Charter of Rights – Increased Freedom or Loss of Freedom – Make Up Your Own Mind
The NSW Bar Association has committed its members to the support of a charter or bill of rights.
Such political action does not seem to be within the objects for which the Association was formed.
But whether that is so or not the membership have not been given a vote on the issue and in so doing has probably breached its own version of the Charter or Bill.
It also gives one some idea of how matters will proceed once a Charter is enacted.
The Council of the NSW Bar Association has also adopted a very lengthy, professionally competent, but very mechanical, paper.
And dodged the main questions.
The following is and extract from tis submission to the National Human Rights Consultation (slightly amended for what seem to be textual intrusions):
“13. The Bar Association supports the inclusion in an Australian charter of all of the rights
contained in the ICCPR and ICESCR. In particular, the following list of rights is
recommended for incorporation into an Australian charter of rights:
• the right to self determination;
• equality before the law and freedom from discrimination;
• the right to life and the right not to be arbitrarily deprived of life;
• the right to liberty and security of the person;
• protection from torture and cruel, inhuman or degrading punishment and
treatment;
• the right to humane treatment in all forms of detention, including recognition
of the special needs of juvenile detainees;
• the right to privacy in all its forms and protection from unlawful attacks upon
a person’s reputation;
• freedom from slavery, servitude and forced or compulsory labour;
• freedom of expression;
• freedom of association;
• freedom of peaceful assembly;
• freedom of movement;
• freedom of thought, conscience, religion and belief;
• the right of Australian citizens to vote and be elected to public office;
• fair trial rights applicable to civil and criminal proceedings;
• the right not to be tried or punished more than once;
• protection from retrospective criminal laws;
• protection of the family and children;
• the right to marry;
• the rights of indigenous peoples;
• the right of persons belong to ethnic, religious or linguistic minority groups to
enjoy their own culture, to profess and practice their own religion, and to use
their own language in community with the other members of their group;
• the right to asylum;
• the right to work and to just and favourable conditions of work;
• the right to an adequate standard of living;
• the right to the enjoyment of the highest attainable standard of health;
• the right to education; and
• the right to participate in the cultural life of Australia.
14. In those jurisdictions where bills of rights operate, while the executive and legislature
play a central role in interpreting human rights in broad policy terms, courts and
tribunals also play an important role in their interpretation and in determining their
application to a given set of facts. Some human rights, such as the right to a fair trial
or the right not to be tried more than once, focus on procedural protections, and may
be informed by local procedural laws. The jurisprudence of international courts and
committees and national courts suggests that understanding of the precise content of
human rights will develop over time. The Bar Association supports an approach that
encourages Australian courts and tribunals that may be called on to interpret and
apply human rights to have recourse to international and comparative jurisprudence.”
Peter Costello MP (SMH 28 07 09) is worried that there will in time be a successful attack on religious schools on fake discrimination grounds. That is very likely but it is not the main worry.
The main worry is that the Courts and Special Tribunals that will be set up will gain the powers of a Supplementary but Supreme Legislature to determine the practical day to day content of the rights of citizens.
Each time a new ruling is made a new law will be made which will determine the future rights of the citizens.
Parliament will have no practical right to intervene as the rulings are likely to be myriad.
The practical effect of a Charter will be to set up a layer of law lying between the Constitution and the lower level common law and statute law.
The contents of the Charter will be almost certainly wholly abstract just like the international covenants.
Some of the provisions have obvious inherent contradictions. But virtually all of them are potentially mutually contradictory.
Nothing is said in the above list of the right to own one's own home or the right of parents to make decisions as to the welfare and education of their children.
The right to “favourable” working conditions pre-supposes a situation where having made a lawful bargain with an employee a Court or Tribunal could find that the conditions agreed upon were not sufficiently favourable and order the payment of money out of one's person's pocket and put it into another.
A money judgment is always an appropriation even if not always successful.
