“You have to die, so that I can live.”

Last night, I watched a rather depressing documentary on SBS called The Anatomy of Evil. It was about people who perpetrate genocide. I’ve been morbidly fascinated with this question for a while now, as I’ve explained in an earlier post. I’ve never quite been able to fathom how people could shoot/gas/blow up an innocent civilian.

This documentary consisted mainly of interviews with former members of the Einsatzgruppen and Serb paramilitaries, each of whom conducted ethnic cleansing of villages by lining up people and shooting them at point blank range. Some interviewees were unrepentant, and said they’d “do it again if it was necessary”. Some still regarded the people whom they had shot as sub-human. A few regretted their actions and felt less than human.

The director, Ove Nyholm, concludes that the trigger which compels ordinary people to behave like this is anxiety and fear of a threat. In such circumstances, people put aside normal feelings and become ruthless. This is a survival mechanism, and can actually be a positive thing. People can survive in terrible circumstances through sheer willpower. But in the scenario where a group of people who live alongside you are identified as the threat, there is a risk that you will become ruthless towards those people and cease to see them as human. Add to that a wartime context where violence and killing is condoned and people are forced to follow orders, and the results can be deadly. And there’s the notion of retaliating for past wrongs. One of the most unpleasant interviewees featured in the documentary cited the fact that his family had been driven from Kosovo by Albanians in the past, and that he felt satisfied and a sense of righteous revenge when killing villagers and burning down their houses. Another interviewee said that he became a member of the paramilitary group after his own parents had been brutally killed.

It occurred to me too that this analysis can also help explain other wars and ethnic and religious conflicts which do not involve genocide as such, but where innocent civilians are killed.

Take, for example, terrorist attacks. The way in which terrorists become galvanised to kill innocent people is by considering wrongs done to their own people, and desiring to take revenge. I recall that during the Israeli incursion into Lebanon, someone forwarded a Powerpoint slide of dead Lebanese civilians, including a young boy. The purpose was obviously to provoke outrage against Israel. If I was a radical Hezbollah supporter, I am sure that such pictures would be used to whip me into a state of righteous indignation and revenge. And I am sure that an Israeli defending the incursion into Lebanon would ask me to consider Israeli civilians injured or killed by Hezbollah rockets, or Hezbollah terrorist bombs. They might also point to the suffering of Jewish people in the past in Europe as a reason as to why Israeli territory should be staunchly defended. Personally, I consider the loss of life on both sides to be tragic. Neither side can be said to be blameless, but by the same token, the natural human propensity for revenge makes the outraged response of each side understandable. This is why I am so reluctant to “take sides” in discussions on the Middle East, although I am a firm believer that the State of Israel has a right to exist in its original boundaries.

Conflict is fuelled by the notion that the other group represents a threat to the way of life or security of the group. Sometimes, as in Israel, Northern Ireland or Cyprus there are settlers and occupying forces. Sometimes there are competing claims to the same piece of land, or the same holy site (as with some mosques which are targeted by Hindu militants in India). Sometimes the particular ethnic group wants to be separate from the rest of the country, as with Basques in Spain, Kurds in Turkey, Iraq and elsewhere and Tamils in Sri Lanka, because they feel that their way of life and culture is not adequately represented by the government of the particular country of which they are a part. Sometimes, the victimised group is a minority who have been made a scapegoat for a nation’s ills (as with Jews and Gypsies in Nazi Germany, who were targeted because they were different).

When terrorist attacks are mounted, there are retaliatory attacks, often by armed forces. So the US felt justified in attacking Afghanistan because its innocent citizens had been killed by a terrorist plot which had been planned from Afghan territory. One can understand this. The perpetrators had been sheltered by the Taliban regime. But the problem with attacking terrorist or guerilla groups with military force is that they tend to blend back into the normal population, so when you attack them, there is a risk of killing and wounding innocent civilians, which further fuels the fires of righteous outrage.

