Title: "REDUCTIO AD ABSURDIUM" - or - "WHAT PART OF THIS DON'T YOU UNDERSTAND,
What are the standards of justice/of its practitioners in modern
Does the rule of Law exist here or has it been extinguished -
Or like some chained dog left without succour by neglectful and disinterested owners, left to perish.
Or does that dog slip it's chain; faced with no other choice go feral, hunt and steal, in order to survive? ferae naturae?
Queensland 'Hypothetical' - Due Process, Justice, style - Queensland
A concerned neighbour,'Fred', chronically aware of the situation but prevented from assisting the dog always chained to the clothes hoist next door, his being abused by the owner, 'Morrie', for attempting assistance , might firstly be pleased to see the chain loose, the dog absent at last; however would be justified in becoming reasonably angry when he finds his own family pets lying eviscerated in the morning; his children bitten while outdoors playing, now afraid to walk to school - the dog catcher,'Stretch', (so Fred discovers, a good mate of the dog owner), always 'too busy with other calls' but is actually always down at the pub with that dog owner, 'Morrie'.
'Fred' has researched his applicable legislation and has addressed his concern and requested appropriate action from the relevant authorities - but as events unfold other 'actors' come into play -
If 'Fred' or any other reasonable person becomes aware of and personally affected by adversity they have a perfect and inalienable right to take action in order to remedy the situation.
The State in these instances is bound to support that remedy, has a duty of care and responsibility commencing with and by way of their involvement and according to the legislation. If by omission or inaction such is not provided, the state and its employees are liable.
'Nipped in the bud' - or not -
If a 'reasonable person' finds themselves suffering injury and damage, clearly, evidently, in result of gross negligence (and here some plaintiff might rely upon Torts and precedent, Common Law) defined by statute, compounded by collusion, misconduct and criminality, then they have every right to demand that such Statutes be applied and law be upheld firstly and immediately as their right to have personal injury remedied and for the common good.
And since in 2008 our fund of law has increasingly become surrounded with Statutes and legislative requirements (hence Common Law being hybridised with elements of the Civil Code and its reliance upon judges APPLYING, not INTERPRETING law) there is even more need, in this instance, for dog owners, (and, as could be adduced, through incorrect or lack of proper care and training - the dogs themselves) dog catchers, their employers and those who manufacture legislation, to comply with their own natural, and statutory, standards of duty.
In short, by failure, refusal, or omission - or means otherwise statutory authorities are to be deemed liable if in breach of responsibility, duty and trust and (in the sort of circumstance described here, by dereliction), undeniably guilty of crime.
What is at issue with this scenario -
Clearly the dog did the damage - caused injury, suffering, fear, damage, loss, and more. The owner, 'Morrie', may have been horrified and genuinely remorseful to learn what his dog had done, been aware of the implications - or may not.
Clearly, recently, in most jurisdictions, the Law of Torts has been supplanted with statutes requiring the dog owner to be criminally liable for breach of duty-of-care, negligence.
Clearly it has ceased to be a civil matter.
Is it the dog or its owner at fault?
Clearly the consequences depend upon circumstances and damage done.
Clearly with the situation mentioned here the outcome for both dog and owner might be grim. The dog would probably be euthanased and the owner(especially with RSPCA involvement) might face detention as well as fine.
Who else is at fault?
Clearly, 'Fred', the neighbour who attempted to provide comfort to the dog, met the obligations of the 'reasonable person' in that he chose not to make an issue with the dog owner, 'Morrie', after meeting his hostility.
Clearly he had no desire to give his life to save a dog or become involved with difficulty with his neighbour. (see definition of a reasonable person.)
Clearly his raising the issue with 'governance' (the dog catcher, 'Stretch') fell on deaf ears.
(Fred now faces circumstances he was initially not aware of and contemplates with trepidation what might happen in the near future . A hostile neighbour waiting court action and possibly a custodial sentence. There is also the issue of one now unemployed dog catcher and what retribution he may decide to serve out.)
For some reason It has become Fred's fault.
