Insignificant Blackbird

I picked up a new bit of jargon at the pub trivia quiz last night: Base Rate Fallacy. I was wittering on about statistical significance testing and Rob, one of my team-mates remarked "You know it's all based on a fallacy don't you?" Actually, I didn't. I took a bit of convincing too; it wasn't until about 4 o'clock this morning, when I was thinking it through (as a distraction from the raucous "I suppose a root would be out of the question" noises coming from the blackbird that's adopted the gable above my bedroom window as its favourite perch) that I decided there really was something in Rob's remark and the cryptic notes he made on a piece of scrap paper to illustrate the fallacy.

As I understand it, the argument goes something like this. When scientists (psychometricians, for example) employ null hypothesis testing, or significance testing (or whatever they choose to call it), they're employing the following pattern of logical inference:

If H₁ (the experimental hypothesis) is true then the test statistic will have an improbable value.
The test statistic does not have an improbable value.
Therefore H₁ is improbable. [And we write off the experimental results as random variation]

Apparently, this is called Bayesian Modus Tollens, and there's a bit of controversy within statistical circles over whether or not it's valid. It certainly looks dodgy to me but that may be because of the way I've expressed it, translating Rob's formal notation into something a little short of plain English. What got me convinced that there is a fallacy here (while I was trying to ignore that randy blackbird), was working out the pattern of logical inference that's involved in accepting experimental results as significant (as in worth publishing and maybe throwing your hat into the ring for a Nobel prize while you're at it):

If H₁ (the experimental hypothesis) is true then the test statistic will have an improbable value.
The test statistic does have an improbable value.
Therefore H₁ is probable.

Straight up, this is a fallacy; it's not any sort of logical inference at all. A fact that's easily demonstrated with the help of the classic Socrates example:

If Socrates is a man then Socrates is mortal.
Socrates is mortal.
Therefore Socrates is a man.

There's more on the subject here (extensive bibliography), here and here (PDF - a philosopher sinks the slipper into Michael Behe). Here's a juicy bit from the last, to whet your appetite:

In addition to rejecting evolutionary explanations, Behe advances the positive thesis that the biochemical systems he describes in loving detail were designed by an intelligent agent (p. 204). However, for these details to favor intelligent design over mindless evolution, we must know how probable those details are under each hypothesis. This is the point of the Law of Likelihood. Behe asserts that these details are very improbable according to evolutionary theory, but how probable are they according to the hypothesis of intelligent design? It is here that we encounter a great silence. Behe and other ID theorists spend a great deal of time criticizing evolutionary theory, but they don t take even the first steps towards formulating an alternative theory of their own that confers probabilities on what we observe. If an intelligent designer built the vertebrate eye ,or the bacterial flagellum, or the biochemical cascade that causes blood to clot, what is the probability that these devices would have the features we observe? The answer is simple - we do not know. We lack knowledge of what this putative designer's intentions would be if he set his mind to constructing structures that perform these functions.

The sad fact about ID theory is that there is no such theory. Behe argues that evolutionary theory entails that adaptive complexity is very improbable, Johnson rails against the dogmatism of scientists who rule out a priori the possibility of supernatural explanation, and Dembski tries to construct an epistemology in which it is possible to gain evidence for the hypothesis of design without ever having to know what, if anything, that hypothesis predicts. A lot goes wrong in each of these efforts, but notice what is not even on the list.

As Advertised

Episode Two of The Enchanted Toasting Fork is now available at CattyRox. Episode Three will appear here next week.

Slightly Overdue

Somewhere in the fug of depression that's hung over the recent past, the third bloggiversary of Tug Boat Potemkin slipped by unremarked. Three years of doing this stuff and what do I have to show for it? Apart from a few new friends and acquaintances to alienate, nothing really. Apart from the frustration that goes with picking up a truly inspiring idea and discovering there's actually sod all you can do with it:

The Kembliad

ARGUMENT: Somewhat orotundly, the poet invokes the muse to sing the praises of a famous Australian city. She ignores him.

Sing, O Muse, the splendours of Port Kembla,
Grimy jewel of the Illawarra!

Send in the Florists

The best line from last night's 24:

"When I shot that guy, I thought I was going to go all foetal position but I didn't feel anything. I hope I'm not some kind of psychopath."

[Chloe, sharing a moment of self revelation with Edgar]

With all the bizarre twists each episode serves up, it's impossible to predict where the plot goes from here. However, now that Audrey has declared undying hatred for Jack, I wouldn't be surprised if next week we see Jack trying desperately to get to Marwan before the nukular weapon goes off, with Audrey in hot pursuit, hell bent on revenging her dead ex-husband and a crack Interflora special delivery team in hot pursuit of Audrey, hell bent on giving her the two dozen long-stemmed red roses that Jack has ordered as a peace offering. At gunpoint if necessary.

Local News

Under the screamer "Streets of shame", This Monday's Moreland Leader reports:

Muslim women are being made the target of religious and racial abuse on Moreland Streets.

Graffiti including "Kill Muslims" has been painted across a Coburg building and women wearing headscarfs have been subjected to threats and verbal abuse.

Local Muslims have told the Moreland Leader that over the past month:

• A man in his 30s yelled "F**k off terrorist" and swerved his car at a Muslim woman as she crossed the road with her baby;
• A Muslim woman and her three children had a milkshake thrown at them as they walked along Sydney Rd;
• There were various instances of Muslim girls being spat at or having obscenities screamed at them from passing cars.
  

Inside, on page 4, the paper reports:

Ms Fartun Farah [of the United Somali Women's Organisation] said women were being targeted because they are easily identified as Muslims by their hijab garb, while Muslim men integrated with western dress.

There you go then; problem solved. If these women stopped parading around the streets in archaic garments that mark them out as the oppressed victims of a patriarchal religion, they'd spare themselves a lot of aggravation. If the blokes can learn to fit in, why can't the women? When you look at the broader context, that 30 year old bloke in the car was doing the woman a favour.

Then and Then and Then Some

The Liberal Party is a broad church. You sometimes have to get the builders in to put in the extra pew on both sides of the aisle to make sure that everybody is accommodated. But it is a broad church and we should never as members of the Liberal Party of Australia lose sight of the fact that we are the trustees of two great political traditions. We are, of course, the custodian of the classical liberal tradition within our society, Australian Liberals should revere the contribution of John Stuart Mill to political thought. We are also the custodians of the conservative tradition in our community. And if you look at the history of the Liberal Party it is at its best when it balances and blends those two traditions. Mill and Burke are interwoven into the history and the practice and the experience of our political party.

John Howard, "Address at the Launch of the Publication 'The Conservative'", Parliament House Canberra, 8 September 2005.

No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. This aspect of the question, besides, has been so often and so triumphantly enforced by preceding writers, that it needs not be specially insisted on in this place. Though the law of England, on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of its being actually put in force against political discussion, except during some temporary panic, when fear of insurrection drives ministers and judges from their propriety; and, speaking generally, it is not, in constitutional countries, to be apprehended, that the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public.

John Stuart Mill, On Liberty , 1869.

The true danger is when liberty is nibbled away, for expedients, and by parts.

Edmund Burke, no idea where, no idea when.

The Obligatory Tuesday 24 Post

Last night's comedy highlights:

The American President agonising (after the event) over whether Jack Bauer should be given the go ahead to torture an American citizen. Torturing a foreign national is one thing but an American citizen...

All that agonising over whether the Prez is up to the job, leading to his realisation, halfway through the episode that he isn't up to the job of Fuhrer of the Free World. But he's stuck with it, because three presidents in as many hours would be too much for public confidence to take.

Chloe, CTU's most brilliant analyst (the one with all the tact and charm of a roadkill porcupine) blows away a terrorist with an assault rifle.

Did I miss any?

