The Blue Ensign was elevated to the position of the Australian National Flag by Robert Menzies through the Flags Act of 1953. Since it gazumping the Union Jack as the primary flag of Australia, it has had a pretty spotted history, and hasn't risen to the heights that the people of other nation's feel for the flag. The US being a good example. Often Australian's choose alternate flags to represent themselves, flags such as Boxing Matilda and the Aboriginal Flag - both undeniably Australian in their imagery.

But rather than this being a weakness, this is a strength. It may very well be that a nation-state or government deciding what is suitable as the national flag is from a time past. The world knows and understands Australian imagery, they are inundated with it. Australians also live and work in all parts of the world, spreading their culture. Our 19thC flag is not representing our diversity and reach.

Section 5 in the Flags Act of 1953 has been used in the past to elevate flags to the title of an Australian Flag. This is done through the authority of the Governor-General. Through Section 5, national symbolism can be deregulated, and popular flags elevated to the role of an Australian Flag.

The coming Australian Commonwealth will need a Flag

There were a couple of competitions held in Australian in 1901 to determine a new Australian federal flag, one by the Evening Standard had a winner whose flag contained the Union Jack above red and white stripes, with the fly containing the southern cross. The government soon after ran a competition which was announced in the Commonwealth of Australia Gazette.

The Government of the Commonwealth of Australia invite competitive designs for a Federal Flag, such designs to be forwarded by post or otherwise not later than the 31st May, 1901.

The designs will be judged by a Board to be appointed by the Federal Government for the purpose, and a sum of 75 pounds will be paid to the designer of that selected as the best.

Each competitor will be required to forward two coloured sketches-- one for the merchant service, and one for naval or official use--not less than 6 inches by 3 inches in size.

The British conventions in defaced Ensign usage was that a defaced blue ensign was for government use only. A defaced red ensign was for the use of the Merchant Navy, and a defaced white ensign for the Navy.

Through the history of the Australian ensigns until the 1953 Flag Act, this is how the flags were used. The official national flag was the Union Jack. The flag of federal government was the blue ensign. It was only supposed to be flown off of federal buildings, individuals were not supposed to fly the blue ensign on land. The blue ensign was reserved for government use.

Even in the earliest days after federation, the usage of the red ensign was more common than the blue ensign. In many of the ortho-chromatic pictures of World War I, the red ensign is visible due to the fading qualities of the film. Warm colours, such as reds and yellows, fade to black. The cool colours, such as blue fade to almost white. It is a fact that Australians defaced the red ensign for their own purposes, in choice over the blue ensign - and why wouldn't they? The blue ensign was the government flag.

Both Menzies and Curtin encouraged Australians to fly the blue ensign on land, and give up their fondness for the red ensign. Menzies issued the press statement;

The Official view is that there should be no unnecessary restriction placed on the flying of the Blue Ensign on shore. Its use on public buildings, by schools, and by the public generally would not only be permitted but appreciated, provided it is flown in a manner appropriate to the use of a national emblem. Australian merchant vessels will, of course, continue to fly the Commonwealth Red Ensign.

It was not until the Flags Act of 1953 that the blue ensign became the Australian National Flag, and to be flown in primacy to all others in Australia. It has been suggested that Menzies sought to remove the red ensign as a popular symbol, due to its colour being equated with communism. It is not uncommon today to hear the red ensign called the "communist flag". Despite the fear of "red", Canada maintained a defaced red ensign as its national flag until replacing it with the current maple leaf flag.

The Ho-hum Australian Flag

Many Australians find the current national flag disagreeable, and unrepresentative of modern Australia. I love the southern cross. Peter Lalor entwined those stars with Australian liberty at Eureka. But the Union Jack? I am not British, so I have zero empathy with it. In my opinion, the Union Jack has to go.

Several Australians banded together to advocate for a change in the national flag. Harold Scruby heads Ausflag . After the Howard Government was elected, Scruby sent a letter to the Prime Minister ;

Ausflag respectfully proposes the following points for your consideration:

1. It is our view that a "referendum" is inappropriate as this is not a Constitutional issue. The flag was not included by our forefathers in the Constitution and should not be confused with the referendum required for Australia to become a republic. This is supported in writing by the Australian Democrats (see attached letter from Senator Kernot). In spite of the several changes to the flags which have flown over Australia since 1788, no referendums have ever been required for the adoption of the new flags.

2. That instead of a referendum, you consider holding a plebiscite based on the "National Anthem" precedent set by the Australian Government in 1977 under Prime Minister Malcolm Fraser. The people of Australia were given the choice of several options, including the then National Anthem, God Save the Queen. Ausflag has always campaigned for a "plebiscite" on the Australian Flag. It has been a part of our Petition for many years (see attached copy). To date, the people of Australia have never been given the right to choose the Australian Flag.

