Shorten is right to oppose this unnecessary and undemocratic plebiscite.

Lord knows, I am not a supporter of the Labour Party but Bill Shorten is right to oppose a plebiscite over same-sex marriage.

I mean let's be clear. This notion of holding a plebiscite on the question of  same-sex marriage was simply a trick. It was a delaying tactic, a stick thrown in front of same-sex marriage campaigners to trip them up and impede the progress towards removing one of the last remaining obstacles to equality for gay people.

And it was a very clever trick

A plebiscite has the appearance of dealing with a vexed issue in a democratic way even though we have been able to resolve these issues in the past without any resort to plebiscites. We didn’t need a plebiscite to abolish the death penalty in Australia, or to decriminalise homosexual acts. And, most significantly, we didn’t hold a plebiscite before adding the provision “marriage shall be between a man and a woman” a mere ten years ago.

But suddenly we need a plebiscite to remove it.

Now, thanks to this tactic, the argument has arisen that same-sex marriage entails such a huge change to Australia’s culture and society that everyone is entitled to vote on the issue. There are only two problems with this:

1.   It’s not a huge change. It’s a tiny technical change. 

2.   You’re not voting on anything. Unlike a referendum, a plebiscite is not binding. The answer you write on the paper does affect any legislation, except psychologically. A plebiscite is just a 160 million dollar opinion poll which politicians can then refer to as indicator of public opinion. And clearly the results can be used by both sides to justify their position.

To explain the first point above. Despite the issues that are raised by opponents of same-sex marriage, the question is not whether same-sex couples can live together and raise children and generally be regarded as normal families – they are already legally doing that.  Just like a different-sex couples who are living together, same-sex couples are regarded as living in a de facto marriage by the ATO, Centrelink, the Department of Social Services, the Family Court and just about every legal jurisdiction. They already have the same rights, privileges and obligations as different-sex couples. So that’s not the issue.

And it’s not about whether same-sex couples can get married in the sense of having a marriage ceremony. Same-sex couples can already find celebrants and even churches that will perform marriage ceremonies where they make the same vows, with all the same sincerity and solemnity as different-sex couples. The only difference is that, at the end of the wedding ceremony, the different-sex couples get to sign a Marriage Certificate and their marriage is recorded in the Registry of Births, Marriages and Deaths.

That’s all it comes down to. Signing a certificate. That’s what all the fuss is about.

So, why, given that same-sex couple are already have, for all intents and purposes, the same rights as different-sex couples in regard to tax, inheritances, home loans, superannuation , divorce settlements, child adoption and so on, are opponents of same-sex marriage determined to stop them from having their marriage officially recorded by the Registry Office? The answer can only be - sheer bloody-mindedness. It seems that opponents of same-sex marriage realise they can’t stop same-sex couples living together, raising children, even adopting children and claiming the title of parents but at least they can deny them this one last thing –having their relationship officially recorded in the BDM Registry. Which is really just petty.

And the notion that people have a “right” to vote on this issue is simply incorrect.

It is not a principle of democracy that one group of citizens, regardless of how large it is, can vote to suppress the rights of another group. The most important feature of a right, be it enshrined in a Constitution, a Bill of Rights, Statutes or Common Law is that it applies apply to everyone. This is the nature of Justice: that the rules apply equally to all. Hence, if one person has the right to marry the person of their choosing, then everyone has the right to marry the person of their choosing.

Oddly, I am quite sure that if you polled the opponents of same-sex marriage about arranged marriages – the situation that occurs in some countries where young women and men are simply told who they have to marry – they would repudiate it as barbaric – a violation of the right to choose your own spouse. And yet they take the position that, in Australia, a gay man can only get married to a woman and a gay woman can only marry a man. How is this not the same denial of choice?

The unfortunate situation we find ourselves in is that there are, in Australia, people who enjoy the right and the privilege of being able to marry the person of their choice but who wish to deny that right to others. That denial of what is surely one of the most basic rights, is not something that can be justified by a plebiscite. Even if 90% of the Australian population voted against same-sex marriage it would still be a violation of human rights and thus an invalid vote, just as if a majority of people voted to deny Aboriginal people the right to go to school, or the right of women to be airline pilots. Such votes do occur from time to time in the world but they do not constitute democracy.

Islam is not the real source of the problem.

If we forget about Islam for a minute and actually start profiling the people who commit terrorist acts we find quite a few similarities. The first is that none of them are high or even medium achievers. They were generally poor performers at school, work in low paid jobs and have few if any career prospects. They either have no relationships with women or their relationships are compromised by infidelity, exploitation, bullying or outright violence. Many are hyper-masculinised, engaging in body building and steroid use and, like our own Ivan Milat, they are fond of taking selfies holding weapons.

