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Condemned by history

So, after some farcical manoeuvres, the Senate has passed Abbott’s legislation removing the carbon price. I hope and believe that this outcome will be reversed in due course, but those who brought it about will stand condemned by history.

It’s not merely that this is a bad policy, which will impose large and increasing costs (depending on how long it takes us to get back on track) on Australia and the world into the future. Even more damning is the fact that this action is entirely based on conscious lies, embraced or condoned by everyone who has actively supported it.

First, and most obvious, no one (least of all Tony Abbott) believes that the government’s “Direct Action” policy is a superior alternative to the carbon price, one that will deliver emissions reductions more rapidly and at lower costs. It is, as everyone knows, a cynical ploy put forward simply to allow the government to say that it has a policy.

In reality, Abbott and the rest want to do nothing, and the motives for this desire are entirely base. For a minority of the do-nothing group, it is simply a matter of financial self-interest associated with the fossil fuel industry. For the majority, however, it is the pursuit of a tribal and ideological vendetta. Their position is driven by Culture War animosity towards greens, scientists, do-gooders and so on, or by ideological commitment to a conservative/libertarian position that would be undermined by the recognition of a global problem that can only be fixed by changes to existing structures of property rights.

Most of these people would describe themselves as climate “sceptics”. There is no such thing. That is, there is no one anywhere who has honestly examined the evidence, without wishful thinking based on ideological or cultural preconceptions, and concluded that mainstream science is wrong. Most “sceptics”, including the majority of supporters of the conservative parties, are simply credulous believers in what their opinion leaders are telling them. Those opinion leaders are engaged, not in an attempt to determine the truth, but in a cultural vendetta against their enemies or in an ideologically-driven attempt to justify a predetermined do-nothing position.

This is a sad day, but one that will come back to haunt those who have brought it about.

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  1. July 22nd, 2014 at 15:52 | #1

    Patriarchy: hierarchical system with “high status” men at the top. Women subordinate to men at all status levels. Hierarchy amongst men on the basis of, for example, age, race/ ethnicity, position in the capitalist economy.

    If you want to change it, you need to reflect on whether you are or have been complicit in it. Some people here probably know what I think.

  2. July 22nd, 2014 at 16:44 | #2

    The Great Pacific Climate Shift is, I assume, the latest denialist talking point, maybe related to the Pacific Decadal Oscillation. I’ve whacked too many of these moles to bother with another.

    Sad, isn’t it. Even if a heroic “skeptics” finds a truly amazing proof that we aren’t causing climate change, no one will be listening, our enthusiasm dented by the inane mumblings of the false prophets that preceded them.

  3. Dick Veldkamp
    July 22nd, 2014 at 17:17 | #3

    #152 John Brookes: truly amazing proof

    Let us contemplate for a moment what such an amazing proof would involve.

    Such a proof would require one of two things:
    1. The CO2 currently pumped into the atmosphere does not come from burning fossil fuels, deforestation, and making cement. This would mean that we are way off in what is basically a matter of simple accounting.
    2. CO2 does not have the radiation absorbing/emitting properties we think it has i.e. we dump CO2 into the atmosphere, but it is harmless. This would overthrow the whole of atomic physics (and arguably all physics), which has been tested (in)directly thousands is of times.

    Of these alternatives (1) is at least possible (although this may be too strong a word – what are the odds if 1000 people do the same additions and subtractions, they are ALL wrong and wrong in the same way?), while (2) is definitely not.

    PS I trust you are being ironic here. The clue is probably in the “”. ;-)

  4. Dick Veldkamp
    July 22nd, 2014 at 17:21 | #4

    #152 John Brookes: truly amazing proof

    You may be interested to know that I have just found such a proof. Unfortunately this comment box is too small to contain it.

    http://en.wikipedia.org/wiki/Fermat%27s_Last_Theorem#Fermat.27s_conjecture

  5. J-D
    July 22nd, 2014 at 19:55 | #5

    @ZM

    1. What’s relevant here is the law of England; the law of Scotland is different. It was definitely the law of England that was ‘received’ (to use the technical term) in the Australian colonies at the time of settlement. As for Indigenous law, whatever its merits, it should be obvious that the Australian courts at least have no authority to rule that it overrides the legal system they themselves are part of.

    2. If we talk about the Australian Constitution, as it is now or as it was at some past date, we are talking about a definite piece of law. But if we talk about the British constitution, as it is now or as it was at any past date, we are not talking about any definite piece of law. The British constitution does not and did not take the form of a law or laws that could have been covered by the doctrine of ‘reception’ of law.

    3. The Queensland Parliament had clear power to amend the Queensland Constitution to abolish the Legislative Council. The Act did require Royal Assent: opponents of abolition petitioned the British Government for this not to be given, and the Colonial Secretary (Winston Churchill) decided that it was a local matter and that there was no reason to advise the King not to assent. The ‘customary right of the people to a house of review’ is wholly imaginary.

