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ASHBY v SLIPPER the appeal; OPEN JUSTICE and the MEDIA

The last time I walked into a courtroom I was so heavily pregnant I waddled in rather than walked, and that was nearly twenty-eight years ago. I was there as a character witness for an occasional work colleague who was discovered driving without a licence. On that occasion the Prosecutor, a pompous prat with a Jimmy Edwards handlebar moustache and I exchanged heated words much to the amusement of the judge and a bunch of law undergraduates all who sat back and enjoyed the repartee. With my last name it is always difficult to have anything to do with the law as assumptions are going to be made. So it was with a certain concern mixed with caution when I decided to follow the Ashby v Slipper appeal.

I have long been frustrated by the quality of the dailies’ coverage of legal matters. My frustration was underscored by the media’s serious misunderstanding of issues and decisions at the directions hearing before Emmett J. I decided to do that ‘mother’ thing. You know. ‘If you can’t get somebody to do it right, go do it yourself and stop complaining.’

Throughout the recent hearing dates in the Ashby v Slipper appeal there have been certain key matters that have been constantly gnawing at my gizzards. I wanted to vent because I believe them to be of critical importance.

One of them was the mainstream media’s coverage of this case, which, if it is indicative of how they cover most cases, means we’re in trouble.

The media’s incompetence raised two critical issues, which are fundamental to law and the practice of law in this country, and more importantly, the effectiveness of the administration of justice.

Unbeknown to me I wasn’t the only one doing handstands on Wednesday trying to get my hands on the written submissions of the three parties, Harmer, Ashby and Slipper. The written submissions outline the key areas that each of the three lawyers would talk to during the two days of hearing. To not be able to read written submission at the very least means you are walking cold into a case and will find it impossibly difficult to follow.

On Thursday, day one of the hearing, I discovered David Marr who was without written submissions as well. He toddled downstairs to the Registry while I went to work on the legal representatives to see if I could acquire the submissions for perusal. To give all parties their due they had no problem with sending and giving us their submissions. For that I’m very grateful to Michael Lee SC Ashby’s barrister, Anthony McClellan, from AMC MEDIA the well known Public Relations firm working for both Mr Ashby and Mr Harmer, and to Peter Slipper’s barrister, Mr Ian Neil SC who gave us the submissions immediately. It wasn’t until the next day that their Honours let it be known that written submission would be placed on-line for our access.

The judiciary and the legal fraternity cannot have it both ways when it comes to being critical of the quality of mainstream media coverage of the courts. Just as judges and lawyers have to do their homework before going into court to either hear or present a case, so does the media. For journalists to cover a case cold does the parties and the system a disservice. Is it any wonder then that the reports written by journalists with difficult deadlines become more error-prone. A journalist’s role is a critical one to a justice system where open justice prevails.

There are three principles that form part of the justice foundation stone that underpins any functioning democratic society. The first is the independence of the judiciary from interference especially political interference known under the banner headline as the separation of powers; a principle enshrined in our constitution.

The other two are conjoined at the hip but always remain in permanent conflict. Each one is critically important in itself, but both are engaged in a never-ending war with each other in an attempt to gain dominance.

The first is the administration of justice, which is a concept that is about a community having a structure and a process in place for dispute resolution and dispensing justice that is fair and untainted by either corruption or other external influences such as trial by media.

The administration of justice has to be fair, just and impartial which assumes a level playing field between the parties when in the courtroom. Of course, those with bottomless pockets will always have the advantage. They can hire the stronger team. It now appears you also need to hire a Public Relations firm.

Anthony McClellan is a former journalist who runs a prestigious PR firm and golly he’s good. He’s short, engaging and he twinkles. If he says he’ll do something; he does it. It is a joy to see him work a room. He whispers in the appropriate ear when he feels the need, and spends the day massaging the message and the media.

The Ashby prepared statement before the commencement of the first day’s hearing was inspired. That was pretty much all that those of the mainstream media who were present, carried that night on television and radio. London to a brick on this was McClellan’s strategy and execution. If I were ever to be in trouble, I would want his firm. He’s one very clever bugger.

However the question remains; does the active role of a PR firm during the process of a court case taint the process in any way through spinning their message to a media anxious for additional tidbits that help their plight?

I’ll leave this to the legal eagles to argue, but it worries me and I think is a question worthy of careful consideration by those involved in the administration of justice and those who are concerned that it remains untainted.

Of course, the tainting of the process of the administration of justice is at the core of the Rares decision in Ashby v Slipper. I’m not sure the media coverage indicates an understanding of just what that is and what its implications are. I’m pretty sure the media would never question whether their being fed, and their acceptance of, spin from a PR firm is possibly tainting the process. So why would I expect them to be concerned about the core of Rares decision, which finds political operatives tainted the process of the administration of justice to achieve a political outcome favourable to their cause. The Rares decision is important as no act of terrorism could do as much damage as any domestic action that effectively undermines any of the institutions that bear the burden of our democracy.

The other issue is the principle of open justice. As they say in the classics; “…justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Well in this instance it was said by Lord Hewitt in Rex v Sussex Justices; Ex parte McCarthy which all lawyers seem to regard as a classic because His Lordship’s words are so often quoted.

Courts are public domains. With the exception of the Family and the Juvenile Courts, all courts are open to the public. This allows ordinary citizens like you and me being able to toddle into a courtroom to ensure that the court is not behaving like a ‘kangaroo’ court. It doesn’t matter if you’re the Queen of England. If you are in a case either as a party or a witness you have to appear in an open court before the public.

When the entire population of Sydney can’t get into a courtroom to see Gina Rinehart ‘s family stoush we then rely on the media to do the public oversight job for us. They become our eyes and ears in the courtroom. This is their role during a court proceeding. What you see when the media is doing their job properly, and in accordance with the law, is the open justice principle at work.

There were so few members of the mainstream media present during Ashby v Slipper appeal hearings. Given the media had pages covering the details of the case when Ashby first sued Slipper and when the case first started being heard, it’s a matter of real concern to me that there wasn’t a word in the printed version of the SMH Sat edition the day after the hearing finished. Not one word.

If the media starts to cover a case there is an obligation on the media’s part to finish covering it, and that means both sides. Otherwise the media is both abdicating their responsibilities as our eyes and ears, and tainting the process of the administration of justice by not being balanced in their coverage. If the media reports on one side of a legal matter, they are legally obliged to also report the other side’s case. By failing to fulfill this obligation they have under the principle of open justice, the public’s knowledge of a court case becomes distorted and the process of the administration of justice is made more vulnerable to being tainted.

Again I leave these issues to the legal powers that be but it’s worrying the hell out of me.

There is some interesting reading for those of you like-minded possums patient enough to get beyond the legal eagle jargon and distill the guts of what lawyers are trying to say.

