Coronavirus: Shift To Virtual Courtrooms Leaves Justice System Ailing

The coronavirus restrictions passed in 2020 requiring courts to go virtual is an under-appreciated but serious threat to the traditions that have been built up over centuries to protect our freedoms and the rule of law.

The first and most striking change from ordinary court process came with the announcements, beginning in March, that jury trials in all states and territories will be suspended for various periods of time.

While for most states and territories waiving the right to a jury trial must be with the consent of the accused, the Australian Capital Territory passed legislation ― the COVID-19 Emergency Response Act 2020 to operate from March 16 to December 31 ― to allow courts to enforce judge-only trials irrespective of the wishes of the accused.

Last month, Victoria's parliament passed the COVID-19 Omnibus (Emergency Measures) Act 2020, briefly infamous for its planned powers to enforce virus containment measures and for giving designated authorised officers the ability to detain people upon suspicion they might break rules.  These were rejected.  But among more controversial provisions, it also amended the criminal court process to allow for judge-only trials if considered in the "interest of justice".

Currently, challenges to provisions allowing judges to order that a trial be conducted without a jury are yet to be considered by the High Court.  There has been, however, a number of cases before lower courts in various states and territories.  One of the most significant cases was R v Coleman, which came before the ACT Supreme Court in April.  In that case, Justice Michael Elkaim accepted a judge-only trial could be ordered despite the accused arguing that the order would not only be contrary to the Magna Carta, but also the ACT's own Human Rights Act.

The fact that emergency provisions to suspend jury trials have been accepted by the courts is a surprising violation of a pre-existing legal right captured in Article 39 of the Magna Carta that states "no freemen shall be taken or imprisoned except by the lawful judgment of his peers or by the law of the land".

Jury trials have been a centuries-long practice to ensure the administration of justice is consistent with the expectations of the public or, as former High Court Justice Gerard Brennan put it, the jury trial is "the chief guardian of liberty under the law".  Even in 1215, Article 39 of the Magna Carta was merely a codification of an existing norm.  This norm was subsequently transported to Australia and restated in section 80 of the constitution, which guarantees a jury trial for indictable offences.

Suspension of the jury trial may be the most important change in court process, but is by no means the only one.  From March in-person court hearings that bring parties into the same room were replaced by the "virtual courtroom" in order to continue through the coronavirus restrictions.  This has serious consequences for the judiciary's capacity to achieve just outcomes.  Almost every aspect of the physical court and the processes have been developed over centuries with justice in mind.

Oral evidence gives a chance to test not just the facts but also the reliability of the witness.  The practice of bowing towards the coat of arms signals respect for the rule of law.  The garb anonymises and symbolises that the judge and lawyers are carrying out a function, rather than acting in a personal capacity.  But over video many of these practices have changed beyond recognition.  Facial expressions and gestures are low-resolution, delayed or out of shot.  The public listening in is not required to participate in customary shows of respect.  Lawyers are in chambers or home offices surrounded by personal paraphernalia.  The strength of traditions is that their value is not in their practicality ― it is in their symbolism.

We Need To Put Corruption Watchdogs On Short Leash

Labor's push for a so-called federal anti-corruption body would be an undemocratic and illiberal forum for legalised defamation to be weaponised against political opponents.

The most recent call for a federal Independent Commission Against Corruption comes on the heels of last week's revelations that the CEO of Australia Post and the chairman of the Australian Securities & Investments Commission had both been stood aside pending investigations.

The first related to the awarding of luxury watches to Australia Post senior managers in late 2018, and the second to payments made by the corporate regulator for the ASIC chairman's tax advice.

These events have been exposed and are being investigated within the existing regulatory framework.  The enthusiasm for a special-purpose anti-corruption body to deal with these kinds of issues deserves greater scrutiny.

The risks of wide-ranging anti-corruption agencies are not insignificant.  Tackling corruption is a virtuous mission but agencies committed to this are prone to becoming kangaroo courts running show trials where the rule of law and respecting the legal rights of individuals caught up in their investigations are ignored.

In NSW, the Independent Commission Against Corruption has left a trail of destruction in its wake since its establishment in 1988.  It has proved more effective at destroying lives and careers than it has at tackling genuine wrongdoing.

ICAC also has shown a tendency to exceed its legislated authority, as the NSW Court of Appeal found in the commission's pursuits of former NSW premier Nick Greiner in 1994, and the High Court found in its pursuit of former crown prosecutor Margaret Cunneen in 2015.

An explanation for why the political class would be so enthusiastic to take a chance on a federal ICAC is the opportunity to weaponise it to target political enemies.

A federal ICAC would operate as a forum for legalised defamation.  As the NSW ICAC has demonstrated over three decades, being referred to ICAC carries a high political cost that can be enough to end careers.

The fact that these bodies are protected from defamation law is deeply concerning.  Once they have these powers, defamatory and slanderous claims can be stated as fact, with no legal recourse for the accused.

Federal Labor is an enthusiastic supporter of replicating the NSW ICAC at the commonwealth level.  Labor and shadow attorney-general Mark Dreyfus have overseen no fewer than 10 referrals of Coalition MPs to law enforcement bodies since 2015.  None has resulted in any charges.

Although in opposition, in 2019 my freedom-of-information request revealed that Dreyfus personally directed the bureaucrats in the Attorney-General's department administering the Foreign Interference and Transparency Scheme to target conservative activists speaking at the Conservative Political Action Conference in Sydney.  Conference organiser Andrew Cooper received a letter from the department to produce information and correspondence related to the conference within 14 days or risk being jailed for six months.

One proposal has been introduced to parliament this week.  Known as the Australian Federal Integrity Commission and introduced by federal independent MP Helen Haines on Monday, it would allow public hearings to take place when it is in the public interest and allow any member of the public to make complaints.

Public interest is an ambiguous concept that would ultimately only be determined by the commission itself.  In other words, it would have the power to run inquiries and hearings at any time and into any matter it chooses at its discretion.  Allowing any member of the public to make complaints will be used most of all by the political class.

Like the NSW ICAC, the body proposed by Haines would be empowered to make findings of fact.  In a court of law, allegations of facts are fiercely tested and proceedings are governed by the rules of evidence and the presumption of innocence.  This is not the case at ICAC.

Over centuries the institution of parliament has developed the traditions and practices, based on intense partisanship and its adversarial structure, to scrutinise its members and hold members of the government to account.

Many modern politicians would prefer to outsource this and have anti-corruption agencies do their work as parliamentary opposition for them.

The federal government is in a no-win position.  Since it committed to introducing some kind of anti-corruption body in 2018, it has tried to thread the needle on a proposal that would avoid the excesses of NSW ICAC.  Every instance of delay opens it to criticism that it is weak on corruption.

Government wrongdoing and shortcomings in integrity are inevitable consequences when bureaucrats and politicians have vast powers and opportunities to squander taxpayer money.  The fact that the preferred solution of so many is to grant more powers to more bureaucrats is indicative that improved governance and management of taxpayer money is not on the agenda.

18C On Steroids

The idea that a sitting Tasmanian senator can be dragged before the state Anti-Discrimination Commissioner for her public comments shows the draconian reach of Australia's speech restricting anti-discrimination laws.  Claire Chandler, the Liberal Senator for Tasmania, revealed in federal parliament earlier this month that she had received a letter from the Anti-Discrimination Commissioner, Sarah Bolt, summoning the senator to attend a conciliation conference to answer for comments she had made in an article in the Mercury in July about — ironically enough — free speech in Australia.

In the article, Senator Chandler bemoaned the rise of cancel culture and the way it silences people for their views about sensitive topics like sex and gender identification and commented that "you don't have to be a bigot to recognise the differences between the male and female sexes and understand why women's sports, single-sex change rooms and toilets are important".

A Tasmanian constituent emailed Chandler to ask whether the senator understood the difference between "sex" and "gender".  In response, Chandler said "I do understand the difference.  That is why I have made the point in the my article that women's sports, women's toilets and women's changerooms are designed for people of the female sex and should remain that way".

Chandler's comments about gender identity and what this means for women-only facilities may not be shared by all Tasmanians, but they are undoubtedly shared by many;  and those who share them deserve to have their views articulated by their representative in the Senate.  That is not to say that only parliamentarians should have free speech, but one of the lessons from this is that if a representative of an entire state doesn't have freedom of speech, then it spells a dangerous precedent for those they represent.

