October 21

Constitutional health and safety

The NSW Premier Kristina Keneally's decision to renege on a deal to implement uniform national laws on occupational health and safety has led the Prime Minister Julia Gillard to threaten to withhold $144 million in reform incentive payments from the state.

” A deal is a deal,” declared Ms. Gillard. “We require the deal to be honoured."

There is a major constitutional issue here which we reported on 16 February 2010. As we said then, Australians can now see what the country would be like under a politicians' republic.

Some of our politicians do not like the idea that each and every one of us should be subject to the same law applied in the same courts.  Fortunately, the High Court has reminded them of the Constitution.

  …see what they would do in a politicians' republic, and shudder….     

For republicans – and as far as we can see, all of the politicians involved are committed republicans –  seem to have a very feudal idea of the law. They think that it is quite proper to apply special, onerous laws to one class of people, that is, employers, large and small. Employers are of course those who make profits by taking risks and give other people jobs.

Until this decision NSW employers were subject to an absolute duty of care to their employees. This was enforceable by a summary criminal procedure in an industrial court. There was even an attempt to exclude the supervisory jurisdiction of the Supreme Court and thus the High Court.     

 ….more like a Soviet court….    

Another extraordinary feature of this draconian law was to give unions a good share of the substantial fines collected; another was to conduct a criminal trial as if we lived in something resembling more the old Soviet Union, rather than our common law. 

Note that the High Court has not terminated this machinery. It has however subjected it to the Constitution.

It is fortunate indeed that our constitutional system specifies two areas to be beyond political control. One is the Australian Crown, the other is the judiciary who remain in allegiance neither to politicians nor to political parties but to the Australian Crown.

By a landslide in 1999 the people refused to remove the Australian Crown and allow the political class to move into the consequent vacuum.

…remember what they tried to do….

Both before and after the referendum, republicans expressed concern about the dismissal provisions of the 1999 republican model.  The leading republican Professor George Williams ( who debated the issue with me late last year) has expressed his concern about this.

This was not, as some republicans now claim, John Howard's model. It was the model preferred by the overwhelming majority of  republican delegates – 86% – at the 1998 Constitutional Convention.  

Under this the president could be sacked at ant time by the prime minister without notice, without reason and without appeal.

Can you imagine any lawyer voting in favour of that?  Well, just remember even some former judges – blinded by their fashionable boredom with the Crown they had sworn to serve – actually supported this provision which would have turned the president into the prime minister's poodle.   

….NSW Star Chamber exposed…      

The High Court case was Kirk v Industrial Relations Commission,  handed down on 3 February 2010.

                           [ To continue reading, click on 'Read more']

The NSW Industrial Relations Commission had found Graeme Kirk, a hobby farmer, guilty of failing to provide a safe workplace. This related to the case of his experienced part-time farm manager, Graham Palmer, who was killed while moving heavy steel using an all-terrain vehicle in 2001.  Mr Kirk had no farming experience and took no part in running the farm due to ill health. While working on the farm, Mr Palmer had incorrectly loaded some steel onto  a vehicle, and had then  cut the corner of a road. The vehicle overturned and he was killed.

The High Court quashed fines totalling $121,000 and said that Mr Kirk had been "treated very unjustly and in a manner" causing "much harm" and that the prosecution was "absurd".

The High Court reminded the republican politicians that they cannot remove specialist tribunals from the supervision of the courts.     

... safeguard based on ancient right of appeal to The Queen in Council….    

 The jurisdiction of the High Court arises from s 73(ii) of the Constitution, which provides for appeals "from all judgments … of the Supreme Court … or of any other court … from which at the establishment of the Commonwealth an appeal lies to the Queen in Council".

A defining characteristic of State Supreme Courts, the judges ruled, is the power to confine inferior courts and tribunals within the limits of their authority. The politicians can’t take this away.

The Court also reminded them there are minimum standards which apply to a criminal trial. And to the credit of the High Court justices, they were unanimous, with Mr. Justice Dyson Heydon wishing to go further in favour of Mr. Kirk.

…the lesson…

The lesson is clear.

Give the republican politicians an inch and they will take a mile.

We have all been warned.




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