Australian Foreign Policy Documents - a great historical resource

In searching around for my post New England Story - The life and death of the mysterious Harry Freame I found a very interesting source, the Australian Department of Foreign Affairs and Trade historical record series.

The specific document I looked at was a secret cable from Sir Thomas Inskip, U.K. Secretary of State for Dominion Affairs, to Sir Geoffrey Whiskard, U.K. High Commissioner to Australia dealing with the proposed Australian Legation in Japan. From my viewpoint I found this fascinating because of the insights it provided on the way things worked.

This cable is one document in one volume of a twenty volume series. Those that are interested can find an entry point here. You can follow them by clicking backwards and forward. Do have a browse!

By global standards, Australia is NOT a racist country

I have mentioned before that I watch with dismay the constant stream of searches on Australian racism. The latest was a search on "why are Australians so racist" from someone in Arlington Virginia.

Running the same search again, I noticed a pattern. There are mainly two types of posts. The first are posts from Australia saying that we are. Just two quotes:

• Australia is a backwater, a racist and inward-looking country - from an on-line opinion article
• White Australia was founded upon invasion, theft, and genocide. It was subsequently shaped by social inequality - from a South Australian organisation.

Then we have overseas posts or articles that largely reflect Australian stated views back to us.

In the middle are a group of posts and stories that try to redress the balance - if australians are all racist how come I see so many black africans with white women girlfriends and white men with asian girlfriends read one.

Those inwardly focused Australians, and I include the media in this, who for a variety of reasons stereotype Australia as racist, or who are so concerned to fight against racism that they make race issues central regardless of other things, are doing this country a great dis-service.

Is there racism in Australia, yes. Is racism in Australia bad by global standards, no. Is Australia a racist country, no.

Many years ago when I was co-editor of a university student newspaper, we deliberately ran two stories together in the one edition, one on racism in the Soviet Union, the second on racism in China. Our intent then was to redress what we saw as an unbalanced local debate.

The position today is no different. Should we fight against racism, yes. Should we recognise the errors and mistakes from our own past, yes. Should we so obsess with our sins that we forget the broader picture, no.

In a sad way, the worst culprits in all this are those in Australian society who feel most strongly about past injustices. In their desire to set things right, to stop things happening again, they are doing the country great harm.

Postscript

In a comment, rummuser said...

I came here by accident while surfing and felt that I should share my two bits for what they are worth. I have visited Australia and have had some wonderful experiences with Australians. I am an Indian and did not experience the slightest racism, overt or covert, that I did experience in some European countries and in the USA. I have close relatives who are Australian citizens who do not experience any racism and would not live any where else. I may be an exception, I do not know. My personal experiences however should give some support to your own conclusions.

Nice to hear from you, RM.

A pause

We are going to the airport in an hour and I have suddenly realised that I will nor be able to complete the things I want to complete.

In Shanghai my wife has a conference. I am hand bag. I go on the accompanied persons' tours. This may sound dumb, but what I really to do is create a picture - sight, smell, feel - of what S. might have been like in the 1930s. Later I want to be able to shut my eyes and bring back the feel of the place.

I was very lucky to go to Singapore before it was modernised. Shanghai is exploding, more people already live there than live in Australia. BurtI think that the colonial quarter and old city still survive.

In Beijing we are lucky enough to have a local to show us around. I won't go into the connection, at this point, but we are lucky.

Time to give up on all the things I wanted to achieve before we left. Now it's time to go with the flow!

Time to sign off! By all.

Belshaw and China

I leave for China this evening for a bit over a week. We are going first to Shanghai and then Beijing. This is the first time that I have been and I am really looking forward to it. I will be taking detailed notes and, hopefully, some photos for later use.

I have a few posts that should come up while I am away just to keep regular readers interested. However, beyond this, I will not be able to post or respond to comments. Do feel free to comment. I will respond when I get back.

Scattered Friday Thoughts

So much to do today, so this post is limited to some very scattered thoughts, really notes to myself.

In a comment to Anon on New England Story - The life and death of the mysterious Harry Freame I mentioned that I was wondering about who else I might write about. I really do enjoy writing these biographical posts, although they take a lot of time, time that I do not always have. They also get a good response from readers.

I especially like subjects whose lives interact with different worlds, who illuminate a different aspect of life or history. There is a powerful addiction here because of the excuse it gives me for going in a variety of different directions. While I love ideas, I am also curious about people and the detail of life.