Under the Tasmanian anti-discrimination legislation it was open to the Anti-Discrimination Commissioner to reject the complaint for being frivolous or vexatious.  A complaint about the comments of a member of parliament as a part of a social and political debate in a public forum is the very definition of frivolous ― and yet the Commissioner has accepted the complaint in part, commenting that the Senator's comments were "problematic" and questioned whether people "should be subjected to material that is arguably offensive on the basis of gender identity and intersex variations of sex characteristics".

Senator Chandler had even posed in the Mercury article that perhaps "an open letter signed by 150 writers and academics in defence of free speech offers a glimmer of hope that we can put a stop to the anti-democratic so-called cancel culture that has taken root".  That glimmer of hope has perhaps been extinguished by institutionalised cancel culture itself, namely the Anti-Discrimination Commissioner and her Equal Opportunity agency.

If there is a cancel culture hierarchy, then anti-discrimination commissions must occupy one of the most senior positions.  Funded by taxpayers but completely independent of taxpayer accountability or control, these "independent" agencies have free reign to take discrimination complaints and pursue those who express thoughts that are out of step with modern, cosmopolitan orthodoxy backed up by a progressive elite who prefer censorship to debate.

This attack on free speech is allowed because of the chillingly broad provisions of Tasmania's anti-discrimination laws.  Everybody is familiar by now with the federal hate speech laws under s.18C of the Racial Discrimination Act which makes it unlawful for a person to offend or insult a person because of their race, colour, or ethnic or national origin.  Section 18C is an unacceptable violation of freedom of speech, but the Tasmanian laws go even further.  Section 17 of the Tasmanian Anti-Discrimination Act 1998 makes it unlawful for a person to engage in any conduct which offends, humiliates, insults, or ridicules another person because of one of 14 protected attributes they possess, including race, age, sex, sexual orientation and gender identity.

Curiously the Tasmanian Anti-Discrimination Commissioner rejected the complaint that related to the Mercury article, but accepted the part of the complaint that related to the correspondence about the article.  But there is no firm rule about why the Commissioner would say the complaint about the Mercury article is lacking in substance when a former Commissioner accepted a complaint only a few years ago that was of a very similar substance.  Back in September 2015 an anti-discrimination complaint was made by a Greens activist against the Catholic Archbishop of Hobart, Julian Porteous, for the publication of pamphlets which explained the church's position on the definition of marriage.  The complaint that the pamphlets were offensive on the basis of a person's sexual orientation was received and investigated by the Commission.  Then, as now, the content of the pamphlet was not directed towards the complainant but was considered to fall within the ambit of state anti-discrimination laws.  The decision whether to accept or reject a complaint is at the discretion of the Commissioner, which leaves freedom of speech for Tasmanians in a precarious state.

To be clear at this stage a complaint has been made and the complaint may eventually be rejected or fail at a tribunal hearing.  But the process is a part of the punishment under these kinds of laws.  The threat of compulsory conferences or mediations and tribunal hearings, and the public tarring of being associated with alleged breaches of hate speech laws, is used to scare people from speaking freely.  This is known as the law's chilling effect on free speech.

And there is nothing more chilling than seeing even elected politicians or mainstream religious leaders hauled before anti-discrimination agencies.  And that's the point — the comments made were a part of a genuine public debate, which is why they attract these complaints.  By silencing the loudest voices, anti-discrimination laws are being used to shape political debate itself.  And as long as they are on the statute books, the message is clear:  if they can get Senators and Archbishops, they can get you too.

Why I Was Right About Victoria's Police State

At the beginning of April, I wrote in these pages that Labor Premier Daniel Andrews, in response to COVID-19, had created a "police state" in Victoria.  The column ran with the standfirst:  "Economic devastation, house arrest and a police state.  Surely there could have been a better way."

I described how under Andrews the most extreme home detention laws in the country had been enacted and enforced without public debate or parliamentary scrutiny, and how the government regulations that controlled every aspect of Victorians' lives were being made and then changed, literally "hour by hour at the whim of politicians and bureaucrats".

In April, Victoria ― and indeed the whole country ― was still gripped by the fear of a virus about which little was known.  Six months ago, as politicians, scientists and the media stoked that fear, those who expressed concerns about the impact of what governments were doing to control COVID-19 on the rule of law and individuals' human rights were dismissed as "irresponsible", and worse.

Hugh Riminton, the national affairs editor of 10 News First, claimed that to question the Victorian government was "dangerous" and "ignorant".

In April, according to Newspoll, 85 per cent of Victorians believed that Andrews was handling the coronavirus "well", compared with 10 per cent who believed he was handling it "badly".  With such approval ratings, it's little wonder that at the beginning of the crisis the media and those organisations claiming they are concerned about human rights applied so little scrutiny to Andrews.  It would have been unpopular.

In June, 10,000 people in Melbourne broke the law to assemble and protest for the cause of Black Lives Matter.  The Victoria Police, for all intents and purposes, endorsed the protest and no one was arrested.  Three of its organisers were later each issued a $1652 infringement notice.

Those who argued a dangerous precedent has been set, as the police appeared to be willing to treat the government's political allies one way and its opponents another way, were largely ignored.

And so it came to pass that three weeks ago Zoe Buhler, a pregnant mother, was arrested and handcuffed by three police officers in her home, in front of her two infant children, in Ballarat and charged with the crime of "incitement", not because she had actually breached any of Victoria's health regulations, but because she had dared express her support on her Facebook page for an anti-lockdown protest.

If Buhler is convicted she will have a criminal record and be liable to a $19,000 fine.  Dozens of anti-government protesters have been arrested by Victoria Police in the past month.

All of this is the context in which the Andrews government's COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 must be understood.  It has already passed the Victorian Parliament's lower house, where Labor has an overwhelming majority, and it will be voted on in the next new few weeks in the upper house, where independents hold the balance of power.

Two aspects of the law are particularly abhorrent.

The first is the power it gives the government to authorise anyone it chooses to exercise ― without oversight, accountability, or the right of appeal ― the draconian powers of Victoria's health regulations, which include arrest, detention, entry into homes and workplaces without a warrant, and the seizure of property.

The second is the power it gives to those so authorised by the government to arrest and indefinitely detain a person who is suspected of being someone who could potentially breach the health regulations.

Such a law has no place anywhere in Australia, ever.

This week, in a powerful statement to the Victorian Parliament, fourteen of Melbourne barristers, including QCs Michael Borsky, Stuart Wood AM, Philip Crutchfield, Georgina Schoff, and former High Court judge Michael McHugh AC, wrote:  "Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the 'authorised' citizens is unprecedented, excessive and open to abuse."

To think such a law could even get as far as it has is incredible.  It demonstrates, again, the nature of the police state Victoria has become.

Covid Totalitarianism

The actions of Victoria Police in the egregious arrest of Ballarat mother Zoe Buhler for posting about an anti-lockdown protest on social media is a graphic representation of Victoria's slide into totalitarianism during the era of COVID-19.

In scenes that have gone global earlier this month, three police officers — intimidatingly clad in face masks and black "uniforms" — served a search warrant on Buhler, seized her mobile devices and accused the visibly pregnant mother of the offence of incitement.  This was in relation to a Facebook post made and shared by Buhler proposing to protest Victoria's severe public health orders, an act she later admitted she thought was legal in the marginally less restricted Ballarat.

Fortunately, Buhler had the foresight to record what the Police were doing.  As the footage shows, Buhler and her husband offer to delete the post, but in a stunning display of brutishness, the officers put Buhler in handcuffs and took her into custody.  At least one of the officers bothered enough to cancel an ultrasound appointment Buhler had booked that day.

Assistant Commissioner Luke Cornelius defended the police action, only going so far as to say that the "optics of arresting someone who is pregnant is terrible".  The overzealous behaviour of Victoria Police is not just bad "optics", it is feeding a growing perception that the emergency orders has given licence to the authorities to exercise their powers in a disproportionate and borderline-abusive way.

Potentially even worse is that this may be entirely without justification or valid legal basis.  In order to make an arrest without a warrant, the Victorian Crimes Act requires a police officer to reasonably believe that a person has committed an indictable offence.  But Victoria Police has seemingly not even raised a prima facie case that an incitement offence has even taken place.