    4. Administrative law deals with the carrying out by administrative agencies of the government of their administrative functions. It doesn’t deal with the functioning of the government as a whole at the highest level. It is possible to sue the Commonwealth of Australia, but such a lawsuit wouldn’t come under the heading of administrative law. It might come under the heading of contract law, if the plaintiff was suing for the breach of a contract with the Commonwealth; it might come under the heading of tort law, if if the plaintiff was alleging tortious action on the part of the Commonwealth. The Dutch lawsuit, as far as I can make out, seems to be essentially a tort claim, involving negligence and breach of statutory duty, as I mentioned before. It’s not, however, possible to sue the government for ‘improper and imprudent administration’; that means being a bad government, and no court would rule on whether the government was a bad government; the official judicial view, if it ever came to be expressed, would be that the remedies for a government being a bad government are political ones (meaning voting it out of office) rather than judicial ones.

    5. The Commonwealth of Australia can be sued for breaches of the law (including contract law and tort law) but it can’t be sued for making bad laws. The mechanism for this simply does not exist under our system. I am confident that it does not exist under the Dutch system either. (In classical Athens it was possible bring a lawsuit against the making of improper laws, so the mechanism is within the bounds of what’s conceivable. But knowing what it was like where it did exist confirms that it doesn’t exist here and now. Classical Athens had some other interesting constitutional mechanisms. I wish we could see Australian Cabinet ministers dealing with euthynai on leaving office.)

  6. ZM
    July 22nd, 2014 at 20:19 | #6

    Where did I write anything about inheriting Scottish law – we inherit English and UK law obviously. The crowns of England and Scotland were united after the death without heirs of Elizabeth Tudor. We inherit this because Australia was settled (see Mabo) not conquered – if conquered indigenous law would have applied since 1788.

    We inherit the British constitution as it was at the time of settlement in Australia . This constitution is unwritten. Therefore we have an unwritten (conventional) constitution and a written constitution.

    There is definitely a conventional right for the subjects to have an upper house of review – this is called the House of Lords in the UK.

    I don’t see why the court can’t remedy the injury to the good caused by the crown and the parliament not fulfilling their rightful obligations to subjects and the heirs of the commonwealth.

    I have told you the mechanism – a claim against the crown or the commonwealth for causing grievous injury by ruining the climate with bad lawmaking requesting redress and remedy. I don’t see why you say that would be out of the question ? It is a definite mechanism to seek redress- and the crown, parliament, public service are not fulfilling their constitutional obligations to the subjects and heirs of the commonwealth by their causing of climate change.

    The remedy against bad lawmaking does exist in the Westminster system – the institution if The Lord High Chancellor, keeper of the great seal, and keeper of the king’s conscience. The Australia Act took away our oversight by the UK – and we ought to have been instated with our own Lord High Chancellor in the Upper House, it was very wrong indeed not to instate one for us:(

  7. Bernard J.
    July 22nd, 2014 at 23:00 | #7

    The Commonwealth of Australia can be sued for breaches of the law (including contract law and tort law) but it can’t be sued for making bad laws.

    The question surely is not whether the Commonwealth can be sued for making bad laws, but whether it (or the individuals constituting its parliament at the time) can be held liable for negligence or abrogation of their duties.

    Are these differing concepts in law?

  8. Midrash
    July 23rd, 2014 at 00:58 | #8

    @Matt
    Thank you for the links re Lindzen who I had noted as apparently admitting errors.
    If I have time to follow up they may help me in my equal opportunity scepticism. As I find it impossible to agree that a case has been made for any expensive policies wrt Australia’s CO2 emissions at this stage (JQ simply asserts that it will cost us a lot if we don’t do something to curb our CO2 emissions without even a link to some supposedly substantial proof) I am a happy agnostic. As I shall tell our resident pop-psychologist Julie Thomas there is a lot to be said for exercising the cognitive faculties vigorously while retaining the comfortable equanimity that comes from (perfectly rational) refusal to be upset by things one can do virtually nothing about.

  9. Julie Thomas
    July 23rd, 2014 at 06:18 | #9

    Midrash

    Referring to me in the third person confirms my pop psychology diagnosis that you are unable to interact with the female part of the population as if we were intelligent human beings. When are you going to tell me this? This way of expressing yourself reveals the fundamental dishonesty of your character and personality, don’t you think? Or do you imagine that your hyperbole and convoluted writing style is impressive and evidence of your ‘complex’ character and superior ability?

    How blind you are to all that you reveal about your self regard, your dishonesty and lack of insight when you claim that you retain “the comfortable equanimity”. When did that equanimity happen?

    This claim just doesn’t make sense to me. If you are so comfortable, WTF was all that angst in your previous comments about? We can all scroll back and read what you wrote. It certainly was’t perfectly rational and you are delusional if you can read what you wrote and continue to believe that you were acting rationally.

    I agree that you are exercising your cognitive faculties vigorously; it does take a determined application of motivated cognition to continue to deny the evidence and the arguments for concluding that we certainly do need to curb our CO2 emissions and you have no credibility for your claim that JQ simply asserts things without providing a substantial argument for the truth value of his assertions.

  10. ZM
    July 23rd, 2014 at 06:31 | #10

    Bernard j,
    As I said, you can make a claim against the crown or commonwealth. You have to get the court to recognise your standing to do so.

