Just because it is beautiful........(16)

Listen to the nocturnal solo song of a Pied Butcherbird (with another Pied Butcherbird and an Australian Magpie in the background), recorded by Hollis Taylor near Trephina Gorge in Western Australia in August 2016. [http://www.audubon.org/]

Click on link to listen: http://www.audubon.org/sites/default/files/eathan_-_trephinagorgehollistaylor2016b-2.mp3

One Nation Leader Senator Pauline Hanson appears to be labouring under a new and rather strange delusion

One Nation Leader Senator Pauline Hanson appears to be labouring under a new and rather strange delusion – that Julian Assange is being held captive as a political prisoner in the Embassy of Ecuador in London and has been convicted of a serious criminal offence in the United States of America in absentia.

Rather oddly she fails to mention the fact that in 2012 he breached English bail conditions and this is the reason he cannot leave the embassy as he will inevitably be re-arrested due to an outstanding extradition request in relation to a Swedish investigation into rape allegations.

To date Assange has not been formally charged with any offence in Sweden or America, therefore their are no grounds for the out-going U.S. president to offer him the "presidential pardon" suggested by Hanson or the president-elect to consider doing so once he assumes office.

The current legal impasse may be getting closer to a resolution without Senator Hanson’s intervention, as Sweden’s public prosecutor’s office has confirmed that it will finally question Assange in the Ecuadorian embassy in London sometime this week.

Productivity Commission criticized over focus of superannuation inquiry

MEDIA RELEASE

7/11/2016

Super inquiry should look to the best, not second rate, systems

The Productivity Commission should focus on the world’s best retirement income systems rather than consider inferior models in its review into default superannuation settings, warns Industry Super Australia.

The retirement income systems of Denmark, the Netherlands and Australia are currently ranked first, second and third respectively in Mercer's 2016 Global Pension Index. Yet, Chile (ranked 8) and New Zealand (no

ranking) are being held up as exemplars in the Productivity Commission’s review process.

In its submission to the review, released today, Industry Super highlights key features of the successful Danish and Dutch systems that are already evident in Australia’s high-performing industry, corporate and

public sector default funds. (See table below.)

Specifically, they are:

• Trusted providers run on a not-for-profit basis only for the benefit of members;

• Industry or multi-industry funds generally affiliated with or approved by industrial parties;

• Wholesale rather than retail in structure to leverage scale and minimise costs.

Industry Super Australia chief executive, David Whiteley, said the focus on New Zealand’s and Chile’s pension systems had set the Productivity Commission review off on the wrong foot.

“The touchstone of a world class pension system comes down to the culture and values of the providers,” said Mr Whiteley.

“The best systems– just like Australia’s best performing funds – involve employers and employee representatives working together to deliver income security for retirees. They are not about generating profits for banks and financial institutions,” he said.

“The approach to superannuation in Denmark and the Netherlands - along with the part of Australia’s system built and maintained by unions and employers - is internationally lauded.

“The key difference is that these systems and institutions put member interests above those of others, including shareholders”.

“Super is different to banking and industry super funds are deliberately different to bank super funds,” he said.

The track record of for-profit entities in superannuation systems is poor, and, in Australia, regularly dogged by scandals. In the past week it was revealed the major banks’ wealth management arms will have to pay up

to $170 million in compensation to customers who were charged for services they never received. A separate analysis conducted by Rainmaker for ISA found that retail and bank-owned super funds have gouged up to $1.8 billion in fees by delaying the transfer of accounts to cheaper MySuper products.

“Official APRA data shows the for-profit retail sector has underperformed industry super funds and other not-for-profit funds by almost 2 per cent a year on average over the last decade. The retail model has

comprehensively failed to deliver fair outcomes for members,” said Mr Whiteley.

“What separates Australia from the best systems is that we allow for-profit funds to participate, despite clear and serious conflicts of interest and an unwillingness to act on them”.

Industry Super Australia supports the role of the Fair Work Commission in determining workplace default funds.

The Productivity Commission has been tasked with developing alternative models for a formal competitive process for allocating default fund members to products. Its draft report is due in March

2017.

For further information, including a copy of the submission, contact Phil Davey 0414 867 188

Industry Super Australia provides research and advocacy on behalf of 15 not-for-profit industry funds who, in

turn, are the custodians of the retirement savings of five million Australians.