I don’t know what the answer to all this is, I just know that we should be wary of those trying to whip up moral outrage, whatever side they are on. Take the Cronulla riots in Sydney. Those organising the rally whipped up moral outrage against young men of Middle Eastern background who had been harrassing beachgoers. Yes, it’s true, harrassing innocent people at the beach is a bad thing. As a result of the rally/riot, several people “of Middle Eastern appearance” were beaten and attacked. Bashing people who happen to look like they come from the Middle East is also a bad thing. Then young men in Lakemba whipped up moral outrage to fuel a retaliatory attack. Attacking the houses and cars of people in Maroubra is another bad thing. The thing is that it’s all bad, and it’s mostly innocent people on both sides who suffer.

Perhaps it’s just instinctive that the “ruthless” switch is tripped when we feel that our safety, territory or way of life is under threat. Perhaps we need to recognise that it’s all just part of the way we’re hardwired. Of course one is outraged by injustice suffered by one’s family, friends or compatriots. How much worse would it be if someone in your family or friendship group is killed by a particular group? I’m not sure how I would cope in those circumstances. As Nyholm said in the documentary, he had to acknowledge that he had doubt as to how he would behave. I don’t know either. I’ve never known how I would behave if I were in the Milgram experiment, although I hope that I’m ornery enough to disobey orders. I do hope that if my “ruthlessness” switch was tripped, I would be able to recover my reason and morality. As one of the interviewees said, the scary thing is not that man becomes a beast, but how long he remains a beast.

Perhaps we need to consider that old piece of Klingon wisdom: “Revenge is a dish best served cold”. (Seriously, its first recorded use in that form is in Star Trek II: The Wrath of Khan…the things you learn from Wikipedia!) When our moral outrage switch is tripped, perhaps we need to be aware that our “ruthlessness” switch may also be switched on at the same time, and guard against taking out our anger against anyone who is or may be associated with the group who is said to be morally outrageous. It is difficult to look into the heart of human darkness, but I am glad that I had the courage to watch this documentary.

Costs under a void costs agreement

The case of Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280 deals with the question of legal costs under a costs agreement which was void by operation of statute, but in the event, the client was estopped from alleging that the agreement was void. 

Equuscorp retained Wilmoth Field Warne as its solicitors. The agreement was a form of contingent fee agreement.  It provided that Wilmoth Field Warne would be remunerated at two different rates: a ‘normal rate’ of $400 per hour and a ‘discount rate’ of $66 per hour. Wilmoth Field Warne were to render monthly bills showing professional costs at both rates. Interim bills would be paid at the discount rate, but upon a “successful result” (ie, settlement or judgment and recovery from the judgment debtor) Wilmoth Field Warne would be paid the difference between the two rates.

A little less than a year after entering into the agreement, Equuscorp and Wilmoth Field Warne had a falling out. Equuscorp purported to terminate the agreement and demanded the return of its files. It alleged it had paid costs it owed under the agreement. By counterclaim, Wilmoth Field Warne alleged there were still costs outstanding and it was entitled to retain the files pursuant to a solicitor’s lien.

The legal action was protracted. Various questions were tried between December 2003 and March 2004, and judgment was handed down in the first trial in June 2004.  A second trial occurred in October 2005. Some six weeks after the conclusion of this second trial, and before judgment was delivered, Equuscorp applied for leave to re-open its case. It sought leave to amend its pleadings, alleging that that the agreement contravened s. 98(3) of the Legal Practice Act 1996.  That provision prohibited costs agreements under which a client was liable to pay a premium in the event of a successful outcome other than 25% or less of the costs otherwise payable.  (The current similar but not identical equivalent provision is s. 3.4.28(4) of the Legal Profession Act, 2004.) The trial judge allowed Equuscorp to amend.  A third trial occurred early in 2006. The trial judge held that the agreement was void because of s 102 (the equivalent of today’s s. 3.4.31). The question was then whether Wilmoth Field Warne was entitled to recover any of its costs, notwithstanding the fact that the costs agreement was void.As a restitution lawyer, the first thing which came into my head was the decision of Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221. In that case, a builder entered into an oral contract with a homeowner.  The builder did not realise oral contracts were void under s 45 of the Builders Licensing Act 1971 (NSW). He completed the work, but when he came to demand payment, the homeowner, Mrs Paul, said that she did not have to pay because the contract was void. Nevertheless, the builder successfully sued Mrs Paul for unjust enrichment, claiming quantum meruit for the value of the work done. The High Court agreed that Mrs Paul would be unjustly enriched if she were allowed to keep the value of the builder’s services without paying for them.

