Blow me down

Assange, whistleblowing and Allan Kessing ... Kevin Andrews gets legal aid for Haneef court fight ... Consensus on solicitors' conduct rules evaporates ... Marfording report attracting interest ... Theodora blogs

Wonder of the week. John Howard supports Julian Assange.

"Any journalist will publish confidential information if he or she gets hold of it, subject only to compelling national security issues," said the cunning troll who served as PM for 11 years.

The bad people in this little exercise are the people who gave the information to him, because they're the people who breached the trust.

They deserve to be chased and prosecuted." 

So journalists are the good people, the whistleblowers are the bad people.

This classification gets confusing.

He must have momentarily lost sight of journalists Michael Harvey and Gerard McManus, prosecuted as bad people by the Commonwealth DPP in Howard's time for not coughing-up the identity of their source for a story about government duplicity in veterans' affairs policy. 

Then there's former Customs' officer Allan Kessing, who was chased, prosecuted and found guilty (s.70(2) Crimes Act) after his report on the lax state of airport security found its way into the newspapers.

It was awfully embarrassing at the time, because the release of the Threat Assessment Report showed the government hadn't lifted a finger to address airport security problems, despite all the tough-on-terror chest beating.

That time, no journalists, good or bad, were prosecuted.

Now Kessing, with the help of Senator Xenophon's office, has prepared a formal application for a pardon under the Royal Prerogative of Mercy.

His reasons are HERE.

It seems the calls to The Australian from his home phone are attributed to his Mum ringing the News Ltd switchboard to add to her collection of tokens offered by The Smellograph.

A possibility is the leak came from the office of Anthony Albanese, now Minister for Infrastructure and Transport.

The minister admits that Kessing gave the report to his chief of staff in 2005. Albanese has not been asked directly by anyone, as far as we know, whether he met Kessing personally and requested more information from him about airport security.

You can read the AG Department's Red Book briefing on Kessing HERE.

The department sets the threshold for a pardon very high indeed.

It advises that a pardon would not be recommended, "unless the person was morally and technically innocent of the offence" and there is no remaining avenue of appeal against conviction.

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The departmental Red Books are briefing materials assembled for the incoming ministers following an election.

Interestingly, this redacted version of the AG Department's Red Book after the August 21 federal election reveals that the oleaginous god-botherer and former Liberal minister Kevin Andrews has his hand in the government's till, receiving legal aid to defend defamation and other proceedings brought by Dr Haneef.

Have a look HERE.

More content from the Commonwealth AG's August 2010 Red Book (redacted) is HERE.

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Talking of Assange, I thought the Law Council of Australia's response to his incarceration in London took mealy-mouthedness to a new height (or depth).

Its media release stated the bleeding obvious.

• The LCA will be closely monitoring the progress of the matter relating to Assange;
• A person accused of a crime is entitled to the presumption of innocence and a fair trial;
• The council urges the continuance of consular assistance;
• Due process should apply to any charges relating to the leaked cables;
• Public comments about guilt or innocence are inappropriate; and
• The legal process should be allowed to take its course without interference.

The key development, surely, is the United States' desire to extradite (or even extraordinarily render) Assange, where the prospects of a fair US trial in the face of the political hysteria and calls for his execution are next to nil.

That's the issue about which the LCA should be been jumping and and down.

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There has been a fascinating response to Justinian's story about the cooked conduct rules that were waved through recently by the LCA's directors.

The Queensland Law Society, for one, is unhappy about some of these rules. The NSW AG is also believed to be unimpressed.

Maybe uniformity will be sacrificed for principle.

There is concern that the large law firm group (LLFG) has too much influence on the LCA, and this is reflected in the drafting outcome of this proposed ethical regime for solicitors.

As to the proposals for the uniform profession itself, those outcrops of enlightenment, WA and SA, don't want to be part of it.

It will be a huge challenge next year to get this camel across the finishing line.

*   *   *

Tulkinghorn's column on the Marfording report - comparing civil justice in Germany and New South Wales - left a strong impression.

Annette Marfording interviewed numerous judges and lawyers in both jurisdictions and poured over bundles of court files.

Her findings were that in all categories measured - costs, delays, efficiency and judicial competence - NSW was behind the eight ball. Judges and Attorneys General have relinquished control of the business of litigation to the parties and their lawyers.

This resulted in client satisfaction with judges being considerably higher in the regional court in Stuttgart than in NSW. 

I'm ticked pink to say that the 600-page report has not just been flung into a corner to get mouldy and die.

Last month Annette Marfording addressed the Australian Law Reform Commission, gave a paper to academics and representatives of the Law Council at the University of Canberra and was invited to meet High Court judge Susan Kiefel.

Interest in doing something about the civil litigation problem was reported to be "high".