Archive for October, 2008

Imbricate, ataraxic, nidus

October 28, 2008

Today, in the Supreme Court of Western Australia, Justice Owen delivered his reasons for judgment in what has been described as Australia’s second-longest insolvency proceedings.  The trial took 404 days. Judgment has been reserved for a little over two years. On those grounds alone this should qualify as my “case of the week.”

The link above may take a while to open, as it is to a PDF version of the judgment, which extends to over 2,500 pages. The non-PDF link is even more unwieldy. There is a shorter summary, but even that doesn’t really answer many of what your questions might be unless you know something about the case already. The question of what relief should be given to the partially-successful plaintiffs remains up in the air for reasons which are too complicated to explain here. His Honour still seems to hope that the matter might settle.

One of the hall-marks of big cases, when fought tooth-and-nail, is that they can throw up a wealth of learning on a range of subjects as the parties throw the kitchen sink at each other by way of defences. Justice Owen has referred to this as the Les Misérables approach to litigation – referring to the barricades which were thrown up, ultimately ineffectually, by the “revolting students.”

Traditionally, such learning is propagated by means of a reported judgment in a bound volume. In this case, a lot will need to be edited out before the judgment would be of a manageable length for that purpose.

In the meantime, I’m not sure if his Honour is expecting a wide or general readership. “Imbricate” (which I should have known), “ataraxic” and “nidus” are just three of the words I have had to look up as a result of my so far quite cursory reading of his reasons. None of them is used as a technical legal term.

Slander

October 24, 2008

From the Daily Telegraph yesterday:

a woman who called her in-law a paedophile during a “family feud” was ordered to pay him $30,000 in damages.

Only four people – including the man’s son and daughter – heard the remark, which was made during a child access dispute in July last year.

But District Court Judge Judith Gibson [known at the bar rather originally as “Judge Judy”], who ordered the payout, said: “The making of an allegation of paedophilia, in the context of a dispute of access and custody, is like pouring oil onto a fire.

“It caused the plaintiff a great deal of anxiety and concern. The fact that a serious defamation was published to persons who are close to the plaintiff does not make it any the less hurtful.”

….

Those involved cannot be identified for legal reasons but the woman who made the defamatory remark was the maternal grandmother of the child at the centre of the dispute.

She admitted she was in a “terrible mood” and “just went off my head” before making the allegation about the child’s paternal grandfather.

The court heard that when the man’s daughter answered the door, the grandmother told her: “You know your dad’s a paedophile – a complete stranger came up to me in the street and told me.”

The defence claimed it was just “vulgar abuse” but the man launched defamation proceedings after the grandmother failed to apologise….Judge Gibson awarded $30,000 in compensation due to the very serious nature of the allegation.”

The Telegraph‘s online poll, admittedly unscientific, offered two choices (as best I can recall them): “A family argument should not lead to a large court payout” and “There should be a big payout for making such a disgusting allegation.” The voting was 2:1 in favour of the former.

That vote may be because of the way the story was set up, which was to quote, pretty early in the piece, an expert:

Macquarie University’s law school defamation expert Roy Baker said Australia probably had the most stringent defamation laws of any English-speaking country.

He had not heard of a case like this in 20 years and said most people would be surprised to learn that something said in anger could land them in court.

That is probably a shortened version of what Mr Baker said, because lots of defamatory statements are made in anger. But what I think Baker probably means is “said in anger in a domestic or social context.”

Defamation lawyers tell me that this was a modest verdict. To me, it seems over the top, especially when you realise that costs will be on top of that. Part of the problem (as I see it) is that the one law deals with limited, domestic publications and mass, commercial publication, and that defamation lawyers and judges become accustomed in dealing with the currency which applies to the latter. The whole curial process lends a gravitas to something which almost demands, of itself, that even such a domestic slander be taken very very seriously and a corresponding judgment be awarded.

So next time you are angry, be careful what you say. As Mr Baker was also quoted as saying:

“Watch what you say, only say what you mean and if you say more than you mean, you should immediately correct it and probably apologise.”

And go and talk to your banker.

Et in sub-Arcadia ego

October 22, 2008

A couple of weeks ago, on the October long weekend, driving north along the Princes Highway on the way back from a dinner with friends at Arncliffe, we trailed a police panel van emblazoned “Dog Squad.” After we crossed the Cooks River, and before we turned left towards Marrickville, it hooked off the the right. I made a sarcastic comment that it was off to hound the hapless attendees at some Sleaze or similar ball.