    The claim against the crown replaces the petition of right process in Australia – upon taking her oaths of coronation the Queen became contractually obliged to her subjects to execute her judgements in justice and mercy, upon taking their oaths/affirmations of office the governors, Governor General, and all and sundry MPs and senators also become contractually obliged. Moreover they are contractually obliged by the constitution to make good laws.

    For example, this is the past governor general’s oath:

    “I, Quentin Alice Louise Bryce, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law. So Help Me God!

    Oath of Office

    I, Quentin Alice Louise Bryce, do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So Help Me God![37]”

    Causing climate change is not by any measure just, merciful, right, or good – therefore this is a great breach of contract by the body of the crown’s officers – whether due to acts or omissions – and remedy should thus be able to be sought through the claim against the crown/commonwealth process.

  11. Julie Thomas
    July 23rd, 2014 at 06:40 | #11

    @Michael

    I didn’t mean to imply that these old men – and lets talk about them as a diagnostic category rather than to focus on the poor wee bugger who has so stupidly made himself a perfect example here – do not care for their offspring.

    I meant to say that the offspring don’t care for them and quite rationally care only for the material wealth they will inherit when the old bugger dies.

    This vulture like behaviour of the offspring after the well-off patriarch carks it can be quite ugly. I’m quite comfortable knowing that when my offspring visit and care for me, it isn’t because they want to be remembered in my will.

    I think the most likely way to understand the way a hierarchical, individualistic male cares for people is as ‘property’. The wife and the offspring are property and valued to the extent that they enhance the patriarchs status. There is little possibility of this type of personality having a meaningful and positive relationship with another human being; for this type of man, it is all about profit, competition and status.

    But they only do this because they grew up in a society that has allowed them to believe in their own natural superiority. I don’t see them as evil but the effects of their beliefs on others in our society is evil.

  12. Ikonoclast
    July 23rd, 2014 at 08:49 | #12

    @Julie Thomas

    I strongly agree with what I see as your key statement but I would amend it slightly by adding the words “wealth” and “comfort” as follows;

    “I think the most likely way to understand the way a hierarchical, individualistic male cares for people is as ‘property’. The wife and the offspring are property and valued to the extent that they enhance the patriarch’s wealth, comfort and status.”

    I am a male and any male who is honest with himself sees these tendencies in himself. For these tendencies are no more and no less than part of the biological programming of the male. It is the duty of the socialised male in our society to counter these inherent tendencies and rise above them. Earlier patriarchal societies legitimated these tendencies to a greater degree hence they played out with less hindrance. At the same time, these tendencies are not the only ones males have, so a different culture legitimating different (and better) tendencies can get a better result.

    My theory implies a certain degree of underlying biological nature and that s. dimorphism (phenotypic difference between males and females) extends to at least some behavioural traits. Not everyone might agree but I think it is the position most consistent with empirical evidence.

  13. Nevil Kingston-Brown
    July 23rd, 2014 at 10:24 | #13

    @Midrash
    Out of politeness, I will pretend not to understand why you have suddenly gone from vigourously defending Plimer’s arguments against Monbiot to not caring whether he was right or not.

    My attempt to link to some papers about the declining ratio of C13/C12 triggered some kind of anti-spambot defence on this blog. I’m sure you can google it yourself if you want proof. Let me summarise by saying that the C13/C12 decline is unprecedented in recent geological history, began in the mid 1800s when large scale fossil fuel burning began, and is exactly what would be predicted from CO2 release caused by burning of fossil fuels and plant matter (fossil fuels are fossilised plants, by and large. So the change is the same whether we are talking coal or tropical deforestation).
    Furthermore, it is well established by many sources that the ocean is acting as a net carbon dioxide sink. If mysterious underwater volcanoes were causing atmospheric CO2 to increase, the ocean would necessarily be acting as a net carbon dioxide source. It would have so much CO2 bubbling out of it that you could bottle it and sell it as carbonated mineral water.

  14. Midrash
    July 23rd, 2014 at 13:06 | #14

    @Julie Thomas
    I suppose your reference to my referring to you in the third person has to do with the fact that I hadn’t replied to you personally when I mentioned you in another reply. Well now you have saved me going back and finding your post which I stopped reading about a third of the way through because you were making assertions that were risibly wrong. Of course I don’t speak to anyone as I might write on a blog – even the aggressively dim if one has to hear them can be dealt with using irony that they may miss but others present grasp – so, intrinsically your diagnostic project is flawed. And it says something about you that you blunder ahead blind to that obvious enough fact.

    Having highly intelligent, amusing and forceful grandmother, mother and sisters – just for starters – it is hardly surprising that, contrary to your fantasy, a great deal of my successes in life have been in large part a consequence of my liking and getting on well with intelligent women. Believe it or not… after all l don’t really know whether there is a female human Julie Thomas or just an eccentrically programmed robot to stir a bit if argy-bargy on a leftist blog.

    I think you said something earlier about our primitive ancestors in relation to what modern capitalism now does to or requires of us. I wondered about the significance of the economic order as opposed to big centralised government plus modern industry and technology in and outside the countries where poverty is now rare and relative.