An incitement offence has two elements:  the first is that a person must have done an inciting act.  Secondly, another person must have been incited by the first person to do something in line with the first person's intention.  There appears to be no suggestion that any person was incited to breach the directions.  An incitement cannot merely be made to the public at large.  Incitement is a serious criminal offence and a recorded conviction is a permanent stain on a person's reputation.  The threshold for establishing that an incitement offence occurred must go beyond whether the Police consider that someone, somewhere might have been incited to do something.

A second issue goes towards whether the government has successfully made protests a crime.  A person can only be guilty of incitement if another person is incited to commit a crime — but the enabling legislation is ambiguous on whether a breach of the Chief Health Officer's Stay at Home Directions is a criminal offence.

Laws that prevent or punish public harms are usually administrative in nature and incur civil penalties, whereas direct harms to another person or specified people are more likely categorised as crimes.  The emergency orders are fundamentally administrative in nature and should only incur civil penalties, rather than criminal penalties.  A compelling reason for this is that a bureaucrat acting alone should not have the power to create new crimes, especially when this can leave consequences that last long after the emergency period has expired in the form of a permanent entry in a person's criminal record.

The above questions may be resolved in either Buhler or Victoria Police's favour, but unresolved will be the shameful reality of the disproportionate and arbitrary enforcement of the directions.  In June Victoria Police refused to enforce the directions against a protest which actually took place in the Melbourne CBD.  Legal advice I obtained in August argued that the decision from Victoria Police to refuse to enforce the directions against any of the 10,000 Black Lives Matters protesters was a potentially unlawful exercise of police discretion.

But having made that decision, it should have then enforced the Directions with consistency and dealt liberally with prospective protesters.  Instead, it completely changed course:  where it once gave free rein to organised left-wing activist protesters to march through Melbourne under Stage 3 restrictions, it now charges into the homes of Victorians living under Stage 3 restrictions in country Victoria who express an objection to the severe social and economic restrictions.

Extraordinarily, the Police Chief Commissioner Shane Patton told ABC Radio on Thursday morning that Victoria Police made the decision not to enforce the directions against BLM protesters on the basis that it was likely to become violent.  "We had around the world cities that were burning, we had protests that were violent, we had people being injured, we had property being damaged, places being looted, and absolute mayhem in many societies around the world … We had significant concerns that we would have that type of mayhem in Melbourne."

It seems in Victoria only one kind of protest is allowed.  We had a taste of this in 2018, when the event organisers of Milo Yiannopoulos' speaking tour were charged by Victoria Police for the costs of policing the violence-marred protests that were carried out by Milo's radical left opponents.  And when it comes to the Black Lives Matter protests exploding into social unrest all over the world, Victoria Police not only let it happen but gave it their support.  Assistant Commissioner Russell Barrett declared in a media release on 11 June ― a week after the Black Lives Matter protest took place ― that it was "a cause that is more important than ever and one that is personally close to my heart".

The dishonest, inconsistent, and disproportionate style of police and political leadership in Victoria is an issue that goes beyond the temporary enforcement of COVID-19 rules.  Policing is a fundamental pillar of free societies.  Law and social order need to be enforced, but this is not a blank cheque to throw proportionality out the window, trump up criminal charges, or choose who the law applies to.  These are the characteristics of an unfree society that has rejected the rule of law, and sadly, now describe Australia's second-largest state.

Australia's Violent Enforcement Of Lockdowns Sparks Memories of the Eureka Rebellion

2020 is looking eerily similar to 1854 for the people of Victoria, Australia's second most populous state.  This footage reveals a little of the current scene, with Aussies protesting against draconian lockdowns, and police in riot gear arresting them in large numbers.  More on this below.

EUREKA THEN

First let us wind the clock back 170 years ... Australia is not yet an independent nation, Victoria is still a British colony.  Established as penal colonies for convicts under the guard of British soldiers, the Australian settlements were government projects from the outset.  Historian Robert Hughes described the convict experience as producing "an attitude to authority in which private resentment mingled with ostensible resignation".

But the "gold rush" of the mid-1800s brings in a new aspirational class of workers, including Americans, Irish, British Chartists, and people involved in various European revolutions.  The Australian diggings were notably more lawful and organised than those in California.  People were well behaved and generally unarmed — they just wanted to get on with digging in the hope of striking it rich.  It would take an especially egregious assault by those in power to drive these otherwise lawful men into rebellion.

Government at this time consists of an appointed Governor and a legislative council containing some appointees and some elected members, but voting is mostly limited to landowners — so miners are not represented.  With urban employers and wealthy landowners worried about a labor shortage and an exodus of workers to the diggings, the colonial government comes up with a scheme to coerce the entrepreneurial miners back into structured employment.

Their scheme was a "license fee" similar to a poll tax, initially set at 30 shillings a month.  Miners were forced to pay it whether or not they found gold.  As gold became harder to find, the license fee became increasingly burdensome and resented.

The police were not neutral law enforcers, but would engage in "digger hunts" with accusations of extorting money, taking bribes, and imprisoning people without due process.  Diggers were often asked for their licenses several times in one day.  As testified by Peter Lalor "the diggers were subjected to the most unheard of insults and cruelties in the collection of this tax, being in many instances chained to logs if they could not produce their license".

The miners moreover had no neutral court of law to appeal to if they were unjustly treated — their cases would be heard by the taxation administrators who were themselves "parties to the case".  Miners tried sending delegations to appeal to Lieutenant-Governor Charles La Trobe regarding the fees, but to no avail.

On October 17, 1854, some 5,000 miners gathered over what they felt was an injustice, as a hotel owner and friend of the local magistrate was said to have bribed his way out of a murder charge.  In an unfortunate spill-over of fury, the Eureka Hotel was burned down.  This was the catalyst for what was to become a more organised resistance movement.

On November 11, the Ballarat Reform League was formed under the direction of Chartist John Basson Humffray.  Their demands were the release of three miners charged with the Eureka Hotel fire, and a Chartist inspired program of "no taxation without representation".

But when delegates tried to negotiate with the Victorian government, Governor Charles Hotham felt affronted by the fact that they made "demands" rather than the traditional "petition".  As a rebuff to their apparent insolence, he instead sent 150 soldiers to Ballarat to bolster the police presence.

Then (as now) the situation was moving from petty despotism to organised tyranny.  Authorities threatened to use the riot act to essentially ban gatherings of twelve people or more.

On November 29, as the miners hear Hotham's response, they collectively decide to burn their licenses in outright defiance.  The police respond with an even more aggressive "digger hunt" the next morning.  From this point, to use an Australian expression, it was on.

The land we now know as Australia had previously seen a coup d'etat by the military, and scattered uprisings by Aborigines, Convicts, and Outlaws, which had all been swiftly quelled by those in power.  There had never been a George Washington-type character or a popular uprising.  But on November 30 that year, the miners at Ballarat came the closest.

Led by Irish immigrant Peter Lalor the miners hoisted their own Southern Cross flag and made a pledge:  "We swear by the Southern Cross, to stand truly by each other, and fight to defend our rights and liberties".

With Lalor elected as a pseudo-military leader, the miners built a "stockade" (a crude fort) and started engaging in military drills.  But not for long.  Almost immediately, on Sunday December 3 (when the predominantly Catholic Irish would be at Mass) government troops attacked and quickly obliterated their makeshift fort, killing 22 diggers and five soldiers.

The police arrested and detained 113 of the miners while many others went into hiding.  Eventually 13 were taken to Melbourne to stand trial for high treason, including John Joseph — an African American man from Baltimore.  The trials were held in the capital rather than Ballarat to avoid any local attachments.

THE REBELS WIN PUBLIC SYMPATHY

The miners must have known that they never stood a chance militarily.  But the real battleground, both then and now, lay with public opinion.  People in the capital were initially fearful of a full-blown rebellion, but news of the government's heavy-handedness and of the miners' courageous stand against such brutal treatment, gradually started to win the sympathy of the general public.

Large crowds would gather outside courtrooms, with juries frequently taking less than an hour to throw out the case.  Given that the accused probably were guilty of what they were charged with, it was a form of jury nullification of unjust laws.  Anybody interested from a legal point of view can read about the trials here.

In the end, the accused were released and a general amnesty declared for those still in hiding, including Lalor.  The license fee was removed, replaced by an export duty and a nominal £1 per year miner's right.  Half the police on the goldfields were sacked and one warden replaced the multitude of gold commissioners.

The Victorian Legislative Council was expanded to include eight members elected by diggers who held a miner's right.  One of these elected members was Peter Lalor who had survived the stockade as an amputee after being shot in the shoulder.