The reply to Harold Scruby came via David Jull ;

The Coalition Government is strongly committed to the Australian National Flag. It was this commitment which, during the election, led us to promise to amend the Flags Act 1953 to guarantee that all Australians would be consulted before any changes to the Australian National Flag were made. Clearly the present legislative arrangement whereby the national flag can be changed by an Act of Parliament, without the views of the Australian people being taken into account, is unacceptable.

Yet to Judd and the Howard Government, effectively entrenching the Flag Act without taking it to the people is perfectly acceptable. Given the difficulty in Australia of seeking any majority in a plebiscite or referendum, and the natural distrust for Canberra politicians, has made it near impossible for any majority to be achieved.

One of the amended components of the Flags Act includes ;

(1)The blue flag described in Schedule 1, being the flag a reproduction of which is set out in Part I of Schedule 2, is declared to be the Australian National Flag.

(2) The blue flag referred to in subsection (1) ceases to be the Australian National Flag if, and only if:

(a) a new flag or flags, and the flag referred to in subsection (1), are submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives; and
(b) the new flag, or one of the new flags, is chosen by a majority of all the electors voting.

(3) The form and manner in which a proposal for a new Australian National Flag is submitted to electors, and the manner in which a vote on the proposal is taken (which may include the adoption of a form of preferential voting for choosing among 3 or more flags), and arrangements for adopting a new flag as the Australian National Flag if chosen as mentioned in subsection (2), are to be as the Parliament prescribes.

So a flag of dubious popularity in 1953 is promoted through Parliamentary action, and then later entrenched at the behest of parliament, even though polls indicated that there was popular dissatisfaction with the current national flag.

The Political Football Flag

The Howard Government has bundled into the education funding guidelines that must be followed if a school procures a flagpole. I cannot find the guidelines on the Department of Education, Science and Training; but an article by Andrew Bartlett contains some of the guidelines ;

should place a plaque on the flagpole stating the pole is a gift from the Australian Government;
should put an article, and photo if possible, in the school newsletter promoting the purchase of the flagpole and noting the Federal Government's assistance;
should contact the office of the Parliamentary Secretary to the Minister for Education, Science and Training to arrange attendance by an Australian Government representative at an opening ceremony;
must fly the Australian flag on the pole (or in the centre pole if it is a yardarm style pole for 3 flags).

As Andrew Bartlett notes, the school is not asked to contact their local MP, but instead a Liberal or National member of government. This restriction on the use of the Australian Flag for the glory of the Howard Government has been raised to a head recently when a Western Australian opposition member, Graham Edwards, was told by a local school that he could attend the flag ceremony, but not take part in it. Edwards lost both legs in Vietnam .

It should be noted that Vietnam was the first conflict fought under the Blue Ensign as the Australian National Flag. Brendan Nelson was unapologetic, being quoted as saying ;

Where the Government has made a significant investment of hard earned taxpayers money in a program it makes no apology whatsoever for requiring that a Government representative will officiate at that opening

Somehow "hard-earned taxpayer money" has been equated with the glory of the government of the day. That is hubris Australia could do without.

Deregulating National Symbolism

A little over a decade ago, Kathy Freeman celebrated her win at the 1994 Commonwealth Games by flying the Aboriginal Flag . The Aboriginal Flag is the first of the modern Australian flags, being devoid of any European heraldry, and in particular the Union Jack. Though her actions caused some controversy at the time, the Aboriginal and Torres Strait Islander flags have since been elevated as "Australian Flags" under Section 5 of the Flags Act .

Section 5 gives room for wider acceptance, pluralism and diversity of what it means to be represented by an Australian flag. It is no mistake that Boxing Matilda is used so heavily and often, it is a wonderful symbol of Australian fighting spirit. In our suburbs that is dominated by American flags flying from every house, our flying of Boxing Matilda is often the talk of the street. It is a strong symbol.

The blue ensign is a weak, confusing and divisive symbol. I would not deny the right of those who feel their Australian-ness expressed by it, that is their choice. But I do want something different, a flag and symbol which represents me as an Australian, and can do doubly duty, both officially, and off the flagpole in the front of my house. What I am saying is - give me a choice, and others like me. Don't close us off, or coerce us to follow you vision of what the Australian flag is.

Section 5 of the Flags Act would give official voice to the more popular, and palatable of the Australian flags. The Flags Act of 1953 should be amended so that the Australian National Flag does not have to have primacy over the other flags of Australia, that is left to the choice of the individual or institution flying the flag. Section 5 should also become more inclusive and flags of suitable popularity, maybe by citizen referenda, be elevated to the title of "Australian Flags".

It would be wonderful to see a sea of Australian flags at a sporting event, or major function - as diverse in their colours and symbols as Australians are.

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Andrew Bartlett sent a letter to the President of the Senate expressing support for multiculturalism.