There are a lot of people I could write about, especially people who have become submerged with the passage of time. Here the hardest ones are the lesser known because they are far less likely to have on-line material that I can draw from, amplify as required. Yet these are some of the most fascinating stories. Life is not just about the famous, but about all those who have done different things.

So who do I write on next?

I must say that I am pleased with the recent performance of this blog, although I do not understand it. After a slow period, the blog is showing an upward trend in visitor numbers and page views. I cannot explain this. The stats packages I have do not provide any clue. Obviously I am not complaining, I would just like to understand.

The New England, Australia blog is also on an up. I have a better understanding here. Part is due to the Higher School Certificate exams bringing people through to posts such as those on Judith Wright. Part is due to click-throughs from this blog, something that obviously pleases me. Part is simply due to more regular posting.

I remain dissatisfied with the standard and focus of some of my posts. I was thinking as I responded to a comment from Bob Q on Uniformity and the tyranny of the majority that I really wasn't getting this quite right. There was a muddiness in my own thinking.

All this has been a somewhat introspective post, as I am sure that you will agree. Still, I did say that they were really notes to myself!

New South Wales Wales itself again- Brown out strikes

One of the reasons why I try to avoid commenting too much on current politics as opposed to policy is that, too often, I can add little real value. I become just another chattering head adding to the static.

For the benefit of international readers, Matt Brown, the new police minister in NSW, has been sacked in part for dancing in his underpants at a budget party, more because he lied to the Premier about it. I do not know who I am crankier with, Mr Brown or the ALP idiot who leaked the story for factional reasons as a pay-back.

I must be one of the few people in NSW who has read Mr Brown's maiden speech in the NSW Legislative Assembly. I was actually quite impressed because of the way he linked different elements of the ALP past together, including the establishment of the Housing Commission by the McKell Government. Now he has put the state in brown-out.

The factional idiot who leaked the matter comes from the Kafka world I referred to in Uniformity and the tyranny of the majority, a world that acquires a powerful internal reality independent of what is really happening. What counts is what happens in that world even if the ship is sinking.

Wearing my consultant hat, I once made a call on an organisation on the point of collapse. The executive suite was well separated from everyone else. The quiet chatter, the well dressed executive assistants, the coffee in fine china on a silver tray with chocolate biscuits, the patient wait while we waited for the busy senior executive to see us. Then the chat about long term plans.

As we came out, my colleague said to me, "Don't they know?" I replied no, they really can't see what's happening outside.

One of the silliest comments on the whole affray came from a journalist. Doesn't the public service run the state, she said. By implication, things would rub along.

The current sickness in the NSW public sector, the reason for complicated processes and slow decisions, the very real paralysis that seems to affect some agencies, all flow from the top.

I suppose that we have to give the new Premier time to sort things out. This will be hard because he actually has to change direction. In the meantime, I think that I will avoid commentary on NSW affairs until the position is a little clearer. Posts like New England Story - The life and death of the mysterious Harry Freame are much more fun!

New England Story - The life and death of the mysterious Harry Freame

Photo: Sergeant Harry Freame, peering out from a sniper’s hole, Gallipoli.

A little while ago I ran a post, Did you board at St John's Hostel Armidale?. This included a photo of 1937 boarders, one of whom was Harry Freame from Kentucky.

Kentucky was an orcharding and soldier settlement community south of Uralla, about twenty four miles from Armidale.

Looking again at the photograph reminded me that I had not yet told the remarkable story of Harry Freame.

Like any self respecting adventurer, elements of Harry Freame's life are shrouded in mystery, a mystery I suspect he sometimes played to with considerable effect.

When Harry Freame enlisted in the AIF on 28 August 1914 he described himself as a horse-breaker of Glen Innes and gave his birth place as Kitscoty, Alberta, Canada. With his dark complexion and accent, many thought him to be of Eskimo extraction, some thought American Indian, others maybe Mexican, an image he played up to "at Anzac where, in cowboy fashion, he carried two revolvers in holsters on his belt, another in a holster under his armpit and a bowie knife in his boot pocket."(1)

Wykeham Henry Koba Freame was in fact born at Osaka, Japan, son of Henry Freame, sometime teacher of English at the Kai-sei Gakko in Japan, and a Japanese woman, Shizu, née Kitagawa.