I’ve included a link to the wonderful speech by Jim Spigelman when he was Chief Justice of the NSW Supreme Court entitled ‘SEEN TO BE DONE’ a look at the principle of open justice.

http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_091099

There’s an article by Garth Nertheim on the issue of ‘Open Justice versus Justice’ that appeared in the Adelaide Law Review. It outlines the dilemma when the two legal principles are discussed and how difficult it will always be to find the balance between the two.

Click to access alr_V9n4_1985_NetOpe.pdf

It was Peter Slipper’s turn today. ASHBY v SLIPPER. Day 2.

It was Peter Slipper’s turn today in Day 2 of the Ashby v Slipper Appeal. Slipper was represented by well-known Sydney silk, Ian Neil SC. He had to wait for twenty minutes or so while Michael Lee SC endeavoured to add further to his submissions from yesterday.

The issues Lee wanted to expand on were questions about the urgency of Ashby’s application preventing Ashby and his representatives from pursuing all alternative remedies available to him on the sexual harassment issue.

Lee also raised the question of whether there was evidence given on what was in the mind of Michael Harmer on the question of ‘genuine steps.’

He got short shrift from Justice Siopis. As Mr Lee had a right of reply following Ian Neil’s submissions it may have been more circumspect to wait until then to raise these issues.

It is the role of Mr Neil SC to argue that the decision of Justice Rares is correct and should stand. He outlined in order nine subject headings raised in the written submissions of Ashby and Harmer he wanted to address.

“The best laid plans of mice and men …” on paper this would have looked neat and logical. In reality their Honours were feisty and challenging. For most of the remainder of the morning Neil’s oral submissions were punctuated with rugged questioning as we bounced from issue to issue making it increasingly difficult for those few from the media and the general public present to follow with any confidence.

At no stage did Mr Neil show any impatience with or discomfiture by this morning’s proceedings. It is worth noting that he didn’t wilt under the pressure either, but continued to argue the merits of his case.

Neil started his oral submission considering the questions of procedural fairness as raised in the Ashby submission. In his decision Rares J is satisfied Slipper established that Mr Ashby had combined with one or more of the persons named as part of the conspiracy that would result in his finding ‘an abuse of the process’.

Justice Gilmour asked whether it only related to Mr Harmer. Mr Neil’s answer took the court down a grammatical path. A definitive “No Your Honour” was his response. The relevant paragraph in Rares’s decision ‘has to relate conjunctively/disjunctively with each, some or all of the persons named… It’s inelegant English but it’s not bad syntax and its meaning is clear.’ His Honour didn’t continue asking questions about sentence structure.

The grammar lesson set the tone of the rest of the morning’s hearings.

Rares J found in his decision that Mr Harmer wasn’t part of the conspiracy to abuse the process of justice that he was then an innocent party in bringing the court into disrepute. However, Rares was very critical of the ‘professional conduct’ of Mr Harmer commencing with his drafting of the originating application.

Justice Siopis asked whether it was legitimate to question the decision’s criticisms and their severity of Mr Harmer on professional grounds. Mr Neil replied that Mr Harmer was ultimately responsible for both the 2003 allegations and the Cabcharge allegations being included in Mr Ashby’s originating application. Both of these allegations were abandoned in Mr Ashby’s 15th May 2012 statement of claim.

Of course by then these allegations had become font page news as they formed part of the originating application.

Suddenly we were off track again and trying to ascertain Mr Harmer’s purpose in the inclusion of both the 2003 allegations and the Cabcharge allegations in the originating application.

Neil was steely in arguing that there was just no legitimate forensic purpose to the inclusion of 2003 allegations. It is just ‘salacious detail’ with no illegality or wrongdoing on Mr Slipper’s part, and ‘which can’t give rise to any legal consequences or any cause of action.’

Bounce. Bounce. Suddenly the court’s in the middle of discussing Mr Ashby’s predominant purpose which Rares found, after looking through a truckload of text messages and emails, to be the intention of bringing Mr Slipper into disrepute.

Mr Slipper was representing himself when these issues were raised before Justice Rares. Mr Harmer went into the witness box, and Mr Ashby could have been called by Mr Slipper, but wasn’t. Both men were not cross-examined by Slipper as to their intent. All their Honours have raised, through thorough questioning, the lack of cross-examination by Slipper of both Ashby and Harmer, which would indicate it could be a problem.

The difficulty of hearing concurrently both an application for leave to appeal and the substantive appeal itself, was made abundantly clear when Mr Neil suddenly raised arguments against Mr Harmer being given leave to appeal the Rares decision.

The morning came alive, and stayed on topic when Mr Neil raised the question of Mr Harmer’s ability to appeal as a non-party. He argued that Mr Harmer didn’t have a ‘sufficient interest’ in the matter to appeal.

Neil argued that despite the fact the Rares J raises questions with regard to the professional conduct of Mr Harmer, such findings in themselves have no legal effect. The right to appeal can only happen if and when orders were made against Mr Harmer. They haven’t.

Neil went on to state ‘there is no authority anywhere’ that supports a non-party being given leave to appeal if he doesn’t have ‘sufficient interest’ nor does Mr Harmer meet any of the tests outlined in the Federal Court Rules, 2011.

The implication of Mr Neil’s point was clear. If their Honours grant Mr Harmer leave to appeal they will be creating a precedent that could well open the flood gates to aggrieved third parties who may be mentioned adversely in findings.

Justice Mansfield went from saying ‘that doesn’t sound right’ and for the first time in the morning’s session their Honours became very quiet as the implication of Neil’s point sank in.

The remainder of Mr Neil’s arguments in support of the Rares decision seemed almost inconsequential by comparison. It dealt with the General Steps Statement and the matter of Ashby’s perceived urgency.

The right of reply by both Mr Lee and Mr Pritchard were thankfully brief. Mr Pritchard endeavoured to counter Neil’s arguments against granting Mr Harmer leave to appeal. He raised the issue of natural justice, which had already been dealt with by Neil in his original written submissions.

Mr Neil earned his money today.

The matter is now for the consideration of the Full Court. These are the options they have before them.

1. Neither leave to appeal is successful and the Rares decision stands;
2. Harmer’s leave to appeal is unsuccessful but Ashby ‘s leave to appeal is successful but Ashby loses the appeal and the Rares decision stands;
3. Harmer’s leave to appeal is unsuccessful but Ashby wins both his leave to appeal and the appeal itself. The result is that the trial of Ashby v Slipper is then heard in full;
4. Harmer and Ashby win their leave to appeal, but lose the appeal proper and the Rares decision stands;
5. Harmer and Ashby win both their leave to appeal and the appeal proper. The result is that the trial of Ashby v Slipper is then heard in full. Slipper will be open of to pay legal costs for Harmer as well as Ashby.

