Guest Author – Ms. Millicent FFulke-Hope BD BEng
Inge kindly invited me to spend a few days with her after meeting again at that awful conference in
A wonderfully restful break from city living but at a cost.
Dear ‘Calligula’ has press-ganged me into writing this paper with a little help from the team.
I pray that the reader will appreciate being able to easily ‘Google’ the reference material.
So much easier to research now, than in my day.
Rights, as opposed to privilege -
Has anyone out there worked out yet that this country does not have a charter of rights?
Even the Greens are concerned - http://greens.org.au/node/5688
Meanwhile various state and federal regimes, these recent decades, have emasculated the authority of the judiciary by secretly, perniciously, arbitrarily, systematically, incrementally, signing away the rule of law, consequently subsuming common law to statute law/ civil code.
Were the adversarial system, judge made law, precedent, and trial before jury, abolished by common consent then something would have to be waiting in the wings to replace it.
That thing would, of necessity, need be acceptable to the international community.
And since the Federal Government has upon its own decision refused to offer the Australian people any form of Charter of Rights that replacement cannot be an inquisitorial system based on Roman law/Napoleonic Code; since, without a document defining citizens rights, such a statutory code has no purchase upon legal nonentities or living chattels.
Such, consequently, becomes a blunt instrument of oppression.
As Arthur has so ably hinted recently, Australian governments risk hubris by precipitately and fallaciously assuming the divine right of kings.
His conviction that the ‘Rafferty’s Rules bodged together by the ‘masters’’ (as he describes that poorly, often hastily conceived, pastiche of ad-hoc statutes and regulation) has destroyed whatever of the rule of law ever existed, is supportable.
When no one argues the toss or begs to differ with these ‘masters’ they might as well run with it and accept their lot as peon subjects of an authoritarian regime..
‘Justice reform, statute law’, Australian style –
Take a thing, an act or circumstance – something that has been a self-evident feature of society since time immemorial and wrap a law around it.
Australian legislators seem to enjoy doing things like that.
Australians, to their detriment, mistakenly and carelessly tend to laugh it off as ‘make-work’.
Once the new law has been enacted, gazetted and commenced being enforced the complaints, lobbying, breaches and appeals start rolling in.
Situations soon emerge that cannot adequately be dealt with at law.
A judge may be constrained by the relevant statute, subsidiary legislation, some regulation; or may simply decide that his best escape from an impossible ethical situation would be to declare that any ruling on his part could further injure the cause of the appellant.
and for an absurdity - http://www.hansard.act.gov.au/hansard/1997/week11/3583.htm
An Australian, politically appointed judge, emasculated by statute, is ironically statutority immune from consequence of his behaviour in his court.
There are some things that are self evident and there are some things that are Kafka-esque.
This judicial situation is both self-evident and Kafka-esque, yet there are more than enough apologists to perpetuate the absurdity.
The judge can’t help, who or what can?
At some stage in proceedings the legislators may become aware that interpretation of their new law has produced some unforeseen adverse consequences.
If those consequences happen to impinge upon the comfort zones of ‘certain’ individuals or entities presumed of importance some ‘legislative review committee’ is called into play and a series of patchwork amendments and exemptions are mooted, then expeditiously introduced.
Though such mechanisms exist to deal with such contingencies they appear to lack the ‘jurisdiction’ to deal with the legitimate concerns of, or detriment caused to, ordinary citizens.
Politicians are proud of their importance. Rarely is useless legislation rescinded.
It requires no stretch of the imagination to realise why many Queenslanders refer to their fund of legislation as the ‘Lace Doily Laws’, (ie, seems attractive at first, but useless other than at covering things up and full of holes – DR, Editor) .
Much in the way of legislative statute and regulation in Australia has been achieved unlawfully, without consultation or plebescite, without introducing any fund of statutes establishing specific rights for Australian citizens or affording the means of determining jurisdiction whether statutory or within what little remains of the ‘common law justice system’.
See - http://www.umcinc.com.au/index.php?page=anti-biker-laws-human-rights – and please note the list of learned gentlemen supporting the presentation.
Money and its place at law -
It seems that the common law remains available only for the un-commonly wealthy as simultaneously the common Australian is subject to the threat of a series of arbitrarily summary hearings more reminiscent of a drumhead court martial than any Court of law.
The Court of Star Chamber would pass unremarked in a modern Australian courthouse.