The date of his birth is uncertain. James Courtney suggests 28 February 1885 with a question mark(2), Darryl Kelly 1880.(3) This difference is not insignificant because it bears upon the accuracy of some of the stories about Harry Freame's early life. Could he in fact fitted have them all in? My feeling is the earlier date may well be correct.

Harry Freame almost certainly initially grew up in Japan, speaking Japanese like a native born. Darryl Kelly records that he was sent to England at the age of 15 (1895, 1900) to further his education. (4)

This early part of Harry Freame's life is shrouded in mystery. We know that on 19 July 2006 he married Edith May Soppitt at St John's Anglican Church, Middleborough in England, occupation merchant seaman. (5) At that stage his age was somewhere between 21 (1885 birth) and 26 (1880 birth). We also know that he had already started as an adventurer and mercenary.

Both Darryl Kelly and James Courtney refer to two campaigns.

The first is given by both as German East Africa. James Courtney suggests that he was involved in the supression of the Hottentot rising 1904 to 1906 (6), while Darryl Kelly records that Freame told friends that he served in 1904 as part of an international band of mercenaries hired to help suppress a native revolt.(7)

I think that both have the colony wrong. There was a rebellion in German East Africa (now Burundi, Rwanda and Tanganyika, the mainland part of present Tanzania), but this started in the middle of 1905.(8) By contrast, in German South West Africa (now Namibia), a serious and very bloody Hottentot rising did begin in 1904, continuing until it was crushed with considerable brutality in 1907. (9) So I think it likely that Harry Freame served as a scout in South West Africa between 1904 and 1906. This would also be consistent with the date of his marriage.

The second campaign on the other side of the world is the Mexican Wars where he is reported as working as an intelligence officer for President Porfirio Diaz. (10).

José de la Cruz Porfirio Díaz Mori (15 September 1830 – 2 July 1915) was a Mexican-American War volunteer, a French Intervention hero who fought against the French imposed Mexican Emporer Maximilian, and President of Mexico. He ruled from 1876 to 1880 and then again from 1884 to 1911. (11)

Darryl Kelly records that Harry Freame was in Mexico twice, returning in 1910. In 1910, a major rebellion broke out against Diaz's autocratic rule, starting the Mexican Revolution.(12) With the collapse of the Diaz Government in 1911 and a price on his head, Harry Freame fled Mexico by pack horse, escaping to Australia via Chile.(13)

We do not know what Harry Freame did between his arrival in Australia and his enlistment in 1914. However, by 1914 he seems to have been established as a horsebreaker at Glen Innes on the northern portion of the New England Tablelands.

Darryl Kelly describes Freame's initial impact on the AIF in this way:

With the final honing of skills in Egypt, Harry's skill and knowledge of previous campaigns began to surface. The swashbuckling air of confidence (of) what would soon become an ANZAC legend was about to take shape. The first item to be modified was the uniform. On this he attached leather pads on elbows, knees and insides of ankles. This allowed for the easy movement when leopard crawling around "no mans land". Next he discarded the standard .303 rifle and opted for a pair of pistols, worn on the hips, these were ideal for the close in combat of a scout. A stout bowie knife was positioned, sheathed in a boot scabbard. The last weapon in his armoury was a small pistol, worn in a shoulder holster, under his shirt. To top it off, Harry's trademark, black and white bandanna (photo) was worn around his neck. (14)

I am not quite sure that the AIF knew what had hit them. Harry Freame's bravery and his skill as a scout quickly became legendary. His uncanny sense of direction, his capacity to wriggle like an eel deep into no man's land at night even into enemy trenches, made him a formidable enemy.

Landing at Anzac on 25 April, he was promoted sergeant after three days of heavy fighting. He was awarded one of the A.I.F.'s first Distinguished Conduct Medals for 'displaying the utmost gallantry in taking water to the firing-line although twice hit by snipers'. He was mentioned in dispatches for his work at Monash Valley in June when C. E. W. Bean described him as 'probably the most trusted scout at Anzac'.(15)

On 15 August he was wounded at the Battle of Lone Pine. Invalided to Australia, he was discharged as medically unfit in November 1916.(16) A little later, he settled on the Kentucky Estate as government storekeeper following its subdivision as a soldier settlement scheme, then acquiring a block and establishing an orchard.

