Diary

Gadfly
A law unto himself

Gadfly had the temerity to turn his back for a fortnight and on reporting back for duty discovers everything has turned to mush.

It’s starkly apparent that language and ideas no longer have the same meaning and value they once did. Take the “rule of law”, for instance – a well-worn notion, beloved of lawyers, meaning judges and courts as the third arm of government are independent of the other two arms.

The idea is that judges, right or wrong, have authority to make binding decisions according to law.

Now we find that Chris (The Tamil) Merritt, recently made redundant from The Catholic Boys Daily, has turned up making pronouncements as vice-president of the Rule of Law Institute of Australia, an outfit run out of a back room at Speed and Stracey, lawyers for Dicey Heydon.

The Tamil brings his own special agenda to the “rule of law”. For one thing he wants confessions extracted under duress to be admissible in court – an idea foreign to the usual old rusted-on rule-of-law types.

We only have to go back to the Jack Thomas cases of 2004, 2006 and 2008. “Jihad” Jack was the first person convicted in Australia under legislation dealing with the funding of terrorism and he was sentenced to five years’ porridge, with a minimum of two years.

He appealed and the Victorian Court of Appeal quashed the conviction because Thomas’s confession was involuntary. His will had been overborne by threats and intimidation and the young Melbourne milkman thought that he might be better off if he told the AFP anything they wanted to hear.

The appeal judges said the records of interview should never have been admitted at trial. This was not good enough for The Tamil. After the appeal decision in 2006 he wrote in The Catholic Boys Daily: “When the legal system allows a mate of Osama bin Laden to walk free in Melbourne something is terribly wrong.”

Merritt wanted the judges to find a way to “protect society from this man” – in other words keep him in pokey. It got better. There was a retrial and in October 2008 a Supreme Court jury acquitted Thomas of the terrorism-related charges – receiving $3500 and a plane ticket from a member of al-Qaeda. He was convicted of a minor offence of falsifying a passport document.

The upshot is that Rule of Law Merritt had been calling for the continued punishment of someone a jury found not guilty. It’s almost on a par with his foam-flecked rage over the High Court’s constitutional decision that Indigenous Australians could not be deported as aliens.

The Tamil declared this an “illegitimate exercise of judicial power”.

The rule of law – it’s a many-splendoured thing.

Recipe for trouble

This is not the only contention that is causing strife in the legal caper.

To mark the 100th anniversary of the 19th amendment to the United States constitution, the American Bar Association has produced a book of 100 recipes, with contributions from notables including Justice Ruth Bader Ginsburg, Hillary Clinton and Australia’s own Gaetano (Tony) Pagone, a former judge of the Federal Court.

The 19th amendment in 1920 gave women the vote, and while a book of recipes might seem an odd way to celebrate a win for women, cookbooks were actually used by suffragists as a way to promote their message. Today, lucky ladies around the world can vote and stay in the kitchen with the cookbook.

Tony Pagone is also patron of the Australian Italian Lawyers Association and two years ago was elected president of the International Association of Judges. He’s also a royal commissioner leading the royal commission into aged care – a sector not known for fine cuisine.

Pagone’s contribution to The Nineteenth Amendment Centennial Cookbook is a recipe for caponata.

“Heat the olive oil in a large pan adding finely chopped garlic, chilli, onion, salt and pepper. Chop the eggplant into cubes and add that to the oil until soft and brown. Chop the capsicum and fry separately with salt and then add to the other pan. Add the diced tomatoes, red wine vinegar, capers and chopped celery …” et cetera.

It’s here that disputation has broken out. Albert Monichino, QC, from the Melbourne bar, is president of the Australian Italian Lawyers Association and he circulated to members and friends news of patron Pagone’s recipe in the cookbook to acknowledge the early American suffragettes.

Privately, however, Monichino has taken Pagone to task over his version of caponata, insisting it is a requirement that the eggplant should be well salted before frying.

We’ll just have to wait and see whether this omission leads to litigation. It would not be the first crisis to confront the women’s movement in the US. There was a setback in 1918 when the American flu was raging around the world – nonetheless, the cause triumphed with the amendment being ratified two years later.

Soldiering on

There have been so many pre-trial excursions of the Ben Roberts-Smith defamation case in the Federal Court that Gadfly has quite lost count.