I was wrong, not only because it was a Sunday night, and Sleaze was already over, but also because, as we read the next day, a man had been shot in the head and died in South Street Tempe. As reported in the SMH the next day:

Police believe the death was suspicious and closed the road for a forensic investigation.

Officers and detectives from the dog squad were last night searching nearby parks and bushland for clues.

More news emerged later in the week, when the press paid some attention to the funeral of Todd O’Connor, held at St Mary’s Cathedral. It turned out that he was a “Kings Cross identity,” associated with bikies, if not actually one himself, and separated from his wife and children and living in a Woolloomooloo flat where, after his death, $650,000 in cash was found in a duffle-bag.

Somewhat ghoulishly, then, when choosing a place for a brief walk last Sunday afternoon, D and I went to South Street. And we weren’t the only ones: as we parked the car, a group who had arrived just before us were at was evidently the scene where O’Connor’s body was found, and one of them was miming a shot with a hand-gun to the ground. In fact, from the accounts published this seemed misconceived: O’Connor is reported to have walked some way before he collapsed, so the place of death was not exactly the scene of the crime.

After they had gone, we walked up and had a look ourself. There were some flowers placed by the road and a number of in memoriam messages sprayed onto the pavement and some road-side bollards. One thing the Telegraph got right and the SMH wrong, judging from these, was that O’Connor left behind four children.

South Street itself runs parallel to the Princes Highway on its eastern side, from Tempe Reserve at the south, about half-way between the Highway and Alexandra Canal. To its east is what was once Tempe Tip. At its northernmost end is a container terminal. On the other side of the canal is Sydney Airport. The area has a somewhat beleagered and even desperate air. I don’t think it is just a question of my knowledge of the crime, though you can well imagine the place as a rendezvous for people planning something underhand. If it was a set for a film, Bob Hoskins might be in the film.

Eloquently, someone had gone to the trouble to walk into the reserve on its eastern side to dump this collection of rubbish:

The tip has now been “remediated” and a potentially quite pleasant wetlands park, rather in the spirit of similar works in Sydney Park, has been constructed:

The high fence above the pathway in the picture is because there is a golf driving range on the ridge (really just a greater accumulation of rubbish) behind. Amazingly, having gone to the trouble to construct the path which you can see, Marrickville Council has decided that nobody can use it because of the danger of being hit by a falling golf ball.

Perhaps the driving range will be going soon.

There are a few established trees at the edge of the reserve, but most of the vegetation has been planted relatively recently. Pictured at the head of this post is a bush in flower which had a glorious honey-ish perfume. Unfortunately, a lot of the vegetation is overgrown by a creeper which can be seen a little in this picture:

Here is a slightly tilted view of the city-skyline, looking along the verboten pathway:

South St Sydney skyline

South St Sydney skyline

We didn’t walk far. On the ridge, next to the golf driving range, is a fenced off area which although unsignposted as such was being used as a dog exercise yard. The remediation is evidently incomplete. There is also a vantage point which would presumably be much favoured by plane spotters. By the time you get to the ridge the roar of the airport is inescapable. The environment is a hostile one.

I am a fan of the urban pastoral. As the title to this post indicates, at present the reserve could be described as sub-pastoral at best. Still, it is an improvement from the last time D and I came here, some years ago, when we wandered north along the track (at that stage projected to become a bike path) on the western side of Alexandra Canal and clambered up on the still-extant tip. Controversially, Sydney Water’s desalination plant pipeline is going to be laid above ground at this point, which seems to put the kybosh on any bike path or use of this area as part of the reserve. At present, Tempe Reserve itself is substantially fenced-off and occupied with large pipes and other parerphenalia for the pipeline works. This seems extremely cavalier of them (why can’t they store these things at their own expense somewhere else?) – but then, given the entire history of the desalination works (Iemma’s most shameful legacy) one shouldn’t be surprised.

A lengthy detour is required to reach the bridge over to the eastern side of the Alexandra Canal. Faced with this and the setting sun, we went no further, returned to the car and drove home.

