Monthly Archives: November 2005

Who’s the dad? Why he may not know

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HE tangled web that some women weave begins when they discover they are pregnant. Perhaps they had an extramarital fling; or one relationship ended the same month that another started; or they were raped or coerced into the kind of sex that few would call consensual.
The result: one pregnancy, two potential fathers, and the beginnings of a dark and painful secret.
Why Women Don’t Tell is the title of the latest paper in a study that talks to men and women who have dealt with doubts about who is the father of a child. Most of the women who were uncertain of their child’s paternity did not intend to commit “paternity fraud”, researcher Dr Lyn Turney, of Swinburne University of Technology, said.
They just found themselves in a position where they could not be sure and kept their uncertainty to themselves.
The longer it went on, the harder it became to confess, mostly because they did not want to damage the relationship between their child and their partner.
“You just have to see them together to see how much they love each other,” one woman said. “And love’s an intangible thing and it’s something that grows with you . . . It takes a long time . . . And since the day (she) was born, that’s it, he’s Dad.”
The interviews with more than 50 people found that even when the social father suspects – because the child does not look like him, or friends have dropped hints, or there were unexplained tears or whisperings at the time of the child’s birth – he rarely takes any action while the relationship is happy.
It is when the relationship breaks down, and he finds himself financially supporting a child with whom he no longer lives, that he pursues paternity testing.
“For both men and women, the common (trigger for testing) is child-support payments,” Dr Turney said.
The issue of “paternity fraud” hit the headlines earlier this year with the case of Liam Magill.
Because of bureaucratic errors, Mr Magill had to pay child support well above the legal percentage over eight years for three children. DNA tests proved that two of the children conceived during his four-year marriage were not his own.
Mr Magill, 54, was awarded $70,000 by the Victorian County Court in November 2002 after he sued his former wife for damages and economic loss for deceiving him.
But his ex-wife, Meredith (Pat) Magill, 37, successfully appealed against the decision. Her defence argued that in putting his name on birth notification forms, Mrs Magill had not intended to assert that he was the biological father.
The Victorian Court of Appeal ruled Mr Magill had not relied on statements in the forms in any respect other than the children’s names. Mr Magill is now appealing to the High Court.
The case launched a blaze of publicity, with claims the incidence of “cuckoo chicks in the nest” is between 10 per cent and 30 per cent of all children.
Dr Turney and her colleague, Professor Michael Gilding, say there are no reputable studies that back those figures, and that the most reliable estimates suggest the true incidence is between 1 per cent and 3 per cent of children.
Dr Turney said the women in her study, reported on in the Journal of Family Studies, did not fit the “moral panic” stereotype of unfaithful, manipulative partners. Many were young, naive and sexually inexperienced.
“The pregnancies usually resulted (from) one-off encounters that occurred at the margins of monogamous relationships,” Dr Turney says.
“They did not involve infidelity or deception, as the women were either free of a relationship or minimally attached to dying, old, or embryonic new relationships.”
But the women feared their new relationships would not withstand revelations about a prior sexual encounter.
One woman had unplanned sex with a long-time friend, the first since the death of her husband a year earlier; several days later she met a new man who then became her partner. “I found that I was pregnant so I just assumed it was the second chap because I’d continued sleeping with him,” she said.
Some reported being “in denial” and choosing the course of least resistance: not telling, and not deciding whether to terminate the pregnancy. All the women blamed themselves.
One woman who did tell her partner about a single sexual episode during a brief separation was knocked to the floor and kicked until a rib broke.
Some women reported conceiving while trapped in abusive relationships in which they were forced by their husbands to have sex with other men.
“I got, ‘If you love me, you will do this for me’,” one said. The paternity of resulting children was accepted by such husbands only until the relationship ended.
Either side can use paternity – or lack of it – as a dirty tool in Family Court battles. In an earlier paper, Dr Turney reported that men told of some mothers pursuing testing so that their ex-husbands could be made legally a “non-father”, often losing custody and access. “There is a child out there who loves me and was ripped away from me,” said one man. “I miss him every day.”
Some men who had testing done secretly were shocked that their ex-partners then refused them access to a child they no longer wanted to pay for.
Women in the study reported having to force testing upon errant partners who denied paternity for tactical reasons, trying to delay the onset of child support payments. They felt humiliated at the suggestion that they had had other sexual partners.
Some professional women did not want money but for the father to have an emotional relationship with the child.
According to one, “I thought that, when he had incontrovertible evidence there, that it might enable him to make a bond with the child”.
Dr Turney said the cases in her study suggested that the realities of paternity uncertainty were complicated. There needed to be an acceptance that such cases were “mistakes due to the human condition”. “It’s a really complex situation for both men and women,” she said.
For further information about the study or if you have a paternity story, phone 1800 007 166 or email lturney@swin.edu.au.
DESPERATELY SEEKING DADDY
Up to 5000 paternity tests are conducted in Australia a year – about 0.25 tests for every 1000 people. In the US, there are 340,800 tests annually – 1.2 tests per 1000 people.
Between half and two-thirds of tests are initiated by men or parties acting on their behalf (eg: a man’s parents or his new wife).
On average, 25 per cent of tests are conducted with the consent of one parent only. These tests were overwhelmingly “motherless tests” – the mother was the parent who had not consented.
With “motherless tests”, only 10 per cent confirmed the man was not the father.
SOURCE: PROFESSOR MICHAEL GILDING, SWINBURNE UNIVERSITY OF TECHNOLOGY

First published in The Age.