Your guess is as good as mine as to how their Honours will find in this case. Options 2 and 3 provide easier alternatives without creating a precedent for which the rest of the legal fraternity won’t thank them.

ASHBY v SLIPPER APPEAL HEARING. Full Court of the Federal Court.

With the exception of Michael Harmer all the key players were there for the media to take quick photos and 15-second video grabs. Peter Slipper and James Ashby are starting to look a little frayed around the edges as they prepare to endure yet another round in this legal saga.

Today was the first day of a two-day hearing by the Full Court of the Federal Court. Justices Mansfield, Siopis and Gilmour are concurrently hearing both the application for leave to appeal along with the more substantive issues of the appeal itself.

Justice Mansfield tipped the wink to the parties’ representatives as to how much time the court thought should be allocated to each of the lawyers. For Michael Lee SC, Mr Ashby’s counsel and the first legal cab off the rank, this was always going to be difficult. His job is to plough the field for the first time with no real indication of the legal hoops he may have to jump through when they are presented to him by any one of the justices presiding.

Lee’s argument is that Rares J. made three fundamental errors resulting in Ashby not being able to present his case in full and therefore ‘be determined on its merits.’ He put forward the view that Ashby had not received procedural fairness.

Lee argued that the finding of an abuse of process by Rares J was
flawed as the seriousness of that finding required an onus that was a ‘heavy one’. Rares J needed to be ‘cautious’ in his consideration of this issue and, according to Mr Lee, Justice Rares wasn’t.

Mr Lee further argued that Justice Rares adopted an ‘impressionistic view’ about Mr Ashby’s involvement in a conspiracy to harm Mr Slipper with inferences being drawn that compromised the fact finding process.

The third error in the Rares decision, according to Mr Lee, involved the conduct of Mr Ashby’s solicitor, Mr Harmer. This was dealt with comparatively briefly as Mr Harmer, now a party to the appeal, is being separately represented by counsel, David Pritchard SC.

Lee SC also raised concerns about Justice Rares’s rejection of unchallenged evidence. Mr Slipper was representing himself at the time Michael Harmer gave evidence and didn’t subject Harmer’s evidence to any cross-examination.

Lawyers will tell you it is not necessarily the law where parties representing themselves can come unstuck but rather the lack of knowledge of, or practice in, the procedures required and their importance.

The rest of the day’s proceedings were occupied by submissions from David Pritchard SC appearing on behalf of Michael Harmer, Mr Ashby’s solicitor.

The decision of Rares J was especially critical of Mr Harmer, calling into question his professional conduct.

Questions were asked by their Honours over the level of detail in the originating application drafted by Mr Harmer. This application found its way into the press before Mr Slipper had seen it, as he was overseas at the time.

The application included details of the ‘2003 allegations’ of a seemingly consensual sexual relationship between Mr Slipper and a member of staff. An allegation of Cabcharge fraud was also included as was the indication of Mr Ashby’s intention to report the matter to the AFP. Of course, the prime allegation was that Mr Slipper had sexually harassed Mr Ashby ‘in the course of his employment.’

The game of second guessing what judges are thinking during the progress of a hearing is a long and well-established one. More often than not even the most skilled in this game fail dismally.

Questions asked of lawyers during the progress of a case can be deceptive if relied upon. Nevertheless all judges asked plenty of questions during both counsels’ oral submissions. Of seeming significance to their Honours were two issues to which they kept returning.

The first is the primary or subjective intention of Mr Ashby in bringing this matter to court. Was his original intention to pursue an issue of sexual harassment or was it to use the judicial process to harm Mr Slipper for the benefit of others, namely Mr Mal Brough and the Federal LNP? This is at the core of the ‘abuse of process’ finding by Rares J.

The second issue, which resulted in a large number of question and answer sessions throughout the day, was the matter of the ‘Genuine Steps’ obligation.

The ‘Genuine Steps Rule’ is a relatively new set of procedures introduced in the Commonwealth’s ‘Civil Dispute Resolution Act (2011)’ requiring parties to take necessary alternative measures in an endeavour to resolve their dispute before heading off to court. Both parties in a legal stoush have to file ‘genuine steps statements’ outlining what they’ve done in trying to settle the dispute.

The argument put by both Ashby’s and Harmer’s legal representatives for the seemingly inadequate Genuine Steps process, was the one of urgency. All three judges questioned the reasoning behind bringing the matter to court without going through all the alternative remedies available to Mr Ashby.

At one stage Mr Pritchard was asked the $64,000 question: the matter of payment to Mr Harmer. It was the question by Justice Siopis that caused head-turning consternation at the bar table and was never really answered. Siopis J wanted to know if there would be an apparent difference if Mr Harmer was ‘an investor in the proceedings?’ The spluttering silence of both legal counsel was his reply, and the question wasn’t pursued.

Tomorrow morning is the turn of Peter Slipper’s legal representative, Ian Neil SC.

STC’s ‘DANCE BETTER AT PARTIES’: A Must See

Steve Rodgers (Dave) and Elizabeth Nabben (Rachel) in the STC's production of DANCE BETTER AT PARTIES.

Steve Rodgers (Dave) and Elizabeth Nabben (Rachel) in the STC’s production of DANCE BETTER AT PARTIES.

The Sydney Theatre Company has a little gem in DANCE BETTER AT PARTIES now playing at the Wharf 2 theatre.

This play is for every bloke who tells his wife he can’t dance because of two left feet, and every wife who’s heard the excuse a thousand times. Do yourselves a favour and get your collective arses off to see DANCE BETTER AT PARTIES. It is a play where you laugh frequently, go ‘awhhh’ a lot, and are even moved to near-tears in a few scenes.

The play is a two-hander. Dave is a widow who’s a little gormless and most certainly a klutz. His body seems to move one or two beats behind the normal rhythm of life. All Dave wants to do is dance better at parties. He’d like to be able to steer a woman around the dance floor without being embarrassed. Dave wants to get a little bit of a life. The play is the journey he takes to get that and more along the way.

Steve Rodgers is Dave. His performance is subtle, breathtakingly honest and delightful. His comedic timing is perfection-on-a-stick as is his one-beat-behind dancing. This woman wanted to pop Dave into my handbag and take him home. Rodger’s Dave is very endearing.

Elizabeth Nabben plays the Latin ballroom dance teacher with such skill you’d swear she’s been doing this all her life. All the exaggerated movements of those professional ballroom dancers are on display. She too goes through an emotional journey, which is bittersweet and a joy to watch unfold.

The story line for DANCE BETTER AT PARTIES comes from director Gideon Obarzanek’s interviews with middle-aged men who were attending a dance studio.