Mrs Doubtfire

October 21, 2008

The first act of The Makropoulos Secret takes place in a lawyer’s office. An almost century-long case is nearing its conclusion. To emphasise the law’s delays, the office is really more of a waiting room, and at the back of the stage sits a line of clients who rise anxiously/eagerly to their feet when their lawyer arrives, only to be waved back to their seats.

Last week, at the end of the act, I nudged D and asked him if he had noticed that one of the women bore a strange resemblance to Mrs Doubtfire, Dustin Hoffman’s Robin Williams’ cross-dressing nanny disguise in Tootsie the film of that title. The young woman to my left but one (who was herself there with a very girly young man with long blond hair which he spent much of the opera flicking off his face) laughed at this: she knew which one I meant. D didn’t get it.

I was only joking: the person in question had a grey wig and the over-large jaw which is the give-away of the drag queen, but there are also women who look like men in drag.

Maybe I thought about it a little more later in the opera, but it was only tonight, going for the second time, that the penny definitively dropped. In the last act, a male-voice chorus sings from the third balconies and echoes EM’s conclusions about life, death and mortality (which are, of course, pretty much all the same thing – as she says). These choristers, together with four children, serve as the non-singing extras in the first act. So “Mrs Doubtfire” wasn’t so wide of the mark: indeed it was truer than I knew. Once I realised this, it was obvious – though made more so by one extra/chorister wearing his wig a little too far back on his head.

I had to laugh. I had seen it, but I hadn’t seen it.

One size fits all

October 19, 2008

A story in yesterday’s SMH is rather amazingly headlined “Prenuptial rights for same-sex, unmarried.”

It appears to be a paper-thin rewrite of a press-release designed, amongst other things, to drum up business for the family-law lawyer (quite a different thing from a family lawyer), Sally Nicholes, “principal of Nicholes Family Lawyers.”

Here are some of the highlights or lowlights, since nobody ever seems to click on links:

UNMARRIED and same sex-couples may soon be able to sign “prenups”, giving de factos many of the same legal rights as those who are wed.

Reforms to the Family Law Act before the Senate would allow agreements to be drawn up by de factos to cover spousal and child maintenance, as well as the division of property in the event of a relationship breakup.

Allow, or necessitate – you be the judge.

The bill was circulated in Federal Parliament on September 18 and is awaiting consideration by the Senate. If the legislation is passed, it is expected to be enacted by March.

That bit is, I think, out of date, so far as the Senate passed the bill with amendments on 18 October.

A de facto relationship can be heterosexual or homosexual and can exist even if one of the people involved is legally married to someone else or has another de facto partner.

The act goes beyond property matters:

The legislation will also mean that a court can force a partner out of the home if they are violent or acting inappropriately to the other person.

“This is pretty dramatic stuff and it is a big change,” Ms Nicholes said. “It is going to be huge, particularly with the spousal maintenance.

“What I have often found amazing is that someone could be in a de facto relationship for 30 years and have no obligation for spousal maintenance. But you could be married for one year and have more rights.”

Well, one person’s rights are another person’s obligations. I don’t know if I find it so amazing as Ms Nicholes does, because I always thought that was what marriage was about. Living together is often something quite different – but you will now need to go to a lawyer to do anything about that. How realistic is that?

She agreed that the amendments may make marriage a less attractive prospect for some couples.

“It just depends on how legally minded a couple are,” she said. “[But] some will come back to romance – to actually get married not for legal reasons, but romance.”

Funnily enough, that is the one point which I think is totally wrong in a glass-half-full-half-empty kind of way. The amendments will mean that, apart from the actual expense of a marriage and a formal divorce when or if the time comes, you will have nothing to lose from getting married at all, because you are all in the same procrustean bed for everything else.

In fact, it is not just pre-nups which may now be advisable, but mid-quasi-nups, because in an amazing and little-heralded step, the parliament has now enacted (subject to the amended bill now passing the Reps, though none of the the Senate amendments alter this particular aspect as far as I can make out) that all presently existing de facto relationships (including gay and lesbian ones) will, if they come to an end after the commencement of the proposed amendments to the Family Law Act, be subject to the jurisdiction of the Family Court (at least in NSW and in other states which have referred the power to the Commonwealth), not only to determine the division of property, but also to make ongoing orders for spousal or quasi-spousal maintenance, potentially for the rest of each party’s life.