Former Justice of the High Court Michael Kirby states:

Eureka stands as a warning to indifferent politicians, judges and other officials.  In the ultimate, the law is not obeyed because it is made in this or that way or even because it is declared in courts of the highest authority.  In the end it depends upon the community's acceptance of it.

EUREKA NOW

This brings us to the present day.

At time of writing, the state of Victoria is facing perhaps the developed world's most oppressive and mean-spirited overreaction from the government in response the COVID virus.  Police in riot gear are forcefully clearing out farmers markets, harassing elderly women for sitting on a park bench, snatching infants in strollers from fathers, and fining people for catching a bus without a "work permit".  In the modern town of Ballarat, a pregnant woman in her pajamas is handcuffed and arrested in her own home over a Facebook post promoting a peaceful protest, in a town not even under the severest level of lockdown.  She was charged with "incitement" similar to a terrorism charge, and could face 15 years in jail.  People are being threatened with fines for merely "liking" a Facebook post.

Meanwhile parliament has voted to suspend itself, giving dictatorial powers to the Premier under a so called "state of emergency".  The people are under an 9:00 p.m. curfew, and are only allowed out of their homes to exercise for two hours a day in their local neighbouhood.  Comparisons to dystopian novels can sound trite, but are fitting in this case.

Readers might be thinking that "the virus" must be pretty bad in Victoria to elicit such an authoritarian response.  Guess again.  At time of writing there are 12 people in ICU in the entire state — check the latest figures here if you like.  What makes Victoria different is the impossible threshold set by the Premier — as though viruses can be made to obey human laws.

The Premier has iterated that the lockdowns will remain in place until there are no new cases for 14 consecutive days.  The number of new COVID cases is reported every day almost like a taunt to the public, while every other statistic — like suicides, business closures, bankruptcies, cancelled weddings, undiagnosed cancers, lonely deaths from other causes, etc, etc, is ignored.  It is zero tolerance for a virus, or innocent people will be punished in countless other ways in perpetuity.

This excessive level of restriction goes against the advice of doctors, epidemiologists, lawyers, legal experts, the World Health Organisation, and even Federal government medical officers.  The modelling that provoked it has been shown to be wrong.  Public policy experts have made the seemingly obvious point that a pandemic requires different responses from different sections of the public using dispersed knowledge, so any "one rule for all" response is doomed to fail.

And since any reported case means prolonged lockdown and suffering for everybody, people are increasingly reluctant to report infections or admit to having left their homes.  As a result, contact tracing is failing in Victoria, while working well in other states.

Of course, the Premier has his paid staff of experts who naturally say that the emperor has clothes on this.  But even his own chief medical officer backed away from the Premier's most excessive dictates, leaving him grasping for scapegoats.  Apparently people will only sell so much of their soul.

C.S. Lewis famously wrote:  "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive … those who torment us for our own good will torment us without end for they do so with the approval of their own conscience".  Perhaps the Premier really believes he is doing good by doing evil.  Or perhaps he is just doubling down on past mistakes to save face.  But with so little intellectual support, it is hard to see this as anything other than a ruthless social experiment to see just how compliant Australian people can be.

SO WHERE DOES THE PUBLIC STAND?

Politics always divides and this present case is no exception.  Those supporting the Premier are generally those with a more comfortable work-from-home existence.  The "pajama class panickers" as they are sometimes called, just want a strong leader to "do something" that seems like it might work, even if it doesn't, having no concept of the cost — since the cost of their perceived protection generally falls onto others.

Worse, there are some who, Gillette ads notwithstanding, seem to think that violence against women is totally fine when it is carried out by "law enforcers".  They cheer and gloat when people are arrested for simply living their life, because it apparently "serves them right".  Some elements of the media are quick to smear any protesters as crazy conspiracy theorists, while the brother of the pregnant Facebooker mentioned above has reportedly received death threats for trying to raise funds for her legal defense.

But on the brighter side, just as the general public turned against the excesses of the police state in 1854, the same is happening today.  When the government, in the name of saving lives, criminalises actually living your life, people start to realise what libertarians have been saying for a long time:  the state is them not us.  The state is not on the side of peaceful individuals that make up society, and there is no aspect of your life that they won't step on to show you who is boss.

States can usually rely on corporate CEOs and celebrities to tow the politically correct line — but thankfully not in this case.  Business leaders are pointing out absurdities — like how municipal workers can work in groups but private contractors are prohibited from even mowing a lawn by themselves.

Those with a public voice are lambasting the Premier, like this football player whose father (also a famous footballer) died alone, saying "I lost my 78-year-old father, Premier … He wasn't dying from this, he was dying from the isolation and the loneliness".  The general public is realising it has a voice, that the medical experts (besides courtiers on the Premier's payroll) are on our side, and the tyrants in charge are increasingly fumbling for excuses.

WHAT CAN BE DONE?

It would be nice if the police could have some backbone at this time — to say to their bosses, "We are not doing this anymore.  We refuse to be degraded in this way, being sent to war against the people we are supposed to protect".  But that is unlikely.

More realistically, in the Australian political system, State Premiers can be ousted within days without parliament even sitting, if their own party room turns against them and calls a "spill".  A deputy leader or cabinet minister who was "fully on board" with the agenda five minutes ago, can suddenly come out as being diametrically opposed to it, and take the top job.

That is the most plausible way out of this nightmare for the people of Victoria.  Viruses are not going away, but Premiers can be sent packing pretty easily.  The backbenchers of the ruling Labor party need to fear for their own re-election more than they crave the favour of their failed leader.

All that is required is enough of a groundswell of support for peaceful coexistence with sensible, contextually appropriate safeguards, and the removal of support for bullies and thugs.  Resolute Victorians stood up to tyranny at least once before, and will stand up once again.

The Increasing Threat Of Delegated Legislation ― Legislation Put Above The Power Of Parliament

"It's probably a bit unusual for me to be in agreement with Richard Wood," said Labor Senator Kim Carr.  "I have been known to say some nasty things about you."

This utterance occurred during a hearing of the Senate Standing Committee for the Scrutiny of Delegated Legislation on 27 August, of which Carr is a member.  The Committee is currently inquiring into the exemption of laws from the committee's oversight and scrutiny.

It is a cliché of modern political discourse that it is polarised and petty, characterised by partisan bickering along strict party lines.  Carr himself in 1993 referred to me as "Hitler Youth".  But all that is forgiven and forgotten in this Senate Committee where the battles they are engaged in cut across the party and ideological lines.  In many ways their task is bigger than party politics.

The function of this Senate Committee is to review the regulations and other types of laws that ministers and the bureaucracy are authorised to make, known as delegated legislation.  The parliament delegates this authority but retains the power to scrutinise and disallow these legislative instruments, which is exercised primarily by the Senate Committee.

Reviewing the regulations coming out of the government departments has become a mammoth task given its volume.  My research in June 2019 found that the Australian Competition and Consumer Commission alone had 44,160 pages of regulation in force.

While the volume of delegated legislation is an issue in and of itself, far more problematic is that increasingly delegated legislation are not even able to be scrutinised or disallowed by the Senate committees.  Carr spoke of his experience of there being an increasing proportion of delegated legislation exempt from disallowance "which suits the senior public servants — in my experience as a former minister".

The absorption of law-making powers away from the elected representative parliament into the various ministerial departments and government agencies is a trend that has been occurring for a long time, but like with many trends, COVID-19 has accelerated it.  In 2019 about 20% of the delegated legislation was exempt from the disallowance, but in 2020 more than 23% of delegated legislation issued in response to the coronavirus has been exempt.

Between 18 March and 11 June, 171 pieces of delegated legislation were created in response to the pandemic, 40 of which have been exempt from democratic oversight in the form of disallowance.  Among these exempt rules are the declaration of biosecurity emergency and subsequent extensions of the emergency period, travel bans, regulation of therapeutic drugs for COVID-19 including Hydroxychloroquine and Salbutamol, regulating cruise ships (remember the Ruby Princess debacle), restricting the trade of airport shops, regulations on the possession of equipment to limit the spread of COVID-19, implementation and regulation of the COVIDSafe app, and, changes to public sector operations such as pay.

In most cases the exemptions are piecemeal, but in other cases the rules made by agencies, like the Murray Darling Basin Authority, are entirely exempt from scrutiny.  Perversely Ministers can pass regulations exempting entire classes of delegation legislation from oversight.