The play’s duration is less than 90 minutes long so it doesn’t have to be a late night. The play ends 11th May.

http://www.sydneytheatre.com.au/what’s-on/productions/2013/dance-better-at-parties.aspx

Episode 2. THE ASHBY APPEAL: The saga cont…

Just when you think it is safe to re-enter still waters, the waves start to churn again. It’s a cause to pause. The matter of an application before the Court of Appeal to grant leave, and to consider reasons why Justice Rare’s decision in Ashby v Slipper should be overturned, will be heard this week.

The next saga resulting from Justice Rares’s decision in Ashby v Slipper was always going to be of interest. Public scrutiny of the appeal is further heightened because of one unusual aspect of the appeal. One of the appellants is Mr Ashby’s high-profile solicitor, Michael Harmer, of Harmer’s Workplace Lawyers.

For Mr Slipper, although the appeal is a continuing financial and emotional burden, this time should prove a slightly more refreshing exercise. Slipper is no longer on the back foot. Rather it is Mr Ashby and Mr Harmer who are both now fighting for their future professional careers and public standing.

Both applications contain identical grounds founded in Mr Ashby’s and Mr Harmer’s belief that Rares J erred in finding that the “predominant purpose” of Mr Ashby

“ … for bringing the proceedings was to pursue a political attack against the Respondent (Mr Slipper) and not to vindicate any legal claim he (that is Mr Ashby) may have… and accordingly that the proceedings were an abuse of process.”

Ashby and Harmer also believe the Judge erred “… in finding that Mr Harmer intended to cause harm to Mr Slipper by including scandalous and irrelevant allegations in the originating application…

Justice Rares also found this to be an “abuse of process”; and consequently dismissed the proceedings under regulation 26.01 of the Federal Court Rules 2011.

Rule 26.01 of the Federal Court Rules 2011 sets out the reasons why, and how, a party in a case can apply to the Court for an order that judgment be given against the other party. The reasons are limited and appear simple. A common one used is that the case is “frivolous and vexatious”. Others include that one of the parties can’t successfully either prosecute or defend the matter, and of course, the one at the heart of Ashby v Slipper: the proceeding is “…an abuse of the process of the Court…”

Both applications also argue that the judgment is substantially unjust as Mr Ashby was denied a hearing on the merits of his case.

Ashby and Harmer raise specific questions they want the Court of Appeal to consider although there is precedent in all these matters.

They are, however, interesting and include:

a.) how evidence on an application for the summary dismissal of proceedings for abuse of process is to be evaluated and assessed;
b.) the role of pleadings in such an application;
c.) the provision of procedural fairness in such an application;
d.) how evidence of a legal practitioner called to give evidence in the interests of his client and instructed to claim client legal privilege is to be evaluated and assessed;

and

e.) the professional obligations of solicitors when filing originating
applications or pleadings in the Court.

The sole area of difference between the applications for leave to appeal appears in Mr Harmer’s application, as you would expect. Harmer is no longer a voice for his client, but is now a participant in the process.

Harmer’s application argues that substantial injustice would be caused if the judgment is allowed to stand as it “… contains serious adverse findings impacting upon the professional reputation and standing of Mr Harmer…” consequently exposing Mr Harmer to the “potential of professional disciplinary action”.

The technical minutiae on issues of unchallenged evidence, evidence limited by professional and legal obligations to a client, and whether there’s an obligation of a judge to give adequate prior notice of his intentions regarding his findings, will no doubt be grist for the academic mill for decades to come on whichever side of the fence the Court of Appeal decides to squat.

There is the likelihood the application for leave to appeal, as well as the substantive issues raised in the appeal applications, will be heard concurrently. This is not uncommon. A betting person would probably wager a few bob on a concurrent hearing as two days have been set aside to hear the matter.

There is a lot riding on the outcome of this case, and not just for the parties directly involved. For a couple of days there will be people in key positions who’ll be holding their breath, not the least being Mr Brough, Miss Doane, some key people in the Opposition, and of course, the Government.

On the matter of costs this last week hasn’t been a great one for Michael Harmer and his firm.

In another sexual harassment case, Richardson v Oracle Australia, Federal Court’s Justice Buchanan, in his decision on legal costs, has been extremely critical of Harmer’s firm rejecting settlement offers. His decision suggests in continuing, “… the proceedings would have been conducted solely for the financial benefit of her lawyers.” Her being Miss Richardson.

In the Ashby v Slipper matter the issue of legal costs is dependent upon the outcome of this appeal. It has been slated for consideration by another judge, and will be heard later this month.

Here are some links with regard to the Buchanan decision on legal costs in Richardson v Oracle.

Buchanan J Decision.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/359.html

Various articles in the MSM and appropriate journals.

http://www.smh.com.au/nsw/judge-criticises-law-firm-over-rejection-of-settlement-offer-20130428-2imnr.html

http://www.itnews.com.au/News/340607,ex-oracle-worker-left-with-heavy-legal-price-in-harassment-case.aspx

http://www.lawyersweekly.com.au/news/harmers-in-firing-line-over-legal-costs

WHO or WHAT WAS ROSEBUD? … Well, come closer

CITIZEN KANE  (1941) Poster

CITIZEN KANE (1941) Poster


The Dendy Quays has reintroduced their ‘Autumn Allure’ showcase of old films. Every Monday at 10am or 6pm for $9 ($7.50 for members and even cheaper if you possess a Senior’s Card) you can delight in seeing a classic.

To be able to view with an audience such films on a big screen as ‘Rear Window’ and ‘Breakfast at Tiffany’s’, films that you have come to know well from constant reruns on the small screen, is nothing short of the occasional revelation and always a joy. You do miss a lot of on-screen business when viewing is confined to the small screen.

Last Monday was Orson Welles’s CITIZEN KANE’s turn. It was an old film print, which snapped half-way through requiring a hasty splice and dice before the film recommenced, and with the audio snap crackle and pop of an old print.

As I sat through this film I had to keep reminding myself that it is over 70 years old. The screening reinforced why it keeps winning the greatest film lists. Every component of the film-making process is just brilliant.

Of course assisting the film’s ability to remain as fresh as a daisy and totally relevant in today’s digital instant-news media world is the film’s narrative of a man who owns and runs a media empire and who becomes totally corrupted in the process until on his deathbed he dies totally alone and with just one word on his lips – “Rosebud.”

The story of Kane’s life is told via a series of flashbacks facilitated by a journalist as he interviews those who knew Kane in an endeavour to discover who or what was ‘Rosebud’.

It’s a simple but effective technique and one that’s become a trifle clichéd. This film is why this story-telling approach is now a cliché. As so much of the story is set in a newspaper it further adds to legitimizing the technique. You never see the reporter’s face, always the back of his head and yet it is this anonymous reporter’s questions and voice-overs that drive the narrative.