These young men are found in all societies and they have always been an important resource for political extremists. In the 1920s the Nazi party in Germany recruited young violent thugs, put them in uniforms and called them the SA. They were supposed to “protect” Nazi rallies from disruption but their real job was to beat up political opponents and Jews. The  Communist Party had its own paramilitary force to match them. In Northern Ireland, violent young men were enlisted by both the IRA and the Loyalist defence groups and sent out to kill each other and a lot of innocent civilians.

The practice of recruiting not-too-bright, low-status, angry young men to commit violent acts has been around for hundreds of years: the only thing that has changed is the method of recruitment.

The Nazis had to personally approach young men who came to their meetings and ask them if they wanted to join. Osama Bin Laden was radicalised by a teacher at his high school. Prayer groups, sporting groups and other social gatherings have served as forums where potential converts are identified and approached. However, the advent of the Internet has brought with it the possibility of  recruitment over distances of thousands of kilometres. Far more effective than pamphlets, and much easier to hide, websites can deliver text, propaganda videos and on-line contact with others already in the organisation.

The Internet also enables remote activation. The genius of ISIS (if we can use that word) has been to see that you don’t need to call your recruits to a meeting, give them uniforms or weapons or even plans. No need to synchronise watches: you simply instruct them to kill non-Muslims by whatever means you have: kitchen knives, axes, a truck and so on, at  any time that you can.

It is important to remember however, that though many of the murders and massacres we have witnessed have been instigated by ISIS, these angry young men are likely to take up arms for a range of causes. Anders Breivik, the Norwegian mass murderer, shot 77 young Nords because he was opposed to Muslims. Gavin Long, the Baton Rouge police killer, was acting out of hatred for white people as was Micah Johnson the Dallas shooter.

So what kinds of people are likely to commit terrorist acts?

The potential terrorist is typically a young male who has little prospect of significant achievement in mainstream society. He is likely to have learning difficulties and low academic achievement. He is unlikely to have mature or equitable relationships women and may express conflict over sexual matters where adolescent attitudes to sex are mixed with deep misogyny. He is likely to feel isolated or discriminated against because of his ethnicity or religion and is likely to react with exaggerated chauvinism in relation to his own cultural heritage and bigotry in relation to others. 

Other predictive traits include aggression, narcissism, intolerance of others’ views, an explosive temper and involvement in petty crime. Most significantly, he will be a young man with a poorly developed sense of self who is looking for, or has found, a male role model on whom to base his own identity. That  male role model may be a teacher, a religious leader, a para-military leader or just a more experienced and charismatic member of a political or terrorist organisation. What he sees in that role model is the person he want to be: a man who is strong, confident, respected, part of a supportive band of brothers.

If society does not offer these poorly-formed, resentful, young men opportunities to achieve a sense of value, ISIS, neo-Nazi groups, motorcycle gangs, drug syndicates and other anti-social organisations will.

Muhammad Ali and the glorification of violence.

I shouldn’t have been, but I was surprised that so many people turned out to deliver eulogies on Muhammad Ali. Actors, celebrities, even President Obama, turned up to honour the great man’s achievements. I was not surprised that people should honour Ali for his ebullient personality, courage, devotion to charity and work inspiring marginalised people. I am just a bit surprised that none of these celebrities even mentioned that the way Ali achieved greatness was by punching people until they were unconscious.

After all, that was his job. Punching people.

I know they call it “boxing” but it’s really just “punching.” That’s all boxers do. They stand in a ring and punch each until one of them can’t punch any more. In the Olympics, running is called “running”, hurdling is called “hurdling” and swimming is called “swimming” so why is punching called “boxing”?  The answer is that calling it “boxing” seems to be an attempt to disguise the activity from what it really is which is just fist fighting. Which is, oddly, the very same thing we’re currently trying to eradicate from our streets and homes

After all, it is a little surprising that, at a time when we are running campaigns to stop street violence and teach people that Once Punch Can Kill and eliminate violence in the home, that people should be waxing lyrical about man whose entire career was based on punching people till they fell down or were so injured that the referee would have to stop the fight. At a time when schools are running anti-bullying programs and trying to prevent violence in the playground, it is more than a little disturbing to read biographical articles in which the writers seem to revel in the details of Ali's victories – bloodied faces, opponents sprawling on the canvas. Why are they not troubled that an African-American should find fame by inflicting brain damage on other African-Americans for the entertainment of cheering crowds of morons?

Yes, I know that some people will say boxing is an ‘art.’ But... no. Embroidery is an art. Etching, sculpture, wood carving, poetry and song-writing are arts. Boxing - that is: punching - is a skill just as butchering a carcass or gutting a fish is a skill. It takes practice but its primary purpose is still to inflict damage on a body.  What is possibly most remarkable is that, in other sports, punching someone will get a player sidelined, sin-binned, suspended, fined or even banned from the game. So how is it we tolerate a game where the entire aim is to punch your opponent?