It contained;

Pursuant to standing order 75, I give notice that today I propose to move:

"That, in the opinion of the Senate, the following is a matter of urgency:

The need for the Senate and all political leaders to express strong support for multiculturalism in Australia as playing a key role in the battle against extremism, in light of the increased public vilification and antagonism towards Muslims and other ethnic communities in Australia."

Several Senators weighed in on the issue. Senator Ronaldson;

As I said in my maiden speech, terrorism and extremism are the greatest threats to our region and to democratic nations throughout the world. Quite simply, we must work together to address this threat. The challenge is enormous. Everyone in this chamber would agree that it is not a short-term challenge; it is a short-term, medium-term and long-term challenge.

What is important is an acknowledgment by all of us that the Muslim community in this country is under threat from within. Radical clerics and spokespeople are undermining the genuine endeavours and the commitment of the moderate majority as they try to deal with extremism and negative perceptions.

Ronaldson quoted a 60 Minutes interview where the US Government was blamed for September 11th. It is interesting to note that Ronaldson is supporting the "National Security State" by claiming it is a long-term issue.

Ronaldson does not address the issue of multi-culturalism either - just the concern that muslims are not discriminated against, and that extremist muslims are ruining it, not only for moderate muslims; but through implication, for all of us.

Senator Ludwig replied to Senator Ronaldson. He included some references to the government wondering why their departments didnt support multiculturalism (as a kind of equity - equal oppurtunities?). I am not sure this is neccessary though. Multiculturalism is about being who you want to be, not what the state or the society demands you be. It is about liberty. Ludwig later mentions the social cohesion aspect of multiculturalism;

Let me put it in this way. There are Muslims who live here and many are Australian citizens. They are not going to depart Australia. They are not going to leave if we end multiculturalism tomorrow. They are here to stay. The question we need to ask is: do we have a system which ensures social cohesion and respect for the law and Australian values, or do we turn our back on multiculturalism as a means of achieving this? The Muslim community in Australia participates and must continue to participate in the fight against terrorism, as does every other religious order, group and part of our community. It is about ensuring that all of our community recognises that terrorism is against the community, our social cohesion and the fabric of our society. It is not wanted, is not needed and should be rooted out.

Senator Fierravanti-Wells spoke next, tracing her ethnic roots through Australian culture and stating;

Over the years I have observed firsthand that Australia is a place where all of us, despite our differences, have shown that we are willing to listen, discuss and consider. Australia is a tolerant and compassionate society founded on understanding and respecting differences. With this tolerance has come the responsibility of integration in the Australian way of life and a respect for Australian customs and usages. In a globalised world this openness of approach has proved to be a great asset. It is also our strength against terrorism and extremism.

But that isn't multiculturalism, that is assimilation into monoculturalism. I am a classic example of how ignorant this notion is, I live in the US, work in the US, have an American wife, and half my family is American - but i never, ever can be American. I am Australian.

America makes no demands on me to fly the American flag off my house, in fact I would be in serious trouble if it did as Boxing Matilda is the flag that most commonly is flying proudly to the street.

Senator Nettle was next to speak. His reply was short and in support of multiculturalism. It was also high on the attack scale, euqating Senator Stone's comments as being near racism. Probably a Senate form of Godwining yourself.

One interesting quote from it was;

Multiculturalism in Australia is a fact. It is not a theory or an experiment, as some would have us believe. It is a fact and has been at least since European colonisation of the continent began. Those who contend that Australian culture has ever been homogenous are simply wrong, and there are generations of Aboriginal, Torres Strait Islander, Chinese, Jewish, Arab, Irish, Pacific Islander, German and so many other cultural groups living in Australia who are proof of this.

It is my belief that multiculturalism is a natural out-growth of liberty. Letting people be who they want to be is the mechanism to greater prosperity, social harmony and cultural advancement. Maximum liberty must be the goal of any society, and state.

Senator Hurley asks an interesting question of the media;

There are 200 languages spoken in Australia. We are a multicultural country and will continue to be. The fact is we cannot do away with multiculturalism in this country without proposing some sort of other practical way to address the diversity in our country. That is what a lot of the debate that has gone on in the media has not addressed. If multiculturalism is not the way of the future, if it no longer copes in our country, what do we replace it with?

Which is a fair summation of the op-ed media, it nothing more cerebral and useful than "multi-culturalism bad" and that it "causes terrorism". Hurley continues;

I do not think we have anything to fear from Muslim culture, and its differences, providing that the moderate force prevails in our society. Indeed, in Australia we have laws and regulations which ensure that Australian values are preserved. If there is any fear about the influx of people of different cultures and religion coming into Australia then we need to address it through an examination of our laws and regulations rather than tarring all people of that religion or ethnic group with the same brush.