The dog catcher then -
Clearly the dog catcher, 'Stretch', was aware of the dog's situation. He was a friend, visitor, and (going by time spent in the pub) close associate of its owner. He had that prime duty to let his friend, 'Morrie', know of the responsibility of animal ownership and his duty of care.
And furthermore, by his job description, he was required to be aware of and conversant with the fund of legislation surrounding his employment.
If Fred had a problem about the dog's welfare Stretch should have been able to put him in immediate contact with those able to address the matters of concern.
But how was the matter actually brought to the attention of authority?
Well, it had nothing to do with Fred, the reasonable neighbour, or the fact of his failed attempts to aid the dog when it was chained or to report his family's experience once the dog had escaped.
His valid complaints were falling upon deaf ears.
Oh no; his concerns about the dog's welfare didn't matter. "That is a CIVIL matter", he was told. "I'm going to terminate the call - CLLUNK!" was the next and further responses to his concern.
Collateral damage of the important sort -
But when Ms FitzHugh, Two streets down, woke one morning and found her Snowy Persian "Fluffy" deceased - drawn and quartered on her front path, all mixed with her milk bottles, beside her morning paper - Cain was raised !
She was indeed the secretary of the local RSPCA and had in fact received a hesitant phonecall from our 'reasonable neighbour' a few days previously.
His call then didn't concern her much since she wasn't fond of dogs.
Besides which she was off to 'another meeting now' in her busy schedule' - or so she said; though it had stopped bothering her years ago telling such white lies.
Oh ! Suddenly it becomes of 'Public Interest' - Or its not what you know but WHO you know -
But now, faced with this outrage and the loss of USD 3000 worth of pedigree cat - heads would roll.
She immediately called her prime employer, the local news office, patched through to the manager, her old boyfriend, and demanded immediate action.
Then made the next call to her old schoolpal DoDo (Dorothy) at the mayor's office to beg off her attendance of a meeting of the health committee set for that morning. Her anguish (especially the loss of dollar investment) was immense. Naturally she was vocal about events.
As it happened her friend Do-Do put two and two together. She had been 'let in the know' about the council's dog catcher frequently and too visibly shirking in the pub with 'undesirables' during working hours.
How did she know this?
Well; her then particular friend 'Bruce' was chairman of the local greyhound racing board and they'd been discussing the matter of 'a couple of backyarders' at 'lunch' last week.
A quick phonecall, DoDo to Bruce, had Bruce immediately contacting his fellow board member 'Rick', the local police sergeant.
Action now occurrs -
So to cut the chase, DoDo made moves and some discrete phonecalls - dog catcher soon sprung by Town Clerk, in pub, drinking during working hours - police find dog harassing child in local park and shortly after, dog owner in pub. Ms FitzHugh meanwhile, receives insurance for her lost cat - Bruce, his own small win - two small time players in the Greyhound industry dumped in the gutter - Rick has his monthly Brownie points - while the only decent person in this sorry trail of events has his windows smashed every second night by Morrie's mates, Stretch, Mick, Charlie and their ratbag pals from the local boozer.
And justice appears to be served -
style - Queensland
Naturally page one of the local paper "Wild Dogs savage solicitor's daughter in park" and "Ferals mutilate mourned moggy" do attract the attention of the RSPCA so Saturday's paper features "RSPCA rams test case through - Dog ring jailed" - but nothing, not even on the sports' page, about Fred's frightened family or all his broken windows.
And what if we substitute a human being for our chained dog?
If, instead of a dog, a human being, say a Barrister at Law, an Officer of the Court escapes his chain, goes feral. causes injury, suffering, damage, loss, fear, and more?
Are barristers also permitted to steal in
Are those activities not proscribed by statute?
Or like Morrie the dog owner and Stretch the dog catcher are they permitted to ignore their responsibility and duty?
Why do I relate a chained dog to, say, a barrister?
Is not a barrister an 'Officer of the Court' - chained to that vocation by exacting standards of professional and societal responsibility, "The Chains of Office"?
Are we not all the same before the law?
Or do some get away with sheer mayhem until finally crossing someone more 'important' than themselves?
Lord Bingham of Cornhill postulated eight sub-rules of the rule of law.