Thus an order could be made on the basis of a “law” brought into existence solely for the purpose of making a defendant pay and which did not exist before the ruling.
No such power should be given to anyone.
So Peter Costello's worry that some highly usual (for Australia) rulings about religiously affiliated schools seems justified.
But anything at all could happen in any area of life.
There is little reason to have confidence in the the human rights industry. The whole industry is funded by government subsidies one way or another and their funding is likely to go on forever. So the cases will go on till they get the rulings they want.
What is going to happen when that industry supports the right of a woman to have child aborted 24 hours before it is due to be born because she has the right of self determination.
Quite plainly nothing like that should be allowed to occur.
It is also time to mention that the category of “human rights” is a misnomer. There really is no difference between a human right and any any other sort of right. They all have to be sewn into the one fabric of human life. There is almost nothing to cavil with in the international covenants in their abstract form.
The problem is to sew them in to the ordinary law.
That seems to be uniquely a matter for Parliament.
The idea that there should be a Joint Committee of both Houses of the Federal Parliament has already been mooted.
My suggestion would be that the extra step be taken of setting that committee under an Act and that the Chair be given the rank of an additional Deputy Speaker or Deputy President depending on which house he or she comes form and the salary of a Minister.
It would have the duty of scrutinizing all new legislation and of receiving and holding hearings on petitions with a view to recommending legislative action to the Governor General, which in practice means the Cabinet. This would be wholly additional to the usual rights of each House.
In such a system the Courts and Tribunals would apply the law in the usual way and confidence in them would be preserved.
And the free press would see that all the oddball proposals get full public scrutiny.
David Nelson
Barrister
Sydney
Wednesday, July 29, 2009
Tuesday, July 28, 2009
Hospitals - Toilet Test
Hospitals- Toilet Test
There is a quick way to tell whether the management of a hospital is any good. It is when you go to the toilet. The time was when hospitals were run by tyrannical czarinas and you could eat your breakfast off the ward floor. Can you now ? Even the hospitals run by nuns are in doubt. A smelly toilet means that basic staff work practices are bad. And is it improved by closing wards to provide offices for clerical staff ? A Commonwealth takeover may mean a makeover to Commonwealth Public Service practices. Some studies show that the bed loss over the last 40 years is 40%. A return to local board control and the establishment of a modestly competitive market might help. In NSW Area control seems to have caused a massive loss in efficiency and standards. Commonwealth control will be even more massive and how much worse ?
There is a quick way to tell whether the management of a hospital is any good. It is when you go to the toilet. The time was when hospitals were run by tyrannical czarinas and you could eat your breakfast off the ward floor. Can you now ? Even the hospitals run by nuns are in doubt. A smelly toilet means that basic staff work practices are bad. And is it improved by closing wards to provide offices for clerical staff ? A Commonwealth takeover may mean a makeover to Commonwealth Public Service practices. Some studies show that the bed loss over the last 40 years is 40%. A return to local board control and the establishment of a modestly competitive market might help. In NSW Area control seems to have caused a massive loss in efficiency and standards. Commonwealth control will be even more massive and how much worse ?
Monday, July 27, 2009
Rescession, More Pain & PM Rudd
27 07 09
Pain on the road to recovery – Prime Minister Rudd's 6000 word Essay in SMH 25 07 09 contains the sentence:
"However, as we later learnt , the glorious boom was built in large part on a three layered house of cards.”
“as we later learnt” is the bit to cavil with.
Everyone knew that this boom, as with all other booms, was a house of cards. All run-away booms always are.
What happened this time is that the voices of common sense were drowned under the skitings, urgings, negligences and silences of of everyone from second hand car salesmen, compliant and lazy financial journalists to merchant bankers (who are neither merchants nor bankers) and all our prudential authorities of which the Commonwealth and State Treasuries (especially in their research and supervisory roles), the Reserve Bank are possibly the most important
We all had notice from the time that the NAB bought US Homeside, believed to be a mortgage bank, but which had no actually mortgages.
