Comment by defrost | Hacker News Reader

Comment by defrost | Hacker News Reader

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> Commonwealth nations have largely devolved into illiberal elective autocracies with immense power concentrated in the PM's offices,

Not especially applicable to border lockdowns within Australia.

The biggest case that hit the Federal Court was the border closure by the State of Western Australia (population ~ 2 million, land area 3x Texas) which was in effect the local citizens of W.Australia being damn near 100% in lockstep with their elected local representatives in saying we have no desire to see free movement of people across our State border during the time of the pandemic.

They were in opposition to the Federal Government and the PM's office and held their ground ..

.. despite the alleged "immense power concentrated in the PM's offices".

Free trade of goods continued via rail, road, and shipping so their was no issue with that part of the Consttitution, and the lockdown was in keeping with earlier (2005 etc) biosecurity ammendments in both State and Federal law.

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.

> 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.

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.

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.

In this case it has become /more/ like the parliamentary countries- i.e. the court removed itself from deciding abortion rights and sent it back to legislatures, where it had been originally before an earlier court had decided to overturn precedence by creating new rights not filled rooted in the text.

No, in the US it absolutely is rooted in the text. In Australia it is not. We do not have a long list of individual rights exercisable against the government including privacy that require decisions like Roe v Wade in the first place. If you concentrate only on the effect of "sending it back to the legislatures" then it seems good, but you must realise that doing that abdicates the court's clear, universally acknowledged and long-term role in enforcing those rights. This is an unstable middle ground, because there has been a period of 50 years in which the democratic debate around it has been completely lop-sided as the pro-choice crowd barely needed to lift a finger as the right was clear. The actual effect is already to "send it back to legislatures that are stacked with people salivating at the prospect of imposing some pretty extreme views on the majority who disagrees with them". It will take a long time to settle. And the whole time, America will have to come to terms that its most important legal body is churning out pre-ordained self-serving nonsense to reach these conclusions. There is nothing coherent in the Dobbs majority decision. The current test for "is a right enforceable" is "did laws sometime before 1850 or so allow people to do this? Before you answer, we're gonna ignore all the evidence that says yes". That's not a good place to be. It is, mind you, about as logical as the doctrine of "qualified immunity", which is kind of like a hiring freeze but for yet-to-be-encountered situations involving government workers (especially police officers) violating people's constitutional rights, such that no new (ie not "clearly established" in a previous decision) kinds of constitutional rights violations have resulted in consequences since 1982. American law is fucked up, in such a way that democracy on one issue at a a time cannot fix. Even if you managed to set forth a movement for protecting abortion rights and defeated all the state legislative campaigns to thoroughly criminalise it, you would still be stuck with a really bad situation re the rights in the Constitution not really meaning anything.

In order for American constitutional law to make sense again, they should either strip the entire bill of rights from the constitution (slowly!) or once again do a huge U-turn on Dobbs (and the cases yet to be handed down in which the conservative majority will use the same ridiculous legal test that is even less rooted in the text of the constitution than the rights they're analysing to justify knocking down the right to gay marriage etc) and acknowledge it was bullshit. My thought at the moment is that doing it Australian-style is better in the long run. You get slower progress, for example we had discriminatory laws against sodomy in Queensland until 2016 (!), whereas the US has benefited economically and socially from the extremely sound policy of abortion access (cutting off a poverty/crime pipeline) for 50 years. But you don't get the instability that results from populist movements cottoning on that an independent judiciary sits in their way. As it stands the US is there. It's a very dark spot.

> 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.

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