    The worst socio-political orders for the environment have been those of the Soviet Union and Communist China. By contrast it is typical that the Australian Conservation Foundation was founded by the owners of substantial private capital accumulated by family members like the Murdochs and Myers. In the US that phenomenon is all the more salient. I think Maslow would have something more useful to say about it than Marx.

  15. Midrash
  16. John Quiggin
    July 23rd, 2014 at 14:27 | #16

    @Midrash I think you’ve wasted enough of Julie’s time under this avatar and in your previous incarnations as Angus Cameron etc. It’s obvious to all of us that her diagnosis is spot-on. However, I agree with her that there’s nothing more to be gained by discussing your particular case. So, please nothing more on this.

    I’m happy to have further discussion of the general character of the bigoted old fools who typify the climate “sceptic” tribe in Australia, and what, if anything can be done to minimise their effect on public debate and policy. Midrash, as a subject rather than a participant in this inquiry, please stay out of it.

  17. Midrash
    July 23rd, 2014 at 14:38 | #17

    @John Quiggin
    Not much of a recovery from arrogant assertion that others lack basic or first year statistics which was replied to in the spirit that such ignorant abuse should be shown up with a light touch.

    However I was prompted to Google Great Pacific Climate Shift and then the same with Chow Test as I was a bit puzzled by your dismissiveness, even sounding as if you might not be familiar with it.

    It seems that a big shift was acknowledged as occurring in 1976-77 by the IPCC ‘s 4th Assessment Report so, whatever other diversionary quibbles you might like to toss in, the notion of a significant discontinuity in the late 70s was a proper subject for discussion and in need of explanation. As to the application of the Chow Test to it – more than once – no one seems to have denied its relevance although was lots of interesting stuff about the best way to model and to interpret the changes, one writer convincingly suggesting that the only model of increase in temperature that was ruled out was a continuous linear one. If I were to go into bat for sceptics on the science I think I wouldn’t take the changes between 1940 to 70s and 70s to late 90s as definitive evidence for any proposition except that there is a hell of a lot more about natural forces that modellers (IPCC or not) need to know.

    Right outside your field of expertise is your generalised assessment of “denialists”. I attended one meeting of the Lavoisier Society [?Group] to hear a youngish Queensland mathemstician give a fascinating paper on a number of the very long cycles of cosmic activity which affect our planet. Rather than merely assert that your picture of those of them, quite a number true, who were elderly and high status were nothing like your caricature I suggest that you challenge the Lavoisier Group (easily found on line) to set up a debate between you and one of their chsmpions on say “That the evidence that AGW is dangerous to mankind is compelling and that urgent action to reduce CO2 emissions from the burning of fossil fuels is required, including such action by Australia. That furthermore the balance of costs and benefits for Australia is decisively in favour of government policies which phase out rapidly the generation of electricity from the burning of fossil fuels.” I am sure a high quality television record could be made for wider distribution on YouTube or IView.

    Finally you accuse these hypothetical contemptible elderlies of supporting policies, or inaction, which will be “costly”. Now that would be very interesting if you were to justify that assessment and judgment. I remember a future Liberal MP with a Cambridge PhD in some area of science orating about 1980 in favour of solar power. Almost Jules Verne, but woul you expect someone to have made themselves or their countries rich by basing their investment outlays on Jules Verne? It’s not just opportunity cost about which you have promised to enlighten the reading public but the even more basic time value of money (even with a Nicholas Stern or High Court of Australia circa 1982 – did you know that? – discount rate of 1 per cent). We have tp pay, it seems, for unneeded poles and wires but do we really have to spend today’s and tomorrow’s dollars so power companies won’t go broke buying electricity from wind farms? Me, I’m happy to see Queensland power companies hurt by by private solar installations without subsidies all round. How comforting for Victorians who can’t depend on producing cars any longer that the Kennett government got in first and offloaded coal powered generators at what now seem ridiculously high prices. That’s part of creative destruction but can you make a case for destroying the value of existing power generators by government action to require the use of renewable energy. That stands as a miniature focused version of the wider question of how you justify your word “costly”.

  18. Midrash
    July 23rd, 2014 at 14:53 | #18

    @John Quiggin
    Thank you for getting one thing right. Julie Thomas or “Julie Thomas” on Midrash – or anyone is properly placed in the section of one of those formerly women’s mags, now mwtrosexual, which provides do it yourself personality assessment.

    Your gentle description “bigoted old fools” perhaps belongs elsewhere. I can’t think of a better way of achieving enlightenment all round than a panel debate where you take on Bill Kininmonth on the science and Des Moore – John Stone’s mate and former Deputy Secretary of the Treasury. How about it? It would irresistible and a sell-out like the occasion when David Karoly was going to wipe the floor with Kininmonth….

  19. Nevil Kingston-Brown
    July 23rd, 2014 at 16:04 | #19

    @Midrash
    Plimer’s argument was plainly fallacious and wrong on its face. He claimed that the USGS did not account for undersea volcanoes. When it was pointed out that it did in fact account for undersea volcanoes, he admitted this was true, but then claimed that it didn’t account for mysterious undiscovered undersea volcanoes. I bet it didn’t account for invisible pink unicorns either.

