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Manus: a ten point plan to recover our honour,

our borders and our country

 

David Flint

15th June 2017

The Turnbull government has gone to water over the claim by about 1900 Manus Island detainees. It could have and should have resisted this. To win anything, you need a battle plan – I suggest a 10 point plan below. And it’s not too late, even now.

It’s bad enough that illegal immigrants are going to profit and hard-working, law-abiding taxpayers pay. But what is even worse is that the government’s message to the people smugglers and their clients is that if you persist, you’ll eventually win and win well.

The illegal immigrants are to receive $70 million and their lawyers about $20 million. The deal is so shrouded in secrecy we don’t know who don’t know who will receive what.

It shouldn’t be forgotten that by the time these illegal immigrants reached Indonesia, they had lost whatever refugee status they may have once had – and many were not refugees. In any event, they gained entry into Indonesia showing their passports and presenting themselves as tourists. They were safe there. If ever they were genuinely under a threat of persecution, they were no longer in Indonesia. But then they conspired with criminals to force their way into this country. They should have all been turned back. And that would have happened had Tony Abbott been in power. We shouldn’t forget that when he announced his policy of turning back the boats, this attracted the outrage and ridicule of the political class, including certain members of his front bench. They said it would not work, but if it did, it could mean war. Well it didn’t. It worked.

Instead of rolling over at the first shot, the government should have had a battle plan attacking from a series of angles, some seeming contradictory but together being precautionary. Here is one such battle plan – and it’s not too late. It could be used to neutralise this outrage.

First, the government should have fought the case right through to the highest court in the land. This would have taken years, giving them time, valuable time, to put in place the rest of the battle plan.

Second, the government should have relied on the common sense of rank-and-file Australians and introduced retrospective legislation to provide that any such case should be heard not before a judge sitting alone, but before a judge and jury.

Third, the government should have introduced retrospective and precautionary legislation to allow it to recover damages for illegal and forcible entry, as well as all of the costs of maintaining, protecting and guarding each and every detainee. Again any legal action to recover this should also be before a judge and jury, with the right to recover any associated legal costs.  The advantage of this, even now, would be that any amounts agreed to in the Manus deal could be held back as security for what could be ultimately awarded.

Fourth, even before this legislation were introduced, the government should have begun a series of actions against each and every detainee claiming damages for illegal and forcible entry, as well as all of the costs of maintaining, protecting and guarding them as well the associated legal costs. (Security could now be sought from the defendants against the proceeds of the Manus deal; this could also be guaranteed by special legislation.)

Fifth, the government should have introduced separate retrospective legislation to remove the right of any non-citizen or non-resident to sue in the courts concerning detention by the Commonwealth or for anything which may have occurred in such detention wherever that detention may have occurred.

Sixth, the government should have introduced separate retrospective legislation denying the award of legal costs in relation to claims by non-citizens or non-residents in relation to detention.

Seventh, the government should have introduced separate retrospective legislation providing that the liability for any award of legal costs, as well as the provision of security for legal costs likely to be incurred in the future, against non-citizens or non-residents relating to detention should extend to each and every lawyer acting in the case. This should include every partner and every shareholder, in any legal firm involved in the case. Moreover, there should be no requirement that the government first attempt to recover the sums from the plaintiffs. If they wished, they could obtain security from the lawyers first.

For an example, imagine a long case like Manus, finally lost in the High Court with an award of, say, $30 million for costs. The government could then not only recover this from the lawyers, it could have along the way sought substantial security for costs from them.

At the time all this legislation was introduced, the government should have indicated  that if any were to be rejected or unduly delayed in the Senate, the legislation would be reintroduced strictly after three months, even if this required a recall of the Senate. The government should have also indicated that if any piece of legislation were to be rejected or unduly delayed again, the Prime Minister would approach the Governor-General to request that a double dissolution election be held at the earliest possible date. (Theresa May failed to learn from Malcolm Turnbull that people soon lose interest if you unnecessarily drag out the election and you do not campaign well.)

