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Australia and Canada

Canada and Australia share significant similarities in history and governance.  Both are stridently egalitarian treasuring their freedoms and human rights.  Both were colonial outposts.  Both have strip ribbon settlements.  Both made significant contributions to England's wars maintaining her colonial empire.  General Haig, writing to his wife about us colonials, describes the Australians as "brave and daring soldiers, but uncouth, dirty, undisciplined, disrespectful to the officers and unruly.  Then he adds:  The Canadians are worse".   

Both populations see themselves as relaxed, comfortable people living under the protection of the  British Crown which promised us Justice and freedom from oppression.  To see which country had a more laid back culture, it was decided to hold an official competition.  The result was declared a draw, since no one turned up.

There are also stark differences in stages of development.  Canada was earlier in its attempts to let go of the mother country's apron strings with the Statute of Westminster in 1931.  Australia held back until 1949 due to its reliance on Britain for defence.  Canada abandoned appeals to the Privy Council in 1947, Australia in 1972.
 
Canada's standing in the world

Since migrating to Australia in 1972, Canada has continued to enjoy the status of a model country.  It is easy to forget how backward Australia was then.  When Whitlam swept to power, after 23 years of conservative government, he was credited with dragging Australia, kicking and screaming into the 20th Century.  As one of my American colleagues commented at the time, “it's like going back to the 1940's – but it seems to work”!

Despite several reverses, progressive forces prevailed and Australia managed to reform its archaic structures. It was a source of great pride to me that Whitlam and other reformers kept looking to Canada as a model to base his reforms in Health and Multi-culturalism.  Later Keating and Hawke used Canada as a good governance model to reform the banking system. One of the most damaging aspects was an endemic Australian culture of mateship that led to cronyism, nepotism and high levels of corruption.  The police in the three largest states were openly corrupt and we now have evidence that the court system was intricately aligned with the conservative parties.  It took several Royal Commissions to pull the police into line and only through courageous reforming lawyers, brave journalists and robust citizens to rein in judges.  

When it became evident that some Australian Judges and senior barristers had been thumbing their noses at the law by not paying income tax, the rest of their conduct also came under closer scrutiny.  Parliaments were suddenly forced to investigate other instances of malpractice by Judges.  So far, I am aware six judges who had to account to a standing committee of parliament for their decisions, two jailed for corrupt conduct and one Judge also spent 18 months in the slammer because he tried to evade a minor traffic offence by perjury.  

It was only because people were willing to stand up to vested power that reform could be possible and the entire country benefited socially, economically and  ethically.  

First, Canadian values. The truth is that if we want to continue to lead rather than follow, we need to promote Canadian values and strengthen the institutions that sustain them. Recent cases indicate a sharp decline in accepted norms and values.  Institutions are there to serve the people of Canada, not their own privileges.

The heart of traditional Canada is our belief in a fair society for all; no man or woman is above any other or the law.  We applaud achievement and innovation. We want people to strive, to make the most of their talent and not to be content with their lot. That is the essence of an egalitarian meritocracy.   It was Francis Adams in 1886 who said: "In England the average man feels inferior, In America they feel superior, in Australia and Canada they feel equal."

Early migration of European settlers into Manitoba resulted in layered class distinctions and pretensions of WASP power and privilege that have lasted a long time. These paternalistic and patronising pretensions include not only the stuffy, narrow-minded elitism that still exists in the cultures of some small quarters of society, especially in bureaucratic institutions, but also an entrenched mentality of unaccountable power at the top.  All politicians and Judges, like the leading animals of Animal Farm, need to challenge this mind set, instead of grovelling to its superior might.

Formerly we put a high premium on social equity and justice, which fathomed a way of us, as Canadians, to be a beacon to a weary world full of petty strife.   It seems Canadian democracy is experiencing threats to its system of checks and balances caused by an erosion of ethical norms at the highest levels of power.  The default response to criticism is an instinctive defensiveness to preserve and protect privileged power - not the general good.

Australia's problems are similar, the result of general weak political leadership; careerists, who stand for nothing.  Career orientated people simply lean to whichever side of the fence that they think will advance their career.   We need more than the stale pieties of conventional politics and crave action that might offer some hope.

Stephen Harper dominated Canadian politics from 2006 to 2015, and the Canadian political imagination as well. He set himself against "the Laurentian elite", the well-connected upper-middle classes from Toronto up the St Lawrence River to Montreal and Quebec, whom Harper scorned as the rulers of "a north European socialist state that doesn't work, and they don't care that it doesn't".  (Guy Rundle)  Harper – ruled the country for nearly a decade like a vindictive autocrat, stonewalling the press, overhauling the elections act to his benefit, ignoring climate change and proroguing parliament at a whim. Leah McLaren

Harper kept passing laws that were rejected by an activist Supreme Court of Canada.  While we may have applauded it at the time, this set a dangerous precedence since neither had a clear mandate. As Nietzsche noted, when you fight with monsters you risk becoming a monster. This practice trickled down the hierarchies and lower ranking Judges failed to adjudicate in the spirit of statutes adopted by the people’s representatives.  Judges appear to thumb their noses at legislation passed by the people's representatives.  We need to reaffirm that our representatives make the law and the courts must adjudicate in the spirit and intent of those laws as long as they reflect natural justice.  Yet it is the conservatives who tend to value the integrity of our institutions, the left tends to lack the will to pull them back into line.