    The trend average for sea surface temperatures in the northern pacific from 1900 to 2006 caused by the pacific decadal oscillation, of which the 1976-7 oscillation subset is misleadingly called “the great pacific climate shift” by skeptic blogs, is a big fat 0. Over the same time period global atmospheric temperature climbed by 0.7 of a degree. Incidentally, the PDO reverted to a “cooling” phase in 2008, completely reversing the so called “great shift”, yet temperatures since then have continued to climb.

    The Lavoisier Society is Australia’s biggest collection of cranks, frauds and paid (by the coal industry) hacks. While I hadn’t come across them promoting astrological reasons for climate change before, it doesn’t surprise me in the least that they are doing so now, given that all their previous attempts to deny the laws of physics have failed. JQ has a post from 2001 dealing with them. It may be worth noting that they share a phone number and PO Box with the Bennelong society, which is dedicated to the extermination of Aboriginal culture, especially land rights on land desired by miners, and the HR Nicholls society, which is dedicated to the outlawing of unions and indefinite detention of union leaders.

  20. Michael
    July 23rd, 2014 at 16:08 | #20

    @Midrash
    Ahh the favourite forum for the denialist – the circus. Why not do some serious research and publish it? Is it laziness, lack of real knowledge and understanding or is it that you and your sad ilk think you are above the kind of hard and tedious work that produces real understanding?

  21. John Quiggin
    July 23rd, 2014 at 16:51 | #21

    @Midrash

    That was outside the rules I just laid down, and anything further along those lines will be deleted. But the idea that I would be frightened of Des Moore is too amusing not to share with the readers. Like you, he throws around big words, but doesn’t understand (or lies about) the elementary concept of statistical significance

    http://johnquiggin.com/2010/03/05/list-of-the-clueless

  22. Nevil Kingston-Brown
    July 23rd, 2014 at 16:51 | #22

    PS In a follow up to my note about the likelihood and desirability of the death by natural causes of most skeptics, I note that Ray Evans, founder of the Lavoisier Group, Bennelong Society, HR Nicholls society, The Galatians group (arguing that Christianity means that states should do nothing to help the poor, that Greens are dangerous athiests/pagans/satanists and that mining was fundamental to Christianity – I kid thee not, eg “Ray Evans is also acknowledged as the inspiration for a book published in 1995 by Bendigo academic Roger Sworder, entitled Mining, Metallurgy and the Meaning of Life: A Book of Stories Showing the Hidden Roots of the Great Debate over Mining and the Environment. The book argues that “of all the crafts and professions other than the priesthood, none has been more closely connected with the religious traditions of western peoples than mining and metallurgy” and that mining’s modern critics are engaged in “an active rejection of the spirit.”"), The Samuel Griffiths society (Mabo was unconstitutional), The Turks Head group (who knows), the Australian Council for Educational Standards (set up by Ray in his self-described role as “Santamaria’s tame Protestant” and dedicated to railing against homosexual teachers), etcetera, etcetera, has died.
    We should all honour such a pioneer astroturfer and be glad that fewer of his home-sewn poisonous toadstools will infest our political landscape in future.

  23. John Quiggin
    July 23rd, 2014 at 17:40 | #23

    A bit more on Ray Evans career in the astroturf business.

    http://johnquiggin.com/2004/05/30/what-would-de-tocqueville-think/

    I hadn’t heard of the Australian Council for Educational Standards, presumably named to maximize confusion with the the Australian Council for Educational Research on the model also used by Jennifer Marohasy with IPA front group the Australian Environment Foundation.

  24. Tim Macknay
    July 23rd, 2014 at 17:58 | #24

    I’m glad not all of Evans’ projects were as successful or durable as the Lavoisier Group and the HR Nicholls and Bennelong societies appear to have been. I’d always assumed his astroturfs existed purely to promote the commercial interests of the mining industry – I had no idea he was a general-purpose ideological nutjob!

  25. J-D
    July 23rd, 2014 at 19:42 | #25

    @ZM

    1. You referred to ‘British’ law. Both England and Scotland are parts of Britain. Referring to the law received in Australia as ‘British’ obscures the difference between the law of England and the law of Scotland, making it seem more as if Scotland is an extension or appendage of England — which it certainly isn’t for legal purposes. Neither the union of the crowns of England and Scotland in 1603 nor the parliamentary union of 1707 abolished the distinction between the law of England and the law of Scotland.

    2. Your repeating that we inherit the British constitution does not make it so. If you could produce any evidence for this assertion it might make a difference.

    In 1901 the Australian Senate and the Australian House of Representatives did each inherit the privileges and immunities of the UK House of Commons, because section 49 of the Australian Constitution specifically made it so, which it would not have had to do if the whole British constitution had been automatically covered by the reception of the law of England.

    3. For most of its history the House of Lords did not provide the people with a house of review — indeed, as its name plainly shows, it wasn’t for the people at all. Designating the Lords as a ‘house of review’ is a corollary of the primacy of the House of Commons, which is by no means an original feature of the British Constitution, but rather a late development. The idea of the Lords as a ‘house of review’ is an after-the-fact justification for its continued existence when its original roles were almost entirely lost.