At the end of the war Edith, his arguably long suffering wife, came to join him. The historical material has almost nothing on his family. There was at least one son, the Harry who appears in the St John's Hostel photo. I am only guessing, but Harry must have been born after Edith's arrival. If he was fifteen or sixteen in 1937, then that puts his date of birth at 1921 or 1922.

I wonder how Harry Freame adapted to Kentucky? For those who do not know the area, the quiet dirt roads flanked by pine trees, the orchards, the sound of the crows in in the air, is far removed from the world that Harry Freame had known. Perhaps he found it healing. I also suspect that it made him restless.

Now we need to enter an apparent sidetrack, one that I am working partly from memory without checking my sources. Later I may add references if I get time.

In my post Ethnicity, ideology and the sometimes slippery concept of Australian "independence" - Part One: "Independence", I spoke of the evolution of Australian independence. I also mentioned the role that Billie Hughes had played at the end of the First World War for both better and especially worse. One of my points in the post was that the simple us (Australia)/them (London) model that seemed to be so popular today acted to conceal the reality and complexity of the Australian position.

The complexity of the Australia-Japan relationship in the period leading up to the Second World War is an example.

The adoption of the White Australia policy, in some ways the new Federation's first foreign policy act, created real problems with Japan and also for the Imperial Government wishing to maintain good relations with the Japanese Empire for broader strategic reasons. This included the signing of the Anglo-Japanese alliance in 1902. These Imperial imperatives actually led to some modifications of the policy, exemptions allowing for some types of Japanese entry.

Then during the First World War, Japan played a critical role in keeping shipping lanes open to Australia. There was disappointment on the Japanese side when Hughes at the subsequent peace conference fought to limit Japanese manadates over former German colonies in the Pacific. One can argue that he was right in the case of New Guinea, a Japanese New Guinea would certainly have complicated things later, but scarring was there.

By the early 1930s, Japan was central to Australian life in a way that I, for one, had not realised. Japanese trading companies played a major role in Australian trade, while there were tens of thousands of Japanese living in Australia under various forms of entry arrangements.

From 1931 Japan began to move into China. This further complicated things. Concerns about Japanese expansion warred with economic interests (Australians were seeking opportunities for economic expansion) and a love of things Japanese.

In 1935, William Scott joined Australian military intelligence.(17). A lover of things Japanese, Scott was also concerned about the Japanese presence.

In 1939 on the outbreak of the war in Europe, Harry Freame offered his services to the Government. His wife had died, that year, and I think that he was restless.

Scott employed Harry Freame to infiltrate the Japanese community in Sydney, and represented military intelligence at a conference in September called to iron out differences between military and civilian intelligence. In August 1940, Harry Freame married again, Harriet Briadwood. A month later, Freame accepted an appointment to the Australian Legation in Tokyo as "interpreter".

There is a whole story here that I do not fully understand.

Australian espionage in Japan, yes we did have our own spies, had been centered in the Australian Trade Commission. The establishment of the Australian Legation, one if not the first independent Australian diplomatic posts outside the Empire itself, was intended to extend Australian reach and to protect our economic and political interests in Japan.

The story of the Legation itself is one thing that I do not understand. The second is the fate of Harry Freame.

Harry Freame must have arrived in Tokyo in September or October 1940. In early April 1941 Freame, almost unable to speak, was reptatriated to Australia, dieing in agony on 27 May. The death certificate said cancer, but Freame himself said that he had been garrotted by Japanese Military Intelligence because of a leak in Australia that revealed that he had been employed by Military Intelligence. Medical records affirmed that his throat condition was not inconsistent with strangulation.(18)

There are two further postcripts that add to the sadness of the story.

The first is Australia's treatment of its large Japanese community during and then at the end of the war when we simply classified them as "seamen", a legal fiction allowing mass deportation. The second is the fate of Harry Freame junior.

In May 1942, Lieutenant Harry Freame Jr serving with the 2/24th Battalion 9th Division lead an assault on a Japanese underground bunker position near the Tarakan airfield using flamethrowers and grenades. Freame was wounded and hospitalised. A few nights later he was killed when a Japanese infiltrator threw a fused shell into his hospital ward. (19) I do not know whether there were any more family members.

