tag:blogger.com,1999:blog-24338064.post8370641376023781215..comments2024-02-11T19:28:27.997+11:00Comments on Personal Reflections: Chaos, confusion and the evolving Section 44 messJim Belshawhttp://www.blogger.com/profile/10075614280789984767noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-24338064.post-90030348810848919762017-11-11T18:17:08.775+11:002017-11-11T18:17:08.775+11:00Leaving shortly, kvd. Briefly, the High Court has ...Leaving shortly, kvd. Briefly, the High Court has been considering these matters as the court of disputed returns, a power conferred on it by the Commonwealth Electoral Act. Under that Act, "COMMONWEALTH ELECTORAL ACT 1918 - SECT 376<br /><br />Reference of question as to qualification or vacancy<br /> Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question." More later<br /><br />Jim Belshawhttps://www.blogger.com/profile/10075614280789984767noreply@blogger.comtag:blogger.com,1999:blog-24338064.post-74577436019936968402017-11-11T17:47:52.174+11:002017-11-11T17:47:52.174+11:00"nor do we know that the Parliament will actu..."nor do we know that the Parliament will actually refer the cases to the High Court"<br /><br />So, you are suggesting that only 'The Parliament' may refer such knotty cases to the High Court? If so, the inmates really are in charge of their asylum.<br /><br />The High Court has said that the law is fairly clear; it is a constitutional matter, so that means any change is by referendum; so where's the further debate? <br /><br />What relevance, or any relevance, are you attaching to the "Parliament failed to address the constitutional issue even when it was recognised as a significant problem"<br /><br />And "when" was it "recognised"? And how could "Parliament... address" a problem not (thankfully) actually within its remit?<br /><br />kvd<br /><br />ps every time I see some pundit suggesting that the law is obviously an ass, I think to myself that at least it's a 2,000 year old ass Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-24338064.post-70062131527761434482017-11-11T15:39:58.625+11:002017-11-11T15:39:58.625+11:00Hi kvd. Just to clarify my position. I do regard t...Hi kvd. Just to clarify my position. I do regard the High Court as a central element in our democracy. It is the Court's role to interpret the constitution. Both black letter and brutal literalism are descriptors of the approach the Court had adopted. I might wish that they had adopted a different approach. but they are the authority. Once the Court has ruled, that lays down interpretation of the law until either the Court changes its mind or the law, in this case the constitution is amended. <br /><br />To a degree, I think that your last comment misses the point. When you talk about the "letter" of the law, you are talking about the law as interpreted by the Court and as expressed in its most recent judgement. It is not the Court's fault that the political process has everybody digging and seeking legal advice on how to interpret the Court's rulings for subsequent use. <br /><br />If I understand the three cases on which QC advice was obtained, they had been through a formal renunciation process but the acceptance of renunciation was not received until after nominations. This is different from Mr Roberts belated ad hoc approach. The issue now is whether or not that was sufficient in light of latest Court interpretation. <br /><br />In a less febrile atmosphere the matter would have been allowed to rest, with all parties ensuring that their processes were made exactly compliant. We don't know what the Court might rule, there seems to be some doubt, nor do we know that the Parliament will actually refer the cases to the High Court, but all this is adding load to the Court and costs to others.<br /><br />I also note, as I have previously suggested, that it is not the Court's fault that Parliament failed to address the constitutional issue even when it was recognised as a significant problem. <br /><br /> Jim Belshawhttps://www.blogger.com/profile/10075614280789984767noreply@blogger.comtag:blogger.com,1999:blog-24338064.post-55725483586158041362017-11-11T15:08:10.031+11:002017-11-11T15:08:10.031+11:00I mean - what do you want? "Emanations from a...I mean - what do you want? "Emanations from a prenumbra":<br /><br /><i>they have a penumbra, a dim fringe, a connotation, for they express an attitude of will, into which it is our duty to penetrate and which we must enforce ungrudgingly when we can ascertain it, regardless of imprecision in its expression"</i><br /><br />May as well do away with parliament altogether, and let the HC decide what's best for us - according to the latest 'emanation' from the 'prenumbra' as perceived by the current members of same - hey?<br /><br />kvd<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-24338064.post-86256779147265859772017-11-11T14:54:58.528+11:002017-11-11T14:54:58.528+11:00No, Jim, you are not alone in your thought; I saw ...No, Jim, you are not alone in your thought; I saw today that maybe Pat Dodson is also under a cloud. And if he is, well, let the light shine in - imo.<br /><br />The thing is, do you hold as base that our High Court is a legitimate 'third arm' of our democracy? I don't like the references to "black letter law" and what was that other one - "Brutal literalism" - yes, that's it. As if it's somehow the fault of our present High Court that this nonsense has come about.<br /><br />I think, either you "stop digging" and basically turn a blind eye, or you adhere to the letter of the law. I vote for option #2 - as the only actual certainty we are presented with at the moment.<br /><br />kvd<br />Anonymousnoreply@blogger.com