Eighth, at the same time as the other legislation is introduced, the government should have introduced a bill for a referendum for a precautionary amendment to the Constitution. This would be to head off an unnecessary and lengthy High Court case by the detainees arguing that the government had no power to do this and thus protect the borders. Doing this would be unprecedented, but that’s no reason why a government with backbone should do this to protect the borders. Again, the government should have indicated that if the Senate were to reject this, it would be presented again with the other legislation immediately after three months had expired. If it were to be rejected again, it would be presented with other legislation along with the double dissolution. (The Constitution specifically envisages this.)

Ninth, the government should have kept strictly to every part of this timetable. Most importantly, it should have done everything that it had threatened to do. People take notice of you if you do this, especially criminals and the clients of criminals.

Tenth, at every point in any litigation the government should have insisted on the provision of full security for legal costs to be paid. This should obviously have been sought from the lawyers who would have been most able to pay. The government should have abandoned any constraints normally accepted on its behaviour as a so-called “model plaintiff”. In cases like this, going to the very heart of the national interest – the security of its borders – a government must at all time play hardball. This would have sent the message to the world that Australia was no longer led by soft-touch politicians.

Had the Turnbull government behaved with the sort of strengths we would expect – the strengths demonstrated by the Abbott government – there can be no doubt it would have won such a double dissolution election as well as the referendum. As on similar occasions, there is palpable outrage across the length and breadth of the country, and not only among Conservative voters but also among Labor voters, that tough measures must be taken to protect the borders and that the criminal people smugglers and their clients should never be rewarded.

All is not lost even now. If the government were to now follow this plan, they could legally recover every cent of the Australian taxpayers’ $70 million they have so foolishly agreed to hand over to the illegal immigrants.

If Malcolm Turnbull can’t do this, the party room should do what they probably itching to do and put Tony Abbott back in power. He is undoubtedly a strong leader – he has already demonstrated that with other countries lining up to copy his policies.

David Flint is an emeritus professor of law.

Barbarians and Marxists

Only Donald Trump can save us from the pincer movement destroying the West

by

David Flint

10th June 2017

The election of President Trump was, along with Brexit, one of the great events, not only of 2016, but of the decade. He remains one of those very few politicians who govern both with common sense and in the interests of the people, considerations which have, in these supposedly advanced and enlightened times, been abandoned by most of the political class.

Being one of the few commentators who concluded, both on their programs and on the likelihood of their implementing them, that Donald Trump was vastly preferable to Hillary Clinton, I am reassured to see that he is the only leader in office who not only accepts there exists a pincer of evil designed for the purpose of destroying Western civilisation but who is determined to overcome this. He is thus a worthy successor to the accolade ‘Leader of the Free World’, notwithstanding those ludicrous attempts to replace him with Angela Merkel, despite her energy follies and her throwing open Europe’s borders.

On one side of this pincer of evil, we find an updated Marxist ideology, hidden under a staggering variety of fashionable and often apparently deranged − but never harmless − new dogmas. An Australian example is the so-called ‘Safe Schools’ program, the aim of which derives from Engels, the destruction of the traditional family. Underneath this cacophony of programs, plans, theories, fashions and fads is the same old-fashioned Marxism; Marxism from the pens of Marx, Engels, Lenin, Stalin and Mao. This is notwithstanding the fact that, like its bastard progeny, Nazism (National Socialism), this ideology has been proven to be, everywhere and at all times, a loathsome, wicked and inhuman failure. As such, it has been responsible for the deaths of 100 million and the ruination of the lives of hundreds of millions more. And yet this same vile Marxism, updated and camouflaged, is obtaining remarkable, indeed unbelievable, success in furthering its fundamental and eternal aim, the destruction of Western economies and their underlying civil societies which have been essential to our success and happiness. And in their place we are to have a centralised, globalised, all-powerful, utopian authority, administered by the usual elites, a sort of Human Rights Commission writ large.

The increasing success of this suicidal mission has been greatly advanced by the long march of the elites through the institutions, schools and universities, courts, political parties, the media and even that corps of crony capitalist CEOs who eschew the competitive marketplace for political favour and condescension.

The principal weapon against our economies, designed to impoverish us and to turn us into third world states on the Argentinean and Venezuelan models, remains the pseudo-science of global warming. This is notwithstanding the hiatus in warming extending over almost two decades which has tellingly coincided with a massive increase in man’s CO2 emissions.

