Australian Politics 2022-07-13 04:30:00


Henry Ergas is wrong on abortion law

"Stare decisis" is a good conservative principle but a lot depends on what is being conserved -- and by whom

James Allan

This week I’d like to comment on a piece in the Australian last week by Henry Ergas because I think this is very important. Normally my views line up pretty well with Henry’s. But his piece last week was seriously misguided. In it, Ergas argued that conservatives ought to be lamenting the US Supreme Court’s overturning of Roe v. Wade and they ought to be doing so because stare decisis – basically the doctrine that courts stand by past decisions save in extreme instances – is a more important value than the fact the Roe case was wrongly decided. Ergas argued that only in instances of ‘manifest error’ ought a top court overturn past precedents. He drew an analogy (to me wrong-headed) with the Brown v. Board of Education case. Basically, Ergas would have been happy for the top court in the US to stand by Roe. He even claimed this was the ‘conservative’ position.

I won’t sugar-coat my response. Every main point Ergas makes is wrong. First off, in his long detailing of the history of stare decisis Ergas omits to mention that this doctrine evolved in England, which has a Diceyan unwritten constitution and it did so in the context of common law (or judge-made) law-making. And always lurking in the background of the common law are potential statutes coming in to overrule the judges – meaning the elected legislature can any time it wishes step in and overrule the judge-made laws (i.e. common law). So stare decisis makes a lot of sense in that context.

But now translate that doctrine to a system with a written constitution with unelected judges specifically interpreting its provisions. What the judges say here cannot be second-guessed or overridden by any elected branch because the judges are speaking in the name of ‘the Constitution’. So the question arises whether the interpreter’s greater loyalty or fealty is, or ought to be a) to this over-arching constitution and its honest and proper interpretation or b) to what some of his past colleagues claimed it said? If you side with b) here it is nothing like siding with stare decisis as regards the common law (when the elected legislature can step in) or even as regards the interpretation of statutes (when, again, the elected legislature can step in to correct the judges).

If you think about it for even a moment you’ll see that Ergas’s position is profoundly undemocratic. Worse, what the US Supreme Court did in over-turning Roe was simply to return the issue of abortion to the elected legislatures of the states, the way the issue has been resolved in virtually every democratic country on earth save the US and Canada (where the judges have become wannabe philosopher kings who make nearly all the main social policy calls). What’s wrong with that consequence Henry? I ask that seriously.

Worse again, the Roe case was a manifest error. It relied on the most implausible reasoning going. Near on nine out of ten US law professors surveyed at the time, the vast preponderance unsurprisingly being lefties, described Roe at the time as wrong. Worse again (and again), the Ergas outlook is a recipe for judicial activism on steroids and usually by left-leaning judges. That’s because there’s a sort of asymmetry at work. Those who care little for past precedent or stare decisis (and as an empirical matter they tend to be ‘progressive’ judges) will play fast and loose with precedents they don’t like.

But Ergas wants – no, he thinks duty demands that – conservative judges not go around undoing their colleagues’ past made-up precedents because, well, ‘it’s not the done thing, old boy’ or some such rationale that’s hard to pin down. And let’s be clear. This Dobbs override decision was the first chance for an interpretively conservative or originalist majority on the US Supreme Court to act – because it’s so hard with today’s lawyerly caste being as progressively woke as it is (I generalise) to appoint interpretive conservatives. So it’s not as though a bunch of conservative judges have been waiting around for decades to do this and just now, out of the blue, opted to pull the switch.

Hence, Henry is triply wrong. You can’t take a sensible rule designed for the common law (or for law made by unelected judges) and apply it in some puritanical way to the interpretation of a written constitution that affects every single citizen. Being happy to be governed by a constitution is not equivalent to being happy to be governed by unelected judges who in some past case just made up an outcome that matched their political preferences or druthers.

I go further. It is attitudes like Ergas’s that have seen the Coalition make hopeless appointments to our top court ever since John Howard was voted out. (I generalise, you understand, but that is the gist of the matter.)

