Wednesday, September 21, 2005

David Hicks - Defending the Indefensible

Poor Philip Ruddock has an unenviable job. This small “l” liberal lawyer is being forced to defend what has to be one of the most outrageous show-trials in modern legal history. And what makes things worse is that the accused is an Australian citizen.

The Howard Government cannot claim the most spotless record when it comes to protecting the interests of Australian citizens caught in a spot of legal bother overseas. There are numerous scandals involving Australians wrongfully detained and/or deported.

But the Hicks trial is particularly significant for a number of reasons. We have some details of the conditions at the Guantanamo Bay facility from former detainee Mamdouh Habib. Through his then lawyer, Stephen Hopper, Mr Habib was able to paint a coherent picture of conditions at the facility.

Those conditions included the regular and systematic use of torture, beatings other forms of physical and mental deprivation. The United States Military denies the allegations, as does the Australian government.

Yet both countries implicitly admit the charges by strenuously insisting that the Geneva Conventions against the torture of prisoners of war do not apply to Guantanamo detainees. Such insistence should be unnecessary if in fact no torture or mistreatment was taking place.

And it seems that a US military officer appointed to represent David Hicks is more concerned about the welfare of this Australian citizen than our Attorney General.

Major Michael Mori believes that the Hicks trial should be adjourned to allow the defence more time to prepare. Further, the entire process of military commissions is again the subject of appeal in the US Supreme Court.

But Mr Ruddock is insisting that the trial proceed and supports the lifting of the stay. Despite his legal background and training, Mr Ruddock sees no injustice in the process continuing.

Mr Ruddock is a former President of the NSW Young Liberal Movement, an organisation which until recently known for its small “l” liberal credentials. He also proudly wears an Amnesty International badge on his lapel when appearing in public functions.

How a lawyer and member of a respectable mainstream human rights organisation could support such show trials being used to try (and most likely convict) an Australian citizen is certainly beyond my understanding.

But Mr Ruddock is not the only Member of the Commonwealth Parliament to support the trials. Former lawyers John Howard and Peter Costello are also known to support the position of the United States Government.

The Federal Opposition has also been somewhat reluctant to be seen to be too supportive of the Hicks family. It seems that, at least in Labor and Liberal circles, Mr Hicks has already been pronounced guilty.

How a Parliament full of lawyers and law graduates cannot come together to defend an Australian citizen against being tried in such circumstances says a lot for the quality of lawyers that sit in our Parliaments. Perhaps there is some truth to the common joke amongst practitioners that all the failed lawyers seem to end up either in gaol or in Parliament.

Australian citizens and their families deserve better than to be treated like political guinea pigs. But in the current environment of near-hysteria, it seems all you have to do to deprive someone of rights is to label them a terror suspect.

The author is a Sydney lawyer who is completing his Masters in International Law at the Australian National University.

© Irfan Yusuf 2005

Saturday, September 17, 2005

804 Words of Wisdom

The War Report – Part 2

The federal government told lies to justify its war in Iraq. Is the government telling porky pies to push through its industrial agenda?

According to the Vice-President of the NSW Industrial Relations Commission, yes. In a speech to an IR conference at Sydney University, Justice Michael Walton said that the federal government’s IR plans were unfounded.

The comments were made around 3 weeks ago, and were reported in the Weekend Financial Review on 27-28 August 2005. They might seem like old news, but the message springs eternal.

The problem we have with the entire IR debate is that it has been hijacked by extremes. On the one hand, you have the unions trying to maintain every bit of the status quo. On the side, the only voices we ever hear are from the government and from employer unions.

Apart from a few squeaks from farmers against incorporation, we never seem to hear from employers who really count. The majority of employers do not belong to an employer union. And it is these employers who will be most affected by the changes.

Choice for workers is fantastic. But as the fiasco with superannuation choice is proving, it often comes at a high price. And usually it is smaller employers who pay the price.

There is absolutely no shred of evidence to show that smaller employers will fail to put on workers just because of unfair dismissal laws. Those in the big employer unions making this claim have obviously never bothered to consult with smaller employers on this matter.

But then again, members of big employer unions are too busy driving their competitors out of the markets. They are too busy testing the boundaries of Parts IV, IVA and V of the Trade Practices Act and driving our smaller competitors.

When owners of large shopping centres or massive retailers start pontificating for smaller business, it all sounds like a joke. Smaller shop-owners who are forced to sign leases making them account for profits to their landlords are hardly going to regard these same people as speaking with any integrity on such issues.

So what are the smaller businesses saying? And who is listening to them? What would they think if the existing state jurisdictions were replaced with one federal system? Would they agree to take on the added paperwork and red tape of incorporation just to be part of simplified industrial relations?

Anyone who thinks the battlelines of IR are clearly drawn must be kidding themselves. Business is not just worried about unfair dismissal. There is more to the business expansion equation than just the ability to sack people more easily.

In fact, most employers don’t hire people so that they can sack them. Arguing in this vein is like arguing that you get married to just get divorced more easily. It is a fallacious argument, and makes about as much economic sense as Das Kapital.

Moreover, the government has not thought through the legal difficulties of the whole arrangement. Personally, it is this aspect of IR reform that makes me very excited. I will have enormous amounts of work arising from small business people wishing to understand and comply with the new laws. I can quite legitimately tout for work from now.

“Are you ready for the new industrial laws? Do you understand your rights and responsibilities? For the cost of an arm and a leg, you can consult us about how the laws affect you. Give us a call today.”

Industrial lawyers will have plenty of work from the new changes. But their smaller clients will probably miss out on the expertise.

The government will probably respond with plenty of plain English guides to educate small business. But how small and concise can such booklets be when the new system will have to address a variety of matters as:

1. workers compensation?
2. occupational health & safety?
3. procedures for new workplace agreements?
4. which leave provisions go and which stay?
5. discrimination law changes?
6. changes in Commission procedures and roles?
7. unfair contract?
8. unfair dismissal and its exceptions?
9. the role of independent contractors?
10. exceptions and interpretation of the 100 employee cap for unfair dismissal exemptions?

Yep, sounds as simple as unreal numbers.

Industrial relations law as it stands is very complex. But unless the federal government is prepared to come clean with its detail on the new laws, business has every right to presume that the IR reform proposals will add even more complexity, red tape and a bigger compliance and legal bill.

On behalf of my colleagues, I wish to thank Mr Howard for his new system. On behalf of my small business clients, I would like to potentially welcome Mr Beazley to the Lodge at the next election.

© Irfan Yusuf 2005