The film’s themes are the big over-arching themes of power, wealth, corruption, loss, abandonment, betrayal, and the impact they have on an individual’s humanity. The acquisition of unimaginable wealth, and with that, great power and influence walking hand in hand with the temptations of personal arrogance and corruption.

The perceived betrayal of his mother when removing him from the family as a child is the catalyst for Kane’s ultimate downfall.

Kane, as a boy, leaving home with Mr Thatcher.

Kane, as a boy, leaving home with Mr Thatcher.

The family home may have been poor but there was a level of happiness, contentment and the feeling of being wanted in this simple home that Kane was never able to experience throughout the rest of his life. This loss and sense of betrayal establishes a personally disastrous and unsatisfying pattern of behavior in the way in which he engages with all those with whom he shares a part of his adult life.

The technical aspects of the film were also ground-breaking. They include the use of different lenses, the framing of individual shots, the lighting of each scene giving it a film-noir, quasi-gothic feel, how the moving camera was used with new editing techniques to make those shots work effectively, the use of wipes and soft cuts, and the uncluttered sound track.

Also of interest, with the exception of Welles himself, is the sparse, minimalist, naturalist acting style and qualities of those Mercury Players who are Kane’s cast. In contrast Welles’s chewing the scenery performance further highlights the difference between what Kane can get away with when there are no constraints on his behavior as opposed to the behavior of Joe Ordinary. For Agnes Moorhead and Joseph Cotton, CITIZEN KANE was the break for on-going stellar careers.

Orson Welles and Joseph Cotton.

Orson Welles and Joseph Cotton.

There are two options that can be pursued by a first time feature film director. The first is to play it safe because you haven’t done it before. The second is to just go for it and it’ll be fine on the night.

Welles had been given a contract by RKO, which gave him total control. His ego made him comfortable with following the latter course. CITIZEN KANE was the immediate result and a revolution in film techniques then followed.

Everyone knows CITIZEN KANE was loosely based on the American media giant, William Randolph Hearst, who hated the film so much he ran a campaign against the film and relentlessly pursued Orson Welles until Hearst’s last dying breath. I still don’t understand as the subject matter of the film could have been far worse. CITIZEN KANE never deals with the Hearst scandal of the mysterious death of Thomas Ince that occurred on Hearst’s boat, the Oneida, in 1924, and which became the subject of the Peter Bogdanovich’s film, THE CAT’S MEOW (2001). One interesting fact about the Ince death scandal is that Louella Parsons walked onto that boat as a hack society writer for one of Hearst’s papers, and walked off it with a life-time contract as a syndicated columnist throughout Hearst’s empire.

Hearst’s campaign against Welles personally and his film in particular almost certainly cost CITIZEN KANE the Best Picture Oscar for 1941. ‘How Green is my Valley?’ is a great melodrama, but ‘Citizen Kane’ it isn’t.

SPOILER ALERT:

Iconic shot from CITIZEN KANE

Iconic shot from CITIZEN KANE

The film opens and closes with an ultra-extreme close-up of a mustachioed old man whispering the word “Rosebud” before dying. At the film’s end those of us in the audience have come to learn what Rosebud is as the trash of Kane’s estate is confined to the incinerator and we zoom in as a child’s sled with the faded painted name, Rosebud, is reduced to ashes.

SUPER SPOILER ALERT:

However, ancient common gossip that emerges whenever talk gets round to either CITIZEN KANE or the illicit relationship between Hearst and his mistress, Marion Davies, suggests that ‘Rosebud’ was the name Hearst gave Davies’s vulva, or to put it more delicately, her private parts.

Whether it’s true or not, it offers a more logical reason for Hearst’s obsessional life-long pursuit of Welles. As the quest to find Rosebud drives the film’s narrative it just adds another layer to be enjoyed as you quietly chortle at the double-entendre offered up in one of the world’s finest films by this outrageous piece of titillating scuttlebutt.

REGULATING THE PRINT MEDIA – Hah! I’ve heard it all before.

“With great power comes great responsibility,” – Stan Lee
“The price of freedom is eternal vigilance,” – Thomas Jefferson

It’s strange to see these two quotes side by side, but if you merge them they suddenly seem to make sense. With great power and the unfettered freedom to use it, we all must remain eternally vigilant that it is used responsibly.

In all the current brouhaha to Stephen Conroy’s intention to introduce legislation making the print media accountable to an independent regulatory body, it is worth remembering some history that still resonates among Labor supporters as well as some, now retired, journalists, and which underscores Conroy’s initiative.

To understand the mistrust of Murdoch’s media balance it’s useful to revisit the 1975 Federal Election campaign. A day or two after the dismissal Fairfax management issued a letter which was circulated to all staff urging “fairness, balance and professionalism” in their coverage of the forthcoming election.

At the other end of the professional spectrum the Murdoch owned ‘Australian’ behaved with such bias and was perceived as being so disgraceful that journalists went on strike in the midst of the election campaign.

‘Murdoch’s overt interference in the 1975 campaign was so bad that reporters on the Australian went on strike in protest and seventy-five of them wrote to their boss calling the newspaper ‘a propaganda sheet’ and saying it had become ‘a laughing stock’ (Wright 1995). ‘You literally could not get a favourable word about Whitlam in the paper. Copy would be cut, lines would be left out,’ one former Australian journalist told Wright’ (1995). (1)

To go on strike over wages and conditions is one thing understood by all, but for 109 journalists to go on strike during a federal election campaign is indicative of just how bad the editorial interference was.

In those days journalists covering election campaigns would spend half their time with one side and then flip, swapping to follow the other side for the remainder of their time on the campaign trail.

“Alan Yates was a third-year cadet on the Daily Mirror and recalls the dismissal ‘shocked the entire newsroom’. Yates was on the AJA House Committee and says that while Murdoch was not necessarily in the newsroom, ‘his editors and his chiefs of staff were certainly involved in day-to-day selection of editorial content’. Alan Yates has said that he felt powerless as a ‘junior reporter’, but remembered his copy being altered to favour the Liberal Party’s viewpoint:

‘When questioning the chiefs of staff and chief sub-editor about this I was clearly told that that was the editorial line, the editorial people had thought that it was a stronger angle. Therefore I was left not too many options to go.’”
 (2)

In the early stages of the campaign there had been criticisms from highly regarded journalists about their copy being so altered that their stories bore no resemblance to articles that had been filed. Placement was pushed back, headlines were deemed by them as scurrilous and not reflective of the content, and so the outraged allegations of not just media bias but direct editorial interference precipitated a strike of journalists.

A letter written by News Limited journalists and presented to management outlines clearly some of the concerns they had resulting in their strike action on 8th-10 December 1975, the last week of the election campaign.

