Why No Constitutional Legal Remedy in Commonwealth Countries – AU Law & Rights

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  • Mon, Nov 15, 2021 - 09:15am

    #12
    HPHovercraft

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    The New Zealand Bill of Rights

I want to get around to discussing the weird stuff going on in Canada but, before that, it is probably best to get New Zealand (which in spite of, unlike Australia, having a Bill of Rights) seems to be in much the same unfortunate position as Australia into view. I certainly welcome any discussion of the plight of New Zealand.

The Justice and Law Reform Select Committee said that New Zealand was “not yet ready” for a Bill of Rights in the form proposed by the 1985 White Paper, so they got watered down Bill of Rights.

The 1985 White Paper entitled “A Bill of Rights for New Zealand” proposed:

. The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75% majority vote in the House of Representatives or a simple majority in a public referendum;
. The Bill of Rights was to therefore have status as supreme law, thereby causing some erosion to the doctrine of Parliamentary sovereignty;
. The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the Treaty’s status to that of supreme law;
. The Judiciary would have the power to invalidate any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights.

So New Zealand has a ‘Bill of Rights’ but one that still allows “Parliamentary sovereignty” (i.e. the primacy of majority/mob rule) like in Australia. Moreover, it does not contain an “informed consent” clause – just consent for medical experimentation etc, so they can still lie about what one is consenting to (and I dare say they have been doing that, much as elsewhere) and get away with it.

So, it seems New Zealand ended up with something pretty toothless. I’m not sure whether there is more to be said than this.

New Zealand Bill of Rights Act 1990 [wikipedia.org]

HP

  • Tue, Nov 16, 2021 - 12:21am

    #13
    HPHovercraft

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    Canadian ‘Charter of Rights and Freedoms’

I now want to turn to Canada where things begin to get really weird, because Canada ‘seemed’ to have real protections in place. What the hell is going on in Canada? Hopefully we can try to figure that out.

Background on Canadian ‘Charter of Rights and Freedoms’

The Canadian Charter was clearly aiming for something much closer to the US position, since it is a much strengthened form of an earlier Canadian Bill of Rights which was ineffective. But what did they end up getting, in practical terms?

The Charter was preceded by the Canadian Bill of Rights, enacted in 1960, which was only a federal statute rather than a constitutional document. As a federal statute, the Bill could be amended through the ordinary legislative process and had no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights, showing reluctance to declare laws inoperative.[a] The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada.

The Charter only applies to government laws and actions

The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.

This seems to be a common theme, which seems a rather odd limitation to me.

Exceptions

Section 1 of the Charter, known as the limitations clause, allows governments to justify certain infringements of Charter rights, if they can justify them.

Canadian Charter of Rights and Freedoms [wikipedia.org]

In the next few posts I want to repost and discuss an interview regarding Canada originally posted by westcoastjan.

HP

  • Tue, Nov 16, 2021 - 06:22am

    #14
    HPHovercraft

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    Brian Peckford Interview

I’m just reposting the very interesting interview that westcoastjan linked to (with some timestamps and notes for increased accessability).

The LAST SURVIVING ARCHITECT of the Canadian Charter of Rights and Freedoms, The Honourable Brian Peckford, P.C., condemns the Canadian government’s response to the “pandemic”, and consequently its blatant violation of the Canadian Charter of Rights and Freedoms.

Original thread:

Brian Peckford Shooting Straight From The Hip

Rumble video:




Some notes and timestamps

1.00

Governments everywhere in Canada violating the Charter of rights and freedoms

3.00

Section No.1 the one option that governments think they have: Reasonable limits as can be demonstratively justified. Yet no government has even attempted to justify their actions.

They are violating the constitution.

4.30

But the legal processes are so slow that no judgment has been made concerning their constitutionality.

The problem is the facts just do not matter. The facts are all against the governments but they don’t matter

6.00

The problem it is taking too long.

8.00

How reliable are the courts?

The decay of the ethical standards across society.

10.30

The courts have already bought into the lockdown measures themselves, so they are not legitimate.

The trend towards there is nothing basic or fundamental anymore.

We don’t appreciate how frail democracy is.

They aren’t even consulting within their own parliament.

16.30

Technology

18.00

Advisors (Unelected) vs Ministers (Accountable)

process vs outcomes

Ministers are too insecure and have no confidence

Bonny Henry (she is talking but she has no authority whatsoever, although very confident)

24.30

Coming election

Trudeau

How does he just ignore the Charter?

B: I’m starting from scratch with a small party (PPC)

B: We have to reform the whole system.

Both Trudeaus were centrists (centralising to amass more power) and don’t have too much trouble with not telling the truth.

28.00

S: You can’t be unvaccinated. We don’t have that sort of time. What do we do in the meantime.

29.00

All the right notices have been lodged but the outlook is dissmal.

