And another thing, Kev....about the body and the law

Miss Eagle is indebted to Dale Hess for drawing her attention to this article by David Marr on locking up the refugees and interfering with citizens' rights to habeas corpus. So how about it, Kev? Is this repeal of laws on your list? Or will it be like the repeals of Work Choices...a bit selective, a few dregs to remain, a few bits of equity not quite addressed?

Could there be light at the end of the gambling tunnel?

Some lessons are only learned, it often seems, when a monetary penalty is imposed, when someone sues for civil damages. The tobacco industry is a case in point. Science could not put them in their place, but damages claims can. It is to be hoped that - in time - gambling will suffer a similar fate.

To-day, in Australia, we may see some light at the end of a tunnel. We hope it is not extinguished.

A well-heeled problem gambler has established at law that he has a case against Crown Casino here in Melbourne.

Currently, gambling venues get away with grand larceny. They can lure and entice to their hearts' content and disclaim any responsibility. Problem gamblers can steal from their employers and lose the money over the gambling tables or down the machines but gambling entities are not held liable for receiving stolen property and are never forced to repay it. Families and their property can go down the drain because of a problem family member but no corporate entity is ever held to be liable.

To-day, Justice David Harper may well have set in train events which could change all that. Miss Eagle sincerely hopes so.

NOTE: Justice Harper was appointed a Queens Counsel in Victoria in 1986 and in New South Wales in 1989 after a distinguished career at the Victorian Bar which began in 1970. He was appointed to the Supreme Court in March 1992. He is currently Chair, International Humanitarian Law Advisory Committee of the Red Cross (Victorian branch). He has had a long and active involvement with the Victorian Bar (1980-91) and was the Chairman in 1990-1. Justice Harper served as a part-time Commissioner of the Victorian Law Reform Commission from 1991 until its abolition by the Liberal Government in 1992.

A prisoner's right to vote upheld - partially

When is a citizen not a citizen?

When you are sent to prison for more than three years. So the High Court giveth with the right hand and keepeth its left behind its back when it comes to giving the right to vote for prisoners.

What we haven't learned

This afternoon, I have been watching the 1985 television movie, The Dunera Boys. Now, movies based on true stories can be heavily fictionalised for dramatic impact and my guess is that this is the case with The Dunera Boys.

But the real story of the Dunera boys is cemented in Australian history and is legendary.

It is the story of Jewish men, refugees in England, who were victims of an overzealous government who forced them to endure horrors and indignities that they never should have suffered when they were rounded up by the British government and transported to Australia to be imprisoned on the stark, bare plains of western New South Wales.

The picture below, from the National Library of Australia, is a photograph by Henry Talbot taken at a re-union of the Dunera boys in 1997. Read more here.

Of those Dunera boys who, on release in 1942, opted to remain in Australia, many went onto become distinguished, even famous, citizens. We might have locked them up as we went along with Britain's error, but they generously paid Australia back many times over by their contribution to building a young nation.
Otto Marx, Fred Gruen, Felix Behrend, and Leonhard Adam provide an idea of the brilliant minds rounded up in the Dunera Affair and we thank them for becoming part of Australian life and culture with such outstanding contributions.

But, oh, how we forget.

We made a grave mistake then. We continue to do so in modern times as Phillip Adams reminds us.

Chester Porter QC reminded us again on Radio National to-day.

Chester is a proponent of continual improvement in investigative policing. Police, Chester warns, will always seek increased powers. Incompetent police are most likely to ask for increased powers. Executive government, he reminds us, can abuse these powers: in World War II, Labor rounded up right wing people, the United Australia Party rounded up communists. None of these people committed an offence.

The case of Dr Mohamed Haneef and its legal fall-out has called into question what Australia's government is doing in the name of terror. Many citizens are questioning what the limiting of democratic freedoms is doing to us, will do to us.

We have become a nation that is not afraid to use concentration camps for refugees, immigrants, and its own citizens. We have become a nation that is not afraid to use high security imprisonment and deportation - even without speedy trial - for suspicion with little real and admissible evidence.

