Hard cases make bad laws. Bad judges make them worse

Another day, another disastrous and anti-democratic decision from the High Court. The Court has already disqualified a large proportion (perhaps a majority) of Australians from standing for Parliament. It has now excluded a huge group from any participation in our democracy, beyond the bare right to vote.

The case in question concerned a public servant, employed in the Immigration Department, who criticised the department under a pseudonym (which proved inadequate to conceal her identity). This was obviously problematic: anyone who directly criticises the policies they are paid to implement creates concern about their ability to do their job properly.

So, the Court could easily have found against the employee in a narrowly drawn judgement that simply applied standard principles of employment. Instead, as in the s44 cases, they brought down a judgement with massive implications. The decision supports a code of conduct that, on its face, prohibits public servants from making any political comment, even on topics unrelated to their job. Given past behavior, it seems highly likely that the Court will take the broadest possible interpretation of this decision.

The only remedy in this case is for the Parliament to restrict the application of the code to allow public servants the same rights as other Australians, to discuss and debate public issues, except where it impinges on their capacity to do their jobs. That’s unlikely, but at least more feasible than a referendum to fix s44.

But if I could have the entire Court sacked and replaced by seven Australians selected by lot, I would certainly do so.

41 thoughts on “Hard cases make bad laws. Bad judges make them worse

  1. John, without cavilling about the outcome for the law … the Court couldn’t have kicked this into the long grass by just applying employment law principles. Because Banerji founded this round of the case as a workers compensation claim for psychological injury, consequent on her treatment. (From memory she had lost the earlier round of litigation on employment law principles starting in 2013, and that went nowhere near the High Court).

    In the round of litigation just finished, her lawyers frontally attacked the reasonableness of the employer action, and to do that they had to impugn the APS Act including its broadly worded ‘apolitical’ values. Which they did by mounting an implied constitutional right claim, something of a bulldozer which the Court could not avoid. The aim wasn’t to knock over the whole APS speech code, but to try to carve out space for ‘anonymous’ speech.

    It’s rather a case of ‘Bad Cases Make Hard Law’.
    Banerji wasn’t a pin-up example for a test case. And seven nil, they’ve made a hard law. (I thought at least some of the judges would’ve found her protected by a carve out for using anonymous twitter handles, but they thought that (a) an impervious category and (b) a difficult one in practice, eg could a senior public servant go on TV pixellated).

  2. (Or to put it another way, you are quite right the ball is in the court of the political branches to reform this area of law, since they created it. In a way the inverse of the section 44 debacle where an old, explicit constitutional rule was doubled down upon in a dumb way by the Court, leaving no room for policy compromise)

  3. At least this one can be resolved simply by an act of parliament, rather than needing to change the constitution. Although hopefully now the constitution is anti-semitic (and that’s now bad in the eyes of the Liberal Party) we might see movement there.
    “Conservatives hate red tape – unless it’s to regulate the behaviour of their enemies | Richard Denniss” is also worth reading, and bears directly on this issue: https://www.theguardian.com/commentisfree/2019/aug/08/conservatives-hate-red-tape-unless-its-to-regulate-the-behaviour-of-their-enemies
    Which, given that it involves criticism of the obligation ScuMo has to torment the helpless, means it’s probably a non-starter. The people he cares about are mostly protected by their own privilege, or at least by having powerful friends.

  4. Look on the bright side — at least those of us with a grim sense of humour can enjoy comparing and contrasting the (presumptive) right-wing silence over to this case to the hyperventilation over Israel Folau. But then again, as Greg Jericho once wrote, you can’t spend all your time pretending you care about free speech, I suppose

  5. (… In a way the inverse of the section 44 debacle where an old, explicit constitutional rule was doubled down upon in a dumb way by the Court, leaving no room for policy compromise)

    At core surely a compromised duopoly is nothing but compromise. This sneaky liblab duopoly won’t ever reform a law it can already work to its own exclusive advantage.