The sickening answer to the contradiction is that there are still people out, mainly men (let’s face it) who think that boxing, punching, fighting, martial arts – whatever you want to call it – is  “manly”; that fighting is some sort of sign of masculinity - even a requirement of masculinity. This, of course, is the underlying cause of street attacks, bar fights, road rage and, ultimately, domestic violence.

So again why,  given the current efforts to remove violence from society and knowing that it causes brain damage, is boxing still legal? And how do we now have an even more violent incarnation of street fighting called "UFC" where combatants kick, gouge, knee and batter each other in a cage?

And most perplexing, what kind of arsehole pays to go and watch this? Over to you world.

  

Reflections of Bob Ellis and the Labor Party.

Night Thoughts on Jerusalem.

Reflections on Bob Ellis's Goodbye Jerusalem. (1997)

I wasn’t going to buy it. I knew it would infuriate me. But then I found myself with a couple of hours to kill one winter evening in South Yarra, and there it was in the bookshop. Bob Ellis’s Goodbye Jerusalem. It had just been re-released after some legal entanglement. "Typical!" I thought and bought it.

I had first learnt of Bob Ellis in the late Seventies. I knew him, by name only, as the author of the play The Legend of King O’Malley and was surprised when a friend assured me that he was regarded as a genius amongst Sydney's political/intellectual push. "Women want to have his children." she said.

As a native of Melbourne, what I found hard to believe was that Sydney had a political/intellectual push. In the Seventies, Melbourne, with its Pram Factory, David Williamson and Tim Burstall; where Jim Cairns had burnt call-up papers before the massive Vietnam moratorium crowd, with its Flying Trapeze and Last Laugh comedy venues, was where it was at. Adelaide came a close second with its Arts Festival and hot-panted Premier. Even Tasmania had credibility as the bushwalking, folk-singing, eco-narcissist State. Sydney was regarded as the Australian version of Mayor Daley’s Chicago.

Further inquiries revealed that not only did Sydney have an active, volatile and incestuous Push but the Push-In-Question was possessed of the extraordinary conceit that it was the principal if not the only literary and political in-crowd in Australia. Indeed, the more one probed into the psychology of Sydney dwellers, the more it appeared that they collectively thought Sydney was Australia.

Over the next few years, a succession of books, exposes, inquiries and ABC reports revealed to the rest of Australia the morass that was and had always been Sydney politics. A strong Irish/Labor Party connection emerged. As a Victorian, I found this baffling. Hadn’t all the Catholics defected to the DLP in the Fifties? Did they later all migrate back to the Labor Party? The Sydney Labor party seemed to have retained its original working class links while Victorian branch had firmly repositioned itself as a party for the aspiring middle class - Barry Jones, Dr Moss Cass, Dr Jim Cairns. There also persisted, in Sydney, strong vertical integration between local, State and Federal politics while in Victoria and the rest of the country, there was strict class division on such matters. You would never have heard a Victorian Chief Justice inquiring about his "little mate" – a suburban solicitor with scruffy gangland clientele.

Sydney politics seemed very rough compared to the stately Victorian scene: branch stacking, punch-ups at meetings, corruption, the thuggery of Premier Askin - a Gordian knot of police, political, criminal and legal interests. Sydney, in the swinging international agnostic liberated Seventies, seemed manacled to its convict past.

The divergence of views between Sydney dwelling and non-Sydney dwelling Australians has always been dramatic.

To New South Welsh eyes, Keating’s usurpation of Hawke was the rightful accession of the long-serving party faithful over the politically suspect show-pony. To Victorians and others, it was Sydney power brokers calling in a debt. The NSW Right had reluctantly backed Hawke in '83 and now they felt they were owed a Prime Minister.

As this tale of two cities or, more accurately, two Australias – Sydney and the rest of the country – unfolded, we also learned more of Ellis, who began to range beyond his Sydney territory. Soon, the chances of meeting Ellis were not confined to the Port Jackson area. Ellis was to become a permanent fixture at the National Screenwriters Conference, the Screen Producers Conference and almost every other conference where he could be seen either slumped in a corner scribbling like Gibbon or saggily lurching after women.

His regular column in "Encore" magazine has become compulsory yet infuriating reading for the film industry. Compulsory for its promise of gossip, infuriating for its contradictions. Though himself one of the best screen writers in Australia Ellis continually defends, if not champions, appalling Australian films. He is clearly intelligent and yet staunchly defended, even eulogised, Keating during his reign. He is a mature man with a historical overview and, yet, nurtures an undergraduate loathing for conservatives.