The transfer of law-making powers to the bureaucracy is a sign of technocratic government.  Instead of the power being held by those people elected, the power to make laws increasingly rest with the pen-pushers in the various departments.

If the trend of the parliament abrogating power to the bureaucracy continues then our democracy is a stake.  If the elected parliament surrenders their law-making power, then casting a vote will become meaningless since we elect will never be able to represent us or change the direction of the country.

The Senate Committee's inquiry may sound technical and wonky but it relates to an important question about Australia's future, not the least of which will be whether we continue to slide into technocracy or whether the parliament will ever reassert itself against the vast machinery of the Canberra bureaucracy.

Dan Vs Democracy

When Victorian Premier Daniel Andrews says that it is "foreseeable" that a state of emergency could last beyond another 12 months, Australians would not be out of place in wondering if that means until or beyond the next state election due in November 2022.  Australians would also not be out of place in wondering what expectations Mr Andrews is trying to manage when he says "I hope we are wrong in predicting this [the virus] will still need rules in 12 months.  Hopefully we have got a vaccine by then."

Perhaps Brett Sutton, Victoria's Chief Health Officer, will declare voting in person a public health risk, and only electronic or postal voting would be allowed.  Or perhaps only those who wear a mask, have a contact tracing application on their phone, or who have received a vaccine if it should be available by then will be given permission to vote in person.

These are heady thoughts, but these are heady times and our freedoms, our democracy and our very way of life are too important for us not to start contemplating them.  Similar issues confront the American electorate ahead of November's presidential election, with Democrats' pushing for postal voting and Republicans preferring the more democratic in person voting due to concerns over the validity of postal ballots.

Of course, Mr Andrews can only use the absence of a vaccine as an excuse for a near-perpetual state of emergency because Scott Morrison has all but confirmed normality won't return until a vaccine is here.  And Mr Andrews knows that the federal government will simply pick up the tab for the economic and humanitarian destruction wrought by the brutal lockdown measures through, for example, extending JobKeeper or JobSeeker payments.

A state of emergency was first declared under Victoria's Public Health and Wellbeing Act 2008 on 16 March and can be extended by four-week increments up to a six-month limit.  This means that the state of emergency must end at 11:59pm on 13 September.  Mr Andrews wants to circumvent this constraint on his power either by introducing amendments to the Act or through a different legislative mechanism.  The Age is reporting that "A third, radical solution would be for the government to invoke an extraordinary power it already has to suspend the six-month limit without the approval of parliament."  This could potentially mean that the state of disaster powers, which were declared on 2 August, could be used to override the six-month limit on the state of emergency powers.

But Victorians and Australians would do well to remember just what these emergency declarations have achieved.  Nearly all agree that a state of emergency was valid and necessary back in March.  Governments did not know what they were dealing with and the consequences of getting it wrong in terms of an overwhelmed and underprepared hospital system were disastrous.  But it quickly became obvious to many by mid-April that the virus needed to be contained without jeopardising the economy.  Alas, we were ignored and instead, the trust and confidence that Australians placed in their premiers has been egregiously abused.  And nowhere more so than in Victoria.

Mr Andrews covered up the Covid cluster which emanated from the Cedar Meats abattoir ― a company which also happened to be a donor to the Labor party.  Then came the hotel quarantine fiasco, responsible for more than 99 per cent of cases genomically tested in Victoria and therefore responsible for the stage-4 lockdown restrictions Victorians are suffering under.  There were also the obnoxious double standards whereby Black Lives Matter protesters were exempt from Covid restrictions.

The lockdowns were petty and excessive, with activities like surfing alone in the ocean vigorously stamped out.  Worse, they were ineffective.  Victoria has had the strictest lockdowns in the nation, but the worst results in terms of rising case numbers and deaths.  Victorians have lost their jobs, livelihoods and freedoms and are now living in a state of perpetual anxiety and panic disproportionate to the public health risk.  Mr Andrews' latest power grab means they are at risk of losing their democratic rights, too.

Mr Andrews claims the state of emergency declaration is the "legal instrument that allows rules about face masks, about Covid-safe work plans in workplaces large and small, [and] density limits in pubs and cafes and restaurants."  This is simply false.  Such requirements, if considered necessary, can be made via Acts of Parliament, rather than through emergency declarations.  But that would mean Mr Andrews would have to face the scrutiny of the Victorian public via the lower house ― the people's house ― sitting as normal again, which is something he wishes to avoid at all costs.

This is no longer about epidemiology or public health.  This is Daniel Andrews versus democracy.

Dan's Divine Rule Betrays Our History

Most Victorians wouldn't have a clue what you were talking about if you said Premier Daniel Andrews was acting like King Charles I.

Coronavirus or not, the government of the state of Victoria ― with its arbitrary police arrests, the locking of people in their homes and the bankrupting of their businesses by executive decree, and the suspension of Parliament to avoid any measure of public scrutiny of the government's actions ― now has more in common with rule exercised by the imagined authority of the divine right of kings rather than with any notion of liberal democracy.

Because so much of the Melbourne establishment ― including its business elites, its cultural leaders, and particularly the legal profession ― as well as Victoria's media have supported Andrews for as long as they have, they're reluctant to acknowledge this truth.

Paul Keating famously declared the upper house of the Federal Parliament to be "unrepresentative swill", but when Parliament isn't there, you notice it ― which is the situation now in Victoria.

This week, when Andrews, after spending the last six months trying to shut down the State Parliament, said he wanted to recall Parliament so his emergency powers could be extended for 12 months, it started to finally dawn on Victorians that enough was enough.  In a poll of 1000 Victorians, 60 per cent of participants said the Victorian Parliament should continue to sit during the COVID-19 pandemic, 12 per cent said it should not, and 28 per cent had no opinion.

That's an overwhelming result.  But if Australians took their parliamentary democracy more seriously, the poll result might have been even more overwhelming.

Taking the country's parliamentary democracy more seriously requires, for a start, knowing where it comes from.  And that is a topic almost entirely absent from Australia's education system.

Practically every aspect of the Westminster-style parliamentary democracy of the Australian Commonwealth and of the states derives from the English Civil War and its consequences.

Yet in the Australian national curriculum ― which is compulsory for all schools, government and non-government, to teach ― there is no reference to the English Civil War.  There are many mentions of Gandhi, Rosa Parks and Eddie Mabo ― but none of Charles I, or Cromwell, let alone Pym or Hampden.  (It's sometimes forgotten that dead white European males did have some role in the creation of Australia's democracy.)

LACK OF HISTORICAL UNDERSTANDING

Today the average Australian 16-year-old would be shocked to discover that British history is responsible for something other than colonialism and slavery.

The absence of the origins of our parliamentary system from the education of young Australians is not an accident.  One of the authors of the national curriculum notoriously dismissed the relevance of the English Civil War to this country by claiming it was "arguably just a series of confused and confusing localised squabbles that may have a special significance for UK history, but not for anybody else (unless they like dressing up in period costume)".

Comments such as this betray precisely the same lack of historical understanding being bequeathed to Australian students.

There's another reason too why the English Civil War has no place in the nation's classrooms.

It has come to be profoundly unfashionable to argue that democratic rights are not the gift of the governments and the United Nations, but are instead inalienable to a country's citizens.  (As is to be expected, under the national curriculum Australian students are taught a lot about the UN.)

The situation is no better in our universities.  In 2017, I surveyed all 746 history subjects that were taught in the 35 Australian universities that offered history programs.  There were 41 subjects that taught the history of cinema and film, while 69 subjects examined the history of gender.  Seventeen subjects covered British history, and of those only seven dealt in any way with the English Civil War.

In other words, only 1 per cent of all history subjects offered by Australian universities dealt with the period of British history from which our parliamentary democracy was derived.

One of the benefits of that parliamentary democracy is that, compared with the fate that befell Charles I, elections are a better way of dealing with overmighty rulers.

You Don't Need To Like Clive Palmer To Dislike His Arbitrary Treatment

The Western Australian government's draconian legislation passed this month to extinguish the legal rights of Clive Palmer and his flagship company, Minerology, is the kind of thing that would not be out of place in a third world autocracy.

A foundational principle of a free and just society is that the law that governs all Australians is not arbitrary, applies prospectively, that court proceedings are fair and government decisions be subject to review or appeal.

These are the principles known as the rule of law and it is these principles that the WA government has thrown aside with its petty legislation rushed through parliament last week.

