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14 July, 2009  
The law is the law

Julie Bishop’s faux concern about Aboriginal welfare … She’s from WA, after all, where there is a finely crafted love of the Crown avoidance mechanism … Tony Templeman showed how to do it … Procrustes lets fly

imageThe Federal Deputy Opposition leader, Julie Bishop, was reported on July 3 saying, by way of criticism of the Rudd government, that there had been little progress in Aboriginal education, health and housing in WA.

How true, how true, thought Procrustes, as he allowed the smoke from his Romeo y Julieta to envelope him in memories of a time gone by, a time when La Bishop was managing partner of the Perth end of national law firm, Clutz, from 1994 to 1998.

Right in the middle of that period the Supreme Court in her own patch brought down a cracker, in the shape of Atyeo v Aboriginal Lands Trust.

This case enabled Tony Templeman J (a nephew of Lord Templeperson – pictured below) to pronounce that the mandatory provisions of the WA Health Act 1911, which were plainly intended to secure running water and human waste removal for ALL householders in the West, regardless of ownership or tenancy status, did not apply to the Aboriginal inhabitants of Halls Creek.

imageWhy not, I hear you ask?

Because their landlord was the Aboriginal Lands Trust, an emanation (whatever that is) of the WA Crown, and under the arcane mumbo jumbo that passes for public law in this country, the Crown wasn’t bound by the Health Act.

Since the Crown wasn’t bound, neither was its agency the ALT, so that the bit in the Act about the local council health officer (that was Bill Atyeo) being able to force the hand of landlords to provide sanitation, was a non-starter in Halls Creek.

Did Julie miss this farrago of the law from her eminent post in Perth in 1996?

We heard not a peep at the time. No outrage, no demand for reform of a system so plainly adverse to the interests of the indigenous.

Your correspondent particularly enjoyed Templeman’s fine sense of irony with lines such as:

“The Aboriginal Affairs Authority Act [which set up the ALT] represents an attempt by the legislature to advance the interests of persons of Aboriginal descent.”

imageDear Zeus (seen here), Procrustes loves the law. Of course the WA parliament wanted to appear as though it cared (about as deeply as Procrustes does for complete outsiders) but it’s protected against any real demand for delivery of services to the benighted by wonderful medieval palaver, such as the rule that the Crown is not bound by statutes unless specifically named.

If warm and fuzzy’s your look, nominate a Crown corporation, trust, commission or some such to do the work, secure in the knowledge that Crown bodies aren’t going to have to comply with the demands of statutes – unless the legislature is so misguided as to say so specifically.

What was particularly bracing about the Templeperson approach was his ramrod straight adherence to judicial impartiality and the law as he understood it (as dated about 1400), despite the wailing from some of the proponents of this litigation, such as the Aborigine Allan McDonald, who appeared in an affidavit saying that he “was fed up with his family being forced to go to the toilet in the scrub, and attend school without a shower or clean clothes”.

Whinger. Just because de white folks had white folks as landlords, and only de darkies had de Crown fo de landlord.

Tempers got that right. Tough bikkies.

Who cares that the chattering classes were nattering away all through the decade about Aboriginal public health being a disgrace.

What matters is the sacrosanct application of the law, fairly and impartially and if that involves a few unfortunates missing out, well, so be it.

Templeman is to be commended that, as a sometime Chancellor of the Archdiocese of Perth, he didn’t let any woolly sense of Christian charity get in the way of the delivery of The Law.

imageIn the midst of all that, Julie, where the bloody hell were you?

Well, in her defence, her CV shows that she was probably in Boston at the Harvard Business School completing the Advanced Management Program for Senior Managers.

Outrage at the plight of the Aborigines is what politicians do, not what high flying managerial solicitors do, thank you very much, and particularly not in the West. The great mining companies need all the help they can get.

As for Templeman, it is only fair to note that Atyeo was not a one off.

That case was used by Templeman the following year in the WA Full Court (see Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management) to remind an unwashed and unholy collection of feral greens that the WA Wildlife Conservation Act 1950 did not bind the Crown.

That resulted in the Crown, through the wonderfully named Department of CALM (Conservation and Land Management) being able to sell off as much of the State’s forests (all growing on Crown land) as it wished to logging companies, who could in turn fell and remove the timber as hard as they liked, without so much as a backward glance at the legislative prohibition on tampering with, annoying, upsetting or in any manner killing the fragile wild life of the WA south west.

Of course, it all got killed off. Serve it right for being fragile.

The State’s symbolic animal, the numbat, lives on in a special numbat enclosure thoughtfully built by CALM to ensure that some do gooders wouldn’t turn up sneering about the loss of the icon.

Templeman retired from the bench a couple of months back, but it’s heartening to reflect on a life selflessly dedicated to the Rule of Law.

imageHe was one of the senior counsel assisting the WA Inc Royal Commission, which exposed the use by Bondy (seen here), in collusion with the WA Crown owned SGIC, of the Crown/statute avoidance mechanism to be able to take over Bell Resources.

Bond persuaded SGIC to buy 19.9 percent of the shares in Bell and then sell them onto him to add to his 19.9 percent, that being the magic number allowed before having to go on the open market.

Bondy could buy the SGIC’s shares in Bell, because SGIC wasn’t bound by the Acquisition of Shares Code and since it wasn’t, the rotund rogue could take advantage of SGIC’s immunity.

Pity he spoiled it all by over-enthusiastically dipping the Pooh Bear paw into the honey jar, and stealing all the company’s assets.

It’s one thing to detect and report on the use by business persons of ways of avoiding regulatory road blocks.

It’s quite another to ensure that plain words of a statute are applied to ensure basic sanitation to blackfellas, or that captains of industry limit their activities to those apparently sanctioned by parliament.

That in turn raises a completely different question.

imageShould captains of industry, and let’s pick Michael Chaney (then CEO of Bunnings, the largest WA logger and still darling of the West – seen here at an earlier time), as an example, restrain themselves in accordance with the apparently expressed will of the community, evident, for example, in environmental protection legislation, or should they should take every nitty legal point that might let them flout the apparent intent of such statutes?

I do like a good tease. The steward is approaching with my Cockburn 63 and the clipper for my Montecristo.

Life is good. I trust Templeman will be over on his gold pass and entry rights from the Weld Club to kick back with us here.

As for morality and the law – stop it.

A good belly laugh at my age sounds like a death rattle, and I don’t want to get too many of the members’ hopes up.

How is Chaney going to build the rather decent cellar of French reds of which he has spoken in the Fin Rev, unless he takes a strict view of the law, not some pansy feeling about community will and public interest?

imageToo many of the young (by which I mean those under 60) only know the work of Auden (pic) from that mushy film about weddings and a funeral.

Despite being an appalling poofter, his view on what judges do was dead on:

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

It’s about time that blacks, greens and other benighted riff-raff learnt this lesson and stopped clogging the courts with their hopeless petitions.

Templeman deserves to be remembered as a judge who knew how to give them a proper send off.

Julie Bishop, on the other hand, deserves to be remembered as a politician who knows how to make an opportunistic press statement that has absolutely no meaning whatsoever and is all the more meaningless in the light of her knowledge as a former lawyer.