Speaker 1: James Glisten, Welcome to straight Talk mate. Thank you and
Speaker 1: as I really appreciate you coming on. I'm you're a
Speaker 1: practice manager of Glisten and associalist at Lawyers. You got
Speaker 1: two officers here in Sydney. You spent time I think
Speaker 1: as a police prosecutor for a.
Speaker 2: While, yeah, and a police officer as well, and.
Speaker 1: Police officer as well. Just gives a quick rundown of
Speaker 1: what your experience has been both as a police prosecutor.
Speaker 1: You know, what your law firm does is sort of
Speaker 1: work you do and why we're going to talk about
Speaker 1: Ben Roberts Smith in a moment. But where's the relevance
Speaker 1: between what you have learned, what you have seen, what
Speaker 1: you do relative to what we might be talking about
Speaker 1: in a relationship Ben Robert Smith.
Speaker 2: So it's interesting, like the police still have that where
Speaker 2: you go and be a prosecutor, but you have to
Speaker 2: spend time on the beat first.
Speaker 1: It's still the same.
Speaker 2: Yeah, it's still the same. So it's called the Accelerated
Speaker 2: Prosecuting Recruitment Program And when I joined they didn't have it,
Speaker 2: it wasn't operating it is now. And with that program,
Speaker 2: you spent like one year on the street, whereas when
Speaker 2: I joined, because it didn't exist, it was three. So
Speaker 2: I went through and I went through the academy. I
Speaker 2: did that while I was finishing my law degree, which
Speaker 2: was a terrible decision. It was a lot of work
Speaker 2: in a very short amount of time. And then I
Speaker 2: prosecuted after I'd finished all my beat policing, my straight
Speaker 2: policing in the city. So it was really interesting having
Speaker 2: that background because especially in a criminal context, because it's
Speaker 2: no longer theoretical or academic, right, because I've exercised the
Speaker 2: powers to arrest people, and I've seen the alleged victims
Speaker 2: of crime prior to a conviction, because it's all alleged.
Speaker 2: They're all complainants. They're not yet victims until it's proven.
Speaker 2: But I've also seen how it affects people who are
Speaker 2: arrested and who are charged with things, and it's never
Speaker 2: ever black and white, it's never clean cut. And then
Speaker 2: that compounded when I went to prosecuting, because as a prosecutor,
Speaker 2: you represent, yes, the state and the police, but you're
Speaker 2: also there to get the evidence from the complainants. Sometimes
Speaker 2: they really don't want to come because they don't want
Speaker 2: to relive whatever happened to them, and that has its
Speaker 2: own challenges. But you also see people who are self
Speaker 2: represented in comparison very minor things like traffic offenses, and
Speaker 2: they believe very strongly in their position, but they don't
Speaker 2: really know how to articulate it because there isn't a
Speaker 2: huge amount of education in this country at any level
Speaker 2: unless you go through a law degree at university to
Speaker 2: understand how it works and how court works. And it's
Speaker 2: very brave to do that, and I have a lot
Speaker 2: of respect for people who do self represent. And then
Speaker 2: of course, coming to the defense side of things, you
Speaker 2: see it again and a different side of it once
Speaker 2: more of how it's affecting them personally while they're waiting
Speaker 2: for a hearing or a trial date. What the risks are.
Speaker 2: How somebody who has lived a fantastic life and been
Speaker 2: a very valuable member of the community for a long
Speaker 2: time can either make one mistake or a relapse in
Speaker 2: judgment and then their entire life can change forever with
Speaker 2: a criminal record.
Speaker 1: And I can see how that sort of encourages people
Speaker 1: like you to stay in their career. But one of
Speaker 1: the things most people don't understand, and you will, and
Speaker 1: you've been on both sides of the legend. Now you've
Speaker 1: been on the prosecution and the defense side. These days
Speaker 1: on the defense side, but maybe you'd be great for
Speaker 1: you to explain that it's not the police who decide
Speaker 1: to take the case, that it's the state at a
Speaker 1: state level at the police level, or if you're at
Speaker 1: a federal level, which is the commonwealth level, if it's
Speaker 1: a commonwealth crime, it's in the case of New South Wales,
Speaker 1: as the Director of Public Prosecutions in the federal at
Speaker 1: the federal level, let's see, probably the Attorney General or
Speaker 1: something like that. Is that right? And those people are
Speaker 1: influenced by politicians too, the bureaucracy that sits above the DPP,
Speaker 1: the Director of Public Prosecutions and or the Attorney General
Speaker 1: at a Cornwuth level, they have an input because what
Speaker 1: happens is the cops arrest them. As I understand it,
Speaker 1: and tell me if I'm wrong, because it could have
Speaker 1: changed where the cops arrest the state crime might build
Speaker 1: up some resources around. The evidence gets handed over to
Speaker 1: the Director probably Prosecutions. They look at it and go, well,
Speaker 1: we think we've got to win a here, or it's
Speaker 1: not worth spending the money on it, so minor we're
Speaker 1: not going to bother about it, or it's important politically important,
Speaker 1: or a minister might even get involved because it might
Speaker 1: be about importation of cigarettes or policy reasons. Yeah, therefore
Speaker 1: a politician gets involved because this has some relevance I
Speaker 1: think to the Ben Robert Smith case. Oh, but you
Speaker 1: might explain how the decision for you as a prosecutor
Speaker 1: police prosecutor to take the case because you don't make
Speaker 1: the call, a cost benefit analysis has made and is
Speaker 1: sent up to the DPP.
Speaker 2: Yeah, so it's very much driven by policy. I mean,
Speaker 2: at the beginning of the Crimes Act, whether that's the
Speaker 2: domestic violence one or the General State Act, it sets
Speaker 2: out the objectives and they're the guiding policy aspects. Right.
Speaker 2: So when you're talking about offenses that end up in
Speaker 2: the lower court, so the local court, and that's a
Speaker 2: lot offenses. It can even be quite serious because we've
Speaker 2: moved a lot of really serious offenses down a level
Speaker 2: so that they can be dealt there quickly. That decision
Speaker 2: is dealt with by really the particular pack or the
Speaker 2: particular police station in charge of it, and they inform
Speaker 2: themselves by way of policy. When you talk about the
Speaker 2: DPP or the matters that go to the higher courts,
Speaker 2: it's even more pronounced because there's definitely a policy aspect,
Speaker 2: and when you're talking about the decision to prosecute something,
Speaker 2: there's an overarching principle which is whether or not it's
Speaker 2: in the public interest to run the prosecution, and it's
Speaker 2: a very very broad test.
Speaker 1: How to police bake that decision, Well, police generally don't.
Speaker 1: It does for that.
Speaker 2: It would be like in the state it would be
Speaker 2: the DPP, and in federal crimes that would usually be
Speaker 2: the Attorney General. But I'm sure there's lots of advice
Speaker 2: being given there. Yeah, and that decision is you know,
Speaker 2: you've got to remember this is meant to be a
Speaker 2: very transparent system, but it's very difficult to get a
Speaker 2: clear answer on some of these things, which kind of
Speaker 2: hurts the transparency asp. So when you talk about Ben
Speaker 2: Robert Smith, I mean, there's no doubt there's been a
Speaker 2: lot of division in this country everywhere in relation to
Speaker 2: how people feel about it. So you've got to really
Speaker 2: weigh that up as a factor when it comes to
Speaker 2: the public interest.
Speaker 1: It's interesting because media gets behind it and they start
Speaker 1: to make the politicians feel a bit nervous, a bit uneasy.
Speaker 2: I mean especially you know, it's unfortunate and I don't
Speaker 2: mean to jump on the Ben Robert Smith bandwagon, but
Speaker 2: it's such a magnificent spotlight in terms of the issues
Speaker 2: surrounding media.
Speaker 1: And the process for me and the overall process. I
Speaker 1: don't mean just the prosecutor the decision to prosecute, but
Speaker 1: the media's role in this stuff and public opinion role
Speaker 1: in this stuff and the decision is what's in the
Speaker 1: public interest? If you step back, how do you think
Speaker 1: people make that call about public interest? Do they look
Speaker 1: at what public opinion is and make it and say, well,
Speaker 1: it looks for a lot of biler against this, a
Speaker 1: lot of people in favor of it. Yeah.
Speaker 2: I think when it comes to this particular case, there's
Speaker 2: a big argument that can be made where you talk
Speaker 2: about our obligations when we sign up to treaties as
Speaker 2: a country. So when it comes to things like the
Speaker 2: International Criminal Court and all the treaties surrounding war and
Speaker 2: the way in which we can conduct ourselves. So on
Speaker 2: the one side, the argument may be that we have
Speaker 2: an obligation to show the world that we take this seriously,
Speaker 2: and it's not just lip service.
Speaker 1: We're the politicians.
Speaker 2: We're the politicians, that's exactly. And when I say we're
Speaker 2: generally speaking, that's what I'll be meaning. I certainly wouldn't
Speaker 2: speak for most Australians. Then on the flip side, you've
Speaker 2: got to look at not just how our reputation works internationally,
Speaker 2: but also how that affects us domestically as a country, because,
Speaker 2: as you said, it's caused a lot of division. It's
Speaker 2: become almost like a political chess piece. Everybody has a
Speaker 2: say on it, everybody wants to show their position on it.