The opinions above are those of the author in their capacity as spokesperson for Industry Super Australia (ISA). ISA, the authors and all other persons involved in the preparation of this information are thereby not giving legal, financial or professional advice for individual persons or organisations. Consider your own objectives, financial situation and needs before making a decision about superannuation because they are not taken into account in this information. You should consider the Product Disclosure Statement available from individual funds before making an investment decision. Industry Super Australia Pty Ltd ABN 72 158 563 270, Corporate Authorised Representative No. 426006 of Industry Fund Services Ltd ABN 54 007 016 195 AFSL 232514

The Bentley Effect showing at Yamba Cinema, 6.30pm Saturday 19 November 2016

After drilling fifty wells under the radar, in 2010 the CSG industry arrived unannounced, to drill an exploratory well in the peaceful Keerrong Valley in the Northern Rivers. A group of concerned neighbours investigated and alarm bells rang out across the region as the community’s immune system was triggered- the sleeping dragon was awoken.

A trickle of environmentalists and local farmers soon grew to a torrent of concerned citizens from all walks of life - business people, activists, grandmothers, teachers, musicians, nurses, local indigenous mob – and through this unlikely alliance, a wide-scale social movement was born.

Following a series of increasingly dramatic blockades, Metgasco, an unconventional gas exploration company, threw down the gauntlet. They announced their plans to commence drilling a “conventional gas” well on a farmland property in Bentley, a peaceful stretch of country, just 12 minutes’ drive from the township of Lismore.

The community’s response has now become the stuff of legends. From out of this cow paddock rose a highly organised, self-governing tent city – complete with meeting halls, kitchens, cafes, toilets, nurseries and strict codes of non-violent conduct. But with an undertaking of this scale, and in such an energy-charged environment, conflict and drama was inevitable, and there were many challenges as strong personalities clashed, cultures collided and emotional strains were pulled to breaking point.

Labelled by the government as ‘radical extremists’, these people, however, were not your usual suspects. Here at Bentley stood an army of mainly once conservative, every-day Australians uniting with their entire community to fend off the mining threat and protect their land, air and water. They felt they had no choice.

The bravest locked themselves onto cement fixtures blocking the way into the site. Each morning they gathered before dawn at ‘Gate A’ to rally together, set themselves to the tasks of the day and sing the songs that would become their protest anthems. High-profile musicians gave regular pop-up concerts to the delight of the campers, “Simmos” and day-trippers alike. Metgasco and their political supporters rallied too and a growing police force waited in Lismore for orders to break up the blockade. A daily sms message was sent out with the latest intelligence and the community showed up in droves, time and time again, to face the music. The stage was set and over 850 riot police with horses were on standby in Sydney, with orders to remove the protectors.

Told through the eyes of the protectors over a four-year period and intercut with fresh insight from some of the world’s leading social commentators, this now famous standoff at Bentley forces us to ask the question- what is truly valuable? [https://www.facebook.com/thebentleyeffectmovie]

THE BENTLEY EFFECT - one screening only

Q&A after movie

DATE: Saturday 19 November 2016

TIME: 6.30pm

TICKET COST: $20 & $10 for children under 12 years - on sale now

VENUE: Yamba Cinema

13 Coldstream St,

Yamba NSW 2464

PH: (02) 6646 3430

In U.S. President-Elect Donald J. Trump's own words......

The New York Times, 9 November 2016

On  8 November 2016 Donald J. Trump became president-elect of the United States of America by being first past the post in achieving over the required 270 Electoral College votes – achieving 279 to Clinton’s 228 votes.

In the popular vote by registered American voters Clinton gained 207,039 more votes than Trump.

https://twitter.com/realDonaldTrump/status/266038556504494082

Trump will be sworn in as President of the United States on 20 January 2017, a fixed date required by law.

Was Barack Hussein Obama the last president of the United States of America?

Have the American people swapped a democratically elected president for a democratically elected fascist despot?

I may not be the only person wondering…..

The New Yorker, 9 November 2016:

AN AMERICAN TRAGEDY  
David Remnick, editor of The New Yorker since 1998

The electorate has, in its plurality, decided to live in Trump’s world.