This week the sixth published judgement was handed down, but that is only a fraction of the number of times the case has been subject to judicial management.

The Victoria Cross recipient and Seven West Media executive is suing The Sydney Morning Herald, The Age and The Canberra Times, plus journalists Nick McKenzie, Chris Masters and David Wroe, over reports in 2018 that he was involved in the unlawful killing of civilians while on deployment with the SAS in Afghanistan.

This trial has been delayed because of the pandemic as it is not possible to have classified documents handled remotely. It is now scheduled to start on June 7 next year and to run for six to eight weeks.

If it does proceed, it promises to be one of the most important defamation cases in a generation. This week Justice Craig Colvin has been dealing with a claim of public interest immunity by the Inspector-General of the Australian Defence Force.

The media parties are seeking access from Roberts-Smith of any notice from the IGADF that he is a “potentially affected person” (PAP), that is, that he may be adversely named in the investigation.

Justice Colvin said the public interest in the administration of justice may be frustrated if the media parties did not have access to the documents connected to the PAP notice.

A notice from the IGADF to a PAP would in all likelihood contain information of “considerable forensic importance”.

However, Colvin gave the Commonwealth lawyers, acting for the inspector-general, until next Tuesday to provide further confidential evidence.

The Australian Federal Police is also investigating the former soldier and has obtained evidence allegedly implicating him in the murder in Darwan village of an Afghan farmer, Ali Jan, who allegedly was kicked off a cliff while handcuffed, and then shot.

It would certainly be of public interest if the truth emerged about what Australian forces did or didn’t do in Afghanistan.

Commodore Fiona Sneath, the deputy Inspector-General of the ADF, has told the court that the investigation has struggled to break through the SAS culture of silence.

It’s just as well Kerry Stokes is writing the cheques for Roberts-Smith’s lawyers and PR people.

The will of the Hun

The Hun in Melbourne, among other slowly crumbling parts of the Evil Empire, has been campaigning for the Victorian premier, Dan Andrews, to go, resign, fall on his sword, sack himself.

The lockdown and curfew are too much to endure. The plague may take many more lives, but, hey, think about the upward-thrusting pistons of capitalism.

The anti-Andrews campaign has been going on since early last month – about the time the Guardian Essential poll recorded that 72 per cent of those sampled supported Andrews’ night-time curfew, 71 per cent were in agreement with restrictions on leaving the home, and 70 per cent supported containment on business activity.

The survey found that 79 per cent of respondents have a good understanding of what they are required to do during the emergency and 67 per cent say the lockdown is appropriate.

On Thursday, a Roy Morgan poll found 70 per cent of Victorians approve of Premier Andrews and the way he is handling his job.

There’s nothing like Rupert’s lickspittles being in touch with public sentiment.

The latest siren call comes from well-aged hack Terence McCrann, who this week asked: “How come Daniel Andrews did not resign as Premier of Victoria on Sunday? This is not posed as a rhetorical question or just to have a cheap shot.”

Oh no. Nothing like that.

Michael Wyles, the conservative silk, in his daily email analysis of the virus situation, on Monday drew on the inspiration of Gandhi’s resistance to authority:

“Today I am reminded of the words of that wise man who delivered self determination to India and freed it from the yoke of English Imperialism, Mohandas Karamchand Gandhi, aka Mahatma Gandhi, as we embrace the task of living under the unelected ideological pursuit of the public servant whose advice is prevailing over our right to embrace our families and earn a living: ‘Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.’ ”

Right on. It’s also one of Arnold Schwarzenegger’s favourite quotes.

Former Liberal leader John Hewson observed on Tuesday, via Twitter: “Could I be forgiven for believing that the attack on Andrew’s [sic] pathway was orchestrated between the Govt, business and some media all singing off the same page of dot points? Or is it just an amazing coincidence?”

Or it is just the usual lot of privileged, self-interested whingers banging on in a discordant fashion? 

Tips and tattle: [email protected]

This article was first published in the print edition of The Saturday Paper on Sep 12, 2020 as "Gadfly: A law unto himself ".

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Richard Ackland is the publisher of Justinian. He is The Saturday Paper’s diarist-at-large and legal affairs editor.