However, unfortunately for Wilmoth Field Warne, this argument was not available to them. Section 102 provided that a legal practitioner who has entered into a contract which infringed s. 98(3) ‘is not entitled to recover any amount in respect of the provision of legal services in the matter to which the costs agreement related,’ and this provision took precedence over s 93 which did allow for fair and reasonable compensation to be paid in the absence of a valid costs agreement.  In other words, though parliament had contemplated that, as a minimum, lawyers should be remunerated on a ‘fair and reasonable’ basis even in the case of a void costs agreement, it had taken away that protection in the case of certain cases of voidness, occasioned by conduct which it presumably considered to be egregious.

Wilmoth Field Warne was forced to argue that Equuscorp was estopped from denying the validity of the costs agreement. Estoppel applies where a person has created a representation or an assumption on which the other person has relied to his or her detriment, such that it would be unconscionable (unfair) for the first person to resile from that assumption or representation. So let’s say I ask you to build a supermarket, and say that I’ll lease it from you when you finish building. We don’t actually conclude the terms of the contract, but you go ahead and build 70% of the supermarket. I know that you are building the supermarket. Shortly before it is completed, I turn around and say “Actually, I don’t want that supermarket any more, see you later.”

The landmark case of Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 was a case where this very scenario was played out. The High Court held that Waltons Stores was estopped from denying the assumption that it had created (ie, that the Mahers would be able to lease out the supermarket to it). The Mahers had relied on the assumption to their detriment (by building 70% of a supermarket premises to Waltons Stores’ knowledge).

However, not just any commercial transaction will give rise to estoppel. It has been made clear that corporations on an even playing field (with equal resources and bargaining power) will not be able to argue estoppel, particularly when what has occurred is more in the nature of a “cat and mouse game” played in a commercial negotiation. So in Austotel Pty Ltd v Franklins Self-Service Ltd (1989) 16 NSWLR 582 (another supermarket lease case), Kirby P said at 585–6 :

We are not dealing here with ordinary individuals invoking the protection of equity from the unconscionable operation of a rigid rule of the common law. Nor are we dealing with parties which were unequal in bargaining power. Nor were the parties lacking in advice either of a legal character or of technical expertise. The court has before it two groupings of substantial commercial enterprises, well resourced and advised, dealing in a commercial transaction having a great value. …

At least in circumstances such as the present, courts should be careful to conserve relief so that they do not, in commercial matters, substitute lawyerly conscience for the hardheaded decisions of business people …

The wellsprings of the conduct of commercial people are self-evidently important for the efficient operation of the economy. Their actions typically depend on self-interest and profit making not conscience or fairness. In particular circumstances protection from unconscionable conduct will be entirely appropriate. But courts should in my view, be wary lest they distort the relationships of substantial, well-advised corporations in commercial transactions by subjecting them to the overly tender consciences of judges.

As it turns out, the relative bargaining power of the parties and the commercial context of the dispute were important in the present case. Wilmoth Field Warne argued that estoppel applied to prevent Equuscorp from denying the validity of the costs agreement. The Victorian Court of Appeal accepted that argument (overturning the decision of the trial judge). Buchanan, Ashley and Neave JJA said at [75] – [77]:

In our view there is no doubt that WFW has suffered detriment as the result of its reliance on the parties’ common assumption that the agreement was valid. Prior to the termination of the agreement WFW provided extensive legal services to Equus because it assumed that the parties’ legal relationship was regulated by the agreement. WFW acted for Equus in a number of proceedings and Equus paid WFW for its legal services at the ‘discount rate’ set out in the agreement. After Equus sought to terminate the agreement the parties fought two trials to their conclusion on the assumption that the parties’ relationship was governed by the agreement. In addition to its legal costs, WFW experienced the stress and anxiety associated with the conduct of that litigation and is now faced with the prospect that its efforts in defending the action will have been entirely pointless. In Verwayen Deane and Dawson JJ accepted that the stress and anxiety occasioned by litigation may amount to detriment for the purposes of estoppel and this proposition also seems to have been assumed by Mason CJ.

