingness to trample civil rights in the name of “community safety” — a fluffy code term for old-fashioned Laura Norder tubthumping.

The threat of a terrorist attack provides a great opportunity for this kind of posturing, and apart from rushing to agree with whatever draconian proposal John Howard puts forward, the Premier recently boasted that he “would provide Western Australian police with the toughest powers in the nation to combat terrorist activities.”

He was talking about the Terrorism (Extraordinary Powers) Bill 2005, which is currently before the WA parliament. If passed, the bill would give police outrageous powers to search people, places and vehicles, without judicial oversight.

The Bill creates a new type of Warrant called a Commissioner’s warrant, which, among other things, will give the police power to:

• control anybody’s movement in the designated area (s 11);

• collect the personal details of people, even if they are not a suspect or a witness to any crime (s 12); and

• search any person (s 13), or their vehicle (s 14) or home (s 15), on the basis that they have been in the area covered by the warrant.

These powers can be exercised irrespective of whether there is any reason to believe the people affected are involved in any criminal activity, let alone terrorism. They may be exercised by non-police officers in certain circumstances (sch 1 cl 2), and the use of force is authorised (sch 1 cl 3).

Given appropriate safeguards, none of these provisions would provide significant cause for concern. If there is a real threat of an imminent terrorist attack, then giving the police the power to move people out of an area or to search people seems reasonable.

The legislation seems to include such safeguards. Details of Commissioner’s warrants must be given to the Minister for Police, who must eventually report to Parliament; however, this is a reporting requirement that comes too late to effectively protect civil rights, and it’s hard to imagine such a report being tendered without being spun to protect the Government.

More importantly, the warrants appear to require judicial approval — but they don’t. According to s 7(3)(1):

The Commissioner must not issue such a warrant without the prior approval of a judge but, if there is an urgent need to issue it and a judge cannot be contacted to request approval, may issue it without such approval.

A warrant issued without judicial approval will lapse after 24 hours (s 7(4)(b)), but that’s quite a long time within which the police may give themselves extraordinary powers without independent oversight — and it’s a meaningless time limit when those provisions are read in conjunction with s 9(3):

[T]he Commissioner may issue a further warrant that has effect immediately a previously issued warrant ceases to have effect.

This opens the possibility for an over-eager Commissioner or authorised officer to issue a warrant in circumstances that the legislation did not intend them to do so. You might think that is unlikely (it probably is) but where police are given powers they will inevitably push the boundaries to use them as widely as possible.

Moreover, while we might have confidence in the current leadership, it is inevitable that the police will go through periods of… shall we say, dubious ethical conduct. That is when these powers may be overturned.

If that happens, it would be nice to think that a citizen whose rights were trampled would have some recourse against the police. But they won’t — s 20(1) makes sure of that:

Neither a Commissioner’s warrant nor a judge’s approval of such a warrant can be appealed against, reviewed, quashed, challenged, or called in question, before or by any person acting judicially or a court or tribunal on any account or by any means.

The only body that may question the warrant, even if it was issued in flagrant breach of the legislative guidelines, is the Corruption and Crime Commission. There is no reason to exclude other bodies from considering the legality of a Commissioner’s warrant. The public has a right to protect its rights by taking things to court — especially if the breach they are complaining about was caused by dodging judicial oversight in the first place.

By limiting the public’s recourse to the courts to challenge dubious warrants, the Bill effectively encourages the police to issue warrants that are on the shady side, and perhaps to flexibly interpret the phrase “a judge cannot be contacted”.

I heard on the radio (but, alas, can’t find the story online here it is) that Coalition members of the Legislative Council have raised concerns about this last aspect of the legislation, and that Opposition Leader Matt Birney supports them. They are rightly concerned that s 20(1) “effectively puts the police above the law”.

Instead of taking on board the suggestion that the Bill’s safeguards be improved, Geoff Gallop responded in accordance with the “community safety” propaganda rules — by accusing the Opposition of being soft on terrorists.

To Gallop, this is just another tough-on-crime pissing contest — and he’s not even worried that it’s our civil liberties he’s pissing on.

• 175 000 in Melbourne, 30 000 in Sydney, about 60 000 across Queensland, tens of thousands in Adelaide, at least 10 000 in Perth (despite the oppressive heat), tens of thousands more at smaller rallies in regional centres — and even a contingent in New Zealand. The Community Day of Protest was a resounding success. Melbourne was especially successful — the turnout doubled expectations and represented the city’s “biggest political protest on record”.

• But it’s not all about numbers, as the Government will ignore the community, but it’s about building momentum towards the next election. By all accounts, the events were friendly, engaging and inspiring, and a dejected Left is finding itself again. A movement is building:

  [T]his was no angry mob chanting hackneyed catch cries for the television cameras. It was a vast — some said the biggest — communal gathering in which all sectors of society and age groups assembled to hear and be heard on workers’ rights.

