A thought experiment

Suppose that the Constitution had made judges subject to the same eligibility requirements as MPs. How would the High Court have ruled in the cases that came before it?

43 thoughts on “A thought experiment

  1. @Smith

    “It’s all you deserve.”

    Wow that’s so awesome. Did you find that riposte in the dark corners of the internet or the dark corners of your mind?

  2. Smith :
    @Moz of Yarramulla
    Gough Whitlam made her, legally and officially, Queen of Australia.
    And, besides, she doesn’t just live in England. She has a couple of palaces/castles in Scotland.

    who cares where they live.

    as long as they reign not rule and are taking up the space our very own “wanna-be-trumputinkims would lurve to own.

    long live tha “queens chain” (or kings,in the fullness of time)

    i reckon they are good value for money and hold the breach on selling the beach.

    and on topic:

    hypothetical and what if?

    in any case,

    having the top judges off the bench at seventy has my thumbs up.

    Oz has a deep pool of judgey experience to back up the ones currently seated which is a “good thing”

    unlike the US population who get stuck with some doozys who sit for life and seem to nevah-evah die.

  3. Ikonoklast: do you think Mark Carney, a Canadian, should have been disqualified from becoming Governor of the Bank of England? By any measure, it’s far more powerful position from that of backbench MP.

  4. So what does this indicate what was going on in the draftees minds? That’s it’s ok if you have done your time? It seems to me they were pretty lenient on criminals and that this leniency should be extended to national allegiances.

    The passive voice here masks a huge disconnect; the agent of “should be extended” can’t be “the people who framed the constitution”, because plainly they considered the matter and plainly they thought otherwise. You might argue that they were wrong, but arguments-by-similarity-and-metaphor don’t actually get you there; similarity isn’t identity.

    So the people who “should do the extending” has to be “us”, and in that case all the prelude is… not stuff we have to be bound by. Constitutional amendments are what we want, what dead people think is ultimately irrelevant.

    [ultimately, your argument is “We should do A in situation B because people like us did A in a situation like B”; this isn’t compelling, because the two “likes” allow gaps.]

  5. Ikonoclast :
    (1) The position is not racist.

    A general rule of thumb is that any time you have to explicitly say something like that, it’s because your claim is dubious. It doesn’t matter whether you’re saying “the cake I made is delicious” or “my child is very intelligent”, just saying it creates grounds for the listener to think “hmm, I wonder if that’s true”. You’re much better off letting people decide for themselves. In this case you can perhaps console yourself with the knowledge that George Brandis has your back.

    On pragmatic grounds I favour the Aotearoa approach of giving permanent residents the vote and allowing any adult citizen to stand for parliament. I’m dubious about the latter restrictions though, I think the voters should be the ones who decide. If they want to elect a donkey, or a fictional cat, that’s up to them.

    What should be banned is misrepresentation. I favour a fairly broad ability to sue to fraud and have MPs disqualified and ejected f convicted. It would need to be balanced against the use to nuisance suits, but I think that discussion is worth having.

    The only sympathy I have for your position is the one I mentioned above: at least some seats should be restricted to real Australians. I’d say “that’s the least we can do” but that would be a blatant falsehood, we currently do less than that.

  6. @may

    “having the top judges off the bench at seventy has my thumbs up.”

    Compulsory retirement at 70 was reasonable when it was put in the Constitution in 1977. But 70 then is like 80 now. Many judges who leave at 70 go on to have another 10 years of distinguished legal career, including as judges in other countries.

  7. @Moz of Yarramulla

    “A general rule of thumb is that any time you have to explicitly say something like that, it’s because your claim is dubious.”

    In context, and oldie but a goodie is “I’m not racist. Some of my best friend are […].”

  8. @Moz of Yarramulla

    The thing about rules of thumb is that they are only a rough guide and they are often wrong.

    The rule I advocate is not racist. I have shown how it is not racist in that it does not discriminate against people on the basis of skin color. It discriminates against people on the basis of place of birth (and therefore on conferred primary nationality).