Such compromise might well matter little for the civil litigant already confronted with the outrageously prohibitive cost of legal advice combined with the diversity and uncertainty of jurisdiction.
The cracks of adversity -
You hear them on the news more often every day – ‘Oh how unfortunate – he/she just fell through the cracks of jurisdiction. Tee hee, never mind’ - and on to the next item of entertainment.
(This is remarkable. I’ve spent quite some time ‘Googling’ Australian sites using key words such as cross jurisdiction, ‘fell through the cracks’ and the like. The first attempt produced a bewildering array of focus and special interest groups subsequently presenting as so constricted in outlook as to be worthless. It is as if the Howard regime has bred a nation of self-centred anal retentives. MFH, author)
It may well be of little concern for the average person to become peripherally aware that disadvantaged and disenfranchised societal outcasts are ‘falling’ through this, that, or the other of the numerous cracks in the carapace of governance.
A sensible person might take pause to question why, in an increasingly regulated system of governance, these ‘cracks’ seem to be spreading.
It might be worthwhile for that person to consider whether some species of ‘fatter cat’, despite his girth, might not be able to ‘slip’ between these same ‘cracks’ with the aid of a spot of lubricious assistance. (Too oblique for you? The lady means a solid wad of money and a good, dishonest barrister. – DR – Editor)
The societal effect -
“Who the hell thinks they could stuff people about like that at the stroke of a pen.” – or so say all those who go out meekly and uncomplainingly pay their bogus speeding fines.
The slow, remorseless chewing away of once inalienable rights and the spitting out of the base residue (erroneously labeled privileges) was once likened to the action of Tiberius’ jaws.
To explain that may I once again rely upon one of Arthur’s leavening comments -
“Of course the vast majority of these downtrodden little twerps would thank the bloody police for tasering them instead of shooting them stone dead in the unfortunate circumstance of some over-hasty error of mistaken identity.” – which Arthur insists is frequently the sort of sentiment reflecting the value judgments of those becoming increasingly impatient with apparent ‘dystopia’.
The ratchet effect of social engineering
See - http://www.law.uchicago.edu/files/files/350.pdf - a useful paper ably demonstrating a theme true to my heart.
This one - http://bernardharcourt.com/documents/readers-companion.pdf - more or less the same document – which will help illustrate how meretricious academics are absorbed with gaining publicity and seeking funding while simultaneously filling legislator’s heads with loads of fantastically disputative ‘bullshine’.
Manipulating pseudo-science toward a ‘profitable’ and pre-determined outcome is, in my opinion, unconscionable.
Before I say more here I will have it known that I first coined the phrase ‘Ratchet Effect’ at an ethics conference in 1978.
I proposed it as a term encompassing all those negative elements cleverly being integrated into processes of governance.
Indeed it was the steady click, click, of my ex-husband, Monty’s ratchet wrench that gave me the inspiration as he worked on his little MG on Sunday morning.
Most remarkable was the way it so often clicked its handle and his knuckles into a corner that made it so difficult for him to remove from the bolt he’d just tightened.
That and the way it often slipped its ratchet, inevitably slamming those same knuckles into some sharp, oily projection under the bonnet.
The blood, tears, curses, threats and imprecations inspired me to realise his response to hurt was the inevitable result of his refusal to choose a better tool for the task.
So much like politicians, I thought.
Charge in bull-at-a-gate, going about things as fast as possible, knowing the process is flawed and blaming everyone else when you go wrong.
Hence the ‘Ratchet Effect©’.
Inspiration, indeed and adequately, microcosmically, describes the futility of encumbering civil society with excessive, unnecessary ‘ratchet legislation’.
“Any arch-libertarian or latter-day anarchist would wonder why anyone would waste time drafting the bloody obvious in the forlorn hope of advising morons.” – fairly expresses the sentiments of those who asked me to contribute this paper.
Nonetheless, they asked me kindly so here it is by way of begging Australians and especially Queenslanders to ‘grasp the nettle’ and assume some mantle of self-determination.
In closing, If time permits I shall determine to collaborate with dear Calligula and, perhaps, Arthur to compile an article about the eternal dialectic.
The ‘Eutectic Dialectic’ might focus the direction.
Eutectic point - http://en.wikipedia.org/wiki/Eutectic_system
Speaking about falling through cracks – some do manage better than others.