Meanwhile, in the real world, the US Senate recently voted 99-9 "to force the Pentagon to set strict standards for the interrogation of prisoners and to prohibit their 'cruel, inhumane or degrading' treatment". They'll be sorry one day when a terrorist mastermind hacks into every nuclear reactor in the US, causing at least one major meltdown and follows that up by stealing a "nukular" weapon to blow up Iowa. Iowa?

The Enchanted Toasting Fork

Once upon a time, in a land far enough from our own, rather ordinary, land to satisfy the demands of narrative convention, two people fell in love. Whether they were of royal descent I do not know; all I can be sure of is that neither was a practising royal which was just as well for them because they were both divorcees. Remarriage is a complicated enough business for commoners, what with the blending of families and child custody visits. Imagine what it would be like if, on top of that, you ended up with two unfortunate enchanted princesses in your family, each needing a kiss from her very own handsome prince to lift the enchantment. It often happened, in such families, that one day, while one of the princesses was off on a visit with the non-custodial parent, a handsome prince would happen along, set on the usual business of finding a princess with whom he could fall in love and marry. And, since handsome princes aren't too particular when it comes to falling in love with enchanted princesses, so long as they can get the whole absurd business of lifting the enchantment over with as quickly as possible, the absent princess would often return to discover that her step-sister was already married off. Naturally she would then turn to wickedness and start looking for ways to get back at her step-sister and, most likely, settle on the traditional resort of placing an enchantment on her first step-niece at her christening.

As commoners, Claudio the Counting House Clerk and his bride-to-be, Cossima, were spared these complications; all they had to contend with in arranging their new marriage was the ordinary problems of commoners who remarry, such as somehow finding room in their humble cottage for all the children, maintaining friendly relations with Claudio's bride-that-was and Cossima's groom-that-was, and so on. While not as rich as royalty, they did well enough; Claudio's job, stacking the coins in the king's counting house into neat piles of tens, hundreds and thousands so that the king could count his money without straining his limited mathematical knowledge., paid well enough to support them both. They had every reason to expect that their future together would be a happy one and very few, most of which they understandably overlooked, for believing things might turn out otherwise. So, after a decorous interval of being in love (sometimes, alas, a little indecorously), they set a date to be married and sent out invitations to the wedding.

When royalty send out invitations to important social events – especially christenings of princes – they're very careful to invite everyone who might feel slighted at not receiving an invitation and so royal weddings and christenings are often very dreary, stilted affairs with a large crowd of wicked witches and step-sisters, ill-tempered fairies and the like, looking for an excuse to get offended and lay a curse on the hapless infanta. Generally, commoners have a much easier time of it; they invite as many of their friends as they can afford to and hope that no-one gets too drunk at the reception. This is how Claudio and Cossima went about arranging their own wedding.

Among their friends they had two named Petro, one of whom who considered himself a wizard. He wasn't really much of a wizard; although he had been trained in wizardry in his youth and granted a license to practice wizardry he had never held down a wizarding job. He had never got the least trace of toad bile or salamander phlegm or any of the other arcane materials that wizards use to effect their enchantments under his fingernails. Not once. For a year or so after he graduated from the wizard's academy, he had tried to get a wizard's job, sending off numerous letters of application to various royal courts where he thought there might be a wicked step-sister or step-mother somewhere in the family tree. Most royal families keep a wizard or two around the palace. Officially they're there to protect the family from various forms of vile enchantment, of course, but in practice the world of wizardry is a little murkier and the practice of it isn't quite even up to peccable standards they teach in Wizarding Ethics 101 or the much more peccable standards taught in Wizarding Ethics 103, the short course for students who don't intend to major in ethics.

When Petro the wizard manque discovered that, although invited to the wedding, he was not getting one of those invitations for “So-and-so and a friend”, he became a little peeved. He was himself divorced, like Claudio and Cossima, and after a fashion in love. Or at least he thought himself in love, which often amounts to much the same thing for a lot of people. One day, while reading Wizarding Today or The New Wizard he had found an article reporting on recent research at the cutting edge of modern wizardry which showed that a wedding reception was possibly the best occasion for an amorous swain to press his suit. He had been looking forward, with some eagerness, to the opportunity to put in a couple of hours of emotional ironing. He was very cross when he learnt that this wasn't going to happen.

So, for the first time since he had left the wizard's academy all those years ago he turned his hands to a little practical wizardry. It wasn't strictly in accord with the standards he had learn in Wizarding Ethics 103; the only thing he chose to remember from this part of his education in wizardry was the tenet that wizards must practice their craft without fear or favour, and so he put out of his mind petty quibbles about the obligations of friendship. This is the way people think when their minds turn to wickedness.

With the help of his old text books, like Badman and Fisher's The Material Basis of Malediction (Third Edition), Podgorbley's Handbook of Wizardry Practice and so on, he selected a range of appropriately vile materials. His next step was to obtain a toasting fork – a traditional wedding gift in that part of the world, although one generally considered more appropriate for newly-weds. Divorcees remarrying could generally be relied upon to have a goodly stock of toasting forks from their first weddings. That he should overlook this shows how little he knew of life and other people; although he believed that he knew the ways of the world pretty well the main thing that set Petro apart from other people was that he was differently delusional.

Once he had his toasting fork, he set about collecting the unpleasant body fluids of various amphibians, reptiles and rodents he would require for the spell and a few herbs and roots, such as wormwood and asafoetida, brimstone. A few nights before the wedding he was ready to cast the spell. He mixed the asafoetida, wormwood and brimstone with ground charcoal and placed them in a brazier. Once the brazier was lit he hung the toasting fork over the brazier and drop by drop, dribble by dribble, poured the mix of vile essences over the toasting fork as he recited his spell:


In sunny day or darkest night,
Await the touch of firelight,
Draw the warmth from heart to hand,
Down thy shaft and then do send
It into whatever on thy prongs be spiked ...

He wasn't much of a poet either but the general intention of the spell was fairly clear; each time the toasting fork was used, it would draw a little of the loving warmth of whoever held it and put it somewhere else: in whatever happened to be stuck on the fork at the time. Over time, the hearts of Claudio and Cossima and their mixed families would grow cold towards each other. Or so he expected.

Once the spell was cast, he opened the windows of his work room and went outside into the fresh air, coughing and sneezing. It was then that he remembered his Wizardry Practice instructor's advice to always have a decoction of horehound handy when casting any vile enchantment. Once he was recovered, he returned to the work room and put the toasting fork in a cardboard box, covered with in paper printed with a pattern of rosebuds and wrapped it in brass paper. To finish, he wrapped a chrome ribbon around the middle of the package and, under that, he tucked a card on which he had written “To Claudio and Cossima on their wedding day, with fond wishes for their future together, Petro.” And so, it was done.

[This story will continue at CattyRox next week. Then back here. And so on.]

More Bad Characters

What do David Djalic, Gavin George and Stefan Nystrom all have in common? Each of them has failed the character test specified in Section 501 of the Migration Act, that's what. Officially, they're none of them the sort of people we want in Australia. So what if they arrived here as minors? They went to the bad as adults and, according to DIMIA, Phil Ruddock (in the cases of Djalic and George) and Amanda Vanstone (in the Nystrom case) that ought to be good enough reason to want shot of them. Naturally, Djalic, George and Nystrom disagreed, hence the various Federal Court judgements linked to above.

Alright, so I haven't exactly researched this topic in depth yet; all I've done is crank up a quick Austlii search for cases involving s501 of the Migration Act and gone through the judgements looking for commonalities with the Nystrom case. All I can say at this stage is that the cases of Djalic and George were a little too easy to find.

To finish, here's a curious case involving the question of whether the Minister for Deportation of Undesirables has the power to revoke a visa cancellation under s501:

2 The only question argued on appeal was whether or not the appellant (the "Minister") had power to revoke the decision to cancel the respondent’s visa pursuant to s 501(2) Migration Act 1958 (Cth) (the "Act"). There is no express power so to do. Therefore the only source of such power can be s 33(1) of the Acts Interpretation Act 1901 (Cth) (the "AIA"). The pervasive effect of that provision upon the legislative grant of administrative powers should not be underestimated ...