Because de facto relationships do not depend on any juridical act, you might even be in a de facto relationship without realising it, and conversely think you are when in fact you are not. You’ll have to wait till later to see what the other party might think and do about it. The only way, so far as I can make out, that you can define the situation is if you can broach the matter with the other person (there may be more than one other person!) and reach agreement with them. But you will both have to agree that you are in fact in a de facto relationship, even if you want to bring it to an end, and for the deal to stick you will both have to go and see lawyers.

This, to me, is astounding. It is going to come as a shock to a great many people further down the road when it is too late to do anything about it. I wish the powers that be had paid a little more attention to Patrick Parkinson’s piece in the SMH in August, which although it sidestepped the question of gay marriage, made the point very clearly. As Professor P put it in his opening para:

The Federal Government must be very keen on marriage, despite the institution’s falling popularity in the population. It is so keen, it seems, that it wants to impose upon people all the financial obligations of marriage whether they have chosen them or not.

Quite frankly, I have very little faith in the capacity of the Family Court, schooled in the way of marriage, to make appropriate orders for de facto relationships which may well have been entered into and conducted on a totally different basis. Ms Nicholes’ comments are a worrying harbinger of their likely mindset.

Georgina Street, Newtown

October 19, 2008

I’m embarking on a bout of domestic reminiscence.

From 1985 to 1986 I lived in an unpreposessing house at the foot of Georgina Street, Newtown.  Then it was white, and shortly after I moved in was graffitied on the parkside wall with the legend “The Widowed Isis” and an Illuminati-style triangle.  I believe TWI was a band.

Georgina Street, which served as a proxy for Victoria St in the early 80s film Heatwave (with Judy Davis as, very loosely speaking, the Juanita Nielsen character) was then in the process of gentrification. Many of the houses were still divided into single rooms, although things had come a long way already from the 1960s, when it apparently was a centre of aboriginal housing, and, or so my google-booking tells me, known as Georgina Street mission.  Part of the film was actually made in the house, as the Judy-Davis character’s home.

I lived there as a lodger.  I paid about $40 or $45 a week.  My landlord, Rxx, had bought the house about a year earlier and was doing it up.  Mine was the front bedroom, which had a kind of louvred-French door at the side:

Rxx was involved in the Gay Counselling Service and the associated gay co-operatively run gym, Fitness Exchange. 

From time to time there were gatherings associated with these groups at his house.  I was a bit over-awed by the crowd who turned up.  My own sexual position was decidedly undecided, though I did have quite bright Telefunken-blue hair which had to be re-dyed every few weeks.  I was free to do this at the time as I was doing a PhD in history and was beholden to no employer – though I drove taxis from Newtown base most Saturday nights. 

These were the early and most terrifying (for gay people in Australia anyway) days of the AIDS epidemic as the disease cut its first swathe through those who had been boldest in entering into the gay life in the 70s and early 80s.  Rxx got involved in Ankali, and in commissioning a special song to be sung at AIDS funerals. Some nights each week, QQ, an Anglican curate, would come to stay with us and lead his other, Newtown and gay, life at an anonymous distance from his parish. These were the early years of the Newtown Hotel. QQ subsequently died, I am reasonably sure, of AIDS.

A few doors up in Georgina Street, H, a gay City of Sydney alderman (also later to die) lived. H was politically allied with the young Frank Sartor.  Sartor doorknocked me once seeking support for “Neighbourhood Watch” and took it quite politely that when I expressed a basic reluctance to be involved with the police in dobbing my neighbours in. H’s partner, G (who is still, Casaubon-like, compiling a dictionary of sexual slang) had his own private quasi-professorial office in the enormous first-floor drawing room. That was (and still is) in one of the terraces in the imposing row on Georgina Street itself, to which this picture doesn’t do justice:

Warren Ball Avenue, on the northern side of Hollis Park, had and still has even grander houses:

Further up, Georgina Street had and still has a synagogue, though it keep a pretty low profile.

Oddly enough, some friends of mine moved into a house a couple of doors up from the synagogue which had apparently been lived in by sun-worshippers – Zoroastrans, perhaps – who had left the house full of gold-painted bricks.  Just opposite the top of the street in the old was the famous “Maurice’s,” the the first eatery on King Street when you came from the university and much favoured by student groups, occupying the ground floor of the now-restored Trocadero.  A mainstay for my sustenance, it was presided over by the eponymous Maurice, a very courtly gentleman, I think a Maronite rather than a Muslim. His rather gorgeous (and we all thought, surely gay) son occasionally helped out, as well, of course, as his wife and other female family members.