The precision of ritual in the gallows’ shadow

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ON DEATH ROW
Those who have witnessed a hanging say they are changed for life, writes Karen Kissane.
IN HIS final days, Nguyen Tuong Van will get the best care Changi Prison has to offer. He will also be weighed and measured with clinical precision to help calculate the length for the rope from which he will hang.
If his treatment mirrors that of those who have gone before him, Nguyen is now living in strict isolation in a cell measuring about three metres by three metres. He has a toilet and a mat for sleeping, but no bedding and uses a bucket for washing. He is not permitted to go out for fresh air or exercise.
Next week, his status as a man close to execution should win him special concessions: food of his choice (within the prison’s budget) and extra visits from relatives. And a visit from the hangman, who will check his weight and measure the distance from Nguyen’s neck to the floor before going away to make his calculations according to a bureaucratic manual, the Official Table of Drops, published by the British Home Office in 1913.
Singapore is believed to use “the long drop” method, which is meant to be the most merciful. The correct length of the rope for a particular individual is crucial to the “success” of a hanging – if success is defined as a quick death with little suffering.
Normally, only jail staff and a doctor are present at executions in Singapore, although others, such as a minister of religion, may be admitted at the discretion of the prison superintendent.
Nguyen’s senior lawyer, Lex Lasry QC, has applied to be a witness at the execution, along with fellow defence lawyer Julian McMahon.
“We’ve taken the view that, for our client’s sake, we’ve requested to be present at his execution,” Mr Lasry said yesterday. He has not yet heard from Singaporean authorities whether they will be allowed to attend.
Mr McMahon declined to discuss how he felt about the prospect of witnessing such an event. “Our focus at this stage is on what’s best for our client.”
Mr Lasry said he had been told not to attend by a lot of friends. “I’ve been cautioned about the consequences of it. People just think to be present at something like that would be a horrible thing and that inevitably there’s going to be a consequence – and I think they have Brian Morley in mind.”
Mr Morley, 69, was one of 12 journalists to witness the execution in Melbourne in 1967 of Ronald Ryan, the last man hanged in Australia.
Mr Morley said he had had some “indirect contact” with Mr Lasry. “He’s read all my stuff on Ryan so he’s mentally prepared for it.”
But all the preparation in the world could not insulate a witness from the shock of the moment, Mr Morley said. “He will still be very traumatised by it. I believe that if the premier of the day and his cabinet had witnessed Ryan’s execution, they would have abolished capital punishment on the spot.”
Mr Morley can still remember every detail “in vivid technicolour” and it distresses him to talk about it. He does so because, in the instant that Ryan fell through the trapdoor, Mr Morley became convinced that the death penalty should be abolished everywhere.
The journalists had gathered in D Division of the old Pentridge jail, keyed up by a string of public protests and intense political debate over the hanging. “It was a little bit like being in the press box at the MCG for the grand final – nervous excitement at the big story to be covered,” Mr Morley said.
A manacled Ryan was led by a hangman in welder’s goggles along a catwalk six metres above them. A green canvas sheet hid the area below the gallows’ trapdoors. Ryan turned to face the media before the cap on his head was pulled down into a hood covering his face.
“Then the hangman leapt back and hit the lever and he dropped immediately out of sight. There was an enormous clang as the trapdoors banged and all I could hear was the creaking of the rope, like a rope in a gymnasium,” he said.
Mr Morley had gone in with an open mind about the death penalty, but “for me it was a total emotional shock; so callous, so dreadful, so horrific . . . Everyone was traumatised, everyone who saw it. My wife said I was a real mess for a long time afterwards.”
Journalist Tom Prior was another witness. He was not available yesterday, but his wife said he had gone to Ryan’s hanging believing in the death penalty “because dead men never offend again”. He, too, converted to opposing it “in that instant. It changed him totally. He has spoken to his children and to me a lot about that.”
The Ryan hanging was traumatic for everyone associated with it, despite the dying man being hidden behind a screen. When the mechanics of process have failed, the result is even more gruesome.
“If the rope’s too long, the forces build up as the body falls and the person is decapitated,” said Tim Goodwin, anti-death-penalty co-ordinator with Amnesty International. “If it’s too short, it doesn’t break the neck with sufficient violence and the person chokes to death over a longer period.”
There are other variables, he said, such as the importance of placing the knot of the noose just above the jaw under the left ear “in order to crush the vertebrae in a particular way and snap the neck. If the person moves at the last moment, it can cause the knot to be dislodged and it doesn’t have the desired effect. Then the person can slowly strangle to death.”
If all goes according to plan, the dislocation of the vertebrae and damage to the spinal cord render the person unconscious almost instantly. The broken neck while hanging leads to “comatose asphyxia” – lack of oxygen while unconscious. Brain death follows in about six minutes and whole-body death in about 15 minutes. Some people exhibit muscle spasms while they are hanging.
“There’s nothing about this that’s pretty,” Mr Goodwin said. “It’s a brutal and gruesome death.”
Singapore has people who cannot stomach execution. It has been reported that the current hangman has been difficult to replace, as two prison officers trained to take over each froze when it came to pulling the lever for “the real thing”.
So shortly before dawn tomorrow week – Friday is the day for hangings in Singapore – the hangman who has done the job for 46 years will handcuff Nguyen and lead him on his final short walk to the gallows, a few metres from his cell.
As the rope is put around Nguyen’s neck, the executioner will say what he always says: “I am going to send you to a better place than this. God bless you.”
Nguyen will be hooded. At 6am precisely the hangman will pull the lever, the trapdoor will open and he will fall to his death.
The hangman will be paid $A312 for services rendered to the state of Singapore. — With GARY TIPPET

First published in The Age.

RU Serious?