And so... I opened the pages of "Goodbye Jerusalem" with some hope that this anthemic work might hold some clue into the occult workings of the Sydney left-wing literary mind. It might even hold a clue to the foremost political question of the age which is "Why would anyone support the Labor party in the Nineties?" I was not disappointed. Ellis’s memoir reveals much of the psychology of the left-wing intellectual: you might even say it leads us into the very heart of Labor sentimentality.

First of all the book is predominantly about names - the legal tender of Sydney society. ("It was a great do. X was there with Y and then Z walked in. Do you know Q? Fabulous person! Did you know that Q and W used to be an item? That was before he met M of course. It was when they were both working for R and he was on with J..." ad nauseam) The names in Jerusalem drop like steady rain that has set in for the day. Everybody knows, went to school with, taught, has got drunk or has slept with everyone else and Ellis has done it all with everyone. Ellis affects to behold all these connections and coincidences with profound wonder, "six degrees of separation!", as if they were in some way accidental, extraordinary, serendipitous, violations of the laws of probability - rather than the totally predictable and thoroughly intended outcomes of networking behaviours within that subculture.

Running through this Who’s Who and Who’s Been Up Whom of the Left is Ellis’s acute, sometimes agonising, uncertainty of his own place within the subculture. The book is described, with some irony, and perhaps genuine regret, Memoirs of a Labor Outsider a subscript which is hard to take seriously given that the entire work is a chronicle of his encounters with heavyweights. And yet here lies a clue to the central dilemma of the acolyte. No matter how deeply the groupie penetrates the in-crowd, there always seems to be a more private circle to which they are denied access. Power elites, like onions, seem to peel down infinitely, always revealing yet another inner sanctum just beyond the reach of the aspirant. The result is that the acolyte experiences simultaneously a gratifying sense of belonging and a disappointing sense of rejection.

Ellis notes (and possibly identifies with) other excluded Labor party figures: Calwell sitting alone with his conscience in the church; Daly sent to Coventry for defying Evatt. Ostracism and betrayal are recurrent themes in this book which presents itself, overall, as a tragedy, It is never made clear, however, exactly whose tragedy it is, Ellis's or the Labor Party's.

In a way, it purports to be the tragedy of Men, particularly Great Men.

Like most left-wingers, Ellis disdains the "Great Man" theory of history and yet Jerusalem consists mainly of homage to a series of Great Men he has known, or wishes he had known: men whom he lauds with deep affection if not outright hero worship. This is mythmaking on a grand scale. Ellis is engaged in the construction of a pantheon which will show all these men (including, I assume, himself by association) as great and significant people. Chifley, Whitlam and Hepworth are dealt with in the fondest possible terms; doted upon as if they were fathers or grandfathers, indeed the entire book is a epic of, not so much brotherly, as filial love; a love for venerable, decent, brilliant, loving, outrageous men - almost a hymn to Men in general but in particular to father figures, the bigger and more cuddly the better. (Ellis consistently belittles short men, as if smallness of stature had been medically proven to be a symptom of meanness in spirit and mind.)

Indeed, Ellis seems to see the history of the class struggle as a battle between male individuals. He regales us not only with great men but brave men, working men, loyal men, brilliant men, sad men, dead men, insane men and especially drinking men. Anecdote after anecdote begins "And so we were in the pub when K walked in and said…." and after a while you begin to wonder. "Don’t these men have wives? Families? Do they ever see their children? Do they ever stay home and just watch television?"

Women, by contrast, are starkly absent, appearing only as adversaries of mythic proportions - Bronwyn Bishop the Valkyrie, Pauline Hanson the Harpy - or as carnal diversions: the shared girlfriends, the groupies, the toys. There is of course, Mrs Ellis, Anne Brooksbank, always in the background; loved and revered, supporting, strengthening, guiding. But how do we reconcile Ellis’s admiration of and dependence on his wife with continual references to his attempts to grope and seduce other women, references made with astonishing candour, as if the stumbling failure of the attempts somehow excused them?

Larded over this adulation of Men and scant regard for women, is an adulation of Irishness; a quality which Ellis seems to regard as a genetic quality. At one point Ellis makes the comment, somewhat ruefully, that while the Irish settled Australia, the Scots conquered it. Of course, as a Melbourne-bred descendant of Scottish immigrants, I would, be inclined to agree with that. While the Irish are famed for drinking, singing, fighting, writing, nostalgia, blowing people up and sorrow, the Scots are famous for drinking, singing, fighting, engineering, medicine, physics, banking and dying on the battlefield. Both countries suffered crushing poverty under the domination of England but, while the Irish starved and drank and sang, the Scots, cannily built great technical universities, invented electronics and television and donated to the imperial armies of England whole brigades of ferocious soldiers who terrified the living crap out of the Zulus and Pathans who stared wide-eyed through the morning mists to see advancing lines of tall, red haired men wearing skirts and puffing on what appeared to be flutes inserted into the rectums of yowling tartan tomcats.