The background to this extraordinary legislation is that Minerology and the WA government voluntarily entered into a State Agreement in 2002 for the exploration and development of the Balmoral South Iron Ore Project.

When the Barnett government in 2012 rejected a project proposal from Minerology it violated the state agreement that imposed an obligation on the state to at least assess proposals before making a decision.  The dispute came before former High Court judge Michael McHugh QC for independent arbitration who delivered two arbitration awards in 2014 and 2019, finding that the state government was liable for breaches under the State Agreement.

Rather than challenge or appeal the arbitration decisions, WA Attorney-General John Quiggin instead introduced into the parliament a bill seeking to retrospectively nullify the arbitration decisions entirely.  Clause 12 of the Bill provides that decisions or actions in relation to the government's 2012 decision cannot be appealed or reviewed.

It adds that "The Rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to;  or in relation to, any conduct of the State that is, or is connected with, a disputed matter."  The Bill also seeks to make documents connected to a "disputed matter" exempt from freedom of information laws and grants criminal immunity to the states and its agents.

In this scenario, the rights under the arbitration awards gave Minerology a proprietary right to claim damages from the state.  The state, by negating the awards, has effectively expropriated a proprietary interest held by Minerology.

Expropriation of property is a hallmark of tyrannical governments.  Property rights are inextricably tied to individual liberty and limited government.  As United States founding father and second president, John Adams, famously said:  "Property must be secured or liberty cannot exist."  This is because an economic system that respects the right to own property and enforce property rights against others tends to strengthen individual autonomy and independence from the state.

The government's move is without justification.  The arguments in favour of the Bill have been to suggest that schools would be shut and nurses put out of work to pay a damages bill of $30 billion.  But Palmer himself asserts that he has not claimed that amount and the hearing to determine damages was scheduled to take place in November 2020.

Premier Mark McGowan has declared the state is "in a war" with Palmer, who has been branded an "enemy of the state".  This is the kind of language that might be applied to a person who is accused of treason.  But Palmer's only crime has been to raise a challenge to the WA border closure rules.

Undoubtedly Clive Palmer has his critics, but he is an Australian and is entitled to argue that the Australian Constitution should be applied, and to raise a challenge if he has standing to do so.  The WA government should respect this basic entitlement of Australian citizenship, not make a declaration of war.

The WA government's excessively petty response is incredibly dangerous.  The confirmation that the government is prepared to legislate away its liabilities presents a very real risk to any business who is considering investing in the state.  This is the definition of sovereign risk.

Scaring away capital and investment is the last thing Western Australia needs as the country crawls out of depressed economic conditions imposed in response to COVID-19.  But this is what the government is risking by pulling away at the threads of the rule of law.

The rule of law is the basic principle the separates the West from the rest of the world.  In the World Justice Project's Rule of Law Index 2020, 8 of the top 10 best performers for the rule of law were in Europe, while number 7 and 9 were New Zealand and Canada respectively.  Australia ranked 11th, above the United States and the United Kingdom.

Australia's political and legal system has a good reputation but this requires a commitment to uphold the rule of law.  Decisions like those of the WA government, as well as the arbitrary nature of the lockdowns imposed nationwide this year, demonstrates a recent failure to meet these basic standards of lawmaking.

While no government can claim to have a perfect record the WA government's response in its dispute with Minerology is a shameful betrayal of a core Australian legal tradition.

Vision Of Justice

"Justice is the end [goal] of government.  It is the end of civil society," argued James Madison, one of the Founding Fathers and the fourth president of the United States, in the Federalist No. 51.  Writing in the year that the First Fleet of British ships arrived at Sydney, Madison understood that citizens need to believe in the fundamental justness of a political regime for it to survive the test of time.

This is why it is short-sighted to dismiss as juvenile the tearing down of statues, cancelling of old movies and removal of products from shelves deemed offensive.

These actions are a part of a broader conception of justice based on identity politics, which holds that the primary moral unit and therefore that which is of most relevance to justice and politics is group identity.  What matters is not the content of one's character, but what biological, racial, or gender tribe one belongs to.

The identity politics view of justice is incompatible with the traditional Western notion of justice which is based on the inherent dignity and equality of all individuals, from which notions such as equality before the law and the rule of law are derived.

These two competing conceptions of justice were on display in the recent Black Lives Matter protests.

Mainstream Australians who had been patiently and diligently obeying social distancing rules were exasperated that apparently an entirely different set of rules applied to the protesters.  But what actually happened was that two entirely different regimes were operating side by side:  the mainstream regime based on the equal application of the law and the identity politics regime based on grievance, victimhood and claimed racial injustice.

Worse, the elites either actively encouraged the protests which were attended by at least four federal Labor MPs and one Greens MP, or they permitted them to take place without consequence.  The argument that it was too difficult to enforce the law given the number of protestors was clearly a nonsense.  State and federal governments have shut down roughly 80 per cent of economic and social life since mid-March.  If they wanted to enforce the law, they could have.

The protests are just the latest example of a failure of the elites to take the side of mainstream Australians.

The principal institutions of cultural influence in Australia have for decades relentlessly foisted onto us the divisive framework of identity politics.  It permeates the editorials of the ABC, tutorial rooms of universities, board reports of major corporations, pre-game rituals of major sporting codes, memos written by public servants and reports authored by taxpayer-funded bodies such as the Australian Human Rights Commission.

From the boardroom to the classroom and everywhere in between, mainstream Australians are consistently berated as racist, xenophobic, homophobic, transphobic climate deniers.

The reason why Labor, the Greens, and GetUp! campaign against any cut, or even a temporary freeze, to ABC funding is they know the ABC is the chief mouthpiece for identity politics.  This is why GetUp! worked hand in glove with Labor to make ABC funding a central issue at the recent Eden-Monaro by-election.

Winston, the protagonist in George Orwell's 1984, remarked that under Big Brother the past has been "abolished … every record has been destroyed or falsified, every book has been rewritten, every picture has been repainted, every statue and street building has been renamed."  Regime congruence demands that the past must be brought into line with the present.

If Australia is irredeemably and structurally racist, as the identitarian Left contends, then justice demands it be deconstructed and re-written so that the British brought to Australia not liberty, democracy and equality, but violence, racism, and slavery.  This is why statues must be toppled, rather than more being added, and history books re-written, rather than to simply have more discussion of our history.  The point is not to debate, but to alienate mainstream Australians from their own country.

A sign of things to come is the New York Times' 1619 Project, whose objective it is to reframe American history, "understanding 1619 as our true founding and placing the consequences of slavery and the contributions of black Americans at the very centre of the story we tell ourselves about who we are."  The project argues modern America was not founded in 1776 but in 1619 when African slaves were first brought to the British colonies of North America.  The point being that America was founded on slavery not liberty.  A school curriculum with content based on the 1619 Project has to date been adopted in more than 3,500 classrooms in all 50 states across America.

If this is not a culture war, then nothing is.

Fortunately, mainstream Australians have proven remarkably resilient to the division encouraged by the elites.  According to polling undertaken in 2019 and 2020, 71 per cent of Australians believe Australia has a history to be proud of, 88 per cent are proud to be Australian, and 92 per cent believe freedom of speech is an important Australian value.

This polling reflects a reality that there is more that unites than divides us as a country.

Two nurses or mechanics living in Dandenong, Penrith, Longreach, or Elizabeth of different racial backgrounds have far more in common than they do not.  Most likely they own a home and are raising their own family or they aspire to, they work hard and want a better life for themselves and their family, they are honest, dutifully pay their taxes and follow the law, they take people as they are, and if they don't themselves work in a small business one of their neighbours does.

The central debate today is a regime-level one about what it means to be an Australian, with mainstream Australian values on one side and identity politics on the other.  But a house divided cannot stand, and only one vision of justice for Australia will prevail.

There Is No Smoking Sceptre At The Palace

The release of the "Palace Letters" reveals Queen Elizabeth had as much to do with the dismissal of the Whitlam government as did the CIA.

The correspondence, now made public, between Sir John Kerr and Buckingham Palace reveals very little that's new or interesting, other than that Kerr deliberately did not tell the Queen that he was planning to sack the prime minister.  But conspiracies die hard, and no doubt the myth-making about Gough Whitlam's martyrdom will continue unabated.

The relevance of the Palace Letters has less to do with their contents, and more to do with the efforts of some left-wing academics to prove to themselves that the somehow illegitimate actions of Kerr sanctify Whitlam and his government.  The truth is that during the constitutional crisis of 1975 Whitlam had as little regard for constitutional convention as did Kerr, and when Labor was comprehensively defeated at the subsequent federal election, Kerr's decision effectively received a democratic mandate.