This must be the hiatus whose origin was somewhat belatedly claimed by Barrack Obama, who in defeating Mrs Clinton for the Democratic nomination on 3 June 2008 at St Pauls, Minnesota, solemnly declared, Urbi et Orbi and no doubt by autocue, that future generations would say that ‘this was the moment when the rise of the oceans began to slow and our planet began to heal’. Global warming indeed.

In conformity with the Obama declaration, but all alone among the world’s leaders, President Trump has now acted to end the undermining of the US economy by unilaterally withdrawing from the Paris Agreement. He pointed out, consistent with research by Bjorn Lomborg, who is no denier, that even if all countries did what they promised to do by the end of the century, future warming would be reduced by only 0.17 degree Celsius, and at the cost of trillions of dollars. This predictably resulted in a chorus of objection by the other political leaders who have rolled over and accepted this fashionable fraud, even if it impoverishes their people and destroys their countries. The news was presented as another justification for, if not impeachment, a declaration of his incapacity under the Twenty-fifth Amendment. In the meantime, there is only one way Australia can escape from the increasing destruction being waged on our economy through the massive and pointless increases in the price of energy imposed by the Turnbull government. This is that the Liberal backbench bed-wetters will, as the 30th Newspoll approaches, be thrown into yet another self-interested panic and return Tony Abbott to the leadership. Only then will it be possible to stop Labor, who have learnt absolutely nothing from the massive profligacy and incompetence of the Rudd-Gillard-Rudd governments, from forming the next government. An Abbott victory will probably only be achievable with the support and preferences of Cory Bernardi’s Australian Conservatives, growing as it occupies the field of Menziean principle abandoned by the Turnbull-Photios axis, and aided of course by Pauline Hanson’s One Nation.

So much for the economic side of the pincer of evil. On the other side are the militant Islamists whose principal weapon is to terrorise the civilian population into surrender. To a great extent subsidised by the innocent populace who are their victims, they were imported into Western countries by negligent, incompetent and short-sighted politicians, too often as electoral fodder and under yet another fashionable dogma, open borders. The worst instance of this was by German Chancellor Merkel, who recently admitted over one million ‘refugees’, mostly males of military age. Once again, it is President Trump who is prepared to fight to seal the borders, although his attempts to do so have so far been thwarted by left-wing politician-judges slipped into office by the Obama administration, with the Republican Senate establishment inexplicably failing to exercise its veto. He will also keep the Guantánamo Bay prison so that captured terrorists cannot return to their evil practices.

Given that the United States is at war, the President will no doubt consider further action, including internment as a preventative measure. Of course the politician-judges will oppose this, but as further vacancies occur, he will do what he did with the Supreme Court, and fill them with real judges who will apply the law and not a left-wing political agenda.

[This comment was published in  Spectator Australia on 10 June 2017 and was the subject of an interview by Michael McLaren  over 2GB, 4BC and Macquarie Media  Network on 7 June 2017 athttp://www.2gb.com/podcast/david-flint-3/]

 

 

Posted on 30th May 2017

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''Marine Le Pen: Restoring the sovereignty of French people, just as Brexit is for the British and Trump for the Americans....''

Featured
Professor David Flint
Alan Jones talks to the academic and author about this weekend’s French presidential election
Alan Jones
Friday 5 May 2017
https://omny.fm/…/the-alan-jones-brea…/professor-david-flint

Only a President Le Pen can save France

Spectator Australia

6 May 2017

 

If the voters obey the elites and elect Emmanuel Macron, the Fifth Republic may well be doomed, which could have as great an impact on Western civilisation as the revolution did.

France is approaching one of her regular crises− five within living memory − where her constitutional system is in danger of being swept away, the consequence of putting her revolution on a pedestal. In the time we evolved from a penal colony into one of the world's oldest continuing democracies, France has been an absolute monarchy, a revolutionary state, five republics, two empires, two constitutional monarchies and a fascist dictatorship.

