Blog of Wade Making Connexions

UNSW Hal Wootten Lecture 2007

Lecture given by The Hon Michael McHugh AC QC, Former Justice of the High Court of Australia on the topic “The Impact of High Court Decisions on the Governance of Australia”

As per my Cisco note taking effort, this is in braindump style. Readers will also note my non-law-background. This may end up with a bit of an edit at some point. For now, the juice.

- Hal believes in equal access to justice for all minorities and majorities, non-bias equal treatment
- Changes in past High Court Decisions would have seen a de-centralisation of power, keeping states in control. Would have also seen the Trade Practices Act not being able to ‘reach’ into states.
- Constitution states that Federal Law overrules State Law in conflict.
- Section 51 of the Constitution establishes Legislative powers for parliament. It outlines 40 subjects that parliament has power over, such as inter-state and inter-country trade and commerce, census/statistics, currency and copyright. A grant of power for things better dealt with at Federal Levels.
- Chapter 3 of the Constitution is the “Centre Piece”, with Section 71 outlining the judicial powers of the Commonwealth
- Judicial Power is the “Binding and authoritative decision between Person vs Person or Person vs Government on Life, Liberty and Property”
- High Courts sometimes called Chapter 3 Courts, interpret the Constitution and write their own powers
- Constitution contains nothing about State utilities or State awards, meaning out of scope for Federal
- Federal Courts when established couldn’t invalidate state courts as this would render State Courts impotent. If contained in Constitution, Federal Courts can rule over state. Section 107 Discusses.
- River/Dam conservation is a State not Federal Law. Franklin River in Tasmania is an example case of this
- The Reserved State Power Doctrine comes into play
- In 1920, The Reserved State Power Doctrine was over-ruled by a pro-commonwealth high court, granting The right to Federal Industrial Awards to rule over State Industrial Awards; The Engineers’ Case
- The High Court altered the subject of Commonwealth power, extending it into state matters.
- The Power to legislate over matters of trade and commerce, for export or trade must be a concern for the Commonwealth.
- Any Activities, Functions or Relations of Corporations became defined as coming under the power of the Commonwealth since 1971, with an over ruling of a 1965 case
- This gave the Commonwealth the ability to regulate every aspect of the economy.
- An example of Commonwealth interference is the recent Work Choices, evoking the Corporations power.
- Industrial Power was put into the Constitution due to intra-state farming and striking issues of the 1890’s.
- A result of Commonwealth Industrial rulings was Unions moved to Federal level, making State Industrial acts inadequate.
- Works benefited from a standardisation of conditions and awards
- 1926 Federal Roads Act, allows Commonwealth to impose grants to States, Section 96 of Constitution used here to enable this. Was seen to be used by the Commonwealth to dangle carrots in front of States in matters where Commonwealth was impotent. This was challenged by the State of Victoria, but was given the shortest ever ruling from the High court; a 6 line reply.
- An act was injected into the Federal system to see it received income taxes before States.
- States had opportunity in the 70’s and 80’s to reverse the act, and chose not to. Provision has since been removed
- A State based license fee was to be paid on a step or distribution to a point of consumer for products or manufactured goods, enacted upon Alcohol, Tobacco.
- This fee was seen to be a charge on excise, something that states are unable to charge upon.
- Commonwealth stepped up enacting a tax on said items, and using Section 96, paid it back to states.
- “Centralist dependency of the High Court to interpret the Constitution not a surprise due to Social, Economic issues occurring at a National Level. National Issues, National Solution”
- Commonwealth has lost in High Court, example of the Banks Act, where banks wanted to Nationalise, was held invalid by the high court due to Section 92, which entitles free trade between States
- “implied right of political freedom”, Federal System can not impair the rights of Person’s freedom to talk on ? [WM; wish I caught this wording, rather important]
- The changes to the High Court in the 1920’s to pro-Commonwealth Justices reflected a movement to Australia as 1 people, 1 country. The Engineers’ case is the example of this.
- “Courts must operate responsibly to keep in favour of people”
- Sometimes Personal Understandings conflict with Constitution, Judges can not act on Personal. Suggestion of a Bill of Rights created to redress some things that should be unconstitutional, but are currently within Constitution. Work Choices example given. 4/3 majority.
- Alfred Deakin’s saying has come true; “the Constitution left the States legally free but financially bound to the chariot wheels of the central Government”
- Lawyers have many fields of which they can operate due to trained values of reasoned decision making and Justice, rare by valuable.
- Regardless of outside change, Lawyers remain strong with unbias judgments, making decisions on reasoned arguments, which is the basis of Law. Something that seems to be dwindling in Democracies.