I am reminded of Greg Egan's "Professional Australians" description. As if the rule of law and liberty are uniquely "Australian values". She, like Ludwing, concluded by attacking the government for not doing enough to ensure equal access for the "multicultural people".

The final speaker was Senator Brandis who concluded with a tip of the hat to Malcolm Fraser;

Malcolm Fraser, who is much criticised on my side of politics these days, will always have an honourable place as one of the Australian statesmen who ushered in the era of multiculturalism.

I was a bit disappointed, this could have been an interesting debate, but it appears party positions were maintained more than anything else. All of them caricatured themselves to an extent by sticking to party lines. Which was a shame.

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Such as anti-terror and anti-riot laws, America is retiring theirs .

The US Senate has not passed the renewal of some of the sunsetted provisions of the Patriot Act. From here ;

The filibuster, triggered by a bipartisan group of senators worried about protections for civil liberties, leaves major provisions of the Patriot Act in danger of expiring at the end of the year. The White House and majority leader Bill Frist, a Tennessee Republican, rejected a short-term extension of the law, which would have allowed time to negotiate changes early next year.

Before the vote, Frist and his leadership team were sure that they could get the 60 votes needed to end debate on the Patriot Act extension and bring the bill to a vote. But rank-and-file senators, some of them angry over a New York Times report that Bush had personally authorized the NSA to eavesdrop on Americans' conversations and e-mails, didn't comply.

It is caught in a filibuster. US Senator, Russ Feingold, has been doing an Andrew Bartlett on the issue during the last week . Since Andrew is a permanent part of the Australian blogging landscape, the question needs to be asked, why isn't Russ Feingold doing it permanently too?

Andrew Bartlett has been covering the possible tax reforms that Australia could benefit from . Craig Emerson also weighed in on the issue . But Emerson's website sucks and I can't find more information on what he is proposing. So I cannot be bothered discussing his policy ....

There is no polite way to say this. But compare Andrew Bartlett's website to Craig Emerson's . Andrew's is readable and accessible. Craig's is a rats arse. I wanted to get more info on what Emerson was proposing in terms of bracket creep. But on his website I can find nothing of use. Worse, his media releases are in PDFs.

Emerson got on the ABC feed, so congratulations, but I can't go into any more detail in his tax reform proposals because the information is not there. I don't live in Queensland, but my experiences here would influence my vote.

Bracket creep is an issue in the Federal taxation system, 30c on the dollar is taken after the 21K mark. In my opinion, any tax reform should occur at the lower tax brackets. Greater Sydney and Melbourne comprise about eight million people. Tack on Brisbane's two million and suddenly half the country lives in three cities. None of these cities are cheap to live in, and wages aren't appreciating at the same rate they were during the tech boom. Time to stop the bracket creep.

I also made a novel suggestion in trying to derive from first principles social organisation and an equitable means to pay for sustaining government (the dispossesive) ;

The goal of any social organisation is to foment prosperity. This can be taken as the starting point for an equitable system of taxation. Those that have prospered from economic liberty have a moral responsibility to not only maintain the present system of maximum liberty, but also to ensure those that have not prospered by it, are given every opportunity to achieve in this environment. It can be derived from this principle, that taxation should not begin until after the point of prosperity.

I took the point of prosperity as being;

I find using those that have half of the taxable income is a more equitable system of taxation. This would have the added advantage of removing the highly regressive nature of the current Australian taxation brackets. Those that have prospered carry an equal burden in ensuring not only maximum liberty remains, but also that those who have not prospered in such a system, get every opportunity to do so. This equal burden should be carried through to the taxation system. I recommend that;

A personal tax rate of 30% for those who earn income that is in the top half of all income. This would be adjusted every year. Currently this point is ~ $60,000

So basically no income tax until an individual earns over $60,000. The tax rate would be 30c in every dollar earnt over 60K.

More on Tax

• Unprogressive Australian Tax Brackets
• Emerson's Tax Reform
• Constantly Increasing Tax as Percent of GDP
• Government Expenditures and Taxation Levels
• Governments don't let other Governments tax for them
• The crippling cost to the Government.

First by the flurry of bit-torrenting, now by iTunes. This innovation in on-demand visual media has ramifications for politicians and how they get their message out to the electorate.

I missed Battlestar Galactica [BSG] last night due to inter-state travel and other circumstances. I bought it, and watched it today through iTunes for $1.99 USD. The download took about five minutes, and it was very watchable on the computer monitor.

The mini-series and series one of Battlestar Galactica was funded by Sky TV in the UK. It wasoriginally shown to British television audiences only. As a consequence, technology proficient Sci-fi fans recorded them and distributed them through through bit-torrents. Sci-fi fans around the world bit-torrented BSG and watched the show independent of television. I was one of them.

The global verdict was largely a thumbs-up for this re-visioning of Battlestar Galactica and the SciFi channel in the US rushed to fund a second series of BSG.

