| A Modern Tale |
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First they came for the fine defaulters and put them in gaol for previously non-indictable offences and I didn’t speak, not knowing or being aware of the situation, then they came for the bikies and just put them in gaol and I spoke but no-one was listening, then they came for friends and “associates” of the bikies and I screamed but got placed on a good behaviour bond because I spoke out, then they came for the hoons and crushed their cars, cars belonging to their parents, cars belonging to their employers and I didn’t know what to say but in any case the newspapers had whipped up a frenzy about the issue so I became just one dissenting voice yet again, to be ignored. Good governance, laws, social justice, morality and ethics, rights and responsibilities. Good Governance.This is the idea that whichever political party holds government in the Lower House makes laws for the good of ALL the community. Now that in itself is a fascinating concept because according to one former politician you can’t please all of the people all of the time nor even some of the people some of the time. So does that allow the government of the day to simply ignore the minorities or even one person? Well, the idea of good governance is meant to encompass that idea and that the ruling junta, oops, government, should consider even one member of our society. One for all and all for one in fact. Equality and Equity even. It is also about recognising the very foundation of our society that there are the three branches of government, being: - the Legislature, the Parliament, where the laws are made, repealed, modified, addended, annexed, codicil’d, read the first time, the second time, the ‘nth time, debated, maybe even argued for and against, considered by the Honourable Members of both Houses, passed, rescinded, ignored, modified again, tabled and generally given the run around. Unless it suits the vote driven politicians, these things might happen, or if it suits those most Honourable Members, it might get processed overnight, or as in NSW recently, the entire process completed in just 45 minutes. - Then there’s the Executive of government. This branch is not elected by the people unlike the first lot and are responsible for the executing of those laws made by the legislature. Police are the most obvious face of this branch of government but there are plenty of others. To identify just a few, there are: Woods & Forests, Dept fisheries officers, Registrar of Motor Vehicles and his empire, regulatory and non-conciliatory authorities, those faceless “authorised” minions enforcing the directions of parliament, to name but a few. Mostly public service people. This means they are public servants, to serve the public in and for the best interests of the public. (That could well be a topic for a whole new essay.) - And the Judiciary. At the top of the legal tree (“senior management”) there are the judges, magistrates, registrars, masters, benches, tribunals and adjudicators. The lesser group under the same branch includes the lawyers (“middle management”), solicitors, barristers, QC’s and now SC’s, and they can be further divided down to specialists like Criminal Lawyers, Family Solicitors, Public and Administrative Law, Commercial Lawyers, Finance and Banking Law, Injury and Compensation lawyers and the list goes on. Then there’s the lower echelons (“the working class”), court officers, courts administration, stenographers, secretaries, articled clerks, para-legals, et al. But overall this group is responsible for the administration of the law as reported to them by the Executive. This group and this group alone is meant to make the judicial decisions based on many factors and many years of training and education. But this is about the three divisions of government. It is so important that there is much written about it in the Australian [Commonwealth] Constitution. The Constitution even goes on to state that these three branches shall, not may but shall, function independently of each other. This is necessary for the checks and balances in case one of them gets something not quite right. Think of it like a tripod. A tripod is the most stable platform on which to place your camera for example and provides just that, stability. But take away even one leg and it falls over. Make one leg bigger than the others and it becomes at best awkward and cumbersome if it works at all. Good governance is sort of like that. Laws.Well, that is sort of covered by good governance as long as the tripod has equality and equity. Other than the obvious detail that laws are made by the parliament, where do they get these ideas from in the first place? Who, just who, comes up with these laws? In South Australia, one law in particular stands out as being derived from the Executive. Well, the ideas are meant to come from the people, the plebiscites, the youse ‘n me. The idea of petitions holds tradition for the introduction of a new law, or the repeal of an old one for example. A petition is presented to the parliament as a “will of the people”. Well, since parliament is elected by the people it stands to reason that the parliament reflects the will of the people. The people are meant to be represented in that most honourable of institutions by those that claim to represent them. From those ideas or complaints, requests even, by the people by various means the honourable representative member of the House of Assembly, commonly known as the Lower House, draws laws or modifications to existing ones. The principle here is that the laws reflect current public opinion. They should not reflect the values of those politicians directly, or the executive or even the judiciary. That provides for the laws of the land to be derived by the people and for the people. A self-governing society. Wonderful! Social Justice, morality and ethics.This is where it all gets a bit sticky. If the Laws are made for the benefit of the majority, which is how the government gets to hold government by being the majority, then what happens to the other 49 percentile of society? This is covered under the first part of the Legislature, good honest and open debate. The questions of social equality, equity and justice are covered by the laws so made. There are such things as ”defence under the law” incorporated into each Act of parliament so that if a member of our society is charged by the executive they have recourse to a fair defence. This is necessary if they aren’t really criminal or have done anything actually wrong by moral and ethical standards. Good heavens, a person may have made a genuine mistake in their action or even as a deliberate action may have made it as an aberration of their normal behaviour. For example, under the new association criminal laws, they may not even have known the person they associated with had a previous conviction of a specified kind. They may have been reckless even, meaning that they had no knowledge that they were breaking the law, for example. So a fair defence becomes necessary for the checks and balances of potential excesses by the executive. Not that the executive would deliberately pervert the course of justice, but the people who carry out the directives of the parliament and the people, are only human and from time to time make mistakes as evidenced oh so often across the world, even here. What happens when the Legislation (1 of 3) is wrong? That’s why the other 2 parts