Wednesday, April 25, 2012

A Gun to Your Head?

It's hard to work out what I feel about this report:
Full story here
There was a similar story in the Australian that focussed on O'Farrell's refusal to rule out mandatory sentences for gun crime:
Full story here
Those of you who read regularly will know how I abhor populist Laura Norda policies (see here, for example). Almost invariably they take away discretion from courts and impose harsh, punitive penalties whilst have no effect whatsoever on the crime rate.

It is really easy to appear tough on crime, but extremely difficult to actually do something that reduces the incidence of crime. Greg Smith (for the most part) deserves recognition for what he has achieved in this area since he entered the AG role.

The reason I'm conflicted about O'Farrell's comments is this.  In the past, Premiers would have been desperate to be seen to be "taking action" and "making changes" to "keep our community safe". They would lambast the judiciary, introduce new penalties and rant and rave on radio about how they are fixing the problem.

O'Farrell's approach has been a little more subtle.

I wrote earlier about changes to the criminal law that were (ostensibly) introduced to help prosecute these offences.  Most of the changes were (as I discussed) superficial at best, but it got Labor off the Coalition's back.

What I'm wondering is whether there is a bit more to this than meets the eye.

First of all, he made the comments at the traditional home of reactionary law-making - talkback radio.

Second of all, he didn't promise action the way past premiers would have - when asked about mandatory sentencing he said he was "open to all options".
He knew that the papers would uncritically pick up on that comment, and I'm convinced that was the intention.

Thirdly, he made vague comments about the sentences the offenders would be given, banking that the media would pick up on that. The Herald came through for him:
The result? Stories about how O'Farrell is outraged by the crime, which somewhat dulls Labor's attacks. Talkback listeners would have eaten up his comments yesterday.

He hasn't made any commitments, so he won't need to deal with the fallout that would follow from actually making those changes.

Maybe I'm just being excessively pragmatic about things. But I care far more about the changes that get made rather than meaningless posturing. And if we have to have one of those two, I know which I would prefer.

Saturday, April 21, 2012

The Mark of the Man

Sometimes it's not what was done, but how it was done that matters.

Yesterday this announcement flew around twitter as the week ended:
Mark Tobin had been a NSW political reporter for the ABC.

Suffice to say, some of the responses were not universally congratulatory:
Interestingly, Tobin's twitter account immediately disappeared and he has not been seen or heard of since.
I've not seen any news reports about the move, nor have I tracked down an announcement from O'Farrell, the Liberals or Tobin.

In fact, the only people who have let anyone know about the move have been fellow journos who, presumably, were told by Tobin personally.

Now, it should be noted that journos move from the press gallery to take up jobs in politics all the time. And it makes sense - who better to help a politician interact with and anticipate the media than a person who used to work there?

My real concern would be people moving in the other direction - can we trust a journalist who used to work for a politician he or she is reporting on?

The only issue that concerns me is the nature of Tobin's reporting while the job was "under negotiation".  The problem, of course, is this: we have no idea how this hiring was undertaken.

@stilgherrian is right about one thing - if Tobin was going through some sort of interview process, it would highly inappropriate for him to have continued reporting on NSW politics in the meantime.  I presume that the ABC would have some pretty stringent policies and rules surrounding this very area - I'm sure this isn't the first time such an issue has come up.

An (admittedly quick) search tells me that the last story he published that is available online is this story, published over a week ago.

That suggests to me that he has taken leave, or at least stopped publishing stories, while the job was under negotiation.  Which is good.

That said, I did find this page which suggests that Tobin was tweeting about NSW politics as late as yesterday:
He also sent these tweets a few days ago:
That raises the complex issue of whether a tweeting journalist is doing so in their professional or private capacity. So maybe, at least as far as these tweets are concerned, @stilgherrian does have something to be upset about.

The whole "problem" comes back to this: we have no idea how and when the job was offered, who approached who, when it was accepted, when he tendered his resignation, or what discussions may have been had previously.

The moment the move was announced, a fact sheet should have been released by one of the parties telling us what went on when, so speculating blogposts (and angry tweets) won't be sent.

The void, as always, is quickly filled by something.  And if facts are no available, speculation and innuendo will do just fine.

This is even more important when you consider who Tobin is replacing: Peter Grimshaw. This appointment would have gotten attention no matter who got the gig - O'Farrell seems pretty foolish to not make sure all basis are covered.

