Thecuriousmail’s Weblog

The Big Lie is no longer believed: most people now do not trust politicians, or have faith in the political process.

Posted in Uncategorized by thecuriousmail on September 12, 2017

john howard

Trust in politicians and faith in the political process in western-style democracies is at historic lows,  and still trending downward.

I am concerned here with the circumstances of Australia’s involvement in the Iraq war. Certain dates and facts are indisputable: what Howard was told, and when he was told it; when and what Howard said publicly to the Australian people.
If these facts were presented in a trial in a court of law, I am certain the judge would think Howard was either delusional,  or a perjurer, such is the contradiction between what actually occurred, and what Howard said occurred.
What then for trust in politicians and faith in the political process,  when the prime minister of Australia can so clearly mislead the Australian people? And Howard has escaped punishment, has never been held fully accountable for his lies, and will continue to be rewarded with generous taxpayer-funded benefits and privileges.
Hundreds of thousands of Australians marched against the war, but they were ignored, and he continued to lie. Tho the deception was not by Howard alone; senior members of the government parroted the lies (despite knowing the truth), and the Opposition too supported Howard without reservation. As trust and faith continue to decline from already low levels, a point will be reached where the people will decisively act in favour of change. The lies, secrecy and incompetence of politicians,   the inability of the political process to reflect the people’s will, no expeditious mechanism for the citizen to challenge political  lies, distortion and over-reach, and a judiciary acquiescent to the demands of the elite and the maintenance of the status quo, these things will result in a change unresistable.
Below is a reprint from The Independent Australia.

John Howard’s continued lies about the reasons for invading Iraq in the face of the scathing Chilcot Report remind us of his deep dishonesty and poor judgement, writes editor Sandi Keane.

BACK IN 2004, the “who can you trust” slogan was effective. It won Howard the election. Such was George W. Bush’s admiration, he stole the line for his own campaign.

But Howard and trust parted company when we found out Australia had invaded Iraq in 2003 on the basis of a lie. He had exaggerated the threat of Sadam Hussein. There were no weapons of mass destruction. This information was known to the U.S., Britain and Australia almost two years before the Coalition of the Willing’s invasion of Iraq (see below).

After the release of the Chilcot Report, Britain is now confronting its ties to the United States as one of the Coalition of the Only Too Willing that cost British lives. A contrite Tony Blair responded by saying:

“I express more sorrow, regret and apology that you can ever know or believe”

whilst maintaining he’d made the right decision

But unlike even Tony Blair, Howard says he has no regrets about Iraq. Australians are unlikely to ever see him apologise. It isn’t within his “little man” character to ever apologise for his dishonesty and poor judgement. His failure to repent is a character flaw. Jumping on the Bush bandwagon and “shirt-fronting” Saddam Hussein from the safety of his Canberra bunker would have given Howard the chance to shake off his little man image and become the people’s hero. As I will later demonstate in this article, by way of evidence, his memoir ‘Lazarus Rising’ is full of boastful flights of fancy (like claiming to be East Timor’s “liberating hero”) and is, as such, a litany of lies.

On the 10th anniversary of the Iraq Invasion in April 2013, Howard gave an Iraq retrospective lecture for the the Lowy Institute. He seized the moral high ground in true Pecksniffian style, labelling claims about flawed intelligence as “notorious” meriting the most “emphatic rejection”.

Following the Chilcot Inquiry showing that the intelligence was, indeed, “flawed” and the invasion a “strategic blunder”, Howard remains unrepentant. How unsurprising for a man of his weak character.

The anniversary turned the spotlight back on the allies and this shameful chapter in our history. Peter Hartcher’s ‘Blind allies of mass destruction’ in the Sydney Morning Herald accused Howard, Bush and Blair of collaborating in a war built on a lie that cost the lives of more than 100,000 Iraqi civilians.

Lazarus Rising — Howard’s truth-dodging memoir, best described as “Lazarus Lying

Political memoirs offer a chance to “fess up” and clear the slate as a salute to historical accuracy, not to mention accountability — a last chance to make good. But, sadly, this was not the case in John Howard’s, self-serving, truth-dodging memoir, Lazarus Rising.