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ABORTION
As politicians argue about whether the abortion pill should be available, women in country Victoria can’t get legal surgical abortions now. Karen Kissane investigates the cloak of disapproval in the bush.
OUTSIDE the big city it’s another country, and they do things differently there. “Anne” knew this. She expected that small-town life would be a big change when she moved to Castlemaine. But she did not realise quite how much of what she took for granted in Melbourne would be left behind.
Two years ago, she had an accidental pregnancy. Her contraception had failed. She was in her early twenties and felt that neither she nor her relationship were prepared for parenthood. She turned to the nearest big town, Bendigo, to seek an abortion. She called the rooms of a private gynaecologist and was told that termination would not be possible anywhere in Bendigo and that she would have to go to Melbourne. “I was pretty taken aback,” says Anne.
She was even more taken aback when, having organised transport and somewhere to stay, she arrived at a Melbourne abortion clinic on the appointed day to find that she had to negotiate her way past half a dozen protesters waving placards and posters. A man and a woman challenged her with, “Do you realise this is the size of the baby you are killing? How can you do this to your baby?” Says Anne, “It was like being accosted by paparazzi. You have to step aside; you have to walk around them. It’s really awful. And I am certain that this abortion clinic is where a lot of country women end up having to go. You don’t have many options if you don’t know people in the medical industry in Melbourne.”
What happened to Anne is not unusual: if a woman who lives outside Melbourne has an unwanted pregnancy, she must nearly always travel to the capital if she wants to end it. Thirty-six years after a Supreme Court decision opened the way for legal abortions in Victoria, it remains near impossible to get one in country areas except in one or two centres such as Mildura.
The lack of availability of surgical abortions may well have remained hidden had not doctors renewed their calls to legalise the abortion pill mifepristone (also known as RU486), which is banned in Australia. That led Victorian Liberal MP Sharman Stone, the member for Murray, to suggest that RU486 might help rural women. She has threatened to cross the floor on the issue if there is no conscience vote allowed when the Democrats try to change the law later this month. “I feel very concerned about the number of women and girls who have to go to capital cities now,” she said. “It’s a very traumatic, expensive, complex process for them. If you’re only 13 or 14 with no family or community support, you can imagine how traumatic that is.”
But Federal Health Minister Tony Abbott, who has opposed RU486, says there are potential health problems with the drug that mean it will never be “the answer to a country woman’s prayer”.
While opposing sides bat claims about the pill’s safety back and forth, there are broader questions. Given the reluctance of country hospitals and doctors to provide surgical abortions, (in some cases, individual rural doctors and pharmacists have even refused to provide the normal contraceptive pill), what chance is there that they would make mifepristone available even if it were legal?
There are still no abortions in Bendigo, despite the fact that it is a town of just under 100,000 people serving a wider catchment area of 300,000. “The Catholic church looms large on the hill overlooking the city,” says one health worker who has lived there. “It has one of the largest Catholic cathedrals in Australia.” She is one of several people interviewed for this report who claimed that local strongholds of Catholic opposition to abortion have influenced the health policies of state organisations in several rural areas.
Dr Christine Tippett, senior vice-president of the Royal Australian College of Obstetricians and Gynaecologists, was disbelieving when she first got a message from The Age asking her views on the lack of abortion in the countryside. “I thought, ‘This can’t be right!’ ” But after phoning rural colleagues, she confirmed that there was little access to the service.
She says many country gynaecologists refuse to do the procedure on moral grounds – “A lot of them are practising Catholics” – and that the strong Catholic heritage of cities such as Bendigo and Warrnambool means there is opposition to abortion “within the organisations. I think that does influence it quite significantly”. It is one thing for an individual doctor to decline abortions for personal moral belief; many would accept that as legitimate. Tippett says it is a stance the college respects, and any of its trainees who conscientiously object to abortion are not expected to participate. But some sources have told The Age that Bendigo has specialists who are willing to perform elective abortions but cannot get access to theatres at the publicly funded Bendigo Base Hospital. “If you try and get a theatre (for abortion) you won’t get it except on medical grounds,” says a local health source.
A spokeswoman for Bendigo Hospital confirmed that it does no abortions and said this was simply because “it is not our policy and we have never done them”.
Tippett says, “I think gynaecologists in Bendigo are aware that in fact they are not encouraged to do terminations. It’s something made clear to them.” How? “These things are often very subtle, aren’t they?”
She says the college represents many diverse views and cannot have a stance on the rights and wrongs of abortion itself, although “clearly we believe that women should have access to termination of pregnancy”. Nor can it comment on state hospitals that do not permit the procedure: “We can’t dictate to hospitals what they do. They are autonomous bodies funded by a state department.”
There is a strange kind of silence about the lack of rural abortion. Several women’s organisations and health services are reluctant to speak on the record for fear they could further entrench opposition to it. One woman who worked in Gippsland health services for many years believes that previous waves of anti-abortion demonstrations might have contributed to the current lack of services: “About 10 years ago there were big protests outside hospitals that were doing this kind of work. I think that sort of thing has a greater impact on practitioners in country towns than it would, perhaps, on people in an abortion clinic in Melbourne. I would suggest that that has been part of why they are not done any more.”
Country life is different. It is not just patients who are subject to the conforming pressures of their neighbours’ social monitoring. A health specialist based in Melbourne says the conservatism of rural towns can defeat even the best-intentioned doctor. She tells of a doctor who opened up a bulk-billing practice in a town in the Goulburn Valley. “He started it for the good of the community but he was ostracised by his peers. His capacity to stay and raise his family and live his life there was destroyed. The same sort of shunning can happen over abortion procedures.”
