The latest Fairfax-Ipsos poll shows support for an Australian republic stuck at 42%. The poll came after a three week resurgence of republican agitation including a letter signed by all but one state and territory leaders saying the Queen should be replaced by an Australian head of state. Opposition leader Bill Shorten then used his Australia Day address to try to goad PM Turnbull into backing the new push for a republic. Mr Turnbull would have none of it. Is this another case of Australian political leaders pushing into yawn territory?
In Europe, negotiations over the UK's membership of the EU continue.Should the UK withdraw? Could the UK itself survive withdrawal without break-up?
Finally, the position in Syria gets messier and messier. Where will it end?
As always, feel free to go in whatever direction you want!
32 comments:
It will be very interesting to see if the UK exits the EU. When I lived there 20 years ago, there was already considerable resistance to being "dictated to" from Brussels. For some reason, however, membership had become politically polarised - Tories wanted out, Labor wanted in (never quite understood why it polarised in this way).
I suspect Britain could survive. The question is...what would Germany do if Britain left? I was back in the UK three years ago, and there was some consternation expressed by Germany at the thought of a Brexit. It seems to me as an outsider that the EU is potentially in trouble, at any rate. It was already under pressure by the debacle of the single currency and by Greece's default, and now the refugee issue has widened divisions between countries. I don't know what will happen to it. If Britain leaves, will it crumble?
LE
I don't think Turnbull is all hat, but time will tell. I think he is playing his cards quite well to impose the main burden of the tax reform and spending restraint task on the states, where it belongs. Perhaps Turnbull will offer to come to the aid of the states by helping them to restore payroll tax to the source of revenue it was when it was handed over to them.
Regarding Brexit, and what would Germany do? Who knows? In the longer term it might depend on the French. If the French value their economic links to Germany more than their links to Southern Europe they will become less socialistic, Germany will stay in the EU and the EU will survive.
Now is the wrong time for Turnbull to make the Hockey/Abbott mistake. The budget proposals have just gone to the Cabinet committee for the first time and if I were Turnbull, I would be making tweaks, not wholesale changes before an election and getting ready to announce substantive policies as late as possible before calling an election. Shorten's week has been an absolute gift, he's claimed more Ministerial scalps than he would have dreamed possible and STILL he can't get traction. Turnbull needs to (a) get a mandate to protect him from his own party and (b) have three years for people to forget the downside of tax policy changes (that's the part that Hockey and Turnbull got right, but they entirely miscalculated on how far they could push it).
On the UK, LE, I was thinking of the difference in views between England and Scotland on EU membership. If England were to vote to pull out, Scotland to stay in, then it might provide renewed momentum to the Scottish independence movement. England is big enough to stand alone outside the EU, if with some costs, but the impact on Scotland and indeed Northern Island could be painful.
More broadly, my feeling has been that the EU will muddle through. The migration issue has become a real problem I agree - another result from previous foreign policy failures
I haven't checked, Winton, but wasn't payroll tax one of those meant to be abolished as a consequence of the GST on the grounds that it was an economically inefficient tax? With the states, am I correct in remembering that the state proportion of GDP has been in decline while the proportion of their spend over which they have some control has been in sharp decline?
Within the EU, the Eurozone is actually a powerful unifying device. It's hard to see just how that might end. The budget process is going to be interesting, 2t. I wonder how much real room Mr Turnbull has to move?
2T: I think there will be a lot of disappointment if the budget does not provide a plausible plan to eliminate the fiscal deficit within a few years and raise after tax returns on investment (not necessarily by cutting the nominal company tax rate) as well as reducing bracket creep. I expect that requires spending cuts. They can be phased over the longer term, but they will need to begin now to make the scenario plausible.
Jim, I haven't checked either, but I very much doubt that payroll tax was on the list for abolition unless a much higher rate of GST was contemplated. A payroll tax without exemptions and concessions would be quite similar to a GST in terms of deadweight costs. A good tax reform package for the states might be to use land tax to replace stamp duties on land transfers, and restore payroll tax to raise the revenue needed for schools and hospitals.