Speaker 1: Well, here we are today even doing it, and I
Speaker 1: would ordinarily have this sort of conversation. But yeah, exactly,
Speaker 1: I mean I got a view on it. But it's
Speaker 1: so because I didn't think of the international aspect of it,
Speaker 1: which is I'm glad you raise that and how we
Speaker 1: look internationally because we have those sorts of policies here
Speaker 1: right now. The Paris Agreement, for example, the Paris Environmental
Speaker 1: Agreement that it was signed under a different government, by
Speaker 1: the way, but still the original signing of that signing
Speaker 1: up to that was how do we look globally in
Speaker 1: terms of our contribution to the global environment. And these
Speaker 1: are big, big policy decision which you and I as voters,
Speaker 1: we never have a chance. I haven't be saying because
Speaker 1: it gets built, and then there are iterations. One selection's
Speaker 1: over and those iterations change can change the overall thing
Speaker 1: over time. They just could slowly chip away it. So
Speaker 1: on an international basis, at a Conworth level, the com
Speaker 1: Crimes Act, which is talking about war crimes, which is
Speaker 1: what Ben Robert Smith has been charged with. He hasn't
Speaker 1: been charged with murder. He's been charged with a war crime.
Speaker 1: Is that correct.
Speaker 2: Yeah, I had a look at it last night. But
Speaker 2: there are five sequences. So there are five charges and
Speaker 2: some of them indicate direct involvement in an unlawful killing,
Speaker 2: a war environment. But what's interesting to me when I
Speaker 2: read through them is others refer to his sort of
Speaker 2: satellite involvement, so not directly being involved, but being around
Speaker 2: it when it happened. Now, typically when you see offenses
Speaker 2: like that, there's more than one defendant because to make
Speaker 2: that out you have to show that it occurred in
Speaker 2: the first sort.
Speaker 1: Of like a conspiracy or aiding a bedding or something very.
Speaker 2: Much like that. Yeah, so it's interesting to see those
Speaker 2: charges appear where nobody else has been arrested and is
Speaker 2: about to be put on trial.
Speaker 1: That's interesting because, by the way, a lot of the
Speaker 1: military who are now coming out and who are against
Speaker 1: the arrest or against the trial are actually saying that, like,
Speaker 1: where are the other people who involved, like particularly above
Speaker 1: Ben Rob Smith in terms of you know, like generals
Speaker 1: or the chain of command above him, Like someone's obviously
Speaker 1: told me to go towards some may have known about it,
Speaker 1: that didn't know about it, or quiesced in it, or
Speaker 1: whatever the case. Because it took a long time. What
Speaker 1: is this ten years ago or something a long time.
Speaker 1: It's actually longer than ten it's twenty years, I think, yeah,
Speaker 1: very long. So this is called a war crime, actually
Speaker 1: called a war crime in the Common Crimes Act YEES.
Speaker 2: So it's under the heading, it's under the subsection of
Speaker 2: war crimes.
Speaker 1: Really there's a heading and.
Speaker 2: Then there's heaps of them, so they list them and
Speaker 2: they seem to go on forever, right, But the way
Speaker 2: that it's been able to be brought is through something
Speaker 2: that a lot of people aren't aware of, which is
Speaker 2: what's called extra territorial jurisdiction or jurisdiction that applies in
Speaker 2: other countries but can be prosecuted here.
Speaker 1: Because if I murdered someone in I don't know, South
Speaker 1: America when I was over there, the New souths government
Speaker 1: would be bringing a charge of murder against me here
Speaker 1: in Australia. Is that right? No, they wouldn't because it
Speaker 1: happened somewhere else, that's right. But in terms of this
Speaker 1: commonwealth crime under war crimes, they have this extra territorial
Speaker 1: juristic jurisdiction because this happened in Afghanistan. So he wouldn't
Speaker 1: be able to get prosecuted by the New South Wales
Speaker 1: prosecutor for this crime.
Speaker 2: Well, it wouldn't. It wouldn't be the appropriate jurisdiction because,
Speaker 2: like you said, it's a commonwealth it's a federal defense.
Speaker 2: It really belongs in the federal sphere as opposed to
Speaker 2: the state sphere.
Speaker 1: But I don't know if anyone else has ever been
Speaker 1: prosecuted one of these things before under the Comonwealth Crimes
Speaker 1: Act wartime crime.
Speaker 2: I don't know for war crimes, but breakham morand was yeah, okay,
Speaker 2: good point.
Speaker 1: Like the crime was committed in the eighteen late eight
Speaker 1: in nineties in the Ball War. So this stuff's been
Speaker 1: around a long time.
Speaker 2: Yeah, in different iterations and frameworks. But it's not a
Speaker 2: new concept, and it doesn't just apply to war crimes
Speaker 2: for example. So you look at the recent hate speech laws,
Speaker 2: which is the easiest way to describe them, even though
Speaker 2: they're far more reaching than just speech and some of
Speaker 2: those offenses when it comes to you know, what it
Speaker 2: is hate speech, how it's tested. They also have extra
Speaker 2: territorial jurisdiction. So if you do it overseas and it
Speaker 2: affects a group in Australia, then when you come back
Speaker 2: you can still charge Wow. So and it's not new obviously.
Speaker 2: Child sex offenses is a big one. Yeah, Yeah, So
Speaker 2: there are clear instances where it's in the public interest
Speaker 2: because I think the public as a whole can get
Speaker 2: around prosecuting people who are accused of child sex offenses.
Speaker 2: But when you're looking at some of these other offenses,
Speaker 2: I think this power gets included, you know, hate speech,
Speaker 2: or with the Ben Roberts Smith case in particular, that
Speaker 2: starts to become a little bit more muddy because people
Speaker 2: aren't really sure. The public isn't even really sure as
Speaker 2: to whether or not this is in the public interest.
Speaker 1: Well, most of us wouldn't even understand it well enough
Speaker 1: to know whether those in my I don't know about
Speaker 1: the public interest. But if I look at it, is
Speaker 1: it in my interest? Right? Is it in the interest
Speaker 1: of Mike Boris r. The case against Ben Roberts fifth.
Speaker 1: We haven't seen something like this brought under the War
Speaker 1: Crimes part of the Commonwealth Crimes Act for a long,
Speaker 1: long long time that I've ever certainly that nothing is popular,
Speaker 1: and the decision to make it would have been would
Speaker 1: have come via would have been a policy desiason just
Speaker 1: some extent based on how we look to our global
Speaker 1: allies or whatever in terms of how we conduct ourselves
Speaker 1: in war, or how we allow people in our military
Speaker 1: to conduct themselves in war. They would have had had
Speaker 1: some impact on the decision making to actually proceed with this.
Speaker 1: I'm trying to give them excuses why it's taken twenty years.
Speaker 2: Well, one of the big issues, of course, and it's
Speaker 2: very difficult to speak about this without speaking to the evidence,
Speaker 2: which for example, I'm not allowed to do. I can't
Speaker 2: comment on anything that might and we'll understand the irony
Speaker 2: in a little bit here, But I can't comment about
Speaker 2: anything that might prejudice his case.
Speaker 1: And then you should explain because you're an officer of
Speaker 1: the court, right.
Speaker 2: But when you're looking at war crimes and they've happened,
Speaker 2: you know, we've got the time aspect over twenty years,
Speaker 2: we've got the distance aspect how far away it was.
Speaker 2: Difficulties in attending the scene of the alleged crime. Difficulty
Speaker 2: is in obtaining witness statements and evidence. It starts to
Speaker 2: really become a weighing up of yes, justice needs to
Speaker 2: be seen to be done, so it needs to be
Speaker 2: something that has perhaps tried irrespective of the outcome. But
Speaker 2: if it falls over terribly, and I'm not saying that
Speaker 2: it will, but if it falls over terribly because there
Speaker 2: simply isn't enough rock hard evidence to support the allegations,
Speaker 2: that's not in the public interest because that's not really
Speaker 2: going to put a lot of faith in the system
Speaker 2: at all. And then people who are skeptical that this
Speaker 2: was a political move will be you know, I guess
Speaker 2: in some ways validated by it, and they say, well, look,
Speaker 2: they didn't even have enough evidence in the first place.
Speaker 1: This is very interesting because as risky, very risky, so
Speaker 1: who ultimately is bearing this risk though, I mean, like,
Speaker 1: who's the person someone must be have sat there and said, okay,
Speaker 1: all those things someone's coming and said, look, minister, or
Speaker 1: look a head of the AFP or whoever you are. Look.
Speaker 1: On one hand, justice must be seen to be done.
Speaker 1: Allies or people who fight us in war will fight
Speaker 1: with us in war. I want to know what type
Speaker 1: of country we are in terms of the military we send,
Speaker 1: in terms of the values of the morals or those individuals.
Speaker 1: Do we fit within the conventions of how we conduct
Speaker 1: ourselves in war? And they're conventions we've signed up to.
Speaker 1: On one hand, but on the other hand, the gathering
Speaker 1: of evidence is going to be compromised to a large extent.
Speaker 1: Therefore we could lose, which will make it look like
Speaker 1: it was a witch hunt, in which case we've got
Speaker 1: a lot to lose. So someone has to sit there
Speaker 1: and go well on one hand and on the other
Speaker 1: hand that I mean, you've been involved at a state level,
Speaker 1: which is as I said earlier. Could be the police minister,
Speaker 1: it could be the DPP. But what do you think
Speaker 1: of some of the things that they were looking at
Speaker 1: in terms of this weighing up to decide to go
Speaker 1: with it as opposed to and are relicious not do it.