Then our local government invested its reserves in deposits which turned out to be bets on interest rate changes, that is, not deposits at all. Not a single local government investment officer seemed ever to have looked at the underlying nature of these anti-securities. The resemblance to a bet on the Tote did not strike them.
And the Reserve Bank just jacked up interests rates to save itself from the trouble of finding out what was going on in the financial world.
And how are merchant bankers and race course touts related to each other ? The answer is that they are both commission agents, and other assorted jerk salesmen, gouging as much as they can in unstable markets.
And whether you agree with this formulation or not not a single one of the responsible authorities has ever bothered to apologize let alone explain themselves to the citizens.
And out members of Parliament – well – they might as well not have been breathing.
And absolutely nothing is being done to see that it wont happen again.
The real reason why Australia escaped the worst of the recession seems to have been in major part due to the late Bob Menzies. When he put Ben Chifley out as Prime Minister over bank nationalization he passed a strong Banking Act (as strong as Chifley actually needed) including social duty clauses and the Bank never seemed to free itself from some sense of obligation; notwithstanding the completely illegal exchange of letters which sought to free that Bank from all social control.
There is a strong case for the cancellation of the letters and the re-introduction of statutory reserve deposits which should be extended to all financial corporations including superannuation funds leading to the formation of the strongest possible internal bond market. There should be no element of gift to merchant banks in the arrangements and PPP arrangements should be re-balanced in favour of the public interest.
Under the heading of “The challenges of recovery” Prime Minister Rudd the sentence:
”The second new challenge is to build the foundations of sustainable growth.”
Later he says:
”Australia needs to work harder and smarter... “.
But there seems to be very little in the way of concrete ideas.
The huge infra-structure oriented growth stimulus may contribute very little to current employment growth and is said to be about to cost following generations a mint. But they will be there to use it and pay for it while they do. The cry of excessive debt on that account seems overblown.
On Sunday I drove through a number of country towns and also the outskirts of Sydney. Light industry areas are very prominent and the thought occurred that if each establishment took on one new employee that would go along way to reverse negative employments trends. How is this to be done ?
And so the abolition of Pay-Roll Tax sweeps into one's mind.
Wasn't this to happen when GST came in ? And would this be a comparatively small adjustment keeping the costs of the stimulus (stimuli) in mind.
And what would the abolition of stamp duty mean for the mobility of labour.
And did not Prime Minister Rudd just confirm Prime Minister Howard's ratting on both those undertakings.
There has to be some limit on blogs.
Much of Prime Minster Rudd's 6000 word monster SMH blog is not up to scratch What needs to be done require a lot more spine than he is presently showing
Pain on the road to recovery – Prime Minister Rudd's 6000 word Essay in SMH 25 07 09 contains the sentence:
"However, as we later learnt , the glorious boom was built in large part on a three layered house of cards.”
“as we later learnt” is the bit to cavil with.
Everyone knew that this boom, as with all other booms, was a house of cards. All run-away booms always are.
What happened this time is that the voices of common sense were drowned under the skitings, urgings, negligences and silences of of everyone from second hand car salesmen, compliant and lazy financial journalists to merchant bankers (who are neither merchants nor bankers) and all our prudential authorities of which the Commonwealth and State Treasuries (especially in their research and supervisory roles), the Reserve Bank are possibly the most important
We all had notice from the time that the NAB bought US Homeside, believed to be a mortgage bank, but which had no actually mortgages.
Then our local government invested its reserves in deposits which turned out to be bets on interest rate changes, that is, not deposits at all. Not a single local government investment officer seemed ever to have looked at the underlying nature of these anti-securities. The resemblance to a bet on the Tote did not strike them.
And the Reserve Bank just jacked up interests rates to save itself from the trouble of finding out what was going on in the financial world.
And how are merchant bankers and race course touts related to each other ? The answer is that they are both commission agents, and other assorted jerk salesmen, gouging as much as they can in unstable markets.