7 ... The existence of an unlimited power to revisit a decision to cancel a visa would not sit comfortably with the stringent provisions regulating the grant of visas imposed by Division 3 of Part II. After all, the effect of such a decision may be, in effect, to grant a new visa. Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so.
[Dowsett J]

By far the larger number of persons of German descent living in Australia were loyal to the flag under which they lived, and where this was clearly the case, the disposition of the military authorities and their useful police allies was not to molest them. Immediately after the outbreak of war there was a rush of applications for naturalisation, which was granted generally without any searching inquiry into the bona fides and loyalty of the applicant and without the military authorities being consulted. Later in the war careful enquiries were made as to all persons likely to be disaffected, and all persons born in enemy countries were required to report themselves and be registered. It may confidently be said that no persons of this class who acted and spoke with discretion suffered annoyance by official direction, however much they may have been vexed by their neighbours or eyed askance by former friends. But some Germans were boastful and aggressive. They loudly proclaimed that victory for the Central Powers was inevitable, and made no secret of their disposition. In Sydney, for instance, it was reported that many members of German firms, wool-buyers, island traders, and shippers. showed that they could not be trusted. The military authorities were not inclined to take any risks with such persons. Again, in Melbourne, after the German Club in Alfred Place, Collins-street, was closed, some of its former members who had been in the habit of meeting there nightly to gossip over beer and tobacco, continued their convivial fraternising at a cafe kept by one of their compatriots. They were to be seen emerging therefrom in the early hours of the morning. Perhaps they had not been plotting treason, or even discussing politics ; they were capable of wrangling about the categorical imperative of Kant, or the construction of a Beethoven symphony. Some of them were well known to the Melbourne public; one was a musician of some distinction, whose friends warned him that he was running grave risks. But the advice was unheeded. The police became suspicious about this knot of enemy subjects who were to be seen emerging by a side door on dark nights. The result was that the entire group was suddenly consigned to a concentration camp [sic] to meditate upon its folly.

From The Official History of Australia in the War of 1914-1918, Chapter IV "The Enemy Within the Gates" (Ernest Scott, 1941).

True Blue Cultural Revolution

I've just downloaded my very own copy of the draft Anti-Terrorism Bill 2005 from the website of Jon Stanhope, the ACT's Chief Minister. I gather from Nine MSN that Phil Ruddock is pissed off mightily that Stanhope has leaked the bill. Here's a particularly choice section of the Bill, dealing with control orders:

104.4 Terms of control order

(1) If the issuing Court makes the control order, the order must:

(a) state that the Court is satisfied of the matters mentioned in paragraphs 104.3(b) and (c); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the 22 person by the order; and
(d) specify the period during which the order is to be in force, which must not end more than 12 months after the day on which the order is made; and
(e) state that the order does not begin to be in force until it is served personally on the person; and
(f) state that the person s lawyer may attend a specified place in order to obtain a copy of the order.

Note: An order in relation to a 16- to 18-year-old must not end more than 3 months after the day on which the order is made: see section ^104.14. 32

(2) Paragraph (1)(d) does not prevent the making of successive orders in relation to the same person. [my emphasis]

(3) The obligations, prohibitions and restrictions that the Court may impose on the person by the control order are the following:

(a) a prohibition or restriction on the person being at specified areas or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between specified times each day, or on specified days;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or associating with specified individuals;
(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet);
(g) a prohibition or restriction on the person possessing or using specified articles or substances;
(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at specified times and places;
(j) a requirement that the person allow himself or herself to be photographed;
(k) a requirement that the person allow his or her fingerprints to be taken;
(l) if the person consents a requirement that the person participate in specified counselling or education. [my emphasis]

According to reasonable, mainstream opinion - that is the editorial and opinion pages of the Murdoch dailies - it's entirely inappropriate and a little odious to compare this legislation to the apartheid regime in South Africa worse yet to invoke the historical spectre of Nazi Germany. Comparisons with Stalinist Russia are likewise right out. Which leaves me a little stumped when it comes to describing a piece of proposed legislation which allows the courts to impose rolling periods of more or less complete house arrest. I suppose, in the current climate, civil libertarians should just be grateful that at least the re-education will be voluntary.

Wrong Again (So What Else Is New?)

I checked out Channel 10's new drama series The Surgeon last night. What a disappointment. Thanks to the Channel 10 promo department, I was expecting a quality Australian drama along the lines of The Young Doctors or The Flying Doctors (which, I am reliably informed, once featured a scene where brain surgery was performed with dental instruments). Nothing like it.

The Surgeon turned out to be a tightly scripted and well acted. I didn't get a single laugh out of it. Bugger.

Cue Applause: The Sound of One Hand Clapping

James McConvill, whose blog often calls to mind Sylvester Stallone striding around in blue lycra tights over a large swimmer's cup bellowing "I am the law", has decided to take it up to the "latte lefts" on the subject of legally sanctioned torture. It seems that, as far as the leading lights of the Deakin University Law School are concerned, this is an argument we more or less have to have, preferably on terms which they find personally congenial, even favourable to their side of the argument. Today's Lawyers Weekly carries an opinion piece by Mirko Bagaric on the conduct of the debate over the place of torture in the defence of democracy:

Mirko Bagaric has not bothered responding to community outrage following the publication of his views on torture – it is to be expected that lay people may come out strongly against them. However, he says, he expected more from lawyers

It is fair to say that my article in The Age on torture on the 17 May, 2005 has caused a storm. It is to be expected that lay people may come out strongly against my views, given the manner in which they were portrayed. More, however, could have been expected of lawyers. From lawyers, the minimum that could be expected is a rational assessment of how the proposal would affect the existing operation of the law and an awareness of the social importance of robust and open debate on matters of potential social relevance.

It's easy to understand why Bagaric is so upset at the rough handling he received; after all, he was paddling around in the centre of the teacup when the storm broke. I suppose, as a member of the hoi-polloi, I should applaud Bagaric's generosity of spirit when it comes to his "lay" detractors; we got it wrong because we was misled about what he was really saying in passages such as this:

The belief that torture is always wrong is, however, misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. It is this type of absolutist and short-sighted rhetoric that lies at the core of many distorted moral judgements that we as a community continue to make, resulting in an enormous amount of injustice and suffering in our society and far beyond our borders.

Sorry, and I know that this criticism can hardly be considered informed, with me not being a lawyer and all, but this excerpt from Bagaric's Age article strikes me as a bit woolly and muddled. Generally, it comes across as saying that torture is sometimes OK, and we'd all be a lot better off if we recognised this. A point reaffirmed in answer to possible arguments against Bagaric's modest proposal:

The second main argument is that torture will dehumanise society. This is no more true in relation to torture than it is with self-defence, and in fact the contrary is true. A society that elects to favour the interests of wrongdoers over those of the innocent, when a choice must be made between the two, is in need of serious ethical rewiring.

This alleged need for an "ethical rewiring" of society is reaffirmed in Lawyers Weekly:

The moral code propounded by my critics belongs in the domain of fairy tales, where important rights never clash. Sorry to break into the tranquility of their day, but sometimes rights do clash. When they do, the least horrible thing to do is that which causes the least amount of harm. And that is exactly what we do. Now, what we actually do, does not justify what ought to be done. Still, the above account is telling because the force of the anti torture objection lies in the fact that it supposedly so troubles our moral consciousness that there must be a mistake somewhere in the theory which accepts limited torture. But this claim loses its force when it is shown that torturing in extreme circumstances is in fact no worse than other activities that we condone.

Maybe my resistance to Bagaric's ideas is the result of "the manner in which they were portrayed" but a lot of that portrayal has been provided by Bagaric himself. In both the original Age article and his Lawyers Weekly article he argues that torture is sometimes justified yet, somewhat preciously, he doesn't like being seen as an advocate of the use of torture. Well, you don't need to be an all froth and no bubble "latte left" to know that you can't have your apple tea-cake and eat it.