The Fifth Republic may well fall under a President Macron for the reason that he offers no real solution to the economic crisis which is ravaging swathes of the country with unconscionable levels of youth unemployment, nor to the bloody terrorist war now being waged on the soil of France. In an opinion piece in Le Monde on the bloody 2016 Berlin Christmas market terrorist outrage, Macron recited the predictable mantra "We are all Berliners now" and then lavishly praised Chancellor Merkel for having saved the EU's ''collective dignity'' in rolling over to the uninvited entry of over a million immigrants − mainly young men of military age. If this is recalled before the second round, he will lose even more the confidence of la France profonde.

While Macron endorses open borders and submission to Brussels, what else does this millionaire banker and recent socialist minister believe?

Last year he was in favour of exploiting fossil fuels for energy; this year he's opposed. Last year he was in favour of decriminalising cannabis; four months later he was opposed. Last year he did not believe ''for a second'' in governments using ordonnances to ram through legislation without debate; five months later he proposes one. In December 2014 he explains "Why I am a socialist"; in August 2016, he declares "I am not a socialist". His campaign manager says this is because he is ''intellectually from the left'' and ''hasn't distanced himself from the Socialist party''. So much for Macron campaigning as a centrist.

When Macron, who has never held elected office and lacks firm principles, came in just ahead of Mme Le Pen in the first round, he delivered an extraordinarily complacent speech as if he had been elected president. Then he was off to an elite victory dinner at the fashionable brasserie, La Rotonde. He forgot what le tout Paris did not, the outrage which followed Nicolas Sarkozy's elite victory dinner at Fouquet's after he defeated socialist Ségolène Royal, former partner of President Hollande and mother of his four children. De Gaulle's presidential monarchy would be wasted on Macron who will be a mere satrap of Brussels, Berlin, banking and the elites. His only strong words seem to be in threatening retribution to the British for daring to vote for Brexit.

Mme Le Pen has run rings around him in her campaign. When he visited a factory in Northern France to be closed down and moved to Poland she came to the factory gates and announced that the manufacturers would face a hefty tariff on exports to France. The workers cheered her and booed him. Unlike the situation faced by her father in 2002, not all of those defeated in the first round oppose her with the gaullist Nicolas Dupont-Aignan agreeing to be her prime minister.

In addition, her supporters are probably more loyal than Macron's, highly relevant in a country where voting is not compulsory. Serge Galam, from the prestigious Sciences Po university, has attempted to measure this and concludes that even if early polling suggesting Macron is ahead 60:40% holds, '' differentiated abstention'', could still result in a Le Pen victory. For example, if 90% of people who said they would vote for Mme Le Pen do so but only 65% of Macron's do, Mme Le Pen would win with a score of 50.07%.

Mme Le Pen offers France the only hope of regaining her status as a great independent sovereign state, with the power to determine, as homme d'État John Howard famously put it, who will come into their country and the terms on which they will come. She promises to withdraw from the maze of EU rules which are deindustrialising the country, leaving massive unemployment in its wake. She alone promises to dissolve the no-go caliphates under sharia law that surround Paris and other cities and from which have come a series of terrorist outrages. For this, she will not hesitate to use the vast powers of the gaullist presidential monarchy, including the command-in-chief, all of which would be wasted on Macron . Presiding over the cabinet she chooses, with her Prime Minister, she will exercise a wide law making power more akin to that of the ancien régime to hand down decrees or executive orders. The Le Pen administration will be able to ram through bills in areas reserved for acts of parliament without debate through the use of the gaullist ordonnance, with a recalcitrant assembly knowing that; unlike President Trump, this elected presidential monarch may even dissolve the Assembly, whenever she wishes, and call new elections. In the face of further terrorism, it will be not at all surprising if a President Le Pen were to be only the second president (after de Gaulle of course) to use the extraordinary powers, pouvoirs exceptionnels, if terrorism continues, or as is possible, becomes even worse. If in her opinion, the institutions of the republic, the independence of the nation and the integrity of its territory are under grave and immediate threat and that the proper functioning of the constitutional governmental authorities is interrupted, she is empowered to take the measures she judges are demanded by these circumstances.

To her supporters, only Le Pen can save France from civil disorder and economic ruin. Macron is very much the preferred candidate of the elites, who want him only because he will change little.