Regarding the latter point I get the impression that the states are not getting as much revenue as anticipated from GST. However, I don't know what you mean by the proportion of state spending over which they have control declining. I guess it is about dollar for dollar commitments with the Commonwealth. If so, Turnbull could offer some leadership in getting better alignment within the federation between responsibilities for raising revenue and spending.
Winton, I was more suggesting that Turnbull would be keeping his cards as close as possible, possibly even waiting for the PEEFO to spell out the grand strategy. I agree, they are the government and can't do zero, but to hang off a bit 'pending full consideration' might be able to be sold.
BTW, last sentence in my last post should of course have referred to Hockey and Abbott, not Hockey and Turnbull.
Leeches are dreadful creatures. They can move over your skin to take up their position without the slightest indication (by sense of touch, even though you are staring at them) of their movement. They can insert their blood sucking teeth without the slightest sense of pain, they inject some sort of anti-coagulant to assist their engorgement, and they are very difficult to dislodge. And lastly, now bloated with blood, they leave the body with a long lasting burning itch (maybe something in their spit or the maybe the body's reaction?). One of my most watched films is African Queen, and the most skin-crawling scene is Charlie taking his shirt off after a stint in the swamp pulling the boat, and the sight of him removing the leeches.
And that's sort of how I view the EU.
Totally off your suggested topics, Jim, but I just want to record my personal sadness at the death of Justice Antonin Scalia. Now that I'm old enough to have devoted time to close reading, I just want to record my personal appreciation of his brilliant writings. It is probably a cultural or political difference, but we, in Australia, don't seem to pay as much attention to our High Court justices as do the Americans, and I think that is to our loss.
It is probably naive of me, but his consistent refusal to "make" law, as opposed to working strictly with what he was given by the elected governments of the day, is quite a beacon of foundational democracy, as far as I'm concerned. The US faces many heated legal discussions in the near future, but it seems "the Law" is now regarded as just another temporarily biddable tool in pursuit of one ideology or the other - and that is not how I view "the Law".
He was a great servant of the people, and should be honoured as such whatever your political leaning, in my opinion.
kvd
I think it's a pity we don't view our High Court judges with the same reverence too, KVD.
I disagreed with Scalia J's approach on many things (I do not accept his originalist interpretation of the Constitution - language is naturally malleable, no matter what you do) but one has to admire his intelligence and his writing.
One of the things I thought was loveliest in the wake of his death was the response of Ruth Bader Ginsburg, who is diametrically opposite to Scalia in almost all judgments. However, they were great friends: https://www.washingtonpost.com/posteverything/wp/2016/02/13/what-made-scalia-and-ginsburgs-friendship-work/?postshare=2901455437640240&tid=ss_fb-bottom
Ginsburg J wrote a very touching tribute to her "best buddy": http://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends
LE
Malcolm Turnbull masters his brief very well - he is doing a great impression of being a Prime Minister. I am not convinced.
It's becoming more and more tedious to read about how MT is being "held back" on climate change, republicanism and so on by the "conservative" wing of the Liberal party. Really? What is he on about? For "agility" I see compromise and cowardice.
As a postscript, I live in a marginal electorate and in all the years I have lived here I cannot recall a more invisible local Federal member. He would be a shoo-in for membership of the Drones Club (apologies to PG Wodehouse).
So dere Jim, my grate frend, I take up my mitey pen to sa i hav had enuff.
Those links were interesting, LE. I haven’t read any of Justice Antonin Scalia’s judgements, but clearly I should after kvd’s praise. I have always admired the intellectual capacity of Australia’s High Court judges.
I had to look originalism up! https://en.wikipedia.org/wiki/Originalism It’s quite an old debate. To quote from Wikipedia:
“Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis"—the notion that an utterance's semantic content is fixed at the time it is uttered. There are two broad sources of meaning that originalists seek:
• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.