It would be good if The Dunera Boys could hit the television screens again - particularly the tabloid type screens of Channels 9, 7 and 10.

Australians have to question who they are as a people and a nation and who are they electing to office to govern in their name.

Queensland: where good governance is absent to-day, coming the next?

Over at Freedom to Differ, Peter Black has pointed out why he believes it is wrong to now prosecute Senior Sergeant Chris Hurley for the death of Mulrunji.

Peter Black takes a more sanguine view of the justice system in Queensland than does Miss Eagle. Don't mean to be mean, Peter, but can't help thinking that this might be because you are immersed in the system; your living is dependent upon it; and your career might be impeded by a contrary opinion.

Miss Eagle, on the other hand, is a life long Queenslander who has flown the coop - pleased to escape the ineptitude of governance in Queensland including the administration of justice.

Government and Law function in a social milieu - a complex web of interests, social networks, and culture. In Queensland, the administration of justice and involvement of police in the administration of justice and the enforcement of law has not always served the people of Queensland well.

In such a milieu, memory has great value and one does not automatically erase such memories with the stroke of a bureaucratic pen or the issuing of a report or a political statement.

The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct which resulted in the 1989 report by Tony Fitzgerald, The Fitzgerald Inquiry Report, demonstrated police corruption in Queensland. In addition, a close relationship between government and the police was brought into the light of day. This relationship did not provide beneficial results in the administration or the enforcement of law in Queensland for the general benefit of Queenslanders.

There are a number of noteworthy outcomes following Fitzgerald's Inquiry:

1. There were only four politicians who went to gaol in the wash-up of the Inquiry.


2. Of those who were tried and convicted and spent time in gaol, an argument can be made that they were scapegoats.


3. Two politicians were former Liberal Politicians who swung to the National Party when the Liberal Party, the junior coalition partner in Queensland, suffered severe reversals and the National Party fortunes moved to encompass urban centres not only a traditional rural base. Don Lane, a former Special Branch detective, and Brian Austin were seen by Liberals as defectors. Two politicians were junior ministers, Geoff Muntz and Leisha Harvey. They were junior, foolish, and not the shiniest apples in the National Party barrel. To sum up, who were the scapegoats? Two turncoats, and two silly junior ministers.


4. Joh Bjelke-Petersen stood trial in 1991. The jury did not reach a verdict. The jury foreman was a Young National, Luke Shaw. There are strong views in some sections of the community suggesting that there was a deliberate plan to pervert the course of justice and ensure that Joh was not convicted.

Then there is the case of Di Fingleton. The High Court of Australia upheld her appeal against her Queensland conviction. In doing so, it relied on two Queensland statutes.

Section 30 of Queensland’s Criminal Code provides:

“Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer’s judicial functions, although the act done is in excess of the officer’s judicial authority, or although the officer is bound to do the act omitted to be done.”

Section 21A of the Magistrates Act provides:

“A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.”

In short, Di Fingleton should never have been tried in a court of law. Miss Eagle wonders who recommended that Di Fingleton should come to trial? Who recommended that Queensland statutes should be overridden and ignored? What could the Chief Justice of Queensland done? What did the Queensland Bar do or fail to do?

Then Miss Eagle recalls what Terry O'Gorman said in calling for a review of the Mulrunji case:

"Nick Cowdrey QC is notoriously independent and he's the only DPP of the eight states and territories of the Commonwealth who has tenure - the others are on contracts."

Miss Eagle is disturbed by what she sees in Queensland - a complex web of interests, social networks, and culture in which good governance and sound administration, not only in relation to justice and law, suffer.

The powerless still have much to fear in Queensland.

Please note, dear Reader, Miss Eagle has tried to be circumspect in what she has said. She has also been selective in the cases highlighted. She could have mentioned others.