Thus the Scots, while appearing, oddly, to be willing to die for their English oppressors, ended up, like Figaro, making their masters dependent on them - for Scottish education, Scottish acumen and Scottish toughness ("Whatever it takes"). Little wonder that these tough, pragmatic, sometimes Calvinistic wowsers rose to positions of political and financial power in Australia. Ellis however, sees the ascendancy of Scots in Australia as cause for regret and we wonder why. Is Ellis is anti-pragmatic? Or is he just pro-nostalgic. For, unlike the Irish, the Scots are notably unsentimental about their country of origin. As my eighty year old Scottish neighbour used to say. "Scotland is the best country in the world to starve in."

The roots of Ellis’s love of Irishness appears to lie in a respect for things humble and honest, a respect for men who work by hard physical labour. But how do we reconcile this sentiment with the admiration of power that elsewhere infuses the writing? Whence the name-dropping? Such confusions riddle the work. Ellis supports tariffs, yet despises the (Scottish) politicians - McEwan and Menzies - who created them. He affects affection for the uneducated, and yet his satiric writings snobbishly lampoon John Hewson for having gained his PhD from Saskatoon. Ellis is simultaneously scared by Keating and at the same time admiring of him, like a new boy in awe of the Head Prefect.

Of course the confusion is not Ellis’s alone. The schizoid nature of the Labor mentality is captured brilliantly in Gerry Connolly’s impersonation of Keating: "You establishment… scum" (Only a Labor Prime Minister could regard himself as a not being part of the Establishment.)

In the end, Ellis seems to love the Labor Party for its people, not its policies. As with Keating himself, Ellis’s commitment to the Labor cause seems to arise not so much from empathy with the underdog as a white-hot hatred of pedigreed dogs. Ellis's loathing of John Howard goes beyond all reason, seeking to portray him at best as an Australian Rick Moranis ("Honey I Shrunk the Deficit") and at worst as an arch fiend. At the same time he reveres the consummately aloof patrician leader, Whitlam.

But, putting Ellis’s confused and bathetic sentiments aside, Goodbye Jerusalem is also a revelation of the mentality of the Labor party machine. In particular it is an insight into that machine’s astounding failure to understand Australian attitudes at any given time over the last fifty years, illuminating starkly the gulf between the views of the True Believers and ordinary Australians.

To begin with, the Party always seems to have been fighting the last war. We see Chifley, after World War II, campaigning on a "never again" platform (referring to the Great Depression) just when the country is about to embark on a period of unprecedented prosperity. How did it take the Labor Party 30 years after WWII to grasp that there wasn’t going to be another Depression and refocus their policies accordingly, by which time the prosperity was, ironically, starting to wane? The result was Whitlam shovelling cash into education, the arts, and "quality of life" programs, just as the good times were coming to an end.

How could Keating’s minders have NOT anticipated that the rapid succession of reforms under his Prime Ministership - anti-discrimination, anti-vilification, unfair-dismissal and pro-Asianisation - would start to make the public jittery and that the High Court Mabo decision – which seemed to imply that the aboriginal people still legally owned a lot of Australia and white Australians might have to give it back - would create widespread insecurity. How could they not see that focussing on aborigines as a downtrodden class, at a time when the recession was creating a new class of downtrodden whites, would make Pauline Hanson's preposterous proposition - that aboriginals were better off than poor whites - somehow credible. Timing. Timing.

How could Keating’s minders have not seen that he was pushing the Republic barrow so fast that the wheels were bound to come off. Hawke would have presented the Republic issue as a matter for all Australians and made them feel that they had chosen it. Keating basically said, "It’s coming folks, so you better get used to it."

Though he purports to be an outsider, Ellis analyses these towering failures of common sense and sensitivity like an insider, attributing the electoral backlash against Keating to the foibles of electioneering; to television debates in which he suggests ludicrously that the studio lighting favoured Howard; to a forged letter scandal which no one even remembers; finally to the sour-grapes suggestion that Keating wasn’t really trying anyway. All excuses to avoid the overwhelming reality that the public hated Labor’s policies.

What is most striking in this portrayal of Labor thinking is what is NOT mentioned. Reading this book, no one would imagine that we were in the Age of Communications. There is not the slightest mention of the impact on society of computers, cable and satellite TV, global news organisations, the Internet, street kids, heroin, the loss of the entire TFC industry to Asia, immigration, the mushrooming litigation/public inquiry/prosecution industry, the gigantic gamble of sharemarket-based superannuation or the aging of the Australian population.

