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Teaching the High Court Australia, the Rule of Law and basic Human Rights: when is Ignorance NOT an excuse?

The article demonstrates the stranglehold lawyers have on the media. We make Judges out of these people! No wonder the country is in a mess. Lawyers refuse to accept HREOA1986 as law, because it makes their monopoly profession, an illegal one, and without discrimination, anyone can be a lawyer/advocate.

Combine it with our Notice of a Constitutional Matter, Writ of Mandamus, Lets see if we cant celebrate the 60th Anniversary of the Universal Declaration of Human Rights, the year that Australians get confirmation of their already passed and underused Bill of Rights.

Teaching the High Court Australia, the Rule of Law and basic Human Rights: when is Ignorance NOT an excuse?

The article demonstrates the stranglehold lawyers have on the media. We make Judges out of these people! No wonder the country is in a mess. Lawyers refuse to accept HREOA1986 as law, because it makes their monopoly profession, an illegal one, and without discrimination, anyone can be a lawyer/advocate.

Combine it with our Notice of a Constitutional Matter, Writ of Mandamus, Lets see if we cant celebrate the 60th Anniversary of the Universal Declaration of Human Rights, the year that Australians get confirmation of their already passed and underused Bill of Rights.

On December the 9th 2008, the Sydney Morning Herald published the latest in about twenty two years of lawyer generated propaganda, against the Australian Bill of Rights. This is misleading and deceptive conduct, and the Newspaper should should be taken to the Federal Court of Australia, and fined heavily. Helen Irving is Associate Professor in the Faculty of Law at the University of Sydney.

http://kangaroocourtaustralia.com/

http://iwitness.x24hr.com/...

The International Covenant on Civil and Political Rights (ICCPR), was enacted as a Federal Law, by the Labor Party with Liberal Party support as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 . Reading and understanding a Statute:

· The Commonwealth of Australia Constitution Act 1900 is a Statute.

· The Acts Interpretation Act 1901 is a Statute.

· The Judiciary Act 1903 is a Statute.

· The Human Rights and Equal Opportunity Commission Act 1986 is a Statute.

· The Trade Practices Act 1974 is a Statute.

· The Criminal Code Act 1995 ( Cth) is a Statute

· The Privacy Act 1988 is a Statute

· The Evidence Act 1995, (Cth) is a Stautue.

Multiple Federal Court Judges and High Court Judges, including the Chief Justice of HIGH COURT AUSTRALIA, Robert Stenton French, have now called HREOA1986 as a general rule, or dismissed it outright, as an act of treason against the Australian people.

The First Statute on the list has two Supremacy Clauses:

S 5 Commonwealth of Australia Constitution Act 1900 makes every Federal Law supreme and

S 109 makes them prevail,over all State Enactments.

The second says a Schedule is part of an Act ( Statute).

The Third says that the common law shall prevail, in S 80 Judiciary Act 1903.

The Fourth makes it a common law crime to disobey a Statute, by misleading and deceiving the good people of Australia, are criminals,

The Fifth refers to the International Covenant on Civil and Political Rights not just in its Dictionary, but in three offences in Schedule Section 3.

The Fourth specifically implements the International Covenant on Civil and Political Rights.

In the fifth, in Section 138 (3) (f) Evidence Act 1995, (Cth) , are told where to find the International Covenant on Civil and Political Rights.

The article demonstrates the stranglehold lawyers have on the media. We make Judges out of these people! No wonder the country is in a mess. Lawyers refuse to accept it as law, because it makes their monopoly profession, an illegal one, and without discrimination, anyone can be a lawyer/advocate.

Combine it with our Notice of a Constitutional Matter, Writ of Mandamus, Lets see if we cant celebrate the 60th Anniversary of the Universal Declaration of Human Rights, the year that Australians get confirmation of their already passed and underused Bill of Rights

http://kangaroocourtaustralia.com

http://iwitness.x24hr.com/...

Death of Mandamus: French, Hayne, Gummow, Crennan JJ protecting and coverup conspiracy to pervert justice

http://iwitness.x24hr.com/...

Invalid Australian Constitution empowers crooked (High Court) Judges to violate Common Law rights for ALL Australians

http://iwitness.x24hr.com/...

On December the 9th 2008, the Sydney Morning Herald published the latest in about twenty two years of lawyer generated propaganda, against the Australian Bill of Rights. This is misleading and deceptive conduct, and the Newspaper should should be taken to the Federal Court of Australia, and fined heavily. Helen Irving is Associate Professor in the Faculty of Law at the University of Sydney.