I'm a little amazed that NSW Labor haven't yet flooded the market with press-releases about the issue - it doesn't even appear to have been mentioned on their website, nor have I found any news reports covering the appointment.

At a time when O'Farrell's press office has been the centre of so much attention and drama, you would have thought that he would be desperate avoid even the perception or possible inference of scandal.

You would have thought.

UPDATE: This tweet from @SeanNic clarifies something I've perhaps over-simplified in this post. Tobin has been added to the media team - not directly replacing Grimshaw.

Sunday, April 15, 2012

A Green Revolution

The political twitterati have been all aflutter this week over the news of Bob Brown's shock resignation. Not so much the fact that it happened, but the fact that it was not preceded my months of speculation from all quarters.

I've found it fascinating to read over some of the accounts of his careers in politics, especially given that much of it preceded not only my interest in politics but even my birth. I particularly enjoyed this outstanding collection of photographs published on the SMH website.

No matter what your opinion of his politics, the man has achieved amazing things.  It will be fascinating to see the Greens attempt to move out from under his not inconsiderable shadow.

That will be a particularly difficult job as the ALP's prognosis worsens. It remains unclear how many of the "old ALP faithful" (especially the blue collar workers) will favour the Greens, as opposed to becoming what we used to call John Howard's Battlers.

In those circumstances, I thought it would be interesting to "take stock" of what the Greens have achieved in NSW, and consider what effect (if any) the events of the last week might have.

Lower House

In the 2011 election, the Greens managed their first ever lower house member (MLA): Jamie Parker in the seat of Balmain.
The man himself. Photo from here
Parker had a good background in local government, having been a councillor in Leichhardt (a council that falls within the seat of Balmain) for over a decade, and mayor there since 2008.

The seat of Balmain has been created and abolished (and held a number of different names) over time in NSW (as the wikipedia article helpfully sets out), and was most recently revived for the 2007 election.

Verity Firth (ALP) won that year with a 54/46 preference count over the Green candidate - the Liberal candidate was competitive but was well behind on the first count and never looked like catching up on distribution of preferences.

In the 2011 election, it appears that the Greens were going to be competitive in two seats: Balmain where they were running Parker, and Marrickville where they were running Fiona Byrne, mayor of Marrickville. Both were inner city seats, and therefore presented a demographic most likely to elect a Greens candidate.
Fiona Byrne. Photo from SMH
In the event, Byrne missed out by less than a thousand votes.  In Balmain, Parker was third on election night, but in the end won with a 53/47 preference count over the ALP.

Somewhat incredibly, the Greens finished 2nd in 14 other seats.  How much that had to do with the anti-ALP vote remains to be seen.

Upper House

The Greens are always likely, at least for the foreseeable future, to find opportunities in the Upper House, given the Westminster system that we operate under.

Their representation has steadily tracked upwards since their first member (Ian Cohen) was elected in the 1995 election, where he served two 8 year terms.
Photo from the Greens website
Since then, the vote has tracked upwards:

1991: 3.3%, none elected
1995: 3.7%, 1 elected
1999: 2.9%, 1 elected
2003: 8.6%, 2 elected
2007: 9.1%, 2 elected
2001: 10.3%, 3 elected


Since the election the polling numbers for the Greens appear to have increased:
However, that needs to be considered in light of their polling numbers before the election:
It may be that the polling numbers for Greens will be stubbornly higher outside of campaign than within it - you will note that the numbers nosedived from 17% to 11% as soon as the campaign starting.  This may have a lot to do with the significantly greater advertising dollars that the major parties have to spend during a campaign.

What also remains to be seen is the effect of the minority government in Canberra, as well as the Carbon Tax.  Recent trends appear to suggest that voters are pretty good at telling the difference between state and federal issues, but that remains to be tested when it comes to minor parties.

Having said that, the Greens are not pitching for the centre (yet).  It may well be the case that the additional exposure that the federal politicians have received will increase the Green vote as many people find out that the "loony left" isn't quite as loony as they thought.

It may well be that the Greens are going to change our 2-party system into a 3-party system.  On the other hand, we all know what happened to the Democrats.

Time will tell.

Sunday, April 8, 2012

Poor Judgment

The controversy over appointment of judges is (luckily) a spectacle that we are typically spared in Australia.

As a lawyer, and moreover one specialising in criminal law, I strongly believe that there are few things less edifying than "electing" judges.