The prime minister was in Washington at the time of 9/11. He knew President Bush was looking to fit Saddam Hussein up when he instructed his intelligence aids to come back with a link in spite of U.S. intelligence having dismissed Saddam’s possession of WMDs years before.

In Lazarus Rising (p 427), Howard tries to justify that it was

‘…right to act on a reasonably entertained belief that Iraq did possess WMDs (p 425) by claiming that concern about WMDs was “soundly based in fact.’

Untrue. Fully two years before the invasion of Iraq, U.S. Secretary of State, Colin Powell, declaredin Cairo of Saddam Hussein:

“He has not developed any significant capability with respect to weapons of mass destruction.”

Furthermore, five months after Powell’s speech, the National Security Adviser, Condaleeza Rice, in an interview on national U.S. television put the lie to the US government’s own propaganda when she declared:

“Saddam has been disarmed and his military forces have not been rebuilt.”

Unlike John Howard, Colin Powell has publicly confessed his shame at having supported the lie about WMDs.

As revealed by The Age back in 2004, Australia’s primary military agency, the Defence Intelligence Organisation,also rejected claims that Saddam Hussein had “weapons of mass destruction”.

Our military and diplomatic elders call for truth on the invasion of Iraq

On 8 August, 2004, a statement by a concerned group of former service chiefs and Australian diplomats was published in The Sydney Morning Herald calling for “honest, considered and balanced foreign and security policies”.

Following exposure of the lie about Saddam’s “weapons of mass destruction”, former diplomat, Richard Woolcott, helped co-ordinate the group of 43 former service chiefs and diplomats who called for more honesty in government.

Woolcott told Independent Australia in an interview for my article ‘John Howard: Lazarus Lying’ that central to the group’s concerns was the lack of honesty in Howard’s statement in March 2003 that his policy was ‘the disarmament of Iraq, not the removal of Saddam Hussein’, and that ‘if Saddam got rid of his weapons of mass destruction he could remain in power.’

The U.S., Britain and Denmark have all conducted inquiries into the Iraq invasion, but not Australia.  Will John Howard be man enough to hang his head in shame? Don’t hold your breath!

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The curious case of Bernard Gaynor: the High Court refuses to hear freedom of speech appeal. Too much law, too little reason.

Posted in Uncategorized by thecuriousmail on September 11, 2017

1984

This is not the high court of the Mabo decision, where, while obvious to nearly all australians, finally in law the arrant nonsense of terius nullius was finally laid to rest.

This is a carefully hand-picked and nurtured  politically conservative high court, where protecting the rights and freedoms of the australian people is not just a low priority, it has no standing at all.

Last month, the high court refused to hear an appeal brought by conservative activist Bernard Gaynor. The reservist had his commission with the army terminated in 2013 for provocative public comments, and has since been engaged in a legal battle with the Australian Defence Force. Gaynor won in the Federal Court, lost in the Full Federal Court, and with the High Court declining special leave to appeal, the one-time Senate candidate’s litigious crusade is now over.

I find Gaynor’s political views  deeply offensive. He is homophobic, and Islamphobic, to name just two, and I would argue against his opinions at every opportunity. But, he has an inalienable right to hold and express those views.

In March, the full court of the Federal Court delivered its judgment in Chief of the Defence Force v Gaynor. In late 2015, Gaynor successfully argued before the Federal Court that his termination infringed the freedom of political communication implied in the constitution. Last month, though, justices Nye Perram, Debbie Mortimer and Jacqueline Gleeson accepted an appeal by the Australian Defence Force and upheld the validity of Gaynor’s termination.

The full court’s decision predominantly rested on two related grounds. First, the bench found that primary judge Robert Buchanan had erred in conceptualising the constitutional protection as a “right” afforded to Gaynor. They said: “The proposition that the implied freedom does not involve, nor does it recognise or confer, any personal rights on individuals in the same way the first amendment to the US constitution does, is an observation which has been made repeatedly in almost every case dealing [with] the freedom of political communication.” While Buchanan had initially acknowledged this in the judgment, his subsequent application of the law suffered from a “rights-based analysis” defect.  (The judge had erred in interpreting the ‘freedom of political communication’ as an individual ‘right’, rather than a constraint on the exercise of legislative power.  Seriously??! ) 

