A couple of weeks ago recently retired High Court Justice Michael McHugh entered the public debate on whether Australia should have a legislated bill of rights. The debate (such as it is) was one of the “outcomes” of the Rudd government’s 2020 Summit, and more recently led to the establishment of the National Human Rights Consultation Committee chaired by Father Frank Brennan.
The Committee’s terms of reference include that its recommendations to the Rudd government “should preserve the sovereignty of the parliament and not include a constitutionally entrenched bill of rights”. There are two divergent likely structural models for a legislative (not constitutionally entrenched) bill or charter of rights:
- An Act which directly creates legally enforceable rights;
- An Act which professes not to do that, but which requires courts (a) to interpret all other legislation “in a way which is compatible with human rights”; and (b) where that isn’t possible to issue a Declaration of Incompatibility stating that the legislation is contrary to one or more of the enshrined human rights (but without overriding the challenged legislation). This is said to establish a constructive human rights “dialogue” between judiciary and politicians.
You would think that the first model would be by far the simpler and more effective to adopt, but in fact the second “dialogue” model has for some reason become the current fashion among bill of rights proponents. Versions of it have been enacted in the UK (Human Rights Act 1998) and more recently in the ACT and Victoria, while a rather more primitive version was enacted in New Zealand in 1990. I suspect that the reason for this vogue is that this sort of “dialogue” model at least superficially seems to pose less of a threat to parliamentary supremacy, and therefore to politicians’ power vis-à-vis the judiciary, than one which directly confers enforceable legal rights on citizens.
McHugh’s intervention appears designed to make two crucial points:
- The dialogue model is by no means as harmless as it looks in its potential effects on legislation and in empowering the judiciary at the expense of Parliament;
- there are quite strong arguments that both elements of the dialogue model (at least the version currently being advocated by groups like GetUp and New Matilda), namely the interpretive provisions and the “Declaration of Incompatibility” device, would be in breach of constitutionally-mandated separation of judicial power if implemented federally.
McHugh argues strongly that a bill of rights which directly implements the list of human rights contained in the International Covenant on Civil and Political Rights would be far preferable to pursuing a “dialogue” model at Commonwealth level, in large part because the Commonwealth, unlike the UK or the Australian states and territories, is constitutionally constrained by the separation of powers doctrine.
McHugh argues that the declaration of incompatibility provisions are likely to be held in breach of separation of power because they confer non-judicial power on a federal court. Such a declaration arguably creates no legally enforceable rights and therefore may not be a “matter” for constitutional purposes and may well be held to constitute merely an advisory opinion, something the High Court held was not an exercise of judicial power as long ago as 1921.
As for the interpretive provisions, McHugh points out that the New Matilda Bill differs from the already enacted ACT and Victorian legislation in a crucial respect:
Obviously, a key provision in this proposed legislation is section 49 of the Bill with its direction that “so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with human rights”. This section is identical in substance with s.3 (1) of the United Kingdom Act. It differs however from s.32 (1) of the Victorian Charter and s.30 of the ACT Human Rights Act, both of which require statutory provisions to be interpreted in a way that is compatible with human rights but also consistently with their purpose. As a result, the New Matilda Bill, like its United Kingdom counterpart, gives the courts a far more radical power of interpretation that is found in the Victorian and ACT legislation. As I will later show, this is a matter of considerable constitutional significance.
It is a settled principle of the interpretation of statutes in Australia that statutes are to be interpreted and applied, so far as their language permits, so as not to derogate from fundamental rights and freedoms. …
However, the direction as to interpretation in section 49 of the New Matilda Bill goes beyond these common law principles of statutory interpretation. It will apply to a number of rights that under the common law would not be regarded as fundamental for the purpose of those principles of statutory interpretation, particularly the economic and social rights set out in ss. 37-41. But more importantly it declares that, so far as it is possible to do so, legislation must be read in a way that is compatible with human rights. As cases in the United Kingdom show, the courts have read this direction as empowering them to re-draft legislation so as to give it an interpretation that is contrary to the intention of Parliament. Lord Steyn has said that 1his is the intention of Parliament, expressed in s 3, and the courts must give effect to this intention. This far reaching principle of statutory interpretation has resulted from the word possible in s.3 of the UK Act, when it is read in the context of the section. …
After examining relevant UK case law, McHugh summarises the current British position:
These decisions and the reasoning in them support a number of propositions in respect of an interpretative provision expressed in the terms of s. 3 of the UK Act, which, as I have pointed out, is not materially different from s.49 of the New Matilda Bill. They include:
(1) Courts have power to modify legislation to give effect to human rights.
(2) Courts can modify legislation whose meaning is unambiguous.
(3) Courts can modify legislation even though the modification is contrary to the intention of Parliament.