ILLUSTRATION BY OLIVER MUNDAY

The election of Donald Trump to the Presidency is nothing less than a tragedy for the American republic, a tragedy for the Constitution, and a triumph for the forces, at home and abroad, of nativism, authoritarianism, misogyny, and racism. Trump’s shocking victory, his ascension to the Presidency, is a sickening event in the history of the United States and liberal democracy. On January 20, 2017, we will bid farewell to the first African-American President—a man of integrity, dignity, and generous spirit—and witness the inauguration of a con who did little to spurn endorsement by forces of xenophobia and white supremacy. It is impossible to react to this moment with anything less than revulsion and profound anxiety.

There are, inevitably, miseries to come: an increasingly reactionary Supreme Court; an emboldened right-wing Congress; a President whose disdain for women and minorities, civil liberties and scientific fact, to say nothing of simple decency, has been repeatedly demonstrated. Trump is vulgarity unbounded, a knowledge-free national leader who will not only set markets tumbling but will strike fear into the hearts of the vulnerable, the weak, and, above all, the many varieties of Other whom he has so deeply insulted. The African-American Other. The Hispanic Other. The female Other. The Jewish and Muslim Other. The most hopeful way to look at this grievous event—and it’s a stretch—is that this election and the years to follow will be a test of the strength, or the fragility, of American institutions. It will be a test of our seriousness and resolve.

Early on Election Day, the polls held out cause for concern, but they provided sufficiently promising news for Democrats in states like Pennsylvania, Michigan, North Carolina, and even Florida that there was every reason to think about celebrating the fulfillment of Seneca Falls, the election of the first woman to the White House. Potential victories in states like Georgia disappeared, little more than a week ago, with the F.B.I. director’s heedless and damaging letter to Congress about reopening his investigation and the reappearance of damaging buzzwords like “e-mails,” “Anthony Weiner,” and “fifteen-year-old girl.” But the odds were still with Hillary Clinton.

All along, Trump seemed like a twisted caricature of every rotten reflex of the radical right. That he has prevailed, that he has won this election, is a crushing blow to the spirit; it is an event that will likely cast the country into a period of economic, political, and social uncertainty that we cannot yet imagine. That the electorate has, in its plurality, decided to live in Trump’s world of vanity, hate, arrogance, untruth, and recklessness, his disdain for democratic norms, is a fact that will lead, inevitably, to all manner of national decline and suffering.

In the coming days, commentators will attempt to normalize this event. They will try to soothe their readers and viewers with thoughts about the “innate wisdom” and “essential decency” of the American people. They will downplay the virulence of the nationalism displayed, the cruel decision to elevate a man who rides in a gold-plated airliner but who has staked his claim with the populist rhetoric of blood and soil. George Orwell, the most fearless of commentators, was right to point out that public opinion is no more innately wise than humans are innately kind. People can behave foolishly, recklessly, self-destructively in the aggregate just as they can individually. Sometimes all they require is a leader of cunning, a demagogue who reads the waves of resentment and rides them to a popular victory. “The point is that the relative freedom which we enjoy depends of public opinion,” Orwell wrote in his essay “Freedom of the Park.” “The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”

Trump ran his campaign sensing the feeling of dispossession and anxiety among millions of voters—white voters, in the main. And many of those voters—not all, but many—followed Trump because they saw that this slick performer, once a relative cipher when it came to politics, a marginal self-promoting buffoon in the jokescape of eighties and nineties New York, was more than willing to assume their resentments, their fury, their sense of a new world that conspired against their interests. That he was a billionaire of low repute did not dissuade them any more than pro-Brexit voters in Britain were dissuaded by the cynicism of Boris Johnson and so many others. The Democratic electorate might have taken comfort in the fact that the nation had recovered substantially, if unevenly, from the Great Recession in many ways—unemployment is down to 4.9 per cent—but it led them, it led us, to grossly underestimate reality. The Democratic electorate also believed that, with the election of an African-American President and the rise of marriage equality and other such markers, the culture wars were coming to a close. Trump began his campaign declaring Mexican immigrants to be “rapists”; he closed it with an anti-Semitic ad evoking “The Protocols of the Elders of Zion”; his own behavior made a mockery of the dignity of women and women’s bodies. And, when criticized for any of it, he batted it all away as “political correctness.” Surely such a cruel and retrograde figure could succeed among some voters, but how could he win? Surely, Breitbart News, a site of vile conspiracies, could not become for millions a source of news and mainstream opinion. And yet Trump, who may have set out on his campaign merely as a branding exercise, sooner or later recognized that he could embody and manipulate these dark forces. The fact that “traditional” Republicans, from George H. W. Bush to Mitt Romney, announced their distaste for Trump only seemed to deepen his emotional support.

