Find me an empty island

Purple fever in plague proportions as suitable types seek the eye of High Court selectors ... Castan's warning to Keon-Cohen on the Mabo brief ... ASIO's adverse assessments ... US drone base for Cocos-Keeling islands ... How to empty an island with orders in council ... Procrustes opens a vein and lets its all flow out 

WITH Uncle William Gummow now on his final night watch to an as yet uncertain retirement (what would you want a septuagenarian William doing for you?) and the imminent loss soon thereafter of the Conscience of the Court, The Dyse, Purple Fever (the ambition disease of your scribe's Anglican childhood) is in plague proportions. 

Newspapers run lists of papabile, but the likely appointments are no clearer than the last three have been. 

At least one could see the dots being joined between John Howard and The Dyse: Shore father to Old Shore Boy; denouncer of Judicial Activism etc.

The path to the podium seems a little less well trod this year than it has in the past, when Federal Court judges jostled to publish, and deliver nostrums, specially in the presence of the Commonwealth AG. 

Nonetheless, I've had the enormous pleasure of watching one superior court judge in recent times address a room full of senior public service lawyers from around the nation.

He read his excellent paper, put it down, and gave an extemp on the virtues of conservatism. Nothing to do with his paper on the joys of undue market influence, or whatever. 

And this from a man who was a known Marxist-Leninist in his student days.

It's important to update one's belief system.

The profession could do with some leadership in the light of the scurrilous, and sometimes subtle attacks to which it is subject.

Did you notice the scene in the Mabo film where Castan QC asked Keon-Cohen if he had factored in the impact of taking Mabo's brief: no more work from mining companies, the great and the good or governments, for the rest of his days.

Surely not. The bar's proud tradition is that it acts fearlessly for all in need of representation, and the quid pro quo must be that solicitors who feed the work do not discriminate on the basis of cases run by a barrister in the past.

Questions will be asked at the next bar council meeting. 

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ASIO's Canberra HQ: pretentious

SOME leadership would also be nice in dealing with ASIO, whose new headquarters in Canberra defy belief (the Lubianka by the Lake).

The HQ is commensurate with ASIO's pretensions, which manifest themselves in ASIO's legislated right to classify non-citizens so they are expelled or incarcerated, with express power to do so and with no natural justice whatsoever.

The current outcry (in so far as this country ever gets to an outcry) is over some 30 or 40 who have been classified as having refugee status, but whom ASIO has classified as no good, and for reasons known only to ASIO.

They are now in detention centres.

The example of Sheik Leghaei, thrown out on ASIO's assessment two years back without a hearing, has already slipped off the radar.  

ASIO stuck to their translation of the Sheik's noteup of his Koran as its bedrock, even after an independent Channel 9 translation agreed with the Sheik that the ASIO version was rubbish.

Fear not. ASIO, like any government body, knows what's good for all of us. Who needs a Bill of Rights that would attempt to entrench a right to a fair hearing before expulsion (after more than a decade in Leghaei's case) or incarceration?

It's only people with names like Haneef and Leghaei who would benefit from a Bill of Rights. Fair dinkum Ozzies don't need one! 

That feels better. I'll be right off to Cronulla if the sun stays out long enough. 

*   *   *

Diego Garcia - now. Cocos-Keelings later?

IT'S time for a look into Procrustes' crystal ball. 

Despite advanced age and its attendant debilitation, Procrustes loves toys as much as any boy, and talk of drones and predators operated out of Virginia by fresh faced, strong jawed young chaps hunting down the unspeakable is an endless joy. 

Imagine my excitement when a few weeks back a plan was floated for establishing a drone base on our remote Cocos-Keeling Islands, a long way out in the Indian Ocean. 

Ahhh, Procrustes purred, sounding rather like an ancient Massey Ferguson tractor facing a steep hill.

The Americans have been in the Indian Ocean Island game for a half century now, and must have the patter off pat.

You may assume this will not enter the 24 hour news cycle again at the government's initiative. 

The Yanks had a major success in getting the Poms to hand over the Chagos Islands (chief island, Diego Garcia, in the middle of the Indian Ocean) on a long term lease, with a lot of prodding and nudging back in the 60s. 

The rub was that the Americans insisted that the islands be unpopulated so there'd be no interference with their planned airbase and naval port.

What to do with the 700 or so islanders?

The Poms had a sure fire remedy: tell the Americans that the islands were unpopulated, and in the meantime pass some Orders in Council ordering the islanders off.

Which they duly were, their dogs being shot on the beach as they were herded onto the British government supplied freighters that took them to Mauritius. 

The key to this sleight of hand is the Order in Council, which is a fancy term for a law passed by cabinet.

Just a mo', I hear you say, reaching for the mot juste. Separation of powers and all that.

Well yes, except that the Poms kept a power for dealing with small island communities that lacked a legislature, and that power involved cabinet sitting with Her Maj, and the product has the force of law.

After turfing the Chagiots in the 70s, HMG had to backtrack in 2000 after the islanders, led by a stirrer named Bancoult, won their litigation seeking a right of return.

The Blair ministry promised it would comply (not even appeal), and then reneged, which is hard to believe from such a trustworthy government built on so many sound moral principles.

New Orders in Council were passed that the Chagiots were never to be allowed back. 

These sit amongst orders for changes to parish boundaries, that being about all that is left to Her Maj in Council, apart from bullying remote islanders. 

 Bancoult took that on too, and won the trial knocking over the Orders in Council, won the Court of Appeal, and in 2008 lost in the House of Lords, 3-2, with Lord Le Gover Lennie Hoffmann leading the charge for HMG.

Chortle chortle. We must send them some DVDs of Mabo to cheer them up in the British tenements to which most of them have now been consigned. 

But what of the Cocos-Keelings?

Australia has inherited the Order in Council power (look up old CLRs for cases dealing with PNG when it was a territory).

It will be the work of a moment for cabinet to sit with the Governor General and pass an O in C ordering the Cocosians off (probably to Christmas Island, or the remote WA coast).

And after all the trouble to get that lunatic Clunies Ross to stop parading around as their slave-master all those years ago.

You read it here first: wait for the Yanks to ask for some people free islands.