The letters are shocking ― but only for those who put so much hope into them.  In a letter dated November 11, 1975 from Kerr to Sir Martin Charteris, the private secretary to the Queen, Kerr wrote:  "I should say that I decided to take the step I took without informing the Palace in advance because under the Constitution the responsibility is mine and I was of the opinion that it was better for Her Majesty not to know in advance."

Charteris' response six days later confirmed the Queen was not informed of the dismissal in advance and noted Kerr acted with "perfect constitutional propriety".

The letters should go a long way in redeeming the reputation of Kerr.  He made the best choice available to him to navigate the political stalemate, while fulfilling his constitutional role and ensuring that the final decision was one made by the Australian people.

If anything, it is Whitlam whose reputation is diminished by the release of these letters.  The letters reveal that following his sacking before the election, Whitlam attempted to have the Queen recommission him as prime minister.  As constitutional expert Professor Anne Twomey of Sydney University has commented:  "So instead of the British interfering in Australia's constitutional system, [it] seems that Gough Whitlam was rather hoping the British would interfere into the system by making him Prime Minister."  This hardly fits the popular stereotype of Whitlam as a proud and independent Australian republican.

The Australian people understood that the cause of Gough Whitlam's dismissal was Gough Whitlam.  At the post-dismissal election in 1975 Whitlam was defeated in the biggest landslide in Commonwealth history, followed by another heavy defeat in 1977.

Despite this, and due in no small part to the angry response to the dismissal, the event has cast a shadow over Australian politics ever since.

No prime minister has changed Australia more than Gough Whitlam.  In a flurry of reform between 1972 and 1975, He established bureaucratic-run healthcare, effectively nationalised higher education with free tuition, and increased public sector numbers and salaries.  He more than doubled the size of cabinet from 12 to 27 to administer all the extra Commonwealth activities.

When the Whitlam-led Labor party was elected in 1972, government spending was 19 per cent of Australia's GDP.  When Labor lost the 1975 election, the same statistic had soared to almost 24 per cent.  In 2019-20 federal government spending was 24.6 per cent of Australia's GDP.

Malcolm Fraser, who was a staunch opponent of the Whitlam agenda in parliament and was in the best position to roll back the Whitlam reforms, left them largely untouched.  Perhaps in response to the rage over Whitlam's dismissal, Fraser ensured his government was largely a continuation of the Whitlam era.  And no government has since challenged the Whitlam legacy in any effective way.

For those who are interested in the future of opportunity and prosperity of Australians, the letters are a reminder of the politically motivated fury that has effectively kept Whitlam's ideas in power for 45 years.

The Palace Letters will not advance the republican cause as it is a niche issue of interest to a relatively small group of people concentrated mainly in academia and the ABC.  Opposition Leader Anthony Albanese is wrong when he said on Tuesday the letters should prompt a renewed discussion about the republic.  Right now the Australian people have far more important things to worry about.

The Tyranny Of The Righteous Mob

"Like Saturn, the Revolution devours its children" is a phrase relevant to what's happening to universities, media organisations, and even to fashionably "woke" comedians.  Another apposite phrase is to be "hoist by one's own petard".

The demand to remove from public life any acknowledgment of anyone or anything identified as potentially racist has existed in various forms for a number of years but has gained impetus in recent weeks through the Black Lives Matter movement.

The call to remove statues in the United States of Confederate generals, in the UK of slave traders, and in Australia of Captain James Cook is one aspect, and in the scheme of things is just one minor aspect in an intellectual project attempting to do nothing less than refashion our understanding of modern society, and by extension our understanding of ourselves.

In broad terms that project involves replacing the idea that the world we live in is, or should aspire to be, one built upon concepts such as political liberalism, egalitarian democracy and a market economy, with a different idea, namely that differences between people and peoples according to class, race and gender, and the oppression that's resulted across history because of those differences, have created an irredeemably and fatally flawed society.

Therefore the conclusion that follows from this claim is that only a fundamental restructure of society can eliminate the class conflict, and the racism and the sexism which are the foundations of the modern world.  This in a nutshell and without too much exaggeration, is what every undergraduate Arts student at every Australian university is today taught to believe.

The problem with this perspective on the world is that it is created by the very system that the woke view as illegitimate.  It is akin to attempting to disentangle the Liar's paradox of "this sentence is false".

Another problem with the perspective is that it knows no boundaries and allows no room for the application of judgment, and an understanding of the reality that human history encapsulates both the best and worst of what it is to be human.

Yes ― Winston Churchill believed India should be ruled by the British.  But 80 years ago he alone was the difference between a Europe of civilisation, or one of Nazism.

It was Jacques Mallet du Pan, an 18th-century Swiss journalist, who in the midst of the French Revolution talked about revolutions consuming their children.  Revolutions are rarely things of half-measures.

Until recently few Australian university vice-chancellors would have contemplated the possibility that after years of telling students that Australia is a racist country, eventually someone would take them at their word, as the Chinese government did a few days ago.

If those journalists at The Guardian who cheer the toppling of statues of slave traders were consistent in their beliefs, they would accept the newspaper they work for should be toppled too because it was once financed by profits from spinning slave-picked cotton.

The British philosopher John Gray, who once described himself as of the left, but who now quite correctly argues that in modern politics "left and right" are largely meaningless, a few days ago wrote perceptively about the assault on values of the modern world.

"Woke activists … have no vision of the future.  In Leninist terms they are infantile leftists, acting out a revolutionary performance with no strategy or plan for what they would do in power."

As Gray points out, the rejection of democracy and liberal freedoms "concludes with the tyranny of the righteous mob".

Mobs are dangerous at the best of times and righteous mobs ― whether in the streets or on social media ― are the most dangerous of all.

Gray concludes:  "As the woke movement spills over into parts of Europe and the UK [and Australia], it should be clear that this is no passing storm.  The paroxysm we are witnessing may be remembered as a defining moment in the decline of the liberal West.  Perhaps it is time to consider to strengthen the enclaves of free thought and expression that still remain, so they have a chance of surviving in the blank and pitiless world that is being born."

Get Back To Where We Once Belonged

"Want to go to the footy?  Download the app." tweeted Health Minister Greg Hunt on 2 May, speaking to Australians as if they were unruly children who need to eat their veggies before they get dessert.  The dessert being a "new normal" where governments hold our freedoms to ransom until we meet the demands of unimpeachable health experts.

Australians have been told that life will not return to normal until a sufficient number of people comply with the government request to download and activate on their mobile phones a programme, known as COVIDSafe, launched earlier this month.  When a person tests positive to the virus, the data the app collects can be used to track, trace, and isolate the outbreak.  Users are required to give consent to the data collection and it is opt-in.

At a practical level Australians are being asked to believe two implausible things.  The first is that this particular app is the only solution that was available to the government and public health authorities.  As Dr Chris Berg and Kelsie Nabben at RMIT University pointed out, the app was just one contact-tracing option amongst several alternatives that involved incorporating advanced cryptography which might be a better protection for privacy than those provided in legislation.  The federal government has given itself broad latitude to use any of the information that has been collected by it through the many exemptions and permissions accumulated over the years.

The second implausibility is that the app will operate as advertised.  Government programmes are not renowned for their efficacy, especially when it concerns technology.  Just think of the mandatory data retention legislation which was essential to protect national security but was quickly expanded to be used by economic regulators and local councils.  It would be optimistic to believe that this app, rushed to release, will run without privacy issues or mission creep.

Nonetheless, reportedly five million Australians have already downloaded the app, leading to speculation that Australians put a low priority on privacy and are not too concerned about encroachments by the surveillance state.  This ignores several important "push" factors.

The app is voluntary in name only.  The paternalistic "footy" tweet by Mr Hunt is consistent with the message of the official pandemic response.  Australians have been told that the social and economic shutdown measures cannot be relaxed until they take part in an extensive technological tracing programme.

If the app were perfectly safe and protected privacy and achieved its goals that would be a remarkable technological achievement.  But it would still not justify the government using our freedoms as a bargaining chip.  Any Australian who has not been convicted of an offence should not be required to do anything ― no matter how seemingly trivial or inconsequential ― in order to do things like visit family, have a social life or worship at a church.  It is coercion, plain and simple.