are independent and not under direct control of the parliament. Thank goodness for that. What happens if both 1 of 3 AND 2 of 3 collude and get it wrong? Well again, the separation of powers as specified under the Australian Constitution allows for 3 of 3, the Judiciary, to interpret the intent and application of those laws. What a great check and balance in the system! Only problem is that 3 of 3 is more often than not bound by 1 of 3 in the way the legislation is written or that they do NOT act independently of the other two. Or worse by far, is that the legislation excludes the Judiciary in the due process of implementation of that legislation. Fortunately, that in itself is simply unconstitutional. The judiciary bears a great burden in the interpretation of the legislation and has the moral and ethical responsibility to consider, well, morality and ethics in their determinations. This is only one reason why this group of necessity needs to be well educated, learn-ed as they say, and have the highest values of society at heart. Their rulings will be analysed, poked, prodded and argued for centuries to come. Politicians come and go by contrast, as do their laws. At this point, I will leave this where it is, books have been written about this subject, great discussions and philosophical debates have raged and this is the subject matter of students of the arts since time immemorial. Rights and Responsibilities.This applies to everyone. The Right Honourable Members of Parliament, members of the esteemed Executive, the legal people and interestingly most importantly, the people who construct our society. This reflects in the aforementioned issues, because as times change, people change, public attitudes change and sometimes even for the better. That is called an enlightened society, evolving and raising the standard to ultimately create a better world that before. But what are rights? Where do they come from? Who has the right to give or deny a right? Who has the right to determine if a person isn’t right? Who has the right to even say what rights you do or do not have? Too many questions here. But let’s put some perspective on this in some small way, let’s look at confiscating and crushing hoon cars as an example. The State – being the government and the apparatus thereof – has made and enforces a law that it is OK to crush cars for “anti-social” behaviour whilst in control of that vehicle. Oh dear me, again more questions now than answers. Let me run with some of these: - The opinion of a Police Officer in that he is hooning, wide open to interpretation by the officer on the spot. Could even be some vindictive attitude by the said officer. Getting back to Rights, we have none in Australia. Australia is the ONLY western nation that does not have a Bill or Charter of Human Rights. Any rights we think we have are usually only those given by legislation which means they can be removed by legislation as evidenced in South Australia under the Serious and Organised Crime (Control) Act 2008. We have “implied rights” under the Australian Constitution and we have Rights afforded by the Rule of Law but the problem with these is they are not defined and each instance needs to be argued, at both great expense and time. We simply have no clear Rights. There is nothing we can teach our children in our schools about what Rights they have. This means they later integrate to society as individuals with no idea of what they can and cannot do. This is a perfect situation for the government as they are then able to dictate those terms and you cannot argue! This also means they have no idea of their responsibility as a citizen. Which is the other half of the Rights and Responsibilities equation, responsibility. This allows for the government to revenue raise, for example, because the citizens keep breaking the law, or infringe on by-laws through ignorance or lack of clear understanding. What a great scheme to keep the punitive funds pouring in to government coffers. Over regulated, over ruled and constantly being forced to pay “fines”, “late-payment fees”, “surcharges” and “levies” for absolutely minor infringements that harm no-one are simply revenue raising and is not conducive to responsible governance. We must, as the people who run our society demand: - An ICAC (Independent Commission Against Corruption) In fact; for the people and by the people - bring back democracy and good governance.
Paul Kuhn. This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Some Definitions:House of Assembly. This is only in South Australia, the Lower House of Parliament. In this house, the majority “take and make” government. These members are voted by district, ie electorates. Their basic title is “MP”, Member of Parliament. Legislative Council. In South Australia this is the Upper House. Each member here is elected by the whole state and represents the whole state. Their basic title is “MLC”, Member of the Legislative Council. What is interesting is that only South Australia uses these terms and definitions. The Lower House for example, in Federal or Commonwealth parliament is called The House of Representatives. This is where the Australian [Federal/Commonwealth] Government resides. Each Representative is once again democratically voted in by their electorate. Their title is “MHR”, Member of the House of Representatives. The Upper House in Federal parliament is called the Senate, each member being a Senator. Each Senator is voted in by ALL Australians. Their title is “Senator". Equity: The principle of fairness and reasonableness. A fundamental concept at law which gives rise to the notions of Natural Justice and the Rule of Law. Natural Justice: often exchanged with the statement “Due Process” but the term Due Process is really an Americanism and has a different meaning in Australia. Here, it means the actual process, the procedure through the legal system. Natural Justice is about equity, for example. The Government is made up of the: Hoon: Actually, remains undefined other than in the media and police officer’s perception. Human Rights: includes such things as, but certainly not limited to: Acts references:SOCCA: The Serious and Organised Crime (Control) Act 2008 – SA CCA: The Criminal Confiscation Act – SA, replaces the PCA, the Proceeds of Crime Act., SA. This one has some very nasty implications and dismisses any idea of equity. ACCA: The Australian Crime Commission Act , C/W. Includes secret hearings and secret evidence which is then passed to operatives under SOCCA which will end up incarcerating people! Bill: the law being considered before parliament, before it becomes a law. Act: The Bill that has completed its way through the house of parliament, duly gazetted and regally assented. The Bill that has become a piece of legislation is an Act. Regulations: nasty little side-lines that often define the Acts. These are based on the Acts and more often that not how they “get” you. They are intended to clarify the Act and are often overlooked but these are the bits that cross the “T’s” and dot the “I’s”. Petition: A statement presented to the Lower House (only) as the “will of the people”. It must be in a particular format and is usually accompanied by tomes of petitioner signatures. So the will of the people needs to comply with regulation or it will not be accepted.. Now, unless you are a lawyer or a well educated “people” your will will not be accepted, will it?
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