Nine years of Conservative government diminished Canada’s reputation with regards to independent media, Judicial fairness, tolerance of bullying and human dignity.  In forty years of coming home, the last few visits saw increased evidence of Public servants acting with authoritarian impunity and aggressive manners. 

But at the end of the day, the values that define Canada depend on more than just good government and strong values. They also depend on sound, vigorous, responsible and accountable institutions committed primarily to serving the best public interests.  We, the citizens, have a moral duty to draw "wrongdoers to “a serious, lucid responsiveness to the moral significance”  of inaction and negligence. (Raimond Gaita) 

You can't have the rule of law if the courts aren't accountable - or if you have lawyers and judges running amok as they do in the American system. We cannot allow the rule of law to become the rule of lawyers or capricious Judges!  The movie Vice,  reinforces this issue with subliminal messages lingering on the ironic logo of the Supreme Court:  “where the law ends; tyranny begins”  just long enough to mock it.  The Canadian Supreme Court appears openly defiant of Parliament.  Who guards the guardians?

Yes, we must fight institutions that betray our values, diminish our freedoms, trash our dignity. It is the Canadian people who must, collectively, define this nation's destiny.

I think all Canadians agree that this is intolerable. Jim Carr writes: "One of those characteristics of Canada that makes us such a special country is that we have not only tolerance for dissent, but we embrace dissent because it is an essential characteristic of who we are to be Canadian.  Civil disobedience and peaceful protest is very much a part of our history”.

Canadians and Aussies have stellar reputations as friendly down-to-earth, fair and free people. Both pride ourselves on egalitarianism.  We are the envy of much of the world.  Yet we cannot be smug and complacent.  The thin veneer of effete democracy veils the tyranny lying just beneath the surface.

The latest international showdown demonstrates some peculiar posturing.

The Canadian Prime Minister, Justin Trudeau, said he was pleased to offer  Rahaf Mohammed al-Qunun asylum because “Canada is a country that understands how important it is to stand up for human rights”.  The clear implication is that other countries do not stack up.   This is certainly true in this case. Rahaf's preferred destination was Australia where she had a ticket, a visa and friends, but Australia's asylum seeker policies have been poisoned by issues of "border security", so Trudeau swooped in, pre-empting Australia's slow footed procedures.  

However, comparing Australian and Canadian human rights for its citizens, makes Trudeau's strutting questionable.  Canada's superior human rights may have been true fifty years ago, but today Australia’s actual human rights for its own citizens is held in higher regard than Canada’s. 

Craig Foster, an Australian soccer commentator, took on FIFA, perhaps one of the most corrupt organisations in the world, when a young Australian player, Hakeem-al Arabi, was detained in Thailand for extradition by the Bahraini Government.  Though Foster had never met Hakeem, he travelled to meet him in prison in Bangkok.  It was an emotional experience which compelled Foster to help a vulnerable young man.  

Up against overwhelming forces of absolute monarchs, government and sporting politics but citing Australian values of standing up for the little guy with direct, fair, respectful, unyielding principles, Foster used his skills, clout and position to cut through the politics.  He is now considered a national hero for shaming Bahrain into dropping extradition proceedings.

Australia's Justice Peter McClellan deserves credit for his relentless pursuit of prestigious leaders under scrutiny by the Commission into Institutional Responses to Child Sexual Abuse. He tread where angels fear to tread.  McClellan proved to be a chair intolerant of disingenuity, and made it clear that status could not buy immunity. He challenged pillars of the community and senior church figures, including Arch-bishop George Pell, third highest Catholic Official in the world.  

Today Australians enjoy one of the most trusted Judicial systems in the world.  The recent trial and conviction of the 3rd highest Catholic Arch bishop attests to that.  It was Peter McClellan's determination to strip bare the unctuous cant of the churches and their enablers" (Richard Ackland) forced a tectonic shift in the Australian legal world's psyche and allowed victims and survivors to be heard and believed.  According to Anne Manne, “Justice Peter Kidd’s sentencing address was quite a performance. Wearing his starched white collar and purple robe, the chief judge of the Victorian County Court wasn’t just sentencing George Pell. He was enacting the dignity and power of the rule of law. With sober gravity and measured arguments, he outlined in forensic detail the crimes for which Pell was convicted.”  Justice Peter Kidd, in sentencing Pell proclaiming:"By any view, your crime was due to breathtaking arrogance; an indication of your flawed sense of authority and power...".