It should be noted that Bingham takes a strongly substantive view on the rule of law, and that these sub-rules would be subject to fierce criticism by journalists.
- the law must be accessible and so far as possible intelligible, clear and predictable
- questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
- the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation
- the law must afford adequate protection of fundamental human rights
- means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve
- ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
- adjudicative procedures provided by the state should be fair
- the state must comply with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.
What IS the situation then -
Clearly human beings are taken to be sentient; able to reason; be responsible for their own actions; be liable for wrongdoing and (in Queensland at least, once caught out in fait accompli) equal before the law.
What precedents do we have for applying those standards?
Hammurabi's Code - the earliest known law
The Pentateuch - Mosaic Law
Saxon Law, Dane Law, Norman Law
The Quran - Classic Sharia Law - not the modern corruption of that ideal
The Bible - bringing Mosaic Law (therefore the basic tenets of Hammurabi's Code) into the Christian domain and from there to our present day law unwritten, natural, incontrovertible, underpinned by legislation; The Common Law. The Civil Code, devolving to Statute Law. Both melding together in order to meet the complexities of the modern world.
But what, instead, do we have in
Inalienable Right or Rafferty's rules !
I shan't mention Hobbes and his circle of friends and detractors milling on about Leviathon and the like.
Best to leave that unsettled time alone, get through 'The Enlightenment' and into 'The Age of Reason' when all our concepts of the last several thousand years begin to gel.
I'll even include a past
president (who could as easily have been a Queenslander) in order to provide 'the exception that proves the rule'. US
As progress is made some eminent jurors of the modern age, including Australians, have their say; as does a modern and eminently reasonable Australian well known at law. All exponents of Common Law.
Then Bounaparte takes his place providing the benefits of gravelly wisdom before letting us become aware of the Civil Code.
I'll move on by quoting what I'd understood was an old saw by Edmund Burke - "The only thing necessary for the triumph of evil is for good men to do nothing." - then to surround such with this discourse; intending to forward the product to each of you.
To manage accuracy I chose to research the quote; that which I had believed remembering.
As you will see, the plot thickened; other resources became available, their inclusion was at someone else's insistence:
All of which led me to realise that the quote was a ring-in; with - "When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle." -
apparently being the true form.
Handy that, since the main reason I'm writing this is in result of years of humbuggery, outright theft and contemptible struggle, When and after bad men combined .
Which proves that the best intentions are eventually perverted by excuse and expedience -
Amongst other ill usage, the true quote has become corrupted towards justification for all sorts of things including acts of war by the likes of Ronald Reagan.
(This aspect has to be mentioned in order to place matters in perspective. What is the worth of a quote? Might a quote be taken out of context or modified and/or perverted?)
A strange kettle of fish that Reagan. The titular beneficiary of rebellion and terrorist acts against the British Crown, publicly misusing the words of Burke,(who was) a royalist and believer of colonial taxation, in order to justify his ordering airstrikes against innocents and selling arms to terrorists.
Some of his words -
‘When bad men combine, the good must associate; else they may fall one by one ...’ Well, today, we cannot sit back and idly watch as the new imperialism grinds down courageous people fighting for their liberty.'
(Which is funny coming from someone who sat back making movies, idly watching them, and selling war bonds throughout WWII.)
Where IS Ollie North these days?
Meanwhile William Blackstone decided to plunge his own oar into this stream of consciousness with a posthumous -
“In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; wherever these two powers are united together, there can be no public liberty."
All of which surrounds and supports a vehicle for maintaining societally acceptable standards of justice, the lawfully constituted courts acting correctly and expeditiously on behalf of the common good, striving towards decency and harmony within the realm.
"The public good is in nothing more essentially interested, than in the protection of every individual's private rights.”
“If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive of all government. Herein indeed consists the excellence of the English government, that all parts of it form a mutual check upon each other.”
And brings Blackstone close to advocating what was soon to become adopted in
Europe - the Napoleonic Civil Code.
What are those standards?