Another Crap TV Post

24 was a bit of a disappointment last night; it was nowhere near as funny as last week's episode but it had its moments.

Right now, I'm tempted to check out the program's web-site to see how the rest is going to turn out. It would be a pleasing twist if, by the last episode, the terrorist mastermind Marwan has an epiphany and realises that he was being used as a cat's paw by a shadowy cabal of US Military Industrial Complex types who are staging the entire terrorist incident to give themselves the pretext they need to usher in a totalitarian police state. This would lead to an interesting showdown; on one side, Marwan who has rediscovered his essential humanity, determined to redeem himself by preventing the nuclear attack that, up till now, he has worked so hard to bring about and on the other, Jack Bauer, willing to sacrifice his life to further the noble cause of torture in defence of democracy.

I don't see it turning out that way for some reason.

Then/Now

... I as you know in other contexts, I'm a Burkean conservative and I don't believe in abandoning something that continues to work unless I'm convinced that it's no longer of value.

John Howard, National Press Club Address September 11, 2002

I think you just should allow a thousand arrangements to bloom, if I can vary a famous remark, in order to get the best outcomes for the economy.

John Howard on Industrial Relations Reform, quoted in The Age

Young and Free? Maybe Not

Here's a letter I noticed in Saturday's Age:

Overdone
I work for the Immigration Department, and I must admit that I felt pretty embarrassed after reading your front page ( The Age, 7/10). No, not because of my employment — it was the thought that I had paid good money to read this hysterical trash that made me feel a bit ashamed.

What topic prompted not just the use of almost the entire front page, but even red ink in the headlines (something I have never before seen)? Surely it was something more serious than the recent mass murder in Bali or the many immensely important issues that face us. Well, actually, it was about the handling of a single case by a large government department.

Certainly the case was wrongly handled. However, the result was not that anybody died or was even injured, but an unfortunate woman in need of help ended up in a place where she received compassion and care in peaceful surrounds.

Having gone almost off the scale in its treatment of such a story, what will The Age do when something really big needs to be reported?
Michael Saville, Ashburton

That third paragraph neatly encapsulates most of the argument that's been advanced in defence of DIMIA's bungling of the Rau and Solon cases; it's a big department so mistakes sometimes happen but, crikey, it could have been a lot worse and (the part I really like) the end result was that Vivian Solon ended up in a fairly good place so what's all the damn fuss about?

Right now I'm tempted by the idea of going out one night and cruising some of Melbourne's darker laneways until I happen upon some hapless stranger whose living daylights I shall extract by the usual means; a damn good kicking. I know it sounds reprehensible, but you have to consider the bigger picture here. I'm not actually proposing to kill anyone and, if things go as they should, the victim can expect to receive care and compassion in peaceful surroundings. My one concern is that I'm no longer as spry and fleet of foot as I was in my youth, so the getaway could be a little touch and go. But that's all; there don't seem to be any serious ethical concerns in the way.

I think I'd better make it quite clear that I'm not reccommending this approach to anger management to anyone else, particularly Melburnians. The last thing I want is to cop a kicking some evening when I'm out on the town looking for a kickee of my own. It's also a bad idea to go about inflicting a bit of GBH on complete strangers if you were born in foreign parts and aren't yet fully de-wogged. You might find yourself facing deportation under section 501 of the Migration Act. Like Stefan Nystrom.

Nystrom's parents migrated to Australia from Sweden in 1966. In 1973, his mother went back to Sweden for a holiday; Stefan Nystrom was born there on December 31, 1973. She returned to Australia, with young Stefan in tow, on January 27, 1974. Stefan hasn't been out of the country since.

On 12 August, 2004 the Minister for Minister for Immigration and Multicultural and Indigenous Affairs (Amanda Vanstone), cancelled (or purported to cancel, in the words of Justices Moore and Gyles of the Federal Court) Nystrom's visa, using the discretionary powers conferred on her by section 501 of the Migration Act:

The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

Stefan Nystrom had buckley's of passing the character test; as this report from The Age of October 6, 2004 mentions, he's served time for aggravated rape and armed burglary. Definitely not the sort of person we want in Australia. Nonetheless, Nystrom wants to stay here and on July 1, 2005 the Federal Court heard his appeal against the Minister's decision to give him the boot. He won by a 2-1 majority decision.

On the subject of Nystrom's criminal record, Justices Moore and Gyles say this in their majority decision:

29 ... The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere.

They go on to give Amanda a bit of a serve (but a dignified, judicial one, of course):

30 The third issue requiring reconsideration is the increasing tendency to utilise direct ministerial decision making. There will, no doubt, always be cases of particular political sensitivity which may require ministerial consideration. That cannot be true of the ordinary case of criminal conduct such as this.

Justice Emmett dissenting, upheld the Minister's decision, but wasn't exactly overjoyed about it:

49 I have had the advantage of reading the reasons of Moore and Gyles JJ for concluding that the appeal should be upheld. While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language will be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents. The material before the Court indicates that the appellant is a thoroughly unpleasant man having been convicted of serious and odious crimes. However, that is irrelevant to the question that has been raised concerning the validity of the Minister’s decision. [my emphasis]

Nystrom isn't the first person to face deportation under section 501 of the Migration Act. On October 11, 2004, The Age reported on the case of George Andary:

a 41-year-old former prison inmate who failed to take out Australian citizenship after his family migrated from Lebanon when he was four.

Chapter 11 of DIMIA's report Managing the Border: Immigration Compliance (June 2005) states:

In 2003-04, decisions under sections 200 and 201 of the Migration Act resulted in two criminals being deported. There were 60 removals of non-citizen criminals whose visas were cancelled under section 501.

Section 200 is merely the introduction to Division 9 of the Act; all it has to say is:

The Minister may order the deportation of a non-citizen to whom this Division applies.

Section 201 allows for the deportation of criminals who are not Australian citizens and who have lived here for less than ten years. But on the 2003-04 figures, a lot more people were removed from the country under the "character test" provisions of Section 501. When the decision is taken by the minister personally, Section 501 has this to say:

Decision of Minister—natural justice does not apply

As for Stefan Nystrom, his Federal Court win doesn't necessarily end the matter. The Age notes:

Senator Vanstone has lodged an application seeking leave to appeal against the decision in the High Court. She refused to comment while the case was before the court.

Upside the Head

... The "errors" that Bolt supposedly discovers in my work, extracted in The Age, are in fact howlers on his part. Indeed, so egregious are some that it's hard to believe that Bolt has not set out to mislead his readers. Let's look at five of the biggest whoppers.

1 Bolt says that I claim that climate has been stable for the past 10,000 years. This is not so. In my book I reprint the graph that documents northern hemisphere climate variability over the past 1000 years, and enter into an extended discussion of well-known variations such as the Medieval Warm Period. Either Bolt has not read the book he is critiquing, or he is lying through his teeth. The point I do make, however, is that variability in average global temperature over the past 10,000 years has been small when compared with earlier periods. This is indisputable

2 Bolt accuses me of saying that Katrina was the most powerful hurricane on record. Katrina is not mentioned in my book, which went to press before Katrina and Rita devastated the Gulf Coast ...

Tim Flannery on Andrew Bolt in today's Age

TV Matters - Or Does It?

I've just looked over the Age Green Guide to get an idea of what kind of crap I'll be watching on television over the next week. There's a longish preview of next Monday's episode of 24 which gives the show a pretty thorough slagging off. I'm not sure that's entirely justified but I'll reserve judgement until I've seen it for myself.