  6. The minority judgement of Justice Edelman suggests plainly that the Court would have given a different decision if Australia had the same kind of constitutional guarantee of free speech as the US has (by mentioning how restrictions like the ones we have in Australia would be struck down ‘in a hearbeat’ in the US). On this point, the majority judgement of Chief Justice Kiefel and Justices Bell, Keane, and Nettle is more oblique.They say it’s ‘unfortunate’ that the Administrative Appeals Tribunal ‘erroneously’ treated the case as if there were, in Australia, a personal right to freedom of speech as constitutionally protected in the US or to freedom of expression as protected by statute in Canada. That seems to me like a hint, if not more, that if Australia had such a protection either constitutional or statutory, then the AAT would (probably) have been right to decide as they did and that (presumably) the High Court would have upheld their decision instead of overturning it.

    It’s not the fault of the High Court judges that Australia doesn’t have a constitutional protection of the US type or a statutory protection of the Canadian type.

    It’s true that the High Court could still have made a different decision. The lawyers for the applicant-respondent made a legal argument which they thought the High Court could accept, and the High Court could have accepted it. Still, it seems to me that, in the face of the explicit provision of the relevant statute (‘An APS employee must at all times behave in a way that upholds … the … good reputation of the APS’), it would have been hard for the High Court to decide the case differently: at least, it would have been harder for them than it would have been to make different decisions in the section 44 cases.

    In this case, I think, the wording of the statute is a bigger problem than the approach of the High Court judges. If ‘you must always uphold our good reputation’ means anything at all, it must mean ‘you must never say anything bad about us’. Forbidding employees (of any employer) to criticise their employer can never be a good idea.

  7. As far as I can see, it would have been easy to rule against Banerjee on the basis of the statute, since she was attacking her own department, and thereby damaging the reputation of the APS, while still ruling (or leaving open the possibility) that the non-statutory code of conduct requirement for public servants to be apolitical in general violated the implied constitutional right to participate in a democratic form of government.

  8. J-D

    Freedom of expression is protected by Section 2 of the Canadian Charter of Rights and Freedoms, which is part of their constitution. Several chief justices of Australia have spoken about the intellectual isolation that the lack of a charter of rights imposes on the high court.

  9. As far as I can see, it would have been easy to rule against Banerjee on the basis of the statute, since she was attacking her own department, and thereby damaging the reputation of the APS, while still ruling (or leaving open the possibility) that the non-statutory code of conduct requirement for public servants to be apolitical in general violated the implied constitutional right to participate in a democratic form of government.

    The requirement for the Australian Public Service to be apolitical is a statutory requirement (although statutory provisions as well as non-statutory provisions can be ruled invalid if found to be inconsistent with the Constitution).

    I agree that the Court could have ruled differently, and that a different ruling would have been preferable. I was making the comparative point that as between this case and the section 44 cases, the Court was less constrained by the text in the section 44 cases than it was in this case (and therefore bears a larger share of the responsibility for the outcome of the section 44 cases).

    Alan, I did not realise that the Canadian Charter of Rights and Freedoms was actually constitutional. Thanks for straightening me out on that point. (It’s still true that a statutory protection for freedom of speech, or freedom of expression, while less than a constitutional protection, would be more than we have now.)

  10. colours to the mast here.

    when one enters a race or competition the first thing is to find out if one is eligible.
    when the position sought is as important as being a representative in any parliament,state or federal,
    how can one be trusted to do the job when the first condition is not met.

    anyone standing,knowing their parents are not native born and not doing everything necessary to at least find out if they fit the picture,can’t cry ignorance or discrimination.

    dual citizenship and allegiance to the country, implies the question “which country”.

    Australia at federation in this respect, is not much different from now.
    lots of people with overseas parents.

    one can’t wear two pairs of shoes, one can’t sit on two chairs and in parliament one can’t have dual allegiance.