Remember the woeful Love case where our High Court (in my view) holus-bolus out of thin air simply made up some entitlement for non-citizen people with a plausible claim to being Aborigines that prevented them being deported. Everyone else with different genes could be. But not them. And this was based on such deep-seated principles of constitutional law as ‘otherness’ and a stream of woke, identity politics claims that would make a person lacking a strong stomach want to barf (but on nothing, you know, in the actual Constitution itself).

How long is too long, Henry, before our High Court can no longer overturn Love on your view of what proper conservative judging entails? Is it okay to do so in the first five years but not thereafter? Maybe a decade? And how do you come up with your magical number?

I ask because as it happens our High Court has a case before it right now (Montgomery) where it is being asked to overturn Love. They absolutely should do so. There may be only one constitutional case in the entire anglosphere that was less persuasively reasoned and decided than Roe and that is Love. Ergas’s view has transplanted a sensible doctrine in one context (judge-made law) into another one (interpreting the country’s governing document) where all of us citizens become hostage to the views of a handful of unelected judges however self-serving or implausible their take on the case is.

No, let me be blunt. Ergas’s view is thoroughly undemocratic at core. It is also defeatist. ‘They can be activist and insouciant about past precedents but not us, old boy.’

That’s the gist of it.

Oh, and as for Brown v Board of Education, which is something of a shibboleth case in the US, its practical effects were very limited. What really undercut segregation in the US were democratically enacted laws, mainly the Voting Rights Act and the Civil Rights Act. That and President LBJ’s willingness to send in the troops. The analogy to Roe is wholly unpersuasive. For democrats like me (small ‘d’ let me make clear) who prefer social policy-making to be done via the elected legislature there is absolutely nothing to regret when a top court admits that its predecessors had engaged in an act of ‘raw judicial power’ (which is how a dissenter in Roe itself described the majority’s decision) and that they were going to fix that. Half a century was a long time to wait. But better late than never Henry.


Prosecution of Bernard Collaery was an assault on values Australia holds dear

The crooks prosecute an innocent guy!

Last week Attorney-General Mark Dreyfus put an end to Canberra lawyer Bernard Collaery’s criminal prosecution.

Collaery was prosecuted in 2018 and was facing five charges, including allegedly conspiring with his client, “Witness K”, to disclose confidential information about the Australian government’s spying operation in Timor-Leste.

The prosecution was a scandal and should never have been commenced.

In 2004, at former foreign minister Alexander Downer’s behest, the Australian Secret Intelligence Service planted surveillance devices in the Palacio Governo, the building that housed the offices of Timor-Leste’s prime minister and the national cabinet conference room.

The purpose of this intelligence-gathering enterprise was to listen in to Timor-Leste’s cabinet deliberations concerning a legal dispute between the two countries over the location of the maritime boundary between them.

The outcome of that dispute would determine the share of lucrative oil and gas revenues that Timor-Leste and Australia would each receive from prospective drilling in the Timor Sea.

Through this secret surveillance activity, the Australian government obtained crucial information regarding Timor’s case about the maritime boundary before the International Court of Justice. This provided Australia with an unfair advantage in the oil and gas dispute.

In the end, to evade the court’s judgment, the Australian government withdrew from its jurisdiction.

“Witness K” had been an ASIS officer involved in the surveillance operation. He was troubled by it, so he lodged a complaint with the Inspector-General of Intelligence and Security suggesting that the surveillance may have been illegal.

The Inspector-General agreed Witness K could disclose relevant information as evidence in any related legal proceedings. Information regarding the secret surveillance operation made its way progressively into Australia’s and Timor-Leste’s media.

In 2013, Timor-Leste sought to reopen proceedings with respect to the maritime boundary issue in the Permanent Court of Arbitration in the Hague. It briefed Collaery to represent its interests, as he had a long history of representing the interests of the country.

Then, in an extraordinary action in late 2013, the Australian Federal Police raided Witness K’s and Collaery’s homes and offices.

At Collaery’s office, the police uncovered a detailed legal memorandum containing his advice to Timor-Leste’s government with respect to the location of the maritime boundary.