And whether you agree with this formulation or not not a single one of the responsible authorities has ever bothered to apologize let alone explain themselves to the citizens.
And out members of Parliament – well – they might as well not have been breathing.
And absolutely nothing is being done to see that it wont happen again.
The real reason why Australia escaped the worst of the recession seems to have been in major part due to the late Bob Menzies. When he put Ben Chifley out as Prime Minister over bank nationalization he passed a strong Banking Act (as strong as Chifley actually needed) including social duty clauses and the Bank never seemed to free itself from some sense of obligation; notwithstanding the completely illegal exchange of letters which sought to free that Bank from all social control.
There is a strong case for the cancellation of the letters and the re-introduction of statutory reserve deposits which should be extended to all financial corporations including superannuation funds leading to the formation of the strongest possible internal bond market. There should be no element of gift to merchant banks in the arrangements and PPP arrangements should be re-balanced in favour of the public interest.
Under the heading of “The challenges of recovery” Prime Minister Rudd the sentence:
”The second new challenge is to build the foundations of sustainable growth.”
Later he says:
”Australia needs to work harder and smarter... “.
But there seems to be very little in the way of concrete ideas.
The huge infra-structure oriented growth stimulus may contribute very little to current employment growth and is said to be about to cost following generations a mint. But they will be there to use it and pay for it while they do. The cry of excessive debt on that account seems overblown.
On Sunday I drove through a number of country towns and also the outskirts of Sydney. Light industry areas are very prominent and the thought occurred that if each establishment took on one new employee that would go along way to reverse negative employments trends. How is this to be done ?
And so the abolition of Pay-Roll Tax sweeps into one's mind.
Wasn't this to happen when GST came in ? And would this be a comparatively small adjustment keeping the costs of the stimulus (stimuli) in mind.
And what would the abolition of stamp duty mean for the mobility of labour.
And did not Prime Minister Rudd just confirm Prime Minister Howard's ratting on both those undertakings.
There has to be some limit on blogs.
Much of Prime Minster Rudd's 6000 word monster SMH blog is not up to scratch What needs to be done require a lot more spine than he is presently showing
Sunday, July 26, 2009
Climate Change – Is “Climate Change” theory a giant world shaking Hoax ?
Two Conservative American columnists may think so.
In the same way as the Russian Revolution and Communism was a giant hoax ?
It seems to this blogger that Pascal's Wager theory applies. The allegation that God exists is so immense that a betting man will place his bets on the basis that he may.
So it may be a good idea to pull as much carbon out of the atmosphere as possible if it can be done without equally massive radical harm
The thought of God may make you behave a little better and getting rid of some smog make let you breathe a little easier. As the physicians say,”First, do no harm.”
And is Copenhagen a hoax ? Once upon a time all the carbon in coal was in the atmosphere: or was it?
Where does this fact appear in the computer models ? And where are the succinct and convincing artles which tend to show there is no hoax ?
The rest of the blog consists of selected quotations from:
George Will in he Washington Post Thursday, July 23, 2009
Climate Fixers' Hard Sell
The Summit of Green Futility
Preparing for a Sea Change
In January, China announced that its continuing reliance on coal as its primary source of energy will require increasing coal production 30 percent in the next six years.
On to Italy! The Financial Times reported, "Officials are now pinning their hopes" on the G-8 summit.
Which has come and gone, the eight having vowed to cut emissions of greenhouse gases 80 percent by 2050, which is 41 years distant. As is 1968, which seems as remote as the Punic Wars, considering that more than half of all living Americans were born after 1966. If you do not want to do anything today, promise to do everything tomorrow, which is always a day away.
Still, sternly declaring that they will brook no nonsense from nature, the Eight made a commitment -- but a nonbinding one -- that Earth's temperature shall not rise by more than 3.6 degrees Fahrenheit over "preindustrial levels." That is the goal. Details to follow. Tomorrow.