Sources:

Axis History Forum, accessed 11 September 2008. (19)

James W. Courtney, Freame, Wykeham Henry Koba (1885 - 1941), Australian Dictionary of Biography on-line edition, accessed 11 September 2008. (1), (2), (5), (6), (15), (16), (18)

German East Africa, Wikipedia, accessed 11 September 2008. (8)

German South West Africa, Wikipedia, accessed 11 September 2008. (9)

Darryl Kelly, The ANZAC Bushido - 764 Sergeant Wykeham Henry Freame (1st Battalion AIF), Sands of Gallipoli Stories, accessed 11 September 2008. (3), (4), (7), (10), (13)

Mexican Revolution, Wikipedia, accessed 11 September 2008. (12)

Andrew Moore, Scott, William John Rendell (1888 - 1956), Australian Dictonary of Biography on-line edition, accessed 11 september 2008. (17)

Porfirio Diaz, Wikipedia, accessed 11 September 2008. (11)

Uniformity and the tyranny of the majority

My post WA election, Lyne and a wry sense of enjoyment triggered a conversation in the comments between Bob Quiggin and myself. In one comment I said in part:

What do you do if the entity is such that a majoritarian approach means that you must always lose out, creating a perpetual case of majority oppression?

Bob responded:

What do you do when you are in the minority? For a start, you suck it down, because that's what a democracy is - the tyranny of the majority. That leaves the hard grind of changing attitudes through lobbying, education and work. It's not like it's a hopeless cause, unless it is a plea for special treatment on a plainly unequal basis.

What Bob says says here sounds so reasonable, yet I think that it is very badly flawed. Things don't work like that in practice.

As I write, Nathan Rees, the new NSW Premier, has launched a major cost cutting exercise following an apparent $1 billion collapse in the State budget. In so doing, the new Premier said that he had no explanation of how the State's finances had fallen into a hole since the June budget.

The Sydney Morning Herald (10 September 2008) quotes Mr Rees as saying: "I don't have the time, nor the inclination, to examine why we've got those estimates wrong." Apparently the Government was simply unaware of the problem until last Friday (September 5). Now here there are two quite different issues: how did the problem arise; why was the Government not aware of it?

Dealing with the second first, access to information is central to informed debate and decision making. Here I was a bit appalled, but simply not surprised by the apparent problem faced by the new Premier.

Back in March last year in Access to Information - a NSW oddity, I complained that there was no way in NSW to access Government press releases. Oddly, when I commented on this to a Sydney journalist, he found nothing strange about it. I could always go to the State Library, he said!

What I could not say at the time was that I became aware of the problem because of some work that I was doing that required me to check past Government statements. I had to scrounge round to find copies on files or in people's private holdings. I also found that NSW had no apparent system for recording or accessing past Cabinet Minutes or decisions. Again, I had to scrounge round.

The lack of transparency - internal as well as external - may have facilitated the Government's capacity to constantly recycle announcements, to apply its electoral supermarket approach, but it did not make for good Government.

In writing about NSW Government policy over the last few years, I was (I think) one of the few who took the Government's major planning statements - Mr Iemma's Ten Year Plan, the various coastal strategies - seriously enough to try to analyse them in some detail. Here I pointed to two key weaknesses as I saw them.

The first was that were very bitsy, really an aggregation of somewhat disconnected performance measures. The second was the apparent disconnect between the statements and targets and actual economic and demographic change on the ground. This created an apparent Kafka like world in which the official system acquired its own powerful internal reality - plans, projects, targets, performance measurement, power structures, accords, special interest groups, Commonwealth-State agreements, the power of Premier's and Treasury, risk management, communication strategies, best practice - that was in some weird ways disconnected from the world around and especially that outside Sydney.

Also as I write, on the other side of the continent, the Australian is carrying the sad story of Sanchia Norrish.

The facts are simple enough.

Five years ago, the normally healthy 53 year old became ill. On the Friday morning, she was driven 25km to the Northam Hospital in WA's wheat belt. There she was X-rayed and diagnosed with a blocked bowel. Neither that hospital nor the immediately surrounding ones had the doctors or staff to operate - Northam Hospital itself services a population of 20,000, but usually does not have doctors at the weekend.

Mrs Norrish was then driven to Perth - and hour and a half trip. The busy Perth hospital did not accept the local diagnosis. By the time the diagnosis was confirmed, it was too late. She died during the operation.

The significance of the Norrish case is that the leader of the WA Nationals, Brendon Grylls, is the local member. Mrs Norrish forms one element in his push for improved regional services.