[David Flint and Marine Le Pen hold Master of Laws degrees from the Sorbonne Law School (University Panthéon-Assas (Paris II). This comment is to appear in Spectator Australia 6 May 2017. It was the subject ofinterviews on 2GB, 4BC and the Macquarie Media Network with Michael McLaren on 2 May at http://www.2gb.com/…/david-flint-maps-le-pens-path-to-vict…/ Mike Williams on 29 April 2017t http://www.2gb.com/…/professor-david-flint-2017-french-ele…/ and Alan Jones on 5 May 2017https://omny.fm/…/the-alan-jones-brea…/professor-david-flint] 

Governing for headlines and opinion polls
David Flint

26 April 2017

Spectator Australia
www.spectator.com.au





You would think that after imposing what they had promised not to impose, a new tax on superannuation, or the backpacker tax, the Turnbull government would have at last learnt its lesson. Governing contrary to the principles of the ruling party or where self-interest is the dominant purpose, for example, to create media headlines and influence the next opinion poll, is wrong and does not go unpunished.

Take one example, the superannuation tax. The government promised never to impose it. Moreover, it was completely unnecessary. The build-up of very large superannuation funds was already a thing of the past. It had been stopped over the years by the increasing limits placed on contributions. There was no problem.

One of the stated purposes of the new tax went completely against the principles of the Liberal Party. This was to take money from savers and redistribute this as a gift – not welfare – to those who had not saved. Moreover, it left the politicians’ platinum-plated and gold-plated schemes producing magnificent returns in place, supplemented by two institutions created by the politicians. One is “jobs for the boys (and girls)”. The second is allowing what is forbidden in some countries, moving directly into the lucrative profession of lobbying politicians. Now, what is lobbying? It doesn’t require great skills. All the lobbyist has to do is secure taxpayer funded government contracts by opening the doors of politicians he or she already knows and who of course will be potential candidates themselves for future careers as a lobbyist. This is particularly questionable where a minister awards lucrative contracts without tender or an open process to a lobbyist’s client, particularly when that lobbyist is a powerbroker who plays a key role in preselecting new politicians in the minister’s party.

In the meantime, the unintended consequences of the new superannuation tax include discouraging people, young and old, from investing in superannuation. This is because of the entirely justified suspicion that politicians from both sides will change the rules. Another unintended consequence is that the appallingly complicated new rules adopted to levy the new tax create significant additional compliance costs for everyone.

Many in the coalition’s base saw the new tax as being targeted against it. The result was that many party members went on strike both, declining financial contributions or working during the election. They and many coalition supporters decided that, contrary to expert advice, they did in fact have somewhere else to go. A significant number gave their first preferences to other parties. The superannuation tax has been a disaster for the Liberal Party.

Then came another act of unbelievable foolishness on the part of the government. This was their decision to go ahead and try to seize almost one third of the miniscule earnings of young foreign backpackers. The services of these young people had become necessary because the politicians have, mainly as a vote buying exercise, trained a number of young Australians not to work but to live off welfare. With all their vast resources, including their armies of advisors, the government seemed appreciate that backpackers are mobile and not bound to come to Australia. With the harvest threatened, the government eventually compromised on the level of the tax, although various ministers had previously declared they would never do this. In an act of unbelievable meanness, they still managed to steal most of the young backpackers superannuation.

After this, we would have thought that before rushing into some new decision they would think first. But then, to play the powerful political leader to the media, the Prime Minister announced the dramatic ending of the 457 visa scheme, without first ensuring that there were no unintended consequences. Surely by now they had realised that the way to do this would have, at least in the grey areas, to release a discussion paper setting out the options. Above all, there should be an immediate review involving public consultation of the size of the immigration intake mainly into overcrowded Sydney and Melbourne, as Tony Abbott proposes.

The business columns of the newspapers are now full of examples of 457 visas no longer being available for the most ideal of potential immigrants, workers with those skills, which are desperately needed here. These are neither the unassimilable nor the welfare immigrants, nor the chain immigration brought in merely because they are related to other immigrants. Of course the rorts should have gone and gone earlier, but the overall review and the 457 grey areas should have been put out for discussion to avoid the number of unintended consequences which are now emerging. But no, the Prime Minister had to show himself as a determined and powerful leader who gets things done.