Things went quiet for five years. Then, in late 2018, out of the blue and for reasons that remain unclear, former Attorney-General Christian Porter approved the criminal prosecution of Witness K and Collaery. Porter alleged they had disclosed classified information illegally.

Legal argument with respect to the conduct of the prosecution continued for four years, to Collaery’s great personal and financial detriment.

There are several matters concerning the prosecution that warrant close consideration.

It’s highly likely the Australian government itself acted unlawfully. ASIS undertook an act of criminal trespass in Timor-Leste by planting surveillance devices to monitor the Timor-Leste’s Cabinet’s deliberations.

As in every other democratic country, Timor Leste’s cabinet deliberations are, by law, secret.

Under a United Nations convention (the Convention on Jurisdictional Immunities of States and their Property), states and their property are immune from the domestic jurisdiction of another country.

Australia clearly broke international law by raiding Witness K’s and Collaery’s offices and confiscating documents that were the property of the government of Timor-Leste.

In Australia, the law protects communications between lawyer and client. By effectively stealing Collaery’s extensive legal advice to the Timor-Leste government, ASIS transgressed the confidentiality of lawyer-client communications.

Next, Porter made application after application to the ACT Supreme Court to ensure Collaery’s trial would be conducted in secret.

The government argued that should documents revealing ASIS operations become public, foreign intelligence agencies into whose hands such documents fell may be able – when combining them with other sources of information – to construct an intelligible mosaic from which the processes and methods of Australian secret surveillance activities could be ascertained.

In this case, however, the documents in question related to a single intelligence operation conducted in a tiny country 18 years ago. It would come as a surprise to any informed lay observer, and probably to any capable intelligence analyst, if historical methods of surveillance used in 2004 could cast even the remotest light on the technological methodology of contemporary intelligence practice.

A secret trial constitutes a radical attack on the fundamental principles of open justice and fair trial.

There was a certain Alice in Wonderland quality about all this. Everything had been turned upside down.

The two people who acted in the national interest by disclosing unlawful activity undertaken by Australia’s overseas intelligence service in bugging East Timor’s Cabinet were the defendants in the criminal case.

Those in government who initiated the unlawful, covert operation, through their successors in government, had become the prosecutors. Something had gone very wrong.

Had Collaery’s case proceeded to trial, the ramifications of the case for freedom of expression, journalism and governmental accountability would have resonated through Australian law and society for years.

It was a direct assault on freedom of political communication, and it intimidated whistleblowers.

It discouraged investigative journalism, undermined press freedom, involved criminal trespass and contractual fraud, invaded legal privilege, violated UN Conventions, and denied fair trial. It was a blot on the conduct of Australia’s foreign relations and was a grievous attack on individuals of conscience.

Dreyfus should be highly commended for drawing this scandalous legal proceeding to a close.


Private and independent schools awarded vast majority of $30,000 Ramsay Centre scholarships

Despite Leftist hatred of the subject, it looks like Western civilization courses attract a lot of takers. So much so that the demand greatly exceeds the supply of places. That in turn means that a high bar has to be set for students to get in. And that high bar consists of very good High School results. And good High School results are most common in the private school sector. So it folows that most admissions to such courses go to private school graduates. It is nothing strange or sinister

The vast majority of the generous Ramsay Centre Western civilisation scholarships have been awarded to private or non-government school students, with a top university now attempting to attract more public school applicants to the controversial program.

The centre says the $30,000-a-year scholarships, offered at the University of Queensland, University of Wollongong and Australian Catholic University in Sydney, give a much-needed “shot in the arm” to humanities in Australia.

Figures provided to the Herald show that at the University of Queensland, about 85 per cent of the 71 scholarship recipients over the past three years attended private or independent high schools. At the University of Wollongong, 71 per cent of the 93 recipients attended private or non-government schools.

The Australian Catholic University, which is not subject to NSW freedom of information laws, did not provide the full data on request and said a “public/private” school binary did not paint a fair and accurate picture of equality of outcomes.