Here at the Pascoe Vale Dacha, we've taken to recording 24 while we watch something marginally more intelligent and then replaying the video with a lot of fast-forwarding through all the soap opera stuff, like Jack Bauer's intense D & Ms with his girlfriend Audrey. This helps to bring out the underlying hilarity of the show, and the sly tongue-in-cheek in-jokes that the script writers seem to be slipping in. I could be wrong about the in-jokes; my belief that some of the scriptwriters on 24 must be taking the piss might just be an instance of the lefty preference for conspiracy theories over much simpler cock-up theories.

In last Monday's episode, Air Force was shot down by a rogue fighter pilot in a stolen stealth fighter. The good folk at CTU took a little time out from fretting over their completely bollixed personal lives to start fretting over the location of the "nuclear football"; a nickname for a briefcase holding everything you need to launch the US' nuclear arsenal. Jack was sent off to recover it from the wreck of Air Force One. What followed was some of the best inadvertent comedy I've seen on television this year. For starters, there was that scene of Jack walking through the wreckage of Air Force One, calling CTU to announce: "This is Jack Bauer. I'm at the crash site. I do not have possession of the football, I repeat, I do not have possession of the football."

This was followed by a sequence which showed us where the football was; a couple of newly woods who had gone out in the wilderness to camp and "make a baby" discovered the football in some wreckage from Air Force One near their camp site. You have to admire the ordinary American s they show on 24: when these people discovered the wreckage, they immediately focussed on the big issue, the threat to national security. There was none of that self-indulgent oh my God, big plane fell out of the sky and nearly killed us I am so freaked out by this crap. There's a marked contrast with the staff at the CTU, who seem to put a lot more effort into ensuring that the demands of protecting national security don't get in the way of talking out their personal crises. It's fortunate for America that some of the characters in the show have got their priorities straight.

Naturally the terrorists are also after possession of the football; so we got a sequence showing the terrorists coming to get it in their four-wheel drives while the husband frantically tried to find the radio transponder the terrorists were tracking with a compass, before disabling it with either "a knife or a sharp rock". This bit nearly had Zeppo Bakunin and me in stitches as the husband bravely held back his natural impulse to just get the hell out of there and did his bit for his country, like any good average American would. And there was plenty more "football" dialogue, of course.

It all culminated with the terrorists gaining possession of the football, I repeat, the terrorists gained possession of the football. The show ended, more or less, with Jack finally in possession of the football and telling CTU that the football had been compromised. Next Monday, the terrorists are off to steal a nuclear weapon, which they intend to arm, using the activation codes they took from the compromised nuclear football. According to the GG this takes us into some pretty vile territory so it may prove a lot less comic.

One new show to watch out for, assuming that it does appear, is Channel 10's new Aussie drama The Surgeon. I caught a promo for it last night: it featured this dramatic piece of dialogue: "You're trying to save his leg. I'm trying to save his life." Promising. Very promising.

By Request

I spent a quiet Friday afternoon in the Federal Magistrate's Court a few weeks ago, taking care of a long overdue bit of personal business. It wasn't a particularly good day. I'm not sure which idea is sillier; going off the the Federal Magistrate's Court to cut the knot the day after a more or less sleepless night or staying up most of the night before you're set to go off to cut the knot thinking "Seeing as I can't sleep, I might as well get that new computer set up." But that was the day we'd finally agreed, after several weeks, months and a couple of years all up of calling each other up occasionally for a little chat about how we really should get the forms filled out and lodged and get the whole thing done with. What finally put an end to the procrastination was the realisation that if we put it off much longer, we'd have to apply for the divorce under Phil Ruddock's ridiculous new "keep 'em together at all costs" regime. Time to get it over with, before it was impossible for us to get unhitched before we'd satisfied a mediator or counsellor that there really was no way in hell that we were ever going to get back together.

Late Friday morning I went round to the ex's place by tram and shank's pony. Once there I got the welcome I'd been expecting; the cats ignored me, the dog sniffed my crotch, the ex asked if I'd mind making the tea. And coffee for me of course. Then we printed up all the required forms (downloaded off the Family Court web-site), signed and dated them, drank the tea (and the coffee for me) and took off to the station. We caught the train to Flagstaff station together, separated when we came off the escalator into the concourse so that I could slip into the gents. I came out of the gents and the ex was nowhere in sight. I decided she must have gone up to the street, so I followed her but I couldn't see her on the street either, nor around the entrance to the Federal Magistrate's Court building, which is right on the Flagstaff Station concourse. I looked across at the tram stop and thought I could be home again in forty minutes. It doesn't need both of us here to lodge the forms. I've half a mind to just bugger off, because I'm not really in the mood for this.

Instead, I went back down the escalator to the concourse and there she was at the bottom. She'd had a few needs of her own to take care of while I'd been slipping into the lavatory. Reunited, we went back up the escalator and across the concourse to the Federal Magistrate's Court. We had to go through a metal detector to get inside.

I did a thorough job of getting all the metallic stuff out of my pockets - keys, coins, cigarette lighter, Swiss Army knife, cigarette pack with foil liner, that blister pack with two sudafeds I'd forgotten about, an old pack of stale chewing gum, a three and a half inch floppy disc and several pieces of scrunched up aluminium foil of doubtful provenance - and walked through the metal detector. Which went off, of course. I'd forgotten about my belt and the steel toe caps on my working-class-origin boots. So the security guard waved a hand held metal detector over me and, once he was satisfied that I was no more dangerous than anybody else who might wander into the building in steel tipped boots, he let us go on in.

We went to the registrar's desk with our forms all filled in and told him that we were after filing for divorce. And did they have someone who could notarise the forms in the proper manner. No they didn't; their Justice of the Peace had gone home for the day. But we could get them witnessed in the proper fashion at the Justice of the Peace down the road a little (past the Mint) in Lonsdale Street or we could take our chances with the Clerks at the Melbourne Magistrate's Court. But if we went down to the Melbourne Magistrate's Court, it would be politic not to mention that we wanted them to notarise the forms for a Federal Magistrate's Court proceeding because they'd get all huffy and tell us to go away and we'd have to go the other JP anyway. What all this legalese really meant was, the guy who's supposed to be here to notarise your forms took off home early to beat the traffic and if you go to the State Magistrate's Court and tell them I sent you, my boss will get a huffy e-mail from their boss and I'll be in shit for it."

So, out we went to the street, and once again I was thinking about escape - once we've got the forms witnessed in the proper fashion, I'll make some excuse to go home. Tell her I'm coming down with leprosy. My foot went to sleep on the train this morning - that could easily be a first sign of leprosy. Once again, there was a metal detector to get through before we could go into the court building, more pocket emptying (although this time without the scrunched up bits of foil, which I'd binned) and we went upstairs to see the Clerk of Courts. Who would be quite happy to do the business with the forms but we should be aware of a recent change in the Commonwealth Evidence Act which meant that Clerks of the State Magistrate's Court might not be considered fit and proper persons to take our sworn declarations that we were telling the truth on the forms and we might blow the divorce on a legal technicality. I'm not sure what the meaning of this little piece of legalese was.

We got him to take the declarations anyway; it took a little persuasion from the ex, who knows a thing or two about clerking in the courts because she did it herself for a couple of years. The office Bible was taken off the shelf and we both solemnly and sincerely affirmed and attested that we hadn't told any porkies in our divorce application. Which we then took back up to the Federal Magistrate's Court - It's definitely leprosy, it feels like my little finger is going to drop off any minute now - back through the metal detector and downstairs to the registrar's desk. Once there, we took a numbered ticket from the machine on the wall and sat down to wait. For entertainment there was one out of date copy of the Australian Women's Weekly and a television set, tuned to Channel Seven. They were showing a repeat of Home Improvement.

My mood wasn't improving any. I read the Women's Weekly until I was bored by it - which happened about half way through the article on Philippe Starck, I think - then watched Tim, the Toolman, Taylor having his weekly chat with Wilson across the back fence. To relieve the monotony, I decided to slip in one last blaze of silent, smouldering rage at the bitch hag from hell who'd ruined my life but, on further reflection, decided that this was not a good idea. Finally our number was called, and we sat down with the registrar who would finally put our details into the computer system and give us a hearing date.