  11. Yes May

    But the s44 qualification is not applied to the Queen or the Queens representative or State MPs or High Court judges or generals of our Army, admirals of our Navy or Air Force chiefs….and so it goes.

    It’s a meaningless clause in our constitution.

  12. Even if the rules in section 44 were good rules — which they aren’t — the way the High Court has ruled has made it extremely difficult for many people to find out whether they are eligible or not. Several of the people who have been ruled ineligible by the High Court thought, before those rulings, that they _had_ done everything necessary to confirm their eligibility.

  13. May,

    State MPs are not subject to the same criteria yet they, like their federal counterparts, share the same authority as Ministers of the Crown.

  14. The issue is made more farcical when federal MPs are required, by the constitution, to swear an oath of allegiance to “Her Majesty Queen Victoria, Her heirs and successors”

  15. But the one thing not at issue in argument in the High Court was whether the things Banerji tweeted were in breach of the APS Values and APS Code of Conduct. All the judgments point out that this was not in issue.
    What actions are in breach of the Values and Code? The High Court has offered no view and given no conclusion. It has said only that, if otherwise in breach of the Values and Code, tweeting anonymously is not outside the Values and Code; and that the Values and Code are not inconsistent with the Constitutionally implied freedom of political communication.
    The High Court has not held that all political comment is a breach of the Values and Code. It hasn’t found that Banerji’s tweets, intemperate and extreme as they were, were a breach of the Values and Code. Its starting point was that it was conceded that what Banerji did breached the Values and Code, unless anonymity meant the Values and Code couldn’t apply, or unless the implied freedom meant the Values and Code were (generally) invalid so far as they affect political comment.
    I do think the High Court missed an important point. It held the Values and Code valid as general prohibitions on partisanship carried so far as to make the public servant, and the public service, other than apolitical in carrying out its duties.
    But the Values and Code no longer really require the public servant, and the public service, to be apolitical. Although this is, nominally, the requirement, along with a number of other requirements – honesty, and not lying, for instance – the only sanction is in the hands of the political apparatchiks who now head every agency and department.
    So, in practice, there are now several instances of public servants being attacked and threatened for obeying the Values and Code: accurately stating agency practice, or referring enquirers to publicly available information, or discharging their legal obligations, when this is inconsistent with slavish endorsement of the current rhetoric of the government. And there are corresponding instances of public servants breaking the Code and acting contrary to the Values where this is perceived as desired by the government, and being rewarded for having done so.
    For this reason, the High Court could (at a stretch) have decided that the Values and Code don’t have a legitimate purpose, because their enforcement is designed to be partial and political in practice and so to contradict their stated content and to threaten an apolitical and disinterested public service. This would have been pretty extreme of the Court.
    But one thing the High Court definitely did not do was hold that public servants were a large group to be wholly excluded ‘from any participation in our democracy, beyond the bare right to vote’. That Peter Dutton has already sought publicly to imply that this is what the High Court did, and that it is now a public servant’s duty to regard the Code and Values as a matter of public endorsement of the current political line of the government, is only to be expected from him. But it should not be thought consistent with the law or consistent with the views of the seven justices of the High Court who ruled in this case.

  16. Chrishod would you provide examples of… “corresponding instances of public servants breaking the Code and acting contrary to the Values where this is perceived as desired by the government, and being rewarded for having done so.”

    As the judgement unanimous the justices may not agree that “the High Court missed an important point.” 

    And a correction I’d bet on: [ a public servant advised ] Peter Dutton has already sought publicly to imply that this is what the High Court did” which, if I were a public servant would not reheat my chilled “political” speech.

  17. The issue is made more farcical when federal MPs are required, by the constitution, to swear an oath of allegiance to “Her Majesty Queen Victoria, Her heirs and successors”

    Did you miss the note? It says:

    (NOTE – The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

    Therefore the requiement now is to swear an oath of allegiance (or make an affirmation of allegiance: that equally fulfils the legal requirement) to Her Majesty Queen Elizabeth, Her heirs and successors according to law.