(4) Courts can modify legislation that is enacted after the enactment of the Human Rights Act 1998.
McHugh argues that such a provision would also breach separation of powers in that it requires the High Court to redraft legislation to a significant extent and therefore exercise a legislative rather than judicial function. Nevertheless, McHugh thinks the High Court is likely to read down such an interpretive provision to preserve some measure of validity, by implying a requirement that statutes must always be read consistently with legislative purpose as well as with human rights standards (where possible).
I find most of McHugh’s arguments persuasive. ((The New Matilda Bill was drafted by some fairly eminent academics, including Professors Spencer Zifcak, George Williams and Hilary Charlesworth, as well as Dr Helen Watchirs, Julian Burnside QC and Brian Walters SC. They presumably argue that it’s constitutional. However, former Chief Justice Sir Gerard Brennan expressed similar views to McHugh a couple of years ago, and I’m inclined to think they are both likely to have a more accurate idea of the way the High Court is likely to view these issues than the academics. ~ KP)) I also agree with him that a directly legislated federal bill of rights should be the preferred option. However, I’m much more conservative than McHugh on the scope of any such bill. I don’t think Australia should legislate the entire range of rights and freedoms listed in the ICCPR (some are already legislated anyway e.g. anti-discrimination provisions at both state and federal levels). Moreover, I don’t think Australia should under any circumstances enshrine any of the rights in the International Covenant on Economic, Social and Cultural Rights. All or almost all of them are rights with immediate resource allocation dimensions and hence inherently matters for political decision-making rather than judicial supervision.
For what it’s worth, the only rights I think really need to be legislated at federal level are due process and equal legal protection (like the Fourteenth Amendment to the US Constitution). That would largely prevent the sorts of abuse that became evident in the Hicks, Haneef and Al Khateb cases and numerous other aspects of the treatment of asylum seekers. Those events of the last few years persuaded me that Australia needs some form of statutory rights protection, where I’d previously regarded any legislative or constitutional rights protection (beyond what already exists) as unnecessary and undesirable.
PS I should add that, as I mention in comment #2 below, I think that the constitutional implied freedom of political communication should be legislatively extended to cover discussion about religious matters and courts and judges (which are clearly matters of great and legitimate public interest discussion of which should be protected from excessively easy defamation action).
I would also like to see the Commonwealth Constitution freedom of religion (s116) and guarantee of just terms on acquisition of property (s51(xxxi)) extended to bind the States as well as the Commonwealth. A referendum aimed at the former failed in 1988, but at least in part because it was bracketed with other measures that were more easily demonised by the Coalition. It would be much harder for the Libs and Nats to invent a plausible basis today for opposing protection of both private property rights and religious freedom (in the age of Steve Fielding and sucking up to Hillsong fundies).
- t[↩]
What about free speech in light of the nonsense internet filter proposals?
Tim
To the extent that the Internet filtering regime picks up political discussion (as opposed to just classes of porn that aren’t illegal), it would be likely to run foul of our existing constitutional freedom of political communication. I don’t think enshrining any broader freedom than that is needed. Broader freedom of speech rights (beyond political discussion) would unavoidably run foul of other potentially incompatible rights like privacy and reputation (Pauline Hanson? photos), and I’m not convinced that a legislative regime that expresses such rights in broad general terms and then leaves it to the courts to decide who wins when they conflict with each other is a desirable model. I’d rather see the definition of political communication broadened legislatively in relation to the qualified privilege defence in uniform defamation legislation to include discussion about religious matters and the courts/legal system where they can reasonably be regarded as matters of general public interest. That would keep Conroy’s filtering fiasco within acceptable bounds in a rights sense as far as I’m concerned.
I’d very much like to see it presented as a bill of limitations to government power, rather than rights as such (although the distinction is a fine one). For example, rather than say that you have the right to freedom from torture, it is better worded to say that no Australian (including any government) can ever have the power to legally inflict torture.
Describing it in terms of the absence of badness rather than the presence of goodness.
Putting things on terms such as this, makes it easy to keep people like Conroy under control.
Sounds like a recipe for concentration of power and the inevitable corruption that follows. All the more reason for constitutionally enshrined limitations of power.
These things always end up as a Bill of Wrongs for judicial and social activists to implement their hidden agendas. As for-
“the sorts of abuse that became evident in the Hicks, Haneef and Al Khateb cases and numerous other aspects of the treatment of asylum seekers.”
says you. In the final analysis the powers that be were answerable to the electorate’s sense of fair play depending on particular circumstances. Some still think Hicks was an innocent backpacker like Habib was a cleaning business entrepreneur, but society knew better. You cannot legislate against human error or gross oversight(Cornelia Rau also ended up in custody in Yemen for the same reason as Oz but not a murmur from the usual suspects) but in the end that’s a judgement for us to make politically. We know best rather than the self important elites and noisy claques. That was demonstrated right through the boat arrivals saga and will be ongoing with the ebbs and flows of further arrivals.