“… the deliberate and careless slanting of headlines, seemingly blatant imbalance in news presentation, political censorship and, more occasionally, distortion of copy from senior specialist journalists, the political management of news and features, the stifling of dissident and even palatably impartial opinion in the papers’ columns…” (3)

The other major media proprietors of the day, Fairfax and Packer, weren’t exactly happy with Murdoch. He had , single handedly, put the role of the print media under the spotlight and in centre stage, a place where neither Fairfax nor Packer felt comfortable.

State Labor Governments were considering bringing in regulatory legislation of the print media. These moves were given added impetus by the electoral loss of Whitlam in 1975 and the perception of Murdoch’s role in Whitlam’s downfall.

The Australian Constitution gives exclusive powers to the Federal Government under s51 for telegraphic, which also now means new technology such as telephonic and digital media. The Feds were not given power to cover the print media; that power was deemed by most constitutional lawyers to be a residual power left to the State Governments.

During the latter part of 1975 and for most of 1976 constitutional lawyers and academics argued the constitutionality of both the dismissal and the possible introduction of print regulation by any of the State Governments.

There seems little argument now to suggest that the Federal Government doesn’t have the power to go ahead with print media regulation along the lines of a print ACMA. And gosh, hasn’t it been effective?!

The powers to enable the Feds to introduce print media regulation seem to result from the ceding to Canberra of the corporation’s power, a constitutional catch-all for increasing federal power in a range of matters previously the preserve of the states. As well the print media now has a digital footprint which should mean automatic coverage by S51(v) of the Australian Constitution.

Regulation of the print media is not unknown. To this day Malaysia and Singapore, those great bastions of democracy, have licences to print that I suspect are arcane leftovers from the original British licensing of the printing press.

Just as there is no right to bear arms, there is no right of the freedom of speech or the freedom of the press enshrined in our Constitution. There is an implied right of political free speech in the Constitution (Lange’s Case), but it is extremely limited in how it can be applied as, for example, in defamation cases as one of the defences of qualified privilege, (but then that is another story).

Faced with growing outrage at the Murdoch coverage of the 1975 Federal Election campaign and the distinct possibility of having papers regulated, the three main print proprietors came up with a self-regulatory proposal ensuring that fair, impartial and honest reporting of the news would be overseen by a new body, the Australian Press Council.

Since its inception in 1976 the Australian Press Council has been a ‘self-regulatory’ body with the stated aim of keeping members of the print media fair, balanced and honest by ensuring that the print media behaves ‘responsibly and ethically.’

Funded by the print proprietors themselves, their function was two-fold. The first: as an adjudication body where members of the public can complain about the activities of a paper or magazine.

The second function: as a lobbyist group for the media continually promoting the concept of the ‘freedom of speech, especially that of the press’.

The APC’s role of lobbyist has been spectacularly successful to the point where most Australians believe they are the beneficiaries of the right to free speech written somewhere in our Constitution. The APC has contributed in educational programmes, and as participants in every media inquiry that’s been held since 1976.

As an adjudicator the APC has been a spectacular failure for the ordinary Joe Citizen, but brilliantly successful for the print proprietors, and, of course, has been commonly known for years as a toothless tiger.

The whole adjudication process is voluntary. There are no enforceable penalties except to publish the decision of the APC’s adjudication committee, and even then some regional papers have long stopped bothering to so do. It’s the ‘being slapped in the face with a sodden lettuce leaf’ style of penalty; it’s an irritant rather than a penalty, and has long been regarded as a joke.

The Australian Press Council is a wonderful lesson in how to be an effective lobbyist. It is also a brilliant lesson in why self-regulation never works.

In looking at some of the mainstream media’s coverage of federal politics and in particular the somewhat vitriolic personal pursuit of the Prime Minister while ignoring any meaningful coverage of the Opposition’s problems, as well as the media’s perceived lack of real and informed analysis of policy and administrative performance, is it any wonder that the spectre of the 1975 media election coverage has reared its ugly head.?!

This time, however, I can’t see any journalist, except the odd one or two, standing up for a fair and balanced media as a fundamental principle of a healthy democracy, nor for the integrity of what it is they personally do as a profession. For journalists working in a diminishing labour market there’s just no future in it.

REFERENCES:

1) Wright Tony, ‘On the Wrong Side of Rupert’ SMH. 13.10.95

2) quoted in the Murdoch Papers, an interview with Alan Yates by Martin Hirst. 1997

3) Cryle Denis. ‘Murdoch’s Flagship. 25 years of the ‘Australian’ newspaper. MUP (2008)

FROM SNUGGLEPOT and CUDDLEPIE to NUTCOTE. A tribute to May Gibbs.

May Gibbs

May Gibbs

I have often wondered why it is that local residents don’t do the touristy thing in the city they call home. When I’m in foreign cities I take great delight in visiting the homes of well-known artists and other historically important persons. My favourites are Charles Dickens house in London, Rodin’s amazing house in Paris and the home of Henry Frick in New York – all now museums. But this sense of adventure and discovering the homes of locally produced artists and persons of note seems to evaporate as soon as one arrives back to Kingsford Smith.
May Gibbs's house, Nutcote, in Neutral Bay where she lived for 44 years.

May Gibbs’s house, Nutcote, in Neutral Bay where she lived for 44 years.


Like the vast majority of Australians over 45 years, my sister and I grew up on the Adventures of Snugglepot and Cuddlepie, the gumnut babies, written by May Gibbs. These much loved tales were then read to our children from what is now a tatty and very old compilation of these fairy stories. I continued to read the daily comic strip of ‘Bib and Bub’ well into adulthood, never failing to be delighted by the strength of the narrative and the skill of the artist. Yet, I am ashamed to say, I have never visited Nutcote, May Gibbs’s Neutral Bay home for forty-four years until her death in 1969; that is until recently.
The Gumnut Ball

The Gumnut Ball

For the latter part of the Victorian era until well into the 20th century children’s stories with artwork in the Art Nouveau style, quintessentially English fairies, pixies, elves and the like were created by a host of English children’s novelists and readily available in the Australian book market. This was made easy as Australia was part of the English publishing geographical foot print, a legacy of the Imperial reign as I think we still may be, but May Gibbs was among the pioneers who created children’s fairy stories using identifiable Australian flora and fauna. Her first tale was “the Gumnut Babies’ published by Angus and Robertson in 1916.

Art School in 'Little Ragged Blossum'

Art School in ‘Little Ragged Blossum’


I think the first published Australian children’s book was written by Ethel Pedley in 1899 who created ‘Dot and the Kangaroo’, which I always found to be as boring as batshit. Norman Lindsay wrote his wonderful ‘The Magic Pudding’, which wasn’t published until 1918, and is really intended for an older audience.

