NSW election continues

Lyndon Smith writes: Re. “Robbo takes the top job as NSW Labor’s history wars rage on” (Thursday, item 9) I can’t believe former NSW Premier Morris Iemma is attacking NSW Opposition Leader John Robertson for being a former leader of a union.

Whilst some union leaders may have behaved badly occasionally it hardly compares to the way the rest of us had our wealth and saving pillaged by the global finance industry during the GFC.

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You don’t however, see the Liberals slagging off the MPs in their own party from the finance industry and Tony Abbot still kowtows to the big end of town.

And whilst it’s always enjoyable watching former PM Paul Keating let fly with one of his legendary sprays, he couldn’t be more wrong about Robertson’s opposition to privatisation being a principal cause of their defeat. Absolute nonsense. More like a principal cause of why they didn’t lose any more seats.

No-one wants privatisation except the big end of town — if the ALP had stuck to being a Labor party and not a corrupt bunch of sycophants and suck-ups to rich men and trying to feather their own nests, they may well still be in power.

I didn’t know many people who were enthused about electing the Liberals — most people seemed determined to punish Labor for neglecting the public and register a huge slap to ALP to get them back into line.

Andrew Bolt

John Kotsopoulous writes: Re. “The extraordinary assault on Andrew Bolt and freedom of speech(March 29, item 2). I normally agree with most of what Bernard Keane writes but I am at at one with  Eliza Chapman (comments, Friday) who argues that he has it all wrong in defending Andrew Bolt.

Much of Bolt’s current defence seems to be based on his motivation in penning the words, factual errors and all,  that have now him in trouble. The problem is that he has form in his use of provocative language on many issues on which there is a  political divide.

It may be his intentions are pure. If so one would expect to see some attempt at correcting the egregious blog comments his writings often inflame. I have yet to see any such evidence.

Steve Crilly writes: Reading over the comments that Crikey has received about the Andrew Bolt case, I can safely say that lawyers and law students across Australia (the ivory tower in which popular opinion has them ensconced now having a broadband connection) are sighing with frustration. It would require someone much more qualified than me to address all of the errors I’ve noticed, and doubtless there are many that I haven’t. It is, however, worth addressing a few themes that I’ve noticed over the last few week.

First, it is not a ‘criminal offence’ that is at issue here. Section 18C of the Racial Discrimination Act 1975 (Cth) makes the kind of conduct described in the section ‘unlawful’. Section 26 clearly says that ‘unlawful’ conduct is not an offence unless the the legislation explicitly makes it so. This case could not have been brought by a prosecutor. Even if Bolt loses his case, which is unlikely, there will be no criminal sanction.

Second, the unlawfulness of the conduct does not rely on the alleged victims’ subjective feelings. Here, possibly for the first time on Crikey, is the text of section 18C(1) in all its glory:

(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Whether someone is actually insulted etc is not the test. The test is whether the act reasonably likely offend etc someone (an objective test), and whether it was done for that reason (a subjective one, which actually works in Bolt’s favour since the claimants have to try to show exactly what he intended). Whether people were actually offended, insulted, humiliated or intimidated might, of course, be evidence that the act was reasonably likely to offend, insult, humiliate or intimidate.

Third, Bolt is not being sued for calling someone white. From what I can put together from wholly inadequate media reporting, he is being sued for (allegedly) implying that people’s identification with their indigenous heritage is actually motivated by greed.

Fourth — and this really is trite, I apologise — we have no legal right to ‘free speech’ in Australia. We have:

1. A limited freedom of political communication implied from the constitutional requirement that the people freely elect the Commonwealth Parliament. This is subject to limitation where the ends and means are compatible with our system of representative and responsible government, and is only a limitation on the powers of the parliaments – not an individual right; and

2. A common law presumption that fundamental freedoms are only displaced by clear legislative intention.

Much of the debate we’ve been seeing is actually a normative debate, that is, a debate about what is right and what should be. But even in that space, ‘free speech, QED’ is not an argument. It’s begging the question. People value free speech as but one expression of deeper values. Free speech has a few different rationales, including the improvement of public knowledge through debate and discourse, as a means to ensure a truly democratic state, and as a safeguard against government censorship and oppression. Which principles one adopts drastically affects the character and scope of (inevitable) exceptions to free speech ‘rights’.