    Incidentally, a point which people often miss in many legal contexts is that in those contexts the word ‘heir’ does not mean ‘the person who is going to inherit’, it means ‘the person who does inherit’. There is a legal principle that nobody is the heir of a living person. For example, in a legal context, the expression ‘heir of Queen Elizabeth’ does not now refer to any specific individual, not even Prince Charles (he is, technically, the heir apparent but not the heir). Technically, a legal oath or affirmation which binds somebody to allegiance to the Queen and her heirs (according to law) does not bind anybody now to support the claim of Prince Charles to inherit: it will only bind specifically to Prince Charles if and when he actually does inherit according to law. If it should happen that somebody else legally inherits (for example, if Prince Charles should predecease; or if he should convert to Catholicism and therefore become ineligible for the succession; or if the law of succession should be changed in some way), then the oath or affirmation would bind to that person instead.

  18. ChrisHod If I follow you correctly, you are saying that political action by public servants will be punished only if the government doesn’t like the action in question. Obviously, that’s the usual case when employers try to control the speech of their employees. I agree, but I’m not sure how to interpret the next claim

    “But one thing the High Court definitely did not do was hold that public servants were a large group to be wholly excluded ‘from any participation in our democracy, beyond the bare right to vote’. ”

    Here;s the final para of the High Court’s release

    “On appeal, the High Court unanimously held that the impugned provisions had a purpose
    consistent with the constitutionally prescribed system of representative and responsible
    government, namely the maintenance of an apolitical public service. The Court also held that the
    provisions were reasonably appropriate and adapted or proportionate to their purpose and
    accordingly did not impose an unjustified burden on the implied freedom. ”

    Given the literalism apparent in the s44 cases, this makes it clear that the Court will always find against public servants who have engaged in political activity. Of course, as with s44, the Court will only get to decide if the government chooses to take action. That only makes the decision worse.

  19. KT calls for examples of public servants breaking the Code and acting contrary to the Values where this is perceived as desired by the government, and being rewarded for having done so. Naturally many examples are not public and spelling them out would be subject to secrecy restrictions. But some examples are well known.
    John Lloyd, as immediate past head of the ABCC, attacked his successor for taking some action on sham contracting. This was a part of the legislative responsibility set out by the Parliament, but unpopular with government. Lloyd’s subsequent appointments are well known, as is his performance in them.
    Public servants said initially there were no shots, and then that were only a few shots into the air, at the Manus concentration camp. These knowing falsehoods were breaches of the Code and contrary to the Values. No action against those public servants was taken and they seem to have been commended.
    Public servants said the legal advice on disclosing individual information under the social security law was protected by litigation privilege. Neither the long-standing Solicitor General advice, nor the ‘robodebt’ advice, were given for the dominant purpose of advising on litigation. Clearly no privilege applies to either or is capable of doing so. The pretended claim of privilege was in breach of the Code and contrary to the Values. No action was taken against those public servants and they seem to have been commended.
    Look to the Employment staffer who repeatedly corrected false statements about then current practice in dealing with student support claims. He was found by the Administrative Appeals Tribunal not to have breached the Code after proceedings threatening him on that basis. But the propagandist whose errors he corrected, and who continued to repeat them? No action against them, or anyone who ordered them to convey falsehoods to the public, though that was obviously a breach of the Code and contrary to the Values.
    Look at the Climate Change Authority. After Abbott couldn’t abolish it, the coalition stacked its board and so only a dissenting report tried to report as the law requires it to do. Perhaps the public servants who did the government’s bidding here, or in the recent examples of politically convenient delay of legislatively required information releases, have not so much been rewarded as spared improper punishment.

  20. May, the high court interpreted the meaning of ‘allegiance to a foreign power’ to mean having a parent or grand parent born overseas and being unwittingly granted citizenship of another country despite being born here.

