Like thunder gonna shake the ground… VLAD isn’t all bad #auspol #auslaw #qldpol

Image:Queensland Government Logo.svg

Image:Queensland Government Logo.svg (Photo credit: Wikipedia)

There’s a bit of a strategy to releasing controversial legislation: do it all at once.  In any given capital city, there are three newspaper front pages to worry about.  If you release seven pieces of controversial legislation on a wide range of topics at once, there’s no way they can keep up.  Chumps.

It appears the Queensland Government has recently adopted this strategy.  One of the recently released bills is called the Vicious Lawless Association Disestablishment Bill, and it’s caused a bit of a stir.

[tweet https://twitter.com/BernardKeane/status/389982189334441984]

The hyperventilation from the left has — as usual — stopped anybody from having a meaningful discussion about the Bill.  It’s not perfect, but it’s not apocalyptically bad.  Unfortunately, the minister who is supposed to lead the public discussion, is… well…

[tweet https://twitter.com/JarrodBleijieMP/status/389991967125299201]

It turns out that if you don’t have a bicameral parliament, actually being able to conduct a public debate becomes a bit of a triviality.  Although I am extremely critical of the way the discussion was conducted, here’s the argument for why I don’t mind VLAD. Continue reading

Quick Post: High Court to publish footage of hearings, and this is bad #auslaw #auspol

Justice Michael Kirby, High Court of Australia

Justice Michael Kirby, High Court of Australia (Photo credit: Wikipedia)

Over on the Opinions on High blog, Jeremy Gans gives a quick overview of the High Court’s decision to make footage of its hearings available to the public.

Up until now, transcripts of hearings have been made available through AustLII, providing hours of entertainment through Shit Judges Say and my favourite transcript ever:

KIRBY J: Mr Rout, the document you have tendered to be filed in the Court is called an electoral petition.

MR ROUT: Yes.

KIRBY J: It appears to challenge the election to the Australian Capital Territory seat of Fraser.

MR ROUT: Yes.

KIRBY J: It makes statements concerning the former Chief Justice and said that he is off with the late Mr Skase in Majorca in Spain, which is simply not the case.

MR ROUT: Yes, a little humour added there.

KIRBY J: It just has nothing to do with the case. We are very busy people, I am afraid, and you seem to be wasting our time.

MR ROUT: No, because you are called upon to apply the law.

KIRBY J: Exactly.

MR ROUT: And the law is their set of dividing and multiplying by zero. As long as they maintain their incorrect dividing and multiplying by zero, then they enable me to cause things to cease to exist, and that is why I have the power to do so.

That never gets old.

Other courts are not nearly as good as the High Court in this regard.  Greens Senator Sarah Hanson-Young is suing a magazine for what appears to be obviously protected political speech, but we have to rely on a fairly sparse news report for the details because the NSW Supreme Court doesn’t provide much but judgements to the public for free.

The thing about transcripts is that you have to read them.  The flares and flourishes of lawyers are stripped away, leaving cold hard words on the page.  Unlike in the US, Australia hasn’t had much difficulty with the celebrity lawyer problem but the issue is on the rise.  Over the past two years or so, there’s been a long standing legal dispute between former Liberal MP and former Speaker of the House, Peter Slipper, and his former staffer, James Ashby.  One of the issues noted was the use of the court by Ashby’s legal team to run a media smear against Slipper.  Footage wasn’t available from inside the court, so Ashby’s team had to rely on journalists to report the key points of the smear.

Had footage been available, it would have increased the likelihood of the lawyers making soundbite pitches to appear on the evening news.

We also see the problem in cases involving asylum seeker issues.  It is difficult enough to keep on top of the often very complicated legal issues surrounding these cases.  But, invariably, there’s one of the usual activist lawyer faces simplifying the legal argument into a handy soundbite outside the court.  Publishing the footage of the hearings provides an incentive for activist lawyers to campaign from inside the court where they should be trying to deal with legal issues.

One of the exciting things about cases in the High Court is the exceptional intellect of the people who appear there.  They’re usually not interested in being flashy or media-friendly; they’re more interested in subtle, intricate, nuanced arguments.  Publishing footage from inside the courtroom provides an incentive away from that kind of discussion towards performances that can be tweeted and shared over social media.

Transcripts are great.  Footage is not.

 

The Chief Justice Series: Sir Samuel Griffith and his beard

When people talk of the crazy crap exported by Queensland, nobody mentions Samuel Griffith.  Why?  He was totally boss.  And he had a totally boss beard.  Check out this beard:

Not enough beard!

Sir Samuel Walker Griffith PC GCMG KCMG QC

 

Awesome beard.

He was the first Australian translator of Dante’s Divine Comedy.  Queensland, take a bow.  Actually, stop bowing.  Stop pumping out the people you’ve currently got and get back to manufacturing Sam Griffiths.  Mass produce them.  You know I’m right.  Check out a picture of Campbell Newman if you think I’m wrong:

You don’t see that ‘Can Do’ nonsense behind Sir Sam, do you?  No.  Why?  Because his beard says it all.  ‘I am here to Federate the Colonies by sheer force of beard.’

He was born in Wales and spent a bit of his childhood in NSW, but Queensland should still feel proud for choosing him to represent them in all the important federation debates.  He was known as ‘Oily Sam’ because he could argue on any side of a debate.

He was a lover of Classics.  At the University of Sydney, he was awarded a first-class honours degree in Classics and Mathematics (only took jurisprudence as an elective).

Even with this background (perhaps because of this classical/mathematical mind… cough), he was an amazing legal mind.  In The Australian Constitution, Geoffrey Sawer wrote:

Griffith (1843-1920) was the most gifted jurist and constitutional scholar to engage in the federal movement, and had the greatest individual influence on the shape of the Federal Constitution.

It seems almost a shame that he was so rabidly pro-States.  Despite Isaac Isaacs’ flawless logic about the continued existence of the colonies (we’ll get to that in a later post)

After drafting the Constitution, he flirted with returning to politics (he was Premier of Queensland pre-Federation), but was offered and accepted the role of Chief Justice of the High Court.

Crowning Moment of Awesome:

Kryger v Williams (1912).  Everything you’ve wanted to know about Australia’s intolerance for dopey arguments about religion is summed up by Griffith:

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion.

If Griffith had been Chief Justice of the Supreme Court of the United States, how far do you think the recent arguments about pro-life, religious employers having to provide health care which includes access to birth control would have got?

Zero.  Zero far.

Some kind of plastic I can wrap around you… And the Man on the Clapham Omnibus

Okay, I haven’t updated this in a while because I’ve been fairly solidly buried in work, study, and play.  I am procrastinating and, thus, we get an update.

There is a legal principle in common law systems that people — generally and normally — behave reasonably.  The idea is that every person is rational — or ought to be rational — and that they behave in a generally rational way.  Those people include legislators and, when they write up statutes, it’s presumed that they did so in a reasonable way.  Those people also include parties to contracts and, when they form contracts, it’s presumed that they did so in a reasonable way.  Those people also include people who are criminals and, when they perform some criminal acts (the ones involving mens rea), it is presumed that they knew that they were performing some act which a rational person would condemn.

It’s called the objective test and it posits some hypothetical person — ‘the man on the Clapham omnibus/Bondi tram’ — and asks ‘What would he think?’

What’s curious about this reasonable person is that he is invariably white, male, and educated.  This is due to a wonderful feature of our thinking called ‘normativity’.  It’s where we consider the default — ‘normal’ — position to be that which is most dominant in our social framework.  In common law countries, this is invariably white guys.  So the default perspective is that of a member of the hegemony. Continue reading