    Thus the rule I advocate is nationalist, not racist. If you were to argue against its nationalist basis, not its incorrectly supposed racist basis, then you would be on more supportable grounds. If my position is to be argued against on the evidence, I ought to be argued against for the nationalist basis of my position. I can be criticised as a nationalist chauvinist but not as a racist chauvinist on this position.

    In practice, we are all or mostly nationalists, of greater or lesser degrees. We benefit from being citizens of our nation state (Australia in this case) and we all support at least some policies and institutions which maintain this nation state and which maintain our rights and privileges as citizens of this nation state. To pretend otherwise is mere moral vanity and indeed rank hypocrisy.

    To speak further on these matters, Noel Pearson once said, IIRC, “everybody is a racist” or words to that effect. To put his statement in context, he recognized degrees of racism, the battle everyone must fight against it internally as well as externally, and the battle to not let racism be institutionalized or legalized.

    Again, those who use the racist epithet too freely, without due care, and pretend to absolutely pure non-racism themselves are self-deluded and suffering from excess moral vanity.

  9. @Ikonoclast

    I pointed out that you’re flaunting your insecurities. Your suggestions are at best ahistorical, and require the sort of suspension of disbelief Barnaby Joyce is asking for (he only lies to his wife and daughters, it’s only his Bible-sworn oaths to them that he’ll break).

    I believe I’ve posted here before describing how I think democracy should be implemented, and I disagree with you both philosophically and practically. I think further alienating immigrants is not a recipe for civil cohesion, and restricting the franchise is exactly the opposite of what we should be doing. I wish we had a universal franchise, deliberative democracy and I love the Hare-Clarke system.

  10. @Moz of Yarramulla

    Not so much insecurities as a special kind of nativism to say that only the Australian-born should be eligible to be elected to parliament because only they can be trusted to be loyal Australians.

    Not even Pauline Hanson, the nativist’s nativist, says that.

  11. @Smith

    Even having an immigration policy, of any kind, is a level of nativism. Thus I hope, to be consistent, you are an advocate of completely open borders. Otherwise, you are simply being hypocritical. If you are an advocate of completely open borders I would refer to you the likely realpolitik and real geopolitical effects. These effects will not be beneficial or sustainable for any state of the population size of Australia.

    In the ideal socialist world, nation states would wither away. The global nation state system (and international system) shows no serious signs of doing that yet. Unilateral non-nationalism under current conditions would be economic, strategic and ecological suicide, at least for small to medium states. Large states might be special cases. This is the Realpolitik of it.

    Under conditions of capitalism nation states cannot wither away. All we can do, as a small-medium nation, is attempt to become more socialist at a national level and as accommodating to immigrants and refugees as we can be given our adjustment and ecological limits BUT no more accommodating than that. I advocate a dose of realism in these matters.

  12. Smith :
    @may
    “having the top judges off the bench at seventy has my thumbs up.”
    Compulsory retirement at 70 was reasonable when it was put in the Constitution in 1977. But 70 then is like 80 now. Many judges who leave at 70 go on to have another 10 years of distinguished legal career, including as judges in other countries.

    that’s OK.

    the longer they live the deeper the pool of ex high court judge experience available to the current holders.

  13. This is the same High Court that passed the Wik Decision, throwing most of Australia open to Native Title claim, but carved out a special exemption.

    A special exemption just happened to encompass the homes of High Court Judges and meant those homes could not be subject to Native Title Claim.

    ‘Twould be that High Court of which ye speak?

  14. @Ikonoclast
    From the penultimate para of your BBC Magazine link: “The claim that most of us suffer from various forms of implicit bias is all of a piece with the explosion of research into the irrationality of our reasoning, decisions and beliefs. We are not the cogent, systematic and logical creatures we might like to assume.”

    True that, eg:

    rt.com/uk/418148-cheddar-man-twitter-reaction/
    abc.net.au/news/2018-02-08/cheddar-man-first-britons-had-dark-to-black-skin-dna-research/9406636
    wikipedia.org/wiki/Homo_economicus#Perspectives
    sciencemag.org/news/2017/01/your-choice-life-partner-no-accident

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