the Banner Bright

Nicholas Gruen: “This follows from the basic common law principle that principals are responsible for those who act as their agents. … The problem, however, is one of interpretation. Ministers will deny acting improperly. Public servants should not assist or coach them in making disingenuous claims, but if ministers can figure out how to cover their tracks and assert their probity unless a public servant has clear evidence that they are acting improperly, it is difficult for them to do anything other than assist their ministers in their work. If it seems highly likely the minister is acting improperly, the next step according to the book is for the public servant to write to the minister: informing them that, in the department’s professional view, the proposed action is ultra-vires or beyond the minister’s power… Unfortunately, however, after the widespread sackings that cleared the public service decks on the ascension of new governments in 1996 and 2013, and the summary removal of Paul Barrett and Paul Grimes each for giving unwanted advice, these values are imperilled. It would be nice to be bipartisan in offering such admonitions. But the fact is that it’s the Coalition that has perpetrated virtually all these heavy blows against our Westminster heritage which evolved in England and then Australia over centuries. It’s ironic that such people call themselves ‘conservatives’.”

Haley Pessin, in a speech to supporters of the NYC Amazon unionisation drive: “In a just society, we would understand that people like Jeff Bezos, and people like the bosses who are making us go in so that they can make a profit — those are the real looters, and those are the real criminals. They don’t arrest people like Jeff Bezos who is $44 billion dollars richer during the pandemic while 45 million people remain unemployed in the U.S. No, instead, the police target people like George Floyd for allegedly forging a $20 bill. They targeted Eric Garner for selling loose cigarettes. They target the poor, and black people, and when they kill us they are protected by a legal system that almost never holds the police accountable unless we make them. This is not a mistake, and it’s not a matter of a few bad apples. Racism has been central to the way that the cops have operated since the beginning. They are the descendants of slave patrols and of strikebreakers, and they continue to function in this society to maintain the wealth of a very few at the top. They don’t care about our lives, they only care about one thing, and that’s their profits. And there is only one group of people with the power to get their knees off our necks, and that is us. Not alone, but as workers, because no matter how they try to treat us as disposable, without us, they would have nothing.”

Bernard Keane: “Anthony Albanese’s Press Club speech today … abandons even fifth-best policy positions on climate in favour of offering the government a chance to establish a bipartisan energy policy. By abandoning any interest in a National Energy Guarantee, Anthony Albanese will position Labor as weaker on climate action than Malcolm Turnbull, who at least sought to include both energy security and emissions reduction within his energy policy framework before another right-wing/Murdoch putsch forced him out. … [T]here can be no bipartisanship with the Coalition on anything to do with climate. It is run by climate denialists, and any attempt to take meaningful climate action will lead to a repeat of 2018. As Malcolm Turnbull correctly put it, these people operate like terrorists, intent on blowing up their own government, with the support of News Corp, if anyone tries to address climate change. You can’t do any sort of deal with them. That merely rewards terrorists.”

This week we have seen shocking revelations about former High Court judge Dyson Heydon, who “was known as ‘Dirty Dyson’ and ‘Handsy Heydon’ due to his lecherous behaviour towards young women”, with credible complaints of sexual harrassment (and, perhaps, criminal assault) made against him by a number of students, staff, and lawyers. The allegations relate to his time as a judge, as well as during his post-judicial career as a guest speaker and lecturer. The High Court’s response has included a sincere apology as well as a review of HR procedures to ensure better oversight and complaints processes for staff. However, as Gabrielle Appleby argues, the inherent power of judges needs to be counterbalanced by stronger institutional reform: “[U]nlike, for instance, the legal or medical professions, or the public service, these avenues for accountability are not designed to provide an independent, standing institutional response when an individual has a professional complaint about the conduct of a judge — be that on or off the bench. A standing, independent complaints body with appropriate powers would ensure that there is a place for complaints to be received, the capacity to investigate them properly, and an independent body to impose penalties should misconduct be found.”

Professor John Quiggin has published a report on the end of coal in Australia, concluding: “A fair and orderly phase-out of thermal coal from Australia’s economy is both essential and economically feasible. Australia can end its production and use of thermal coal by 2030, while protecting the interests of workers and communities, at a very modest cost. The costs of not acting, by contrast, are both huge and obvious.” The report is not only focussed on energy production, but on the lives of communities most at risk of disruption in the transition. Quiggin notes that over the life of comparable projects, renewables generate more jobs than coal, so “fears about the impact of a shift to renewables are misplaced as regards the national economy. However, it is of little comfort to coal-dependent communities that job losses in their region may be matched by gains elsewhere.” Fortunately, the communities most reliant on coal employment are well placed to transition to renewables, particularly solar, and tourism — as long as the government takes control of the process and plans for a just transition.