Some doctors argue that the need to go to Melbourne is a blessing in disguise for rural women, who fear that their confidentiality is not safe in areas where everyone knows everyone. Bendigo GP Dr Ray Moore says that, in 27 years of referring women to Melbourne, he has only known one patient to protest over not being able to have an abortion locally. “It’s still a small-town environment and, whilst confidentiality is something that we all uphold, people in small towns know how that environment works, and most people would prefer not to have their termination here.”
Moore believes that for RU486 to become readily available, even if it were legalised, “there would have to be quite a sea change in rural environments”. Doctors would have to be willing to prescribe it, chemists would have to be willing to dispense it, and women would have to be willing for local health workers to know their situation. Others argue that the lack of rural abortion services, both surgical and medical, is a serious problem. “It’s dreadful. If you don’t have much money, it’s often unachievable,” says Deb Parkinson, research worker with North-East Women’s Health. “Often you have to go down to Melbourne the day before so that you can have counselling, so you have accommodation costs. Many women want to take a friend or family member with them. There are transport costs and often about $200 of medical costs that’s not covered by Medicare.”
There is limited access to public hospital beds for abortion even in the city. The associate director of women’s services at the Royal Women’s Hospital, Dr Chris Bayly, says the hospital gets many more requests for abortion as a public patient than it can meet. The hospital does about a sixth of the state’s procedures. Monash Medical Centre is the other large city provider.
According to figures released by the State Health Department under a recent freedom of information request by The Age, Victoria had 19,590 abortions in 2004. Of those, 14,805 were done privately and 4785 were public patients. At one private provider, the Fertility Control Clinic in East Melbourne, between a third and half the procedures are for women from the country, according to the clinic’s psychologist, Dr Susie Allanson.
Angela Taft is the national co-convener of the women’s health special interest group of the Public Health Association of Australia. “Given that we know that the majority of people are in favour of access to termination, (any refusal by country hospitals that have willing doctors) is gatekeeping. It’s disadvantaging rural women based on religious discrimination. We would be keen to have the Health Minister examine any such blocks,” she says.
A spokesman for State Health Minister Bronwyn Pike says she believes that hospital services should be determined on the basis of medical issues and not ideology. He says the minister had been unaware of any problem in Bendigo and would raise the matter with the hospital. She would also ask the Maternity Services Advisory Council to look at the issue of provision of abortion services in the region. Pike supports RU486 being made available “and is concerned that Tony Abbott is blocking it for ideological reasons”.
The drug was banned in the first place in a political trade-off. The Federal Government wanted the support of Tasmanian MP Brian Harradine in 1996 for the partial sale of Telstra. Harradine, a conservative Catholic, extracted a promise to ban RU486 as part of the deal. Unlike all other drugs, which are approved or rejected after medical assessment by the Therapeutic Goods Administration, RU486 can be imported only with the permission of the Federal Health Minister, Tony Abbott. With his own MPs this week threatening to cross the floor on the issue, Prime Minister John Howard said yesterday he is considering allowing a conscience vote on overturning the Harradine amendment.
Tippett is doubtful legalising the drug would make a significant difference because any doctor prescribing it must have surgical back-up. “I don’t believe the availability of mifepristone is necessarily going to make abortion more available . . . You would need practitioners who themselves are prepared to do abortions and a community that supports them.”
She says that otherwise women who had taken the drug could find themselves in an emergency wards in which staff opposed terminations.
But Dr Bayly believes mifepristone might expand the availability of abortion in the country. Emergency hemorrhages would be rare, she says; most women who needed to have the procedure finished surgically would have plenty of time to get to a large centre.
“There are compelling reasons to legalise it: it is a safe, proven method that many women prefer.”
THE LEGAL GREY ZONE
ABORTION and “child destruction” remain in the Victorian Crimes Act 1958, which makes it illegal to “unlawfully administer any poison or unlawfully use any instrument with the intent to procure miscarriage”.
In the case of child destruction, one cannot “unlawfully cause (a) child (capable of being born alive) to die by any wilful act”.
The meaning of “unlawfully” was determined in 1969 by a Victorian Supreme Court judge.
The “Menhennitt rules”, as they are known, say that an abortion is not unlawful if a doctor honestly believes on reasonable grounds that the abortion is necessary to preserve the woman from a serious danger to her life or her physical or mental health.
Doctors have used this interpretation to give women abortions for social and economic reasons on the basis that they might suffer depression or other emotional problems if forced to continue with an unwanted pregnancy.
HOW RU486 WORKS
RU486, or mifepristone, induces miscarriage by blocking the hormone progesterone, which is needed to sustain pregnancy.
It is administered in a clinic. The patient later takes a prostaglandin called misoprostol, which causes contractions in the uterus and helps tissue to pass. The process is like a spontaneous miscarriage and is usually complete within a few hours. There is pain and bleeding for a few days and the patient must return for check ups.
In about one case in 20, the abortion will be incomplete and the woman might need a surgical procedure finish the termination.
A COUNTRY PRACTICE
NORTH-EAST HEALTH (WANGARATTA HOSPITAL) Serves 70,000 people. Rarely does abortions; only two in the last seven years, both involving severe foetal abnormalities. “Neither of the obstetricians here are keen to do them,” says director of nursing Chris Giles. Women go to Albury or make a three-hour trip to Melbourne.
LATROBE REGIONAL HOSPITAL (TRARALGON)
Serves 228,000 people. “We don’t have any doctors who do elective abortions,” says spokeswoman Jenny Ginnane. “It’s up to the visiting medical officers whether they choose to do an operation and currently we don’t have anyone who chooses to do them.” Abortions “in extreme circumstances” do occur but very rarely.
MILDURA BASE HOSPITAL
Serves 57,500 people. Elective abortions are performed at the hospital, says spokeswoman Emma Pepyat. The only limitations are those imposed at doctors’ discretion or by legislation. Mildura Hospital is publicly funded but managed privately by Ramsey Health.
BENDIGO HEALTH
Serves 300,000 people. “We don’t do them at all,” says spokeswoman Bronwyn Wheatley. “It’s not our policy to do them. The reason we don’t do them is because we have never done them.”
BALLARAT BASE HOSPITAL
Serves 200,000 people. Did not return calls.