Explaining such lethargy in the face of a supposed emergency, the G-8's host, Italy's Prime Minister Silvio Berlusconi, said the Eight should not burden themselves as long as "5 billion people continue to behave as they have always behaved." Actually, the problem, for people who think it is a problem, is that the 5 billion in the developing world are behaving in a new way. After centuries of exclusion from economic growth, they are enjoying it, which is tiresome to would-be climate fixers in already prosperous nations.
georgewill@washpost.com
Two Conservative American columnists may think so.
In the same way as the Russian Revolution and Communism was a giant hoax ?
It seems to this blogger that Pascal's Wager theory applies. The allegation that God exists is so immense that a betting man will place his bets on the basis that he may.
So it may be a good idea to pull as much carbon out of the atmosphere as possible if it can be done without equally massive radical harm
The thought of God may make you behave a little better and getting rid of some smog make let you breathe a little easier. As the physicians say,”First, do no harm.”
And is Copenhagen a hoax ? Once upon a time all the carbon in coal was in the atmosphere: or was it?
Where does this fact appear in the computer models ? And where are the succinct and convincing artles which tend to show there is no hoax ?
The rest of the blog consists of selected quotations from:
George Will in he Washington Post Thursday, July 23, 2009
Climate Fixers' Hard Sell
The Summit of Green Futility
Preparing for a Sea Change
In January, China announced that its continuing reliance on coal as its primary source of energy will require increasing coal production 30 percent in the next six years.
On to Italy! The Financial Times reported, "Officials are now pinning their hopes" on the G-8 summit.
Which has come and gone, the eight having vowed to cut emissions of greenhouse gases 80 percent by 2050, which is 41 years distant. As is 1968, which seems as remote as the Punic Wars, considering that more than half of all living Americans were born after 1966. If you do not want to do anything today, promise to do everything tomorrow, which is always a day away.
Still, sternly declaring that they will brook no nonsense from nature, the Eight made a commitment -- but a nonbinding one -- that Earth's temperature shall not rise by more than 3.6 degrees Fahrenheit over "preindustrial levels." That is the goal. Details to follow. Tomorrow.
Explaining such lethargy in the face of a supposed emergency, the G-8's host, Italy's Prime Minister Silvio Berlusconi, said the Eight should not burden themselves as long as "5 billion people continue to behave as they have always behaved." Actually, the problem, for people who think it is a problem, is that the 5 billion in the developing world are behaving in a new way. After centuries of exclusion from economic growth, they are enjoying it, which is tiresome to would-be climate fixers in already prosperous nations.
georgewill@washpost.com
Wednesday, July 22, 2009
Disadvantage and Education
Glyn Davis, Vice Chancellor, Melbourne University (Australian 22 07 09) write on school performance and the poor. I went to primary school in Cessnock, NSW, with miners' children who did not wear shoes in winter. This was at St Pat's but the public schools were just the same. I do not have any doubt that my observations were correct as in 1945 I won the May Day Essay Prize for for 6 pages titled "A day in the Life Of A Miner". Seven years later at university I met one girl who had been in my enormous class and she was not a student. Many years later I became national President of the Australian Parents Council in the magic years when the oyster was opened for what was then called "State Aid". Rule 1 was that all the clergy should shut up and that the matter was to be resolved by the citizens as a matter of fairness in the ordinary course of life not, by any means,disincluding the local hotel. Davis quotes Jack Keating calling for church based schools tobe incorporated into a national regulatory agency for all schools. This formulation smacks of ill considered social engineering with all the prospects of the application of the iron law of unintended consequences. Since the 1930's at least the Teachers Unions have been under the control of various assorted Marxists (originally Moscow aligned Stalinists). The "common front" tactic and entry-ism are still effective. All still very Cominform. However the unrestrained luxury of the theatres, playing fields and swimming pools and the bidding for the best class of labour attendant upon the privileged end of the education market is now disgusting. The test of education is the value added to the whole human being important as brain surgeons, philosophers and merchant bankers are. The value added someone raised from the "pick and shovel" to a trade is immense and of immense value to society. If it were possible everyone should be raised from that kind of hard labour and it is not an attack upon the poor to speak the truth. Australia is much more on the way to genuine equality than most countries. Equality consists not in equality of numbers but in due proportion or equity. It is the right of the plumber, hairdresser or public servant to have the services of the best brain surgeon when he or she needs one. And that is their view of equality. And then there is the appalling mess and waste of billions leading to the degradation of the "original inhabitants" by imposition of a crassly stupid system which has all the hallmarks of that bad faith of which the ideologues seem to be the leading exponents. What is needed is not a "national regulatory agency" but a national enabling agency which can also put a brake on those who have been just a bit too enabled. So basically I agree with Keating and Davis.
