June 24, 2012
JULIAN Assange is a splendid chap who, whether a rapist or not, has done the world a signal service by publishing some secrets of state, but I am not sure that Ecuador, which I have long thought of visiting, would be a more attractive place for having him sitting bored with his laptop in Quito cafes, importuning English-speaking tourists.
I have an impression that he could languish there, perhaps as Kim Philby is supposed to have done in Moscow after his defection; more and more lonely and irrelevant, increasingly unsatisfied with his only link to home being an airmail edition of The Times. All the more so, I would think, had he lived to see The Times turned into a tabloid.
I had myself been thinking of taking refugee at the Embassy of Ecuador after a host of depressing announcements about the future of Australian newspapers this week, including the news that The Sydney Morning Herald and The Age, were to go tabloid, or, as the announcement said, compact. The argument for this comes chiefly from the fact that a Saturday edition of these papers no longer has to be delivered by forklift truck, or lowered by crane. Thick books of classified advertising - the so-called rivers of gold - have migrated to the internet (including, of course, to Fairfax-controlled online websites) and there is no longer the need for the old format simply to keep things manageable.
Those who favour the project - and there are many readers who always have - promise that going tabloid does not mean turning into a London or old Sydney Redtop, such as The Sun, or even into a popular format, like the rather more restrained Sydney Daily Telegraph.
The Australian Financial Review is a tabloid, as are The Times, The Independent and the New York Times, all now of tabloid width, and all still look deadly serious, worthy and weighty.
Others are less convinced, suspecting not only that tabloid involves putting display ahead of content, and shorter articles - and more fights about the division of the paper at the breakfast table - but also a tendency to be with it, brash, cheeky and various other trendy things calculated to attract the young and infuriate the most faithful and critical readers, people over the age of 55.
Officially I am agnostic, if deeply conservative. But I can change my mind. I was, for example, amazed at my open-mindedness this week when, for the second time in only a few weeks I found myself agreeing rather more with a stinging dissent by Justice Dyson Heydon in a High Court judgment than I did with the views of the majority.
If this keeps going on, I may need medical attention. A few weeks ago, Heydon was joined in disagreeing with the majority verdict by Justice Virginia Bell. She has a well established reputation as a feminist, believer in the underdog, and one who would see merit in a bit of repositioning of the law to take better account of the rights and interests of women.
Alas, she was also used to appearing for criminal defendants, and has a feeling for justice as well, even if it might seem slightly in the craw of women's rights.
The case involved a man charged with raping his wife about 50 years ago. At that stage it was popularly believed, including in all of the legal textbooks, that a man could not, at law, rape his wife, since marriage implied consent to sex. Many years later, long after a major popular refocusing on the rights of women, the High Court threw out this presumption as bad law these days. The question before the High Court recently was when this presumption changed. A majority said that the generally understood common law on the subject had either always been wrong, or had changed at some point before the 1960s. Heydon and Virginia Bell thought it had changed much more recently, and, political correctness apart, their reasons were much more convincing that the views of the majority, who seemed to be more focused at the law as they might have wanted it to have been, rather than as it was commonly thought to be.
This week Heydon was on his Pat Malone in a case, involving school chaplains, which had echoes of the High Court decision on Gough Whitlam's Australian Assistance Plan reorganisation of social welfare in the 1970s. The fine points and distinctions were tedious in the extreme but boiled down to whether ministers - the executive government - needed explicit legislative authority to spend money on a Commonwealth purpose. Did the purpose itself have to be constitutional - in the sense of being a matter that Parliament could properly pass a law about - or was it enough that an appropriation act authorised the spending?
Six judges found fault with authorisation by appropriation bill alone. Strictly, the fault is probably only technical - and the funding of school chaplains can be resumed once Parliament adopts a law authorising it - but the reasonings of the various majority judgements raise a host of potential technical obstacles, some of which exult form over substance and some of which amount to backdoor methods of reopening old and stale centrism versus states-rights arguments. Heydon, who is hardly a radical, was the judge who was most practical and convincing - and without giving executive government a blank cheque. In normal circumstances, I would regard any tendency to find Heydon more persuasive as evidence of a need for a longish holiday in Ecuador, possibly in earnest conversation with Julian Assange, but it is possible that he is the one who is mellowing in his old age.
He is now hurtling towards his 70th birthday, the day on which he will be, by force of the Constitution, too senile to hand down a judgement. Perhaps he is having early symptoms. Or perhaps that constitutional amendment, which passed only in 1977, primarily as a way of giving Garfield Barwick a big hint that it was time to go.
Some judges do get past it, but there's nothing magic about 70. Eddie McTiernan was still with it at 84 when Barwick refused to allow him to sit in his wheelchair.
And I heard only this week that Sir Ken Jacobs, who retired from the High Court in 1979 after about 20 years as a judge of various courts, is still, at 95, hale and hearty in London, concentrating mostly on the translation of Greek classics. It's hard to imagine a tabloid Peloponnesian war.