Speaker 2: So when I was prosecuting, I always tried very hard
Speaker 2: to make sure that my job was simple, which was
Speaker 2: not to secure or a conviction, and it was not
Speaker 2: to get a particular kind of punishment. It was just
Speaker 2: to put all of the evidence that should be admitted,
Speaker 2: judge should see, should see, and keep the stuff that
Speaker 2: shouldn't be out, and then make submissions. So if you
Speaker 2: sort of use that as the guiding principle of a prosecution,
Speaker 2: the decision that should have been made, the basis that
Speaker 2: really should have underpinned this entire decision when it comes
Speaker 2: to Ben Robert Smith, is is there enough evidence that
Speaker 2: we are comfortable, almost certain that can be admitted to
Speaker 2: bring the prosecution.
Speaker 1: Which would be otherwise known as a primer facy case.
Speaker 1: That's exactly what it would be now, Yeah, but in
Speaker 1: your world, But which is a lot of times, is
Speaker 1: you know what happens in the state at a state
Speaker 1: level that gets looked at by a judge early on,
Speaker 1: and you know they decide whether they're going to proceed
Speaker 1: or not going to proceed with the case. Is that
Speaker 1: something that happens at the Conwawth level. Is that a
Speaker 1: thing at a common Crimes Act? I mean, does it
Speaker 1: look that get looked at by some lower cord or
Speaker 1: whatever to make their decision.
Speaker 2: Well, often these things they almost always start in the
Speaker 2: lower court. So even Ben's case at the moment is
Speaker 2: technically going to start in the local court, right, the
Speaker 2: New South Wales local Court when it comes to bail. Right,
Speaker 2: And there are a number of really technical and generally
Speaker 2: confusing ways in which the courts share jurisdiction for a
Speaker 2: little bit before it gets palmed off to one or
Speaker 2: the other. Right, right, But when we're looking at how
Speaker 2: this has looked at and who looks at it, there
Speaker 2: is a real issue here which is and I don't
Speaker 2: think that this is going to be controversial. We're talking
Speaker 2: about the SASA, right, We're talking about a very serious
Speaker 2: organization with very serious jobs and a lot of that material,
Speaker 2: how they operate, who they are, things that were done,
Speaker 2: records they're not going to be released to the public
Speaker 2: because could.
Speaker 1: You explain that? So, I mean apart from the public
Speaker 1: and not getting those things admissible in the court, I mean,
Speaker 1: can they lead laws around this? Says no, we're not.
Speaker 1: We're the military, don it. We're not going to give
Speaker 1: you that information.
Speaker 2: Well, if they're compelled to, they don't have a choice.
Speaker 1: They have to be. They can be gimpelled to. I
Speaker 1: guess okay, so they're not going to say that this
Speaker 1: is like secret service stuff. You know, you can't have
Speaker 1: this shit.
Speaker 2: No, it may be the case, for example, that Ben's
Speaker 2: defense team subpoena is it, and they may resist the subpoena,
Speaker 2: meaning they don't want to produce it. But ultimately it's
Speaker 2: up to the prosecution to make sure they have enough evidence.
Speaker 2: They're the ones who have the responsibility. And if they
Speaker 2: say no, you're going to give us the documents, they'll
Speaker 2: be given the documents, right, But that doesn't mean that
Speaker 2: the public is going to see the documents.
Speaker 1: So there'll be gag order or on that's right, so
Speaker 1: to speak.
Speaker 2: Non publication orders, and then there will be periods of
Speaker 2: time I'm willing to bet where there's a closed court,
Speaker 2: so jury will still hear it, but it won't be
Speaker 2: able to be reported on.
Speaker 1: So the obtaining of evidence is clearly going to be
Speaker 1: an issue just by virtue of distance in time. Let's
Speaker 1: just talk about the burden proof and so it's not
Speaker 1: a gimme that because he lost in the court system
Speaker 1: in the civil case that is where he is trying
Speaker 1: to sue someone for defamation, and the defamation claim is
Speaker 1: you said that I committed a war crime and I didn't.
Speaker 1: He lost that case, okay, and that went all the
Speaker 1: way up. But that's based on the balance of probabilities. Basically,
Speaker 1: they said, well, the evidence that you've presented to us,
Speaker 1: the judge says, on balance indicates to us that you
Speaker 1: probably did commit the crime. Therefore you haven't been defamed.
Speaker 2: Yeah, of course, And this is a really common point
Speaker 2: of confusion and something I've been asked a lot when
Speaker 2: you're looking at the civil case, especially because it's a
Speaker 2: defamation case, which are notoriously risky for run because the
Speaker 2: defense is that people were telling the truth. So it's
Speaker 2: it's always a it's a gamble as to whether it's
Speaker 2: worth it. In Ben's case it wasn't. And now we've
Speaker 2: got this compounding issue. So in the civil case, it's
Speaker 2: balance of probabilities.
Speaker 1: What does that mean is like fifty No, it's just.
Speaker 2: It's it's more vague than that. So it's it's not
Speaker 2: a mathematical equation. It's just to the fact finder. So
Speaker 2: to the judge, is it more like than not that
Speaker 2: the allegation was true?
Speaker 1: Right? So it's the bet truth.
Speaker 2: Yeah, And I think you can even expand it a
Speaker 2: little bit further which might help understand what this really means,
Speaker 2: which is each fact. So each allegation is put forward
Speaker 2: on its own, and then the court has to do
Speaker 2: the same balancing exercise for each fact. But that's very
Speaker 2: different to what we're dealing with.
Speaker 1: Now, how's it look now?
Speaker 2: Yeah, so it's almost the opposite of the first trial,
Speaker 2: if you want to look at it that way. So
Speaker 2: now the burden of proof, the people who have to
Speaker 2: prove something are the prosecution yep, and the prosecution alone,
Speaker 2: and that's the police. Well that's an AFP, that's right. Yeah,
Speaker 2: So so Ben doesn't have to prove anything. The police
Speaker 2: have to prove it. And then when you're looking at
Speaker 2: the standard so in.
Speaker 1: The standard proof as a burd proof and in but no, no,
Speaker 1: I forgot the words. I should have remembered that I forgot.
Speaker 2: The standard of proof in the civil matter, as we said,
Speaker 2: is like a balancing act. This is not a balancing act.
Speaker 2: This has to be beyond a reasonable doubt, and the
Speaker 2: courts have been very careful to not read too much
Speaker 2: into what that phrase means. Now, it's the highest test
Speaker 2: that we have in our system in terms of what
Speaker 2: you're required to do. It to prove something. But if
Speaker 2: you break the words down it, it kind of brings
Speaker 2: light to it by itself. If there is a reasonable doubt,
Speaker 2: then you can't find them guilty.
Speaker 1: In other words, I'm in the jury or I'm a judge.
Speaker 1: I'm in the jury. It's reasonable that I doubt the
Speaker 1: evidence as to the crime that the prosecution has been presented.
Speaker 1: Therefore I can't convict him. Must equit not, I must
Speaker 1: acquit not guilty. So what is reasonable doubt?
Speaker 2: I know you're going to ask that question.
Speaker 1: What are the guidelines around it? The guideline I would
Speaker 1: a judge be saying to the.
Speaker 2: Jury, Yeah, okay, So that's a great question. So when
Speaker 2: we're talking about these things, it's not necessarily left up
Speaker 2: to the jury to interpret it themselves. No, the judge
Speaker 2: will give them directions as to whether or not, or
Speaker 2: rather how to apply the test. When it comes to
Speaker 2: issues of law, it's up to the jury to decide
Speaker 2: what happened and what didn't happen, But it's up to
Speaker 2: the judge to make sure that the law's being complied with. Really, so,
Speaker 2: when you're looking at a reasonable doubt, the simplest, most
Speaker 2: easy way to understand it is if you have a
Speaker 2: thought in your mind just at the top of the
Speaker 2: juror you the juror if you have the tiniest little
Speaker 2: doubt in your mind, and it's possible that that doubt
Speaker 2: is true, then you must find them not guilty.
Speaker 1: Wow.
Speaker 2: And that extends so without going into a full legal
Speaker 2: lecture ye promised I wouldn't do when you have somebody
Speaker 2: who then brings their own case, because remember, Ben doesn't
Speaker 2: have to say anything. If he does, if he puts
Speaker 2: his own evidence on, it doesn't even come down to
Speaker 2: whether or not the jury believes what he says. So
Speaker 2: they might not believe what he says but think it
Speaker 2: might be true, at which point they must acquit.
Speaker 1: They may not believe in it, may believe it either way,
Speaker 1: somewhere in between.
Speaker 2: Yeah, And if they don't believe him at all and
Speaker 2: they don't think that what he's saying is even remotely.
Speaker 1: Possible, so the judge will say yep, you must.
Speaker 2: And then well, in this particular case where let's say
Speaker 2: Ben puts on his own evidence and the jury says, well,
Speaker 2: we don't believe you at all, what the judge will
Speaker 2: tell the jury is if you don't believe him, it
Speaker 2: doesn't matter, because the prosecution still must prove everything. Even
Speaker 2: if you don't agree with what.
Speaker 1: Benn words, You've got to believe with the prosecutions.
Speaker 2: That's exactly right.
Speaker 1: Forget about what Ben said. Yep, well, not forget about it,
Speaker 1: but there's a greater standard required that the prosecution still
Speaker 1: must convince you, mister Duror, that the prosecution's case is
Speaker 1: correct and that he did have the intention of doing
Speaker 1: whatever the crime that he's supposed to have done. And
Speaker 1: we'll go back to that in the second.