Apple recently expanded their iTunes store to include Videos. Even a well rendered and compressed stream from an hour long is considerable. The BSG episode I downloaded is 200 Mb in total. That is a lot of infrastructure and bandwidth to support that in mass market terms. But they have done it. Far quicker that I thought they be able to.

One dollar ninety-nine later, I am left wondering why I pay seventy dollars a month for satellite television. If I can get series like HBO's Rome or SciFi's BSG on demand I don't see a need to pay a large monthly amount for a television subscription.

This change will have political ramifications. Already the mass media outlets have seen the circulation of newspapers drop precipitously as the internet provides a more convenient and omnipresent distribution form. The nightly news programs have seen their audiences grey to the point that all the advertising on them is for pills, health insurance or intimacy performance enhancers.

Bill Hayden wrote in his autobiography;

We had a market to reach - the electorate - and our medium was then as it is today, the media. What the media was prepared to carry determined, and still does, the manner of our presentation.

Television probably won't disappear entirely, but with on-demand shows, and white goods mingling with computer functionality, the old notion of Channel 2, 7, 9 and 10 holding public opinion to ransom will be long gone. It may be some other form of combative segmented media instead; ie Blair, an Australian dailykos or some other permutation of that form of echo-chamber grapeshot commentary. Or something else superior to that wasted media form.

This poses an issue for politicians. Previously the government could grant favours to the likes of Rupert Murdoch and Kerry Packer in return for their support. But if visual media becomes on demand, then who will pay for 30 second grabs? Not me.

Will I pay for an entire speech? Probably not.

Will I pay for newscasts? If parties, politicians, parliaments and citizen commenteriat are providing RSS feeds, podcasts and quicktime movies, then the answer here is no.

I don't see an absolute need for television in my future. The entrenched interests in Australia will try to make sure the massive comsumption of bandwidth that analogue free-to-air television uses will remain. Even with Packer dead, that will take a long time politically and economically to kill. The market will have to move far beyond it (like 50 years) before a politician will be willing to risk the political fallout from removing that bandwidth from the TV stations.

A politician could go the route of Andrew Bartlett and publish directly to their electorate, and anyone else who wants a read. Or they could try and get more popular blogs and websites to carry their type-copies. Maybe even innovate some other way to interact with their constituents and the Australian people.

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Senator Andrew Bartlett has an article on why Judges should not be elected . Andrew suggests that a judicature sensitive to re-election will perform for a majority, with the goal of re-election, at the expense of minority rights. Andrew also points out the problem of political donations polluting the judicial process. The idea of an elected judicial brings into tension the balance between specialist, representative and crowd wisdom.

Andrew argues against it from the point of political and legal equality;

Community standards can play a part in determining a reasonable interpretation of same parts of the law and in sentencing. Evolving standards and understanding are part and parcel of the evolution of the common law.

However, this sort of thing should only be at the margins, as it is crucial the law is applied as impartially and consistently as possible. It is crucial that marginalised people or those from minority groups are not treated more harshly or unfairly by a justice system, just because they are from outside the mainstream. Reality will always fall short of the ideal, but these remains ideals worth striving for.

Implicit in Andrew's in statement is that an elected judicial is more likely to follow majority public opinion which is no guarantee of preserving minority rights. A basic function of a representative republican system is that the minority respect the will of the majority while the majority respect the rights of the minority. Representative system cease to function in a liberal democratic sense when that is broken.

Australian High Court judges are appointed by nomination from the Executive Cabinet and after consultation with the State Attorney-Generals (since 1979). There is no qualification for a High Court judge, any joe-bloe can be one, but it is usually a political appointment. There is no confirmation process for High Court judges like there is in the US system, another area where Australia falls down on checks and balances between Executive and Legislature.

A good immediate improvement, that would be cheap and bolster the Senate's legislative independence, would be the creation of a confirmation process in the Senate for judicial appointments.

One of the purposes of an appointed judicature is to fulfil the specialist role. Tenure is intended to raise the judicature above day to day concerns of political retribution and public opinion so that they can make legal decisions without being influenced politically. The goal is a legal specialist that is impervious to political influence.

The Westminster system, as practiced by Australia, minimises the chances of that goal by having no confirmation process to determine the specialist qualifications of the judge. The lack of a confirmation process and a deliberative role from the states enables a politically influenced judicature to be nominated by the Executive Cabinet.

The High Court of Australia is to represent the state's interest, as such it makes sense to have the state's house - the Senate - conduct the confirmation process.

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Andrew Murray made a speech in the Senate Hansard for October 12th on the subject of appointed judges and the need for legislative oversight of executive appointments to the High Court. Andrew Bartlett, another Senator from the Australian Democrats recently touched on the same issue writing that Judges should not be elected . SSR also covered the issue where Alan argued for a Missouri Plan style of appointing judges.