‘The Adventures of Snugglepot and Cuddlepie’ were fabulous stories so beautifully rich in heroes and very scary villains. Who didn’t have nightmares involving the wicked Banksia men? Like most fairy stories Gibbs writes morality tales with lessons to be learnt for, and hopefully remembered by, young children, but there is also substance to her characters and a complexity in her stories. This is why they endure and why adults take as much pleasure from reading them as do children.

The wicked Banksia Man

The wicked Banksia Man


His Nibs, when we were planting a garden at our Jervis Bay beach hut, wanted a banksia tree. I didn’t. He won. To this day I cannot look at our banksia tree without thinking of the wicked banksia men who kidnap naughty Gumnut and Gumblossum babies. What a brilliant use of a bush flower as a character in a fairy story. Might I add when we get bush fires at JB you should see the banksia trees. They go up like a packet of crackers, which was the main reason why I didn’t want to plant one near our house in the first place. We pick the dried banksia cones as they are the best fire starters for our open fireplace.
BANKSIA MAN
There’s a wonderful book on May Gibbs entitled ‘More than a Fairy Tale – an Artistic Life’, written by Robert Holden and Jane Brummitt, and published by Hardie Grant (2011). It could be easily dismissed as a coffee table book because of the most extraordinarily beautiful reproduction of so many of May Gibb’s illustrations but that would be a serious error.
'More than a Fairy Tale. An Artistic Life' by Robert Holden and Jane Brummitt

‘More than a Fairy Tale. An Artistic Life’ by Robert Holden and Jane Brummitt


This book concentrates on May Gibb’s early life and the influences that would play a part in her creation of the Gumnut baby adventures. From the backwater that was Perth in the latter part of the 19th century, a precocious talent was given ‘a voice’. Early examples of her talent and skill as a prepubescent teenage artist are shown here, some for the first time publicly, others have not been published for nearly a century. Just for the range and variety of May Gibbs’s work alone this book is a must.

You should see her Christmas card to a friend, which she drew when she was only 9 years old.
STC timetable
May Gibbs was first published in the Christmas Edition of the WA Bulletin in 1889 when she was twelve years old. There are a series of socially satirical cartoons published in Perth’s ‘Spectator’ from 1903, which I especially love.

‘More Than A Fairy Tale’ takes you on her journey until the publication of the stories that we have come to know and love. It deals with her return to England to attend various art schools and colleges to perfect her technique, her connections and friendships with members of and involvement with the suffragette movement.
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In addition there are examples of her work used as part of the war effort.

Attempts to create for herself a career meant having to escape the claustrophobia from an overly protective family so typical of late Victorian and Edwardian times, which she did by moving to Sydney.

One of a series of satirical cartoons drawn by May Gibbs under the pseudonym  of Blob. This one was published in 1903 in the WA Spectator

One of a series of satirical cartoons drawn by May Gibbs under the pseudonym of Blob. This one was published in 1903 in the WA Spectator


All are dealt with in an illuminating story resulting in examining the essential elements required in the artist’s struggle to find an environment in which an artist can work freely.

The problem for the two historians who wrote this book is that Gibbs didn’t keep a diary, nor did she seem a regular letter-writer; or if she was, most of her correspondence has been destroyed. What she did do to chronicle her experiences was draw. Her diaries are the sketches, water-colours, pastels, cartoons she left behind.

One example of the exhibits painted by May Gibbs sent to the Paris Exhibition in 1900

One example of the exhibits painted by May Gibbs sent to the Paris Exhibition in 1900


There is the occasional assumption drawn by the authors. The major example with which I have an issue is the chapter on the Paris Exhibition. There’s no evidence she attended the Paris Exhibition of 1900 even though some examples of her work were on display in the WA Court and were very well received. There are no sketches of the Paris Exhibition at all. Yet the authors, understandably, can’t believe she wouldn’t have gone so they make the assumption that she did. I know I’m being picky, but the story is then why isn’t there evidence either one way or the other.
Gumnuts  - a rear view.

Gumnuts – a rear view.


However, despite this lapse they conclude with a brief comparison of the lives of Gibbs and English children’s author, Beatrix Potter. One I found fascinating and for which I’m grateful as I wasn’t aware of the similarities in their lives.

The lives of May Gibbs and Beatrix Potter seem to be totally in sync being lived out at the opposite ends of the planet. Both were precocious talents. Both had progressive political ideas involving conservation and the rights of women. Both were suffocated by the protective constraints of their immediate family (although Gibbs was always given support by her parents when it came to pursuing her artistic dreams unlike Potter). Both women left home to escape parental control. Both were married very, very late in life. Both women became the leading children’s novelists of their time in their respective countries. Both women have, long after their deaths, continued to be beloved by all. Against all odds, they became uncompromising, successful women of independent means whose fairy tales still resonate with the very young and delight the rest of us.

Nutcote, Neutral Bay.

Nutcote, Neutral Bay.


Do yourself a favour and visit Nutcote where so much of May Gibbs’s work is on display. The house is on the harbour with absolutely stunning views that can be enjoyed as you have a Devonshire tea. A lot of her work is here and there are two fascinating little videos, one being her last recorded interview.
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The house is an interesting mixture of style. It’s a three-bedroom cottage. The exterior is a Californian bungalow style with Mediterranean finishes. The inside is a good example of the English Arts and Crafts Movement. (A lot of her drawings reflect that in their style in my view). There’s an elegant simplicity in each of the rooms allowing in light as well as the views of either the Harbour or her much loved English garden.
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As with any Arts and Crafts house the use of wood in all things dominates the space and is gorgeous. Jarrah wood for all the floors had to be shipped in from the West Australia and, despite their age, look as fresh as a daisy. Beams, skirting boards, picture rails and fireplaces, built in cupboards, all made from cedar. A lot of the furniture on display belonged to Gibbs. Of particular interest is her work desk, and the room she chose as her studio. There is a kitchen with a Kooka stove and a sink and not much else. How they cooked huge meals in those days is a total mystery to me and the other tourists who were visiting. It became a lengthy discussion about what can be achieved in no or little space without kitchen appliances to help. My view is that men didn’t cook in those days so the kitchen was deemed unimportant. But I do remember my grandmothers’ kitchens and they were similarly tiny and inadequate.
Nutcote dining room.

Nutcote dining room.


If you are ever in Chicago go to the University of Chicago and visit the Frank Lloyd-Wright house on campus. As brilliant a designer as he was, his kitchens are hopeless. If he had been a hobbyist cook he would have got stuck in to designing brilliant kitchens and kitchen appliances.

So Sydneysiders as we move towards celebrating 100 years of Snugglepot and Cuddlepie support the good work done by the volunteers at Nutcote and pay this lovely historic house a visit. There is a great collection of memorabilia you can also purchase. It’s bookmarks, coasters and linen tea towels for me. A girl can never have too many linen tea towels especially when they have the cute derrieres of gumnut babies on them.