Speaker 2: And not even in a big sense, every particular aspect
Speaker 2: of that must be to the same standard. So it's
Speaker 2: a very steep climb.
Speaker 1: So in the civil cases it was before a judge.
Speaker 1: In a commonwealth case is before a jury. Yes, maybe
Speaker 1: you can explain that deal.
Speaker 2: Yes, So that's one of the few rights that where
Speaker 2: he's a stringians actually have, and they are few, and
Speaker 2: that is the right that you are entitled to a
Speaker 2: jury trial to be judged by members of your peers.
Speaker 1: How many members in the jury is and how would
Speaker 1: his defense to make sure that those individuals haven't been
Speaker 1: tainted by the media.
Speaker 2: That's the trick. I mean, if you're talking about this
Speaker 2: case in particular, I don't know if you can, because
Speaker 2: it's been so heavily publicized and it's been spoken about
Speaker 2: so much, and the first defamation trial was in the
Speaker 2: headlines forever, it felt like, so everybody's aware of it,
Speaker 2: and everybody knows that a court did, in a manner
Speaker 2: of speaking, find that he did something. So it's really
Speaker 2: really important that people understand, and they will be told
Speaker 2: probably forever during the case of the trial by the
Speaker 2: judge that whatever was said in that first case does
Speaker 2: not find its way into this one. It has to
Speaker 2: start fresh. Now. They've done several studies with jurors and
Speaker 2: there's limitations and what you can and can't talk about.
Speaker 2: You can't actually ask them why they made a decision
Speaker 2: or how they made it, but you can ask how
Speaker 2: they felt about the process. And the overarching theme is
Speaker 2: that people take it really seriously, really really seriously, and
Speaker 2: I think being a jury, yeah, being a jury. Yeah,
Speaker 2: it's a huge deal, even in less controversial cases. It's
Speaker 2: a huge deal because the fate of somebody's life is
Speaker 2: in your hands, and that's a weight that really carries.
Speaker 2: Now in the US, there are all sorts of fun, exciting, dramatic.
Speaker 2: I think their legal system is far more fun and dramatic.
Speaker 2: I don't know if that makes it better. Probably not.
Speaker 2: But there are ways that you can impanel juries, and
Speaker 2: you can sort of cull lots of potential jurors, you
Speaker 2: can challenge, you can challenge, right, But here it's far
Speaker 2: more restricted, far more restrict.
Speaker 1: So there will be twelve members of the jury eventually appointed.
Speaker 1: Maybe you can explain the process of the final decision,
Speaker 1: as do the twelve jurors would be how's it going
Speaker 1: to work?
Speaker 2: Generally, it will come down to what the defense and
Speaker 2: the prosecution are willing to agree to when it comes
Speaker 2: to jurors and who they're going to use their veto on.
Speaker 2: It's one of those situations where it's really up to
Speaker 2: whoever is running the case to just trust their gut
Speaker 2: and their experience and make the right call.
Speaker 1: Do they get to see your details? Do you get
Speaker 1: to see a profile? On them.
Speaker 2: I mean, there are questions that can be asked. I
Speaker 2: think generally speaking we try to be very careful in
Speaker 2: revealing private information like that. But it's one of those
Speaker 2: situations where people will be very honest. For the most part.
Speaker 2: People will be very honest when they're asked questions and
Speaker 2: they'll answer them fairly.
Speaker 1: So there's an opportunity to ask questions.
Speaker 2: There is an opportunity to ask questions.
Speaker 1: And those jurors for a commworth case, is it the
Speaker 1: same as like in the state case. You know you
Speaker 1: live in New South Wales, you're on a list, you
Speaker 1: know you've never heerd for a case. You just automatically,
Speaker 1: somehow I get this notice that you're required to turn
Speaker 1: up and unless you've got a good excuse, you know,
Speaker 1: get fined to something. Yeah, you're compelled.
Speaker 2: And you weren't not. So even when you get called
Speaker 2: up for jury duty, you won't know what it's about,
Speaker 2: who it's for, anything like that until you turn up.
Speaker 1: Right. So it's the people hoping they get on this case,
Speaker 1: for sure.
Speaker 2: I bet there are yeah, And therein lies the problem
Speaker 2: right because it's become such a controversial issue, it's such
Speaker 2: a big deal. People want to be involved, and people
Speaker 2: have I mean, maybe not pre judged, but they've certainly
Speaker 2: come to their own moral conclusion about whether or not
Speaker 2: it's right, and that's a real risk. It's a real
Speaker 2: problem to get around it.
Speaker 1: Jo's do you think is better that he is going
Speaker 1: to get tried by a jury as opposed to a
Speaker 1: single judge or more than a single judge, or is
Speaker 1: it better that he just have a single judge, which
Speaker 1: is probably what would happen if he was in New
Speaker 1: South Wales. So it has a different set of rules.
Speaker 2: It does with the absolute greatest of respect when I
Speaker 2: say this, I have more faith in twelve independent minds
Speaker 2: deciding what happened and the facts of a case than one. Right,
Speaker 2: even though judges are very experienced, I think it is
Speaker 2: fairer as a system to have twelve people come to
Speaker 2: the conclusion.
Speaker 1: Maybe not necessarily fairer, but mathematically probably more likely you
Speaker 1: get a chance of getting one person that has some
Speaker 1: reasonable doubt.
Speaker 2: Well, I think I think it might be fair. And
Speaker 2: the reason I say that is if it's beyond a
Speaker 2: reasonable doubt, then that that's really high. And if you
Speaker 2: have one or two people, certainly more who think well, no,
Speaker 2: I do have a reasonable doubt. You haven't met the standard.
Speaker 2: You haven't met what is required as the prosecution.
Speaker 1: It has to be beyond the reasonable doubt.
Speaker 2: That's right.
Speaker 1: And they don't say how far beyond is No, I
Speaker 1: don't know if reasonable doubt's here. They don't say beyond
Speaker 1: like just a little bit above. They don't say's right
Speaker 1: out here somewhere beyond just could be anywhere, could be
Speaker 1: just literally a millimeter above.
Speaker 2: Yep, it could be one step over or three miles further.
Speaker 1: But maybe if we just look at the law itself,
Speaker 1: that the legislation it self is legislation flawed in that
Speaker 1: it says we're going to judge this guy based by
Speaker 1: a jury of people probably never really experiencing this stuff
Speaker 1: that soldiers have experienced twenty years post the event, or
Speaker 1: however long it was. Is there a flaw in the legislation?
Speaker 1: I mean, like, because if he went to a court martial,
Speaker 1: which he can't do because he's no longer in the army,
Speaker 1: but if he went to a court martial, he'd be
Speaker 1: getting judged by a panel of judges who have probably
Speaker 1: all been a war or at least know what's going
Speaker 1: on experienced you have experienced in the mindset, what does
Speaker 1: a reconciliation or how do does one reconcile being tried
Speaker 1: twenty years later by people who may well have never
Speaker 1: experienced what I've experienced, and they're now going to make
Speaker 1: a decision about what I did on that day, at
Speaker 1: that moment, at that minute, based on all the things
Speaker 1: that are happening around me, and also based on the
Speaker 1: orders I had. Maybe I had.
Speaker 2: Yep, and that is it's a very reasonable question. So
Speaker 2: when you're looking at that, though, there are two different
Speaker 2: processes occurring, and it's really important to draw a distinction
Speaker 2: between them. The first is a lot of that assumes
Speaker 2: that it happened right, and then that's whether or not
Speaker 2: it was reasonable in the circumstances. But that's really a
Speaker 2: matter more for sentence, where you determine, you know, are
Speaker 2: there factors that reduce the sentence or is it really extreme?
Speaker 2: What the fact finders in this particular case need to do.
Speaker 2: What their job is is to determine whether or not
Speaker 2: it happened at all binary right. So in the US
Speaker 2: it can be quite different. And the reason I draw
Speaker 2: a lot of distinctions between US and the US is
Speaker 2: because we share a very similar foundation for the system,
Speaker 2: but we've grown in very different ways. So in the
Speaker 2: US the jury may have more of an influence in
Speaker 2: terms of penalty. It certainly does when it comes to
Speaker 2: simple matters. Here, it's got nothing to do with the jury.
Speaker 2: They're just there to determine the facts, the truth of
Speaker 2: what happened. And in some ways it may even be
Speaker 2: more beneficial to have people who have no experience in
Speaker 2: the military, because they can't have their judgment clouded where
Speaker 2: they say, oh, well, I've seen that done before, so
Speaker 2: maybe it did happen. They really have to bring an
Speaker 2: impartial mind to it. I mean, like it's such a
Speaker 2: unique context, it's such unique circumstances that it's near impossible
Speaker 2: to do and there are real practical difficulties with that.
Speaker 2: So when you're talking about the court martial aspect, it's
Speaker 2: predominantly for disciplinary issues for current serving ADF But when
Speaker 2: you're talking about this, and even though it doesn't seem right,
Speaker 2: because sometimes the law is not all that logical, you
Speaker 2: have a situation where the offense is outside of the
Speaker 2: military jurisdiction, and so people who were drawn to the
Speaker 2: jury are outside the military jurisdiction. So if you wanted
Speaker 2: to look at it as perhaps or if you wanted
Speaker 2: to frame it as a break or an issue with
Speaker 2: the way that the laws work, it would be how
Speaker 2: the jurisdiction is handled. So if people wanted that change.
