4 ms·

I originally had written premiers and PM's offices, not sure why I edited it. It wasn't a statement about federalism but about where power was located within ea

by baazaa 4y ago

I originally had written premiers and PM's offices, not sure why I edited it. It wasn't a statement about federalism but about where power was located within each level of government. Obviously the judiciary is much less powerful here than the US, but my point was how power has been stripped away from party members, legislatures, the civil service, and most of the political executive. Even senior ministers have effectively no political power whatsoever, they're just sent out with their lines to read. All the power is concentrated within the PMO (or Number 10 in UK parlance), which nowadays solely dictates party strategy and policy. As for the WA border closure, if you read the judgement it did not say that the constitution only applies to the trade of goods. In Australia constitutional rights can simply be overridden by necessity. You saw the same with the implied right to political communication which has been routinely ignored, as in the Bolt case. If you want to read up on this, look up the doctrine of structured proportionality especially as it's been applied since McCloy. Basically governments can flagrantly breach the constitution and then it's up to the courts to decide whether the transgression was justified based off their own value-judgements. The court was satisfied there was a public health justification for the closure, so s92 goes into the bin. Realistically until Kiefel and Keane retire, Australians don't have any genuine constitutional rights because they'll just extend the doctrine of structured proportionality to whatever constitutional right is in question. "Non-absolute" rights are simply not rights in any sense of the word.

defrost 4y ago
> As for the WA border closure, if you read the judgement it did not say that the constitution only applies to the trade of goods. In Australia constitutional rights can simply be overridden by necessity. I have read both the judgement re: WA which upheld the State's Right to enact quarantine during a biosecurity emergancy "while that situation lasted" and I've read the Australian Constitution, in particular the passage that supposedly allows free unencumbered travel between States even during a pandemic (which, I'm afraid, it doesn't). These specifics aside, I agree that various Federal Governments have pushed past the bounds of what most citizens find acceptable and it's right and correct that they push back and mount challenges. In the specific case of these environmental protestors I feel the former Government did go to excess in surveillance and stalking them in a manner befitting terrorists plotting malfeasance. No soup for them. In the same manner of fair view to both sides, this particular protest group had in the past and did intend in the future to go beyond public and visible protest and fully into the realm of trespass and disruption of ongoing business activity. Personally I applaud the ascent and hanging from a coal port stack loader - it was a ballsy move and good publicity and reminds me of things I did on several occassions in my 20s - but it was also trespass and beyond mere protest. None of which justifies the excess bail conditions outlined in the OP article.
EdwardDiego 4y ago
> Obviously the judiciary is much less powerful here than the US How do you define "power" exactly? Like the Supreme Court just flipping constitutional law precedent? Or that the government isn't being held to account in front of an independent judiciary? Because we see that reasonably often in NZ, government gets taken to the High Court, loses, formally apologises, tries to get it right. If that's missing in Australia, that really explains a lot of us on the other side of the ditch have seen the federal government getting up to.
- baazaa 4y ago
  Judicial review is much stronger in the US than NZ as well, due to parliamentary sovereignty you find in the Westminster system. Historically judicial review could only be used to review executive actions, not legislative bills. Now you have a weird bill of rights which is merely statutory, which I believe is a bit like Canada's in that the legislature can still pass whatever it wants with an intentional override? Of course we don't have any federal bill of rights in Australia, and the implied rights in the constitution to thing like political speech can be violated so long as the court thinks the government had a legitimate reason for doing so.
  - cormacrelf 4y ago
    There’s a really important side problem with having the judiciary enforce quite deep and complex rights and limits on government. It is that the court develops into a really contentious institution making huge political choices that get infused by default with the hallmarks of legal necessity, and eventually the people wonder why the judges themselves aren’t politically accountable. And then they start electing politicians to put judges in who will decide their way. We do not have that problem in Australia, at least it is barely a speck in our history of judicial appointments. The US is presently in the throes of a judiciary rolling back rights that were thought to be set in stone, because people elected a president who promised to appoint judges to do just that. If you politicise a large part of the work of a court, you then open it up to populist capture. That’s when the courts start inventing theories to keep their benefactors in power. You can complain about parliamentary sovereignty all you like (for us it’s only the states that have plenary legislative power though!) but damn, at least the people deciding about abortion rights etc on our behalf aren’t life appointments set to last 30+ years. If we don’t like what’s happening, we can change the government in 6 weeks start to finish.

by baazaa 4y ago

defrost 4y ago

> As for the WA border closure, if you read the judgement it did not say that the constitution only applies to the trade of goods. In Australia constitutional rights can simply be overridden by necessity. I have read both the judgement re: WA which upheld the State's Right to enact quarantine during a biosecurity emergancy "while that situation lasted" and I've read the Australian Constitution, in particular the passage that supposedly allows free unencumbered travel between States even during a pandemic (which, I'm afraid, it doesn't). These specifics aside, I agree that various Federal Governments have pushed past the bounds of what most citizens find acceptable and it's right and correct that they push back and mount challenges. In the specific case of these environmental protestors I feel the former Government did go to excess in surveillance and stalking them in a manner befitting terrorists plotting malfeasance. No soup for them. In the same manner of fair view to both sides, this particular protest group had in the past and did intend in the future to go beyond public and visible protest and fully into the realm of trespass and disruption of ongoing business activity. Personally I applaud the ascent and hanging from a coal port stack loader - it was a ballsy move and good publicity and reminds me of things I did on several occassions in my 20s - but it was also trespass and beyond mere protest. None of which justifies the excess bail conditions outlined in the OP article.

EdwardDiego 4y ago

> Obviously the judiciary is much less powerful here than the US How do you define "power" exactly? Like the Supreme Court just flipping constitutional law precedent? Or that the government isn't being held to account in front of an independent judiciary? Because we see that reasonably often in NZ, government gets taken to the High Court, loses, formally apologises, tries to get it right. If that's missing in Australia, that really explains a lot of us on the other side of the ditch have seen the federal government getting up to.

baazaa 4y ago
Judicial review is much stronger in the US than NZ as well, due to parliamentary sovereignty you find in the Westminster system. Historically judicial review could only be used to review executive actions, not legislative bills. Now you have a weird bill of rights which is merely statutory, which I believe is a bit like Canada's in that the legislature can still pass whatever it wants with an intentional override? Of course we don't have any federal bill of rights in Australia, and the implied rights in the constitution to thing like political speech can be violated so long as the court thinks the government had a legitimate reason for doing so.
- cormacrelf 4y ago
  There’s a really important side problem with having the judiciary enforce quite deep and complex rights and limits on government. It is that the court develops into a really contentious institution making huge political choices that get infused by default with the hallmarks of legal necessity, and eventually the people wonder why the judges themselves aren’t politically accountable. And then they start electing politicians to put judges in who will decide their way. We do not have that problem in Australia, at least it is barely a speck in our history of judicial appointments. The US is presently in the throes of a judiciary rolling back rights that were thought to be set in stone, because people elected a president who promised to appoint judges to do just that. If you politicise a large part of the work of a court, you then open it up to populist capture. That’s when the courts start inventing theories to keep their benefactors in power. You can complain about parliamentary sovereignty all you like (for us it’s only the states that have plenary legislative power though!) but damn, at least the people deciding about abortion rights etc on our behalf aren’t life appointments set to last 30+ years. If we don’t like what’s happening, we can change the government in 6 weeks start to finish.