    4. Under the law of negligence, people can be held responsible for the effects of their actions on other people if they are the kinds of effects that reasonable people could have foreseen. (By contrast, people can’t generally be held legally responsible for things that nobody could have foreseen.) More specifically, if the potential effects of your actions could be harmful to other people, you generally have a legal duty to take reasonable care to avoid doing that harm. So in terms of general principle it is definitely possible to sue the Commonwealth for breach of its legal duty. Apparently there are broadly similar principles in Dutch law and they’re part of the basis for the lawsuit in the Netherlands. The chances of success for such a case — in the Netherlands or in Australia — are a separate issue.

    But there’s absolutely no possible basis in Australian law for a lawsuit based on allegations that bad laws have been made or that good ones haven’t. In order to show in an Australian court case that something is part of Australian law, you would have to show either that it is part of Australian statute law or that it is part of Australian common law. Those are the only two possibilities. The way you show a basis in Australian statute law is to point to specific Acts of Parliament. There are no Acts of Parliament saying that Parliament must make good laws or that it may not make bad laws. The way you show a basis in Australian common law is to point to past court judgements. There are no past court judgements saying that Parliament has a duty to make good laws or a duty not to make bad ones. So that dog won’t hunt.

    5. The Lord High Chancellor does not now have and never did have the power to override laws made by Parliament for being bad laws. Not even the monarch has that power. I refer you to sections 1 and 2 of the 1688 Bill of Rights:
    ‘That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.’
    ‘That the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal.’

  26. ZM
    July 23rd, 2014 at 21:05 | #26

    1. I am sorry, I did not mean to suggest by my poor phrasing that we inherited Scottish law, I am very sorry if from my awkward words you were led to assume we inherited Scottish law.

    2. Examples that Australia inherits English unwritten constitution are : we are always appointed a Prime Minister, the ceremony of the black rod etc
    if the settlers did not carry the inherited English constitution and laws with them as they settled here then how did they set up settlement legally – they would have had no law to do so? If they did not carry English laws with them when they settled, then the settlement would have been illegal! If you like you could take that argument that settlement was illegal to court but if you won then we would all become displaced persons in many territories under the Indigenous laws.

    3. The kings councillors separated into upper and lower chambers in 1341. I will look into what the role of the upper chamber was in those days and when and why it became the house of review, but I am too busy to do so now. Anyway, unless you are arguing that that separation was itself unconstitutional, which I would not at this stage, then constitutionally the crown is meant to be advised by two houses, and the subjects governed by laws of two houses and the crown, or the crown’s laws made by its reserve powers.

    4. Yes! I am glad you agree with me it is possible to sue the commonwealth for breach of duty – as I said it is a process called claim against the crown/commonwealth, based on the petition of right. I don’t know why you argue since you agree?
    The constitution specifically requires the government to be ‘good’ – obviously since the government is tasked with making laws, this means they are obligated to make good laws. And I already told you the laws must be just etc as well. The words are quite clearly written or said under oath. I honestly do not know why you would want to argue that our parliament has no duty to make good laws for us to live by ? You’re setting a very bad example.

    5. The Lord High Chancellor’s position goes back before 1688. He was keeper of the King’s conscience, head of the chancery law division, and the equivalent of the Chief Justice of the high court in the English system. Yes – the Chief Justice of the high court can overturn unconstitutional parliamentary law making – this is why there is a judiciary in our system after all!

  27. Julie Thomas
    July 24th, 2014 at 07:03 | #27

    @Ikonoclast

    Both men and women feel the desire to own other people – and a lot of unnecessary stuff. Buddhism explains that the reduction of desire of all kinds is the way to achieve individual enlightenment and the perfect society that we all want.

    It isn’t clear how much of the differences in male and female behaviour is socialization and how much is biologically hard wired. I think to have a balanced and functional basis for understanding this problem, we need more women to look at the evidence and see things from their perspective.

    From my perspective, as a child I always identified as an honorary male when read books about heroes and my father was very unusual in being not sexist and very supportive of women’s liberation. There is some suggestion that aspie girls brains are more like male brains.

    But whatever our potentials, genetically or socially, the stand out feature of humanity – the only significant thing that makes us different from the other animals – is the way we build cultures and a different culture everywhere we go in response to the environment and the chance events that occur in a probabilistic universe.

    Broadly speaking, it seems to me that in hunter-gatherer societies – the most functional of them – women were independent economically and socially through allo-parenting that the older women and possibly the non-alpha males provided. Women could provide for themselves.

    But we seem to have made a different social contract when we transitioned to agriculture and women traded their economic independence in return for male protection and provisioning.

    This arrangement works very well in some contexts but I think it relies just as much as the hunter-gatherers did on raising children the right way – so they are aware of the social rules – and we are not doing that in this society.

    There are so many high functioning, high IQ “aspies” like me that I come across in the other poor people, who have ‘failed’ to make the right choices because they were not socialized properly; because their families did not have the resources to do this.

    But the interesting thing to consider is that now women can do the two things that have always limited their ability to be involved in running the world.

    First, because of the contraceptive pill we can choose whether to be altruistic and give up our freedom to reproduce the species.