Helen Irving
December 9, 2008

Australia may be closer to getting a bill of rights. The Federal Government looks likely to begin a nationwide consultation process this week, to coincide with the 60th anniversary of the Universal Declaration of Human Rights at the United Nations.

Proposals for an Australian bill of rights are nothing new. On and off for decades there have been attempts to incorporate rights into the constitution or in comprehensive legislation, often following lengthy inquiries and detailed reports. None has succeeded.

Is anything new this time round?

As proponents like to remind us, all other comparable countries, including Britain, New Zealand and Canada, have adopted a bill or charter of rights. Two Australian jurisdictions, the ACT and Victoria, have recently joined them.

Now the pressure is on for Australia to fall in line.

If it is to be so, the issue must be how to make a bill compatible with Australian democracy. Australia’s constitutional democracy is built on representative government and the separation of powers. In principle, the legislature makes the laws and the courts enforce them.

A bill of rights changes this. Unelected courts gain the power to frustrate elected governments if they hold a law to be in breach of rights.

This may sound fine, even desirable. But many rights are in fact political. They rest on controversial propositions, matters open to reasonable disagreement, issues that should properly be debated in the public arena.

We hear, for example, of the "right to die with dignity". This is not a natural right, or a settled matter. It is deeply, and essentially, contentious.

Another example: the Victorian Charter of Human Rights and Responsibilities includes a provision giving a person of "a particular cultural ... background" the "right, in community with other persons of that background, to enjoy his or her culture". To determine whether a person has a "particular" background, and whether its enjoyment has been denied, requires detailed knowledge of cultural practices and expectations, both in "particular" and mainstream cultures.

These are sociological and historical issues, not questions for the courts.

* The socio-economic rights that are favoured by many have major resource implications. Good health, education and housing are all worthy goals, but they are costly. To turn these into legal rights is to deprive governments of the power to make decisions about available resources, budget priorities and future plans

Australia may be closer to getting a bill of rights. The Federal Government looks likely to begin a nationwide consultation process this week, to coincide with the 60th anniversary of the Universal Declaration of Human Rights at the United Nations.

Proposals for an Australian bill of rights are nothing new. On and off for decades there have been attempts to incorporate rights into the constitution or in comprehensive legislation, often following lengthy inquiries and detailed reports. None has succeeded.

Is anything new this time round?

As proponents like to remind us, all other comparable countries, including Britain, New Zealand and Canada, have adopted a bill or charter of rights. Two Australian jurisdictions, the ACT and Victoria, have recently joined them.

Now the pressure is on for Australia to fall in line.

If it is to be so, the issue must be how to make a bill compatible with Australian democracy. Australia’s constitutional democracy is built on representative government and the separation of powers. In principle, the legislature makes the laws and the courts enforce them.

A bill of rights changes this. Unelected courts gain the power to frustrate elected governments if they hold a law to be in breach of rights.

This may sound fine, even desirable. But many rights are in fact political. They rest on controversial propositions, matters open to reasonable disagreement, issues that should properly be debated in the public arena.

We hear, for example, of the "right to die with dignity". This is not a natural right, or a settled matter. It is deeply, and essentially, contentious.

Another example: the Victorian Charter of Human Rights and Responsibilities includes a provision giving a person of "a particular cultural ... background" the "right, in community with other persons of that background, to enjoy his or her culture". To determine whether a person has a "particular" background, and whether its enjoyment has been denied, requires detailed knowledge of cultural practices and expectations, both in "particular" and mainstream cultures.

These are sociological and historical issues, not questions for the courts.

The socio-economic rights that are favoured by many have major resource implications. Good health, education and housing are all worthy goals, but they are costly. To turn these into legal rights is to deprive governments of the power to make decisions about available resources, budget priorities and future plans.

But not all rights are political. Legal process rights - the rights that surround the arrest, charge, trial and detention of persons suspected of having committed an offence - belong properly to the judicial arm of government. They concern the judicial process. They are essential protections against arbitrary power, elements of the rule of law on which our constitutional democracy also rests.

Questions about legislative encroachment on these rights are appropriately answered in the courts. If the claims made by proponents of a bill were confined to legal process rights, then agreement might be secured among those who are otherwise sceptical.

Leading advocates now accept that a proposed constitutional bill of rights is unlikely to survive a referendum.

They propose, instead, a statutory bill, passed by parliament and open to repeal or amendment.