Further to Tim’s point on the Conroy net filtering debacle, I should have noted that a right to due process would in any event do at least as much as a broadly based right to free speech (on any subject) to restrain the sorts of outrageous inclusions on the filtering list that have been uncovered (assuming the leaked list is resonably authentic) in the last 24 hours (e.g. dentist’s website). A due process right would invalidate the inclusion of sites on a secret list without prior notification, publication of open and transparent filtering criteria and a fair opportunity to defend yourself against inclusion.
I should really ignore observa, after all he’s mostly just an attention-seeking troll albeit a fairly harmless and occasionally amusing one. However his argument at#4 above that we can trust the politicians and the “electorates sense of fair play” may well represent a much wider complacent public view of why Australia is one of the freest and fairest societies in the world (IMO): it’s because we’re just thoroughly nice chaps and chappesses who can be trusted to do the right thing.
The problem is that any reasonably dispassionate examination of history (and what we know of human nature) tells us this is nonsense. Australians are as prone as anyone else to moral panics and fear-driven persecution of momentarily unpopular minorities. JS Mill had it sorted almost exactly 150 years ago when he said in his great essay “On Liberty”:
It’s like this for me. I don’t like those filthy Bracks Vilification laws and the unelected witch hunters and their administrative rack. However there’s a couple of powerful plusses. Firstly their machinations have scared off other States from following suit and secondly I’m not forced to live under them with a Federal Bill of Wrongs that seemed like a good idea at the time. Thankfully Victorians can elect a new Govt at any time that can sweep away all those witch hunters and usual suspects at the stroke of a legislative pen and that’s the way it should be. The truth is we can blow away any protective Constitution and set up a fascist state any time we like but, it’s our traditions and sense of fair play we rely upon not to do so, albeit we push hard on them say in times of stress or war(ie the war on terror). The tyranny of self-appointed elites is still worse than the tyranny of the majority.
Thanks, Ken. Personally, I’m a minimalist in regard to a BoR and would be happy with 3or4 key rights enshrined, inc freedom of speech. I like Tel’s idea of calling it a “limitation of govt powers”. The internet filter thing just shows me that a govt can’t be trusted with this stuff in a technologically advanced age. Who knows what deal will be done with the likes of FAmily First in the future to trade one thing off against another? I want my rights enshrined and unalienable and am much happier to have them decided before a court than before the “art of the possible” crowd in the Senate.
Yeah, yeah Ken. You hang around those elites and you’ll start believing their hype. Me, I’m sticking with the trolls for good reason. There is always tension between individual rights and communal ones, the latter largely revolving around protection from the depradations of the former. It is that continual tension in the light of new realities and circumstances that makes me skeptical of once off, central planning(Bill of Wrongs), vis a vis a market based, democratic approach(the comunity’s sense of fair play). The former requires us all to largely believe in an omniscient committee coming up with an explicit set of immutable rules for all time, while the latter relies upon implicit understanding of a host of free, democratic traditions and their past applications, in order to apply them to new problems that arise from time to time. Quoting Mill is fine but there’s a lot of water under the bridge since his time and I note he didn’t have much to say on the war on terror.
Now that’s a good example of where I’m coming from. Take Hicks. After 9/11 and subsequent bombings, the community was prepared to promptly tradeoff individual rights for community protection up to a point. That point was reached when the immediate threat of terror was ameliorated by better intelligence implementation and counter-terror measures which left the stopgap response of Gitmo looking a bit of overkill in some cases. The numbers had been whittled down(the Habibs), albeit at the cost of a significant number of releases rejoining the WoT. However with the immediate threat abated, the implicit understanding of the right to face your accuser raised its head with detainees like Hicks. When faced with his day in court he owned up and went back into the community on parole as normal. Essentially he was a dangerous moron that had read too many Boys Own Annuals and serving his time was a warning to others that firing RPGs across borders, among other things, is not an example to be imitated. My take? Under the circumstances the community got it right, all things considered, although Hicks had no explicit rights to rely upon. Was Gitmo an overkill in all cases? Well that’s for Obama to work out now as he calls on all those concerned States to do the right thing and help him close this Gulag of human rights. Good luck Obamessiah or if not ring Ken Parish and he’ll fax you a copy of the explicit, expert rules to be followed in such circumstances.
I agree with Ken’s preference for minimalism in this area. I am actually pretty happy with the status quo but if I agree strongly that if we are going to change anything I would rather legally enforceable rights to free speech and due process. We already have a ‘takings’ clause.