    And through the internet we can now speak to men as equals without having to worry about being shut down by the higher level of aggression that men are capable of. Sarah Blaffer Hrdy in her big Theory of Everything books, how this thing -male aggression and their tendency to form alliances with each other – seems to be the thing that has meant that patriarchies are the most common form of social organization.

    It seems to me that these two ‘perturbations’ could kick the system into a state in which an organization that does support equality can emerge. But you know that I am an optimist.

  28. Julie Thomas
    July 24th, 2014 at 07:09 | #28

    @John Quiggin

    Thanks JQ I am beginning to see how easily trolled i am by people like Midrash. :) I think I can ignore him from now on.

  29. Collin Street
    July 24th, 2014 at 07:56 | #29

    There are no Acts of Parliament saying that Parliament must make good laws or that it may not make bad laws.

    “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:”

    Have you even read the constitution?

  30. John Quiggin
    July 24th, 2014 at 08:34 | #30

    It’s striking how crazy old high-status men can get before anyone calls them on it. Peter Walsh, Nick Minchin, Don Aitkin, Dick Warburton and many others have put forward the most absurd conspiracy theories on climate change, but they still get taken seriously, appointed to senior positions and so on.

    About the only female equivalent I can think of is Germaine Greer. But she has long since established herself as a professional provocateuse, always coming up with something new and outrageous to say. I can’t imagine anyone appointing her to a position of serious responsibility.

  31. John Quiggin
    July 24th, 2014 at 08:36 | #31

    @Julie Thomas

    I think we are all easily trolled for a while. The first thing to recognise is that you can’t change a troll. Occasionally, the cumulative impact will make them wake up to themselves, but there’s no easy way to make this happen.

  32. Michael
    July 24th, 2014 at 08:52 | #32

    @John Quiggin
    But these crazy old high-status men which your refer to honestly believe themselves to be the victims – why won’t people listen to them and their all important uninformed doubts?

  33. Troy Prideaux
    July 24th, 2014 at 09:11 | #33

    @Michael
    Alas, the Abbott gov enthusiastically offers them a set of ears… oh, and the odd (hmmm… actually, not so odd) key appointment.

  34. Tim Macknay
    July 24th, 2014 at 11:49 | #34

    @Collin Street

    “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth”

    Collin, what do you think those words mean? The following statement by the High Court Justice Windeyer J give some idea as to how their meaning is legally understood:

    “So far as the Commonwealth is concerned, it is now for Parliament alone to judge whether a measure in respect of any topic on which it has power to legislate is in fact for the peace, order and good government of the Commonwealth”.

    In other words, the question of whether a law is “good” or “bad” is one that must be decided through political, rather than judicial, means.

  35. ZM
    July 24th, 2014 at 13:24 | #35

    Tim Macknay, could you give the case law reference for that statement? I would be interested to read the context and full ruling.

  36. Tim Macknay
    July 24th, 2014 at 14:31 | #36

    @ZM
    Of course – sorry. The relevant case was R v Foster; ex Parte Easter & Australian Steamship Co Ltd (1959) 103 CLR 256. Windeyer J’s specific words are at page 306 of the CLR Report, or at paragraph 4 of Windeyer J’s reasons in the Austlii version (which is available online). The context of the discussion in the case was whether a particular Commonwealth law had extraterritorial jurisdiction (i.e, whether it could be applied outside Australian territory). However, the case is a frequently cited authority for the proposition, which I think it’s fair to say is well established in Australian law, that the words “peace, order and governent” in the Commonwealth and various State Constitutions do not themselves provide any meaningful scope for the Courts to overturn legislation.

    It will certainly be interesting to follow the progress of the Dutch case.

    My own sense is that if a case of that kind were to be attempted in Australia, there would be immense obstacles to its probability of succeeding, at least at this point in time. The reluctance of Australian courts to intervene in broader questions of public policy is probably not the greatest of them. If I believed there was a such case to be made in Australia that had even a moderate chance of success, I would be personally adocating for it to be pursued.

    IMHO, the better scope for climate change related litigation in Australia is to pursue particular planning decisions, environmental development approvals, and other administrative actions, on the basis that their failure to properly consider the relevant climate change implications fell short of statutory requirements. This kind of litigation is accumulating a growing body of case law. There is a good discussion of an important recent Australian case here.

  37. Tim Macknay
    July 24th, 2014 at 14:35 | #37

    ZM, my response got caught in automod. Here it is again, sans link:

    Of course – sorry. The relevant case was R v Foster; ex Parte Easter & Australian Steamship Co Ltd (1959) 103 CLR 256. Windeyer J’s specific words are at page 306 of the CLR Report, or at paragraph 4 of Windeyer J’s reasons in the Austlii version (which is available online). The context of the discussion in the case was whether a particular Commonwealth law had extraterritorial jurisdiction (i.e, whether it could be applied outside Australian territory). However, the case is a frequently cited authority for the proposition, which I think it’s fair to say is well established in Australian law, that the words “peace, order and governent” in the Commonwealth and various State Constitutions do not themselves provide any meaningful scope for the Courts to overturn legislation.

    It will certainly be interesting to follow the progress of the Dutch case.