The powers of the courts, they also suggest, should be limited to making declarations of incompatibility between laws and rights, and not extend to striking down such laws. This is the model followed in the ACT and Victoria, and it is said to respect the separation of powers, allowing the parliament to decide what to do with "incompatible" laws.

These are many merits in such proposals. But there are concerns, too.

Although a statutory bill is repealable in principle, the experience in other countries is that such bills quickly become "constitutionalised". The rights they include become fixed, and difficult to adjust to changing circumstances.

Paradoxically, the very attempt to protect parliament by empowering the courts to make "declarations" may itself prove unconstitutional. The commonwealth constitution prevents the High Court from giving advisory opinions. The court may only rule on actual legal disputes.

This hurdle may prove fatal. It will require close attention by the government.

If Australia is on the path to a bill of rights, let’s have a genuine consultation process. Let us ask ourselves which rights are best protected by the courts, and why we believe Australia to be deficient compared to other countries.

Let us also consider how advocates and opponents might find common ground. Given the long history of failure, this may be the decisive question.

Helen Irving is Associate Professor in the Faculty of Law at the University of Sydney.

Originally posted to chaz007 on Sun Mar 15, 2009 at 06:31 AM PDT.

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Comment Preferences

  •  give the turd immigrant some luvin' (0+ / 0-)

    for he s gonna get his assed kicked !!

  •  Err... (1+ / 0-)
    Recommended by:
    Batfish

    It's not so simple. The legislature does not simply "make" laws and the courts do not simply "use" them. Every time a law is used it is interpreted, created.

    Consider: Laws are a linguistic phenomenon, and language is always porous. Also, law by itself cannot encompass all possible cases to the degree which would exclude all "creation of law" by the courts, either by interpretation or by filling in legal blanks. Basically, if there is doubt (and there often is) a court has two choices: Deny judgement (which it cannot do) or effectively create law. Since they cannot do the former, they invariably, explicitly or not, do the latter.

    For example, an object, as defined by most legal codes, is "a physical thing of the outside world, which is subjectible to man's dominion. Now, are internal organs, when removed from the body, things in the legal sense. Most interpretations call for a special legal regime. Is electricity a thing? Most courts used analogy, making stealing electricity illegal. The German High Court in 1905 ruled restrictively, which is why the legislature had to change the definition of an object.

    When various legal rules directly collide with each other (again, this invariably happens), a court, on the other hand, has to resolve the conflict. That in itself creates law. And that is precisely what happens when a court rules whether laws are in accordance with fundamental rights - which are political, just like, say, freedom of speech. I fail to see the problem.

    Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

    by Dauphin on Sun Mar 15, 2009 at 06:45:07 AM PDT

    •  So after all that you do agree with us that (0+ / 0-)

      Human Rights and Equal Opportunity Act 1986 is a valid Federal law and enacted Act of Law and it enforces NOT only the ICCPR, ICERD, and many other itnernational treaties under Australia Federal Laws, but it forces Judges from top to bottom to apply the law as explicitly expressed in UDHR, ICCPR and ICERD etc

      •  What I'm saying is (0+ / 0-)

        that law provides the linguistic structure in which normative concretisation (application of laws in a case) has to stay. However, normative acts have to stay withing the area allowed by higher-tier acts. If they do not they are invalid. I will not judge since I am not familiar with Australian law, but I will not dismiss the Court's position out of hand.

        Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

        by Dauphin on Sun Mar 15, 2009 at 06:56:59 AM PDT

        [ Parent ]

        •  what you are REALLY saying is this (0+ / 0-)

          The Courts can Bullshit their way around the a written Act of parliament, and thats their right?

          But under ICCPR 14.1 Equality before the Law, we have a right to be heard before the Law.

          Which is NOT guaranteed to the Americans in the Supreme Court from what I hear. which means a person like Mumia cant never have his questions of law answered by the Supreme Court.

          This Dairy simply says that under British and Australian Legal System, that right to be heard is guaranteed.

          •  Actually, that's NOT what I'm saying. (0+ / 0-)

            The Courts are FULLY BOUND by law. But law due to is nature can NEVER BE ENTIRELY PRECISE. Whoever applies law (which is what courts do) also INTERPRETS it. And interpretation, which is a thing of argument, is ALWAYS creative.

            There is a simple solution to the issue You raise: If the legislature, oh, I don't know, makes laws which are well-written and precise enough not to require much interpretation then the courts will not have much room for interpretation, now, will they?