Lord Hewart CJ said: A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Lord Hewart, in the eyes of the majority of his peers, was a basket case almost as bad as Edward Coke - too many decisions inured in self-interest and compromised beyond recall.
Yet when cornered, even he had to speak incontrovertible truth and ultimately be supported by his somewhat reluctant peers -
The ruling is derived from the principle of natural justice and has been followed throughout the world in countries that use the English legal system. It has been applied in many diverse situations, including immigration cases, professional disciplinary cases, domestic tribunals such as members' clubs, and perhaps most famously in the Pinochet case, where the House of Lords overturned its own decision on the grounds of Lord Hoffman's conflict of interest.
How shall these covenants be maintained?
The principle of open justice is reinforced by
’s ratification of the International Covenant on Civil and Political Rights 1966 (ICCPR), Article 14 of which relevantly provides as follows: Australia
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interests of private lives of parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. [Emphasis added]
, its judiciary, and those otherwise required to comply, somehow exempt? Queensland
Sir Gerard Brennan said in Mabo:
“The opening up of international remedies to individuals pursuant to
’s accession to the [First] Optional Protocol to the ICCPR brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.” Australia
“The opening up of international remedies to individuals pursuant to
As Sir Harry Gibbs put it:
“It is the ordinary rule of the Supreme Court … that their proceedings shall be conducted ‘publicly and in full view’. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.”
Lord Diplock (a favourite of mine) expressed similar sentiments when he said -
“It is the ordinary rule of the Supreme Court … that their proceedings shall be conducted ‘publicly and in full view’. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.”
Lord Diplock (a favourite of mine) expressed similar sentiments when he said -
“If the way courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy ”.
"By the judicial oath, judges undertake to act “without fear or favour, affection or ill will”. However, impartiality must not only exist, it must be palpable. The High Court has made it quite clear that in Australia the test for determining that a judge has been or might be actuated by bias is whether or not fair-minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case."
While The Honourable J J Spigelman,Chief Justice of
declaims - New South Wales
"The maintenance of impartiality, not only the actuality but the appearance thereof, is the point at which judicial independence and judicial accountability intersect. There is no incompatibility between accountability by open justice and judicial independence. Indeed they are closely intertwined principles."
“Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people’s consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is “done in a corner [or] in any covert manner.” It is not enough to say that results alone will satiate the natural community desire for “satisfaction.” A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society’s criminal process “satisfy the appearance of justice.” Offutt v United States, 348 U.S. 11, 14 (1954), and the appearance of justice can best be provided by allowing people to observe it."
I'll also have to rely upon the advice of that (by now quite jaded) 'reasonable person' so often called upon to 'weigh' the 'import' and 'merits' of situations put before him.
(He is, you see, sober, careful, tolerant with others of race, creed, politics, gender and sexual inclination, well read, not averse to assimilating information, of sufficient years to have experience of life but not old enough to be decrepit, displays no false airs or graces,displays more intelligence than he, himself, claims, politically aware if not politically active, knowledgeable about and sympathetic of religion, though not religious holds true to a supreme being, does not abide hearsay though holds great stock by fact, is savvy and possesses life skills.)
And by these attributes, amongst others, is therefore the embodiment of profound reasonableness.
As he says of himself -
"I also have a highly sensitive B---s--- detector !"
This same person was here today, was looking over my shoulder as I researched the Burke quote and listened in while I discussed with my Lady Wife the weight of evidence before us that
was corrupted beyond recall. Queensland
And while here had me 'Google' more widely including his own status at law. Which serendipitously produced the three Rs relevant to the situation confronting my family.Reasonable Man -
The "reasonable man" is a concept critically essential to the very framework of our civil judicial system. The reasonable man is a fictitious person. In real life there are very few if any persons male or female who could be said to be reasonable in every regard. Our civil law invented the reasonable man to serve as a standard for us all. Either we live up to the standard set by the reasonable man, or the court may find us to be unreasonable. In tort law, for example, negligence may be defined as the failure to act reasonably, i.e., as a reasonable man would act. The reasonable man exercises care not to injure others. To the reasonable man some truths are self-evident. The reasonable man knows the difference between direct facts and imagined conjectures. The reasonable man cares for his neighbor’s welfare. He does not steal. He does not lie. He acts responsibly to others and to himself. He follows the Golden Rule. He is not required to throw his life away attempting to rescue the widow’s parakeet from a marauding cat. He is allowed to exercise self-interest. He is not required to give his money to the poor. He is required, however, to act in a way that will not adversely affect the welfare of others or the welfare of society as a whole. The reasonable man exercises due diligence to ensure that his acts (including his words both spoken and written) do not injure others. The reasonable man sets the stage for civilized governments to establish a system of justice and fair play. What is good for the reasonable man is good for us all.