Interestingly, the people responsible for regulating how this app is used are aware of the potential for coercion.  A regulation passed by Mr Hunt on 25 April includes several requirements about how the data on the app is used and collected.  It also restricts people from coercing others to use the app.  In other words, a person is not allowed to do something like withhold the provision of goods and services or employment to another person on the basis that they have not downloaded the app.  But of course the restriction on coercion doesn't apply to politicians or the chief health officers who are offering our freedoms as part of a trade-off.

Indeed, in his National Press Club address of 5 May, Treasurer Josh Frydenberg said "every Australian that wants to get back to work and every business owner that wants to open their doors again should download the COVIDSafe app."

The idea that a person would need to do anything like this to have and exercise their most basic freedoms is completely antithetical to our history and our political system;  a liberal democracy based on ancient English liberties as expressed through the common law and Magna Carta and so many others, which is precious but vulnerable.

It was inevitable that Australia's political leaders would take action and that governments would address the threat to public health presented by the virus.  This is their job and by and large they have done it well ― we praise them for many of their efforts, such as action on borders.  However, only time will tell if, as James Allan writes, it was all a massive global over-reaction.

Well-meaning and decent Australians have accepted the rules banning gatherings as well as petty restrictions, many of which were never justifiable and which went far beyond good hygiene and social distancing.

It is now well past time to start getting life back to normal.  And that means the true normal, not the New Normal where the onus is on Australians to "earn" their freedoms.

Left's Control Of Higher Courts Under Threat

The progressive reaction to calls for capital-C legal conservatives to be appointed to the High Court — that it would politicise the judiciary — is an insincere attempt to retain its power over the legal establishment.

The High Court's decision in February that indigenous Australians should be treated differently in the Constitution because of their racial identity was the most radical judgement in Australian history.  It destroyed the idea that Australians have about multiculturalism that there was one law in Australia and that everyone was subject to the law in the same way.

The case concerned attempts by the commonwealth government to detain and deport two individuals who were not Australian citizens and who had failed their migration character tests as a result of being convicted criminals.  The individuals descended from indigenous Australians but were born overseas.

The individuals argued — and a majority on the High Court agreed — that a person with these characteristics could not be subject to the commonwealth's constitutional power to make laws with respect to aliens.  The court developed a new category of person — non-alien, non-citizen — based on the idea that people of indigenous Australian descent forever "belonged" to the continent in a way that could not apply to others.

The decision distorted the common law to import a new and incomprehensible legal principle that has fundamentally reshaped the relationship Australians have with each other and with the Australian Constitution.

This has emboldened calls for a change in how judicial appointments are made and the kinds of judges who are appointed to Australian courts.

Predictably, this has been met with accusations that conservatives are attempting to make "blatantly political appointments", as the Judicial Conference of Australia's president, Judith Kelly, remarked in The Australian last month.

In this reading the High Court's decision — which until this case was an inconceivable and unimaginable outcome — was a merit-based resolution and the rejecting of this new orthodoxy is inappropriately partisan.

What is happening in Australia is a reflection of something similar in the US.  Chuck Schumer, the leader of the Democratic Party in the US Senate, on Wednesday threatened Neil Gorsuch and Brett Kavanaugh, the two judges nominated to the Supreme Court by President Donald Trump.

"I want to tell you, Gorsuch, I want to tell you, Kavanaugh — you have released the whirlwind, and you will pay the price.  You won't know what hit you if you go forward with these awful decisions," Schumer told the cheering crowd in response to a hearing into a state law restricting abortion.

Schumer's subsequent apology was likely influenced by the Supreme Court Chief Justice John Roberts's rare rebuke calling the comments "not only inappropriate" but "dangerous".

The instinct to respond in this way is a manifestation of a shared problem.  The cultural left has (in Australia) or had (in the US) an uncontested stranglehold on the legal establishment, and is eager to retain that control.

The allegation that conservatives are seeking a political takeover of the courts is wrong.  The call from legal conservatives for judges with a conservative disposition to be appointed is in response to the century-long politicisation of the courts by progressive judges.  Over this time the Australian Constitution has routinely been rewritten to give untrammelled lawmaking power to the federal government in distant Canberra, dismantle the federal structure, and now to divide Australians on the basis of their racial identity.

The question of what describes a legal conservative includes rejecting the judicial activism that has been a staple of the Australian High Court.  Judicial activism is the name of the broad philosophy of judges to import their own values into the Constitution.  This is sometimes called "living tree" constitutionalism because the constitutional structure is a growing and evolving entity that needs to be updated by the courts to align with the modern situation.

The obvious problem with this philosophy is that this is fundamentally subjective.  Under this school of thought any judge could determine which cultural evolution they would like to import into the Constitution.  In any given era the values of the court will change, meaning that over time the judgments of the High Court would be unpredictable but could nonetheless rewrite how the country is governed.

The law is what the politicians intend for it to mean, but judges in Australia have interpreted this to mean that the law is whatever a judge decides it should be.

Due to the important work of organisations such as the Federalist Society, legal conservatism is now firmly ensconced as a mainstream philosophy in the American legal establishment.  As the comments from Senator Schumer demonstrate, this has been viciously resisted as a threat to the left's institutional hold on power.  The left in Australia knows and fears the same could happen here.

Why The Aboriginal Citizenship Ruling Is Alien To All Ideas Of Law

The utter failure of the federal Coalition, after almost seven years in government, to do anything to arrest the left-wing political activism of Australia's institutions of government and administration was on full display last week.  It's one thing (as bad as it might be) for the ABC, or the Canberra public service, or the country's taxpayer-funded universities to indulge themselves in the progressive cause of identity politics.  But it is altogether more serious when a majority of the High Court does it.

In last week's decision of Love and Thoms v the Commonwealth, four of seven High Court judges ruled that whether Australia's citizenship laws apply to a person depends on their racial background and identity.  In the case of two individuals, Daniel Love and Brendan Thoms, the majority decided that although they were not born in Australia, and were not Australian citizens, they could not be deported following their criminal convictions because as people of Indigenous descent they were not "aliens" under the terms of the constitution.

Two of the majority, Justices Geoffrey Nettle and Michelle Gordon, were appointed by the Abbott government, and a third, Justice James Edelman, was appointed by the Turnbull government.  The fourth member of the majority, Justice Virginia Bell, was appointed by the Rudd government.

If future High Court decisions endorse the majority view that the law should permanently divide Australians according to their race, Love and Thoms could prove to be the most significant and controversial case in the history of the court.

The majority decision in Love and Thoms is so deeply flawed at so many levels, and so at odds with the basic notions of the rule of law, it is difficult to know where to begin.

First, it overturns the notion of equality before the law.

Second, the majority decision means the Parliament no longer has the capacity to decide who can and can't reside in the country, because there is now a class of people beyond the realm of Commonwealth law.

Third, the reasons the majority provides for their extraordinary decision are confused and incoherent, and are grounded in politics and philosophy, not in law.  And the most confused and incoherent judgment is that of Justice James Edelman.  At the age of 46, Justice Edelman could be on the High Court for another quarter of a century.

DANGEROUS TERRITORY

According to Edelman:  "The identity of of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia" and "[Aboriginal people] have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds".  Once a judge starts talking about "metaphysical bonds" they've transcended the realm of the law into something else entirely.

A more fundamental problem rests with Edelman's argument that regards Love and Thoms, not as individuals, but as members of a group he describes as the "Aboriginal people".  Certainly, many individuals of Indigenous descent might regards themselves as "inseparably tied to the land of Australia" — but some might not.

To describe people as members of a group first, and as individuals second, is both dangerous and tragic.  Whether Edelman is engaging in any sort of racial and ethnic stereotyping is for him to answer, but there is certainly the question of whether he would apply the sort of profile of belief he ascribes to Indigenous Australians to any other group of people who were not Indigenous.

Using "metaphysical bonds" to determine whether a person can be deported from Australia the country is highly problematic.  There's of course any other number of "metaphysical bonds" that could connect individuals to Australia.  A great-grandfather in one of the 1200 Australian graves at the VC Corner Cemetery at Fromelles in France is just one such metaphysical bond.

The success of Australia as a multicultural society rests on a core, and up until now, widely accepted principle — namely that all Australians are equal under our political system and in the eyes of the law — regardless of whether their forebears arrived in Australia a generation past or 60,000 years ago.  Last week, either deliberately or not, the majority of the High Court began to gnaw away at that principle.