I don’t think anything beyond this would be beneficial and I agree extremely strongly about not enacting any ‘resource-allocating’ ‘rights’. How anyone can think that there is a benefit to be had from letting someone argue before a Court that a given law doesn’t adequately facilitate their being housed or fed is beyond me. And what the Court is supposed to do is similarly beyond me.
As for rights to freedom from vilification, I think they are abhorrent and incapable of anything other than misuse. Canada’s recent struggles seem to bear this out (as does that ridiculous Victorian case). Note the constant involvement of agents provacateur in these cases (well over half the Canadian cases relied on one guy who basically trolled white supremacist and other sites trying to provoke extreme comments, and the Catch the Fire complainants were deliberately trying to be offended as well).
If you needed any more convincing that a one size fits all, Bill of Wrongs is the answer to all our prayers, it would be remiss of me not to point out an excellent example where even my favoured implicit rights rubber hits the road. Having got stuck into silly Victorians, I have to confess that we in the city of empty churches do have our raw underbelly. Here’s a brief potpourri of that sewage for Kens law students to cogitate over endlessly-
http://www.news.com.au/adelaidenow/story/0,22606,25210646-2682,00.html?from=public_rss
A bit of background might help the uninitiated understand the complexity of that constant tension between individual rights and community protection, bearing in mind this is a stalwart BoR Labor Govt we’re talking about here in Ranndom.(hold that thought) Basically the bikies have been running the nightclub/bouncer/drug scene as well as the hydroponics shop/drug distribution business and sundry tattoo parlours and making a mockery of modern policing that has typically been neutered by years of well meaning luvvy Labor Govts, until it’s become your typical social worker outfit, trying to understand what’s wrong with all these poor victims of our oppressive society. I should also mention that alongside this clearly advertised lot, there exists the incognito Gang of 49, which consists of a bunch of aboriginal Fagin adults directing a bunch of underage siblings and cousins to do their dirty work, for the obvious that they only get flogged with a feather if caught instead of two or three. Culturally appropriate emu feathers of course. These young Olivers are widely engaged in car stealing and jacking, ram-raiding, and high speed car chases, when theyre not mugging , bag snatching and hopping into whitefella houses. Although they dont mean to break the odd arm or hip of the blue-rinse set in the process, well you know how it is in the mugging game.
Naturally out in troll land, theyre coming round to the idea that the Dreamtime and distinct lack of rabbit proof fences is not all its cracked up to be and perhaps a bit more multiculturalism is in order. Sort of Judeo-Christian crucifixion meets Asian rattan with a strong dash of Sharia, but what would trolls know about such elite matters? Well if they dont know, naturally media Mike does and hes on the laura norder trail on their behalf. You guessed it, forget freedom of association and the usual consorting laws, and its time to ban outlaw motorcycle gangs. If he hasnt managed to knock down one bikie fortress as promised since the last election, hell just ban them and make it an offence for them to wear advertising and anyone else from consorting with them, whatever that means. Out in troll land were somewhat gobsmacked that anyone would want to ban villains from wandering about, widely advertising the fact theyre villains. On the contrary, wed be more than happy for the Gang of 49 to do likewise and do it in neon lights at night too for obvious reasons. Troll logic probably doesnt appreciate the subtle nuances of sophisticated elites, whereby the real underlying plan might be to drive them to Victoria where they can shelter under the cosy umbrella of Anti-Vilification Laws. The bikies obviously dont appreciate the nuanced argument either, because in between shooting each other and squabbling over drug territory, theyve come together with a plan to affiliate as a registered political party, to short circuit the whole convoluted deal to protect their rights. We simple trolls await with baited breath the outcome of all these higher ether machinations, while lamenting the lack of aforementioned multiculturalism and the demise of its associated Plod (basically, does Ray Whitrod have a son?)
Well while all this has been going on, it seems the AG has been ignoring the Parole Boards constant warnings over the years that too many convicted psychos are wandering about the community presenting a threat to bikie gang members and the Gang of 49. He forgot about all their submissions over the years until reminded by the head of the Parole Board Ms Nelson, who was anxious not to be blamed for the sudden antisocial activity of one convicted knife robber David Wyatt, one of about 150 she reckons are wandering about on parole with similar problems. There arent enough places in James Nash House for the real psychos, partly because the Govt was convinced they were all harmless, innocent victims like Cornelia Rau and partly because the common or garden crooks and sundry villains in Yatala had worked out that if you play your cards crooked with gullible shrinks, you can get nicer digs at James Nash.
Yes folks, thats where the rubber of human rights hits the road and Im expected to believe some expert committee can write a reasonable set of rules for all that. Not this ignorant troll Im afraid.
obs
I’m not quite sure what you’re on about here. Someone has obviously hit your “play” button. It was probably me, suggesting that you’re a troll (albeit a very nice one). I apologise and withdraw. It was unworthy and uncivil of me.