Reasonableness Test -
When a judge exercises judicial discretion, the law imposes a responsibility to do so within reasonable bounds. When an aggrieved party believes there has been an abuse of discretion an appeal may be taken to the next higher court to challenge the judge’s ruling based on the reasonableness test, whereupon the higher court is required to examine the lower court’s ruling to determine if reasonable persons could disagree with the ruling. If the appellate court finds that the lower court’s ruling complies with the reasonableness test, it will affirm. If the appellate court finds the lower court’s ruling does not pass the reasonableness test, i.e., that reasonable persons acquainted with the law and facts might have reached a different opinion, the appellate court will either reverse the ruling or remand the case back to the lower court for further proceedings consistent with the appellate court’s findings.
The lawful taking back of property or persons illegally taken, but without going through the courts, i.e., using self-help to get them back (so long as it is without violence).
The 'reasonable person' made the point that Burke's statement, taken in context, was about partisan politics - reasonable men associating and agreeing en-bloc in order to pre-emptively curtail corruption, excessive abuse of power and misuse of privilege.
Burke, I was informed, while ruminating about grave concerns - rebellion in
America, abuse in the colonies and, much closer to home, bloody revolution in France leading to catastrophe in - came up with - "A state without the means of change is without the means of its conservation." England
In other words, says our reasonable person -
"A 'reasonable person' would gather that Burke and his associates, (themselves being reasonable persons), sought peaceful but pivotal change through means of lawful association, in order to maintain their interest (and that of their nation) in the status-quo. It could, says he, also be construed, in simplistic terms, that they were the 'driver and passengers' of a 'vehicle' fashioned by Blackstone and his ilk."
He submits -
"Extracts, (copied above) from the writings of other, more modern, nonetheless equally reasonable and learned persons, both uphold the covenants and reinforce their validity through the ages. In short, the 'vehicle' is the same and has been reliable enough and of such utility that regular maintenance alone has kept the carriage roadworthy."
"All that is required (to complete the analogy) is for the driver to know, to respect, and to abide by, the rules of the road."
Let us investigate Burke's fear -
Meanwhile, points out our 'reasonable person; across the Channel, the second-worst of Burke's fears, bloody revolution in
, spawns another beneficiary; (one perhaps more responsible than Reagan). France
Bounaparte, the opportunist, titular head of another earlier 'Evil Empire', who manages between campaigns, while taking time off from being imperious and in the style of the artillerist he is, deploys a veritable volley of memorable quotes and, apparently almost incidentally borrowing elements of law from Prussia and elsewhere, implementing the 'Codex Napoleon'.
Some quotes, which, Napoleon's, first sentiment seems to align with Burke's fears -
'If they want peace, nations should avoid the pin-pricks that precede cannon shots.'
moves to revealing some of his awareness of his own mortality -
'A throne is only a bench covered with velvet.'
then turns towards matters of his notice which could have us speculating whether this Boney (not Arthur Upfield's) had maybe visited
'Never ascribe to malice that which is adequately explained by incompetence.
In politics stupidity is not a handicap.
Among those who dislike oppression are many who like to oppress.
Men are more easily governed through their vices than through their virtues.
Men are Moved by two levers only: fear and self interest.
One must change one's tactics every ten years if one wishes to maintain one's superiority.
Great ambition is the passion of a great character. Those endowed with it may perform very good or very bad acts. All depends on the principles which direct them.'
and finally reveals some of his ideals.
'Let the path be open to talent.