    The experience of potential candidates has been that extinguishing unwanted citizenship is at the whim of foreign powers, effectively giving foriegn governments a say in how can or can’t run for federal parliament in Australia.

  21. Chrishod said “not so much been rewarded as spared improper punishment.”

    If these seemingly charge worthy improper actions have not been referred or acted on, would -, as in taking action against Frydenburg “Michael Staindl, a resident of Kooyong, filed a petition on Wednesday alleging” – a private individual also be able to initiate a court action “protected by litigation privilege”. Without damages and only cost if unsuccessful?

    And as JQ says “the Court will only get to decide if the government chooses to take action. That only makes the decision worse.”. What law/s or constitutional changes are required then, to remove “where this is perceived as desired by the government” from the whim or worse of servants [!] and or politicians?

    And I note after listening to the Law report that Banerji had amassed over 4.000 tweets. I am a tolerant person yet even I may get itchy to shut her down. Due to the delay in justice though, 2012 – 2019, the effect is the same or worse for chilling, as the Values and Code seems so arbitary while at the behest of politicians, and without a bill of rights. Would a simple regulation allow, as suggested in the Law Report, leeway if;
    1) servant after review found to have met internal work guidelines and
    2) not as a private individual directly referred to internal information,
    … not be reffered?

    Thanks for ventilating this JQ, thanks for the detail Chrishod, and for saying it like it is; “at the Manus concentration camp.”.

  22. J-D

    I understand that. My point was that s44 insists that MPs not be hold allegiance to a foreign power whereas s 42 requires the same MP swear an oath of allegiance to a foreign power.

  23. This decision can be read with other High Court cases which, when their cumulative effect is considered, narrow or close off avenues for redress against employer retaliation for employee speech. Not just public servants, but all employees. So, following Bendigo TAFE v Barclay, an employer taking action against a union delegate for criticising working conditions in breach of a code of conduct can successfully argue that the action was because of the breach of policy, not because of industrial activities (this would seem to also apply to expression of political opinions by any employee). As long as there was no subjective intention to breach the law (as indicated by employer evidence), it does not matter that the impact is to shut down communications displeasing to an employer, at least under the Fair Work Act.

    And in Commonwealth Bank v Barker, the HC rejected the principle, accepted in many other common law jurisdictions, that there is an implied contractual restraint on employer discretion (‘mutual trust and confidence’).

    Other than in minority or dissenting opinions, these cases do not attempt to identity legal principles (such as the fundamental rights recognised in most other liberal democracies) which might provide some shield to employee speech. There are some Fair Work Commission decisions which hold that a dismissal based on a social media post, for example, can be ‘harsh unjust or unreasonable’. But many employees are not covered by unfair dismissal law, and in any case, it is not clear to me that using the ‘harsh, unjust, unreasonable’ formulation allows for a principled legal exposition of the issue of employee ‘freedom of speech’, since, as the High Court repeated in Banerji, there is ‘no personal right to freedom of speech’ in this country. The Charters in Queensland, Victoria and the ACT might, however, play a role in those jurisdictions.

  24. As someone who as a public servant depended on the very thin anonymity of a nom-de-blog for years (anyone keen to can quickly find my real name) what I always found most objectionable about the APS Code of Conduct was its very selective and hypocritical enforcement. I could make the most vituperative and scornful criticism of Teh Left with no risk, but even a well reasoned and balanced criticism of current government policy was putting my job at risk. Had Ms Bannerji called for the banning of all Muslim migration in her twitter account she’d still be working for Immigration.

    But that hypocrisy is not the High Court’s fault. As with S44 I think the High Court is just accurately interpreting some very bad law, rather than straining to make it even worse.

    The idea that professional public servants cannot carry out policies they disagree with, and therefore should not be allowed to say they disagree, is anyway daft. I spent a career mostly in tax and welfare policy vigorously while disagreeing with the whole policy direction we have gone in there – but I like to think I did my best to improve that policy and its execution in detail.