Getting to the substance, maybe you should go back and read my primary post again and then Patrick’s comment. He didn’t have any difficulty working out that I am advocating a very conservative minmalist “rights” model that bears litle or no resemblance to your “Bill of Wrongs” rant. I quite agree that we don’t want a fulsome bill of rights, constitutionally entrenched or otherwise. But even Burkean conservatism accepts the need for gradual, cautious change in light of experience. And experience over the last 7 or 8 years suggests that a legislated right to due process and equal protection is needed. Certainly not a constitutionally entrenched one, because in the US that has led to lots of seemingly irreversible “substantive due process” exercises in judicial adventurism. But, however cynical one might be about Hicks, Habib, Jihad Jack etc (and in many respects I share your negative impression of them), the reality is that none of them in fact posed any real threat to Australia’s security, at least not one that couldn’t be dealt with without seriously weakening basic protections of freedom.
The problem with trusting the commonsense of the people as the complete answer to everything is that the great majority don’t ever imagine that they might one day be in a position of suddenly being seen as part of a despised minority despite having done nothing whatever to deserve it. You can’t say that Hicks and Habib did nothing at all (although Hicks’ treatment at least was excessively harsh on any proportionate view), but there are plenty of others who have suffered/will suffer official ill-treatment despite having done nothing at all to justify it. And even if you did do something wrong, does it justify having all your rights stripped away and beng imprisoned for years on end without trial? Can you honestly say you never behaved like a dickhead? Christ had something to say about people who cast the first stone. You’ll never find a copper or ASIO agent who doesn’t reckon they badly need more resources and more powers to convict anyone they reckon is a villain. Unless you’ve ever been in a position other than that of the comfortable WASP majority, you can’t know how powerless you are in such a situation. I’ve only been there fleetingly on a direct personal level, but much more often vicariously from acting for clients being screwed by the system for no good reason. However it was enough to give me an insight and compassion for the underdog that you seem to lack.
PS The reason there aren’t enough institutional places for psychiatrically disturbed people (including violent offenders) has as much to do with neoliberal notions of slashing the size of government and cutting taxes (which I suspect you wholeheartedly endorse) as with pandering to lefty social workers with a blind fixation on the human rights of the undeserving and dangerous.
PPS And suggesting that things in Oz are perfectly fine because we didn’t treat Cornelia Rau any worse than Yemen probably isn’t your most persuasive argument.
The charge that he plead guilty to was one that did not even exist under Australian law at the time it was committed and my understanding is that al-Qaeda was only declared a terrorist organisation after Hicks had already broken contact with them. In addition he was not offered a speedy trial, nor was he given the normal access to Lawyers that most accused would be offered, nor did he face a court that worked under any regular legal framework. It was all essentially thrown together on a whim. If public sentiment hadn’t pushed hard, Hicks would never have faced trial at all.
You have evidence that Hicks actually fired an RPG across a border? Or are you just making this up?
Compassion for underdogs is nice, but beside the point. Gitmo serves no strategic “wartime” purpose whatsoever, it has no law-enforcement value, it produces no credible intelligence. Gitmo was (and is) entirely a tool of fear, for the purpose of discouraging political dissent. Same with the “no fly” list which continues to grow and the traditional crackdowns on peaceful demonstrations, and the illegal surveillance (in various forms) and the illegal transport of prisoners to convenient out-of-jurisdiction locations for state-sponsored torture. These are all tools to expand government power and pacify resistance.
Once you start supporting the expansion of government power you are on a one way trip to Socialism in some form or other, sooner or later. There’s nowhere else you can end up, once you get to thinking about it.
Pretty simple really, just add a note to the constitution that it is not the job of government to protect people from themselves and they have no right telling anyone how to live their own life. With drugs being legal, they would get a bit of extra tax to spend on healthcare (and they spend seriously next to nothing on mental health right now, consider http://www.abc.net.au/news/stories/2005/05/23/1374533.htm) and the police no longer need to enforce the profit margins of the pharmaceutical industry, so they can concentrate on real crime instead. The gangs lose their main income stream and the power that goes with it.
None of this will ever happen because drug money does not sit off to one side of the mainstream economy, it rejoins the market very quickly. Statistically it is unthinkable that are no powerful people enjoying a share of the kickback, money simply doesn’t work that way. Bootleggers and Baptists arm in arm as usual.
Especially when she was better treated in Yemen. For one thing, the authorities in Yemen actually took the trouble to notify her family and are offering her the chance to leave after a relatively short stay, which is more decency than she ever got in Adelaide. Tragically, Cornelia does not trust her family and although I don’t pretend to understand the situation, I’m not discounting the possibility that some time long ago something was done to her forming the basis of this distrust. Keeping out of reach of her family has been one of the few completely consistent aspects of her behaviour.