The street has since been closed off at the King Street end, and a tree planted in the middle.

The gates date from the original subdivision.

The neighbouring house was divided into two or three bedsits or even, perhaps, bedrooms with shared facilities. The front room was occupied by a ZZ, a bottle-burgundy-haired woman with a hopeless-looking son who sometimes turned up – looking fairly heroin-addled though his afflictions may have been more psychiatric than that. Rxx told me that ZZ had prevailed upon the council workmen who in those days had a shed in Hollis Park (since demolished) to paint her room on council time in exchange for some kind of payment on the side. She would get on the turps at which stage abuse would start to fly fairly indiscriminately, including to the man, XX, who lived in one of the back rooms of the house and with whom she lived in a kind of symbiosis. I still remember her yelling once at him “Everybody knows that you shit yourself!” Undoubtedly if that was true she knew it because she washed his underpants for him. I also remember her yelling and muttering “He’s a fucking cat!” – referring to Rxx’s sexuality. This was not a term I had heard before with this meaning.

ZZ was also a bit of a cat-lady and fed innumerable strays. Consequently we had an infestation of cats, including one particularly tough ginger tom and another smaller (and, necessarily, female) tortoise-shell cat. These got into the roof and house because of the disrepair in the eaves and rafters.  This is when I learnt a sad lesson in life.

Rxx decided it was time to get rid of the (feline) cats. He got the official cat-trap from the RSPCA, and steps were taken to catch them. The first to be caught was the tortoise shell.  But for her fertility, she wouldn’t have even been a problem. I’m bound to confess that I caught her myself with ease. Rxx took her away to the gas chambers of Yagoona. Catching the tom, by comparison, was a truly terrifying experience. We cornered it in a room when it had come into the house, and I remember it literally running up the walls to escape before Rxx finally bagged it. It could quite easily have taken out my eye, or so I felt and feared. It ended up making its escape in Centennial Park when Rxx was taking it to a less regular end (Yagoona was just too far away).

I feel terrible about this still.  In life and expecially in any conflict, retribution comes first to the weakest and mildest rather than those who most deserve or provoke it. The softies suffer first.

The house really was quite unrestored. There was one room – the dining room or third bedroom, which was basically full of lumber of one sort or another, and in which at one stage we caught a couple of very large rats. The kitchen had a genuine Early Kooka and no hot water. The only hot water was above the bath in the bathroom – a “rocket” heater which you had to light manually with matches whenever you wanted hot water. It is easy to forget how primitive many houses still were in the Newtown area at this time.  Rxx washed his clothes by soaking them in the bath.  I used the laundromat up on King Street.

A large post-Christmas party was my undoing. I had cooked Christmas pudding, and as the party went on, I was running the hot water continuously in the bath to get the suety remains off the plates. This was too much for the rocket-heater, which caught fire. For the next week or so (it was the holiday season) until a new (second hand) heater was found, we had no hot water. Rxx showered at Bill Hunt’s place, and I at a bed-sit occupied by the then-young poet, Chris Burns (whom Neil will possibly recall), in the end terrace of the big row.

Rxx didn’t directly reproach me for the fire (or maybe I was just too young to notice), but after that things were never quite the same. A few months later (by which time, having promised not to have blue hair, I had taken a job as a teacher)  Rxx asked me to move out so that he could progress the renovations. Quite kindly, he let me leave my possessions in the house as I first went and stayed with a colleague closer to the school where I was working. Eventually, having prolonged that stay for rather longer than I should have, I rented in my own name a more humble two-up-two-down workman’s terrace in Bailey Street, Newtown.

E M

October 15, 2008

Tonight on the way to the opera, as we bowled down the Westlink with the ANZAC bridge and the city skyline before us, D was talking to me about life.

“I don’t know,” he said, “is it only me or is life just boring? Maybe it’s different for people who have exciting careers, but I just feel, what’s the point to life?”

I remarked to him that most people don’t have exciting lives; that people who have children, well that is what they achieve in their lives (though surely that only defers the question); that otherwise we just keep living because it’s the thing you do.

“That’s why people kill themselves,” said D.

I disagreed. I said that most people who kill themselves kill themselves because they are depressed about something specific.