Speaker 2: People have a great degree of influence over how the
Speaker 2: law works. I know people don't think they do. Often
Speaker 2: it's because they don't understand what they can do to
Speaker 2: influence it. But that can change, and it can be
Speaker 2: pushed back into the military jurisdiction if it's allowed to.
Speaker 1: How could it get put back in the military jurisdiction.
Speaker 2: For the criminal offense aspect of things, Well, there are
Speaker 2: ways that we could sort of bridge the gap between
Speaker 2: military jurisdiction and federal jurisdiction. Now, it gets a bit
Speaker 2: tricky with offenses, right because often when you come to
Speaker 2: criminal offenses, you need what's called a Chapter three court,
Speaker 2: which is a constitutionally approved court, and that does have issues.
Speaker 2: But because we are a system where Parliament can write
Speaker 2: all kinds of laws so long as they're not unconstitutional,
Speaker 2: and they can make sweeping changes, and we've seen that
Speaker 2: over the last six months, a lot of changes have
Speaker 2: been occurring. There are ways that the public may be
Speaker 2: able to influence that, not for this case, but in
Speaker 2: the future as to how things are put.
Speaker 1: Together through the public opinion process. What's lovely it happened doing?
Speaker 1: If he gets convicted, we're tomento as the penalties, because
Speaker 1: usually common crimes have pretty aroundous penalty sitting around them.
Speaker 2: They do, especially when you're talking about offenses where they
Speaker 2: can occur overseas but be charged here. That's already a
Speaker 2: very high bart. So these offenses all carry life imprisonment.
Speaker 1: Life life, and life means actually life, Well there's.
Speaker 2: The rest of your life or twenty five years basically,
Speaker 2: But it'll depend on how that's applied, because just because
Speaker 2: that's the maximum doesn't mean that's what people get. And
Speaker 2: just because there are a number offenses that carry the
Speaker 2: same penalty doesn't mean that they.
Speaker 1: Will get at the top of each other. They can
Speaker 1: conserve it all at the same time. That's right, Yeah, contemporaneously.
Speaker 1: And we talk about the prosecutions difficulty, but let's talk
Speaker 1: about the defense. How difficod it's going to be.
Speaker 2: It's impossible to know until you see the evidence. I
Speaker 2: think the real what I can say is that the
Speaker 2: difficulty of the defense is going to find is when
Speaker 2: it comes to whether or not the juries have already
Speaker 2: made up their minds, and how they can make sure
Speaker 2: as hard as they can through their advocacy and their submissions,
Speaker 2: that the jury brings an impartial mind to this. That's
Speaker 2: going to be an inherent difficulty.
Speaker 1: I know there was don't come with a bregacy idea.
Speaker 2: Yeah, And it's going to be difficult because you know,
Speaker 2: this story isn't going anywhere. It's continuing to be a
Speaker 2: massive topic because people are finally understanding how parts of
Speaker 2: this system work and it doesn't seem fair. So that's
Speaker 2: going to be really hard to manage. When it comes
Speaker 2: to the actual evidence itself, We'll only know when we
Speaker 2: start seeing it.
Speaker 1: He's first bail application was refused, but I think he's
Speaker 1: got another hearing for bail coming up with sometimes not
Speaker 1: too far off pretty soon. I think, do you think
Speaker 1: you'll get bail? I mean, is he a flight risk
Speaker 1: or is he a risk of any type?
Speaker 2: Oh, look, I don't know. I don't imagine, so there
Speaker 2: doesn't seem to be anything that would indicate that. But
Speaker 2: what I will say is bail. So it wasn't it
Speaker 2: was refused, but it also wasn't applied for.
Speaker 1: He didn't apply for it.
Speaker 2: No, so there are a number of reasons that can happen. Now.
Speaker 2: One of the issues, and this is something people won't
Speaker 2: know about unless they've had reason to look it up.
Speaker 2: In the local court, which is where the bail application
Speaker 2: is going to be determined, he can get bail. He
Speaker 2: can get bail from the magistrate, from the judge, and
Speaker 2: then the prosecution can hand up something that's called a
Speaker 2: Section forty bail stay. And practically what that means is
Speaker 2: it overrides the court's decision. So the court can give
Speaker 2: him bail and if they hand up that certificate, he
Speaker 2: can still stay inside until it makes another application, which
Speaker 2: would have to go higher, likely to the Supreme Court.
Speaker 2: So that may have been something that factored in. It
Speaker 2: may not have, but I'm very interested to see what
Speaker 2: happens when you applies for Bell.
Speaker 1: Do you just give me a comment. I mean, if
Speaker 1: you don't mind him, you may prefer not to as
Speaker 1: an officer at the court, but just the way he
Speaker 1: was arrested, I mean, do you think there was I mean,
Speaker 1: do you think that I don't quite understand the point
Speaker 1: to that and I've taken to a lot of mates
Speaker 1: of mine who are high ranking people in the police,
Speaker 1: and they said they would never do that. I mean
Speaker 1: unless it was ordered. They were sort of giving given
Speaker 1: they were told to do it by let's say that
Speaker 1: the people are rank above them, which ends up in
Speaker 1: the political sphere. They're getting arrested on a being paraded
Speaker 1: in front of the media and his children and his
Speaker 1: children when he'd already offered to hand himself in if
Speaker 1: they wanted to charge him. I don't know what's the
Speaker 1: point of that.
Speaker 2: Where's the public interest?
Speaker 1: I don't think what is that in the public? So
Speaker 1: they might say, what is the public interests? See, we
Speaker 1: won't show the public that we're doing our job. Do
Speaker 1: you think is that the thinking?
Speaker 2: Or look, okay, I promise this will be the last
Speaker 2: distinction I draw between the US and here. But in
Speaker 2: the US, when you do something like this, it's a
Speaker 2: massive media event.
Speaker 1: It's in the US signed.
Speaker 2: And it's designed and intended to be a media event.
Speaker 2: With the arrest that is not allowed. They have case
Speaker 2: law on that, which means they have judged law saying
Speaker 2: that it's unconstitutional and infring's rights. The only purpose is
Speaker 2: to humiliate somebody here. We don't have anything like that. Now.
Speaker 2: The major problem that I have with this, and I
Speaker 2: know a lot of people have, is it was unnecessary
Speaker 2: and it looks very heavy handed. And I've spoken about
Speaker 2: this before, but where you have such heavy media presence
Speaker 2: for the arrest, the rest of the country knows about
Speaker 2: the arrest before it ever becomes a court before a court,
Speaker 2: and before it becomes a matter in which he has
Speaker 2: legal representation. And there's a real issue. And the reason
Speaker 2: the US found that it wasn't lawful is that there's
Speaker 2: a real issue. It impedes somebody's right to a fair
Speaker 2: trial because they've just seen him arrested, they've seen him
Speaker 2: in cuffs, so therefore he must have done it. So
Speaker 2: that's the theory, and that's why they don't allow it
Speaker 2: over there. But for some reason we do allow it
Speaker 2: to you.
Speaker 1: I've seen it happened before, and I just wonder whether
Speaker 1: it's actually whether it is or is not in the
Speaker 1: public interest for this for that to happen at all
Speaker 1: in those circumstances. I mean, I don't see what the
Speaker 1: point of it is. And I think it actually is mentally,
Speaker 1: potentially quite detrimental to getting a proper fair outcome. That is,
Speaker 1: every person with a federal state crime has the presumption
Speaker 1: of innocence. That's our system of advocacy. That's how we
Speaker 1: operate in this country. And we're sure we've received that
Speaker 1: law from somewhere else, but it doesn't matter. That's what
Speaker 1: we've adopted, that's what we're signed up to, that's what
Speaker 1: we're doing. And I just think that that process, given,
Speaker 1: particularly given the power of the media today. And I had
Speaker 1: heard about this twenty times before he even saw that
Speaker 1: the evening news just gets into my My neuronal system
Speaker 1: is just getting hit up with this again and again.
Speaker 1: It's repeating, and it's just it's certainly like I'll remember
Speaker 1: that more than I'm trying to remember something else. I'm
Speaker 1: trying to learn.
Speaker 2: The other thing is, and this is really important, is
Speaker 2: it changes what can be said in court. So often,
Speaker 2: if somebody's told that they're wanted and that they need
Speaker 2: to hand themselves in, what defense will do is they
Speaker 2: will say, well, look, he handed himself in. You know,
Speaker 2: the jury can infer what they want from that. But flight,
Speaker 2: for example, is evidence of guilt can be evidence of
Speaker 2: guilt and they didn't do that, even though we said
Speaker 2: that he would hand himself in instead. Now, what the
Speaker 2: jury is looking at as somebody who's trying to board
Speaker 2: a plane when he's arrested, and that is a very
Speaker 2: different starting position, a very different starting position, and.
Speaker 1: So he's trying to escape. Yeah, and it was that's
Speaker 1: what I thought of him. So where was he going to? Well,
Speaker 1: he was just trying to get out of the country.
Speaker 2: That's because they don't explain that. They don't explain that,
Speaker 2: you know, this could have been organized, or that it
Speaker 2: was open to coming in whatever. All they do is
Speaker 2: you see a picture, you see him in handcuffs, and
Speaker 2: you see he's at the airport trying to board a plane.
Speaker 2: I mean, the natural inference is right there.
Speaker 1: Yeah, he's trying to escape, He's trying to get out
Speaker 1: of the jurisdiction.
Speaker 2: I disagree with it. I don't think it's particularly sporting.
Speaker 2: I don't think it's very fair.
