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Brown Study

Brown study

24 November 2012

9:00 AM

24 November 2012

9:00 AM

One of my less glorious moments as a lawyer was when I took up a claim for a young gay man who claimed he had been discriminated against when his employer insinuated that he, my client, was gay. This seemed an odd claim, as not only did he not deny he was gay, but asserted that he was. He also had a dog named Kylie, which put the issue beyond doubt. I launched this dubious claim and was promptly asked by the employer’s lawyers to attend a conference at which I demanded an obscene amount in damages and still kept a straight face. I almost fell off the chair when they agreed to pay for this trumped-up nonsense. So I hastily added another $5,000 for costs, which they also agreed to pay.

I was reminded of this drama this week when I read that the Attorney-General is going to make discrimination claims easier by reversing the onus of proof, so that a claim will not have to be proved, but disproved. As if defendants were not under enough pressure to pay up as soon as a demand is made; now they will know there is no hope, as they will never be able to disprove even a vexatious claim. The definition of discrimination will be changed to ‘unfavourable treatment’, which will no doubt be included alongside ‘misogyny’ in the Macquarie Dictionary’s list of words that changed their meaning in 2012. These changes may satisfy the reformist zeal of the Attorney-General, but will lead to nothing but an avalanche of claims, a further increase in the cost of employing people and an upsurge in the sale of diamond-encrusted ‘Kylie’ dog collars.

An interesting feature of the debate about the royal commission into paedophilia is that very few people wanted an ordinary inquiry or even a parliamentary one. No, everyone wanted the biggest and best inquiry, an actual royal one, the sort that, like the Trident missile, as Sir Humphrey Appleby noted in Yes, Prime Minister, was the one you would buy from Harrods. People demanded the royal accolade and its guarantee of quality, confirming that, when they want something above reproach that will do its job properly, uncontaminated by politicians and conducted under the wise supervision of the sovereign, they will go for the royal option. So what will the republicans advocate should take its place if we become a republic? A president’s commission? Somehow it does not have the same cachet. But this is another reminder that we will lose a lot of real value if we change our constitution — in any respect.

We also saw last week that we have a wonderful constitution and a better one than the British. Our courts are the final arbiters of law and justice in Australia, unlike the UK, whose courts and laws are subject to those of Europe. The British are now forced to harbour a terrorist living on social welfare, although their own courts, applying British law, had ordered his deportation. The European Court of Human Rights has ordered the release of al-Qa’eda’s hate preacher Abu Qatada, by applying the European Charter of Human Rights on which the British people have never been allowed to vote. How fortunate we are, therefore, that our own courts and law are paramount within Australia, that our constitution was created before the UK abdicated its sovereignty and that our constitution can only be changed by a referendum.

Senator Carr was supposed to be the genius who would lift the Gillard government onto a higher intellectual plain. If so, it is amazing that he seems incapable of expressing our foreign policy in clear and understandable terms, so that we could say after his exposition on any issue: ‘Ah, so that is Australia’s position.’ The case in point is Israel and the rocket attacks from Gaza. Our policy should not be that hard to articulate: Israel is under attack from a neighbour; the neighbour is a declared enemy; it is armed by a worse enemy; any country under attack is entitled to defend itself and to rid itself of the threat, permanently; Israel is a friend; therefore we support Israel. No qualifications about provocation, proportionality, consultations, or anything that results in confusion and casting doubt on our commitment to Israel, as Carr has given us. In the interests of long-term peace, we should tell Israel that it should press on with its military campaign, make sure it wins and not allow itself to be pushed around and into another pointless, short-term truce.

I predicted the change in the public opinion polls we have seen in recent months. It seemed to me quite artificial for one party to be so far ahead in the polls and that, inevitably, the Coalition’s vote would decline. However, I also predicted that, after a period of levelling out, the Coalition parties would regain a modest lead and eventually win the election with a comfortable majority. This will happen if the parties support their leader, act responsibly and concentrate on producing policies. Moreover, thanks to Julie Bishop, the Coalition will eventually get a lift from the dubious goings-on around the slush fund that the Prime Minister set up. Even our lacklustre Press Gallery will hopefully look again at the Prime Minister’s heroic press conference during which she allegedly answered all the questions put to her and will see that her answers were a hodge–podge of evasion and selective amnesia. The attack can then branch out to include those proven ingredients of all political scandals: union money, romantic entanglements, dodgy characters and missing files. Even its potential name sums up the notion of tainted money sloshing around: Slushgate.

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