Public opinion is the thermometer a monarch should constantly consult
Riches do not consist in the possession of treasures, but in the use made of them.
Ten people who speak make more noise than ten thousand who are silent.'
Which sound guidance provided for posterity by great men of both persuasions - seems to argue that concerted action is a bounden duty required of everyone in the face of all sorts of threats - Burke, on one hand, having to network with the like-minded in order to manage a proto-democracy still raddled with corruption and nepotism - Napoleon, on the other hand, having to make sense of encroaching anarchy; having to fuel his own ideals with that energy and through the means available create a Pan-European rule of law.
Says the 'reasonable person -
"I doubt if even the French have been able to encompass what may have happened if Bounaparte had not been there, then. The kingdoms, principalities and recalcitrantly feudal institutions of
Europe may easily have succumbed to a Domino effect plunging what we know as the Western World into a new dark age.
Putting it simply Boney, Burke and good men like them, while sometimes being at odds, remained true to first-principles, harnessed their wit and presence, dragged us kicking and screaming from the edge of disaster.
Meanwhile, Blackstone's example enumerated the raw tenets of the rule of law and defined our expectations of the societal benefits of that rule. Despite it all being customarily based upon greed, self-protection and self-interest of and for the privileged few. - perhaps that inertia leant towards the final understanding of its virtue within society."
Two centuries on, the present -
Two core traditions at law; The British Common law and the European Civil Law - with the European export, like so many other products, proving more popular around the world that its opposition.
Let's look at some of the principles that Napoleon and his thinktank decided were important enough to enshrine - good enough to last til now -
"The preliminary article of the Codex Napoleon established certain important provisions regarding to the rule of law. Laws could only be applied if they had been duly promulgated, and if they had been published officially (including provisions for publishing delays, given the means of communication available at the time); thus no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before them). The code also prohibited judges from refusing justice on grounds of insufficiency of the law — therefore encouraging them to interpret the law. It, however, prohibited judges from passing general judgments of a legislative value."
And what of
justice - Queensland
's law devolves and must therefore accede to the British law tradition. Leastways, that's how it goes on paper despite our criminal code being mostly plagiarized from the Italian model by Sam Griffith. Queensland
Even accepting that through precedent and other means some adjustment has occurred over time that might introduce 'Napoleonic' elements into the scheme.
Even if our entire scheme were overnight shredded, burnt and replaced by Napoleon's Code, hot off the press, the basic yet incontrovertible rights, freedoms, duties and responsibilities known, accepted, and insisted upon by reasonable persons would remain.
A little known fact is that
's criminal code, encouraged by Sam Griffith and getting off to a good start, standardswise, was based upon the Italian model. Queensland
Did Q. Parliament trash that when Mussolini came to power and annulled that code in
in the 1920s? Italy
Clearly that did not happen.
Have events or circumstance in
Queensland or other nations abiding by the Rule of Law/Common Law caused such law to be annulled in ? Queensland
Clearly that has not happened.
Chief Justice Paul de Jersey reads off his bit of paper:
I am told that my remarks are being recorded by Hansard. That is a little disconcerting. I suspect the last time a judge’s remarks in the parliament were recorded by Hansard was in his response to a motion for removal. It may be a bad omen; I hope not. It also brings to mind a position I recently took in relation to court transcript and subsequent revision by a judge. I took a very strong line that that should not occur.
Maybe I shall have to revise my attitude to that in relation to parliamentary transcript tomorrow morning
The most obvious parallel concerns core business. Both are concerned, although in different ways, with the law. Another similarity, and one which starkly distinguishes those arms of government from the executive, is the openness of their processes. Each almost invariably operates in public under the potential glare of publicity. The process is transparent and, being known, is vulnerable to criticism should things go wrong.
The missions contrast. The constitutional mission of the parliament is to make laws for the peace,
welfare and good government of the state. The mission of the courts of law is not to make law but to deliver justice according to the law primarily at least made by the parliament.