I have reproduced Andrew Murray's speech in full.

Unusually for me, during the last parliamentary sitting I took leave from the Senate for an afternoon, to go to Sydney to attend the Magna Carta lecture. The invitation from the British High Commission was hard to resist given the historical significance of the Magna Carta and the quality of the speaker. Signed 800 years ago, in 1215, this charter of freedoms and values is one of the bedrocks of democracy. The Magna Carta has been kept alive and is a charter that continues to resonate in the modern world. Australia has its own copy, which is proudly displayed here in Parliament House.

The lecture was titled `The role of judges in a modern democracy' and was delivered by Lord Falconer of Thoroton. He is the Lord Chancellor and Secretary of State for Constitutional Affairs in the United Kingdom. Needless to say, he is a man of vast experience and considerable wisdom. The basic tenet of his address was that the judiciary's role is subtly changing, particularly in relation to politics. It is a change that is occurring without the need to effect any constitutional change. It is also a change that is establishing a new form of relationship between the executive, the legislature and the judiciary. He stated:

We want them to undertake in a non-political way the resolution of issues which have either in the past been regarded as political or which are becoming more political.

To illustrate this, he focused on sentencing and human rights as areas where judges in the modern democracy seem to demonstrate many of the pressure points in the relationship between the public, the executive, the legislature and the judiciary. Drawing on the democratic ideal of equality before the law, he stated that the personal rights and freedoms of each individual can only be given effect to by protection under the law. The extent of this protection, he remarked:

... will involve judgements on whether executive action has exceeded the limits of freedom and freedom from discrimination to which the individual is entitled in a modern democracy.

However, I do not intend to elaborate on these aspects of his address--which is available on the web for those interested. Rather, I am going to focus on the fundamentals that Lord Falconer considers are essential for a modern and successful judiciary, in particular a better framework for appointing judges. This is an issue which has long concerned me. There have been renewed calls from within and outside of the judiciary for a revised judicial appointments process. This has long been demanded. Back in 1998, Felicity Maher and I jointly published an article entitled `Judging the judges' in the August edition of the Alternative Law Journal. In it we argued that, to ensure public confidence in our nation's highest court and its pronouncements, High Court justices must be perceived as the most meritorious and as completely independent. We argued for a transparent process, but in Australia the procedures to appoint justices to the High Court remain clouded in secrecy.

Under section 72 of the Commonwealth Constitution, only two requirements need be satisfied. They are that appointments must be made by the Governor-General and that appointees are to be less than 70 years of age. Additionally, the High Court of Australia Act 1979 sets out two further requirements: section 6 states that, before appointments are made, the Commonwealth Attorney-General must consult with the states' attorneys-general; and section 7 states that a candidate must have served as a judge of a court or must have been admitted as a barrister or solicitor for not less than five years. These requirements are an insufficient safeguard because the modern practice of government allows a blatantly partisan executive too much discretion in appointing High Court justices.

The increasing public perception seems now to be that, when a government is able to choose who is to fill judicial vacancies, it will more likely than not to choose those sympathetic towards the views of the party in power--that that party looks for attitudes and philosophies in candidates that it likes. Whether that is fair or unfair, that is quite a common perception. My heart froze at the horrifying confirmation that this was the coalition government's agenda when the then Deputy Prime Minister declared that what was needed in Australia were capital `C' conservative judges. I could feel the breath of tyranny, and an assault on liberty, in those words. What a slur he put on every judicial appointment with those words! Not only that but this was a dangerous thing to do, because, if as judgements accumulate those judges end up being perceived as partisan to one side of politics, public confidence in the independence of the judiciary will suffer.

This is most true when great and hotly contested political decisions are at stake, such as on government advertising practices, freedom of information laws and industrial relations laws. It may not be fair, but, as the old adage goes, it is much easier to lose a reputation than to gain one, and in a democratic system of checks and balances public perception is a big factor.

On another front, the consequence of the existing judicial appointments system is a history of predominantly white, Anglo-Saxon, eastern states men on the High Court bench. It is a bench that to date has not reflected the diversity of communities they judge. Lord Falconer stressed in his address that a system of appointing judges must clearly demonstrate to the public that selection is made on merit, that selection is divorced from politics and that selection reflects the society they are to judge. We need judges each with different world views. We need the mix to include those who have been outspoken on the rule of law, those who have been activists and those who are left, right and in the centre. What we do not need is to have even a hint that the scales of justice might be unbalanced through the appointment of judges or magistrates who the government or the public believe will defer to the government line because of patronage.

In his closing remarks, Lord Falconer stated that judges require an indefinable wisdom when making decisions, a wisdom that ensures public confidence is retained. He stated:

They must seek to give effect not to their personal views but to the values inherent in their legal system. Those values must reflect the society that system serves ... Our societies can ask for no more from their judges, but, to make our system work, our societies must expect no less.