  25. Just a tiny correction DD, technically it’s not the law it’s the constitution.

    The constitution was supposed to be safe from the meddling of opportunistic lawmakers. But it was the lawmakers that formed the constitution so the bias is enshrined.

    In this instance and the instance of s44 the concept of checks and balances has been sorely tested.

  26. Rog, the point is that the law can whatever it likes, what matters is who gets prosecuted. One of the founding principles of Australian law is that everybody breaks the law all the time but the legal system has discretion to only prosecute cases that the government wants prosecuted. For example, exceeding the speed limit on the road is an offence, but very few road users are given tickets and even fewer prosecuted for doing so (even when their speeding meets the threshold for criminality). And don’t even start on littering, rape, water theft and other “minor” offences where the rate of “discretionary non-intervention” gets close to 100%.
    This pattern is utterly required for our whole legal system to work at all. Changing it would require major reworking of the whole system, from the constitution down to the lowliest school crossing volunteer.

  27. Let’s leave law out of the equation, I don’t think it’s helpful 🙂

    The Constitution is a set of rules on how to run the country and the High Court’s sole function is to rule on interpretations of the Constitution.

    Laws are tested in other courts.

  28. ‘… the High Court’s sole function is to rule on interpretations of the Constitution’

    You reckon so? I reckon not.

  29. Who cares what the function or principal function of the HC is when…

    Just imagine the High Court in 2030 ruling ( in black ) on the ‘New and Improved’ industrial relations bill 2020, complements of a cpac powered amanda stoker. 

    Don’t worry about judges, we have a biased neural net in Amanda, powered by cpac, here and now. Amanda’s deplorable “not the right fit” workers, shows she is in dire need of new data and representative learning set. 

    But – Amanda Stoker began her career as a clerk and solicitor in Brisbane with MinterEllison. All is well then, in the land of “The Right Fit”.

    She has testosterone too… “accusing the Coalition of being “tentative” after John Howard lost” is a brave, as in take no prisoners”, call.

    And this would fit into any number of JQ’s recent posts…

    “Liberal senator … sack workers who are not ‘the right fit’

    …”Liberal senator for employers to be able to sack workers if they are not “the right fit”, arguing the Coalition is preparing to gut unfair dismissal laws.”

    “Amanda Stoker – who made the remarks at the Conservative Political Action Conference on Friday – renewed the call on Monday arguing it was “untenable” to ignore industrial relations’ impact on productivity and accusing the Coalition of being “tentative” after John Howard lost the 2007 election in part due to its Work Choices reforms.”
    https://www.theguardian.com/australia-news/2019/aug/12/liberal-senator-says-employers-must-be-able-to-sack-workers-who-are-not-the-right-fit

    And in better news in Evonomics today…  see the interesting to me, figure 3  “How productivity differences between workers doing the same task compare to income inequality within countries. Source: The Trouble With Human Capital Theory”

    “Neoclassical economists resort to slight of hand to measure productivity differences, and so endlessly confirm their theory. But what happens if we try to measure productivity differences objectively?

    We find that productivity differences cannot possibly explain income inequality.”

    “The lesson here is that differences in workers’ productivity are tiny compared to differences in income. So it’s inconceivable that productivity differences (as measured here) can explain income inequality.”
    http://evonomics.com/no-productivity-does-not-explain-income/

  30. Stories are important.

    This may be the heads up for a book written about Australia in 2030 after Amanda Stoker has moved from streamlining industrial relations law to exclude those considered by her to be “not the right fit”, to the evvironment portfolio – including minister for water – to ‘streamline’ environmental laws.

    Rule of Capture

    “2017, science fiction author Christopher Brown burst on the scene with Tropic of Kansas, an apocalyptic pageturner about martial law in climate-wracked America; now, with his second novel, Rule of Capture, Brown turns everything up to 11 in a militarized, oil-saturated, uninhabitable Texas where private mercs, good ole boys, and climate looters have plans to deliver a stolen election to a hyper-authoritarian president.”