  The message was very clear and could only be misunderstood if wilfully misinterpreted — proceed with this legislation only if you are prepared for the fight of your political life, and have your bags packed at the next federal election.

• The blogosphere has photos: Weezil, Suki, Stoush.net, Webdiary, Anonymous Lefty, gjw, brokenleg. There’s more at Indymedia: 1, 2, 3, 4, 5, 6. Wikipedia has galleries for Melbourne and Sydney, and there’s a new Your Rights at Work group photo pool on Flickr.

• Sharan Burrow and Greg Combet spoke well, and Kim Beazley made this firm commitment: “My first act as prime minister of the nation will be to stand on the steps of Parliament and rip these laws up — these extreme laws are headed straight for the bin which is where they belong.”

• Greg Combet promised a campaign of civil disobedience — kicked off, perhaps, by the TWU briefly stopping traffic in Sydney. Combet said, “I will not pay a $33,000 fine for asking for people to be treated fairly … On such a fundamental issue we must look the Government in the eye and stare them down.” The effect of this refusal is that Combet will face jail — and “[i]f unions refuse to pay fines, and officials start going to jail for what they claim is doing their ordinary business of representing workers, voter sentiment might harden against Howard.” Be ready to support the men and women who forfeit their liberty to defend your rights.

• The forces of the Right were so threatened by the prospect of today’s rallies that they pulled out all the stops to squash them. The Federal Government threatened public servants with the sack if they attended — even if they made up the time later — but was forced to back down after the CPSU challenged its misleading memorandum. Likewise, building workers defied threats from the building industry gestapo. However, union-busting firm BGC has not ruled out prosecuting its workers for exercising their democratic right to protest unjust laws. That right was upheld by the IRC because it “will allow employees to be more fully informed about their futures in the paid workforce and the potential effect on their family life.”

• The Chamber of Commerce and Industry and The Australian were singing from the same hymn book, saying that the biggest protest in Australia’s history proved that nobody was worried about WorkChoices. But The Australian’s Brad Norington points out that the rallies “compare favourably with the Vietnam moratorium marches, indicating that community concern cannot be easily dismissed.”

• The day when half a million Australians take to the streets to defend workers’ rights might not have been the best day for Telstra to announce plans to slash 12 000 — 15 000 jobs. It will come as no surprise that Telstra supports the Government’s WorkChoices package.

• The Government’s sham inquiry into the IR package, which will ignore thousands of submissions from the public, began in the Senate this week. Labor’s Gavin Marshall was on the ball, forcing the business lobby to admit its real aims: “We’re hoping for a… we’re hoping for… Well for our… we’re hoping for a lesser [pay] increase for our industry.”

• When the Victorian IR minister Rob Hulls appeared at the inquiry, Liberal Senator Judith Troeth complained about a $55 000 advertisement Victoria had placed. Hulls didn’t miss a beat: “$55,000, not million,” he said, referring to the Howard Government’s failed propaganda campaign. “I think, with due respect senator, it is an absolute cheek for you to be asking this question.”

• NSW workplace minister John Della Bosca argued WorkChoices — which smashes unions, outlaws industrial action, and imposes the Minister’s will on all industrial agreements — is “fascistic”.

• In Question Time last week, John Howard was asked about some strange deliveries of WorkChoices booklets: 99 copies to the Indonesian Society for the Prevention of Cruelty to Pandas. Other apparently very interested organisations included the Curry Lovers’ Society, the Wingham Deer Hunting Foundation, the Kilabarch Hamster Loving Society, and the Porn Lovers’ Guide to Australia. A year 9 student protesting against WorkChoices arranged for around 5000 booklets to be sent to these obviously bogus groups — and yet 97% still haven’t been delivered.

• Key senators are promising to tinker at the edges of WorkChoices. Barnaby Joyce is mainly concerned with moves to scrap unfair dismissal protections, and says, “I don’t know whether there is a strong economic argument for it.” Steve Fielding is worried about working hours, and has finally twigged to the fact that the 38 hour week is not “protected by law” at all. Fielding will today announce a 10 point plan — but if he thinks ten minor amendments will fix the package, then he’s not looking at it very closely.

• The NSW Government has revealed it is considering the possibility of seeking an injunction against the new IR laws until the High Court has determined their constitutionality.

Larvatus Prodeo commemorates the Whitlam Dismissal with a series of posts about the event. My contribution considers Lindsay Tanner’s call to get over it.

Credit where it’s due. Danna Vale was a dud minister, but she’s dead right about David Hicks:

Let’s get real. The case of David Hicks clearly fails the commonsense test. It fails the commonsense test not only in the educated minds of the legal profession, but in the gut feelings of ordinary Australians who believe in a fair go, and who believe that truth and justice and that old hand-me-down from the Magna Carta that says men are innocent until proven guilty, still deserve some currency in our world.

Just like you, just like me, as an Australian, he is entitled to a fair trial without further delay. And, after four years in Guantanamo Bay, if the Americans cannot deliver this to David Hicks, in all fairness, we must ask that he be sent home.