Speaker 1: No, I don't think he's fair at all. Can I
Speaker 1: do you mind about you? Just because you have been
Speaker 1: talking a lot of it, lots of different things, and
Speaker 1: particularly in around policy, how do you think the government
Speaker 1: has handled the current fuel crisis well?
Speaker 2: I think every government over the last twenty years handled
Speaker 2: it poorly. Not just this government, not just this government,
Speaker 2: just government generally over the last two decades has handled
Speaker 2: it particularly poorly. There have been a series of decisions
Speaker 2: that were intentionally made that have landed us where we
Speaker 2: are now and now unfortunately as a result, where as
Speaker 2: the country are suffering from them.
Speaker 1: What I say about James is those governments have been
Speaker 1: voted out, yes, and these guys got voted in yes.
Speaker 1: So this is their baby.
Speaker 2: Yes.
Speaker 1: I mean, don't. I don't want them to tell me
Speaker 1: what happened in the past, because yeah, okay.
Speaker 2: No, Australia voted of you. There's a lot of that.
Speaker 1: You're back in. You got your second term, you're back in.
Speaker 1: So whatever they did. Therefore, by definition, if you if
Speaker 1: you won the elections two elections ago, you won an
Speaker 1: election that we didn't we voted them out because of
Speaker 1: all this stuff. So you're back in, you're in charge.
Speaker 2: Yep.
Speaker 1: How do you think they're handling it. I mean they're
Speaker 1: just spending twenty million dollars at the moment telling us
Speaker 1: to take the roof fracks off our cars.
Speaker 2: Yeah, that's probably not the best use of funds given
Speaker 2: what's happening.
Speaker 1: On one hand, they're saying everything's okay, it's cool. But
Speaker 1: on the other hand they're telling us it stops. Take
Speaker 1: the roof racks and put more air in the tires.
Speaker 2: Yeah, and the same message you get, you know, don't worry,
Speaker 2: we have fuel. It's fine, but also maybe please stop
Speaker 2: buying so much fuel. Yeah, but don't worry about it.
Speaker 2: But yeah, do it if anything is confusing, very confused.
Speaker 1: Do you feel like they're dreaming? Is like idiots?
Speaker 2: I think that there has been a trend over certainly
Speaker 2: over my lifetime, certainly since I started studying law and
Speaker 2: working at it, from policing all the way through that
Speaker 2: this has become more of a top down approach, and
Speaker 2: it's become quite whole driven, paternal You know, you don't
Speaker 2: really know what you want here.
Speaker 1: I know better. Yeah, well we're the government. It's just
Speaker 1: not right. It's just not true.
Speaker 2: I mean, like, I look through I probably shouldn't, but
Speaker 2: I look through all the comments on my YouTube videos
Speaker 2: and they're really insightful. Yeah, some of them are just rude,
Speaker 2: but a lot of them are really insightful, really clever. Question.
Speaker 1: Yeah, smart people.
Speaker 2: Have switched on and they care. They care so much
Speaker 2: more than they let on.
Speaker 1: I'm glad you raise it, James Goes, you know, and
Speaker 1: I think this is the sort of thing which makes
Speaker 1: stuff like you what you're saying on YouTube gaviral. People
Speaker 1: actually do care, and we are in an estimate about
Speaker 1: how much we care, and I just think that's a
Speaker 1: massive mistake by governments. They care, but also, well, we care,
Speaker 1: but also do we not only care about all these issues.
Speaker 1: Ben Robi says the ndis the fuel crisis. We care
Speaker 1: about all this stuff, but we're also pretty smart, yes,
Speaker 1: and we do understand more than you think. Oh yeah,
Speaker 1: and you the government. When I voted you in, which
Speaker 1: was last year in March in twenty twenty five, these
Speaker 1: weren't things on the table that you're asking me to
Speaker 1: vote for. This is only recent, so I didn't actually
Speaker 1: give you my vote in favor of what you're doing now.
Speaker 1: Just because you're in doesn't necessarily follow that I agree
Speaker 1: with what you're doing right now. Now. What they would
Speaker 1: say is yeah, okay, Mark, the next lection, you can
Speaker 1: vote me out for what I did. But that's backwards looking.
Speaker 1: I wonder what your thoughts on are you know, like,
Speaker 1: when should governments instead of polling and making decision polling?
Speaker 1: When the governments? When do you think it's right to
Speaker 1: say that the voting population is much more sophisticated today
Speaker 1: than there were twenty years ago, thirty forty years ago.
Speaker 1: People care much more today than they ever did in
Speaker 1: the past, or a greater number of people care much
Speaker 1: more than they did that in the past, and those
Speaker 1: who do care care more, I think, and therefore governments
Speaker 1: should actually start to be much more consultative.
Speaker 2: Oh much more, much more, not just a poll, no,
Speaker 2: but that doesn't really do anything.
Speaker 1: The consultative Look what do you think?
Speaker 2: Look, there should there should be much greater involvement. And
Speaker 2: the issue isn't with people not wanting to be involved.
Speaker 2: The issue is people don't know how to be involved.
Speaker 2: And there's been no real olive branch extended, whether it
Speaker 2: be from state parliament, federal parliament, the legislature anywhere, to
Speaker 2: invite people in to be involved. Instead, what ends up
Speaker 2: happening is you get, like you say, you get given polls,
Speaker 2: but they produce a binary result do you agree or
Speaker 2: do you not agree?
Speaker 1: And the poll to that's exactly how you write the questions.
Speaker 2: But it doesn't. That is one thing. How it's actually
Speaker 2: implemented is the important thing, and that's what people care about.
Speaker 2: So the more that people get involved, the better the
Speaker 2: system will be because people care and they have their
Speaker 2: own unique perspective they can bring. You know, somebody who's
Speaker 2: a bricklayer and Mount drew it will have a unique
Speaker 2: perspective to bring as to what we do with the
Speaker 2: fuel crisis and how it's managed and how it affects
Speaker 2: him and how it affects him. And that's going to
Speaker 2: be representative of a whole range of people instead of
Speaker 2: just people who've, without disrespect people who've gone through high school,
Speaker 2: university ended up in a federal job and are like, well, no,
Speaker 2: this is how it's going to affect him.
Speaker 1: It's not going to affect me that that person, because
Speaker 1: that person might catch the They're trying to work two
Speaker 1: days a week, right, whereas the brickie's got to go
Speaker 1: to work six days a week. He's got to turn up.
Speaker 1: He can't do it from my heart.
Speaker 2: And the risk might be much higher, you know, like
Speaker 2: he might have his own business looking after his kids,
Speaker 2: trying to get across the mortgage. The cost of living
Speaker 2: is increasing.
Speaker 1: He might have just started to expand might have borrowed
Speaker 1: some money, all things, and all of a sudden, the
Speaker 1: industry goes up, and he's trying to give more jobs
Speaker 1: more people, and by doing that, he's trying to be entrepreneurial,
Speaker 1: takes on more jobs that he normally would take on.
Speaker 1: All of a sudden, it's cost him much more to
Speaker 1: get to everywhere.
Speaker 2: And his opinion matters a lot. He has a lot
Speaker 2: to be learned from it.
Speaker 1: I mean, it's nearly like we need to have a
Speaker 1: live website for decisions that were never voted upon, but
Speaker 1: it's called it material decisions or significant decisions is going
Speaker 1: to affect a significant amount of the population where everybody
Speaker 1: can get involved, live and say what they think. They
Speaker 1: nearly vote.
Speaker 2: More of an old school democracy where everybody.
Speaker 1: Was and that's what I talked about. I'm glad you
Speaker 1: said that. So we pride ourselves, so does many of
Speaker 1: the Western nations, But we pride ourselves as being democratic.
Speaker 1: But the democratic process only happens once in this country,
Speaker 1: and it's every three years when you get an opportunity
Speaker 1: to vote. But the real version of democracy, which is
Speaker 1: originally sort of involved from the days of aristoical et cetera.
Speaker 1: Was that every day they were debating the issues, and
Speaker 1: it was debated not just in Parliament but where it
Speaker 1: was all closed off to everybody, but it was debated
Speaker 1: in the square where everybody got their say. And that's
Speaker 1: probably democracy. Good system, Yeah, good system because at least
Speaker 1: the people who are making the final call get to
Speaker 1: hear about what the masses are thinking. We don't have
Speaker 1: that anymore. I actually don't think we have a proper
Speaker 1: democracy anymore because more issues come up between elections than
Speaker 1: have ever have come up in the.
Speaker 2: Past yet to say, and how they dealt.
Speaker 1: With like COVID a good example, great example, I mean
Speaker 1: the hate speech was another good example.
Speaker 2: For eight hours for people to put on submissions for
Speaker 2: the biggest sweeping reform for speech laws in this country. Ever,
Speaker 2: that's unacceptable. It's not enough time for people.
Speaker 1: To get their So there's only forty eight hours.
Speaker 2: It's such a small window of time.
Speaker 1: And how do believe and find out about this so
Speaker 1: called forty eight hours?
Speaker 2: Well, this is the thing. You don't unless you're involved
Speaker 2: in the system, you don't know where to look. So
Speaker 2: they put out a call for submissions people that can
Speaker 2: then put their submissions on. But you've got to remember,
Speaker 2: like even with the groups that did write submissions and
Speaker 2: get them on, it's a very small amount of time
Speaker 2: for let's say it's a big company, or let's say
Speaker 2: it's a union, or any group of people that represents
Speaker 2: the interests of that group. It's hard in forty eight
Speaker 2: hours to really look at it, understand how that's going
Speaker 2: to affect everyone in your group. Then write really good.