D’s life philosophizing then became, or so I thought, rather wilder, as he then expressed the view that everyone killed themselves – from the way they ate, or exercised or didn’t or whatever. I expostulated that that couldn’t be true because some people are in fact killed by other people. D wouldn’t allow even this exception, since those who are killed have brought themselves to the point where they were in contact with whoever who killed them. This struck me as at odds with D’s customarily more passive view of fate, but by now we had reached the lights of King Street and George St. The rise of King Street to Elizabeth Street before me offered its own stresses and diversions and I was contemplating where we should park once they were overcome.

We were running late, and ended up at terrible expense ($32) in the bowels of the Opera House parking lot. In the lift I ran into SS, with whom I did Music I in 1978 and whom I probably last saw about 5 years ago and before that 12 years ago (O my God: do I look as old as she does now? Probably, and then some.) but there wasn’t time to talk. With seemingly few minutes to spare, we dashed off to the Opera Theatre.

And then there was a slight delay. My heart sank as the unwelcome announcement was made: in tonight’s performance of The Macropoulos Secret, the role of Emilia Marty would be sung from the side of the stage (the tell-tale chair and music stand were already there) by Anke Höppner. Miss Cheryl Barker had lost her voice, but would “walk through” (ie mime) the part. We were told that this situation had arisen just this afternoon, and the hope or opinion was offered that this should not destroy our evening. You have to have a nerve to make a speech like that: no explanation was given as to why there was no understudy who could cover the role vocally and dramatically.

Anke Höppner did a good job in the circumstances, though there were lines which she belted out which Cheryl mimed at a different dynamic, and occasionally her accented English was a little odd, but the situation definitely put a damper on the evening and the dramatic effect.

The opera is quite short: two hours and 20 minutes including two 20-minute intervals.

At the second interval, a woman asked me “Are you enjoying the opera?”

I said, “Yes.”

She said, “I’m not.” We were near the cloak room for the concert hall. To be more precise, I was on my way back from the Gents and she from the Ladies, and now I could see her husband hovering nearby. Clearly she was getting ready to go home.

She said, “I hate it. It’s just like a play with music.”

I said “Well, that’s just the parlando style. I know, it seems extravagant. But it’s only short. Only another 20-25 minutes. If it’s only a play with music, you might as well stay to see how the play ends.” I could have said that the music opens up a bit in the last act, as you would expect, but we’d only just met.

She did stay. In a way she was right about the play with music bit: if you’ve come to the opera thinking Verdi and tunes, you could well be disappointed by The Macropoulos Secret, which is made up of little phrases and entirely dramatic music to a greater extent than any of the other Janacek operas I know. It is fairly spare with the long lyrical lines. (This another reason why the dramatic obstacle of the Anke/Cheryl situation was such a blow – in a different kind of opera it would be easier to overcome.)

It is in the last act that we learn the secret of the title as translated by Opera Australia. Emilia Marty, the circa-1922 opera singer, is in fact Elina Macropoulos, born 1585, daughter of the physician to the Emperor Rudolf and obliged to take an elixir of eternal (or at least very long) life as a guinea pig for him when aged only 16. Since then, she has assumed a number of other identities – you can’t live 300 years without changing your name – always with the initials “E M.” At such length, life is meaningless and lonely. She cannot harbour the hopes of change for the better that people with more natural life-spans perhaps naively can. She has become a kind of cross between Wagner’s Dutchman and Wedekind/Berg’s Lulu. She does not really even care for her children (she has had so many over the years). A little inconsistently, there was one man whom she loved and to whom she had entrusted her father’s recipe for the potion. It was to retrieve this that she first entered the action of the opera, but now she relinquishes it. Will anyone take it from her?

Accompanying these revelations in the last act were other more dramatic developments and (as I have said already) a heightening of the musical register. I hope my interval interlocutrix thought it worth staying for.

But wasn’t it prescient of D to be thinking of the very thing that the opera, at least in a way, turned out to be about?

We rushed to the carpark to avoid the terrible exit traffic jam. We were out in a jiffy and home by 10.15.

Justice blinked

October 14, 2008

They say that justice is blind, but the Full Court of the Fiji High Court seems to have blinked in giving its judgment last week in Qarase and Others v Bainimarama and Others.

