About this blog

Mostly this blog will be about action on climate change, but I might post some other stuff from time to time, such as on human rights including disability rights.

Climate change posts on this site are mostly written as drafts intended for use by the Labor Environment Action Network .

I am putting them here because it takes a while for people to edit my excessively long (and occasionally snarky) sentences, and so it seems a good idea to put content on the web here, where I, and maybe other people, can find it.

 

For electoral purposes material on this site is authorised by David Mason, 47 Charles St Marrickville NSW.

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No football for you: and other implications of sloppy WA Bill to restrict freedom to protest

Should football tackles be illegal in Western Australia? How about stopping a toddler – or someone distracted by their mobile phone – from walking in front of a car?

If you answered “of course not, don’t be silly”, you should be worried about the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).

As the Second Reading Speech for this Bill makes clear, the target is environmental protests, in particular those involving protestors “locking on” to mining or forestry equipment or to gates on access roads, in order to immobilise that equipment or block use of those roads.

Long haired unwashed hippies all, no doubt.

Couldn’t possibly include farmers worried about “fracking” for gas wrecking the water table – by actions including locking their own gates to “physically prevent” access.

Couldn’t include local conservation groups full of grey haired people trying to draw attention to loss of habitat for threatened species.

Oh wait, it could.

The Second Reading Speech for the Bill claims there are various problems in using existing law to deal with such protests.

One of these “problems” is the need to prove intention where that is a necessary element of the offence.

Old-fashioned lawyers might think that the usual need to prove intention is a fairly important part of the protections of liberty which we have been taught to think are embedded in our criminal law.

Slightly less old-fashioned lawyers might point out that this is one reason why we need stronger protections in Australian law of the human rights which Australian governments have sworn to uphold and which most Australians take for granted.

In 2014, former Australian Rugby captain David Pocock was one of those arrested for “locking on” to mining machinery in protests against destruction of the Leard State Forest (home to endangered species and important Aboriginal cultural sites) for the purpose of development of a coal mine near Narrabri NSW.

People like David Pocock can be seen as acting in a long and honourable tradition of protest: breaking the law – and submitting themselves to the consequences – to draw attention to, and combat, larger injustices.

Think, say, Rosa Parks refusing to give up her seat on a bus to fight racial segregation. Think marchers on a bridge in Selma, Alabama. Think suffragettes chaining themselves to railings in London for women’s right to vote.

There are also real issues about how far environmental protestors are actually breaking the law at all.

The common law of Australia (including Western Australia) recognises the right of self defence, and the defence of necessity, as fundamental to the just operation of the criminal law (even if, in this as in other respects, the drafting of Western Australia’s Criminal Code is less than ideal and possibly misleading).

The accelerating pace of extinctions around us, and because of us, is becoming clearer. Threats to human activity and welfare that are posed by environmental degradation, and the climate crisis in particular, are also becoming clearer.

It appears highly likely that environmental activists will increasingly seek to advance defences of necessity and self defence when facing charges for actions which would otherwise be unlawful.

Moreover, it appears likely not only that that they will increasingly succeed in such claims, but that they will succeed in recovering damages against those who presently claim to have the law on their side in despoiling the environment.

The NSW authorities appear to have made a surprisingly wise decision not to pursue prosecutions against the Pacific Warriors who brought their canoes to blockade the Port of Newcastle for a day recently.

They came to draw attention to Australia’s responsibilities to our Pacific neighbours. Fossil fuel burning, including Australian coal, is driving the unnatural greenhouse gas levels which are driving global warming. Meanwhile, Australian climate policy – at home and internationally – is going backwards.

Pacific nations face not only increased risks from cyclones supercharged by warmer air and water, but loss of their land itself from rising seas. Anyone want to bet against their chances of winning in court at some point?

But putting all that aside, lets assume Western Australia’s Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 is actually capable of creating a law on which valid prosecutions could be based. This still leaves the question: should it?

The Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 would insert in Western Australia’s Criminal Code provisions including subsection 68AA(2) as follows:

A person must not, with the intention of preventing a lawful activity that is being, or is about to be, carried on by another person, physically prevent that activity.