In a report published for the Australian Institute of Judicial Administration in 1998, Professor
Stephen Parker of
relates a story about Sir John Latham and Mussolini. Latham was Griffith University
telling Mussolini about the Australian Constitution and the power of the High Court to declare legislation
and executive actions invalid. Mussolini listened and at the end he said, ‘Yes, Mr Latham, but how does the
court get its order with such far-reaching effect obeyed? Does the court have an army or an enforcing
agency?’ Latham responded, ‘No, it doesn’t work that way. The court simply pronounces its decision and it
will be obeyed. That is how the system works.’ This drew Mussolini’s reply, ‘Truly, Mr Latham, your answer
is remarkable. You have anarchy in your system.’ Professor Parker observed—
Inexplicable though it may be to a dictator, courts work primarily through voluntary acceptance of their authority and, in a sense, it is
remarkable how well they do work in that context.
How can people be confident about a process of which they are ignorant? Contemporary
courts, I assure you, are vibrantly alive to that. Can you imagine 10 or 15 years ago, for example, a chief
justice deigning to respond to a letter from a disappointed litigant explaining why things from that person’s
point of view went wrong in the courtroom? It regularly happens. It happened to me today. It happened to
the Chief Magistrate yesterday. Today he sent me a copy of his response. We are alive to the need to
reassure people and, more fundamentally, to inform them of the nature of our process so they at least
begin to develop some basic understanding of what goes on in the court process.
Qld Parliament, its responsibility ?
Even if our single house of Qld parliament, untrammelled as it is by any inconvenient debate, wanted to take a stance denying British common law; wanted to adopt overnight some other scheme; Queensland nonetheless remains part of this Commonwealth, part of this world community and is therefore expected to abide by the Rule of Law.
This entire paper demonstrates the fact.
But are the mechanisms there?
We have no Administrative Appeals Tribunal.
Neither do the 'independent bodies' work.
The original characters that Ms FitzHugh, DoDo, Bruce, Stretch, the dog gone feral, etc., emulate , make sure of that - since they're absolutely DEVOID of any knowledge of what wise men have agonised over for millenia, let alone their own duty - and therefore have become inordinately adept at having meetings and slamming down the phone.
Nor would they care if the knowledge was rammed down their selfish throats.
What is the problem with Qld now?
Do we pretend that British Common Law is being subsumed by the Codex Napoleon and its present day spinoff?
Are we supposed to expect that the fund of tradition, custom and precedent has been supplanted By some latter day equivalent of Robespierre and the Reign of Terror or the Chinese Gang of Four??
Clearly Not. Its all there on paper. A gem of confused logic.
Are we all so completely apathetic that we, the proletariat, just plain do not give a stuff?
Or is there some neat little scheme open to the select. The Lodge. Emily's list. Industry/occupational networks, secret societys, tontines, - that 'sort-of' outfit forever offering their pawns up for public office.
Is that how corruption happens?
Or what about families who HAVE been successful; procreatively, anyway.
Does that mean public office has become hereditary?
So what IS
's problem - Queensland
Firstly, only one conclusion can possibly be drawn from any situation that denies all that has been mentioned by these reasonable men above. They are great, they are wise, they agree and in that common accord come near to assuming by that wisdom some quality Godhead.
Clearly, pellucidly, it has been demonstrated that kangaroo courts and star chamber techniques are
, (at least on paper) whether under British Common OR Continental Civil jurisdictions OR any hybrid of the two Or any other confection the pragmatic corrupt might want to install. NOT ON
In other words, without all the faulderol now extant, a situation must come to exist whereupon the law as is written is upheld.
Any otherwise would be nonsense.
Unless, of course, by act or omission they, our decisionmakers, are either incompetent, corrupt, disempowered, subject to compromise - or so otherwise challenged that, by any acceptable standard, understanding of truth and merit is beyond their capacity or reason.--------------------------------------------------------------------------
The first line of that is with those so charged with upholding law and statute doing that properly and not waiting for the FitzHughs to become distressed and out-of-pocket.
Or. By hearing, then looking after Fred's concerns first, with some small expenditure of effort, the FitzHughs of Queensland might live with the serenity their bank accounts can afford
Or. The FitzHughs might (to put it plainly, if they do not want to do the above) get down off their high horse and let reasonable, decent, people like Fred have a slice of the action.