Rather, what is revealed is a world of intellectuals and politicians still clinging to age-old divisions, grudges, memories and a Fenian resentment of the wrongs suffered by long-dead fathers. Goodbye Jerusalem is indeed a wake indeed but not for any vision of the future. It is wake for the past: a lament for the Hibernian Dreamtime written by a writer who is in love with the idea of writers in love - not with women but with other men; a writer who is pining for his own Lake Isle of Innisfree and a Celtic twilight where life is poetry, drink and free love or, at the very least, a time when men could go down the pub and get away from their wives.

 Ian McFadyen 1997

The Baden-Clay judgement is a worry.

I have read this judgement and it both odd and worrying.

It should be noted firstly, that this judgement does not overturn Baden-Clay’s conviction of murder on any legally technical ground or any aspect of trial procedure. The judges of the court of appeal make no substantial criticism of the trial judge’s summing up and yet conclude that the verdict was incorrect. In short, the they have simply ruled that the jury were not justified in making the finding that they did. This is worry for the whole jury system.

The gist of their argument is that the jury had the option, on the basis of the evidence, of bringing in a verdict of murder or  manslaughter and, given that the forensic evidence did not establish anything in the way of an intention to kill, they could have and should have opted for the lesser finding of manslaughter.

Much of the judgement is devoted to dismissing the notion that Baden-Clay’s lying supports a finding of murder. They appear to accept that the scratches on Baden-Clay’s face were in fact fingernail scratches, explicitly referring to them as such in para 35 and elsewhere – but suggest that he possibly lied about these scratches and everything else, “in panic.” Indeed, the judgement basically consists  of  the judges suggesting an alternative scenario to the killing, which they describe as the “reasonably open hypothesis” that Baden-Clay accidentally killed his wife and then concealed the body and lied about the circumstances of her death out of panic.

There is, of course, an immediate problem with this hypothesis which is that, if Baden-Clay accidentally killed his wife, why would he, when faced with a murder charge, continue to insist on his complete innocence rather than plead to the lesser charge of manslaughter. It is not really conceivable that he was in a state of panic during the entire period of his arrest and trial and, in any case, surely his defence counsel would have advised him to plead to the alternative charge seeing that the circumstantial evidence for murder was so strong.

Oddly, the judges accept that the jury was entitled to conclude that Baden-Clay killed his wife, moved her body, deposited it under a bridge and lied about the scratches on his face. What they refute is that the jury had any right to infer, from his actions and his lies, that he intended to kill her. One of the key elements in reaching this conclusion is that they completely dismiss the motives that were adduced by the prosecution for the crime – i.e. Baden-Clay’s affair with Ms McHugh, his promise to Ms McHugh to end his marriage and his financial difficulties. The reason for rejecting these as valid motives is never explained: the judges simply state that the “pressures on the appellant (do not provide) a motive in any conventional sense of the word”. (my Italics). This defies understanding since evidence of an extramarital affair and the possibility of benefiting financially from a spouse’s death would normally be accepted in any murder trial as valid motives for murder. For some reason, no reference is made in the judgement, to Allison Baden-Clay's $800,000 life insurance policies which her husband stood to receive in the event of her death. 

However, what is most concerning about the judgement is the sense that a lack of evidence for murder should properly lead to a finding of manslaughter. This is based on the erroneous idea that a conviction for manslaughter requires a lower level of evidence than murder. In fact, it requires a higher level because the defence has to show that an act which has quite clearly led to the death of the deceased was not actually intended to bring about that result. In the case of, say, a drunk driver who kills another person on the road, the lack of intention is clear: the deceased was not known to the accused and the death was clearly attributable to recklessness on the part of the accused and an culpable disregard for others’ safety etc.

In a case, however, where the accused shoots someone in the head who then dies, it is going to be difficult for them to convince a jury that they did not intend death to occur. Note that in such cases, while the onus of proof in trials is always on the prosecution, in this sort of situation the prosecution need only rely on the “reasonable person” test. i.e. any reasonable person shooting someone in the head must of necessity reasonably expect it to be fatal.  In this situation, the onus of proof would fall onto the defence to prove that the accused shot someone in the head without intending to kill them - a big ask.

In the Baden-Clay case, such an argument was never presented by the defence because their contention throughout was that Allison Baden-Clay was not killed by her husband but by person or persons unknown.

In dealing with this question of evidence manslaughter, the appeal court judges rely heavily on the fact that there were no detectable physical injuries on Allison Baden-Clay's body. They see this as providing no evidence to indicate “an intent to kill or do grievous bodily harm”.

In fact, I would regard this as evidence to support murder rather than manslaughter because it is almost impossible to conceive a form of manslaughter that does not leave obvious physical injuries. 