He was a cheery, friendly sod. "What can we do for you today?" he asked blithely.

"We've come to get a divorce." answered the ex.

"And you've come in to do it together. How sweet!" he frothed. Any minute he was going to start reading off the chef de magistrate's specials for the day.

"Well, we were both there at the wedding, we decided we should both be in at the end," the ex responded, totally unaware that I had a neuropathic disease creeping upwards from my foot towards my most precious parts - they have a certain sentimental value if nothing else. I also had a bit of a rage hangover which I was artfully concealing beneath an air of studied indifference.

The clerk tapped on his computer keyboard, explaining as he did that he was listing our divorce for hearing in a few weeks. Whether we turned up for it or not was up to us. He announced the date and was nonplussed when we exchanged a look and both laughed. He asked us what was funny, remarking that he hadn't seen too many people laughing about their divorce proceedings.

"Look at the date on the marriage certificate," hinted the ex.

"Oh. It's your anniversary. To the day. Which anniversary would that be?"

"Full metal jacket." I answered, reviving an old joke that had seen us celebrate a blu-tack anniversary, a gaffer tape anniversary and, one particularly prolix year, a two-pack epoxy resin anniversary. "Definitely full metal jacket."

We carried on making up anniversaries - high density polyethylene and styrofoam were both mentioned - until the forms were all stamped and signed and our copies handed back to us, three people briefly brought together by having a funny story to tell. Then the ex and I left. She headed off to East Melbourne and I caught the train home. We spoke over the telephone on the date of the hearing and she asked if I was actually going to blog it, as we'd discussed outside the court while parting. You really should she said. She said so again, when I called to tell her my Certificate of Divorce had arrived in the mail, on schedule. We talked again today, after she'd seen the first draft, and she offered a few suggestions for improvements, including the best one-liner in the entire piece. Bloody typical.

Offer

Do you want a million dollars?

Who wouldn't?

Seriously.

Seriously?

Seriously. I can put a million dollars your way, if you're interested.

What's the catch?

There's a little risk involved, obviously.

Oh, obviously.

Yes, someone might lose their home.

Oh, so as long as I'll take a chance on losing my home, I'll get a million dollars.

No, not your home. This bloke's.

Crap photo. Who is it?

Nobody you know, obviously. Lives in Fremantle. Anyway, that's the deal - you get a million dollars, but he might lose his house.

Oh. So what's this bloke like?

Most people reckon he's a bit of a turd.

Oh, OK.

He's got a family, of course - wife and a couple of kids.

What are they like?

Crazy. Totally dysfunctional the lot of them.

I see.

It's pretty long odds they'll lose the house anyway; say about a hundred to one.

Ah-hah.

...

So what do I do, exactly, to get this million dollars?

Philosopher Cornered

... Protect your idealism, to nurture it all the time, to constantly believe you can make difference because there are people in this country who live lives of quiet desperation and existential despair, who are relying on idealists who hopefully have that idealism coupled to the capacity to make a practical difference.

Education Minister Brendan Nelson, interviewed on Lateline.

True Blue Thought Police

A futuristic, forensic technique that scans people's brains for clues to crimes will be considered at the next Victorian Liberal state conference.

The controversial technique, known as brain fingerprinting, claims to pinpoint a criminal's guilty thoughts and has already been used in some US criminal cases.

A suburban Melbourne Liberal branch is to put a motion before next week's state council calling for the introduction of the radical technique if the party wins government in Victoria.

Critics of the method have slammed it as Orwellian and say it threatens freedom of thought.

But its advocates say it is more effective than DNA testing and can even be used to stop crimes before they occur by identifying potential terrorists.

The Keilor branch of the state Liberal Party says the method has been tested by the FBI and is "producing results of 100 per cent accuracy".

"Brain fingerprinting is a scientific technique that simply detects the presence or absence of information stored in the brain," says the motion revealed in conference papers.

"The technique allows scientists to determine a suspect's innocence or guilt by testing responses on concealed information contained in thought processes."

...

Supporters of the technique say it heralds a new era in security and should be used to expose the guilty knowledge carried by would-be terrorists.

The October 8-9 conference will also consider a motion to decree in legislation that "common Australian values" prevail over "so-called religious freedom".

The motion, from the suburban Park Orchards branch of the party, warns that religious freedom must not become a cover "to promote, protect or encourage terrorism or to comfort, support, educate and/or train terrorists or similar by whatever name known or excuse offered".

Multi-culturalism has been good for Australia and the nation has benefited from "its new immigrants", the branch's motion says.

"However matters beyond the acceptance of the general Australian population are now emerging as protected by current religious freedom, tolerance and privacy laws."

... From today's Age.

Sod This for a Game of Soldiers

Squaaad by numbaaahs - wait for it, Trotsky, wait for it - blog!

Search-two-three, cut-two-three, paste-two-three, Post!

Where do you think you're going Trotsky, get back here or I'll have you on report!

The Extended O'Loughlin J

393 ... Mrs Cubillo said that she had no recollection of her biological mother, Maudie. Throughout her evidence in chief, the case for Mrs Cubillo was that Maudie died when she was very young - so long ago that Mrs Cubillo had no memory of her. Mrs Cubillo referred to Maisie Nampijimpa, her maternal aunt, as her mother. She grew up believing that Maisie was her mother. She believed that Maisie, was "highly respected and loved amongst my people". She said that she had happy memories of her childhood and her family; she loved them and, in turn, felt their love. Mrs Cubillo said that she was told that her father was a white man, Horace Nelson, and that he was a soldier. But, as she said, she did not then know what a soldier was; she never knew her father.

394 She claimed in her evidence in chief that she had memories of her childhood at Banka Banka. She told of a house with a red roof, a lemon tree in the garden and the rails around the cattle yards where she used to sit and watch the men working the cattle. She claimed that she could remember digging for yams and collecting bush berries with her grandmother, who also showed her how to dig in a soak for water.

395 Maisie was not accepted, as a matter of law, by the Commonwealth as being Lorna's adoptive mother. Whilst that may be true as a matter of law, I do not think that it is necessary to investigate that particular issue in depth. It is sufficient to accept, as I do, that, as a matter of fact, Lorna's mother was dead, her father had deserted her and Maisie, her maternal aunt, had a very close relationship with her - sufficient for Lorna to grow up thinking that Maisie was her mother. It is an agreed fact that Maisie died in the Tennant Creek Hospital on 7 January 1979, but there is no record of Maudie's death. Mrs Cubillo also remembered her grandmother, Alice, and her many maternal aunts and uncles. She said that all the members of her family worked at Banka Banka - the men with the cattle and the women in the garden. Her grandmother cared for her while Maisie worked in the garden. It was her grandmother who told her that her tribal name was Napanangka.

511 The conclusion that I have reached is that Lorna Nelson Napanangka was removed from the Phillip Creek Native Settlement and was taken to the Retta Dixon Home as part of a joint exercise that involved both the Aborigines Inland Mission and the Native Affairs Branch. However, I further hold that Mrs Cubillo has failed to establish that she was, at that time, in the care of an adult Aboriginal person (such as Maisie) whose consent to her removal was not obtained. I also find that Mrs Cubillo failed to prove that the Director did not form the opinion that was referred to in s 6 of the 1918 Ordinance.

408 [!] This would suggest that the move to Six Mile Creek would have taken place in late 1942 at which time Lorna would have only been four years of age. It also means that Lorna would have spent about two years and eight months from (say) January 1943 until September 1945 at Six Mile Creek. It is not known, however, when she left Banka Banka or how long she stayed at Seven Mile Creek before the ration depot was moved to the Six Mile. The letter from Mrs Long was also of interest because it showed the primitive conditions under which the missionaries were living. It would be safe to assume that the conditions under which the Aboriginal people were living would have been no better.