Second, the full court disagreed with the subject of Buchanan’s analysis. The first instance decision had assessed the constitutional validity of the decision to terminate Gaynor’s commission, a discretionary power granted under federal regulations. According to Perram, Mortimer and Gleeson, the correct approach was instead to consider whether the authorising regulation itself was invalid for disproportionately burdening the implied freedom. While they accepted that the regulation “was capable of making an officer pay a price for [their] communications”, it was nevertheless “suitable, necessary, and adequate in balance with respect to any burden it imposes” on the freedom of political communication. Gaynor’s termination was therefore valid. (The Court of Appeal found that in some circumstances the restriction of the freedom of political communication is justified and held that the ’…circumstances of Gaynor’s comments’ and his refusal to accept and adhere to orders made by the ADF, were extreme. Therefore, any harm to his freedom of political communication was outweighed by the need to reserve the power of the ADF to terminate individuals whose conduct and behaviour placed them in a category where their continued presence in the ADF was regarded as sufficiently serious. Seriously?? At no time did he purport to represent the ADF. He was speaking as a private citizen. But what then for the racist and homophobic police officer, speaking as a private citizen?)

Gaynor perhaps represents an unfortunate test case for the ventilation of important free speech issues. Many would no doubt strongly disagree with the views he stridently espoused. His “antipathy to overt tolerance or support of homosexuality” and “statements critical of adherents of Islam”, as Buchanan described, could be labelled homophobic and Islamophobic. Some might even go so far as to say the implied constitutional protection for political communication simply does not, or should not, extend to such comments. Yet the high court has previously stated: “History … teaches that abuse and invective are an inevitable part of political discourse.”

Gaynor’s views were expressed in his own time, in his capacity as a private citizen and not while he was on duty or in uniform. While his comments did draw a connection with the ADF, he was not purporting to speak on its behalf. There is something deeply unsettling about the government seeking to regulate an individual’s views, whether public servant, army reservist or ordinary citizen.

It is on this point that the final substantive paragraph of Buchanan’s initial judgment resonates: “the applicant’s commission was terminated because of the publication of his private views about political matters. The fact that those publications were at variance with [ADF] or government policy, or were in terms of which some may strongly disapprove, or were critical of [ADF] policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the constitution.”

To some, this reasoning is compelling and the end result just. Indeed, the court’s disapproval of Gaynor’s comments was thinly veiled. But if he had instead criticised the government’s defence policy, would the outcome have been different? How do we rationally distinguish between political statements that deserve constitutional protection and those that do not?

The High Court’s refusal to even consider an appeal from Gaynor should be deeply troubling, regardless of your political persuasion. The Full Federal Court finding that the ADF did not impermissibly encroach on Gaynor’s constitutionally protected free speech has broader ramifications, for public servants, for those in receipt of a government pension or benefit, or a business with contracts with the government, and indeed for the ordinary citizen. They may be well-worn to the point of cliché, but the words of English writer Evelyn Beatrice Hall are apt. “I disapprove of what you say,” she mused in 1906, “but I will defend to the death your right to say it.” Her and I might, but our courts will not.

A question ignored is not a question answered, and by not hearing the appeal, the high court is abrogating its responsibilities.  Do australian citizens have certain freedoms, and if so, under what circumstances can those freedoms be over-ridden, if at all?? A question ignored is not a question answered.

High Court decision on SSM postal vote: another failure of fortitude and reason.

Posted in Uncategorized by thecuriousmail on September 9, 2017

high court

In yet another example of the inherent bias and cowardice of  the judicial system in favour of politicians and the bureaucracy,  the high court recently rejected an appeal against the funding of the government’s SSM poll.

Did parliament give the government permission to withdraw $122 million?

The first of the substantive challenges against the postal survey was that the government did not have a valid “appropriation” to withdraw the $A122 million for it from the Treasury.

Before the government withdraws money, it first needs permission from the parliament, known as an appropriation. This process of parliamentary approval for government withdrawal of funds is required by Section 83 of the Constitution, which states:

No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

It was common ground that parliament has not passed any new appropriation to authorise the withdrawal of the $122 million. So, the government drew ona pre-authorised $295 million bucket of money that had been established by the parliament as a contingency fund. This is known as the Advance to the Finance Minister.