    “Brown is a Texas lawyer whose attention to legal verisimilitude pays of in spades, a kind of legal-realism that feels terrifyingly plausible as he lays out the way that a nasty, smart Attorney General could conspire with an authoritarian president to create the kind of martial law that even Federal judges will permit.”

    “And shot through it all, a serious, philosophical meditation on the nature of private land, conquest, and justice, ”
    https://boingboing.net/2019/08/12/free-xelina-rocafuerte.html

    See A C Grayling:
    “Or to take A.C. Grayling’s view: “The [US] electoral college was set up to ensure that no idiot, no tweeter, sexual harasser, ignoramus, could get into the White House … you see it works perfectly in the US.”
    https://www.smh.com.au/entertainment/tv-and-radio/examining-president-trump-q-and-a-ponders-the-biggest-question-20190813-p52gfp.html

    Seems like eternal vigilance will be eternal.

  31. There seems to a number of interpretations of the functions of the High Court

    The Dept of Environment; “to hear and determine appeals from the highest State Courts; and to interpret the Constitution.”

    The High Court; “to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.”

    Parliamentary education office; “the principal function of the High Court of Australia to interpret the Constitution and to settle disputes about its meaning.”

    I think you will find that all are in agreement.

    https://www.environment.gov.au/heritage/places/national/high-court-former

    http://www.hcourt.gov.au/about/role-of-the-high-court

    https://www.peo.gov.au/learning/closer-look/the-australian-constitution/the-constitution-and-the-high-court.html

  32. Moz above – “This pattern is utterly required for our whole legal system to work at all.” –
    https://johnquiggin.com/2019/08/08/hard-cases-make-bad-laws-bad-judges-make-them-worse/comment-page-2/#comment-213210

    And parliament. Witness the latest sneaky eve of election grubby liblab deal changing the rules of the Reps and Senate to not only by mutual liblab backscratching avoid referrals to the High Court, but even so to give any perps a trick 28 day window to ammend particulars and scrub the offence to get around the AEC, other players, and the public who may have wished to pick over the bones of the pollie perps.

    Though they pay some handsomely, the current legal system, government, parliament, and constitution aint worth spit.

  33. ‘I think you will find that all are in agreement.’

    Then you think wrong. I do not find that they are all in agreement: I find that they have made different statements which are not equivalent or interchangeable. The statement quoted from the website of the High Court itself seems (unsurprisingly) to be correct; the statement quoted from the Parliamentary Education Office (slightly surprisingly), not.

  34. The existence of the High Court, it’s structure, scope, function and limitations are all described in the constitution.

    Therefore the statement “to interpret the Constitution” is absolutely correct.

  35. The following two statements are not equivalent or interchangeable:

    1. The existence, structure, scope, function, and limitations of X are described in the Constitution
    2. The principal function of X is to interpret the Constitution

    Just because statement 1 is true, that would not be enough to make statement 2 true.

    There are multiple things of which statement 1 is true; that doesn’t make statement 2 true of all of them, or any of them.

    In particular, if you read what it says about the High Court in the Constitution, you will not find the statement ‘The principal function of the High Court is to interpret the Constitution’, or any statement equivalent to that one.

  36. AFAIK interpretation in the legal context is known as Judicial interpretation and is how Courts work. The High Court’s decisions are made on the basis of and with reference to a judicial interpretation of the constitution.

    There are a number of legal dissertations (on AustLii) on the HCs judicial interpretation of the constitution.

  37. The following two statements are not equivalent or interchangeable:

    3. The decisions of X are made on the basis of and with reference to a judicial interpretation of the Constitution.
    4. The principal function of X is to interpret the Constitution.

    Just because statement 3 is true, that would not be enough to make statement 4 true.

    There are multiple things of which statement 3 is true; that doesn’t make statement 4 true of any of them, or all of them.

    If you said ‘The functions of the High Court include interpreting the Constitution’, that would be true.

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