There are probably few other decisions that should be as non-political.  After all, judges are tasked with applying the laws made by the legislature. They are a separate head of government, and should be entirely divorced from the political arena.

It goes without saying that judges will make decisions that have political consequences.  But there should not even be the slightest hint that any decision is coloured by an ideological perspective.

Nowhere is this unedifying spectacle more obvious than in the United States.

In the US all Supreme Court judges need to be "confirmed" by the Senate. This means that a majority of the US Senators need to vote to "confirm" an appointment made by the President.

It is a grotesque spectacle.  Every decision, every on-the-record word ever uttered (and many more off the record comments) are raked over by opponents in a desperate attempt to shape the court. Abortion being the political hand-grenade that it is in the US, the justice's position on abortion alone will often define whether he or she is even nominated.

The particular power of the US Supreme Court (for reasons beyond the ambit of this post, far greater than the Australian High Court) as well as the appointment for life (as opposed to the compulsory retirement at 70 in Australia) mean that an appointment can radically affect the Court and, consequently, the country for decades to come.

All in all, it is yet another reason I am grateful to live in Australia.  Here, the AG consults widely, lawyers speculate frantically, a recommendation is made by the AG to cabinet, and the cabinet makes a recommendation to Governor General.

The process in NSW is identical.  The AG takes advice, and makes a recommendation.  Whilst there are obviously political considerations, the process is remarkably apolitical, and whilst there will always be a wide range of views, the particular politics of an appointee are seldom in issue.

And so it should be.

Judges and Magistrates of course are human beings with their own particular prejudices, views and opinions.  Some will sentence harshly in criminal matters; others will tend to find duties of care others cannot in negligence matters; still others will often accept the word of an employee over that of an employer in a work-safety case.

But the close supervision of higher courts (as well as monster egos that cannot countenance being put in their place by higher courts) mean that, as a rule, NSW courts are as predictable and reliable as could be expected from a system run by human beings.

That is why this article came as such a surprise when I saw it yesterday morning.
The article went on to say the following:
There are a few things that are just plain stupid about what Phelps has had to say, working on the assumption that he did in fact say them.

The first is the idea that we can be choosy about who we appoint as judges (and, for that matter, magistrates).

There are a very limited number of people who have the necessary ability, experience and temperament to be a judicial officer.  Moreover, just about anyone good enough to be appointed a judge takes a significant pay-cut to do it (often reducing their income by as much as 75%). We simply cannot afford, if the standard of the bench is to be maintained, to start considering "political leanings".

The next assumption is that the system would be better if we did consider such matters.  Firstly, as discussed above, the ideology of a judge means less than in the US.  Sure, there are judges who are more conservative - but they are more to do with conservative views about the role of the judiciary, rather than conservative political leanings.

This is especially so in any court below the High Court - to suggest otherwise would betray a profound ignorance about the operation of the legal system.

The most infuriating part of this article, however, was the below:
To question the suitability of a judge based upon a client they have represented is truly disgraceful.

Firstly, as a spokesman for the AG Greg Smith noted, when one is at the bar the "cab-rank rule" applies.  This means that if a person approaches you to act for them, you HAVE to take them on, as long as they can pay your fee and you have capacity.

It's the same as a queue of cabs (hence the name) - a cab doesn't get to reject a fare because they don't like the journey length, and a barrister doesn't get to reject a client because he or she finds them morally reprehensible.

There are a number of reasons for this, but the most important one is that everyone is entitled to representation. As someone practicing in criminal law myself, I understand that better than most - I represent some people who have done or are accused of doing awful things.  What kind of legal system would we have if such people were not able to obtain representation but rather had to fend for themselves?

That point is the basis for my second criticism - who is to say that the fact that these barristers represented Mamdouh Habib and David Hicks tells us anything at all about the kind of judge they would be?

I know these judges only by reputation, but I can assure you that the fact they acted for these clients tells us absolutely nothing about their politics or their prejudices.

To criticise Mr Maiden on the basis that he acted for Orkopoulos is, to put it simply, gutter politics at its worst.  As a barrister, Mr Maiden had no choice whatsoever when he was approached to act for Orkopoulos, and to suggest otherwise is unfair and misleading.

Finally, it is plain wrong to suggest that the previous clients of a lawyer tell us which side of the fence they will fall on when it comes to dealing with serious criminals.

There are a lot of defence lawyers I speak to who have become remarkably cynical about the stories their clients tell them.  By contrast, a great number of prosecutors (who only hear the stories filtered through the lawyers) display remarkable compassion towards accused persons.