WFW must also show that it would be unconscionable for Equus to contend that the agreement was void because of s 102 of the Act. His Honour considered that this requirement was not satisfied because:

[i]t is not suggested that [Equus] contributed in any way to the assumption of WFW that the deed of costs was not void. It has not been established that it knew of the statute but, nevertheless, permitted the agreement to be implemented and indeed litigated. The fact that the consequence of the point Equus now takes is that it has had the benefit of WFW’s legal work without payment is a result of the decision of Parliament to visit this draconian punishment upon the legal practitioner.

In our view it was unnecessary to show that Equus contributed to WFW’s assumption. As we have already said…it may be unconscionable for a party to seek to depart from an assumption which provided the basis for their relationship with the other party, even if that assumption was not based on a representation made by the party sought to be estopped. In our view it would be unconscionable for Equus to now assert that the agreement is void.

It was important that Equuscorp was a well-resourced commercial party and that there was no inequality of bargaining power between Equuscorp and Wilmoth Field Warne. Both the Court of Appeal and the trial judge noted that the costs agreement had been negotiated by the then managing director of Equuscorp, an experienced businessman and litigant. The Court of Appeal inferred that the policy behind the provisions of the Legal Practice Act which had been contravened in this instance was to prevent vulnerable and powerless clients from being exposed to excessive costs. It was material that the agreement did not expose Equuscorp to excessive costs, but indeed in some respects, it operated against the interests of Wilmoth Field Warne. Therefore, the Court of Appeal found that because the policy of the Act was not contravened by the particular agreement, the terms of the Legal Practice Act did not operate to exclude estoppel.

In my opinion, this appeal was correctly decided.  Although the costs agreement between Wilmoth Field Warne and Equuscorp technically breached those provisions, in fact it did not expose Equuscorp to excessive costs. In addition, very importantly, the parties had been litigating for four years on the basis of the assumption that the costs agreement was valid before Equuscorp actually raised the argument that the agreement was void. In those very particular circumstances, it seems fair that Equuscorp be estopped from denying the validity of the agreement. Whether or not estoppel will operate to prevent the operation of a particular statute will depend on the particular circumstances of the case, and whether the policy of the statute would be subverted if estoppel was allowed to operate.

Postscript: I was inspired to write on this case after reading about it on Stephen Warne’s blog here and a subsequent discussion over coffee with Stephen. My gut feeling (without reading the case) was that estoppel was inappropriate in the context of void costs agreements, but interestingly, once I read the case in full, I changed my mind.

Rights or wrong?

When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.

For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned. 

Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.

I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.

Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.

I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:

• There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.
• More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.
• There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.
• There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated. 
•  Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.

At [50] of their paper, the barristers conclude:

The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.

I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.

Out of it

I can tell that I’ve been out of it lately. How else can I explain that I missed the fact that Robert Jordan, author of The Wheel of Time series, died last week? Condolences to his family.

I hope someone will finish off the series, otherwise I’ll be left with this hanging on the edge kinda feeling. I hope that all the loose ends get tied up as well. It was getting increasingly unwieldy.

More on choosing judges

Women are represented in the law as judges, barristers, solicitors, attorneys-general, law makers and court administrators. They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.Women provide perspective. They search out the resolutions.Women have finely honed organisational skills (hence they make excellent juniors and instructors in litigation, sometimes of itself a distinct disadvantage).

Women are adaptive and flexible. They have identified the open and closed areas of legal practice. Thus, women have remained in the traditional fields of family law, conveyancing and criminal prosecution but expanded into relatively new areas, taxation and revenue law, planning and environmental law, administrative law, human rights law and indigenous land rights law. In so doing they have avoided the more adversarial, combative zones of commercial law and common law.

Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in the superior courts…

(Extract from speech by Marilyn Warren, current Chief Justice of the Supreme Court of Victoria, on 15 May 2003 to Victorian Women Lawyers)

I’d like to explore my own ambivalence about the words of Chief Justice Warren above. Are women different to men? Do they bring different qualities to a role? Before I had male cousins, I would have said that women and men were the same, but I no longer believe this. In general, women and men do have different approaches to matters. That is not to say that either approach is better than the other. It is also not to say that all women are the same. Most people will have a mixture of “masculine” and “feminine” traits. For example, my husband will kill me for writing this, but I am better at reverse parking and spatial tasks than he is (typically thought to be a more masculine trait). Further I am far more adversarial than my husband. He does not like confrontation. I don’t like it either, but if I have to confront someone, I will. And there are women who are far more aggressive than any man, and far less caring. Think about someone like Maggie Thatcher – hardly a stereotypically “feminine” woman.

I guess I’m wary of gross generalisations, and the idea that women are somehow better than men. We aren’t better than men, sometimes we’re just different. But I do think that many women have a very valuable perspective to add to the judicial bench. With this in mind, I am considering the appointment of Justice Kiefel to the High Court of Australia.

Will Justice Kiefel bring a different perspective to the Court? I really hope so. I don’t care if it’s as a result of her gender or not. To me, the point for celebration is not that Her Honour is a woman, but that she shows some signs of having independent thought processes. The present High Court is so hidebound. I don’t know if this is some kind of pendulum effect – whether the Court is at pains to swing away from the perceived “activism” of the 80s and 90s. I think that this is mistaken. To try to keep the law static is as much activism as is attempting to change the law. It also has a political agenda behind it.

The whole point of being on the High Court is that the law is (within reason) what you say it is. You are not bound by precedent. A High Court should both explain what the law is and develop it if necessary. By contrast, recent judgments of the House of Lords in the last 10 years have been interesting and one gets the feeling that they actually have open minds. I find myself almost wishing that there was still an avenue of appeal to the Privy Council. {Zounds, can a republican like myself really be saying that? Shows how desperate times have become… Note for US readers: republican = anti-Queen-as-head-of-Australia in this context}

So, congratulations, Justice Kiefel. May you make a difference!

Portrayal of accused and the law

Dave Bath at Balneus has an interesting post comparing the court sketches of Dr Haneef, noting that the sketches in the Murdoch press make Dr Haneef look somewhat like a Neanderthal.

Now it could just be a matter of personal interpretation. I must confess that when I worked in and around the court system, I used to occasionally do sketches of people (witnesses, barristers etc). Some sketches were better than others. Some people might have been a bit offended had they seen some of my renditions. Sometimes a sketch took on the character of a parody, even when I hadn’t intended it to do so. Perhaps that’s what happened to the Court artist.

But Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the public to draw adverse conclusions about that person?

This area of the law is called “contempt of court by publication”, and it is a somewhat byzantine jurisdiction. There is an inherent jurisdiction in the court, and also legislative provisions preventing contempt of court. Contempt by publication covers the publication of material which might tend to adversely influence a jury before trial. There is of course a balance between freedom of speech and the right of a defendant to a fair trial. The question is also how far media representations do actually influence jury members. According to the WA Law Reform Commission Report on Contempt, a study (M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (2001)) found:

1. Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate.

2. Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.

3. In trials where the evidence was equivocal [that is, not strong in favour of guilt or clearly insufficient]…there was greater reason to believe that publicity may have affected the verdict.

As a lawyer who has seen cases that she has worked on reported in the press, I would agree that you really can’t trust press reports, and that it is quite a different thing to sit in court and watch witnesses testifying to reading about it in the paper. Also, seeing someone in the flesh is very different to seeing them in a photograph or even on television. Personally, I discounted much of what I had read or seen in the press in favour of my own first-hand impressions. But I don’t know if I was influenced subconsciously in any way.

In fact, this is not the first time issues like these have arisen in a high profile case. My mind went back to the media coverage of that terrible event, the Port Arthur massacre, perpetrated by Martin Bryant. Some of the papers, including The Australian, ran a picture where the Bryant’s eyes had apparently been digitally altered in order to emphasise the whites of his eyes, which gave him a crazed look. The then Director of Public Prosecutions, Damian Bugg, issued writs against various media outlets for contempt of court in the light of concern that the sensationalised media reporting would prejudice the defendant’s chance of getting a fair trial (and thus make Mr Bugg’s job much harder).