These theories share the view that there is an identifiable original intent or original meaning, contemporaneous with a constitution's or statute's ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application”
In Australian constitutional terms, Parliament is the supreme body. The intent of Governments or individual Parliamentarians is in a sense neither here nor there. It is what was passed that is relevant. It is the court’s role to interpret just what the law means in the context of the individual Act. This means interpreting not just words but the structure of the legislation itself and the relationships within the legislation. Where, as is often the case, the words in the legislation actually diverge from the original intent, then it is up to Parliament to amend the legislation.
In considering legislation, two questions arise. Is the Act or subordinate legislation validly made? This relates especially to the head of power. Assuming the answer to the first question is yes, then what does the legislation mean?
In this context, I would be closer to the original meaning school. Language does shift. Reinterpretation of legislation as a consequence of a shift in language would seem to me to be problematic.
On other matters, kvd’s most graphic description of a leech left open the question of why he thought that description could be applied to the EU. Winton, it is best to come back to the fiscal balance question in another post. I did a quick search looking at some of my previous material, but I need some stats.
Good to see Sue that you have continued the Nigel theme! You “hav had enuff.” Indeed! Perhaps, as 2t suggests, a grand strategy will evolve. It may be, however, that we just have a repackaged same.
I very much agree with your last para Jim. And also, I'd be very interested to read LE's possible expansion of what she meant by "I do not accept his originalist interpretation of the Constitution - language is naturally malleable, no matter what you do" - because it may be that, in my ignorance, I am misinterpreting the comment, however much I agree with the second part of it as a stand-alone view of language.
kvd
Sorry - just to be clear, my preceding comment (8.52 a.m.) was in reply to Jim comment @ 8.25 a.m. re Justice Scalia and originalism.
kvd
Jim, the EU is the bureaucratic reality behind Monty Python's "Cheese Shop" sketch. Wishing not to plagiarise, I chose the leech instead :)
And I also cannot understand how or why the UK's possible discontinued membership in same would result in the demise of the UK. All the EU seems to have achieved is the "averaging down" of the individual cultural identities of its various member states.
kvd
Actually, the EU seems to have achieved German economic hegemony, at least in mainland Europe. To British (euroskeptic) eyes, the EU imposes laws and attitudes inconsistent with Old Blighty, charges the UK a huge membership price compared to other countries and opens up their markets mutually in an exchange of doubtful value.
The economic case for a Brexit might be strong. The political ramifications should probably give everyone a little pause, however.
I hope we don't end up going down the same track as the US, where the Supreme Court seems to have become a legislative body on social issues. Decisions on important social issues seem to end up being made largely made by the Court, rather than by legislation (e.g. civil rights, abortion, gay marriage).
Does this stem from having a bill of rights in the Constitution or from the proclivities of the judges?
Agree Winton - the unwillingness of the legislators to actually legislate risks leaving both our highest courts in the invidious position of unelected legislators. This should never be part of their role, imo.
kvd
Law etc: kvd, I too would be interested in more input from LE.
In my earlier comment, I was going to make a distinction between the Australian constitution (originally an Act of the British Parliament) and normal legislation. The constitution is a framework document, both very detailed and very general. A fair bit of the High Court’s work lies in clarifying meaning, especially in the powers area. Parliament can’t alter the constitution,. so the Court is supreme in the absence of a constitutional referendum. This makes it a different field of law.
The nature of the Constitution Act means that interpretation evolves with circumstances, but the Court is still itself bound by the Act. So we are unlikely to go the US route (Winton’s concern) because our constitution does not allow it.
On the republic (and yes it is yawn territory) I think that this issue, along with SSM and recognition of first peoples should be put to citizen vote only after our elected reps have provided clear legislation to take effect upon such vote succeeding.