For those with a slightly warped political bent. Guess who these two are pretending to be Bib and Bub.

For those with a slightly warped political bent. Guess who these two are pretending to be Bib and Bub.

http://www.nutcote.org

I’d like to thank all at Nutcote for giving us such a special day and permitting me to take some photos without flash for this piece. It’s greatly appreciated.

http://www.hardiegrant.com.au/books/books/search-results?searchBy=title&phrase=More+than+a+Fairy+Tale

I’d like to thank Hardie Grant Publishers of ‘MORE THAN A FAIRY TALE, An Artistic Life’ by Robert Holden and Jane Brummitt for allowing me to use some photos from their book.

ASHBY V SLIPPER APPEAL: the first round.

There were surprisingly few members of the general public present at today’s directions hearing before Emmett J in the matter of the Ashby v Slipper applications for leave to appeal to the Full Bench of the Federal Court. Is this issue dead in the water with the masses and is now only of interest to the mainstream media? I’ll let others decide.

The applications for leave to appeal were not heard today but will be heard before the Full Bench of the Federal Court during their May sittings. At the conclusion of the matter before Emmett J representatives of all parties toddled off to hammer out suitable dates in May.

It was made clear by Emmett J that if leave to appeal is granted by the Full Bench then they would likely go on to hear the appeal at that time during their May sittings.

One thing that did amuse me was the issue of the length of written submissions arguing a case for the leave to appeal to be either granted or rejected. Apparently written submissions are limited to 10 pages but parties for Harmer asked for them to be increased to 30 pages. Emmett J granted this request subject to the presiding judge of the Full Bench countering the request and enforcing the 10 page rule. (For some reason this tickled my fancy and I had a quiet snigger).

The other matter for business was the issue of costs being awarded to Slipper as a result of Rare’s decision now, of course, the subject of two applications for leave to appeal.

Emmett J slated the hearing on costs to 30th May. The logic seems to be if leave isn’t granted then the hearing on costs can go ahead, but it will be totally dependent on the outcome of the leave to appeal.

So bing bang wallah wallah bing bang – all over in a very short time.

The other highly amusing thing for me was my engagement with members of the mainstream media in the lift going down while they chatted between themselves trying to sort out what had just happened in court.

It was my “OH For Fuck’s Sake” moment as I then, without the benefit of any notes, gave them a six point summary as to what had happened – all done and dusted before we hit the ground floor. Once outside the court precincts I was asked to repeat what I had said in the lift, which I did while notes were taken, much to the amusement of the delightful Ross Jones, my comrade for the morning and occasional contributor to Independent Australia, the on-line magazine.

To my very best new friends in the MSM: Today wasn’t exactly rocket science, and it helps to prepare and listen to what is being said in court instead of chatting, even if it is about the case. I don’t even want to think about what is not being taught in journalism degrees.

The focus of the Ashby-Slipper story will change as this appeal proceeds. It isn’t about Ashby anymore or, for that matter, Slipper. Well, maybe a bit. But they are now playing second fiddle to Michael Harmer. Make no mistake Harmer is now driving this engine. That is the story in my view. Appeals will be lodged all the way if necessary because at stake is Harmer’s professional reputation and career. If I was occupying Harmer’s shoes I would be doing the same.

AUSTRALIA DAY: It’s just not my cup of tea.

My father died at the age of 33 from war wounds, or rather illnesses, as a result of his duties as a soldier during World War 2. He wasn’t demobbed until the end of 1946. From the end of the fighting he was moved from Kokoda and then to North Borneo to finally mopping up procedures which placed him right in the fallout area of the two atomic bombs. Sure enough within a decade many of his mates, as well as himself, had succumbed to bizarre and various cancers for which there was no immediate recognition nor name and certainly no cure.

In my father’s case it was a weird form of lymphatic carcinoma usually only seen in toddlers and babies. He took 3 years to die which he did one Christmas Eve. My mother was 27, a baby with two babies. I’m still stunned that she managed to survive, but that’s another story.

His brother, my Uncle Johnny, was shot down on a mission and died within months of WW2 ending in Europe. I also have two great uncles lying in graves in France Never really reaching adulthood, they were old enough to die for ‘their country’, or Great Britain which was then deemed to be near enough. My father’s family is fifth generation now, my mother’s has ancestry who were here in the 1820s for heaven’s sake.

We currently live through a period of time, one that I hope will be mercifully short, where difference, discourse, eccentricity and non-conformity is demonised, hence this introductory preface.

Why is it that I have never felt comfortable about Australia Day as being the day of national pride and flag waving?

The dispossession and subsequent treatment of the indigenous owners by the colonists and later Australian Governments, both State and Federal, is one reason for my disquiet, and that reason alone should suffice for any reasonable person with a sense of justice and fair play.

The fact that this is a time for supposed nationalistic chest-beating and flag waving, and those who don’t are deemed churlish non-patriotic naysayers, is insensitive at best and just plain wrong. To continue with 26th Jan as a National Day is just wrong, wrong, wrong. It is wrong from the perspective of our on-going relations with the original owners. It is wrong from a historical perspective. It is wrong from the cultural position we now hold.

The 26th January is not the anniversary of Australia. It is not our birthday. There’s no birthday cake with candles to blow out for us today. Our correct birthday date is January 1st 1901 when we became officially the Commonwealth of Australia, the country we know and love. The current date 26th Jan is when an English Captain planted a flag and declared this lump of empty land a colony to do with as the English colonial powers wished. Even then the English just squeaked it in winning by a nose before the French landed some days later. Actually if La Peruse had got his finger out and landed on the 24th Jan when he was off the east coast instead of sailing on, we would be parlez vousing all over the place and munching on croissants. As it was the colony barely survived and came within two months of throwing in the towel as a sustainable place to live.

So today is a day that the English should be celebrating rather than us. A day in remembrance of the glories of once having had an Empire on which the sun never set.

As our population continues to grow drawn in the majority from those with a non-English background, the continued use of the 26th Jan becomes an increasingly nonsensical piece of historical inaccuracy, and no longer adequately reflects the cultural mix which is now our heritage. It is an artificial construct imposed on a people who are still coming to terms with their diversity, and for me, it is that artifice which isn’t fair dinkum resulting in discomfort from something sticking in my craw.

Of course there will be those for whom January 1st isn’t good enough because after all it’s also New Year’s Day, and heaven forbid if we lose a national holiday. But it is our birthday and should be recognised as such. But for me, a pacifist from way back, I identify our national day as being ANZAC Day. It’s a day which has earnt our respect and pride; a day which symbolises a fledgling pre-pubescent nationstate’s coming of age through the deaths of her young men; a day when I remember a father, his brother and their mates, two great uncles and others in my family who are no longer with us.

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