31.00

The People Party of Canada (PPC) are very clear about what they stand for and are opposed to all these violations, vax mandates etc.

Israel is already demonstrating that the vaccines are not working.

32.00

But at this point, governments cannot backtrack.

Dr Tess Lawrie: The facts don’t seem to matter any more

35.00

B: That the facts don’t matter, is the sure sign of the depth of the problem.

Censorship in Social media and MSM

S: How does the Charter apply to these?

B: Section 2B covers “freedom of the press and other media communications”

It is organised and deliberate: TNI

S: How far will this go?

B: Increasingly everything is left to the government (rather than individuals).

43.00

This diminishes the role and rights of individuals and at the current rate our country is finished as we knew it.

46.00

The Trudeau’s globalism. They see the nation state as anachronistic. Esp. in Europe.

49.00

Democracy requires individual participation.

53.00

S: But people feel that they cannot make a difference.

The suppression of events by the MSM.

Dr Charles Hoffe

What’s up next

The interview is a bit puzzling. What exactly happened to the protections in place in Canada and what is the solution to this? Both seem to be either rather vague or taken for granted. Anyway, this meant that this interview raised quite a few questions for me which I am writing up and will post next.

HP

 

 

  • Wed, Nov 17, 2021 - 10:07am   (Reply to #14)

    #15
    HPHovercraft

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    Some Questions Stemming from the Above Interview

I got a lot out of The above interview, which very directly addresses the state of play in Canada, but there is a seeming lack of clarity concerning just what the problem is and how it is to be corrected.

Background

It seems that ALL the governments of Canada have simply decided (not demonstrated) that there are exceptional circumstances and helped themselves to Section 1.

Alas, they really don’t address precisely what has gone wrong in Canada. Perhaps many things have gone wrong. They sort of seem to take it for granted that something has gone horribly wrong. Is anyone able to clarify this or direct me to where I could find further clarification?

So, in spite of quite strong protections supposedly being in place, the outlook in this interview seems to be almost entirely pessimistic. Is there any grounds for optimism?

Some questions that this raises (for me at least)

Why hasn’t this been a problem in the United States? Perhaps it has?

Why hasn’t this been a problem in the United States? Perhaps it has? Moreover, legal action seems to progress quite rapidly in the US, whereas, in Canada, see below.

I keep being drawn back to important cultural differences which would seem to be embodied in the institutions of different societies. One does get the impression that US institutions, although no doubt imperfect, do seem to have been built to resist tyranny from the ground up. Are Canadian institutions, by contrast, inherently tyrannical?

Is the judiciary simply too weak (or slow) in Canada?

Is it that the courts are simply too weak in Canada? There was some discussion of how they had already caved in to these violating measures themselves. The forum seems to be much more characterised by reporting of US legal actions than Canadian ones.

We are told the courts, in Canada, are too slow. This might be another way of making the same point. This sort of thing has presumably been going on for a while now (almost 2 years), so what is the problem?

Is there no Clive of Canada?

They talk about individuals lacking the resources. Probably true, but is this true of all individuals?

Queensland Government faces legal action over plans to create two-class society

United Australia Party Chairman (and rogue billionaire) Clive Palmer said today the party’s lawyers have been instructed to commence legal action against the Queensland Government over its plans to create a two-class society.

I doubt he will be very successful in Australia for reasons that should be obvious by now, but would it have been different in Canada?

What corrective action?

Brian seems to think that the whole system needs to be rebuilt and so reformed. But, just as it wasn’t really clear what the fundamental problem was, there wasn’t much about what sort of reforms and how on earth you can get political institutions to reform themselves?

The Federal election has now passed and the PPC, although gaining quite a significant portion of the vote, did not gain a single seat (WCJ’s ‘crappy unfair electoral system’)? So corrective action by this means looks to be a long way away.

The interview was in Early September. Has anything changed since?

As I noted the Canadian Federal election is over, supposedly with little change. Has anything else changed politically or legally, since the interview?

 Use of the term ‘democracy’?

I have to say that I have long standing worry about the use of the term ‘democracy’ which seems to be exemplified here. Perhaps we need more nuanced terms. Democracy is always spoken of as if it were an unadulterated good. If we are going to give it some clarity, presumably it means something like majoritarian decision making.

Yet, how is the doctrine of ‘parliamentary supremacy’ which is what we clearly have in Australia and New Zealand (God help us!), and what seems to be running rampant in Canada not democratic? It seems that we have societies overrun with emotional contagions (fear, hate etc). How is this at odds with democracy? This seems to be just what subordinating everything to politics (majoritarian decision making) seems to mean. Brian, when he talks about ‘democracy’, seems to mean something much more balanced and less reductive with more checks and balances. This seems to mean judicial checks on democratic decision making. As they both say, both individuals and the facts (something more than mere emotion) should matter.