We could fiddle with the Constitution until our fingers turn to dust, it isn’t going to bring peace to Cornelia Rau.
No offence taken Ken and I do understand where you’re coming from but did think the machinations of the Rann Govt at present and the hole they’ve dug themselves, illustrate the scope of the problem perfectly. We poor voters are left scratching our heads at their antics and I do enjoy the odd Mogambo moment of heaping disrespect on those who so richly deserve it. I suspect it’s the nature of incumbency but reading the tealeaves Rann is fast becoming an object of derision with the electorate.
Basically the Rann Govt have taken the soft option of bikie bashing to avert a growing dissatisfaction with their overall performance on law and order. To do that they’re prepared to ditch freedom of association and innocent until proven guilty with normal consorting law, implicitly admitting Plod and the courts can’t do the job effectively. As for the aboriginal crime problem it’s a case of ‘Hey look over here at what we’re doing with the bikies!’ Meanwhile the psychos are being let loose among the community for all the appropriate PC reasons(with a bit of cost savings in mind no doubt) with the inevitable occurring.
Now you can immediately see how Govts inherit problems and tricky tradeoffs but also create some of their own. For Labor Govts, treating aboriginals differently over many years has made a rod for their own back here. Similarly if they want to err on the soft side of locking up the mentally disturbed, they inherit a David Wyatt, whereas the overzealous may inherit a Cornelia Rau. Damned if they do and damned if they don’t and only Oppositions and media critics are perfectly omniscient in these matters. As far as drugs go it’s an increasing social problem and since demand creates its own supply, if it isn’t bikies it will be the Mafia or whatever. Nevertheless past Labor Govt decriminalising MJ and the consequent tag of hydroponic capital of Aust, has created much of the current local problem. Where do rights rules fit in all of that, just like we had to make them up as we went along with non-state actors and terrorism in Afghanistan and the like. For mine it’s always a moving feast which necessitates leaving it up to the elector’s implicit feel or market intuition. Yes sometimes they’ll get it wrong or watch their representatives getting it wrong or straying off course, but that’s why they can flick them and change tack. No it’s not perfect but you want Paradise try the Koran or the book of Marx for size and if you’re a High Court judge and think they’re better rules you can argue for them and you get one vote for them. In the meantime interpret our collective rules and their intent as you find them.
You may be right Tel that Hicks didn’t fire that particular RPG across the Indian Kashmir border that he was posing with at the time. It could have been a different weapon he owned up to firing. Yeah I know, the RPG was innocent!
In the American stipulation of fact at the Hicks “trial”, it was claimed that he fired a machine gun from Pakistani-controlled Kashmir at an Indian Army bunker. There is no actual border, it is disputed territory and two countries are fighting over it. That’s called “warfare”, it happens, and has done for a very long time.
This is exactly what our grandfathers did in WWI and WWII (yup, they also fired machine guns at bunkers in disputed territory) and what the next generation of Australians did in Vietnam (getting involved in something that was none of our business), and what our current troops are doing in Afghanistan (also none of our business, but handy as a training field and for weapons testing). I’ll also point out that Greek Australians often return to Greece to do their national service, same with Israel and various other countries. Hick’s involvement with the Pakistani military was considered “legal” by whatever systems they use in Pakistan. In theory, Pakistan is one of our allies (but then, so is India).
Troops from various other wars came home as heroes, (well OK, the ones coming back from Vietnam didn’t get any hero status) even the troops who were captured by enemy forces and held as POWs were considered heroes. Even the enemy soldiers that we captured ourselves were at least treated with respect, even when their side lost.
So what you are really saying is that any soldier who has previously fought in any war, can retrospectively be considered a criminal if someone decides that they fought for the wrong cause? That will be an interesting precedent. What this finally boils down to is that a criminal is whoever the ruling powers don’t happen to like right now, and a court is whatever seems a convenient method to get them out of the way.
Have fun with your one way trip to Authoritarian Socialism. I’ll say “told you so” in advance in case censorship is too severe to explain it later.
Whichever way you spin it Tel, Hicks was consorting of his own free will with fundamentalist islamic murderers who meant to do us harm (and our boys still dying there in Rudd’s ‘good war’)For that he spent five years in prison until he owned up and was released on parole, whereupon the usual suspects dropped him like a hot Mamdouh and who could blame them? Compare that with Justice Einfeld who lied about a traffic fine like plenty do when their points are nearly up and he got 3 years. That will be tougher porridge than Hicks did, I can assure you. Welcome aboard judge!