Thursday, July 16, 2009
Climate Change - Skeptic
Climate Change
Support pulling carbon out of the atmosphere only because it may be too big a risk not to. Pascal's Wager logic. Why isn't there a book supporting the theory of climat change similar to Plimer's skeptical book ?
Support pulling carbon out of the atmosphere only because it may be too big a risk not to. Pascal's Wager logic. Why isn't there a book supporting the theory of climat change similar to Plimer's skeptical book ?
Wednesday, July 15, 2009
Stern Hu and the Communist "Justice" System
Stern Hu – The Chinese Communist justice system is just another instrument of the Revolution. It is just that right now it is tactically convenient that its justice system imitate bourgeois justice practice especially in the developing areas which are receiving Western technology wholesale.
However many Australian businessmen would be surprised to find out that much “ordinary commercial practice” may be criminal.
Conspiracy to cheat and defraud is one of the areas not fully explored.
The old Red Bulletin's Business section used to be headed “Business, Robbery etc”
Misuse of confidential information is dealt with severely in our civil law. Such misuse could easily be an “overt act” for the purposes of a conspiracy charge. Industrial intelligence is a very murky area.
The “law” is likely to be much more severe in China.
Hopefully the facts will emerge.
Meanwhile the Australian Government's attitude, that Stern Hu be afforded decent treatment, seems to be correct.
And Australian companies better get much stronger and pertinent advice when dealing with Chinese “government” corporations.
And a little history might help. Starting with the United Kingdom's wars to force opium consumption on China. The Olympic Games hardly up for that and everything else.
However many Australian businessmen would be surprised to find out that much “ordinary commercial practice” may be criminal.
Conspiracy to cheat and defraud is one of the areas not fully explored.
The old Red Bulletin's Business section used to be headed “Business, Robbery etc”
Misuse of confidential information is dealt with severely in our civil law. Such misuse could easily be an “overt act” for the purposes of a conspiracy charge. Industrial intelligence is a very murky area.
The “law” is likely to be much more severe in China.
Hopefully the facts will emerge.
Meanwhile the Australian Government's attitude, that Stern Hu be afforded decent treatment, seems to be correct.
And Australian companies better get much stronger and pertinent advice when dealing with Chinese “government” corporations.
And a little history might help. Starting with the United Kingdom's wars to force opium consumption on China. The Olympic Games hardly up for that and everything else.
Turnbull's Lesson
Turnbull's Lesson - All documents which have "fallen of the back of a truck" are likely to have been forged or tampered with. All "political spies and deserters" are likely to be unreliable. The experienced lawyer's rule used to be, "Check up on your own people first". Politicians used to know this sort of thing instinctively. Turnbull is both.
Tuesday, July 14, 2009
China and Stern Hu
Paul Kelly seems to have the balance right even if he is bit soft on what sort of regime Communist China really is. But an assumption of total innocence may also be naive.
Our security people at the very highest level should look into the matter crisply and with a hard edge. Much of the other side of Hu's emails should be with his employers and other contacts. And who knows what ?
And what about giving China first refusal rights for a stabilising period ? In foreign trade one does not get to choose the political nature of the other party. We should be perspicacious.