First published in The Age.

A town farewells three small brothers

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IT WAS such a quiet funeral, despite the number of people who came: 120 in the sweet little country church, another 400 or so on plastic chairs under the spring sunshine outside.
People sat still and silent, even though the crying began long before the service did, with women wiping tears from eyes reddened for hours.
But at the end of the funeral service, the church exploded with the Farquharson boys’ favourite song – Holy Grail by Hunters and Collectors. The music thumped with life as 12 young men in dark suits rose from the congregation and walked grimly towards the three small white coffins, ready to carry them out. Then there came another sound: a high, thin wail. Bereft mother Cindy Gambino was keening for her boys.
The coffin of her eldest, nine-year-old Jai, was carried out first. Then the smaller casket of his middle brother, Tyler, 7. And then the heart-rendingly small box in which lay Bailey, the baby, who was 2. Each had his own small bouquet of red roses and baby’s breath.
Behind them staggered their mother in a long black dress, her face contorted with grief. She leaned heavily on the arm of her ex-husband, Robert Farquharson, the man who had driven the car in which their three children had died. He stared straight ahead with a dazed expression.
The rest of Victoria knows these children for the way they died: drowned in a dam after their father’s car veered off a road as he was returning them from an access visit on Father’s Day. All three were later found to be free of their seatbelts and child restraints, and police think that Jai might have struggled to release his brothers before they died.
Police have questioned Mr Farquharson about the circumstances of the crash, which left no skid marks on the road. The car was found to have its engine and its lights turned off. Mr Farquharson told police he had a coughing fit and blacked out, waking to find himself in the water. His ex-wife’s family have told media he was a wonderful father and that this was a terrible accident. His ex-wife spent the first few days after the crash sedated in hospital for shock and grief.
Yesterday, at St John the Baptist Catholic Church in Winchelsea, mourners heard of the boys that their family knew. Family friend Wendy Kennedy gave the eulogy. Jai “was generous, like his father; he always wanted to look after his younger brothers”. He was a footballer and a cub scout and had a red belt in karate. He loved acting out moments from movies – “it was always the adult jokes he liked, the ones he shouldn’t have understood”.
He also loved money and was happy to earn some mowing his Poppy’s lawns, but preferred the “Tattslotto chair” on his Sunday visits to his grandparents’ house, where he would raid his grandfather’s chair for the change that had fallen from his pockets through the week.
Tyler had his mother’s grin and loved hot dogs and mudcakes and his grandma’s vegie soup, strained. His mother said of him, “Have food, will travel”. He was a joker, best known for his cross-eyed faces and the plastic dog poo he hid in his grandfather’s bed.
Little Bailey called the family dog “Woofy” and the family cat “Puss”. The cockatiel was simply “my bird” and would sit on his shoulder while he fed it cereal. Bailey was old enough to protest against anything he didn’t like with “This is quack, mum!” When told that that was naughty, he would play his strongest card: “But me just a baby, Mum!”
Outside the church, as the three coffins were loaded into two hearses, Cindy Gambino and Robert Farquharson clung to each other. His lower lip jutted out and trembled as he struggled to contain his distress. Several times he hugged her in a helpless kind of way as she gazed blankly at the hearses, as if she could not comprehend what she was seeing.
They both looked shocked and disbelieving to find themselves in a world without their children.

First published in The Age.

HE’S BITING AND SATIRICAL, BUT IS LEUNIG ALSO GUILTY OF SEDITION?