Einfeld was offered a high paying position of trust, if he lied about a traffic fine then what else did he lie about? Einfeld broke the law on the road, then broke the law again inventing a lie about it, then tried to cover it up and wriggle his way out of it. Einfeld was tried before a regular civilian court and had access to lawyers and was never arbitrarily detained nor badly treated whilst waiting for trial. He went through due and established process.
Is it asking too much that those who enforce the laws also obey them? Is there something wrong with just obeying the rules of the road in the first place?
As with the rest of your statements, this has no credibility whatsoever. If Einfeld is subject to any of the activities reported at Guant
tel, you’ve said a couple sensible things in this thread, like ‘why defend Einfeld’ and about Cornelia Rau, but the point about legalising drugs is the best of them all. I only wish!
OTOH what is it with Hicks? Comment no17 is rubbish. Objectively, Hicks’ own purpose was fighting against us. He never seems to have had the occasion to shoot at Australians but I personally wish he had – and had died with one of their bullets in him. That way we wouldn’t have all this equivocation about what poor confused David really meant, or about how much sympathy we should have for him, or about whether he was legally involved with the Pakistani military (wtf? that’s the test for acceptable now? Sanctioned by the Pakistani military????)
Actually when the details of the Einfeld case came up I bet the missus he’d get porridge, whereas she was taking the reasonable line that anyone who lost their job and reputation for such a first offence would no doubt get a slap on the wrist and a good behaviour bond. I was pretty sure the judge club would give him a token taste of porridge for the obvious, thinking 3-6 months max, but 3 bloody years? Vindictive bunch of bastards aren’t they? It’s moments like that I’ll bet Einfeld was wishing he was black or a Mussie.
Still wandering about in the wilderness looking for that Moses set of rights chiselled in stone there Tel?
Any specifics?
Where “us” is India, yeah, whatever. It is is so obviously cut and dried why did they need to invent new laws to convict him under, and why did they need a special unique court for the purpose?
I’m sure you can wish for what you like but I really think that if you are going to go to the trouble of building any system of justice you have to base the outcome on what actually happened, not some imaginary scenario.
Who cares about any of those things? I’m interested in whether we have a functional judicial system. That’s because I believe that a good quality judicial system is valuable to all Australians and that allowing unchecked government power to arbitrarily imprison and torture people for spur of the moment reasons is far more dangerous than having David Hicks running around.
I believe there is a statistic somewhere that in the 20th century, three times as many civilians were killed by their own government acting against them than soldiers were killed by enemy action. And I’m talking about a century that saw the two bloodiest wars of human history and the single bloodiest battle (Stalingrad).
Given that he was in their country, it seems reasonable that he would be expected to obey their laws. As an Australian citizen, he also obeyed Australian law, until we retrospectively rewrote the rulebook. If one retrospective law, why not more of them? Would you like to live under a system of retrospective law?
I think that by any reasonable comparison Moses delivered pretty darn well, by all means provide an example of someone who came up with a more successful system, I doubt you are up to it. But it you want to be bothered reading my post I already said I was looking for enshrined limitations on government power (and yeah, I’ll have it in stone, brass, steel or whatever can’t be forgotten or reinterpreted in a hurry).
Honestly Tel, Einfeld should have gone through a 15 yr old and covered it up rather than a red light when you compare the porridge-
http://www.news.com.au/adelaidenow/story/0,22606,25227967-2682,00.html?from=public_rss
Meanwhile back with the new war on terror-
http://www.news.com.au/adelaidenow/story/0,22606,25229991-2682,00.html?from=public_rss
Justice vs the Law where our courts are random number generators and I’m supposed to believe in some public service manual to guide all such deliberations. Mate, I want some of what you’re smoking, so long as I’m a swimming coach and not a bikie or a Judge if I get caught. Black, Muslim swimming coach and I reckon I’d be untouchable ;)
ok,
para 1 is a non sequitur. Rwanda was also essentially what warfare looked like for 5000 years, give or take not much.
para 2 is a false analogy. For good or for bad the fact is that murder in your own countries’ formal service is not murder. There is no such exception for mercenaries or dickheads.
para 3: see both comments above. a non-sequitur and a false analogy for the reasons given. Also, remind me, circa any of the wars you mentioned except Vietnam, what was the standard treatment of treason, or even shirking?
para 4 is silly, see para 2. ‘Any war’ is absurd, see comment on para 2. Otherwise, yes you take that risk, in fact as a rule the losing side is the wrong one, consider Germany in WWII. Hopefully we are making progress away from that rule but thank goodness there is no progress towards a model where the fascist nutjob side is the right one.
last sentence of para 4: n/a. I wish he had been tried for treason, but as I understand it, and this is a response to your response as well, there were technical reasons why they couldn’t. I wouldn’t mind knowing more about them though.