And even Communist regimes do not last forever. It is no accident that the Tianmen Square statue look like the Statue of Liberty. The more advanced China becomes the more likely that its people will require their liberty.And the Chinese comrades know this. Itis a conundrum.
Our security people at the very highest level should look into the matter crisply and with a hard edge. Much of the other side of Hu's emails should be with his employers and other contacts. And who knows what ?
And what about giving China first refusal rights for a stabilising period ? In foreign trade one does not get to choose the political nature of the other party. We should be perspicacious.
And even Communist regimes do not last forever. It is no accident that the Tianmen Square statue look like the Statue of Liberty. The more advanced China becomes the more likely that its people will require their liberty.And the Chinese comrades know this. Itis a conundrum.
Friday, July 10, 2009
Pape's Case 2009 HCA 23 (7 July 2009) – State Powers - What Sir Maurice Byers QC Said.
Pape's Case 2009 HCA 23 (7 July 2009) – State Powers - What Sir Maurice Byers QC Said.
The High Court has decided that the Rudd Labor Government's Bonus Payment is lawful.
Sir Maurice Byers, apart from being a former Commonwealth Solicitor General, which really means chief legal adviser and advocate for the Commonwealth Government, was the quietest, most forceful and succinct appeal advocate before the High Court in the last 50 years.
One day, when back at the NSW Bar, he came down to the lunch which many barristers used to eat more or less in common, and the topic came round to, “What were the powers left to the States?”.
Maurice brought the discussion to a halt when he said,
“The powers left to the States are those powers which are left when full effect has
been given to every provision of the Commonwealth Constitution.”
The overwhelming impression was that that was not much and flowed chiefly from the provision of the Constitution which converted the Australian Colonies into States and are therefor an eradicable part of the Australian polity. .
The High Court has decided that the Rudd Labor Government's Bonus Payment is lawful.
Sir Maurice Byers, apart from being a former Commonwealth Solicitor General, which really means chief legal adviser and advocate for the Commonwealth Government, was the quietest, most forceful and succinct appeal advocate before the High Court in the last 50 years.
One day, when back at the NSW Bar, he came down to the lunch which many barristers used to eat more or less in common, and the topic came round to, “What were the powers left to the States?”.
Maurice brought the discussion to a halt when he said,
“The powers left to the States are those powers which are left when full effect has
been given to every provision of the Commonwealth Constitution.”
The overwhelming impression was that that was not much and flowed chiefly from the provision of the Constitution which converted the Australian Colonies into States and are therefor an eradicable part of the Australian polity. .
Pape's Case - Many Pages
Pape's Case 2009 HCA 23 (7 July 2009) – High Court Judgments - 231 Pages – There must be some way for the High Court to tell the interested public about its decisions which seek to determine some aspects of the nature of the Australian polity in which we live which is shorter and more succinct than 231 pages. The United States Supreme Court issues summaries. Why can't our High Court ? And why is it necessary that full notice be given of every subordinate argument ?
Pape's Case and Professor Winter
Pape's Case 2009 HCA 23 (7 July 2009) – State Powers – Professor George Winter – Constitutional - UNSW Law School – Will Inhibit Exercise of Commonwealth Powers – Wrong
The Commonwealth won hands down.
French CJ's main point seems to be that very large scale detrimental economic movements are matters for the attention of the Commonwealth Executive as government as only it has resources of sufficient scale. The Parliament may make laws at least under its ancillary powers to aid the Executive in dealing with such matters.
Justices Gummow, Crennan and Bell seems to be that the law of the Parliament merely altered the destination of funds already appropriated It has some kinship with the defence power which also deals with matters of the largest consequence. They approved of a statement in the Parliamentary Practice.
And the citizens should say amen to that.
Justices Hayne & Kiefel referred to every law student's hairy chestnut – the great case of Mc Culloch v Maryland 1819 17 US 159 @ 206 endorsing the proposition:
“let it be within the scope of the Constitution” then “all means “.... “ are
appropriate”.