Only such unintentional acts as accidental poisoning, or accidental gassing might kill someone without leaving physical damage. Murder, on the other hand, because death is intended from the outset and there is a desire to conceal the act, often involves methods of killing that leave no visible signs. What we know about the death of Allison Baden-Clay is that it happened sometime during the night or early in the morning, that there was no evidence of a fight or struggle, that her body showed no signs of overt violence such as broken bones, head trauma etc, no sounds were heard by neighbours (except for one inconclusive report of a scream) and the children did not wake. The judges seem to feel that this lack of physical evidence in the home and on the body seems to somehow justify a finding of unintentional killing. I would maintain that it suggests exactly the opposite. The state of the evidence does not suggest something like a violent physical altercation that resulted unexpectedly in death: it suggests an act that was carried out in silence and with some level of consideration if not actual planning.

In the end, this judgement does not overturn the conviction on any technical legal grounds. What the appeal judges seem to have done is to re-interpret the evidence and offer a possible alternative explanation for the killing of Allison Baden-Clay and then conclude that, given the inherent ambiguities, the jury should have found for a lesser charge of unlawful killing – i.e. manslaughter. 

This is worrying because overturning the decision of a jury is no light matter. It is not the role of appeal courts to reverse the verdicts of jury trials unless there has been some clear breach of legal principles, misdirection by the trial judge or some complete misunderstanding of some vital piece of evidence. In this case the jury had the choice of bringing in a verdict of murder or manslaughter and in the end unanimously decided on murder because, given the motives that had been suggested and the absence of any evidence for an accidental killing, murder was the more probable scenario.

In this case the court of appeal has set themselves up as an alternative jury and delivered their own verdict.

The irony of this judgement is that, at the end of the day, if there is no evidence that Baden-Clay intentionally killed his wife, and no evidence that he killed her accidentally then he should have been acquitted.

The question of “legalising” drugs

 We frequently hear calls for the legalisation or decriminalisation of drugs. The arguments are usually the same: criminalisation hasn’t worked, the “war on drugs” has failed and we should be considering “harm minimisation” programs rather than arrests and convictions.

Some people advocate simply decriminalising possession for personal use; others believe all drugs should be legally available.

Of course when people talk about legalising drugs, they are talking about the drugs that are currently illegal, not the medicinal pharmaceuticals that we use every day. These drugs are “legal” but not legal in the sense that the advocates of legalisation mean of being able to be manufactured and sold at will.

Ironically, these so-called "legal" drugs are strictly regulated. Drugs must be tested for years and pass rigorous tests before they are allowed to be marketed. When they are sold, unless they are almost completely harmless like aspirin or Paracetamol, they must be prescribed by a doctor and dispensed by a chemist. Those regulations are backed up by a system of legal liability. If a person suffers detrimental side-effects from a drug they can sue. If the chemist dispensed the wrong drug or the wrong dosage, they can be sued; if the doctor prescribed the wrong drug, they can be sued: and if they were not at fault – the drug company itself can be sued, and many have been - in multi-million dollar legal actions.

Of course when people talk about “legalising all drugs” they are not suggesting that pharmaceuticals in general should be freely available for anyone to manufacture, sell and purchase over the counter without any sort of controls.

What they are talking about is legalising so-called recreational drugs and this is what leads us into an absurdity.

Legalising so-called “recreational” drugs, would lead to a ridiculous double standard where, to get a blood-pressure or cholesterol drug, you had to go to a doctor and a chemist, but you could buy drugs with known side-effects and the even the potential for a fatal overdose over the counter - without any need for a prescription or any sort of medical examination. It would also mean that people could manufacture these drugs in any sort of back-yard lab they wished and not be breaking the law. And of course there would be no legal recourse in the case of side-effects or death. There would be grounds to sue either the dealer or the drug manufacturer as they would have no duty-of-care to begin with.

Some advocates suggest that, if recreational drugs were legalised, then major drug companies might start to manufacture them, guaranteeing the quality and ensuring that they were “safe.” This, of course, is a pipe-dream.  The drugs that currently illegal could never obtain certification by the FDA or TGA for public use for the simple reason that they’re NOT safe. There is no safe version of them and even if one could determine a “safe dose” of these drugs, you could not monitor their usage unless you went down the path of having people get a prescription specifying the correct dosage from their GP. However, no GP would ever prescribe these drugs because they have no medical value.

   

The question for a pharmaceutical company that was even thinking about manufacturing these drugs would be how they could protect themselves from the inevitable law-suits when people had adverse reactions. To put it simply, no drug company would be crazy enough to manufacture the drugs that currently illegal because they would be wiped out in litigation that made the billion dollar James Hardie asbestos case look like pocket-money.