As for the rest of your comments, I am well aware that governments represent the biggest threat to peace and prosperity that we know. However they also appear to represent our only chance at those as well.
Finally, I simply don’t see David Hicks as the top of a slippery slope, but rather sui generis (or at least I hope so, I’d hate there to be more of the f***er’s ilk!).
As for your final comment, I don’t buy any sanctity of foreign law. That comment appears to reflect the perverse post-colonial attitude of faux respect for ‘foreign’ laws that leds us to ignore much of the suffering and misery in this world. And yes, if it helps you, that suffering and misery is almost wholly imposed by governments.
Pakistan might be a putative ally. It is also a borderline-failed State and at least in parts a State sponsor of terrorism. Consider if Dear Dave had wandered off to Sudan instead. Would you have maintained all your belief in his inviolable right to follow whatever nutjob country’s rules he liked there?
Patrick,
at the same time David Hicks was providing “material aid” to the Pakistani military, millions of dollars of US taxpayers money were also being delivered to the same. For several decades this money has been flowing and it was well understood back in the 1980’s and 1990’s that a good fraction of the money was going to Osama Bin Laden and crew. The US govt trained and encouraged these extremists for their fight against Russia and then put on the surprised face when a bunch of fundamentalists bit the hand that feeds them.
But the regardless of being bitten, the hand continues to feed! Substantial quantities US taxpayer’s money still flows into Pakistan, thousands of times more material aid to terrorism than David Hicks ever provided. I have no doubt that some of this still finds its way to Muslim extremists (how could it not?) and no doubt a reasonable fraction goes into the ongoing dispute over Kashmir.
para 1: from above was demonstrating that the depiction of “firing across a border” is pretending that Hicks broke the peace in some manner, he didn’t because the peace was already broken. As for para 2, I’ll point out that there are several legal and operational mercenary companies in Aus and many more in the US. These companies are actively being hired in both Iraq and Afghanistan and both our government and the US government are supporting this. The hypocrisy continues. Para 3: if it was treason to support the Pakistani military then start by following the money back to the US state dept, and maybe don’t list Pakistan as an ally anymore. My point in para 4 is that we actually treated captured German soldiers reasonably decently, did not subject them to the things that were done at Gitmo, and at the time we claimed it proved we were a decent and respectable country.
Not only are there more, but you are paying for some of them. Hicks was a very small pawn and nothing more than that.
Except that what Hicks did was also legal under Australian law, until it was retrospectively changed. So which law should he follow? You want everyone to ring you up first to check if what they are doing suits you?
observa: a dirty judge is far more dangerous to the stability of the nation than a naughty swimming coach.
Ken
As you know, I am not a great lover of a Bill of Rights for Oz, but I am delighted that even your earleir aggressive support now appears in need of a pick me up from Advanced Medical Institute. But I am even more appalled by this ‘dialogue” model currently pimped by the Charter Luvvies. Where you and I might agree is on the desirability of an Equal Protection Clause (a la Andrew Clark Ingliss and US 14th Amendment), but ONLY if constitutionally-entrenched.
Could you please explain to me to this meme robotically chanted by Human Rights Luvvies that the cases of Al-Kateb, Hicks, and Haneef not only show that we NEED a Bill/Charter, but that such a Bill/Charter would somehow have been beneficial in their circumstances? I am especially alarmed at the volume y’all spruik Al-Kateb.
Please Explain.
And what of sort up society pays creepy fascists like Catherine Branson hundreds of thousands of taxpayers dollars to pursue her anti-democracy agenda. She should be in jail not tunning a “Human Rights” body!
http://www.theaustralian.news.com.au/story/0,25197,25285542-5013871,00.html
I agree that Catherine Branson’s efforts are a step in the wrong direction, probably for different reasons than John does.
As Hermann Goering said, “the people can always be brought to the bidding of the leaders”. Say “terrorist”, “biker” and “patriot” three times quickly, justification done! Thank you for playing the time waster hollow justification game.
In theory we give open consideration to it now, I mean we signed various treaties, certainly the legal aspects of the Hicks case have been raked up and down and many people have pointed out that the court that convicted him was not a legal entity of any known jurisdiction with any constitutional foundation. The thing about written law is that it only works when someone takes the trouble to read it, why put one more law on the books to also be ignored when convenient?
What we really need is a taste of a government gone off the rails that starts to get properly nasty, so people can learn (for a few generations) and remind themselves, “yeah it can happen here”. I’m expecting to see this in the USA before Australia, so keep your eyes open and try really hard to learn something.
It is not just Branson, but her army of clones – Hitlary Charlesworth, George Williams, Geoffrey Robertson, Julian Burnside, and so on. They are far more dangerous and creepy than the Exclusive Brethren! We are experiencing The Attack of the Luvvie Clones!