The eminently 'reasonable person' wants his say - -----------------------------------------------------------------------
What sort of justice is being served by deeming a family's business licenses subject to revocation at the authority of a single unqualified person - by designating an administrative appeals process in the civil register, magistrates court - then having to see that alleged court turn centuries of jurisprudence to coleslaw?
To make that clear -
The entire point of the above exercise was to establish whether or not that the conduct of the Qld system amounted to the lowest form of unlawful political dictation.
For quite some time here in Qld. all courts, including what used to be police courts, summary courts, have become subject to compliance with the Supreme Court Rules of Procedure.
Yet in practice the record demonstrates that such is not sustained and in fact being systematically denied.
Then there is governance itself resorting to ignoring judicial decision and immorally resorting to appeal.
Andrew Bartlett, Senator, Qld.
"It is rightly said that justice must not only done, but be seen to be done. The same principle must apply to our democracy and to the law making process. Australians must be able to have faith that these laws have been properly considered, taking into account advice and opinions from all sides. An even better way to ensure our laws protect our freedoms, rather than diminish them, is to adopt a Bill of Rights."
“The so-called managerial practice of ‘shooting the messenger’ is a common experience amongst
The QNU has also indicated to the CMC that the complaints against Dr Patel, which the nurses made to their employer the Bundaberg Health Service District executive, should have been notified to the Crime and Misconduct Commission by the District Manager, pursuant to section 38 of the Crime and Misconduct Act 2001 which states:"This section applies if a public official suspects that a complaint, or information or matter (also a "complaint") involves or may involve official misconduct. The public official must notify the Commission of the complaint"-----------QNU secretary, Gay Hawksworth, said that, as the old saying goes, justice must not only be done, it must be seen to be done.
So what does any of this have to do with 'Whistleblowers' and CPNQ ?
In order to answer that I'll have to refer to the 'loop' I've encountered whilst attempting to discover the status of advocacy and anti-corruption organisations in Qld.
It appears that there are none with Teeth.
In the eyes of a reasonable person such that do exist are subsumed to the state by being controlled by those who work for the state or exhibit that conflict of interest of having, by way of their occupation, to be subject to the state.
Meanwhile it might be best if Adrian Galea re-reads the standards, copied to text, above, (including - domestic tribunals such as members' clubs).
Take for example a key passage in which Haffner describes one of his first direct encounters with Nazi anti-Semitism after Hitler came to power. Haffner is preparing for his legal exams. Appalled by the violence of the Nazi movement, he takes refuge in the comforting normality of a law library where the Civil Code, and, more generally, the rule of law, seem still untouched. Suddenly, the news spreads through the reading room that the SA has entered the building to evict Jewish judges, lawyers, and trainees. An SA man comes to the table where Haffner is working and demands to know whether he is an "Aryan." Without hesitation, Haffner says that he is but immediately feels guilty that it has been so easy to capitulate to Nazi racism. Why didn't he refuse to answer? Why didn't he challenge the very premise of the question itself? These moments of individual moral failure torment Haffner.
January 19, 2001 issue of Executive Intelligence Review.
Schmitt declared that previous law had served only to empower criminals against the population, - Henceforth, retroactive laws must be available to judges, Schmitt argued, who should be allowed to reach the right result, without the hindrance of abstract and irrelevant precedents. Judges could employ "concrete order thinking" in this process. Schmitt's revision of the civil code declared that the "legal concept of man conceals and falsifies the differences between the citizen of the Reich, a foreigner, a Jew, and so on. . . . Seeing equal as equal, and, above all, unequal as unequal, and emphasizing the differences among men of different races, nations, and occupational estates in the sense of God-given realities,
the Mischief Rule requires Judges to look over 4 tasks to ensure that gaps within the law are covered.Lord Coke described the process through which the court must interpret legislation.
For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1st). What was the common law before the making of the Act? (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico
It is the function of a judge not to make but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.
- Lord Edward Coke
Judges must beware of hard constructions and strained inferences, for there is no worse torture than that of laws.
- Francis Bacon