            Law is NOT foolproof. It is a frame in which a legitimate legal decision MUST remain. But it is just a frame. As Kelsen said, no law can be so precise that it excludes creativity of the lowe level, and no law can be so imprecise that the lower level is entirely free.

            Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

            by Dauphin on Sun Mar 15, 2009 at 07:11:56 AM PDT

            [ Parent ]

            •  btw that Irving article is a bit of a red herring (2+ / 0-)
              Recommended by:
              Dauphin, WattleBreakfast

              maybe the dairy isnt clear BUT the legal eagles in Australia dont want it known that HREOA1986 does in fact enforces the international treaties ICCPR, ICERD etc.

              Helen Irving is using a fear tactic of non-elected judicial officers, in order to prevent a Bill of Rights, in effect, when its already enacted.

              My Apologies if i mis-read your comments.

      •  And, from the aricle, (0+ / 0-)

        socio-economic rights are enshrined in law. Thus they are questions for the courts, and the article makes a fallacy by implying that no legal argumentation or enforcement is possible. A right without a sanction is meaningless. The author makes the same argument which allows the US to negate the very existence of socio-economic rights.

        Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

        by Dauphin on Sun Mar 15, 2009 at 07:00:26 AM PDT

        [ Parent ]

        •  Which part of your argument is against the dairy (0+ / 0-)

          Which part of your argument is against the dairy and which is against the article by Helen Irving.

          You have the more legal mind than us, what you are not aware is all our judicial officers are government appointees, whilst only the US Supreme Court are appointees and not elected.

          Which makes separation of powers the more dubious

          •  Well, in my country all judges (0+ / 0-)

            are certified by Parliament, and in most continental European countries they are certified by the justice minister. They are NOT elected - and with good reason. Studies have found that, come election time, judges actually disregard the law to make pleasing decisions so that they can get reelected. That's not justice, it's pandering.

            What influences judicial independence and their decision far more are the guarantees they have against interference (immutability, permanent function, high social status, high pay, and so on...).

            Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

            by Dauphin on Sun Mar 15, 2009 at 07:17:39 AM PDT

            [ Parent ]

            •  Another can of worms: the will of the people !! (0+ / 0-)

              as opposed to will of the executive WHICH should be representing the people (but never does).

              The people elect the PMs to represent them, if the PMs select the judicial officers BUT then get kicked out of power, then you might have a separation of powers of executive and judiciary.

              What guarantees do you have of that separation of powers, if the executive selects the judiciary in any circumstances?

              •  Well, the fact that, (0+ / 0-)

                given the guarantees the judges have, there is no way to influence them. You cannot sack them, you cannot send them to some godforsaken part of the country, they have immunity (just like the MPs) and so on. Even if they were politically chosen, there is no way for politicians to sanction them - and thus they have no interest in being obedient.

                A case in point is an investigating judge (the best translation is into French, since their law has the same institution: juge d'instruction). My country has judicial inquiries. Once the investigation focusses on a person, the prosecutor has to formally indict him or her before an investigating judge who then carries out an investigation on behalf of both sides. When he is finished, the prosecutor decides, based on gathered evidence, whether to charge or not. The fact that they invesigate, and do not prosecute, enforces these judges' neutrality.

                Anyway, one of these was a political appointee, and when a prosecutor (it's easier for politicians to influence them) indicted someone who was been a bit of a pain in the neck for the ruling party before the judge, he refused to begin the inquiry due to a lack of evidence, which, given our laws, was absolutely the right thing to do. And they had no way of punishing him, except by smearing him in the media.

                Iuris praecepta sunt haec: Honeste vivere, alterum non laedere, suum cuique tribuere. - Ulpian, Digestae 1, 3

                by Dauphin on Sun Mar 15, 2009 at 07:38:17 AM PDT

                [ Parent ]

  •  Doesn't Australia have its own DK-style website? (1+ / 0-)
    Recommended by:
    MadRuth

    None of us know what you're talking about, and I venture to say that most of us can't even determine if you're right or wrong.

    Al que no le guste el caldo, le dan dos tazas.

    by Rich in PA on Sun Mar 15, 2009 at 06:49:37 AM PDT

    •  Thought it might be interesting if the US were to (0+ / 0-)

      enact ICCPR, ICERD etc into law.....

      but i hear the US House has some sort of circuit breaker in there to prevent full enactment of the international treaties.

      Btw, Australia has also ratified and enacted the International Criminal Court FYI.

      Might be something for the advocates in the US.

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