Samantha Maiden investigates the right-wing claims that Victoria’s recent increase in coronavirus cases are explained by transmission through the Black Lives Matters rallies: “a fortnight later, the incubation period for coronavirus, experts do not believe there are any confirmed cases of someone catching COVID-19 at the rallies. That’s despite the four people in Victoria confirmed to have attended the BLM protests who were subsequently diagnosed with COVID. Surprisingly, even in the United States where the coronavirus is rampant, some of the cities where the biggest BLM rallies occurred, including New York and Philadelphia, have actually recorded a fall in COVID cases after the protests.” Victoria’s chief health officer: “I don’t think the Black Lives Matter protest has contributed.” His federal counterparts: “[T]here is no evidence that there has been chains of community transmission that we are aware of through the Black Lives Matter protests.” Masks and hand hygiene work. Wear a mask and wash your hands.

Following up on my earlier post about how bicycle laws can be used as an excuse for police to harrass people whose public presence they generally dislike, here is an analysis of NSW’s helmet laws [$] in the Alternative Law Journal: “[T]here is also evidence from our research of quite arbitrary enforcement where unstated and sometimes discriminatory factors — rather than legitimate safety considerations — dictate enforcement practices. For a start, there is enormous geographical disparity in the number of penalty notices issued for failure to wear a bicycle helmet. … More worryingly, our interviews with legal aid lawyers and others indicate that the law is not infrequently used for a range of purposes clearly unrelated to bicycle safety, including to gather intelligence about other offences and suspects, to justify searches and to harass targeted individuals (particularly among young people). … Draconian enforcement of this kind does nothing to address the safety issue and is more likely to engender cynicism, resentment and resistance which may in turn produce escalation effects, including confiscation of the bike where a person cannot prove ownership and/or further offences like resist police, offensive language, goods in custody and so on.” Sound familiar?

Jody Rosen: “[T]ransit policies and worse infrastructure — trains and buses that don’t run well and badly serve low-income neighborhoods, vehicular traffic that pollutes the environment and endangers the lives of cyclists and pedestrians — is borne disproportionately by black and brown communities. In fact, you could say that Black Lives Matter is a moral crusade about freedom of movement and who is at liberty to go where. For generations, police departments have patrolled African-American neighborhoods like occupying armies, surveilling and circumscribing the movements of residents, who are treated as interlopers even on their home turf. The mobility of black people is additionally restricted by a system that construes their mere presence in many public spaces as trespassing, a de-facto crime, punishable by imprisonment or even death.” I thought about this when I heard about the Aboriginal man who was beaten by police and denied medical treatment in Adelaide last night. Witness reports suggest police used bicycle laws to hassle him and escalate the situation into violence; after it hit the media, their story shifted to insinuations about drugs. The charges (hindering police, assaulting police, property damage) all relate to the scuffle after police attempted to search him — and even these were dropped after a complaint about police brutality was made.

Jessica Irvine: “JobKeeper, as a public policy, is not a keeper. A policy that pays some people to do nothing is not a long-term plan, despite what advocates of a Universal Basic Income might say.” Liam Hogan, in rebuttal: “This is exactly wrong. It’s not even about creating UBI or Citizen’s Income, [i]n fact our society pays many people very well to do nothing, for good and bad reasons, and has done, without protests or disagreement, for a long time. Sometimes it’s extremely good, and deliberate. The aged pension (low as it is) is one of the great innovations of modern life, perhaps the greatest. Old people shouldn’t be working, or starving, or dependent; that’s only civilised. … Sometimes it’s bad, and we just accept the status quo. Returns on capital investment are precisely money for doing nothing; it is the money itself that has done the work, reproducing itself in the unique way that capital does. When an owner of an investment—whether that’s a bond, or a term deposit, or an inheritance, copyright on someone else’s pop song, or a rented-out house—gets their regular payment, no work has necessarily occurred, and that work that does (repairs, account fees) is incidental. … When the crisis recedes—if the crisis recedes—we will get to choose what’s a ‘keeper’ and what’s not. Who will we continue to allow to get money to do nothing?”

The New Yorker’s food correspondent, Helen Rosner, writes a column for the times: “[A]pples are remarkably susceptible to disease and rot. … Blight spreads quickly, and it’s not always apparent on the fruit’s surface. … The closer an apple is to rot, the more rot it spreads—one spoiling apple, in a crisper drawer or a fruit bowl, or a storage barrel or a cross-country shipping container, or even still hanging on the bough, speeds the rot of every apple it touches, and even of ones it doesn’t touch. The whole bunch quickly begins to exemplify what the artist Claes Oldenburg called ‘the brown sad art of rotting apples’: a swamp of ferment, infecting the air with the hideous sweetness of decay. Chaucer was likely the first to write a version of the now commonplace proverb: ‘A rotten apple’s better thrown away / Before it spoils the barrel.’ But I’m partial to Benjamin Franklin’s version: ‘The rotten apple spoils his companions.’ The saying is often used to refer to the corruption of select individuals within a group. But the point is the fruit’s susceptibility to collective rot. … The only way to avoid rot is to be proactive: check every apple, every tree. At the first sight of something amiss—a bruise or broken skin, a sunken place—toss that apple out, but don’t stop there. Scrub all the others and monitor them closely, but know that it’s likely already too late. Better to trim and burn the infected branch, or even the whole tree.”