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FOCUS
Writers and artists are alarmed. So are some lawyers. They fear the Federal Government’s new sedition laws could strike at the heart of free speech. By Karen Kissane.
COMEDIAN Rod Quantock likes to joke that the proposed sedition laws so bitterly attacked by the arts community might actually end up saving it. “I think it’s a bit of an inspiration,” he says.
He points out that Australia has won only one Nobel Prize for literature, which went to novelist Patrick White. “Most Nobel prizewinners come from repressive regimes,” he says. “This offers us a great chance to win more Nobel prizes, even though we might have to accept them anonymously from behind bars.”
Quantock, latterly best known for his comic bus tours, says he will pursue other opportunities provided by the terror laws: “I was thinking of a terror target tour of Melbourne.
You get a discount if you are even vaguely Middle-Eastern looking.”
Quantock’s humour has always been black. So are the prospects for artists, writers, comics, journalists and political dissenters, according to the wide-ranging groups who see the Federal Government’s planned changes to the law on sedition (see box) as a dangerous threat to free speech.
The Government and its defenders retort that the changes merely tweak laws that have been on the books for decades, and that the purpose of the changes is not to undermine democratic freedoms but to defend them.
Sedition is broadly defined as conduct or speech that incites rebellion. The Government’s proposals are meant to be aimed at those who incite or encourage terrorism, but the wording of the bill has aroused disquiet, not just in the Opposition – which wants sedition removed from the anti-terror laws – but even in the Howard Government’s own ranks. MPs including Petro Georgiou, George Brandis and Malcolm Turnbull have been critical of the proposals.
Playwright Hannie Rayson says the proposed bill contains three types of rules on sedition: sedition and treason offences that require an element of force or violence; new offences that do not require an element of violence but merely support of “any kind” for “the enemy”, which can be defended only if the accused proves he or she acted in terms of “good faith”; and a slightly expanded test for banning an “unlawful association” based on a very broad definition of “seditious intention”. The proposals also increase the penalty for the main sedition offences from three to seven years.
Rayson says: “Where artists will be caught by these provisions is the section of the proposed sedition law which outlaws support of ‘any kind’ for ‘the enemy’. The enemy is defined as individuals or organisations in a state of conflict with Australian forces outside Australia. At the moment this includes the Philippines, Afghanistan, Iraq and East Timor.”
Most of the recent crop of refugee plays, films, mini-series and documentaries are caught by this,” Rayson says. “In urging a more humanitarian approach to refugee issues, most artists are seeking to portray ‘the enemy’ in a positive light, not as a faceless unknowable alien threat but as a human being. The artist’s interest in exploring psychology, human relationships, the human condition, is going to urge disaffection with the cruelty that is being meted out to these people by government policy.”
Rayson believes that the sedition net will be cast so wide that it could even capture Mambo T-shirt artists who bring the Queen or the Government into disrepute. “They have no defences available to them. They can’t rely on the ‘good faith’ provision,” she says.
Many senior legal figures are also concerned about the proposals. Alistair Nicholson, formerly chief justice of the Family Court and now an honorary professor at the University of Melbourne, says the sedition laws forbid attacks on the constitution.”
I think a lot of people think there is a lot wrong with the constitution, and that they should be able to say that,” he says.
The defence of “good faith” does exempt those who can prove that, for example, they were pointing out in good faith the flaws of government legislation with the aim of reforming it. But Nicholson says the sedition proposals reverse the traditional onus of proof. In law, it is customary for the prosecution to have to prove its case beyond reasonable doubt. The accused must prove nothing. But under these proposals, the accused would have to prove that he or she was acting in good faith.
Nicholson says sedition laws have been used in other countries to suppress political dissent. “People like (Nelson) Mandela would be charged with sedition; anyone who was against the system would be charged with sedition,” he says.
Professor George Williams, of the University of NSW, is another concerned lawyer.
Under the proposals, he says, “you would have to trust the Government not to prosecute”.
He fears the legislation will have “a chilling effect” on both journalism and academic discourse, and says there is no defence for satirists on TV shows such as the ABC’s The Glasshouse.”
I do support banning speech that’s a direct incitement to violence, including terrorism – (but) this net is too wide,” Williams says.
A spokeswoman for Attorney-General Phillip Ruddock says artists will continue to have freedom of expression “as long as they fall short of actually urging someone or some group to go out and carry out violence against our community or our troops abroad”.
The spokeswoman says Australia has had sedition laws for decades and that no artists or writers have ever been prosecuted under them. The Government is trying to protect democratic values from terrorists who would destroy them, she says.
But what about future governments?
Could they misuse the powers for selfish political ends?
Gerard Henderson, executive director of The Sydney Institute, says no. “No Coalition government or Labor government is ever going to jail the likes of David Williamson or Hannie Rayson – The idea that this is going to institute a fascist or a communist or an apartheid state is completely erroneous.”
Henderson says existing sedition laws have been in place for 40 years without being misused: “In that time, no one’s been jailed for any comments, even people who actually advocated that Australians should provide money to the Viet Cong, who would use that money to buy weapons to attack our soldiers in Vietnam.”
Henderson says people should bear in mind that it is not governments who would prosecute alleged offenders, but police. And it is not governments who would sit in judgement, but judges and juries. “John Howard and Kim Beazley don’t have the right to go around prosecuting people.”
The chairman of the Australian Press Council, Professor Ken McKinnon, is another who believes that even the revised Anti-Terrorism Bill remains “a serious threat to free speech”. He fears that journalists will be prevented from breaking news on security issues, leaving the public reliant on “leaked spin from security agencies”.
Independent reporting is prevented by provisions that make it a crime to report on detentions and which allow for summary detention of journalists. With regard to the sedition clauses, McKinnon asks: “Why put an onus on the media to prove that what they publish is ‘in good faith’? Will publication of articles that ridicule Prince Charles or advocate replacement of the monarchy with our own president be subject to legal challenge, with the paper having to prove ‘good faith’?
Would any defence constitute ‘good faith’ in the hands of monarchists anyway?” There is an argument that the laws need updating now because of the need for greater security in the war on terror. For Nicholson, the opposite holds true: “I don’t think it should be brought up to date in this climate. I think there should be a reference to the Australian Law Reform Commission so that any changes are done carefully and are subject to really reasoned thinking.”
The bill goes to a Senate review, which is due to be completed in five weeks. Mr Ruddock has promised that, if it is passed this year, the Government will review it next year to see if any further amendments are required.
SEDITION: WHAT THE NEW LAW WOULD MEAN
Q: WHAT CHANGES HAVE BEEN MADE?
A: The legislation updates the sedition offence to cover those who urge violence against the constitution or Government, urge interference in parliamentary elections, urge violence within the community or urge others to assist the enemy. The legislation requires the Attorney-General’s consent before the issuing of proceedings and extends the geographical jurisdiction for offences to outside Australia and to non-citizens.
Q: ANY DEFENCE?
A: The provision gives discretion to a court in considering whether an act was done in good faith. For instance, if the person was pointing out in good faith the errors or defects of government legislation with an aim of reforming the legislation.
Q: WHAT ARE THE PENALTIES?
A: Up to seven years’ jail.
Q: ANY REVIEW?
A: The Federal Government has promised a review of sedition offences after the legislation is passed.

First published in The Age.