An historic first relating to the death of Cameron (Mulrunji) Doomadgee

Andrew Boe is the lawyer for the family of Cameron (Mulrunji) Doomadgee. Andrew told an Australia Day crowd in Brisbane to-day that the decision to charge Senior Sergeant Chris Hurley in relation to the death of Mulrunji is a landmark decision.

"This is the first time that a criminal charge has followed a death in custody in Australia's history.

CHRIS HURLEY TO FACE JUSTICE OVER MULRUNJI'S DEATH

News has just come through that Sir Laurence Street in his review of the decision of the Queensland Director of Public Prosecution has declared that there is sufficient evidence to charge Chris Hurley in relation to the death of Cameron Doomadgee (Mulrunji) and that there may be sufficient evidence to convict. While Miss Eagle has provided links to the Media Release of Queensland Attorney-General Kerry Shine she believes that it warrants publication in full on this blog.

Attorney-General and Minister for Justice and Minister Assisting the Premier in Western QueenslandThe Honourable Kerry Shine
Friday, January 26, 2007

POLICE OFFICER TO FACE LEGAL ACTION

IN RELATION TO PALM ISLAND DEATH

Attorney-General and Minister for Justice Kerry Shine, today confirmed he had received Sir Laurence Street’s legal opinion in relation to possible charges resulting from the death of Mulrunji on Palm Island in 2004.
Mr Shine said Sir Laurence, a former New South Wales Chief Justice, had considered the brief of evidence provided by the Director of Public Prosecution Leanne Clare.
Sir Laurence was asked to consider

(1) whether sufficient admissible evidence exists to support the institution of criminal proceedings against any person with respect to the death of Mulrunji; and

(2) whether a reasonable prospect of a conviction before a reasonable jury exists in the event a prosecution is brought against any person.
“Sir Laurence has advised me that he believes there is sufficient admissible evidence exists to support the institution of criminal proceedings against Senior Sergeant Chris Hurley for manslaughter of Mulrunji,” Mr Shine said.
“Furthermore, Sir Laurence believes there is a reasonable prospect of a conviction.”
Mr Shine said Sir Laurence had emphasised that his role was not to determine whether Senior Sergeant Hurley was guilty of an offence, but rather to determine whether he should be put on trial.
“In light of Sir Laurence’s opinion, and having given very careful consideration to the matter myself, I have decided it is in the public interest that this matter should be resolved in a court,” he said.
“I have today instructed the Crown Solicitor to take the necessary steps to initiate a prosecution as soon as possible.”
“I ask that, given the pending legal proceedings, the media show restraint in their reporting of this matter so that Senior Sergeant Hurley can be assured of a fair trial.”
Mr Shine said the fact that Sir Laurence had formed a different opinion to that of Ms Clare was in no way a slight on her.
“The best legal minds often differ on matters of law – even in the High Court of Australia it is common for differing judgements to be recorded,” he said.
“In my view, Ms Clare has acted within the scope of her duty and her authority.”
Mr Shine said the Government’s intention remained to table Sir Laurence’s opinion in State Parliament.
“We will do so as soon as it is legally appropriate, but it is likely this will not be until after the court case to ensure the fairness of the prosecution is not compromised,” Mr Shine said.

26 January 2007

Media contact: Kirby Anderson 0418 197 350

*****

Miss Eagle asks:

Why did the issue of justice not come naturally to the Government of Queensland and its employees (the DPP; the Police) in this case?

What does this case have to say about the state of governance at all levels in Queensland?

Mr Beattie put on display Queensland backwardness in relationships with the first people of this nation. What will he do to bring about best practice, 21st century standards, in race relations in Queensland?

Above all, Mr Beattie, why did you have to be pushed?

Why did so many people in so many places have to expend so much energy in so much sorrow to ensure that the Queensland Police faced justice on this issue?

Take a ticket for Hicks

Another Australian lining up for justice for David Hicks is George Williams. George Williams is Director, Gilbert + Tobin Centre of Public Law and Anthony Mason Professor.

bringdavidhome@theage.com.au