As I read it, it was just too hard for them to find that the present government in Fiji is unlawful. This was not a time for Justitia fiat, ruat coelum. They held that:

“The decision of the president to ratify the dismissal of the prime minister and his ministers, to appoint Dr Senilagakali as caretaker prime minister to advise the dissolution of parliament, and the dissolution of parliament itself, are held to have been valid and lawful acts in exercise of the prerogative powers of the Head of State to act for the public good in a crisis…For the same reasons the further decision of the president to rule directly pending the holding of fresh, fair and accurate elections is upheld as valid and lawful.”

This shows the power of something equivalent to the maxim “possession is nine parts of the law,” though in its origin that phrase had a more restricted sense than it has since assumed.

Here are some passages from the judgment:

We do not feel it necessary to traverse all of the matters which we feel would have fuelled an intention on the part of the President to act using reserve powers. The history of the nation with its four coups, the ultimatums and the disputes between the Qarase government and the military, the constant state of strife, the presence of Australian warships in Fiji waters, and the occurrence of the military takeover a month previous, all would have forced the President’s hand to use such powers.

and

In life it is easier to improve someone else’s draft than to initiate one’s own creation. There are always many commentators ready to occupy the larger space of the auditorium but fewer to volunteer to act upon the stage. In the President’s case in dealing with the growing crisis in November and December 2006, the events of 5th December 2006, and then those of the restoration of 4th January 2007, the decisions to be made were for the President alone. None of them could have been easy. Shakespeare provides us with the apposite line for such an anxious responsibility “uneasy lies the head that wears the crown” [Henry IV Part 2 III i 30].

When judges are reduced to paragraphs like that one, you know that they must be on shaky ground and they must know that they are.

A more interesting point follows near the end:

We note the completion of a census as a necessary preliminary to the holding of accurate and fair elections. We take notice of the significant demographic changes brought to light from that survey which are likely to effect a permanent and growing dominance of the Parliament by the indigenous. As was the case in Bhutto v Chief of Army Staff PLD 1977 SC 657 we do not find it appropriate to issue directions as to a definite timetable for the holding of elections. No doubt the President will have uppermost in his mind the twin imperatives of the sanctity of fair elections on the one hand and the need for urgent return to democratic rule on the other. In Mitchell (at p.94) Haynes P said the court assumed that the Government would act with reasonable despatch

It’s the bit about demographic change which interests me: to what extent is that because the Indians have voted with their feet so far as they are able to, and left Fiji? It’s as though the court has decided that there is no use swimming against the tide.

And then there is this, coming out of nowhere:

“We also note the close similarities in the path chosen by the President with the advice tendered to him by the Great Council of Chiefs.”

That’s where things get really mysterious to me, because as far as I can make out, on at least one crucial matter (how soon elections should be held) the GCofCs gave quite different advice to the course of action adopted by the President.

In jurisprudence, the question of the succession of regimes has been a perennial chestnut. It was the pet problem of Hans Kelsen. There is no simple solution. Cases like this expose the same difficult co-existence in the domestic sphere of might and right which raises its head in questions of de facto and de jure sovereignty and control in international law.

Rome wasn’t built in a day

October 14, 2008

Back in July, just after the World “Youth” Day “Pilgrims” left us, work started on the proposed bicycle lane in King Street, Sydney.

This is to run on the northern side of the street from Sussex Street to Clarence Street. That is a distance of one or two not very long blocks – albeit up a rather steep slope. In fact, work started earlier than that on the opposite side of the street (not really part of the bike way at all but simply of the upgrade of the street), and nothing has happened yet on the second block. So far, we are only talking about the first block, from Sussex to Kent Streets.

Work is still going on. How can it be taking so long?

There are signs up announcing that the Council is doing all this to put in a cycleway, thus –

Cycleway sign on King St

Cycleway sign on King St

but it appears to me that the project has been loaded up with all sorts of other things which, though doubtless desirable, are piggybacking the cycle-specific part of the job. It is clear that the opportunity has been taken to renovate or relocate all of the under-street services – at a guess, water, electricity, gas, drainage – plus who knows what else. A conversation today with a workman sheltering from the rain confirmed this.

I used to wonder how it could be that the quoted figures for construction of cycleways could ever be so high. I am now beginning to suspect a reason why.

When the council proudly trumpets its expenditure on cyclists, perhaps the figures should be scrutinized to see exactly what other works have been included along the way.