However, the then chair of Australian Press Council, David Flint, argued that Australian newspapers regularly ignored contempt-of-court provisions, indicating that the law needed to change, rather than the newspapers.

Clearly it’s not a straightforward question. I will be very interested to see what Dr Haneef looks like in a photo, and whether the Murdoch press’ portrayal is fair or not.

What to do? The indigenous crisis

I’d like to unravel the Howard Government’s new plan with respect to indigenous welfare. There are a couple of different issues there.

First, I’m not happy with the use of the word “crisis”, because that suggests something that suddenly crops up. It’s not sudden – it’s more like a chronic problem that has now snowballed to the extent that it can’t be ignored any longer. It has been known for a long time that there are massive problems in some indigenous communities. I’ve written about these issues before.

I’ve been inspired to write this post after reading two posts, one by my lovely friend RG and another by Miss Politics. They were food for thought, because it made me realise that I had a different point of view, but each had good points to make. I was commenting on their blogs, but I then realised I’d be better off writing my own post, as the comments were turning into mini-posts.

1. Political opportunism

The indigenous welfare plan was described in The Age headline yesterday as a “black children overboard” stunt, designed to increase the Howard government’s popularity before a Federal election where they are facing some serious competition. Obviously, this headline produced some controversy.

Yes, I think there is definitely a giant dollop of political opportunism. The Howard government has been in power for 10+ years, and they finally decide to act now, just before an election? Forgive a girl for being a little cynical.

But the next question is: if it saves women and children from abuse, does it matter what the government’s motives are? I say that it does not. Anyone who reads my blog regularly will know that I am not a fan of the Howard government. But if they manage to do something good, I’m not going to gainsay them just because I dislike many of the things they do. I wonder if there’d be nearly so much outcry from the Left if Prime Minister Rudd had instituted this plan? Forgive me yet again for my nasty cynicism. I can only echo the words of Noel Pearson:

Quite frankly, I couldn’t care less whether John Howard or Kevin Rudd ruled this world. My priority is to take advantage for immediate intervention for the protection of children…

I’m not going to reject this initiative without having a closer look at it. On the other hand, I’m not just going to swallow it whole either.

2. A change is needed

Welfare payments have been poured into indigenous communities for the last 30 years in an effort to alleviate poverty, but if anything, paradoxically, conditions have become worse. Perhaps the money isn’t getting down to the grass-roots – but surely if the system was working, we’d be seeing some sort of improvement by now?

Some of the responses to Howard’s plan infer that the problems of the indigenous community will be cleared up if we address the underlying social issues. I presume that this refers in part to the need to recognise native title, the need for reconciliation and for saying “sorry”. Yes, I agree, it is important to acknowledge that some terrible things have been done to indigenous people in the past.

I am a very strong supporter of native title, although unfortunately, as presently conceived of by the Courts and the Native Title Act, it is such a weak property right so as to be non-existent.

However, I think that these issues should be part of a long term strategy, not something that can be used to fix problems here and now.

Terrible things are happening to indigenous people now. It is important to tackle them head on, decisively. I’m all for the long term plan mentioned above, but it is not the priority. Let me quote from a newspaper article in The Age from last year:

In the western desert community of Papunya the cultural notion of “secret men’s business” has taken on a particularly sinister interpretation for at least four under-age girls, the youngest being just seven.

Seven months ago the girls were found to have serious sexually transmitted infections — some of the worst in the medical books — but health workers claim child welfare authorities are yet to send anybody to the community to investigate.

In the meantime it is believed that at least one of the girls was reinfected by her abuser.

…

Not only is it claimed that officials from the Territory’s Family and Child Services Department (FACS) have not travelled the 280 kilometres to Papunya, health care workers at the community have told colleagues in Alice Springs that they have been reprimanded for not first consulting with parents and community elders about the spate of infections.

A health care worker who regularly visits Papunya told The Age by way of background: “The situation is astonishing. What the medical staff were being told to do was consult the potential perpetrators of abuse. Where else in Australia would this happen?”

Because the infections include resilient strains of gonorrhoea and syphilis, there are suspicions that the abusers are more likely to have been men, rather than teenage boys.