Here we go again - another load of self-righteous, legal profession snobbery.

Re: the last point:
“Regardless of outside change, lawyers remain strong with unbiased judgments, making decisions on reasoned arguments, which is the basis of Law. Something that seems to be dwindling in Democracies”

Ironically, the very person making this alleged unbiased statement is himself - a lawyer !

Sadly, that’s not as surprising as it sounds.

One of the great conundrums plaguing the legal ‘profession’ in Australia is their amazingly pompous attitude they have of themselves. They are, evidenced by these types of comments, somehow above the remainder of society, on a higher plane of morality than us non-lawyer ‘plebs’ & therefore, able to make unbiased decisions that the rest of us, can’t, apparently.

The above (alleged) quote by Michael McHugh is a classic example of this. Another example manifested itself during a recent attempt by the NSW State Govt to have judges’ performance evaluated by panels that included both lawyers and, wait for it - shock-horror, ‘outsiders’. When the idea was first mooted, the hue & cry from the legal profession could be heard all the way from their hallowed, leather-and-walnut-clad Macquarie Street chambers all the way to Timbuktoo. For some reason the legal profession still believes it is above the rest of us mere mortals when it comes to accountability from us ‘outsiders’.

To those doubters who wholeheartedly believe in the Profession’s super-human ability to make so-called ‘unbiassed’ decisions (you lawyers know who you are), one need look no further than the frequently overturned decisions of NSW Magistrate, Pat O’Shane.

But to anyone within their ranks who has had the guts to openly stand up and tell it like it really is – watch out. Like Senior Counsel of the NSW DPP Margaret Cunneen, who has bravely fought a lone battle to publicly expose the scandalous dirty tactics of Defence Counsel in child sexual assault and gang rape matters.

In doing so, Cunneen has been ostracised by her own fellow lawyers and judges, been the subject of several complaints to the toffee-nosed Bar Association, and been declined the much-coveted silk after numerous, highly worthy, applications.

Shame on you, ‘Hon’ Michael McHugh, for having the audacity to insult our intelligence with this pompous piffle about your profession and its capacity to make unbiased decisions. You are human beings, after all.

The reality is, sometimes your profession’s decisions are unbiased, sometimes not. But please, don’t spin us the b-s suggestive that your profession is virtually immune to bias, regardless of outside change etc. To suggest as much is complete and utter rubbish. And you know it.

And we, the plebs, don’t buy it.

To borrow your mob’s oft-used phrase,
“I rest my case”.

Hi BigGaloot,

The quote you’re referring to was said by another speaker, not Hon Michael McHugh.

There wasn’t a “higher plane of morality” stance being taken other than the obvious.

Logical Reasoning is a skill that needs to be learnt. There’s systems and structures of arguing that must be followed. This has been the case as far back as the Greeks.

To assume that society, without any form of training or practice has extensive skills in Logical Reasoning is absurd.

Any profession or society has a unique skillset/niche/understanding. For an outsider to think he is an ‘equal’ with the insiders isn’t logical. I’d like to think I’m as good at Quantum Physics, as a Quantum Physicist, but I’d be deluded to think as such.

Morality doesn’t come into this at all. Their mindset is as human as anything else, and was stating a fact, nothing more.

From a non-law background, I found the night extensively informative and enjoyable.
The rest of your comments are talking about something outside of the context of the night, and seem a bit like some dirty laundry I know nothing about. No comments..