Now when resources are short, and they seem to be getting shorter all the time, Governments have to triage. They have to set priorities. In this context, those living in Sydney could point to a string of similar cases in the greater metro area.

The problem with triage in an increasingly resource constrained world is that it creates a pattern of winners and losers with sometimes fatal consequences to the losers. In a perfectly fair system, one could argue that this may be sad for the individuals or communities concerned, but them's the breaks.

The present Australian system is neither perfect nor fair, nor can it be. The current emphasis on national or state priorities, uniformity, common standards both conceals and adds to the unfairness, creating a constantly changing pattern of winners and losers.

At present, NSW has very particular problems. This means that the squeakiest immediate wheel gets action. However, even if we can fix the current problems of transparency and fragmentation, problems will remain.

In my series Why I remain a New England New Stater I tried to set out using personal examples why the current system worked against New England. Here my core focus is on institutional factors.

In somewhat similar vein, to test the NSW Government's Ten Year Plan, I took New England as a case study. My core conclusion, set out in NSW Ten Year Plan and New England - Conclusions, was that the plan simply did not reflect New England's needs. I would add that it could not because current institutional structures prevented those needs from being recognised.

Now one could argue, and quite fairly, that my New England focused approach is parochial, even quaint! However, it does rest on reasonably articulated underpinnings.

In my posts on constitutional issues (list of some at the end of post) and especially the View from 1926 series, I refer to the views of David Drummond.

Drummond argued that all exercise of Government power involved loss of freedom and created winners and loosers. He also suggested that a major problem in democracy lay in the fact that the majority would always oppress the minority. This is not simply a matter of changing majority views on particular issues. Rather, of cases where there is an entrenched majority view.

To overcome this, he suggested that Governmental structures should be geographically based, close to the people, so that there was a commonality of interest. This implies a shifting hierarchical structure capturing different levels of needs.

Drummond would have accepted, I think, that there will always be cases where specific local, regional or (for that matter) national interests must be over-ridden in the interests of the greater good. However, he would have said two things.

The first is that the meaning of greater good must be defined, tested. Secondly, that the dangers of majority oppression must be controlled through proper decentralisation of Government.

Our current structures do not easily allow for this. Let me illustrate this by taking an example that Bob and I share.

Working in the Commonwealth Industry Department, we were trying to develop new policy approaches that would encourage the development of Australia's electronics, aerospace and information industries. These industries shared many common features, but were also very different.

In developing new approaches, we had to fight against deeply entrenched Canberra attitudes.

One was the view that any industry support measure involved market interference and was therefore bad. A second that the only appropriate measures that could be used were so called horizontal, universally applicable, measures. Any vertically tailored approach was necessarily bad in its own right and open to special pleading.

We shared the doubts about previous industry specific measures. We also knew that most of the so-called horizontal measure ignored industry and geographic variation. In this sense, the so-called horizontal measures became deeply vertical because of their very varied industry impacts. By contrast, vertical measures that took into account industry variation could be structured to achieve a more uniform affect.

To manage all this, we developed what we called the matrix approach, something that Bob has referred to before in his comments. This was quite simple in concept.

We listed all the industry sectors we were dealing with across the top axis. This is a very big and varied sector, so there were a lot.

Then down the horizontal access we listed all the economic factors affecting the industries, all the relevant policy measures as well. Again there were a lot.

We then examined the effect of each policy measure, each economic variable, in each industry sector. From this we asked basic questions: what were the common features; what the differences; what were the gaps; what needed to be done to alter or harmonise policies so that negative impacts were overcome, so that their effects were harmonised and mutually reinforcing.

The approach proved very powerful, but also failed in the end because we could not overcome the horizontal, one size fits all, mentality. Our fatal flaw lay in the fact that we wanted to take difference into account.

And this, I think, lies at the heart of problem of majoritarianism.

Constitutional Posts

• Australian Constitution & the High Court Decision on Work Choices
• Water, new states and the intellectual poverty of current Australian discussions on Federalism
• Australian Federalism in an International Context
• Constitutional Change in Australia - the view from 1926: Introduction
• Constitutional Change in Australia - the view from 1926: Three streams of constitutional thought
• Constitutional Change in Australia - the view from 1926: Constitutional principles
• Importance of Parliament
• Constitutional Change in Australia - the view from 1926: Power will be Exercised

Cyber-attack sinks Neil's Floating Life - hopefully not for long

Those like me who have noticed that Neil's blogs are down, can find out the reasons why here.

