Month: February 2017

The Hon Robert French, until very recently the Chief Justice of Australia, gave the 2017 Law Oration about the rule of law in the Banco Court of the Supreme Court of Victoria.  You can read it or watch it here.  He cited authority for a proposition which I occasionally find a failure to grasp bedevils young lawyers’ thinking about problems.  It is that if there is not a law against it, you’re free to do it, in Australia at any rate.  You do not need a positively expressed ‘right’ to be entitled to do something (like be a bigot).  There is in fact no positively expressed right to be a bigot; rather the freedom to be a bigot, to the extent it exists, is an incident of your general freedom not having been curtailed by laws limiting that freedom.  Paradoxically, the Attorney-General would be on stronger ground in asserting the existence of his ‘right’ if his government worked some human rights, like freedom of speech, into the Constitution or even just enacted a federal charter of rights.

Of course sometimes it is nearly impossible to know whether a rule applies, and that is bad.  Incomprehensible laws undermine the rule of law, as do laws which ought never have been made and which are never used (like most of the criminal offences in the Legal Profession Act 2004). What, for example, is the meaning of r. 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, a piece of subordinate legislation made under the authority of the Legal Profession Uniform Law (Vic.)?  That rule, a bad rule, says: ‘A barrister must not engage in conduct which is … discreditable to a barrister’.  Equally poor a law is the prohibition on barristers engaging in conduct which is ‘prejudicial to the administration of justice’, also in r. 8.  What even is the ‘administration of justice’? That is a question I have actually had to think about, and the answer is not entirely clear.  Breach of these rules actually gets prosecuted.

Might this blog post, in which I scorn unduly broad laws made by unelected bureaucrats, which can be used lazily by prosecutors who personally don’t approve of certain conduct of their colleagues even though it does not infringe any specific norm, prejudice the administration of justice by ‘bringing the law into disrepute’ (whatever that means)?

Getting back to what should be a most elementary proposition, what the former CJ said was:

Continue reading “On Freedom”

It is said that 2016 may have been the year in which a coordinated terrorist attack involving bombs and knives reached Melbourne. St. Paul’s Cathedral, Federation Square and Flinders St, possibly on Christmas Day. 400 AFP and ASIO officers and regular police arrested seven men. Four were charged: Abdullah Chaarani, Hamza Abbas, Ahmed Mohamed, and a fourth man. Little is known. Per The Age, ‘Police said the suspects were “self-radicalised” but inspired by Islamic State.’

Tunisians pulled off a few memorable atrocities in the West. A man ran over and killed 86 people in a truck careering along the Promenade des Anglais in Nice. The divorced bisexual French father of three and alleged wife basher at the wheel was shot dead. Though Mohamed Lahouaiej-Bouhlel was Tunisian by birth, and ISIL claimed responsibility, actual links with terrorists still seem remarkably speculative. Such religiosity as he acquired was acquired very shortly prior to the attack, as in the fortnight prior. His phone suggested he loved men, women, booze and drugs. Continue reading “2016: not such a good year (part 4: terror, including genocides)”

Victorious underdogs  With some already noted exceptions, it was the year of the underdog. In the AFL, the Western Bulldogs pulled off an extraordinary Grand Final victory, the fruits of ex-Slater & Gordon man Peter Gordon’s remaking of the club. By contrast, the Court of Arbitration for Sport confirmed the suspension for 12 months of 34 past and present Essendon players, including Jobe Watson. That club won only 3 games and wooden spooned. Watson had to hand back his Brownlow Medal.  The doping scandal was more or less over.

Then the Chicago Cubs won the oddly named World Series in American baseball, breaking a 108 year drought. In Basketball, the Cleveland Cavaliers improbably took the NBA title from the Golden State Warriors, one of the most dominant teams ever in the competition. In English football, Leicester won the premier league competition despite the bookies having them at 5000-1 at the beginning of the season, an extraordinary upset. It was described as a sporting miracle. Continue reading “2016: not such a good year (part 3: Tromps, Trumps, Russia, China)”