That way at least the citizens will be able to understand just what they are voting for, should the vote get up. (This is quite aside from the point that I think SSM should just be legislated for right now)
Another interesting thing at the moment is the Apple-US Govt stoush regarding the court ordered 'hacking' of a particular phone. Despite the loud voices, I hope it goes right to the Supreme court because I think the wider ramifications deserve full consideration.
kvd
KVD at 8:52am, 18 February: My difficulty is that, even at the time it was used, the language of a legal document may not have had a single stable meaning. Moreover, it seems to me necessary that there be some flexibility in interpretation to keep up with modern standards. So, for example, let's say there's an Act still in force from 200 years ago that regulates "vehicles". When it was enacted, "vehicles" did not include cars because they didn't exist, but to my mind, "vehicles" were clearly intended to cover a variety of wheeled conveyances. If the Act is still extant, I would interpret it as covering a car as a vehicle, notwithstanding that the original drafters did not know about cars or specifically intend it to cover cars. Does that make sense?
Moreover, from a policy choice, we want our governing documents to be able to be flexible enough that they can cover new and modern developments, while still remainjing faithful to the general intention of the original document (if you know what I mean by that). Scalia J's approach seemed to me too limited.
That being said, I can see that sometimes this approach goes too far. One example I often give to my class is the Statute of Charitable Uses, which dates from Elizabeth I. Although it has been repealed, it still governs what may be a charity, and it lists a number of purposes, including "repair of highways". A Canadian court said that "information superhighways" could be included in this...I'm sorry, that is just drawing a stupidly long bow. YES, it can include freeways and expressways and all that kind of thing, but information superhighways...that's just ridiculous.
LE
Thank you LE, I now understand your position more clearly. Those are two very good examples. For mine, I have always understood Justice Scalia's position as a reluctance to "legislate from the bench". That is a position I tend to agree with: if a law is deficient in application (information superhighways!) I think it better that the case "fail" (i.e. produce an unsatisfactory or unreasonable outcome), if the elected legislators are thereby stirred to amend the law.
kvd
kvd at 4:36, February 19.I agree with your point on legislation being put forward first so that we know what is being voted on. That includes constitutional changes. Instead of saying do you support a change to the constitution to give the Commonwealth power to, it should say do you support this proposed change to the constitution followed by wording. There have been a couple of referendums where I’m actually not sure just what I’m voting on.
I’m sure that you are right on the Apple one. I haven’t looked at that yet.
To LE and kvd. LE has put the position clearly, although I could actually mount a case re information super highways. I think that a key point is the interpretation of a law should not be twisted or extended just to make the law fit a circumstance. Here I have sympathy with kvd.
Yes, I'm not a fan of twisting the law to suit circumstance. Let it fail and let the legislature deal with it. The arguments mounted for the information superhighway were actually quite ingenious (it allows us to communicate across countries etc etc), but still, I really don't think that the Elizabethans had this in mind. Another difficult situation is when there's not much said at all. We have "implied rights" in our Constitution. When I was a younger lawyer I was a big fan, but now I think...are they really there at all? The arguments are more convincing than information superhighways, but it's still importing something that is clearly not explicit. The difficulty is changing the Constitution - it's so hard to do.
LE
With constitutional rigidity, the High Court becomes the only vehicle for reinterpretation. I guess a purist could argue let it fail and then have it changed, but that becomes a tad messy!
The implied rights one is interesting. Again, I had to recheck - https://en.wikipedia.org/wiki/Australian_constitutional_law#Implied_rights. I would have thought that the decision in Kable v Director of Public Prosecutions (NSW)was a bit sus, although I might agree with the outcome on civil liberty grounds. However, I do think that arguments based on constitutional theory are a valid form. That's worth a post at some point since Australians forget (as they do) the historical and conceptual underpinnings of our system of government at their peril.
On the information super highway, and without knowledge of the details of the case, one could argue a line on intent. The Elizabethans could not have envisaged the highway, but might well see that action to maintain free traffic was an appropriate charitable endeavour. But then, this gets us right back to the starting argument!
Seems to me there's more problems associated with balancing rights, than what actual rights we, each individually or as a society, have.