The universities and the IP sector are up in arms. In The Australian on Anzac Day, the respected finance columnist, Robert Gottliebsen, writes about a firm which had been unsuccessfully advertising for a specialised international property lawyer for 15 months, someone no doubt essential for the development of new technologies and ventures in Australia. They could not find such a person in Australia but eventually found one overseas, someone clearly eligible for a 457 visa. Believing there was no problem, the person selected and her husband resigned their jobs to come to Australia. But suddenly, this occupation was “mysteriously… removed from the list of 457 occupations.” She can no longer come to Australia. He gives other examples, as do many other reputable business journalists.

The point is that immigration overall has to be subject to a root and branch review involving the people, rather than the Prime Minister playing around at the edges to impress the commentariat.

There is one thing tragically absent from too many of the decisions of the Turnbull government. It’s plain down-to-earth common sense. Will they never learn? They will only if they decide to govern in the national interest and according to the principles on which they were elected, not for headlines and to influence the next opinion poll.

[This comment was the subject of an interview with Mike Williams on 2GB, 4BC and the Macquarie Media Network on 29 April 2017. The podcast may be heard at http://www.2gb.com/podcast/professor-david-flint-2017-french-election/]


The Human Rights Commission Must Go
David Flint

Spectator Australia 1 April 2017

 


Described by its leading victim, Bill Leak, as a ‘rogue totalitarian unit’, the Human Rights Commission is an ugly stain on our democracy. Tony Abbott is right; it must go. The long and expensive harassment of those entirely innocent QUT students, the gagging of Andrew Bolt and the pursuit of Leak are only the tip of the iceberg. Underneath, the chilling of free speech has been spreading, like some plague bacillus, into the editorial offices and work places of the nation. Meanwhile, serious racism continues with impunity, with synagogues and Jewish kindergartens forced to operate behind high security and Australians forced out of the ghettos.

Activated now only by race and minority religion (principally Islam), Labor is planning a bewildering range of triggers under section 18C of the Racial Discrimination Act to control speech about sex, age, sexual preference, gender fluidity, disability, and same-sex marriage. Self-selected leaders of identity ‘communities’, real and fictional, will be thus empowered, with Labor anticipating rewards at the polls.

Labor is consistent, having spectacularly tried to control the press recently. Unlike Abbott’s welcome call to stop funding the HRC, the Turnbull government’s belated minimalist reform to 18C shows a Coalition in lockstep with the Left. Its new test of harassment, according to the standards of the reasonable person, will still be decided by a judge. Knowing what most defamation judges think is reasonable editorial behaviour, serious journalists will be especially fearful; without a jury, rulings similar to that in the Bolt case can be expected.

Apart from introducing juries, as Neil Brown proposed here, the Keating government’s sneaky extension of 18C to Islam must go. Why should jokes about Halal food, or protests about building mosques be actionable but not a photograph of a crucifix in urine?

The inclusion of minority religions was effected not by the words of 18C, but by an Explanatory Memorandum, an obscure device containing riding orders to the judges. If the politicians didn’t read this and relied only on what the minister said in his second reading speech, they would have been in the dark. He neglected to reveal that Islam was covered too.

The Explanatory Memorandum says common descent is not necessary to share an ‘ethnic origin’, a synonym for ‘race’ in 18C. Sharing some other characteristic, such as a religion, is enough, provided it is a minority religion. The Muslim religion is mentioned, not so surprising with Labor having already demonstrated its obsession with the Muslim vote by going so far as to remove their Minister for Immigration when he was about to do his duty and deport the imam Sheikh Taj El-Din Hamid Hilaly. If the politicians didn’t read the Explanatory Memorandum, the judges did, including Justice Bromberg in the Bolt case. As did the ACT Human Rights Commissioner in a case concerning protests about the building of a mosque.david flint

The fact is that 18C, the RDA and the formation of the HRC are not supported by the text of the Constitution as understood by a reasonable person at the time it was adopted or amended. The contrasting claim that the Constitution is a ‘living, breathing document’, therefore meaning whatever the judges say it means, is an invention of the American elites and was rejected in the recent presidential election.

The Federal Parliament is a parliament of strictly limited powers. The founders and the people intended that all powers not listed in the Constitution are for the states and the people. The one federal power about race is to make laws for the ‘people of any race for whom