I don’t like to see Bolt prosecuted any more than Ken Lambert, Barry Everingham, James McDonald, Doug Belot or Valerie Hodgson do. Don’t get me wrong, I despise Bolt’s views, but odious as I find him, Bolt isn’t really the ‘problem’. I’d like him to go away, but this case is not the right vehicle for it. What I’d like is to see him sacked because his demagoguery is out of touch with the intellectual and civil standard of political debate demanded by all Australians, but as long as his tirades help sell newspapers, I have to live with him and accept that many Australians do not share my views.

Over a century ago, the framers of our constitution declined to write a Bill of Rights into our founding document. Their reasons varied from highly principled to wholly base. Formally, the document that they produced places the protection or restriction of liberty in the hands of the Australian parliaments. Informally, the same system places a great deal of power in the hands of public opinion. Given that Bolt is the most widely read columnist in the country, public opinion seems to run contrary to what I and many other Crikey readers believe. If we want to change that, we have to convince people to our point of view. A good, realistic starting point, then, is a debate about the law as it actually is and as it should be. Not about caricatures with no basis in fact.

Nic Maclellan writes:  In Friday’s comments discussing the Andrew Bolt Court case, Carrie Muir suggests that “Freedom is under attack, in my opinion, from left wingers who have pushed this legislation.”

She cites the famous quote by Pastor Martin Niemoller, but misquotes him as saying: “First they came for the Jews, and I was silent, then they came for the shopkeepers, and I was silent, then they came for me.”

It’s worth getting Niemoller’s quote correct, however, because he was arguing that the genocide of the Jewish and Gypsy populations of Europe was only possible because the Nazis had first crushed the communists, social democrats and labour movement. Although there were later various versions, Niemoller’s original sequence was:

“First they came for the communists, and I didn’t speak out because I wasn’t a communist.
“Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.
“Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.
“Then they came for me and there was no one left to speak out for me.”

At the Holocaust Museum in Washington, DC, they’ve left out the line about the communists — hardly surprising for America, but if we’re going to debate free speech in Crikey, it’s a bit rough distorting Niemoller’s key point: destroying the Left was the prequel to genocide.

The crushing nature of stamp duty

Joe Boswell writes: Re. “Wealthy mansions are ‘on-shore tax havens’” (Friday, item 19). I enjoyed reading Ray Moynihan’s summary of the accurate criticisms made by Professor Julian Disney concerning Australia’s bizarre tax policies on housing. No wonder house prices are ridiculously high when people are so generously rewarded for buying “a much more expensive house than you need” to “renovate it within an inch of its life.” I should know. On top of that, I’d quite like to move somewhere else now. I think this would not only suit me but benefit the Australian economy; however the stamp duty involved would take over half a year’s salary up front, so I stay put. Stamp duty works like a crushing fine imposed for the crime of exercising personal mobility.

I cannot understand why the government provides powerful incentives for such behaviour. An end to both stamp duty and the capital gains exemption on primary dwellings would be steps in the right direction.

Less Dick in Crikey

Arley Moulton writes: Bill Williams (comments, Friday) reckons Dick Smith has a practical, concrete and results driven policy? On what planet is that practical?  My guess is that Crikey didn’t report on Dick Smiths dribble because it’s such a disgusting, ridiculous and unworkable proposal.

Will you be able to trade the option for your first and second child to someone who’s already had two kids if you don’t want any? What happens if you have two kids and you get pregnant again? Abort the unborn child? Make you give them up for adoption when he/she’s born? It’s not like repossessing a car! Would you penalise the parents financially right when they’re bringing their third newborn home? Or give them a wag of the finger and move on?

You can’t enforce this garbage and if you did then you’d be considered a pr-ck in many people’s eyes (How would you rate yourself if you had to enforce this rubbish?) so it’d be a “law” in name only. What is it with old men thinking they have the right to tell young women what they can and can’t do with their bodies? Leave them alone.


Australia has spoken. We want more from the people in power and deserve a media that keeps them on their toes. And thank you, because it’s been made abundantly clear that at Crikey we’re on the right track.

We’ve pushed our journalism as far as we could go. And that’s only been possible with reader support. Thank you. And if you haven’t yet subscribed, this is your time to join tens of thousands of Crikey members to take the plunge.

Peter Fray
Peter Fray
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