So back to where we began. Would a football tackle be illegal under this Bill? If not why not?

The numerous tackles that, say, David Pocock has carried out wearing the green and gold on football fields for Australia have clearly been intended (and fequently have been successful) to “physically prevent” the “lawful activity” of an opponent seeking to score.

Now, despite risks of injury, a tackle within the rules is not an assault: the ordinary law, developed over centuries, recognises that participants in the game consent to reasonable actions, and this prevents those actions being unlawful.

The existing provisions of Western Australia’s Criminal Code likewise attempt to deal with some of the complexities of when physical actions are and arent lawful.

No such provision though in this Bill. No need for complexity apparently when you are crusading against those conservationists – err, ecoterrorists.

How about the other examples we started with – the child or distracted pedestrian about to step into the path of a car?

Sorry, under this Bill there goes any  right of parent or concerned bystander to put any physical barrier in the way, like putting an arm out.

Unless our child or distracted pedestrian in danger is going to be trespassing or doing something else unlawful during their hazardous journey of course. Let’s call some lawyers for advice. Oh dear too late, let’s call an ambulance.

Are these examples what this Bill is aimed at? No, of course not.

So why is the ridiculously broad potential application of this Bill a problem?

It’s a problem because vague and excessively broad laws give authorities too much discretion about when to enforce them and when not to, and give citizens no certainty that they can go about their lives in a reasonable way.

Laws which give reasonable certainty to the people who have to enforce them, and the people who are meant to comply with them, are an essential element of what we mean by the rule of law.

In the United States, the Supreme Court has long had a “void for vagueness” doctrine. Not perfect in preventing arbitrary or discriminatory enforcement (as generations of Black Americans could tell you) but still an important element in ensuring the rule of law.

The present Attorney-General of the Commonwealth, Senator Brandis, has spoken (particularly prior to taking office) about the importance of the rule of law. One looks forward to his possible intervention in the matter of the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).

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Could Ben Chifley get preselection today? Some evidence on current backgrounds

Frequently we hear that politicians are drawn from too narrow a range of backgrounds; and that this is a problem for Labor in particular due to its connections with the trade union movement; and in particular in the Senate, due to the influence of unions on decisions on Senate tickets by State Labor Party branches.

Let’s have a quick look – based on published bios on the Australian Parliament House website.

Name Professional background Union background Qualifications listed
Senator Catryna Bilyk Medical admin, research; early childhood education Yes: industrial officer, trainer: ASU
Senator Carol Brown Party and political admin officer and adviser Not indicated
Senator Joe Bullock Trade union official Yes: SDA
Senator Doug Cameron Fitter, machinist Yes: AMWU, ACTU
Senator Kim Carr Teacher, ministerial and policy adviser Not indicated BA (hons); MA, Dip Ed
Senator Jacinta Collins Social welfare, research, industrial officer w SDA ; policy consultant Yes: SDA BA BSocWk
Senator Stephen Conroy Superannuation officer (TWU) Yes: TWU BEc
Senator Sam Dastyari ALP positions Not indicated BA
Senator Alex Gallacher Labourer, truck driver, airline ramp services operator Yes: TWU
Senator Chris Ketter Union research officer, organiser, official SDA BA, BComm
Senator Sue Lines Teacher, community organiser, union official Yes: United Voice BEd
Senator Joe Ludwig Barrister, industrial inspector and advocate Yes: AWU BA LLB
Senator Kate Lundy Builders labourer; union organiser and official CFMEU
Senator Gavin Marshall Electrician; union official Yes: ETU
Senator Anne McEwen Clerical, admin; union organiser Yes: ASU BA
Senator Jan McLucas Teacher; electorate officer Not indicated DipT
Senator Claire Moore Public servant; union official Yes: CPSU
Senator Deb O’Neill High school teacher; university lecturer Not indicated BA, MA, Dip T, Grad Dip Lit Ed
Senator Nova Peris Olympic athlete Not indicated
Senator Helen Polley Political adviser Not indicated Dip Business Admin
Senator Lisa Singh Union organiser; political adviser; director Working Womens Centre; public service manager Yes: AEU BA (hons); Master Int Rel
Senator Glenn Sterle Furniture removal, truck driver, owner operator, union organiser and official Yes: TWU
Senator Anne Urquhart Process worker; union organiser, official Yes: AMWU
Senator Penny Wong Industrial officer; policy adviser; barrister and solicitor; legal officer Not specified APH but yes: CFMEU, LHMU BA LLB