Australian society can indeed ask for and expect more in our system. Political parties here occasionally complain about judicial appointments but, once in power, have made little administrative or legislative change to make the process more transparent. Not so in the United Kingdom. A more transparent and democratic process of appointing judges was ushered in under reforms announced by Prime Minister Blair in June 2003.

This process now involves a judicial appointments commission that recommends candidates to the Lord Chancellor, who then has limited power to reject those candidates. The expressions of interest process and the selection process are transparent, and appointment recommendations are based solely on merit. The task of setting out the criteria against which merit is tested lies with the commission. Although the final decision still remains in the hands of the government, those on the short list have all been ticked off by an independent body. No longer is the partisan political executive the sole selector of who should judge their society.

And neither should it be here. There are many countries where judicial appointment commissions exist. These include Ireland, Canada, South Africa, Israel, France, Germany, Italy, the Netherlands, Portugal and Spain. Numerous states in the United States also have them, and we are all aware how presidential nominees for the Supreme Court are put through close scrutiny by the parliament in the United States.

The Australian Democrats believe that a new process of appointing judges should be implemented here to ensure full public confidence and trust in the High Court. Three principles underlie our model. First, the candidate search and appointment procedures must be completely transparent, second, that merit is the fundamental selection criterion, and third, that there are no discriminatory obstacles for suitably qualified women and minority group representatives.

The appointment process should be depoliticised, even if that politicisation is just a perceived politicisation. This can be achieved by implementing a two-pronged model, one similar to the new United Kingdom system. The first prong is the creation of an independent judicial appointments committee and the second prong is the publication of selection criteria in a protocol periodically reviewed by the committee. This model can be achieved without resorting to the rigorous elements required for constitutional change under section 128 of the Constitution.

Instead, section 6 of the High Court of Australia Act could be amended to provide for the establishment, constitution and functions of a judicial appointments committee. Further, section 7 could be amended by adding to the qualifications requirement a protocol of criteria to be drafted by the committee. General recognition of the principles of equal opportunity, independence and integrity could also be given statutory force.

Reforms to achieve such a model are central to a modern and robust democracy. They are central to the separation of powers doctrine, whereby the judiciary is completely and transparently independent from the executive and legislature. Lord Falconer remarked:

... each part of the state needs a clear understanding of the interdependency of each of their roles. The legislature [and executive] cannot pass laws which they suspect the courts will ... construe in a way which does not deliver their intent.

If the political system fails in its decisions, as it is bound to do periodically, we need an independent judiciary that can address those failings in law, with no public perception that the bench is stacked and the process tainted.

The Chief Justice of Australia is alert to the task that is presently at hand, recently remarking that, in the contest between the new laws that address national security and that in the process transgress upon our liberties, the judiciary will be called upon to make decisions that may not be at all popular. He stressed the need to hold to the strongest traditions attached to judicial determination and the rule of law.

So back to the capital `C' conservative judges that the then Deputy Prime Minister told the world we should and were going to get. Unfortunately for them, and despite their obvious ability and merit, the Howard government's judicial appointments have to live with those political remarks and are affected by them in public perception terms. They can only prove the perception wrong by their conduct and judgements. And it is in the area where there is a great political clash that they will be watched most closely.

The recent High Court decision in Michael McKinnon v Secretary, Department of Treasury is a case in point. The applicant's case obviously had merit because it was a split decision, but the effect of the decision was a blow to accountability and public scrutiny in the public interest. It did nothing for the spirit of freedom of information. News Ltd chairman and chief executive Mr John Hartigan stated in the Australian on 7 September the decision was:

... extremely disappointing ... not just for The Australian newspaper but for Australians everywhere who value freedom of information and freedom of speech

Other commentators have remarked negatively on some of the prevailing judgements in the court. Former New South Wales Auditor-General Tony Harris, coming as he does from a strong accountability background, in the Australian Financial Review on 12 September noted that in the Work Choices advertising case, this majority judgement was based on an `obscure aside' which was not part of the statute and which overrode the principle endorsed by the parliament requiring appropriations to be used for specified outcomes. Effectively, the 3-2 split decision gave the government unfettered discretionary power over spending departmental appropriations. We currently await another decision, with the High Court now considering a third politically contentious case--that is, whether the Commonwealth's corporation powers validate the federal government's hostile takeover of the states' industrial relations power.

To conclude, I will briefly return to Lord Falconer's speech. Not only did it reveal the need to protect the essential principles of the rule of law and the separation of powers; it also revealed how it is possible to strengthen the law and judiciary in modern democracies and deal with a necessary tension that must exist between the political and judicial worlds. Former Labor chief of staff Michael Costello, in an opinion piece on Lord Falconer's address published in the Australian on 15 September, concluded his piece with these words:

We do have Australians who can speak with the quality and gravitas of a Falconer. Unfortunately, neither our Prime Minister nor our Attorney-General are among them: not from any incapacity but because the Howard Government has proven intolerant of constraints on prime ministerial power.