HIGH COURT: WELCOME TO THE CLUB

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Does Susan Crennan’s elevation to the High Court add one more conservative or has the Government unwittingly played a wild card? Karen Kissane reports.
WHEN the news got about that Susan Crennan had somehow nabbed a star traineeship with a senior barrister, it caused much consternation. Crennan was working as a librarian in a Sydney law firm while she completed her degree. An august partner at the firm dashed around to her tiny office. He had three questions: Had she lost all capacity for rational thought? Shouldn’t she follow the customary route and spend time as an articled clerk before going to the bar? And did she not understand that his firm could not possibly brief a barrister with so little experience?
Crennan’s response to the first two questions was a smile. In relation to the third, she pleasantly agreed with him. But she did exactly as she had planned. She left the firm when she graduated and became the pupil of David Bennett, now Solicitor-General. And six months later, when the firm’s barrister was unavailable in a simple matter, her former employer offered her a brief. The firm went on to become one of her greatest supporters. Crennan had crashed through without crashing. Humility, after all, is rarely a useful weapon in a barrister’s armoury.
The story illustrates many of the qualities Crennan would display in what was to become a legal career of brilliance: intellectual independence, fierce strength of purpose and shrewd networking (she had approached Bennett through his father, who worked at the firm where she had been a nobody).
On Tuesday she will be sworn in as the 45th judge to sit on Australia’s High Court bench, having spent only 18 months as a Federal Court judge. She will be the fifth High Court appointment by the Howard Government and her arrival will leave only two judges who were appointed by Labor, Michael Kirby and William Gummow.
Crennan will take her place on the bench at a crucial time in the history of the court, the Government and the nation. Prime Minister John Howard’s radical and wide-ranging industrial relations changes are likely to be challenged as unconstitutional; all the state leaders are expected to join Queensland in a High Court case to try to have the legislation overturned. If this happens, the Federal Government will hope the bench will rule the laws constitutional.
What might Susan Crennan – lawyer, wife, mother, Catholic, lover of history and literature and defender of Newman’s idea of the university – bring to this moment of truth? Is she really the conservative that she has been painted, or will the Government find that it has played a wild card?
There was a strange riff running through the responses of almost every legal figure interviewed for this story. All spoke of Crennan’s merit but most, on both left and right, expressed surprise at her appointment by a Government with the goal of “Capital-C conservatives” on the bench, as called for by former National Party leader Tim Fischer after the Wik decision in 1996. “I’m astonished that (Attorney-General Philip) Ruddock appointed her,” says one left-leaning barrister who has appeared before her in refugee cases. “She’s fiercely independent.”
Greg Craven worked as an adviser to the state attorney-general in the Kennett years. He witnessed close up the way Crennan, then head of the Bar Council, fought the Kennett government over many of its planned legal reforms. “She is extremely honest and forthright. She says exactly what she thinks and if she disagrees with you, she’ll tell you.”
Craven says that if, on reflection, she comes to believe the other side has a case, she is capable of compromising. If not, she is implacable. He concludes wryly: “As Sir Humphrey Appleby might have said, it is a ‘courageous’ appointment.”
NO ONE could accuse Crennan of being publicity hungry. She likes her encounters with the media to be minimal and firmly managed. Quotes on professional issues aside, it seems she has given only one personal interview during her career, in 1994 to a Sunday Age reporter writing an article on “The Women Most Likely”. Crennan insisted the article be shown to her in full before publication and sent it to the ethics committee of the Bar Council to ensure she had not breached rules forbidding barristers to advertise. Journalists tell of being chided through third parties for having called her Sue rather than Susan in reports, or for having left QC off her attribution.
Since the news of her High Court appointment, Crennan, 60, has refused requests for interviews and has also refused to be photographed, forcing media outlets to run over and over again the two carefully staged office photographs she has chosen and issued herself. She can set these boundaries because Australia does not scrutinise High Court appointments with the public rigour of America’s Supreme Court process. There is not the same expectation that a candidate should lay her legal, political and personal views open for dissection.
Which does not mean those views are any less significant. The individual mix on the bench is important. A High Court that during the 1990s was seen as either progressive (if you’re on the left) or as pushing the boundaries (if you’re a conservative) has given way to a much more restrained, legalistic bench today. The liberal Mason court that delivered the Mabo judgement, acknowledging Aborigines as original owners of the land, is history. In contrast, today’s more conservative court has ruled, for example, that the Federal Government has the right to detain indefinitely a man who could not be deported because he was stateless (Ahmed Ali al-Kateb). Legal analysts point out that often it is not judges’ personal attitudes that influence their work so much as their attitude to the judicial process, although history suggests that political conservatives are also more likely to be judicially conservative. But it is not always so simple. The Liberal-appointed William Deane was part of the majority on Mabo. Retiring Justice Michael McHugh voted for the Kateb decision but recently called for an Australian bill of rights to empower judges to protect human rights.
So what will Crennan bring to the mix?
Susan Maree Crennan grew up in an Irish Catholic family with five brothers and sisters in a small Housing Commission home in Heidelberg West, where her father Maurie was a barman and, later, a hotel manager. He paid for six Catholic educations on a barman’s wages.
Crennan went to Our Lady of Mercy girls’ college in Heidelberg before doing an English course at Melbourne University (where she studied Anglo-Saxon) and taking up teaching. Some time later she decided to do law. By then she was married to English lecturer Michael Crennan, whom she had met at Melbourne Uni in the ’60s. They returned to Melbourne from Sydney in 1979. They have three children and several grandchildren.
The woman from Struggletown now runs a famously sociable household known for its dinners and for its St Patrick’s Day parties, at which Susan Crennan has been known to play the bodhran, the Irish hand-held drum. As president of the Bar Council, she jokingly complained that her predecessor had not stocked the cupboard with Guinness.
She laughs intensely, says constitutional lawyer and academic Greg Craven: “It’s not like she brays like a horse, but when she laughs, she really laughs.”