The incidental power of the Parliament is capable of applying to everything to which the Australian Constitution is directed.
Heydon J, in dissent, stands alone. He seems to be saying that a general crisis can not be attended to just because it is a crisis and outside the Commonwealths listed powers. The others say one can look at the rest of the Constitution. Power may arise from any appropriate provision depending what is happening.
It would seem that the Commonwealth Government is a “general government” within its proper area. But it is also limited.
What those limits are will be found by the familiar technique of the common law. They will be decided on one by one. The common law technique is not a matter of abstract theory but live in the pragmatic world of case by case. Thus the iron law of unintended consequences from the application of abstract theory may be avoided.
And see blog on Sir Maurice Byers.
The Commonwealth won hands down.
French CJ's main point seems to be that very large scale detrimental economic movements are matters for the attention of the Commonwealth Executive as government as only it has resources of sufficient scale. The Parliament may make laws at least under its ancillary powers to aid the Executive in dealing with such matters.
Justices Gummow, Crennan and Bell seems to be that the law of the Parliament merely altered the destination of funds already appropriated It has some kinship with the defence power which also deals with matters of the largest consequence. They approved of a statement in the Parliamentary Practice.
And the citizens should say amen to that.
Justices Hayne & Kiefel referred to every law student's hairy chestnut – the great case of Mc Culloch v Maryland 1819 17 US 159 @ 206 endorsing the proposition:
“let it be within the scope of the Constitution” then “all means “.... “ are
appropriate”.
The incidental power of the Parliament is capable of applying to everything to which the Australian Constitution is directed.
Heydon J, in dissent, stands alone. He seems to be saying that a general crisis can not be attended to just because it is a crisis and outside the Commonwealths listed powers. The others say one can look at the rest of the Constitution. Power may arise from any appropriate provision depending what is happening.
It would seem that the Commonwealth Government is a “general government” within its proper area. But it is also limited.
What those limits are will be found by the familiar technique of the common law. They will be decided on one by one. The common law technique is not a matter of abstract theory but live in the pragmatic world of case by case. Thus the iron law of unintended consequences from the application of abstract theory may be avoided.
And see blog on Sir Maurice Byers.
Saturday, July 4, 2009
Mutiny At Townsville
Millar v Bornholt [2009] FCA 637 (15 June 2009)
LOGAN J at TOWNSVILLE
The circumstances prevailing at the time of the passage of the Mutiny Act 1689 were singular. The “Glorious Revolution” had just occurred. King James II of England (King James VII of Scotland) had fled his kingdoms but was actively plotting his return with the assistance of the French. Parliament had adjudged that he had abdicated the Throne and offered it jointly to his elder daughter, Princess Mary and her husband, Prince William of Orange. The Army had been purged of supporters of the former King. It was necessary to provide for its governance. In his authoritative work, “The Military Forces of the Crown” (1869), Mr C M Clode, Barrister at law and legal advisor at the War Office, offers (at pp 84-85) the following account of what transpired and its enduring relevance:
It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army. To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable. The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.
Now this object was to be attained – not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament
LOGAN J at TOWNSVILLE
The circumstances prevailing at the time of the passage of the Mutiny Act 1689 were singular. The “Glorious Revolution” had just occurred. King James II of England (King James VII of Scotland) had fled his kingdoms but was actively plotting his return with the assistance of the French. Parliament had adjudged that he had abdicated the Throne and offered it jointly to his elder daughter, Princess Mary and her husband, Prince William of Orange. The Army had been purged of supporters of the former King. It was necessary to provide for its governance. In his authoritative work, “The Military Forces of the Crown” (1869), Mr C M Clode, Barrister at law and legal advisor at the War Office, offers (at pp 84-85) the following account of what transpired and its enduring relevance:
It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army. To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable. The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.
Now this object was to be attained – not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament
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