So, Senators with trade union backgrounds include :

  • a process worker;
  • a fitter/machinist;
  • two truck drivers (with two different practical careers after that);
  • an electrician;
  • a social worker;
  • two public servants;
  • a builders labourer;
  • a teacher;
  • two lawyers;
  • a clerical worker; and
  • someone who had worked in early childhood education and medical administration .

Only three Senators with trade union backgrounds listed their union role as their sole or primary occupation before entering Parliament; and of those, one – Senator Conroy – held a professional role as superannuation officer which has counterparts in other public and private sector organisations across Australian society.

Not a bad start on diverse backgrounds. (On other dimensions of diversity, current selection processes have given us 14 women out of 24; and some non-Anglo names including Bilyk, Dastyari; Singh; and Wong.)

None of this is to deny the value of having among our representatives people with qualifications enabling them to deal with a range of issues as they present themselves – yes I do mean lawyers, economists and public policy professionals. Just note that, not co-incidentally, Penny Wong is (and obviously deserves to be) Labor’s leader in the Senate.

Nor is any of this to deny the need , which Gough Whitlam saw, for  the Labor party to regularly renew its structures to ensure it stays relevant and effective in modern Australia.

We’ll come back to talking about lawyers next time with the House of Representatives, as well as a look at people with higher level qualifications, and whether we have enough people with literacy in science (including in dealing with environmental crisis).

But those who have asked questions like, “could Ben Chifley get pre-selection today” might take a look at this list in looking for their answer.

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Benefits of Disability Discrimination Commissioner well worth the cost

This is a piece I wrote in May 2014. It didn’t get published then – I’m digging it up and publishing it now prompted by the untimely passing of the excellent Stella Young, and her comments on the limitations of complaint based discrimination laws without further regulation.

On Radio National’s The Drum recently, Adam Creighton (supposed economics commentator with News Limited) questioned the cost/benefit justification for having a federal Disability Discrimination Commissioner. Let me try to save him some of the (minimal) information search costs which would be involved in doing some basic research and finding out for himself.

As long ago as 2004 Australia’s Disability Discrimination Act (“DDA”) was assessed by the Productivity Commission as being justified on purely monetary cost/benefit grounds.

More recently the Productivity Commission correctly emphasised, in its report supporting a National Disability Insurance Scheme (NDIS), that the isolation and social exclusion experienced by all too many people with disability are, in themselves, economic costs.

This is even before we take into account the massive costs of lost productivity for these people and their families which result from inaccessible environments and missing supports, as well as from more immediate forms of discrimination.

Discrimination laws such as the DDA are essential in promoting economic and social inclusion and participation. But, left unassisted, they carry significant uncertainty.

The DDA, like pre-existing laws in most States, basically told people with responsibilities in a range of areas, “don’t discriminate unless it is too hard to avoid doing so”. And it told people with disabilities they had rights to complain, and rights to remedies if discrimination did happen.

But the standard model of discrimination law didn’t tell any of these people what avoiding discrimination would look like, or where the line for “too hard” would be.

This was clearly a fairly uncertain position for everyone to be in – whether in putting up a building and then finding out it has to be rebuilt, or having to wait until the building is in place to find out you can’t get into it to work or shop.

It is well known in economics – and in daily life – that uncertainty can produce significant costs. Measures to reduce uncertainty can reduce these costs.

It is fashionable in some circles to regard all regulation, indeed all government activity, as a drag on productivity.

But appropriate regulation (including co-regulatory measures developed with industry bodies) can benefit, and in some cases be essential for, economic activity.