1535 These were all emotive issues but there was a justification for complaining about many of them. Some I have already addressed, such as the evidence from Mrs Cubillo, Mrs Katona and Mrs Hill about a lack of love and affection. I am satisfied that they felt that absence. Yet evidence of other witnesses such as Sister Johnson, Mrs Treloar, Mrs Harris and Mrs Matthews tell a different story. I cannot make a finding of legal liability against anyone based upon some of the children reacting adversely to a perceived lack of love and affection. Regrettably, that is a human failing that can be found in families as well as in institutions. Corporal punishment was inflicted in both institutions in a manner that would not be tolerated today. However, putting to one side the conduct of Mr Walter and Mr Constable, I find that the evidence of corporal punishment was insufficient to bring down findings of fault. The conditions at St Mary's Hostel were very poor throughout most of the time that Peter Gunner was there. The buildings and other improvements in both places were primitive on today's standards but they should be compared with what existed in the Territory after the war. Cynical though it may be to some, the conditions at Retta Dixon Home were preferable to those at the Phillip Creek Native Settlement and St Mary's, bad as it was, was better than life in a camp at Utopia. Mrs Kunoth-Monks made that clear, although I am conscious of the fact that she benefited from Sister Eileen's presence at the Hostel. This aspect of the applicants' claims suffered in another respect. No evidence was placed before the Court about living conditions in other hostels or institutions in Darwin or Alice Springs. Any willingness to condemn St Mary's Hostel for the state of its facilities must be tempered by the realisation that there was no other place against which it could be compared save the native camp at Utopia. In European standards, with beds and bedding, covered roofs, ablution blocks, toilets, hot water and other basics, St Mary's was better than what Peter left behind in Utopia even though St Mary's facilities were the subject of ongoing criticism by officers of the Welfare Branch. Mr Worthy, during the course of his evidence drew comparisons between the Territory's Welfare Branch and the Victorian Social Welfare Department, commenting that the Victorian body "had very strict control over both the Church and the Welfare bodies that ran the children's institutions". For my part, I do not believe that there would be any value in comparing the situation that existed in Victoria with that in the Northern Territory. Victoria was, at that time, far more advanced economically, politically and socially. A better comparison would have been one that looked at the Retta Dixon Home and St Mary's on the one hand and other comparable institutions in the Territory, the Kimberley or Northern Queensland. Those areas, at that time, would have been more appropriate sources of comparison. The evidence did not warrant a finding that the conditions at the Retta Dixon Home were inadequate or below standard. However, despite the excuses that can be found for St Mary's, I still think that it failed.

1148 [!] The fourth and last purpose for the removal policy, as identified by the applicants, was said to be to "breed out `half-caste' Aboriginal people and protect the primacy of the Anglo-Saxon community". That must be rejected. Although there were pre-war writings that promoted miscegenation, no material in the trial would suggest that any such purpose existed in 1947 when Mrs Cubillo was removed from Phillip Creek - nor was there anything to suggest that such a purpose operated at any time up to 1963 when Mr Gunner left St Mary's Hostel. Counsel for the applicants referred to "the myth" of "half-caste as outcast", arguing that there was no justification for the belief that part Aboriginals were rejected by Aboriginals. Ms Richards, who was then addressing on behalf of the applicants, referred to it as an ill-informed generalisation. Regrettably, I cannot agree. Bearing in mind that it was one only of numerous side issues that were raised in the trial, there was anecdotal evidence of such rejection. The evidence was not investigated in sufficient depth to enable detailed findings to be made on the subject. I limit myself to rejecting the claim that it was a "myth" to think of a part Aboriginal child as an outcast in Aboriginal communities. There was evidence both ways: evidence of warmth and loving care for the children on the one hand: evidence of death and rejection on the other. I mention a few examples from the evidence that, in my opinion, are of sufficient weight to reject the applicants' submission. Mrs Harris and Mrs Matthews both recounted sad stories of rejection and death of part Aboriginal children. The applicants' own witness, GK, conceded that he understood that his life, as a small child, had been at risk. The concern about death and rejection was touched upon by some of the former public servants. Mr Ford referred to a parent "who may be in trouble" for having a part Aboriginal child. Mr Les Wilson talked of a part Aboriginal child at risk of being "ostracised". Mrs Moy claimed that there was a habit of killing one of twins. Finally, Mr Gunner believed Florrie Ware when she told him that his mother had put him on an anthill.

1159 The applicants have pleaded that the Commonwealth had a policy that called for the removal of part Aboriginal children without regard to their individual circumstances. Using the purported existence of such a policy as a lynch-pin, the applicants have then argued that that policy was imposed by the Commonwealth on those who were responsible for the administration and implementation of the legislative schemes that were contained, first, in the Aboriginals Ordinance and, then, in the Welfare Ordinance. The next step in the applicants' argument was to the effect that the Commonwealth, having imposed its policy on the Directors, had thereby caused the Directors to refrain from acting in accordance with their own opinions or had caused the Directors to act without having regard to the interests of the children.

1160 That submission suffered from a lack of support from the documentary evidence. I have already set out many of the writings that were tendered on the subject of "policy". The 1952 principles were clear and concise and I see no reason to withhold from saying that they applied four years later at the time when Peter Gunner went to St Mary's. The position that existed in Lorna Nelson's time was not so clear cut however. It would probably be necessary to go back to the situation that existed prior to the Second World War. Even so, there was nothing in any of the writings that would justify a finding that all part Aboriginal children had to be removed or that all illegitimate part Aboriginal children had to be removed or that all illegitimate part Aboriginal children living in native camps had to be removed. Then, if one moves from "policy" to "implementation of policy", the evidence failed to establish that there even was, at any time, activity on such a scale that it could be said that a general policy of removal was then being enforced. The writings of the patrol officers to which reference has been made have indicated that there was a matter of selectivity based on the personal circumstances of the individual children. As I said at the outset of these reasons for judgment, the evidence does not deny the existence of the stolen generation and there was some evidence that some part Aboriginal children were taken into institutions against the wishes of their parents. However, I am limited to making findings on that the evidence that was presented to this Court in these proceedings; that evidence does not support a finding that there was any policy of removal of part Aboriginal children such as that alleged by the applicants: and if, contrary to that finding, there was such a policy, the evidence in these proceedings would not justify a finding that it was ever implemented as a matter of course in respect of these applicants.

1304 I would have thought that those allegations raised the issue of an improper purpose on the part of the Commonwealth or the Director. To allege a purpose of assimilation, without more, might have been unexceptional as there might have been those who were of the opinion that assimilation into western society was necessary or desirable in the interests of the part Aboriginal child. However, to allege that the purpose of the removal and detention was (or included) the destruction of the child's association with his or her mother, family and culture and the protection of the primacy of the Anglo-Saxon community would, if true, severely challenge the bona fides of the Commonwealth, the Director and the other servants and agents of the Commonwealth who were charged with the responsibility of implementing the 1918 Ordinance and, later, the Welfare Ordinance. In the interlocutory judgment, I allowed for the possibility that the applicants might be pursuing an improper purpose; that possibility was specifically rejected at one stage of the applicants' submissions, only to find it remaining in these further and better particulars and in their final submissions on the question of fiduciary duties.

1305 Despite the confusion, I am of the opinion that there are short answers to each of these points. The first of them is that it is necessary to distinguish between "purpose" and "consequence". I have found that neither Mrs Cubillo nor Mr Gunner has been able to establish a failure on the part of the Director to comply with the provisions of the legislation. That therefore means that they have failed to prove that the "purpose" of their removals and detentions was (or included) the purpose of destroying their associations and connections with their mothers, families and culture. Regrettably however, that destruction did occur in each case, but it was as a "consequence" of the implementation of a "purpose" - a "purpose" that could not be identified from the evidence in the case of Mrs Cubillo. In Mr Gunner's case it was as a "consequence" of his mother's decision to ask the Director to commit him to St Mary's.