“FACS should have sent out a team of experts as soon as the infections were detected who could talk to the children and parents in their own language while the issue was immediate and before anybody could put pressure on the girls to remain silent,” the health care worker said.

We have to deal with the practicalities of this now. As the mother of a young girl, the above extract makes me feel sick to the core.

I believe that just focusing on reconciliation as a solution is problematic. Yes, I have marched on reconciliation marches and the like. Of course I want indigenous and non-indigenous Australians to live together in mutual respect. However, the “sorry” campaign can carry an inference that the problem is the fault of non-indigenous Australians, and once we apologise, the problem will go away. I don’t think it will. It’s a bit like those child abusers who say, “I couldn’t help it, my family was poor, my father abused me, my mother was a drunkard.” It may be an explanation, but it is not an excuse. The perpetrator of the abuse has a choice.

One of the examples raised by Nanette Rogers, Crown Prosecutor for the Northern Territory, when she blew the whistle on this issue last year, was that of a 6-year-old girl who drowned while being raped by an 18-year-old man, while other children watched on helplessly. I don’t think colonisation provides an excuse for that kind of behaviour. And it is not the fault of the non-indigenous community that he did this terrible deed. Yes, the young man might be poor and disadvantaged, but that doesn’t mean he is excused from raping and killing small children. It was his choice, and his responsibility.

I believe that one of the important pieces of the puzzle to true self-determination is taking responsibility for your own actions, and being aware that you can change the way in which you behave. To this end, I agree with Noel Pearson that there has to be an end to the “victim” mentality – that of blaming others for your troubles. I believe in empowerment of indigenous people; that they can control their own destinies. It should all be about teaching people to stand on their own two feet.

One of the main things which stops indigenous people from taking control of their own destiny is the endemic drinking, drug use and petrol sniffing which afflicts communities. It is very hard to control your own actions if you are totally trashed. Your brain and body are literally destroyed. Further child abuse is far more likely to happen when parents are “out of it”, and don’t notice what is going on with their kids. Even if adequate educational facilities are provided, if your parents don’t care whether you go to school or not, you are unlikely to attend.

3. The proposed plan of action

Pros of the plan

I think that indigenous communities do need drastic action at least in the short term to break the cycle of despair (including banning alcohol on reserves, and making support payments dependent upon children attending school). I would be much more worried about the banning of alcohol if it were not for the fact that many indigenous leaders are asking for it to be done. I must take this into account.

I also think that the fact that someone is actually doing something about this issue is good, whatever the motives behind it. I note that some indigenous leaders have given support to the plan. If some think it is a good idea for their communities, or are prepared to give support to a modified version of the plan, who am I to gainsay them, as a white city gal? On the other hand, I think it’s also really important to listen to those leaders who criticise the plans, as they may have good points.

Cons of the plan

The downside of Howard’s plan is the very hasty, aggressive nature of it. As much as I say that I’d like something to be done now, I would have preferred a little more thought and consultation to go into it. Personally, I like to take a deep breath and think through the implications before I do something. Paradoxically, this is because I am a very emotional person, and so I need to think in case I shoot from the hip and end up hurting someone without intending to do so.

If a thing is worth doing, it’s worth doing well. In this sense, I tend to agree with Lowitja O’Donohue:

Ms O’Donoghue, a former ATSIC chairwoman, said her opposition was based on a fear the intervention was too draconian.

“The people who are speaking out now welcome the intervention but we do not support the draconian intervention,” she said.

“Army trucks rolling in is pretty frightening for a community that’s been demonised. Governments should listen to a proper strategic plan in how they go about tackling this emergency. Of course it’s a national crisis.”

I note also that Rex Wild QC, the joint author of the report Little Children are Sacred has also criticised the plan, saying that the Federal Government should have been trying to build up a relationship of trust with indigenous people. Wild said on Lateline Business

“Well, the first problem is that people’s backs are immediately up. We didn’t have that problem when we arrived. …[W]hen we did our work, we were well-received because we spent some time preparing the people for what was coming. The troops didn’t arrive. We didn’t arrive with a battle ship. We arrived gently…”

Scaring people is not a helpful way to try to get them on board. But then, on the other hand, if it stops little kids from being raped or women from being beaten, it’s a lesser evil to prevent a greater evil. Perhaps it’s a start to a greater focus on these issues. I hope so.