I haven't followed the detail of the discussion that Neil feels triggered the attack. I, too, read a variety of blogs and value the freedom of expression and different ideas involved. I can only hope that the problem will be sorted out soon.

In the meantime, let conversation continue.

Postscript

In fact, not all Neil's blogs are down, just the Gateway blog. Floating Life itself is still on line. I did not pick this up at once because I always use the Gateway as my entry point to all of Neil's blogs.

Round the blogging traps - Legal Eagle on the common law

One of the reasons that I am so fond of scepticslawyer as a blog lies in the standard of discussion from the posts themselves through the interplay of the two writers to the standard of some of the comments.

Earlier this month, Legal Eagle had an interesting post - Has the time come for the common law to be scrapped. Nick Gruen also reviewed this issue if from a somewhat different perspective on Club Troppo.

As I read the material, I found the discussion rubbing up against some of my very long held and traditional opinions (perceptions) dating back to my study of European and British history at school. There George (RWL) Crossle presented the common law as an example of English genius, part of the evolution of British freedoms, contrasting this with the history and operation of the Napoleonic codes.

It was only later that I came to realise that studying history with George was in fact a liberal education in its own right. In many ways, George was a conservative man. He certainly seemed so to me. He wrote regularly to the local newspaper in defence of the Menzies-McEwen Government, attacking the manifold sins of the ALP opposition. Yet when it came to teaching history, he had the capacity to present the sweep of history, to draw out various sides. He was also prepared to countenance alternative arguments.

The issue of the differences in due process between the common law and the continental inquisitorial system formed a key thread in Legal Eagle's discussion. Nick Gruen focused on the same issue, pointing to the huge costs associated with the adversarial system. The comments on LE's post drew out some of the history of the evolution of the common law and its interactions with individual freedom.

The reason why both LE and Nick's posts rubbed up against my prejudices lies, I think, in their focus on the processes of common law as compared to my own perceptions of the history and role of common law.

As I understood common law, it's roots date back to Feudal England as a response to the varying exercise of power within Feudal structures. These structures were marked by cascading authority.

In Europe, the concept of centralised power was reinforced through divine right flowing from the church as successor to the Roman Empire through to the ruler. Individual rulers may have challenged this, but the concept of authoritarian power was clearly established. Napoleon's later codification was based on the concept of absolute imperial central power.

For a number of reasons England went a different route. Yes, there were many features of the continental type, but power was more divided, less formally centralised. In these circumstances, law became more of a device for controlling power, less of a device for imposing power.

This links to the second feature of common law, the way in which law evolved through practice, through judicial decision. Over time, this created a flexible if sometimes messy body of law capable of governing relations between individuals and entities independent of central dictates.

The emphasis on due process, on the adversarial system, was a by-blow of all this.

From my perspective, the common law is now threatened not so much by either its costs or the adversarial system, but by two linked developments.

The first is the emergence of the state as the single, central, source of power. In theory in Westminster systems, parliament is paramount. In practice, the executive has inherited the divine right of Empire.

One side-effect is that the importance of the legal system in acting as a barrier to the unbridled exercise of state power has increased. No Government likes to have its divine right to rule constrained. All respond to greater or lesser extent by trying to alter the law so that it delivers the control required.

The second development is the huge proliferation of laws and quasi laws. We live in a black-letter world in which everything must be controlled, regulated, ordered, risk managed. In these circumstances, there is less and less scope for the sometimes messy processes bound up in common law.

It is a fact that all organisations, Government or private, will use the law and legal processes to their own ends. The more formal law of all types, the greater the economic interests involved, the greater the incentive to work the system.

The fact that cost and complexity have increased is not, of itself, a reason for moving further away from the common law, although this may be the actual effect. Rather, we should ask the more basic question as to what we are trying to achieve, what the principles and processes should be.

Nothing that I have said in this post should be construed as an attack on either LE or Nick Gruen's points. I am simply mulling over things from my own perspectives.

Postscript

Marcellous had a rather depressing post, Banging your head against a brick wall, illustrating some of the costs and complexities of the legal process.

Visitor 37,000

Welcome to visitor 37,000 who came from Luft in Germany direct to the story on Qantas and its oxygen bottles.

While 37,000 is not a lot by some standards, it is still a fair number.