Thanks,

Wade

Hi Wade,
you might like to check your original posting. The title of your posting: ‘A lecture given by the Hon Michael McHugh’, and a lack of any information to the contrary, you’ve effectively attributed the comments to Michael McHugh.
:- )

Nevertheless, it matters little as to the actual author.

To recap, what I was conveying was the *fact* that the legal profession is not immune to bias.

I supported this factual evidence with the example of NSW Magistrate Pat O’Shane (reported widely), whose cases are frequently overturned by higher Courts. Now there’s examples aplenty of reported bias in the legal profession, however tried to keep it short & by illustrating perhaps one of it’s worst examples.

Fact: You have quoted someone as stating ‘Lawyers remain strong with unbiased judgements’.

Fact: As evidenced by my point above, lawyers, as human beings (like the rest of society), are not immune to bias. One could argue a corrolory to this is that they therefore cannot ‘remain strong’ with unbiased judgements. Hence to suggest otherwise Wade, as quoted above, is factually incorrect.

Surely you’re not suggesting otherwise, Wade ?

Fact: You stated ‘Morality doesn’t come into this at all’.

Indeed, I would argue morality, or more importantly, a lack thereof, is what its *all* about, Wade. A slip in a judge’s moral compass may lead to biased decisions. Simple stuff. No need to be a Quantum Physicist to understand that mate. ;- )

But surely you are not suggesting to us that all judges and lawyers, by virtue of their profession and training, are automatically unbiased ?

And Wade, rather than stating ‘no comments’ as a full stop to your blog, you might consider following your very own adopted standard of ’systems and structures of arguing that must be followed’.

One of those ’systems and structures’ followed by the ancient Greeks was the principle of fairness. And allowing a person the right of reply.

Lets wait & see if you can do the honourable thing & practise what you preach.

- Big Galoot.

Hi Craig,

As you have seen, a lack of context on my behalf has lead you to false conclusions.

In this same way, the quote you’re discussion is being viewed out of context, and I feel is again leading you to false conclusions.

My apologies for sending you down the rabbit hole. First drinks on me when we next meet.

Peace,

Wade

Hi Wade,
there is not an ounce of malice on my behalf towards you in what I’m saying. I enjoy the thust & parry of logical argument. But lets keep it logical and not resort to condescending comments like “a lack of context on your behalf has led you to false conclusions”.

I take your point re:context. After all, you were at the law lecture and I wasn’t.

The context of what I read in your blog was a lecture about the law and lawers, purportedly given by a Senior Judge, or perhaps several lawyers.

Within that context, the ability of lawyers to conduct themselves in an unbiased fashion was a statement that was made by you in your blog, ie;

“Regardless of outside change, Lawyers remain strong with unbias judgments, making decisions on reasoned arguments, which is the basis of Law. Something that seems to be dwindling in Democracies.”

Context or not, I ask, how else are we to interpret that statement? If need be, clarify for us all the context that, in your opinion, by virtue of its context, effectively nullifies or changes this very powerful statement ?

Furthermore, you’ve suggested that this out-of-context statement has somehow led me to false conclusions.

Through factual evidence, I have concluded that lawyers, as human beings, are not immune to bias. But even in the absence a shred of any evidence, by virtue of their humanity, I believe that it would not be an unreasonable statement to make in the circumstances.

Are you really suggesting to us that this is this a false conclusion ? I’m buggered if I know, and I’d be really interested to hear why. I’m more than happy to accept your offer of a drink & discuss it.

Someone, get me a beer.

-Big Galoot

I’m in!

Bruce Schneier on systems most at risk of being manipulated (judges, NBA refs, IT, Financial etc)

http://www.wired.com/politics/security/commentary/securitymatters/2007/09/securitymatters_0906

Great news…
Fantastic to see Margaret Cunneen, Senior DPP Prosecutor, finally recognised today with a Senior Counsel appointment after 5 previous unsuccessful attempts.

Congratualations Margaret.
http://blogs.news.com.au/dailytelegraph/monty/index.php/dailytelegraph/comments/margaret_cunneen_i_like/desc/