The Western civilisation degrees, which are funded through a $3 billion bequest from healthcare magnate Paul Ramsay, are great books-style courses in which small groups of students study key texts from the Western tradition in depth. Up to 30 students a year at each participating university are offered the $30,000 annual scholarships for up to five years.

In 2018 and 2019, the centre was engaged in discussions to set up a base at the Australian National University and the University of Sydney. However, agreement on a proposed model could not be reached amid concerns about academic freedom and a backlash from some academics who claimed that the centre was trying to push a right-wing agenda.

Queensland University said the Western civilisation courses were now among the most competitive humanities degrees in the country, with required ATARs ranging from 95 to 98. It said the percentage of scholarship recipients was reflective of the number of applicants when comparing private/independent to public school data.

“To encourage greater representation from public schools, we are speaking with our current students from public schools to understand how we can better promote the scholarships and review administrative processes,” a spokesperson said.

“We will also have program ambassadors from public high schools to support this work. We have targeted engagement and outreach programs that prioritise public schools, and for regional schools, financial bursaries are offered for travel costs to attend.”

The university said of the scholarship recipients, 11 per cent were from regional Australia and 17 per cent identified as disadvantaged.

“It is sadly unsurprising scholarships are not being awarded or being promoted to those who would benefit from them most.”

National Tertiary Education Union president Dr Alison Barnes said the figures showed universities needed to review the selection criteria and processes around promoting the scholarships in public schools.

“It is sadly unsurprising scholarships are not being awarded or being promoted to those who would benefit from them most,” she said. “Irrespective of the course’s controversial curriculum, all scholarships should be available and made known to all students.”

A University of Wollongong spokeswoman said students enrolled in the course came from a broad mix of social and schooling backgrounds. In 2022, 37 per cent of the university’s scholarship recipients were from public schools, up on the three-year average of 29 per cent.

“UOW aims to attract high-achieving students from all backgrounds and all schools – whether public, Catholic or independent – to the course. We endeavour to make the course and the scholarships as widely known as possible among NSW high school students,” the spokeswoman said.

“We promote the bachelor of Western civilisation course in the same way we promote all other courses – via open days, discovery days, information evenings, career expos and other events, and by promoting it directly to schools and to students.”

A Ramsay Centre spokeswoman said the scholarship application process may, where appropriate, give preference to applicants who are disadvantaged or are from an underrepresented background.

“Our university partners continue to target engagement and outreach programs to public schools and lower SES students in line with their university policies,” she said. “We have always been keen to support three distinct programs at three distinct universities to ensure a diverse cohort of students have access to the wonderful opportunity the study of Western civilisation provides.”

“Having access to the scholarship makes a big difference to their ability to achieve their academic aspirations.”

Professor Robert Carver, director of the Western civilisation program, said most of its scholarship recipients came from Catholic schools where fees were “low to modest” and the student body was “rich in diversity of ethnic background”.

“About a quarter of our students are from outer suburban or regional areas and having access to the scholarship makes a big difference to their ability to achieve their academic aspirations,” he said.

“In all cases, we look at the totality of the person – our selection process (particularly the interview) gives us the scope to assess the potential of each candidate and the flexibility to take any mitigating factors or special circumstances into account.”


Wind droughts

With the energy crisis prompting governments everywhere to turn coal plants back on, wiping out many years of hard won emission reductions in advanced economies, the major limitations of renewable energy have now, at last, been acknowledged by all.

Well, almost all, with Victorian government energy minister Lily D’Ambrosio in late June ruling out paying coal and gas companies to keep them operating as part of a proposed national capacity market, saying that the state’s new offshore wind projects will ‘blow any shortfall out of the water’.

Never mind that the bulk of the advanced economies, many with far higher dependence on renewables than Victoria, have such capacity markets – ideological demands must trump operational experience.

Chief among the lessons about those limitations is the phenomena now known as ‘wind droughts’. Late in 2021 as delegates in the annual climate summit, held in Glasgow that year were noisily demanding more renewable energy, the UK had to turn on mothballed coal-power plants because of a shortage of gas and a wind drought.