Speaker 1: Submissions that are clear, craft something, craft something, and submit
Speaker 1: it and get approved by your your colleagues. Everyone's going
Speaker 1: to have it legacy possible. It's like and everyone's got
Speaker 1: a view and a comment that and you change one
Speaker 1: hundred times over and then you've got to get out
Speaker 1: within forty hours. That's a very interesting thing. It was
Speaker 1: only properly established, structured funded interest groups respond to those things.
Speaker 2: Yes, which is not necessarily representative.
Speaker 1: They're interest groups, and it might be it might be
Speaker 1: polar opposites and you know, maybe that sort of works,
Speaker 1: but individuals us as individuals. Again, it's one of the
Speaker 1: situations where they're not really interested in it seems like
Speaker 1: they're not the politicians is not really interested. It's not
Speaker 1: the politicians. Not it's probably the public service, but not
Speaker 1: really interested in the process that arriving at what the
Speaker 1: democratic system believes in.
Speaker 2: No, it's more efficient outcomes.
Speaker 1: It seems that, yes, or maybe James ellis just so
Speaker 1: we can say we gave a consultation period. Yeah, we're
Speaker 1: running for forty hours because it is what we really
Speaker 1: want to happen.
Speaker 2: We've already drafted. It's not saying that that's that's the
Speaker 2: question that.
Speaker 1: You get by the way it came out so fast,
Speaker 1: Like in terms of drafting, you know how long drafting
Speaker 1: takes normally take should take for example, the terms of
Speaker 1: reference for the Royal Commission.
Speaker 2: I'm so glad you brought that up.
Speaker 1: Like that came out. Wasn't happening, wasn't happening, wasn't having
Speaker 1: out done. It's like you've been drafted six months before.
Speaker 1: To me, that's how it looked. I mean for someone
Speaker 1: who's done a lot drafting in his day, like when
Speaker 1: I was younger. But I just know how hard it
Speaker 1: is and how long it takes and reviews you've got
Speaker 1: to go through. You have to be particularly at a
Speaker 1: parliamentary level, and you know, havingny inputs you've got to
Speaker 1: get it doesn't happen over a couple of days. Never, No,
Speaker 1: I hope not.
Speaker 2: I mean, it's very serious. The terms of a Royal
Speaker 2: Commission in terms of reference are very serious because, as
Speaker 2: you know, they they're the rules, they're the guidepost for.
Speaker 1: The mission commissioner. And you know, I always like to
Speaker 1: see more than one commission. But anyway, two or three
Speaker 1: commissions is usually better.
Speaker 2: More minds are always better, much better.
Speaker 1: But one commission always tells me something. I mean, I
Speaker 1: did see this in the raw commission into banks. They
Speaker 1: pointed one commissioner and I immediately thought to myself, this
Speaker 1: is and it was Hayin and I was immediately and
Speaker 1: he's a judge, former judge, And I thought to myself,
Speaker 1: they should have an economist in there. They should have
Speaker 1: you know, one or two other types of people too,
Speaker 1: so the commissioner can be fuller in terms of experience
Speaker 1: and understanding, and because if you just have a judge,
Speaker 1: it might just getend up getting a judge's view. Like
Speaker 1: I don't mean from a technical legal point of view
Speaker 1: type of view, you know what I mean, not not
Speaker 1: a broad based economics view or what's what works in
Speaker 1: terms of models around the world, et cetera. Not not
Speaker 1: and no academic maybe not enough academic in there. And
Speaker 1: the raw commissioner has also got one judge. In the
Speaker 1: current it's got one judge, and sometimes it makes me
Speaker 1: think that the outcome is already preconceived. Well, in juster confidence,
Speaker 1: I'm not saying that she will do that because I
Speaker 1: don't know it right And for all accountcl it reads well,
Speaker 1: she reads well, but she, as you say, she's restricted
Speaker 1: to the terms of references she'd been given to by
Speaker 1: the government.
Speaker 2: That's right, and that's what a lot of people don't understand.
Speaker 2: So I did a short video which got a fair
Speaker 2: amount of traction given how dry the content was, on
Speaker 2: how Royal commissions work, what they can actually do and
Speaker 2: what they can't, And almost every response was either appalled
Speaker 2: because they didn't realize how it actually worked, or appalled
Speaker 2: that the Royal Commission didn't have more teeth when it
Speaker 2: came to actually implementing change. So with the terms of reference,
Speaker 2: just for anybody who doesn't.
Speaker 1: Know, that is what is the Royal Commission into the drums.
Speaker 2: Any royals just the process generally, so the terms of
Speaker 2: reference can find what can be looked at and investigated
Speaker 2: to whatever the government says can be and beyond that,
Speaker 2: nothing not allowed in there, and parties will fight tooth
Speaker 2: and nail, and they will will get injunctions and they
Speaker 2: will say, which is an order preventing the court from
Speaker 2: doing something or in this case, the Commission from doing something,
Speaker 2: and they'll say, sorry, outside the terms of reference can't
Speaker 2: be brought up. And that's what will happen. And then
Speaker 2: when it comes to the end. Another thing that a
Speaker 2: lot of people don't know is their recommendations. So it
Speaker 2: doesn't actually change the law. They're just recommendations. And then
Speaker 2: the government will look at the recommendations and they'll pick
Speaker 2: the ones that they want to put in place and
Speaker 2: they will shelve the rest.
Speaker 1: Sometimes sometimes they do. Normally they do go with a recommendation.
Speaker 2: They for the most part they do.
Speaker 1: Yeah, but they normally do.
Speaker 2: But it's not mandatory. Yeah, and I think that's where
Speaker 2: a lot of people get tripped up.
Speaker 1: Yeah, whatever the Royal Commission says is going to happen,
Speaker 1: it's not the case, not at all. So the government.
Speaker 1: So I mean, there's that all saying, you know, like
Speaker 1: you're running a royal commission. You determine the outcome before
Speaker 1: you you have the raw commission by putting it in,
Speaker 1: by managing the terms of reference.
Speaker 2: Of course, if you can manage the scope of the investigation.
Speaker 2: I mean, it doesn't seem like that much of a
Speaker 2: stretch to say that you can manage the outcome. Yeah,
Speaker 2: what can be looked at.
Speaker 1: And the judge or sorry, the commissioner, no matter what
Speaker 1: their background and their ability and their sense of acting
Speaker 1: properly is or is restrained or constricted, restricted from what
Speaker 1: they can cover off. And it's not their fault to
Speaker 1: work with and factually they're compelled to work that way exactly.
Speaker 1: And someone can get an injunction and so no, you
Speaker 1: cannot go beyond that point, that end of story, and
Speaker 1: they get a court order and they have to go
Speaker 1: back to where this started from. And whilst we're on
Speaker 1: controversial stuff, one of the things that definitely fascinated me
Speaker 1: with this whole Desi Freeman case down there in Victoria,
Speaker 1: what do you what do you make of that stuff?
Speaker 2: I think it's it's symptomatic of a bigger issue, really,
Speaker 2: I mean what happened was appalling, really terrible. I mean,
Speaker 2: both ends of it that is being killed and that
Speaker 2: it ended the way that it did because now there's
Speaker 2: not going to be any investigator. Well there's not going
Speaker 2: to be any public trial or x donation of what occurred.
Speaker 2: There'll still be an investigation and a coronial.
Speaker 1: Then that's a good example of public in is a
Speaker 1: public deserved as a.
Speaker 2: Great example, the public do deserve to know. It was
Speaker 2: a huge thing that happened, a really big.
Speaker 1: Especially this business about being part of some group that
Speaker 1: sovereign citizens, sovereign syism. Yeah, I mean what does that
Speaker 1: all mean? Do they exist? How much influence they they
Speaker 1: have on these actions?
Speaker 2: They definitely exist. The ideology definitely exists. That was imported
Speaker 2: from the US here and it has no basis here.
Speaker 2: It has no basis in the US either. But I
Speaker 2: saw this a lot when I was prosecuting, because I
Speaker 2: would obviously I'd been caught five six, seven hours a
Speaker 2: day running cases, and you don't really get a chance
Speaker 2: to look at what the actual case is often, so
Speaker 2: you'll just meet these people as you go and you'll
Speaker 2: run the case. And sovereign citizens almost always represent themselves.
Speaker 1: They say, you've got no jurisdiction to me, Yeah, they do.
Speaker 2: They say things like that. But what's sad is it's
Speaker 2: not people who are nuts or crazy or violent. They're
Speaker 2: people who are so unbelieved, disenfranchised with the legal system,
Speaker 2: and people who find who can find no connection and
Speaker 2: no bridge across that. They then turn to something that
Speaker 2: gives them an easy answer, which is the sovereign citizen
Speaker 2: idel and.
Speaker 1: Other words, I got my own laws on it, yours
Speaker 1: down aponomy.
Speaker 2: It's a very attractive proposition when you feel like such
Speaker 2: an outsider and that there's no way back, and I
Speaker 2: think it gets compound. And this is why I'm not
Speaker 2: overly harsh on sovereign citizens at all, because I can
Speaker 2: understand how they got to where they got to, and
Speaker 2: I find that people often want to write them off,
Speaker 2: they want to have a laugh at them at their expense.