The commentators, in their attempt to normalize this tragedy, will also find ways to discount the bumbling and destructive behavior of the F.B.I., the malign interference of Russian intelligence, the free pass—the hours of uninterrupted, unmediated coverage of his rallies—provided to Trump by cable television, particularly in the early months of his campaign. We will be asked to count on the stability of American institutions, the tendency of even the most radical politicians to rein themselves in when admitted to office. Liberals will be admonished as smug, disconnected from suffering, as if so many Democratic voters were unacquainted with poverty, struggle, and misfortune. There is no reason to believe this palaver. There is no reason to believe that Trump and his band of associates—Chris Christie, Rudolph Giuliani, Mike Pence, and, yes, Paul Ryan—are in any mood to govern as Republicans within the traditional boundaries of decency. Trump was not elected on a platform of decency, fairness, moderation, compromise, and the rule of law; he was elected, in the main, on a platform of resentment. Fascism is not our future—it cannot be; we cannot allow it to be so—but this is surely the way fascism can begin.

Read the rest of the article here.

The government's attack on Australian Human Rights Commission president continues unabated

On 28 May 2013 a small group of students sought to use facilities at the dedicated Oodgeroo Unit within the Queensland University of Technology (QUT) and were asked to leave.   

The subsequent comments of one or more QUT students on Facebook resulted in a complaint to the Australian Human Rights Commission by a university administrative employee under the Racial Discrimination Act 1975.

Conciliation between the parties under the auspices of the Commission failed by August 2015 and, the employee then made application to the Federal Circuit Court Of Australia in Prior V Queensland University Of Technology & Ors to seek what she obviously thought was justifiable legal remedy.

The judgment dismissed that part of the application brought against three students under s18C of the Racial Discrimination Act. However the remainder of the matter involving a fourth student and the university and its named employees is next before the court on 21 November 2016 in what appears to be a directions hearing.

The Turnbull Government leaped on this summary judgment to continue its public attack on Human Rights Commission President Gillian Triggs – which had commenced in earnest in February last year - culminating this month in Malcolm Bligh Turnbull raising the possibility of sections of the Racial Discrimination Act 1975  being reviewed and possibly amended and suggesting that the Commission had damaged its credibility.

A swift response came from the Australian Human Rights Commission in the form of a media release on Monday 7 November 2016:

There has been considerable public interest in the Commission’s complaint handling processes under the Australian Human Rights Commission Act 1986.  There has been particular interest In the Commission’s handling of complaints under the Racial Discrimination Act 1975. 

In relation to the recent QUT case, it is a matter of public record that the Commission terminated this matter in August 2015. The Commission has had no role in the subsequent law suit in the Federal Circuit Court.

At no stage does the Commission initiate or prosecute a complaint. If the Commission receives a complaint in writing alleging a discriminatory act, the Act provides that the Commission must investigate the facts and attempt to conciliate the matter.

The Commission’s focus is on resolving disputes so parties can avoid court proceedings. Of complaints where conciliation was attempted, 76% were successfully resolved in 2015-16.

Only 3% of complaints finalised by the Commission were lodged in court. For example, of the over 80 complaints finalised under the racial hatred provisions of the Racial Discrimination Act last year, only one proceeded to court at the initiation of the complainant.

In the 2015-16 reporting year the average time it took the Commission to finalise a complaint was 3.8 months. In that same reporting year, 94% of surveyed parties were satisfied with the Commission’s service.

The Commission has no judicial powers, and it makes no legally binding determinations as to whether unlawful acts have occurred. The Commission has no statutory power to prevent a complainant proceeding to court once the Commission terminates the complaint. 

The Commission has provided advice to successive governments and Attorneys-General on amendments to the Australian Human Rights Commission Act.  In particular, the Commission has asked for amendments to streamline the process by raising the threshold for accepting complaints.

Refutation of the Turnbull Government's position is also found elsewhere.