In an article on the Australian edition of the academic site the Conversation published in October 2021 a researcher in climate risk analytics at the University of Bristol in the UK, Hannah Bloomfield, says that the period of still weather around the time of the Glasgow conference resulted in the power company SSE reporting that its renewable assets produced 32 per cent less power than expected.

In the article Dr Bloomfield says these ‘wind droughts’ can be classified as an extreme weather event, like floods and hurricanes. Researchers in the UK have shown that that periods of stagnant high atmospheric pressure over central Europe, lead to prolonged low wind conditions over a wide area and those conditions may be ‘difficult’ for power systems in future. Further, Dr Bloomfield notes, it is important to understand just how such events occur, as that means they can be forecast and the grids prepared for them. There is no discussion about just how the grids might be prepared for such droughts and, in any case, scientists have enough problems forecasting the frequency and severity of cyclones during cyclones seasons, and are continually taken by surprise by floods, despite studying those extreme events for decades.

But it is known that just like rain droughts, wind droughts can persist for a long time.

During a wind drought in the UK in 2018, wind made no contribution to the UK grid at all for nine days and only slight contributions for another two weeks. In the wind drought of late 2021 noted earlier, there were days when wind made no contribution at all.

Then there are the much shorter periods, perhaps ranging from an hour or so up to a day that can also be found by anyone who examines wind’s contribution to total energy supply to the UK grid over time. However, the short and long-term wind drought phenomena has received some academic attention in the UK, it is difficult to point to any systematic study of the problem in Australia.

A few concerned citizens have looked at the easily accessible figures for wind production on the National Energy Market, the grid for Australia’s east coast, to find a number of periods where the whole of the NEM was in wind drought for periods ranging from a few hours up to 33 hours. But that study was for just one year, 2020. More extensive research could well find wind droughts of much longer periods.

Activists may sneeringly dismiss all of this as having not been done by properly qualified scientists. Very well, where is the independent analysis done by academics with qualifications of any kind? While they are on the job those same academics can work out just how much storage capacity would be required to tide the national market over for a day and a half. The NEM has north of 50,000 MWs (50 GW) of generating capacity. If for the sake of argument, we assume that an average of half that is used (more during demand peaks and less during troughs) in any given period, then the market may need around 900,000 megawatt hours to get through a 36-hour drought without fossil fuel plants.

The giant water battery known as Snowy Mountain 2.0 should store about 350,000 MWh, when it is finished and assuming that it can find enough fresh water, which means the NEM might need three or four Snowy 2.0s at a bare minimum, although only one is being built.

Batteries don’t count. The Hornsdale Power Reserve Battery built in South Australia in 2017 with considerable fanfare, for example, cost $90 million but stores just 125 MWh. The photovoltaic panels now on suburban roofs all over Australia are not subject to wind droughts, but they are at their peak around the middle of day, do not work well on cloudy days or at all at night, and the excess energy still has to be stored.

To make matters worse, grids have to be designed to cope with worse case scenarios such as a very hot day, which also happens to be a calm, cloudy day. Perhaps enough power might be stored to see the grid through one such event, but then when the Snowy projects have expended one load of fresh water through turbines to generate power, it may take days to completely recharge, so to speak, by having the water pumped back into it. What happens if another extreme event occurs soon after the first?

Activists insist that all these problems can be overcome simply be building more wind turbines, particularly offshore turbines as planned by Minister D’Ambrosio. In the days of sail, ships might be becalmed for days, but the trade winds which blow down Bass Strait are thought to be different. Well, are they? King Island, well out in Bass Strait, has the King Island Renewable Energy Integration Project, part of which is a wind farm, plus solar power as a supplement to the island’s long-standing diesel generators. Material produced by the owner Tasmanian Hydro estimates that renewable energy now accounts for 65 per cent of the island’s power demand.

That’s fine but what about the other 35 per cent supplied by diesel? Why couldn’t the wind farm supply all of the island’s needs, and was the outcome worth the $18 million spent on the project, all to service the island’s 1,600 residents? The Victorian government could at least produce some material apart from activist assurances that its projected reliance on offshore wind farms will be anything but a disaster.