Speaker 2: It doesn't help. It's just pushing them further along the
Speaker 2: garden path. And what we need to do is find
Speaker 2: a way because there's clearly an issue where people feel
Speaker 2: so disconnected from the legal system that they're meant to
Speaker 2: be involved in. To bring them back and make them
Speaker 2: feel involved so that they can make changes. I mean,
Speaker 2: it's a really depressing issue because it shows a real
Speaker 2: systemic failure for US as a country, that people are
Speaker 2: so removed from this system that they feel that that
Speaker 2: is a more sense route to go down.
Speaker 1: And the Desi Freeman is an extreme example of the
Speaker 1: final outcome of what can happen with something. He goes
Speaker 1: fucking badly wrong, like oh, really bad, terrible and two
Speaker 1: people dead. He's dead as well. But on top of that,
Speaker 1: there's now a chasm we do not know why.
Speaker 2: And unfortunately there is now a flag that people with
Speaker 2: that ideology can point to and SAFETYE.
Speaker 1: Hold you so they're killed him?
Speaker 2: Yeah, and I think you know, you say, where does
Speaker 2: it come from? I think it's really a twofold issue
Speaker 2: at its absolute basic level. One is most Australians don't
Speaker 2: understand our system or our rights at all, and they're
Speaker 2: not taught them, so they can't understand them. You know,
Speaker 2: you wouldn't criticize the twelve year old if not knowing
Speaker 2: something they weren't taught. Well, we were all that twelve
Speaker 2: year old and we were never taught it. So then
Speaker 2: what happens is they get into adult life and the
Speaker 2: law expects them to know the law.
Speaker 1: There's a presumption.
Speaker 2: There is a presumption, but it's just a little bit
Speaker 2: removed from reality at this point. So when people come
Speaker 2: into contact with the law, the system they thought they
Speaker 2: had doesn't exist, So in their mind it's not legitimate
Speaker 2: because that's what they see as a legitimate system. And
Speaker 2: that's the problem. And you brought it up before, this
Speaker 2: idea of a proper representative democracy where people can actually
Speaker 2: have influence of things between election cycles. That would be
Speaker 2: a really nice bridge to try and bring people back
Speaker 2: into the fold and feel included and like they're a
Speaker 2: part of building the country moving forward.
Speaker 1: I actually think people would love that Australians are actually,
Speaker 1: as post Americans, much more interested in what's being decided
Speaker 1: for us. Yeah.
Speaker 2: I think we play it off like we're not all
Speaker 2: that interested, but not even that. Deep down, people are
Speaker 2: very interested and there's an awful lot to be interested in.
Speaker 2: I mean, even things like the privatization of roads and resources.
Speaker 2: People really should have a say in that. Because they
Speaker 2: started off as ours as a country, as a sovereign capability,
Speaker 2: for example, the refineries, and then with very little regard.
Speaker 1: To what the public thought was in there was no
Speaker 1: voter on land.
Speaker 2: And they just start shutting them down. And now we're
Speaker 2: in the situation we're in. And this is the point,
Speaker 2: I think, because there is so much happening in such
Speaker 2: a short period of time where Australians have said, actually,
Speaker 2: you know what, I really do care about this and
Speaker 2: what's your answer? Because I wasn't involved in the decision
Speaker 2: making process here? So how did you get to the decision?
Speaker 2: And how do we fix it?
Speaker 1: By the way, you know, if you're the government, you
Speaker 1: should do that because not not because it's the right
Speaker 1: not only because it's the right thing to do, but
Speaker 1: because either can say down the track, will you knew
Speaker 1: about it? You ei they didn't say something, or you
Speaker 1: said it was okay we or we did ask everybody,
Speaker 1: and on the balance of probabilities, on the balance we
Speaker 1: had to make a call because you know, olderly it's
Speaker 1: going to be a captain's call. That's the government. We
Speaker 1: won't admit. I get I accept that. But equally they
Speaker 1: should be consulting with us or allowing us the opportunity
Speaker 1: to consult with them. And that's modern democracy. It is.
Speaker 2: You know, people refer to this idea of a social contract,
Speaker 2: which is that we give up a lot of our
Speaker 2: own personal powers and freedoms for the government to look
Speaker 2: after the country as a whole and deal with it,
Speaker 2: and that's the focus. But it's a contract, so there's
Speaker 2: another part of that because we need to benefit in
Speaker 2: some other way, which is that we still are involved
Speaker 2: in what it is we must follow. You know, there's
Speaker 2: a presumption that everybody knows the law. I think there's
Speaker 2: a presumption before that, which is that we had to
Speaker 2: say in what the law was. So it's reasonable that
Speaker 2: you would have known it. And that's just not happening
Speaker 2: at the moment.
Speaker 1: Yeah, and I don't think, I mean, to some extent
Speaker 1: it's our fault because to some extent we've abrogated all
Speaker 1: our rights up to the government. Like it's a bit
Speaker 1: of a but I also a bit of a problem
Speaker 1: for restrainers. But at the same time, I don't think
Speaker 1: we realized the outcome or the potential for those outcomes
Speaker 1: because everything was going along swimmingly. You know, economy was good.
Speaker 1: You know, like we didn't have any mass shootings. We
Speaker 1: had put up but basically had nothing else other than that.
Speaker 1: We're in pretty good shape up until COVID and then
Speaker 1: but COVID has revealed a lot to us and everything
Speaker 1: that's happened. There's been a lot of events since COVID
Speaker 1: and UH and you know, the whole change immigration, the
Speaker 1: complexion of our immigration to Australia. Everything's changed a lot
Speaker 1: since COVID. It's just probably in every aspect. And I
Speaker 1: think that you know, a modern government, I mean maybe
Speaker 1: you know the opposition parties, all the new parties are
Speaker 1: trying to get up. You know, if they could start
Speaker 1: to talk about these sorts of policies. I reckon the
Speaker 1: first party that comes out and says, listen, we're a
Speaker 1: new party and what we're going to do is we're
Speaker 1: going to say we're going to make sure that we
Speaker 1: introduce some website and we can all vote for you
Speaker 1: in your local area and everyone gets a number and
Speaker 1: we're not going to record the number with your photograph
Speaker 1: or someone. They had to make sure people I've been pegged.
Speaker 1: But at the same time, you know, you can vote anonymously,
Speaker 1: like you do it when you go to the When
Speaker 1: you go to the voting, people don't know what you
Speaker 1: don't know who it is, so you know you don't
Speaker 1: feel tard We'll let you get it get targeted. I
Speaker 1: reckon that would be whoever does that, because that's proper transparency.
Speaker 1: David win election, I think so too.
Speaker 2: I think everybody could probably get behind that. You know,
Speaker 2: and you speak about COVID. The reason I think that
Speaker 2: COVID was such a huge deal, apart from the fact
Speaker 2: that it changed the way we live our lives and
Speaker 2: it still has, is, as you say, we've seated a
Speaker 2: lot of our rights to the government. It's never really
Speaker 2: flexed its muscles, and COVID was the first time the
Speaker 2: government really flexed the power that it has. And now
Speaker 2: it's almost like we've been bitten by a pet dog
Speaker 2: and we're like, well, hang on, if you're capable of.
Speaker 1: That, like what else you get to judge?
Speaker 2: Exactly? Like what else is on the cards? And we
Speaker 2: see that now with this current deal that's before the
Speaker 2: Federal Parliament, with the expansion of the asier of powers,
Speaker 2: which is way more powerful and people didn't even know
Speaker 2: those powers existed, well most of is no. I mean,
Speaker 2: it's it's a real concern, and it's not because people
Speaker 2: aren't interested. People are interested, but they're just not being
Speaker 2: given the opportunity to have a voice in it. And
Speaker 2: I think that's more destructive than anything else.
Speaker 1: The Labor Party prosecuted the voice for our first nation's
Speaker 1: family and friends. But what's interesting about that is we
Speaker 1: should have a voice for everybody.
Speaker 2: Yeah, I think, I think as well as them.
Speaker 1: Yeah.
Speaker 2: Look, we all need more of a voice than what
Speaker 2: we currently have.
Speaker 1: Yeahh a problem voice, absolutely, and none of us would
Speaker 1: care whether it's online or however. We don't really care.
Speaker 2: No, we just want to feel heard, yeah, and listen to,
Speaker 2: you know, proof that we've been listened to, not just
Speaker 2: as we said earlier. You know, well we've given them
Speaker 2: forty eight hours to put on their submission. If I'm
Speaker 2: not going to read them, it doesn't matter. Yeah, that's uh,
Speaker 2: that's the impression I think Australians because I lived in
Speaker 2: the US for a number of years, Australians are really
Speaker 2: really good at detecting bullshit. Yeah, Like they can smell
Speaker 2: it from a mile away. And that applies when it
Speaker 2: comes to politics more than anything, because the moment you
Speaker 2: hear something, you're like, all right, where's the double speak? Yeah,
Speaker 2: and then three seconds later, of course they'll say, you know,
Speaker 2: like the what we're saying with fuel, there's no issue
Speaker 2: with fuel, and you're like, wait for it, than I say,
Speaker 2: but also don't buy it unless you need it. It's like, okay,
Speaker 2: come on.
Speaker 1: Yeah.
Speaker 2: So there just needs to be more honesty and more
Speaker 2: transparency and more of a voice for us to be
Speaker 2: able to be heard.
Speaker 1: Less bullshit. I love it enough, James Blessing, Thanks you,
Speaker 1: emotion mate. That's pretty buddy good. I'm going to finishing
Speaker 1: on that less bullshit. I'm very appy with that. Thank
Speaker 1: you mate, thank you, thank you mate. Appreciate it.