Similarly, whereas chemists and supermarkets are happy to have headache tablets, and hay-fever capsules on their shelves, available without prescription, they would never be stupid enough to sell marijuana, MBA, opiates, methamphetamines or anything else, because they would  be sued the first time someone commits suicide, lapses into schizophrenia, turns violent or depressed, or even just become an addict. Not even a corner shop would risk it. Remember that a pub or a bar that serves alcohol to a person who is already intoxicated can be sued if that person subsequently causes a serious car accident so retailers can be held responsible for the results of intoxicants they sell.

The result is that even if you “legalise” illegal drugs, the scenario under which they are made and distributed will be almost exactly the same as what exists now - people growing or synthesising the drugs in a kind of cottage industry and selling them anonymously either in person or over the Net with no legal liability. Drug takers will never have any guarantee as to the purity or safety of these drugs because no legal safety standard or method of regulating their manufacture can ever exist.

So, in the end, removing criminal sanctions against manufacturing, transporting, selling or possessing drugs may stop people going to prison, but it is never going to reduce the instances of death by overdose or suicide, mental illness including depression and schizophrenia, family breakdown, relationship breakdown and career breakdown. The current laws against drug cultivation and synthesis are the same laws that prevent Pfizer, Sigma or Bayer from marketing a drug that causes detrimental side-effects. Similarly, the laws that prevent the distribution and sale of illegal drugs are the same laws that prevent people from selling foods with botulism or toys with toxic chemicals in them. How could we - why would we - exempt one particular set of products from those laws, especially when the harm they do is so manifest, so visible, and greater than all the other dangerous products combined?

At last! The long awaited sequel - COLD WAR II - The Russian Empire Strikes Back.

As we celebrate the return of the Back to the Future franchise, a new Star Wars movie and a host of new editions of computer  games by for the most long awaited sequel of all:

Cold War II – The Russian Empire Strikes Back.

The Australian today, accurately if somewhat belatedly, warns us that “we could be returning to the Cold War dangers.”  Could be. Except that it’s already happening.

The Cold War of the Fifties and Sixties was less about the US and the USSR building up competing vast stockpiles of nuclear weapons and more about the economic and military cultivation of client states around the world.

In two decades after WW2, developing nations “shopped” for aid, playing the superpowers off against one another; offering allegiance to whichever would provide them with the most money and, more importantly, the most military assistance to to either protect the government from insurgency or to arm the insurgency itself.

Competing with Russian influence in the Third World first saw the US initiate the Marshall Plan which gave 13 billion dollars to rebuild Europe (and to forestall a communist takeover in Greece and other countries), establish the OEEC and, in the Kennedy era, set up USAID. That scheme has continued to spends tens of billions of dollars annually. USAID was partly to relieve poverty and enable economic development in the poorer world, but was also an attempt to stop nations becoming of Soviet client states. Naturally, the USSR not only refused to participate in the Marshall Plan but actively campaigned against US aid schemes - while at the same time running similar schemes of its own.

This process of creating a network of client states saw the US and USSR engage in a number of proxy wars.  The Vietnam war, where North Vietnam and the Viet Cong were funded and armed by Moscow, was just such a war. The US was there in person: the USSR was there by proxy.

With the collapse of the Soviet Union in the late Eighties, that great competition ran out of steam for a while.

Now it’s back with Vladimir Putin determined to rebuild a Russian Empire.

Putin has already annexed Crimea and continues to arm and fund rebel militias in eastern Ukraine, hoping that that country will be split in two and the east returned to the Russian fold. He has also expertly intervened in Syria with the dual purpose of propping up the Assad regime and wiping out ISIS. This is, of course, at odds with the US and other countries’ aim of removing both Assad and ISIS. Putin, with no regard for the West, has commenced bombing the "moderate" rebels in Syria to secure Assad’s position (which is quite shaky) and, having done that, will then work with the Assad regime to attack ISIS. This is a win-win for Russia -  preserving a valued pro-Russian state and reducing the risk from militant Islam which is a much greater for Russia than the West.

It is also a lose-lose for the US and the West in general. Under Putin’s scheme Assad remains in power and he gets the credit for doing what America couldn’t – defeating or curtailing ISIS. Putin becomes the hero of Syria. And being a hero is what Putin is all about.

Now, following the US troop withdrawal, the government of Afghanistan is nervously looking to Russia for possible military assistance against the Taliban. One can only imagine the satisfaction it would give the Russians to take revenge on the Taliban since it was they who drove the Soviets out of Kabul in 1989.  Obama has ordered US troop withdrawals be halted but this may be too little too late.

Maintaining a hold on Syria and re-attaching Afghanistan as a Soviet puppet state could provide Vladimir Putin with a greater Christmas present that he could have ever hoped for.

As Tom Lehrer sang "Who's next?"