In order for the finance minister to draw upon that money, two conditions need to be met:

  • the finance minister needs to be “satisfied that there is an urgent need for expenditure”; and
  • the expenditure needs to be “unforeseen” at the time the act was passed (which was in May, 2017).

One argument was that this type of appropriation is constitutionally invalid – that it gives the government, in effect, a blank cheque to spend up to $295 million, which is in breach of the fundamental purpose of Section 83.

However, the Commonwealth argued that this type of pre-approval has a history that dates to early English and colonial practice.  (An appeal to ‘customary’ is fallacious and self-perpetuating, ‘we have always done it this way, and so keep doing it’,  and as an argument contains no separate reasoning or facts. It is as meaningful as saying it was God’s will.) Parliament has approved the withdrawal, but chosen to do so by giving the government a wide discretion, limited by the specified amount of money. (Q. Specifically, what is this ‘wide discretion’? What might be allowed/disallowed in the exercise of this discretion, and what are the reasons or guidelines for any such allowance/disallowance? A. Whatever the government says!)

The plaintiffs also argued that the expenditure was neither urgent nor unforeseen. They argued that something could only be “urgent” if it needed to be dealt with so quickly that it would not be possible to go to parliament to seek a special appropriation. They said that the only cause of “urgency” was of the government’s own making: it had chosen to require the survey results to be available by November 15, 2017.

In response, the government argued that it was for the minister, and not parliament or the court, to be satisfied that the expenditures were urgent (No, the constitution says it needs to be urgent, and the high court is saying a government can define the meaning of any word! Self-justification anyone?), and that urgency could be created by changes in policy that result in an urgent need for expenditure within timeframes determined by the government . (So a government can not only define the meaning of words, it can also establish a time-frame by its own actions, for convenient partisan-political reasons,  but in the absence of any substantive, separate, or over-riding justification,  and call that time-frame urgent!)

The plaintiffs then said a postal survey was not only unforeseen, but in fact was specifically contemplated by the government, even if the exact details had not been determined by May.

The policy of a plebiscite on same-sex marriage was part of the government’s platform at the 2016 election. After the plebiscite was first defeated by the Senate in November 2016, the idea of conducting it via a postal survey was contemplated by at least some government ministers. It had been contemplated so seriously that the Department of Finance had received advice from the attorney-general’s department on the option of conducting a postal plebiscite in March 2017.

The government argued in response that the expenditure was unforeseen because, while the policy of conducting a plebiscite was longstanding, the expenditure on a postal survey by the ABS was not endorsed by cabinet, and thus becoming official government policy, until after the budget in May. This was enough to make the expenditure unforeseen. (So the government is saying long-standing discussion of a postal survey at no time did or should have included a component of how to finance it, how to pay for it? Really?? It would seem to be at least an admission of incompetence on their part, but does meet the requirement of being unforeseen.)

The plaintiffs raised an additional argument that the expenditure was not for what is referred to as the government’s “ordinary annual services”. Under the Constitution, the Senate’s powers over expenditure on such services is limited. Under Section 53 of the Constitution, it can’t introduce or amend such expenditures, although it can reject them outright.

The Advance to the Finance Minister the government was relying on is found in what is known as Appropriation Act No 1, which contains expenditures for the government’s ordinary annual services. The Senate’s powers over this bill are therefore limited. The plaintiffs argued it was wrong for the government to draw on the Advance to the Finance Minister contained in such a bill for the postal survey, which was a new, unique and extreme set of circumstances.

The difficulty with each of the arguments that challenged the $122 million is that the court is generally reluctant to interfere with how the parliament has decided to authorise government withdrawal of funds. (The high court is deferring to parliament, but it is not parliament authorizing this. It is the government, and they have deliberately bypassed parliament. Is the decision of a government the same as a vote endorsed by parliament? Can a government act contrary to common-sense and the constitution, without any endorsement of that action from parliament, and not be held accountable? This is the question.)

The High Court has previously indicated that the question is, essentially, a matter to be resolved by the parliament. (It is the responsibility of the high court to ensure that a government acts legally, in accordance with the constitution, and with the interests and freedoms of the people of australia in mind. The high court is abrogating this prime responsibility.)  

The High Court will later be writing its reasons to explain why it allowed this course of events to continue. I, and many other Australians, will be reading and discussing it.