New Nationals - and a new sense of hope

Anybody who reads this blog on a regular basis will know that I do not fit in in conventional Australian political terms. I get typed variously as a conservative, a soft left small l liberal, a right winger, a social conservative, old fashioned, sometimes even as a radical.

Anybody who reads this blog will also know that I am disillusioned with current politics and approaches to public policy. Here I try to apply my analytical skills to suggest new directions.

I describe my traditional party position as country party, a party that no longer exists. In constitutional terms I am a monarchist who also wants to tear down the existing system to create new entities, to clarify responsibilities.

If you look at what I write about, I constantly emphasise the need to recognise differences across Australia, to avoid one size fits all approaches. I write about localities and regions, about the Aborigines not as "the Aborigines" but as Kamilaroi or Bandjalung.

I have tried to articulate my position in a range of posts.

In Sunday Essay - The beliefs of a New England populist I attempted to outline the origins of some of my beliefs. In Why I am not a conservative and then in a follow up post Why I am not a conservative revisited - and now Saturday Morning musings as well. I tried to articulate some of my broader positions.

If you look at my writings on my beloved New England you will see that I did not just argue that New England was neglected, that self-government was the right option, I also tried to articulate what needed to be done at a policy level to turn decline and relative deprivation around. To use modern jargon, I tried at least in part to create bench marks against which policy and programs could be judged.

In writing about politics I complained about the use of the word punter to describe votes, about the application of the concept of the brand to political parties. I complained too, and on many occasions, about the application of what I called supermarket politics, the idea that voters walked the aisles looking at goods until they decided what to buy.

This links across to the current abuse of the word "mandate", the idea that election promises are like contracts on which parties must deliver. Anything not covered by the contract is outside the mandate.

In all this, the distinctive thing about the WA Nats, the things that commentators are both fascinated by and struggling to come to grips with, is that Brendon Grylls and his colleagues appear to have articulated a position based on principles and then stuck to it.

I cannot comment on the sense of the WA Nats policy positions because I have not analysed them. I am struck, however, by the way that Mr Grylls is approaching discussions about alliance and the future in terms of specific principles laid down over the last two years and set out clearly to the electorate.

This is what people want. This is why Peter Andren was so successful in Clare. This is why the New England independents - Peter Windsor, Richard Torbay, Rob Oakshott - have been so successful. They are the real inheritors of the tradition to which I belong.

Interviewed tonight on the 7.30 Report, Brendon Grylls was asked about the implications of the WA result for the Eastern State Nationals. He said, simply, that it is all about community. The transcript is not up yet, but should come up here. In my words, the WA Nats were part of, identified with and represented their communities.

This does not mean simply going with the majority view. Peter Andren in Calare did not. But his electorate always knew what he stood for, what he would do, that he belonged to them.

This is a world apart from the modern political machine in which everything is spun, focus grouped to death, fine tuned.

I accept that I am old fashioned, that the world has changed. But regardless of the final outcome, the success of the WA Nats gives me hope that that the world that I thought had gone is not completely lost.

Postscript

The WA results are still unclear. However, I am so enjoying it all.

National leader Brendon Grylls emphasises that what he wants has to be set in a budget context. Current Premier Carpenter says that Mr Grylls has made it clear that he does not want to set the regions against metro Perth. According to Mr Carpenter, Mr Grylls keeps emphasing outcomes.

Mr John Bowler, the new independent member for Kalgoorlie who was dumped by by Mr Carpenter from Labor and who everybody assumed would support Labor, has been talking to the Nats. He emphasises that, like the Nats, he is truly independent. I do not think that there is any way that Mr Bowler would join the Nats - his point is that he and the Nats have things in common.

The truly enjoyable thing in all this is that Mr Grylls really seems to have set currently accepted conventional principles aside. He gambled on true independence, articulated principles, and now seems to be sticking by them.

I cut my eye teeth on this stuff. This is right back to the 1920s when the NSW Progressive Party split over coalition with the then equivalent of the Libs. The True Blues, the group who became the NSW Country Party, would not countenance coalition because this would compromise their principles.

Don Aitkin spoke of Country Party mythology. The True Blues are part of that mythology. It is a mythology that has become lost in the modern NSW Nats.

I wrote of the split in my biography of my grandfather. It's actually quite a gripping story that has never been fully published. Perhaps its time I put it on-line.