Typically a magistrate or a judge is lenient to a fault upon being appointed, and then starts to become more cynical and hard-hearted as their career drags on.  That is not ideal, given that all judges would (in an ideal world) be 100% consistent and predictable, but my point is that any leniency almost always has nothing whatsoever to do with the judicial officer's background.

To suggest otherwise is grossly unfair to those judicial officers, and a concerning hat-tip to the overly politicised and frankly unpleasant judicial system in the US.

Here's hoping it is the last we hear of it.

Wednesday, April 4, 2012

A Promise from the Heart IV

[If this post appears poorly formatted on your screen, I can assure that it has everything to do with a small disagreement that my router and Blogger appear to be having.  Apologies.  Hopefully they will work it out soon.]

In the first year or two of a new government, often all the talk can be about mandates and political capital.

There are two ways to burn political capital: by doing good but unpopular stuff, and by screwing up.  O'Farrell is doing plenty of the former, but the latter is starting to eat away at his capital.  After all, he did promise this in his Contract with NSW:

I've written previously about what kind of mandate the O'Farrell government has.  In short, given that the Coalition was elected after making precious few promises (as Labor's "Don't give them a blank cheque" campaign tried to convince us), it is my view that O'Farrell has a mandate to do pretty much whatever he wants, given that the voters didn't seem worried about his vague and often threadbare promises.

The issue of political capital is a more subtle one, and it all relates to the next election. 

Any politician who gets elected to any office has their eye on the next election. Depending on the quantum of the victory, there may be an opportunity to do some actual good, despite it being unpopular or politically inexpedient, and not risk a backlash big enough to lose the next time round.

It goes without saying that the bigger the margin of victory, the bigger the capital to "spend".

In the US, Obama has spent most of his political capital on health reform - and, given the history of health reform in the US, it is difficult to imagine a more deserving target.  He has copped an absolute hammering for it, but the size of his win in 2008 as well as the enduring goodwill towards him should be enough to see him comfortably reelected later this year, economic woes notwithstanding.

One of the (many) reasons that Gillard has struggled so in the polls federally is that she did not really have the political capital to push through a reform as inevitably unpopular as a Carbon Price.  The issue is far more complicated than that, but suffice to say that if she has won the 2010 election by 40 seats she could have easily sailed a Carbon Price through the parliament safe in the knowledge that she had the buffer to withstand the resultant attacks.

As it is, she sits on a 27% primary vote, due in no small part to a reform she didn't really have the capital to pursue.

In Queensland, Newman has been swept to power with an eye-popping majority,  He has the capital to do pretty much whatever he wants - although at the moment he seems content to use it to piss of writers for no good reason.

O'Farrell won the last election big - big enough that all he needs to do is stay upright and he will have 8 years.  Imagine what he could achieve in 8 years?  Imagine knowing that you have that amount of time to reform a state and to be remembered as a great leader in this state's history?

He has started a number of infrastructure projects that were long overdue.  Those projects will cost a lot of money, and (on balance) he will probably have to wear some hurt for that.

He has given Greg Smith (the Attorney General) the freedom to pursue a thoroughly excellent agenda of reforming our Laura Norda policies and undo some of the damage done by decades of competition to prove who was toughest on crime.

These steps are thoroughly respectable and excellent uses of the political capital he has accumulated. But the media in NSW is far too used to writing nsw political scandal, and Robertson has been all too eager to stoke to fire, even when it was thoroughly unjustified.

In fact, I've written previously about perceived scandals that were pure confection:

- Stoner and the solar panels (100% smoke and mirrors)
- Cansdell and the drink drive (immediately diffused by his ignoble resignation)
- a nameless minister accused of a sex offence

The Grimshaw debacle is the first mud to really stick though.  And it all arises out of O'Farrell's failure to take decisive action.

I've written about the issue previously.  Suffice to say, given what we now know (and what O'Farrell must have known and therefore expected to be revealed for some time) it seems inevitable that Grimshaw could never be allowed to return to work in O'Farrell's office.

Maybe it was loyalty that stayed O'Farrell's hand until now. Maybe it was arrogance. I don't know, but either way the drama has givent the Terror a reason to write this editorial.

It is more than a little hysterical, but these paragraphs are going to ring true:

I usually try and avoid quoting The West Wing on this blog, because it seems a little naff - but in this context, it's hard to go past this quote: