Geoff Elliott “reports” on American gun control.

P Lillingston

Philip Lillingston suggests that the gun control debate sparked by the Newtown School shooting in the US might have been better placed on hold until after families had grieved. GC.Ed.

The current Washington correspondent for The Australian, Geoff Elliott, published a piece in the Weekend Australian for the 22-23 December, in which he gave us his report on the aftermath of the tragic Newtown school shooting. 

Newspapers generally make an effort to differentiate between a journalist’s or correspondent’s report and a columnist’s opinion piece. As he is not listed as any of the twenty-nine identified columnists on the website of The Australian, and as he has specifically been placed in one area of the world where news frequently happens, it might be reasonable to say that the role of Mr Elliott is to report the facts happening there rather than to compose what used to be called “think pieces” pontificating on current trends.

Bearing that in mind his article “Defending the right to bear arms” made for interesting reading. To begin with the heading came with a sub heading stating “The gun lobby will fight attacks on the second amendment.” Fair enough. No problem there: he is giving us an introduction as to an unchallengeable truism which will be some aspect of his article. However, together with that it also carried a super-heading declaring “How many innocent victims have to die?” From that we are apparently to take as a given that the right to bear arms goes hand in hand with innocent people dying. If Philip Adams had written that in one of his columns it would have hardly raised an eyebrow because, well, it was Philip Adams. But for a correspondent to imply as truth a highly topical assertion,  and right at the beginning of his report, does make one wonder if he ever gave thought to that Fox News adage “We report, you decide” repeated so often on a news service that he surely must watch in keeping abreast of local events.

In his article he allocates space for a rather spurious argument that because gun control advocates get threatening hate mail (by some so disconnected from reality they equate gun control with pro Islamic and pro minority sentiments) then in America the Second Amendment triumphs over the First Amendment. However his main subject of reporting is how America’s immediate reaction to such tragedies is to give comfort to the victims, rather than to immediately politicise it. 

Mr Elliott hears something “so incomprehensible to an Australian ear” when the governor of a state who had just suffered a mass shooting tragedy criticised a reporter for so soon bringing up gun control, stating, 

“At this point, what it's about is comforting family members … and helping this community heal. And so to those who want to try to make this into some little crusade, I say take that elsewhere”

Our correspondent doesn’t wish to claim sole ownership for this lack of comprehension and attempts to spread it amongst all Australians. But just why would most Australians find temporarily holding back on the political aspects of a tragedy so hard to understand? 

If the young Norwegian mass killer Anders Breivik should serve his 21 years in prison and then, upon release, proceed to slaughter another 50 adults and children, do we immediately hector the Norwegians as to why they have such an incredibly dumb sentencing system, or do we send sympathies and allow them, at their own pace, to grieve and bury their dead, before eventually getting around to broaching the issue of possibly reviewing their (inane) sentencing practices. 

 Whenever some callous and despicable murder happens in Australia one can be sure there are always calls for the re-introduction of capital punishment. It has even happened recently with the spate of single women being murdered on Melbourne streets. In such cases the (correct) response from people in authority is that one should not make permanent laws in the heat of the moment. Those that would vote for the death penalty in the same week as news of some new horror, might not necessarily feel that way after time has allowed one to cool off. That Virginia governor, who was not even a right wing Republican, but a Democrat, was not permanently forbidding a gun rights debate, he was simply saying “not at this point”. It was the same tack even the President followed. At Barak Obama’s first news conference after the current tragedy, he spoke of how something had to be done with regards to these school shootings but he specifically did not get political by mentioning who or what might be at fault. That came later. 

When it did come it came with a vengeance for one certain cable news host. Prominent British ex-newspaper editor and now host for a CNN news show, Piers Morgan made international news when interviewing Gun Owners of America Executive Director, Larry Pratt on the Newtown tragedy. Not for some insightful and acute questions which might have left his guest without an answer, but because of his seemingly uncontrolled reaction when given answers by his guest he apparently did not wish to comprehend or otherwise found unsatisfactory. 

Mr Morgan did not enhance his professional journalistic prestige by responding on air to his guest with statements such as “What a ridiculous argument. You have absolutely no coherent argument whatsoever. [You are]… an unbelievably stupid man”.

The theme of Mr Elliott’s whole piece is that the right to bear arms is so ingrained into the American psyche that rational argument to abolish its constitutional support, the second amendment, is impossible.  His attitude to guns is such that it is “So utterly foreign it is stuck in the memory, forever so” that someone is not allowed to discuss the politics of gun control within days of the news of a shooting horror.

Irrespective of the actual virtues or vices of gun control, the irony is that, in the public forum, it currently seems to be the prohibitionist side losing reason to emotion when it comes to discussing bearing arms.

Philip Lillingston is a member of the Liberal Democratic Party

 

 

 

 

Anatomy of a Conservative

LillingstonPhilip Lillingston uses the case of double jeopardy reform to argue that politics should be about conviction, not pragmitism:

Ya see, there once was this conservative party in opposition and the government of the day introduced a Pacify the Gods Act wherein every month 50 virgins had to be sacrificed on a high alter at the town square. The people were really up in arms against this and the conservative party, having political nous, saw their opportunity. While ensuring to not appear extremist, at the next election they ran on a platform of changing the law such that only 25 virgins would be sacrificed every month.”

Even though I first read that joke over twenty years ago in an American journal, I think the sentiment is unfortunately still true today. Last September I was fortunate enough to have a post published on this site explaining how the upcoming reforms to the Double Jeopardy law in Victoria had so many ‘safeguards to protect the fundamental principle’ that their effectiveness was virtually zero. Alas that bill without modifications is now law in Victoria and about to be in WA. As much as that ship has sailed I have become interested in how some politicians can be so full of consensus in their law making, that what results is of so little consequence.

The basic tenet of double jeopardy is that once a jury has acquitted the accused in a fair trial then that’s the end to it; finality. Victorian A.G. Robert Clark displayed agreement  in a press release stating “The rule of double jeopardy is an important principle to protect innocent citizens from repeated prosecutions… and … provide[s] certainty and finality in the courts.” Fair enough. But then came the “but”. However if it was a serious crime and the accused is highly likely to be guilty, then that’s different.

But how exactly, can that be different?

If a repeat trial can only be on the authority of some appellate court or committal evidential hearing then only the highly likely would be re-committed anyway. What judge wants to be responsible for a second wasted trial?

(Ironically, the new law in some situations prevents retrials even when the aforesaid principle was not involved. For those acquitted because the trial was not fair-as when, for instance, witness tampering has been discovered- no retrial is allowed if the crime would accrue a less than 15 year sentence.)

How can you believe in a principle and yet tolerate exceptions that (at least in theory) totally violate that principle? Apart from those charged with petty crimes, anyone acquitted could fear re-prosecution or miss the certainty and finality of that court decision?

What comes next? Is the Attorney-General going to embrace the concept of a woman’s right to choose while at the same time criminalising abortion; or proclaim the fundamental human right to free speech while at the same time supporting the Finkelstein report on the establishment of a new, government funded, super regulator.

I first became aware of this conviction-free, consensus type of conservative politician when Alexander Downer became Liberal Party leader back in 2004. His introductory speech declared that his party was not one of ideology but of pragmatism. It was the first time I had heard any politician openly declare an attribute that I had previously used in a political context strictly as a pejorative. On succeeding Mr Downer, John Howard appeared to be even more proud of the term and attempted to entrench this “principle” in our constitution’s preamble: “…and protect all Australians …in dignity… which may never be infringed by prejudice or fashion or ideology…”

I do not hold all members of the coalition in this category of compromise and equivocation. There have been, and exist now, voters’ representatives who have given some thought as to from where the Liberal Party got its name. The philosophical children of Thatcher, Reagan, J.S. Mill et al I’m sure pepper all our houses of parliaments, as few as these siblings  may be.   

One wonders who the heroes of the consensus pragmatists are. Perhaps British Conservative Party grandee Francis Pym who authored the book “The Politics of Consent”. Pym, who, as reported by the UK Guardian, “never thought it was the place of a woman to argue with a man”, voted against Margaret Thatcher when she ran for Tory leadership. Nevertheless she appointed him Foreign Secretary at the time of the Falklands War whereupon he advised a plan granting a degree of sovereignty of the islands to Argentina.

His final ‘act of consensus’, which earned him an unceremonial demotion to the back benches, was when he publicly made the incredible statement, prior to the 1983 election, that the Tories did not want too big a win.    “Landslides don't on the whole produce successful governments.”

