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Bougainville, independence & the doctrine of ‘stare decisis’


ADELAIDE - In 1977, as a young and ambitious ex-kiap turned proper public servant, I sought and obtained appointment to the apparently important position of Chief Clerk of the South Australian Department of Education.

The use of the term ‘Chief Clerk’ to describe this position was anachronistic in the extreme. The title was a hangover from the 19th century when such a person, seated at a high table reminiscent of a judge’s bench, presided over serried ranks of more junior clerks, each studiously dipping their quills in ink and writing or transcribing official documents of one form or another.

By 1977, while I still presided over 40 or so clerical officers, their duties ranged from running the department’s huge file registry to drafting, promulgating and interpreting the regulations made under the Education Act.

I also presided over the departmental typing pool, composed of some 15 or so young women, who busily produced all sorts of things ranging from pay cheques to ministerial letters. Quills were notably absent, although fountain pens were still used by a handful of traditionalists.

The apex of technology in the office was an IBM golf ball typewriter, which sat proudly (and largely unused) upon the chief typist’s desk. She devoted most of her day to smoking, gossiping and scowling at juniors who dared to cast covetous eyes upon her much prized machine.

The file registry was presided over by a huge, hairy chain smoking Scotsman who reveled in the extremely Scottish name of Alistair McAlister. In appearance he was strikingly like the character Hagrid in the Harry Potter movies although of a somewhat more dyspeptic disposition.

He was supported by a cast of characters that could have come of Gringott’s Bank, another of JK Rowling’s wondrous inventions. They collectively scurried about the department’s 20-story headquarters, delivering and retrieving the files that were the very stuff of life in a bureaucracy of over 1,000 employees.

My immediate superior occupied yet another anachronistic position entitled ‘Secretary’. Quite what he was secretary of or to was never made clear to me. He certainly wasn’t the ultimate boss (the Director-General), nor even the penultimate boss (the Director). He seemed to hang suspended, as it were, between those of us who were mere toilers in the bowels of the department and those who occupied the Olympian heights of senior management.

Anyway, this man was an unusually erudite product of one of Adelaide’s very best private schools and of its most venerable university (three Nobel Prize winners so far and hopeful of more). He had a great love for both Latin and the law and he set about educating me in both.

Speaking in the sonorous and mellifluous tones of received pronunciation, that only the very best education can create in an Australian with aspirations, he lectured me in all manner of things relating to the law.

Amongst the many legal concepts he taught me was that of stare decisis. Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar current or future case.

Simply put, it binds courts to follow legal precedents set by previous decisions. Stare decisis is a Latin term meaning "to stand by that which is decided".

I learnt that this doctrine is one of extreme potency in administrative law. While every case could and should be judged upon its merits, it was and remains very difficult to sustain a legal judgement that greatly deviates from that delivered in previous cases where the facts are very similar.

Within bureaucracies and, by extension, governments, the doctrine of stare decisis is profoundly important. It ensures that a particular interpretation of the law (and, more broadly, government policy), once firmly established, is applied consistently in the decision making process.

This constrains the bureaucracy from becoming too creative and coincidentally helps sustain its famous inertia and rigidity.

Also, to a surprising degree, it compels successive ministers to exercise their various statutory responsibilities according to precedent, not mere whim (except, of course, if you’re Donald Trump).

The significance of this doctrine in relation to Bougainville lies in the fact that if parliament agree to the island’s independence it will establish a new and very worrying constitutional precedent.

Basically, it will mean that any province of Papua New Guinea might reasonably seek independence on the same basis as Bougainville, i.e., essentially because of historic ethnic and cultural differences that have persisted since time immemorial.

Of course, there is the not inconsequential matter of what the Supreme Court may say about all this but, prima facie, a decision to allow Bougainville to go its own way can only encourage separatist sentiment elsewhere in PNG.

Thus a new Papua Besena Movement may emerge or a Hela Liberation Front or an embryonic Peoples Democratic Republic of New Ireland.

The doctrine of stare decisis is, I think, merely one of a host of reasons that will be referenced by the PNG government to explain why it will not permit Bougainville to become an independent entity.

The PNG government, it will say, is defending the constitution under which the nation of PNG is bound together in an irrevocable and indivisible union.

Such rhetoric has been used more than once in the past and has also been the justification for civil war, notably in the United States, where it was a case of e pluribus unum [out of many, one] being enforced at gunpoint.

It is already evident that the PNG government lacks any real intention of abiding by the current peace agreement let alone the referendum result.

It has, I think deliberately, starved the autonomous Bougainville government of funds committed under the peace agreement, and entreaties or complaints from president John Momis (as reported in PNG Attitude) are highly unlikely to change this situation.

Anything vaguely reassuring that Peter O’Neill says on this topic can safely be dismissed as maus wara tasol.

Of course, this is mere speculation by an ex-kiap gone somewhat to seed, and a bush lawyer as well, but the existing precedents in terms of the PNG government’s behaviour over this issue are instructive.

As my long departed secretary of the education department would have opined in his dulcet tones, “Dear fellow, one must look at these things in the cold light of day, not through a haze of hopeful optimism or sentiment”.

This was and remains advice worth following, even nearly 50 years later, and I commend it to Dr Momis and his colleagues.


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Lindsay F Bond

Chris, seems you truly weathered the norm. Quite quip of your quill.
Exhaustion of opportunity flows gentler upon exhaustion of initiation?

Philip Fitzpatrick

I rather like your Dickensian description of the South Australian public service Chris. I found it much the same when I joined the South Australian Museum in 1974.

One of my fondest memories is the attendance book. This was a velum bound ledger presided over by the chief attendant. It was laid on a large table in the main gallery facing the door where people arrived in the morning.

Under the watchful eye of the chief attendant one had to write one's name, sign it and record the time to the exact minute. When the clock struck nine he drew a line in red ink under the last entry.

If you happened to arrive after this and had to sign below the red line you also had to provide a written explanation of why you were late in a special column. For a free-booting and recent ex-kiap the system was a bit hard to take.

With respect to Bougainville I'm sure the PNG government and Peter O'Neill are well aware of the precedent giving it independence will set, although I doubt that they are familiar with the elegant legalese you describe.

They are probably also aware of the provinces watching the process closely, including nearby New Ireland. If Bougainville gets independence keep your eyes peeled for a new movement called the New Ireland Republican Army.

What has also occurred to me is the potential bounty and power that will fall to politicians in Bougainville if they are successful. It won't be as big a honey pot as the PNG one but it will still be a nice little trap for sticky fingers.

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