To take a basic example, we can all drive much faster than would otherwise be possible, because there is a rule about what side of the road to drive on. Rules, in fact, provide the difference between a market and a riot.

A large part of the work of the two Disability Discrimination Commissioners we have had – Elizabeth Hastings and Graeme Innes –  as well as Acting Commissioners Susan Halliday, Chris Sidoti and Sev Ozdowski, and staff working with them, has been  in promoting and helping develop measures to provide greater inclusion and greater certainty together.

Lengthy and detailed work has produced regulation, in the form of Disability Standards, for buildings, education and transport. Each of these standards was subject to a level of cost benefit analysis as part of the Regulation Impact Statement process. Each of them was developed with extensive participation, and indeed often with leadership, from industry bodies. In each of them, the disability rights policy expertise and capacity of the Human Rights Commission, led by the Disability Discrimination Commissioner, was crucial.

As is recognised by the legislation, these standards need continuing review and development in the light of experience and as additional issues emerge. But anyone using the increasingly accessible bus fleets of our major cities, for example, can see the results for themselves.

In some other areas, the Disability Discrimination Commissioner and staff have worked to apply a co-regulatory approach, where industry agrees to implement increased access over time in return for temporary exemptions under discrimination law. Increased captioning on broadcast and now subscription television over recent years are the outstanding example so far of the success of this approach. All done without wasting time and money in the courts.

In other areas again, the Commissioner and staff have been involved in more industry based initiatives such as that to develop standards for lifetime adaptable housing so that people when they acquire a disability through ageing or other causes are not forced to leave their home and seek aged care purely through lack of appropriate housing design. Minimal costs, huge benefits.

This is all work that has been done on a shoestring. Very much more could be done through funding a larger but still modest program for pursuing the twin goals of inclusion for people with disability, and information and certainty about what that means.

This is the sort of program which an adequately resourced National Disability Insurance Agency would be expected to find it worthwhile to auspice and support. At the least, there is a compelling case on pure cost/benefit grounds for continued funding of the Disability Discrimination Commissioner’s position and associated staffing.

David Mason PSM was a policy officer with the Australian Human Rights Commission from 1988 to 2014. With Graeme Innes AM and other colleagues, he was involved in the development of the Disability Discrimination Act; Disability Standards for Accessible Public Transport, Access to Premises, and Education; and in development of co-operative strategies with industry for increased access in other areas including television captioning. He was also involved in developing provisions for improved mechanisms for compliance with discrimination law, which would have been introduced with the Human Rights Legislation Amendment Bill 2012.

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Links on climate change and environment

News sites |  FAQs and responding to climate denial | General resources on climate change | Climate science|  Climate change: advocacy and policy | Renewable energy research, finance and industry bodies | State and Territory government sites | Other climate change links | Online courses on climate change |Australian environmental organisations – general | Other environmental links and networks | Labor and related links 

NEWS SITES

ENVIRONMENT NEWS – GENERAL

CLIMATE NEWS SITES

FAQS AND RESPONDING TO CLIMATE DENIAL

GENERAL RESOURCES ON CLIMATE CHANGE

See also: archive of LEAN’s posts on Twitter (lots of links with occasional comments)

CLIMATE SCIENCE

CLIMATE CHANGE:  ADVOCACY AND POLICY

CLIMATE CHANGE AUTHORITY

The Authority (chaired by former Reserve Bank chairman Bernie Fraser) provides independent advice on Australia’s emissions reduction targets and other climate change initiatives. Tony Abbott is trying to pass legislation to silence this independent expert voice before it can publish its final report! Labor says no.

RENEWABLE ENERGY RESEARCH, FINANCE AND INDUSTRY BODIES

STATE AND TERRITORY GOVERNMENT CLIMATE SITES

OTHER CLIMATE CHANGE LINKS

ONLINE COURSES ON CLIMATE CHANGE

AUSTRALIAN ENVIRONMENTAL ORGANISATIONS – GENERAL

ENVIRONMENT AND DEVELOPMENT

OTHER ENVIRONMENT LINKS AND NETWORKS

LABOR AND RELATED LINKS