Michael Crennan became a lawyer too, “but she’s the more high-powered one in the marriage,” says a QC friend. “He plays the more supportive role.” Another lawyer says the Crennans have a lot in common: “They are such an intellectual couple it’s a bit deflating for everyone else, really. They are into history and literature in a serious way. They are real intellectual partners. They are also very good friends, that’s obvious when you see them together. And he’s very proud of her.”
Crennan is a woman used to authority. As a barrister speaking in court, she was not one to lean over the lectern. She held herself straight and spoke formally and with assurance, her voice unfaltering. She was considered a formidable advocate who mastered with apparent ease the complexities of commercial cases and high-profile corporate fraud prosecutions.
She served as senior counsel to the Tricontinental royal commission and as the lawyer for the National Crime Authority in its pursuit of businessman John Elliott, and helped prosecute the directors of the failed Pyramid Building Society. Former Pyramid head Bill Farrow once described facing her as being “a bit like being picked for fullback against Gary Ablett”.
Her only recorded blunder was as a QC on an arbitration case when she went to view an electricity generator. She absent-mindedly leaned against an emergency stop button and shut down the entire plant. The joke was that the case centred on her client’s claims that the plant’s supply was often interrupted. That week, the availability report recorded “plant stopped by QC”.
Professionally, Crennan rose like a rocket. She took silk in 1989, only 10 years after joining the bar. She became the first woman to be appointed chairman (her choice of title) of the Victorian Bar Council, and the first woman to be appointed president of the Australian Bar Association – grand achievements for any female at the blokey bar. She became a Federal Court judge last year.
Retired lawyer Eve Mahlab says Crennan got ahead “because she thinks like a man and works like a dog”.
Mahlab, a feminist, says diplomatically: “If, as a woman, you want to get on, you devote yourself to the goals of your male colleagues and you don’t rock the boat by asking, ‘Is this fair to women?’ . . . What I think Susan Crennan always did, to her credit, was that she devoted herself to the goals of the male society that makes up the profession of the bar. She really contributed there and excelled.”
A conservative newspaper column welcomed her High Court appointment as “one in the eye for the sisters” because she was not a bra-burner or quota queen. In fact, Crennan’s relationship with feminism is a bit more complicated than it seems at first light.
She has certainly rejected feminist rhetoric; she says there is no evidence of gender bias in the law and that she has never suffered discrimination at the bar, and she does not believe in affirmative action.
But Crennan is no queen bee, climbing the ladder and pulling it up behind her; she has often reached down to help other women up a rung or two.
And there is evidence that she is aware of the realities of discrimination. Crennan worked as a part-time hearing commissioner for the Human Rights and Equal Opportunity Commission from 1992-1998. Beth Gaze, an associate professor of law at Melbourne University, has examined Crennan’s decisions for The Age.
“I’m not sure John Howard knew who he was nominating,” Gaze says. “She has a good record in human rights. It’s always difficult to make a case of discrimination. People have to show firstly that they were treated less favourably, and secondly that the reason was because of their sex or their race. But Susan Crennan handed down seven decisions in substantive matters and upheld six of the seven, including cases involving sexual harassment, sex, racial and disability discrimination.
“My view is that that’s quite an extraordinary record, because a lot of the other commissioners were reluctant to uphold cases.”
As a Federal Court judge, Crennan the anti-affirmative actioner upheld a union rule requiring 50 per cent representation of women as delegates as a legitimate special measure. “A special measure may, on the face of it, be discriminatory but to the extent that it has, as one of its purposes, overcome discrimination, it is to be characterised as non-discriminatory,” she ruled.
She also overturned a finding of insufficient evidence by the Refugee Tribunal in the case of an Eritrean woman who feared returning to serve in that country’s army because of widespread sexual abuse of female draftees. Crennan said the fact that were were many such examples meant the practice was “non-random and so oppressive that the applicant could not be expected to tolerate it”.
Says Gaze: “Even though I have heard interviews where she has said she never suffered discrimination, she is able to recognise when other people have.”
A friend of the Crennans says she has never told him her politics but that he would characterise her this way: “She is conservative, but I think it’s more to the right wing of the Labor Party, Labor-type Catholic-DLP thing.”
Crennan is reported to be a practising Catholic and was briefly on the board of Eureka Street, the Jesuit magazine of ideas. One lawyer who did not want to be named suggests that her Catholicism, active or otherwise, could prove interesting. “Basically, Catholic judges come to the bench with quite a strong understanding of Catholic social justice. Some of them won’t apply it on the bench, but others have much leakier compartments.”
He believes it will be telling to see how Crennan approaches the IR changes because they undermine collective bargaining, a principle dear to many Catholics: “Papal encyclicals still talk of it.”
Greg Craven, who is now professor of government and constitutional law at Curtin University in Western Australia, agrees Crennan will be one to watch.
“The thing you have to understand about the High Court judges is that they often change when they come into office. On the Federal Court, they are always subject to correction. Suddenly they get to the High Court and all predators are removed, so there is a tendency to behave in quite unpredictable ways . . . This idea that you can buy something from a shop window in the form of a judge and it will always behave a certain way is wrong.
“I don’t expect her to go berserk, but she’s not as predictable as people think.”
The thoughts of Susan Crennan
On proposals that judges should undergo retraining after alleged sexist remarks by colleagues in rape cases:
“I think it is rather a fascist world view to think that if someone does not toe the line . . . we have to educate them . . . There is no need to force them, I would have thought. With natural attrition and time, the percentage who did not want to get up to date with it will retire, and so life goes on.”
On TV coverage of court cases:
The cameras would distract everyone, focus on appearances rather than issues, and give proceedings a soap-opera quality.
On suggestions that contingency fees should be introduced:
“What entitles lawyers to tax their clients’ damages? The size of the damages reflects the injuries suffered by the client, and not the work done by the lawyer; that is properly measured by time spent, nature of tasks undertaken etc.”
On the Kennett government’s attempts to vet the decisions of the public prosecutor:
“(It) clearly compromises the independence of the office and introduces the potential for political persuasion.”
On the Kennett government’s sacking of former equal opportunity commissioner Moira Rayner:
“This should not be done in a way that effectively ends prematurely the term of a statutory office-holder.”
On criticism that the bar was anti-competitive:
“We barristers, we’re such a ready symbol of the litigation process, so we get it in the neck.”

First published in The Age.