From Cubillo v Commonwealth. The emphasised excerpts are those Andrew Bolt chose for today's column inviting his readers to umpire a barney he's having with Jack Rush QC over this case.

The Precious Oxygen of Citation

Sometimes, it's not what goes into a piece of writing that makes it great; it's what the author leaves out. A good example can be found in John Kleinig's article "Ticking Bombs and Torture Warrants" [PDF format] which appears in the current edition of the Deakin Law Review. It's one of the most piss-elegant pieces of academic writing I've ever had the pleasure to read:

The 'ticking bomb' argument is frequently advanced to justify the use of torture. But its terms can be taken either as setting the bar too high to justify any actual torture or alternatively as opening the door to torture in other cases as well. The paper explores both uses of the argument but suggests that any official sanctioning of torture is likely to erode moral constraints on its use. There are reasons why torture is special and, even if it will continue to occur, it should not be officially countenanced. This includes the use of torture warrants, supposedly intended to limit the intensity and frequency of torture.

After a fairly close reading of the article, especially the footnotes, I find myself thinking about the curious affair of the dog in the night, haunted cafes in the Rive Gauche (as described in Sartre's Being and Nothingness) and Derrida's dictum (in Of Grammatology) that "There is nothing outside of the text". Maybe that's just me; check out the linked article and see for yourself.

Trusty, Rusty Teddy Bear

It's pretty clear, with the release of the new ALP policy on police counter-terrorism powers, just how Kim Beazley plans to contest the next election; he plans to go to the polls as the warm and cuddly alternative to John Howard. On The Insiders on Sunday, and with the release of his proposals for new police powers to deal with either the threat or the actuality of a terrorist attack on Australian soil, Big Kim has set out to show that he might have a warm and fuzzy teddy bear exterior, but it's stuffed chock full of steel wool and iron filings.

The substance of the proposal is that we ought to feed the current NSW laws on police powers to deal with terrorism a dose of steroids, thereby producing model legislation that can be enacted in all States and territories. For up to a week before a threatened terrorist attack and forty-eight hours after an actual attack, police would have the power to cordon off designated "target areas" - i.e. neighbourhoods - and search all people, vehicles and premises within the area. Without any hint of irony, Kim introduces his proposal thus:

The Prime Minister talks about the need for new 'offences' in law - but terrorists are lawless people. I believe we need more emphasis on ensuring we have practical 'police powers' in law.

These tough but sensible and practical powers give police the tools they need to prevent attacks but also deal with ongoing threats in emergency situations.

In his interview with Barry Cassidy on The Insiders, the bomber made it pretty clear where he stood on the issue of balancing the competing demands of preserving civil liberties and fighting terrorism:

... One of the problems with this government is it seeks to have a debate on terrorism that gets to an argument about civil liberties ...

In other words, Kim's not going anywhere near that issue, lest he give the Prime Minister yet another chance to hoist the waistband of his undies, once again cramming the fabric into his bum-crack. On the issue of civil liberties, Labor will take the same principled stand it took in 1950 when Bob Menzies tried to outlaw the Communist Party. This time, though, you can be pretty sure that the ALP won't put up with any of the lawyers in its ranks going feral and challenging national security legislation in the High Court. This is one lesson of history that the 21st Century ALP has well and truly learnt and we're all the worse off for it.

Finally, the Beazley proposals are a nonsense from a pragmatic, political point of view. Whatever John Howard proposes by way of an extension of police powers, there are going to be people within his own party who will be less than enthusiastic in their support; people like Petro Georgiou perhaps. The easiest way fo Howard to deal with these objections now is to reply that the measures he proposes are nowhere as intrusive upon the lives of ordinary Australians as Beazley's alternative. Trusty, rusty teddy bear stuffed it up.

Snob of the Week

I'll bet a tin of Beluga caviar that most Australians don't fully grasp the essence of Pushkin - "sorry, who?" - never mind the full sense of what was happening on that pavement.

But I'll bet a crate of vodka that most Russians wouldn't begin to comprehend our national gallery's recent decision to pass up a Kandinsky ...

Media and policy consultant, Natash Cica in today's Age. Ms Cica is currently travelling through Russia; no doubt the experience is broadening her mind.

ProAntePenultimate Words on the Coelacanth

In that article, Andrew Fraser, following Kevin McDonald in Occidental Quarterly argues that

... Australians, like other ethnic groups tracing their ancestry to North-western Europe, are predisposed to individualism, exogamy and small nuclear families and, as a consequence, display a relative lack of ethnocentrism.

... [This] may actually be a defining characteristic of a distinctive European racial identity not shared by other peoples. Kevin McDonald explains Western "cultural" traits as an evolutionary adaptation to the rigours of life in cold, ecologically adverse climates. Natural selection worked there to favour the reproductive success of those individuals capable of sustaining "non-kinship based forms of reciprocity."

In the way of such things, that qualifying "may" soon gets forgotten as Fraser's argument proceeds - very soon he's taking it for granted that individualism, a disinclination to shag your sister and lack of ethnocentricism (which I'll refer to from hereon as racial tolerance - it's a much simpler expression) are the result of evolutionary adaptation to living in a cold climate.

Which raises an interesting question; how are we to explain Fraser's own, somewhat more ethnocentric views of the relative merits of different races? The answer occurred to me this afternoon: they're as much an expression of Fraser's genotype as "the deeply-ingrained ethnocentrism and xenophobia characterizing most non-European peoples". Assuming, for the nonce, that McDonald's thesis is correct, we can easily account for the occasional emergence of thinkers (I use the term loosely) like Fraser with the help of Mendelian genetics.

Imagine, if you will, our primitive forebears, happily wandering the Serengeti Plains and various other pars Africensis, organised into clannish tribes whose principal recreations were beating in the heads of strangers and shagging each other with complete disregard for the issue of consanguinity. As the tribes were essentially extended families, getting fussed about consanguinity would have been maladaptive, given that all the tribe's members would be blood relatives and attempts to mate outside the tribe would be greeted with a blow on the head.

Somehow, a group of these frankly sordid proto-humans made their way to Europe where a few interesting genetic events happened, among them, the mutation of one or more of the genes in the gene complex which predisposed our ancestors to deck non-shaggable strangers. The racial tolerance gene (T) emerged. Furthermore, it was dominant over the xenophobia gene (t) which hitherto had determined human responses to strangers.

In the relatively isolated environment of Europe, the racial tolerance gene rapidly prolifierated through successive generations of the population. Europeans actually come in three varieties: those who are homozygously racially tolerant (TT), those who are heterozygously racially tolerant (Tt) and those who, unfortunately, are homozygously xenophobic (tt). Of course, the more evolved racially tolerant phenotype (Tt and Tt) is the most widespread, but occasionally you will get throwbacks to the less evolved tt genotype. They're sort of living fossils, like the coelacanth.

This raises some interesting issues, which might be worth considering now that the whole kerfuffle over Andrew Fraser's rights to academic freedom has died down. For example, Fraser regards the racial tolerance of the European to be a mark of genetic superiority and has argued for racially realistic policies that recognise that some races are better than others. Perhaps we should also be looking at policies that would spread the T gene more widely into other racial populations and - somewhat controversially perhaps - programs aimed at reducing its occurrence among the European races. And perhaps not; perhaps instead we should be looking for ways to protect and conserve this sub-variety of Homo sapiens sapiens (europa).

"I think we've been through a period where too many people have been given to understand that if they have a problem, it's the government's job to cope with it. 'I have a problem, I'll get a grant.' 'I'm homeless, the government must house me.' They're casting their problem on society. And, you know, there is no such thing as society. There are individual men and women, and there are families. And no government can do anything except through people, and people must look to themselves first. It's our duty to look after ourselves and then, also to look after our neighbour. People have got the entitlements too much in mind, without the obligations. There's no such thing as entitlement, unless someone has first met an obligation."

Margaret Thatcher, 1987