SSO – Kirill Gerstein

October 13, 2008

Tonight to Angel Place hear Kirill Gerstein in recital for the Sydney Symphony’s International Pianist series. The orchestra is presumably dispersed over Europe in its post-Italian tour holiday just now.

I heard KG twice (1, 2) a little over a week ago when he played with the Tasmanian Symphony Orchestra, so I had reasonably high expectations.

The audience was modest, though, unlike the TSO’s audience, it seemed mostly a real, paying one. The principal defect of Angel Place is its meanly proportioned foyers and the consequentially incredibly slow egress from the hall if it is at all full. Tonight the foyers felt comfortable, though getting out still took a while.

The program was:

CHOPIN Fantasy, Op.49
BUSONI Sonatina No.6 (Chamber fantasy after Carmen)
BUSONI Toccata
SCHUMANN Humoreske, Op.20
TCHAIKOVSKY trans. FEINBERG Scherzo from the Sixth Symphony

For me, the two highlights were the Busoni Sonatina and the Schumann Humoreske. I love Schumann. There were so many wonderful things that Gerstein did to produce an amazingly clear interpretation. It was intelligent programming to team this with the Chopin Fantasy. Sure, there were two or three smudges in that, but as my neighbour-but-one said, she didn’t think she’d ever heard anyone play the Chopin entirely cleanly, and she has certainly been going to concerts for long enough to have heard it a few times.

One thought I had while listening to the Schumann was: why did nobody play this in the Sydney International Piano Competition? (And I don’t just mean this year’s but every year’s that I have been to.) Perhaps somebody has, and on that I am prepared to stand corrected. But over all, pieces like this are not played. I am afraid that the reason is that, although it has moments of technical difficulty, its principal challenges are interpretative. Because it is rather long, it takes time up which could more readily be used on more impressive acts of prestidigitation. The Busoni Sonatina, however, might well deserve an outing. Perhaps it is just too obscure.

The Busoni Toccata was a piece which excited (in me, at least) more admiration than sympathy: it is Busoni’s last piano work. I can only just stand the Bach-Busoni Chaconne and this was in a somewhat similar serious vein, without the historical pastiche. Still it was interesting to hear.

Since I am not a critic, I will not say anything more detailed about Gerstein’s playing. Peter McCallum, who is a critic, was there, though whether the SMH will actually publish a review by him is anyone’s guess. I meant to ask him if any review was published of the TSO’s concerts. I saw him at all three, but I haven’t found any review online. If it was in a paper edition it was in one which I didn’t see. Things are grim for newspapers these days, but their neglect of criticism seems to me a wilful neglect of what ought to be a niche role which they alone can fill, and relatively inexpensively too. It also strikes me as pretty unfair to critics, who need to attend concerts to retain their critical antennae, if their actual publication rate (and presumably payment) is reduced. Fortunately, McCallum has a day job, so far as I am aware.

The transcription of the Tchaikovsky Sixth Symphony Scherzo was one of those “built-in” encores which people often program. It was mind-boggling, even if just near the end there were a couple of points where Gerstein couldn’t quite pull it off. As my neighbour commented, there wouldn’t be many pianists who would attempt that. There was something ironic about bursting into applause at the end of this, because in modern symphonic concert practice this is exactly what you must not do. In the Symphony itself the Scherzo is followed by the Pathetique’s tragic, double-bass-sobbing last movement. Nevertheless, about two times out of three, audiences (or at least substantial parts of them) think the symphony is over, and burst into applause at this point.

As an encore, I wanted to hear Schubert’s Erlkonig again, but I didn’t have the nerve to yell out for it. Instead, Gerstein played Earl Wild’s transcription of Gershwin’s “Embraceable You.” Compared to the Tchaikovsky-Feinberg which preceded it, this wasn’t all that difficult at all – a sort of cod-Liszt, mostly on white notes – but Gerstein did play it beautifully.

Last week I caught Angela Hewitt playing Book I of Bach’s Well Tempered Clavier at the same venue as part of Musica Viva’s chamber music festival. Unfortunately, coming (or do I mean going?) at the end of a three-day trial, I was too tired to do this concert justice. This is a pity, if only because it was much more expensive than Gerstein’s gig, at $85 for A reserve and $66 for B reserve. Hewitt played to a full hall – albeit with only the first two levels open. That just shows what being a well-known recording artist can do for you. For me, Gerstein, even though his program was unduly short, was much better value.