The Americans place freedom of speech quite highly, so allow the flag to be burnt - but not a (gods forbid) dog. (and I read somewhere that Johnny Cash said he supported both the 1st and 2nd Amendments - i.e. you have the right to burn my flag but I have the right to shoot you if you sneak in to attempt that - or something like that). And then there's freedom of religion but separated from government, which has somehow meant that a memorial of the Ten Commandments may not now be associated with any government building. It's all good; as Ted Cruz proclaims in his run for President - "I'm a born again Christian" - which is the most disturbing thing about this present American election as far as I am concerned.
I think the courts are about that balancing act, but where the balance (following precedent and cold hard black letter law) comes down on the manifestly wrong side of an issue, it is time for the elected to actually exercise their responsibilities.
SSM is such an issue, to me. There is no such monolithic bloc of all gays who all wish to be married, nor do all heteros regard this as anathema, yet this is how the 'debate' seems to be posed. I think the 'balance' should take account of not only the rights, but also the potential harms from any extension, or release, of rights between competing interests. The courts can help here - provided they are only applying what has been enacted by our elected representatives.
It comes back to "who's in charge" - and I naively believe that it is 'the people'.
kvd
KVD - in my area of academic interest, there's been a revival of rights theory. But as a friend of mine said, "Same deck of cards, different deal". Simply saying there's a right to bodily integrity which is balanced against someone else's right to defend themselves in trespass to the person does not get us terribly far. It's still the same problem, just posed in different terms - and it's still difficult to resolve. So I don't think it's the panacea it's presented to be. But I would certain agree with weighing up both sides of the story. As I said to my kids the other day, "Nothing is ever wholly positive for everyone. There's always a downside which you have to recognise." (What a jolly mother I am...!)
As for marriage - yes, difficult one. I'm a heterosexual woman who supports gay and lesbian people getting married if they so wish. I believe that marriage is a private matter between two people. On the other hand, I would not support the extension of marriage to polygamy on public policy grounds - there has to be limits to freedom. I've read a number of articles and writings lately which convince me that polygamy is ultimately not good for women, and not good for those men who miss out on wives (creates a very frustrated underclass!). *BUT* presently a polygamous overseas marriage is more recognised by our law than an overseas same sex marriage, which is an interesting dilemma.
LE
I suspect that you are already training the kids to be lawyers, LE! And balanced people, of course.
Philosophy and law have a lot in common. Both are concerned with meaning, both involve deconstruction of arguments, both involve the subsequent rebuilding of logical structures.
kvd wrote: “I think the courts are about that balancing act, but where the balance (following precedent and cold hard black letter law) comes down on the manifestly wrong side of an issue, it is time for the elected to actually exercise their responsibilities”, He then gave same sex marriage as an example, concluding “It comes back to "who's in charge" - and I naively believe that it is 'the people'”
One difficulty is that the people aren’t a monolith. Majoritarianism nearly always leads to what Drummond called the oppression of the minority. To avoid this, a working political system has to accommodate different views, has to actually constrain the majority from unbridled exercise of power.
In the end, politics is not just about power or service delivery, but also involves conflicts in values. The logical constructs we develop to make things work including accommodating shifting values are just that, constructs. Sometimes things don’t work because policy or programs are badly constructed. Here we have objectives and results. More often, we have conflicts in values and beliefs.
Current politics and systems in Western countries suffers, I think, from a belief that politics and public policy is about efficiency and effectiveness, but efficiency and effectiveness to what end? Too often, the underlying value assumptions are ignored.
Trying to pull my muddled thinking together and going back to philosophy and law, both seek to make logical structures explicit so that they can then be subject to scrutiny.
Just want to record my appreciation for the comments of both LE and Jim in this thread. Which is not to deny others; more just to acknowledge their attention to a thread I am very interested in.
kvd
:) 'in' - yes I know: up with which I will not put
Why thank you kvd on our collective behalf! I have just put up yesterday's post following up on the refugee issue.
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