    My own sense is that if a case of that kind were to be attempted in Australia, there would be immense obstacles to its probability of succeeding, at least at this point in time. The reluctance of Australian courts to intervene in broader questions of public policy is probably not the greatest of them. If I believed there was a such case to be made in Australia that had even a moderate chance of success, I would be personally adocating for it to be pursued.

    IMHO, the better scope for climate change related litigation in Australia is to pursue particular planning decisions, environmental development approvals, and other administrative actions, on the basis that their failure to properly consider the relevant climate change implications fell short of statutory requirements. This kind of litigation is accumulating a growing body of case law. A good example is the influential ‘Anvil Hill’ case (Gray v Minister for Planning [2006] NSWLEC 720).

  38. Tim Macknay
    July 24th, 2014 at 14:36 | #38

    There are several typo’s, for which I apologise.

  39. ZM
    July 24th, 2014 at 17:47 | #39

    Thank you!

  40. J-D
    July 24th, 2014 at 20:04 | #40

    @ZM

    2. Arthur Phillip had no authority under Aboriginal law to establish a settlement in Australia, but he did have authority granted to him by the instructions and commission given to him in the name of the King and the Privy Council. Those instructions didn’t tell him to set up British constitutional structures in Australia (indeed, they granted him legal powers that nobody had in Britain). For example, they didn’t say anything about appointing a Prime Minister or instituting the ceremony of the Black Rod, and Australia managed for decades after settlement without any such thing.

    3. I’m not arguing that it’s unconstitutional to have a bicameral parliament. Obviously it’s constitutional to have a bicameral parliament where you have a constitution that provides for a bicameral parliament and it’s constitutional to have a unicameral parliament where you have a constitution that provides for a unicameral parliament. What constitutions have to say on this subject can be changed. Queensland is not the only place in the world to have switched from bicameralism to unicameralism. No fundamental right of the people is violated by doing so.

    4. I’ve never heard of a lawsuit against the Commonwealth being called a ‘petition of right’, and I’m not just going to take your word for it.

    Everybody should do the right thing all the time. But this is not always a legal duty that a court can or will attempt to enforce. I see Tim Macknay has made a valiant effort to set you (and Collin Street) straight on this point.

    5. The High Court (but not just the Chief Justice unilaterally) has the power to strike down Commonwealth legislation for being in violation of the Constitution (but not just for being a bad law). The Lord High Chancellor has no such power.

  41. ZM
    July 25th, 2014 at 07:33 | #41

    Tim Mackay, I think there is some scope for a complaint under planning law in Victoria, but the law has not been followed here at all since 1987 – all development since then was specifically required to be environmentally sustainable and balance the needs of present and future generations. I don’t know how courts rule about laws that no one follows at all in practice.

    Also, I notice the parliament often changes am act if someone takes them to court for not following the existing act. So I think a constitutional case regarding the obligations of the crown and parliament et al would be best to establish present lawmakers are obliged to law make for an inhabitable future Australia for everyone’s descendants.

    J D, Thank you for your comments – I will keep researching the matter when I have a bit of spare time. This is my final comment on the matter for now, I will update you another time via the sandpit when my research is progressed further.

    2. I did not state Phillip had authority from indigenous people to settle in Australia – obviously that is untrue – I said the opposite. I said that the settlement in Australia was begun under English laws therefore English constitutional laws operated to give authority to Phillip to settle – thus English constitution extended to Australia from time of settlement. If it did not – the settlement would have been illegal because the English rule wouldn’t apply in Australia so settlement would be illegal theft of Indigenous land.

    3. If our State parliament was reduced by a dominant party to not having an upper house I think the crown would breach its obligation if taking proper advice before making laws for me to live under. People always complain that the laws if QLD are particularly ill advised – this is likely because the crown is only advised by one lower house. Plus the upper house has the noblesse oblige obligations to the public, the lower house does not – so how do QLDers get their rightful noblesse oblige now?

    4. You can look up petition of right/bill of grace yourself. There is a whole digitized book on the subject. Robert Shenton French’s book on constitutional laws mentions it also.

    5. The Lord High Chancellor’s office has the responsibilities I mentioned. Before the courts were amalgamated he had his own law and court system too – so when some poor person was treated badly by the common law courts they could go to the chancellors court to get heard more fairly and with mercy and overturn the lower common law courts verdict.

  42. J-D
    July 25th, 2014 at 18:31 | #42

    @ZM

    2. Phillip was authorised by the British government to establish the settlement of New South Wales, but that neither required him nor authorised him to establish in New South Wales copies of British constitutional structures, and indeed he made no attempt to do so.

    3. There is no law that says anything about what sort of advice Parliament has to take before making a law; indeed, there is no law that says Parliament has to take any advice at all before making a law. I think it would be a good thing if Parliament made no ill-advised laws; but it’s not illegal or unconstitutional for Parliament to make ill-advised laws, and never has been.

    4. I can indeed look up ‘petition of right’ for myself, and when I do I find a series of references to one specific historical document, not to a generic term for any lawsuit against the state.

    5. I do not dispute that the Court of Chancery had the power (at least some of the time) to overturn judgements of other courts. I deny that either the Court of Chancery or the Lord High Chancellor alone had the power to invalidate laws made by Parliament, whether for unconstitutionality or on any other grounds.

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