What can be said of those politicians who don’t carry the “conviction” prefix? That he who stands for nothing has a greater propensity to fall for anything. Perhaps the last word can be given to the Iron Lady herself. As quoted by Sir Anthony Parsons, erstwhile British Ambassador and archetypical patrician grandee of the British ruling class, who told what she said to him in a private discussion when talking about upper middle class intellectuals, and making no effort to exclude him from the classification: “They see everyone else’s point of view and have none of their own.” 

 Philip Lillingston is policy adviser to the Crime Victims Support Association and maintains their web site on reform, DoubleJeopardyReform.Org. He is a member of the Liberal Democratic Party. 

The great double jeopardy reform con

Lillingston New double jeopardy reforms in Victoria must be void of the loopholes seen in other states, writes Philip Lillingston.

Those who live in Victoria may have noticed in the news recently talk about bringing acquitted suspects (such as those accused of the infamous 23 year old Walsh Street police killings) back to face justice, due to upcoming legislative action to reform the law known as double jeopardy.  Victoria is one of the last two Australian states to have not changed the law that grants immunity from further prosecution for those acquitted of any crime, immaterial of any new evidence that comes forward and, incredibly, even of evidence of abuse of process such as bribery, coercion or jury tampering in the original trial. Premier Baillieu and Attorney-General Clark, abiding by an election promise, are claiming credit for this proposed reform to bring better justice for the Victorian community.

There is just one problem.

The model for reform A.G. Robert Clarke has publicly stated on his website he will be using, the Coalition of Attorneys–General (COAG) model, has been conclusively proven not to work. Since first introduced in an Australian state by NSW in 2006, there have been an accumulated fourteen years of the reforms being law in the individual states that have enacted change. Considering most states allow the law to act retrospectively, if you were to add 23 years apiece, it would allow the total  to exceed 70 years. Yet in that time the number of suspected felons who have been returned to court and ultimately convicted is the grand total of zero. In fact there has not even been a single repeat prosecution. The specific reasons are too complex to detail here, (although not on our website) but suffice it to say, the COAG model was drafted with enough loopholes to allow any half intelligent defence lawyer to be able to prevent his accused defendant from having to face a jury again.

So why would model legislation be drafted to not work?

It all starts with a controversial serious of Queensland murder trials and appeals beginning in 1985 and ending in a 2002 HCA appeal where the accused, an R.J. Carroll, was absolved from all crimes due to double jeopardy, despite two juries having found him guilty.  The High Court decision created a lot of comment at the time, not just from crime victim’s advocates but politicians, judges, Premiers, the Prime Minister and even former HCA Chief Justice Sir Anthony Mason!

Legislators in various states were therefore feeling the heat and expected to do something. However at the time all state governments had Labor Party administrations and as might not be that much of a controversial statement, left wing parties tend to drag their feet on law and order issues. ‘Rather than penalise the wrong doer, society is to blame’ is a much more accepted mantra on the left than elsewhere.

So what does the coalition of Attorneys-General do when the voters are forcing you to do something you personally wish not to do? Simple. You refer to that legendary great statesman of administrative realpolitik, Sir Humphrey Appleby.  To paraphrase: the people are anguished by a problem and demanding that something must be done; you do anything as long as it has the appropriate title to it; anything is something; therefore something has been done and the problem is solved. 

All states that enacted change have not followed the COAG model to the letter, but unfortunately enough to keep it ineffective. A.G. Robert Clark has not yet presented the specifics of his proposed legislation.  If he closes all the loopholes he will be branded by the legal fraternity and the ‘quality’  media, the ABC / Fairfax press, as a reactionary who is violating defendants’ ‘human rights’ and  merely pandering to the unthinking hoi polloi. If his changes are only cosmetic, they will easily be enacted, the Liberal Party will have honoured its promise, but it will remain to be seen if those, who we reasonably believe escaped the net the first time, will ever be brought to justice.

[ED NOTE: If anyone would like to write an article defending the double jeopardy principle, please email editor @ menzieshouse.com.au]

Philip Lillingston is policy adviser to the Crime Victims Support Association and maintains their web site on reform, DoubleJeopardyReform.Org