4. Conclusion

One of the problems with indigenous welfare is the lack of coordination between Federal, State and Local governments. For this reason, I agree with the proposal last year by Noel Pearson, Patrick Dodson and Marcia Langton that a body such as the Productivity Commission be set up to coordinate indigenous welfare reforms.

I do hope that some positive things come out of the plan. I also hope that it will be ensured that communities have adequate services, such as fresh water, health care, educational facilities, mental health facilities, housing and the like. Proper services are vital to improving living conditions and living a healthy life.
I do not think that the plan will work without getting a majority of indigenous people on board. It is crucial that any process which is to have long-lasting beneficial effects on indigenous people be seen to have indigenous input and support. I know from my own experience that unless you have an internal desire to change yourself, there’s no hope of anyone else forcing you to change. Change must come from within. And realising that you have the capacity for positive change and growth will lead to real self-determination.

Performance anxiety

Leon Gettler has a post about performance reviews on The Age blog. It struck a chord. I’m not the greatest fan of performance reviews. I don’t think I’ve ever had one which has been helpful. Most of the time, they have been “rubber stamp” affairs, with bosses ticking various boxes just so that we can say that we’ve gone through the process (thus keeping the HR department off our backs).

Gettler cites a study by Personnel Decisions International (PDI) which found that, where employees report to multiple bosses, the employees’ performance ratings were inconsistent, and sometimes bosses gave wildly varying ratings.

In a study of 5,970 employees reporting to two bosses, employees who were rated “Outstanding – one of the best” by the first boss, were rated lower by the other boss 62% of the time and only “Somewhat above average” or less 29% of the time.

“Unfortunately, the concept of rater bias is something that almost every company encounters,” explains Brian Davis, executive vice president, practice areas at PDI. “This basically means that bosses are rating employee performance through their own biases. Some bosses tend to rate employees on how well they like them, rather than how well the employee performs. Other bosses tend to have their own rating systems where, for example, they rate everyone well. The problem with rater-bias is that it takes away the organization’s ability to objectively use data from performance evaluations with any validity.”

Apparently part of the problem arises when performance assessments do not address specific competencies or criteria.

“When two bosses are involved, it is crucial to use common standards for rating employee performance,” Davis continued. “By knowing which skills and competencies are important for the work and what types of behaviors constitute an ‘average’ rating compared to an ‘above average’ rating, for example, the entire validity and value of performance evaluations greatly improves.”

“When standards are not used, you can’t count on the objectivity or accuracy of a performance assessment and you have no differentiating data that allows you to make confident decisions about promotions, training or leadership development,” Davis continued. “Today’s best companies simply cannot leave their talent management decisions to chance. They need to know that the time and effort put into performance evaluation have a return on investment of making better talent management decisions.”

Even if there are standards, some performance criteria are useless. What does “communicates well” mean? “Communicates well” with whom? Clients, co-workers or bosses? I’ve spoken before about the problem of people who are very good at managing upwards (communicating with their bosses) but may be very bad at managing downwards. Nonetheless, because it is the boss’ impression which counts, these people move on up in an organisation, even when their bad management style leads to massive attrition. “Must be the junior employees’ fault – no backbone or loyalty,” think the ultimate bosses or partners.

The problem is that promotions and salary increases may depend on these ridiculous exercises. Bad practices can filter through the whole organisation. If you see someone promoted on the basis of personal friendship, despite the fact that he or she is not qualified for the job, it is absolutely demoralising. You begin to wonder what you are doing at the organisation or firm.

It has always seemed to me that if your manager is competent, you don’t need to have a performance review. You have an idea of how you are performing and what your duties are. You know whether you are likely to progress and that your work is appreciated.

Unfortunately, real life ain’t like that most of the time. It’s probably good to force people to think about how they manage their junior employees, as well as giving junior employees a chance to tell management of any problems. But I think that the “check the box” performance review is a poor way of doing it.