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.

192 thoughts on “Condemned by history

  1. 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!

  2. @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.

  3. 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?

  4. 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.

  5. @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.

  6. @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?

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

  8. @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.

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

  10. @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.

  11. 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).

  12. @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.

  13. 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.

  14. @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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