Excerpts from Castan Centre for Human Rights Law, Official Blog, 7 November 2016:

This is all the Australian Human Rights Commission and/or Professor Gillian Triggs’ fault

No it isn’t. The AHRC is not a party in the Prior litigation. Professor Triggs is not acting for Ms Prior (Ms Prior has engaged her own solicitors and counsel). And the student respondents were not in the case because the AHRC put them in there; they were in there because the applicant, Ms Prior, sued them when proceedings were commenced in the Federal Circuit Court in October 2015.

Applicants bring proceedings for discrimination (including under section 18C), not the AHRC. There is one applicant in the proceedings and it is Ms Prior.

If the claims were lacking in substance, the AHRC should have thrown them out – they should never have got to the Court

In order to bring a claim for unlawful discrimination under Federal legislation, the AHRC is the first step in the process. A complaint is made to the AHRC, and the AHRC will then try to resolve the complaint by assisting the parties to reach an agreement for resolution. If the complaint can’t be resolved, the AHRC “terminates” the complaint, and the complainant can then take the terminated complaint off to the Federal Court or the Federal Circuit Court to start a court case.

The AHRC cannot decide discrimination claims, because the AHRC is not a court – it doesn’t have any judges and it doesn’t have the power to impose a resolution on the parties to the complaint. The AHRC cannot decide that a complaint is hopeless and should go no further. The AHRC cannot decide that a complaint will invariably succeed and award damages to the complainant. The function of the AHRC is to investigate (and, if possible, to conciliate), not to decide. The deciding needs to happen in a place where Federal judicial power can be exercised, namely, in the Federal Court or the Federal Circuit Court.

It is true that there are many different grounds on which the AHRC (acting through a delegate of the President of the AHRC) can “terminate” a complaint (which is the necessary precondition for the matter to go to a Federal court). Those grounds include that the delegate “is satisfied that the alleged unlawful discrimination is not unlawful discrimination” or “is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance”.

According to press reports, Ms Prior’s complaint was terminated on the more commonly used ground that the delegate was “satisfied that there is no reasonable prospect of the matter being settled by conciliation”.

Shouldn’t the AHRC should have taken the harder line? For two reasons, no.

The first is that it wouldn’t have made a blind bit of difference. Ms Prior’s right to commence court proceedings would have been exactly the same regardless of the ground on which the complaint was terminated by the delegate. Ms Prior decided, presumably with the benefit of legal advice from the experienced firm of employment lawyers who are acting for her, to commence proceedings against all of the respondents. That was a choice which the AHRC could not have denied her, regardless of what view was expressed by the President or her delegate as to the merits of the claim at the time the complaint was terminated.

The second is that Ms Prior’s complaint is still continuing against four of the respondents (including QUT, who are also represented by highly experienced employment lawyers). Those respondents did not seek to have the claims against them struck out summarily, which suggests that Ms Prior’s claim as a whole could not be properly have been described, at the time the complaint was terminated, as hopeless.

The case proves that section 18C is terrible and must be abolished

Good luck trying to make that one work, given the basis on which the respondents succeeded in convincing the court to dismiss the claims against them. The two respondents who succeeded on the basis of the Court’s analysis of section 18C succeeded on the basis that (a) their Facebook posts were not made “because of” Ms Prior’s (or anyone else’s) race and (b) the posts were not reasonably likely to give rise to offence, insult, humiliation or intimidation.

In making those findings, the Federal Circuit Court expressly referred to the jurisprudence of section 18C to the effect that the section does not extend to “mere slights” but requires “profound and serious effects”. (This is jurisprudence which needs to be mostly ignored in order to advance the case that the words “offend” and “insult” somehow create an overly broad restriction on free speech).

The final respondent succeeded on the basis that there was no evidence that he had made the Facebook post alleged to constitute the breach of section 18C, which has nothing to do with the section, and everything to do with orthodox principles of establishing a “no case to answer submission”. In any litigation, successful defendants will feel aggrieved at having been put to the time and expense of defending claims which failed. However, the fact that a claim fails does not mean that the law used to bring the claim should be demolished.

No-one sensibly suggests dismantling the law of defamation every time a defamation plaintiff loses, or suggests tearing up the law of torts every time a personal injury plaintiff is unsuccessful. For the same reason, it is hard to see any sensible legal basis to suggest that the decision of the Federal Circuit Court last Friday should affect anyone other than the parties to the claim. If only the ability to distinguish “sensible legal basis” from “nonsense” was a precondition to publishing on the topic of section 18C . . .