Conclusion

In the light of all these questions (and there must also be other issues), does anyone have any further leads on what has happened or is actually happening, or, perhaps even, what will happen, in Canada? Or is Canada just a lost cause (a deeper cultural problem)?

HP

  • Mon, Nov 22, 2021 - 07:36pm   (Reply to #14)

    #16
    brushhog

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    Why No Constitutional Legal Remedy in Commonwealth Countries – AU Law & Rights

One of the reasons that the US is fairing a bit better is the issue of states rights. The US is set up as a conglomeration of separate states. This adds a strong check against these types of sweeping federal mandates. States have alot of power and their politics is a reflection of the semi-insulated nature of their people.

So, the people of Montana are alot different from the people in New Jersey. So the laws, systems, and legal structures are different. All those hillbillies that “cling to their guns and religion” who go around praising ‘Murica? You know the ones that everybody loves to make fun of? Those people are standing between us and becoming Australia. If states like NY, NJ, and California had their way, we would already be in lockdown with concentration camps. The red states will not follow which means if the blue states try it, people will leave.

Although there is some merit to the idea that the US’s legal system is different and our constitution implies individual rights, without the attitudes and opinion of the people, they are just pieces of paper that can be ignored, re-interpreted or worked around.

 

Also, dont under-estimate the power of the 2nd amendment. No we cant take on the army individually but there are Americans that WILL shoot, and if enough people mount an armed resistance, that presents a major problem to a government posing as a legitimate extension of the people’s will. Slaughtering your own people and engaging in armed conflicts with them undermines your authority…and if you lose some of those engagements….you risk losing the whole country. Likewise, if you crack down really hard and start slaughtering people..you might lose the country that way too. Its a prickly problem for a would-be tyrant.

  • Tue, Nov 23, 2021 - 12:45pm

    #17
    HPHovercraft

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    Why No Constitutional Legal Remedy in Commonwealth Countries – AU Law & Rights

Hi Brushhog,

Thanks for your post.

One of the reasons that the US is fairing a bit better is the issue of states rights. The US is set up as a conglomeration of separate states. This adds a strong check against these types of sweeping federal mandates. States have alot of power and their politics is a reflection of the semi-insulated nature of their people.

So, the people of Montana are alot different from the people in New Jersey. So the laws, systems, and legal structures are different. All those hillbillies that “cling to their guns and religion” who go around praising ‘Murica? You know the ones that everybody loves to make fun of? Those people are standing between us and becoming Australia. If states like NY, NJ, and California had their way, we would already be in lockdown with concentration camps. The red states will not follow which means if the blue states try it, people will leave.

Yes. We do have this too, perhaps moreso in a way. The states here have been particularly keen to close their borders. I don’t recollect that happening there. In this way, here much of the craziness is being driven by the states and the federal government, which is more conservative than most of them, has been more hands off. So we have the opposite situation from the US. Our Biden is running Victoria rather the Presidency. Unfortunately, the states are also getting a lot of credit (certainly more than the federal government) for their crazy policies (and so are being re-elected in a sort of flight to certainty based on fear).

Moreover, things also seem to be working in the opposite way. The Northern Territory (NT) which is sort of a tropical version of Montana or Wyoming is, for some reason or other, very vax happy (I’m guessing it is dominated by the public sector). One could perhaps also say the same about New Zealand.

Although there is some merit to the idea that the US’s legal system is different and our constitution implies individual rights, without the attitudes and opinion of the people, they are just pieces of paper that can be ignored, re-interpreted or worked around.

Yes, I think they are an expression of the broader culture. This might be part of the problem that the Canadians are having. Though it isn’t quite clear to me how bad things are in Canada. The Canadians seem to have a very weird combination of parliamentary supremacy (which alas we have) and judicial supremacy (which it would be nice to have more of here). As we saw with Snowden, your govenment does seem to like to ignore your constitution.

Also, dont under-estimate the power of the 2nd amendment. No we cant take on the army individually but there are Americans that WILL shoot, and if enough people mount an armed resistance, that presents a major problem to a government posing as a legitimate extension of the people’s will. Slaughtering your own people and engaging in armed conflicts with them undermines your authority…and if you lose some of those engagements….you risk losing the whole country. Likewise, if you crack down really hard and start slaughtering people..you might lose the country that way too. Its a prickly problem for a would-be tyrant.

It is perhaps difficult to see it coming into play with something like the vax mandates. But I am inclined to agree with the conservative view that military power or force is the final arbiter of real politik. Witness what has happened in Hong Kong. Ultimately, states try to secure a monopoly of violence, but one needs to preserve competing centres of power. Otherwise, corruption of the state can be devastating. In Australia, ALL our institutions (governments (state and federal), judiciary, media, medical, medical associations, academic, bureaucratic, unions, corporates) have now failed us.

HP

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