The simple way out of the Trudeau Raybould debacle is for the Canadian Parliament to audit the performance of all bodies set up to maintain Judicial standards.  That could rebuild confidence in the office of Prime Minister,  restore our faith in Parliament and trust in the integrity of Canadian Justice.  Trudeau had sound motives, but used questionable means - Machiavellian logic - the end justifies the means.  But it strongly suggests the courts are susceptible to persuasion.  The scandal indicates little understanding of the guiding principles of Checks and Balances by both Raybould or Trudeau.  Raybould's instinctive reflexive reaction has been to support the Judicial, at the expense of the community, even when it is shown their actions appear clearly against the law.

This case illustrates how far the Canadian Justice system has fallen since the 1990's. All leaders have been less than inspiring in maintaining rigorous judicial standards, eroding our confidence and faith in the Canadian Judicial Council. All fail to grasp the concepts of checks and balances in keeping each other honest.  All have been ineffective in curbing the increasing arbitrary and immune power of Judges. The only way of restoring confidence in Canada's liberal democracy is a full inquiry into the integrity of the administration of Justice in Canada.


In 1971, Pierre Trudeau commissioned two institutions to bring Canada's Judicial system into the 20th century, a Law Reform Commission and the Canadian Judicial Council.  Did both turn out to become white elephants?  How many Canadian Judges have been held to account for arbitrary or capricious decision making since then?  Judges are commissioned by the people to simply rule on "facts".  Misperceptions occur when Judges are not attentive to facts. Their sole obligation is to openly discover, determine and establish the facts.  Any Judge deliberately failing to do that should be considered professionally negligent and be held to account for indictable malfeasance even investigated for impeachment. 

The CJC is responsible for maintaining reputable standards in our courts' decision making.  Is it fulfilling its purpose?

Article 12.1 of the CJC's Procedures is clear, explicit and unequivocal:  "The Executive Director must inform the complainant by letter when a matter is dismissed or concluded by the Chairperson, and indicate the basis on which it was dismissed or concluded".   

My five year old complaint regarding my perception of low standards of due process is still awaiting a reply.  Email will do.  Is the CJC in contempt of Parliament?  Is it flouting the laws of the Canadian people?  I do feel aggrieved.  I feel as if my inherent birthright as a Canadian citizen and tax payer is being deliberately dismissed, treated with callous indifference and violated.

Australia does not have a Bill of Rights or an official watchdog on Judges, neither does it have a national Supreme Court, yet its officials appear to be held to a greater standard of accountability, by its people, than Canadian Judges.  I know of at least six Judges who have had to face legislative bodies to explain dubious decisions, at least three Judges have gone to Jail.  I am unaware of any Canadian Judges held to that degree of account.  I prefer Australia’s system of Judicial oversight to Canada’s.

Australian Judges, on the whole, have a greater respect for community values and expectations.  There are exceptions, but recent Royal Commissions have demonstrated  a seismic shift in Judges who do not defer to powerful officials of the Church, Banks, or Politics, regardless of how high they are.  They respect the black letter of legislative law.  The recent jailing of George Pell rocked the nation to its core.  No one is above THE LAW!

As a dual citizen, I now feel more confident of having my human rights protected by a robust Australian political and judicial system than the posturing Canadian system.  A long standing breach of trust by the CJC and our politicians leaves me disillusioned about Canada paying mere lip service regarding a denial of my civil rights.

Justin Trudeau came to power with promises of electoral reform.  Perhaps he is held hostage by Liberal party hack who see that as that as a threat.

While Australian politicians belie it, its electoral system surpasses Canada’s.  Judith Brett records “Australia’s first robust election was held in 1843; openly, many near pubs.  It was marked by violent brawls and riots.  Police and soldiers struggled to control drunken mobs armed with staves and pickets tearing down banners, demolishing campaign booths and smashing nearby shops.  Two men were killed in Sydney and one in the country.  Most of the injured were rebellious Irishmen”.  According to Governor Gipps' report “this was not unusual and in general the election went off well”. 

Despite this Brett contends that Australia soon evolved into one of the world’s pre-eminent democracies first to introduce new ideas of the secret ballot, votes for women, compulsory voting and eventually preferential voting.  Australia is the only English speaking country to have compulsory voting.   

While I strongly support preferential voting and wonder why Canada has not already adopted this enlightened feature, I am just as strongly against compulsory voting because it forces many uninformed and especially ill-informed voters, many easy prey for manipulation, to vote.  Lynton Crosby, renowned in Australia, America and Britain as the “Goebbels” of modern democracies, and also Rupert Murdoch, who owns 70% of the media, often use questionable tactics in determining who wins elections, were thoroughly ridiculed by the Canadian media and rejected by the Canadian people in the 2015 election.  They laughed at them all the way to the polls.


To get a fuller view see: http://nebo-lit.com/topic-areas/Justice/justice-and-power

http://nebo-lit.com/topic-areas/case%20studies/canadian-judicial-council


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