I can only trust that, when Labor eventually comes to power, steps will be taken to ensure that the principle of an independent judiciary is reinforced and that we will never ever hear a Labor Deputy Prime Minister saying that they will appoint capital `L' Laborites to counteract Mr Howard's capital `C' conservatives. We need a judicial appointments system that frees us from the fear of such taints or perceptions. The health of our democracy demands it.

Murray's solution is to create an independent judicial appointments committee and have transparent oversight by "publication of selection criteria in a protocol periodically reviewed by the committee". Murray spoke that the High Court Act would have to be amended to give the committee statutory authority.

This sounds similar to a Judicial Council which would present a short list to the Executive to choose a candidate which they could appoint to the Judicature.

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• Questions Without Notice Judicial Appointments Process - Murray, Ellison

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Andrew Bartlett in an adjournment speech about the issue of Palestine and Israel talks of his opinion on his role as a representative;

The petitioning document was handed to me at a rally in Brisbane some time back with the request that I table it in the Senate, so I have done so. It does not necessarily mean that I agree with the precise wording within the petitioning document, but I think it is important that people's views are represented.

Queensland has the two most interesting and open Senators at the moment.

Andrew Bartlett has an excellent article on Parliamentary Secretaries and what they do; What the hell does a Parliamentary Secretary do, anyway?

Parliamentary secretaries make up nearly one quarter of the Executive Council in the Howard Government. The benefit for the executive is that they come under executive discipline. This means their legislative voting is in lock-step with the executive (who straddles both executive and legislative in the Australian parliamentary systems).

Andrew writes;

Another aspect worth noting is that Parl Secs are also bound by the convention or principle of Ministerial solidarity. Whilst very few people in the major parties cross the floor anyway these days, if a Parl Sec or Minister were to do so, they would have to resign their position.

This is because Parl Secs are seen as part of the Executive Council (i.e. the Government), as opposed to being just a member of Parliament, so they are required to support a Government decision. This makes it very easy for any Prime Minister to get an issue through their Party Room or Caucus, with 42 of them are already locked into supporting it before they start a debate.

Expanding the size of the executive council is in the government's interest as it increases their power in the legislative.

In a more recent article Andrew notes the shadow government has Parliamentary Secretaries too;

I wrote a piece a while ago about Parliamentary Secretaries and what their role is - they can have significant responsibilities (e.g. Malcolm Turnbull's role), but they can also be fairly minor ones. However, I am not really sure what the role of shadow parliamentary secretaries is.

The question needs to be asked, why can't parliamentary secretaries do policy and research work as legislators and recommend it to the executive? Is a Parliamentary Secretary even necessary?

Andrew Bartlett in a speech points to a political response to citizenship being hopelessly one way - ie dominated by the state.

From the speech:

I also want to emphasise that the act and the bills specifically talk about the reciprocal relationship of rights and obligations. Towards the end of last year, we had a very brief and fairly farcical consultation process around a government discussion paper on the concept of a citizenship test. The Democrats genuinely engaged with that process and put forward a considered submission in what I thought at the time was probably a vain hope. Nonetheless, it was done in the hope that there was going to be genuine debate, that we were going to consider some of these issues as part of a genuine community engagement. It was a vain hope. The process was a political stunt. It was a deliberate, cheap, pathetic wedge. The consultation process was simply a farce to cover the predetermined position of the government to try to bring in a citizenship test, without in any way indicating how there were any current problems, as a way of trying to score some political points to abuse and misuse citizenship.

The interesting thing about that government discussion paper--which I thought was quite poorly written, perhaps reflecting the fact that it was just a short-term political stunt--was that there was a lot of focus on the obligations of citizens and very little on the rights of citizens. I agree that there are mutual obligations, rights and responsibilities, but there is no point trying to emphasise the obligations of people who are becoming citizens to do A, B, C, D and E whilst completely dismissing the rights that attach to citizenship and the obligations of government to ensure that those rights are upheld.

Unfortunately, what we are actually seeing from this government is them ignoring the rights of citizens and, in some cases, actually seeking to take them away. That to me is an indication that if there is any problem with the compact of citizenship it is not with people who are potentially considering becoming Australian citizens; it is with this government and the way they are treating some citizens, the way they are willing to sacrifice people for political advantage and the way they are willing to use citizenship itself as a political football.

In my opinion, the only way for citizenship to become meaningful is to strip it of the 'political' and come at it from a universal viewpoint . Liberty pretty much demands that approach otherwise the state will be able to discriminate at whim.