Law – Notebooks

In Her Lane

First published in Quadrant Online on 10th November, 2023 as The Language and Logic of Sedition

Whether she was aware of the threat from early on in the campaign, or only fully realised its extent in conducting the post-mortem, Janet Albrechtsen exposed the wound in her article entitled Radical Idea About ‘Occupied Australia’ Must Be Confronted, published a fortnight after the referendum in The Weekend Australian.

She noted that, as if to validate the concerns of those like her who had vigorously opposed the referendum proposal, an anonymous group claiming to represent the “collective insights and views of a group of Aboriginal and Torres Strait Islander leaders, community members and organisations who supported Yes” brazenly claimed in an open letter that

Australia is our country … We do not for one moment accept that this country is not ours. Always was. Always will be. It is the legitimacy of the non-Indigenous occupation in this country that requires recognition, not the other way around. Our sovereignty has never been ceded.

What Happens In Wieambilla, Stays In Wieambilla

First published at NewCatallaxy blog, 4 January, 2023

Six people died at Wieambilla. Not two. Not three. But six. Almost lost in the public clamour about the deaths of the police officers, is the death of the neighbour, already attributed to the now-dead occupants of the property. Unlike the police officers, he was not doing his job, he was not following the orders of his boss. He was being a neighbour.

The three occupants of the property have been tried and convicted of three murders in the court of mass media mediated opinion. And that, ladies and gentlemen, is the only trial they will get. The Queensland Police Special Emergency Response Team (SERT) has ensured that. No-one in public discourse has offered a word of dismay or regret for the deaths of these three people. Let me do so. I am dismayed that these people are not in custody. I regret that they shall not be put on trial so that allegations against them can be tested. There will be a coronial inquest, but that is no substitute for a trial in which the interests of the defendants are forcefully put. Who will cross-examine the police?

This leads to the burning question that no-one is asking: why are these people not in custody? A police recruiting document for SERT included the following elements of the job description:

Hate-speech legislators discover freedom of speech

Merkel Says Big Tech Shouldn’t Have Power to Decide Who Has Free Speech

French Government “Shocked” at Twitter Banning of Trump

UK minister: Trump ban shows Twitter taking “editorial decisions,” could mean regulation

World governments condemn tech-induced censorship of President Trump, plan to regulate (featuring Michael McCormack)

Isn’t it wonderful that leaders who were previously fanatical in outlawing “hate-speech” have seen the light? Well, it would be if they had, but there is not the slightest hint that they have changed any of their opinions. They have seen an opportunity to achieve two useful results. Continue reading “Hate-speech legislators discover freedom of speech”

Jeremy Bentham on the seal of confession

Jeremy Bentham (1748-1832) was a philosopher, economist and writer on jurisprudence. He is most well-known for his development and expounding of utilitarianism. He considered that the object of legislation should be “the greatest happiness of the greatest number.” Bentham was an atheist, and a strong proponent of the separation of Church and State. In 1827, John Stuart Mill edited Bentham’s writings on jurisprudence into the five volume Rationale of Judicial Evidence.

His opinion concerning the seal of confession is of topical interest. In Rationale, Bentham considers the case where priests can be forced to testify concerning any felony, but the application to the case of child sexual abuse is obvious, though less widely applicable.

Bentham takes as context for his arguments a country in which Catholicism is “barely tolerated,” and its withering desired, though no coercion is applied to that end; for example, the United Kingdom of the early nineteenth century. Of countries where Catholicism is granted equal standing with other religions – contemporary Australia for instance – he writes that the necessity of protecting the seal of confession “will probably appear too imperious to admit of dispute.” Apparently not. Continue reading “Jeremy Bentham on the seal of confession”

Who won?

On the morning of April 7, national television relayed the announcement of my verdict from the High Court. I watched in my cell on Channel 7 as a surprised young reporter informed Australia of my acquittal and became still more perplexed by the unanimity of the seven justices.

That is George Cardinal Pell writing on My Time In Prison for First Things magazine. The surprise and perplexity reflect the response of the majority of those hearing this news. Those of us who were delighted by the news had long experienced perplexity, though not surprise, at the years of relentless persecution of George Pell. We were in a tiny minority. We still are.

Was Cardinal Pell’s eventual acquittal, then, a victory for the Australian justice system? Was it a re-affirmation and consolidation of the principle of the rule of law? Has justice been served? Continue reading “Who won?”

Endemic Pandemic Panic

[A version with slight differences was published 27th April, 2020 on Quadrant Online QED.]

The previous “pandemic”, commonly know as Swine Flu, was caused by a type of Influenza virus known as H1N1. Spanish Flu was also caused by an H1N1 variant. The disease was first detected in Mexico in 2009, and initial reports gave what was eventually seen to be an exaggerated view of the morbidity and mortality of the disease, but, as a paper on the response of Australian emergency departments put it, [a]lthough the severity was subsequently shown to be of less concern, the initial response was, and necessarily had to be, based on the information available at the time. That assumption is invalid, for reasons to be outlined. Nonetheless, the response to that pandemic was somnolent compared to our betters’ instituting a totalitarian state (with a sunset clause) just 10 years later.

Continue reading “Endemic Pandemic Panic”

The Burden of Proof and the Pell Case

[Originally published by Quadrant Online on 30th December 2019. Published in Quadrant Magazine March 2020.]

The conviction of the guilty is just; it is the unremarkable business of a just criminal jurisprudence; but the conviction of the innocent strikes at the heart of Justice. If it happens through error or negligence, it is bad enough; when it happens by design, it is an abomination that corrodes trust in the law itself.

Maimonides in the 12th century, in this commentary on Exodus 23:7 (Keep far from a false charge, and do not kill the innocent and righteous, for I will not acquit the wicked) concluded, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way.”

Continue reading “The Burden of Proof and the Pell Case”

The Willing Suspension of Disbelief

[Published in Quadrant April 2019, and on Quadrant Online as Memoirs of an Abused Altar Boy, which included links to various documents.]

…so as to transfer from our inward nature a human interest and a semblance of truth sufficient to procure for these shadows of imagination that willing suspension of disbelief for the moment, which constitutes poetic faith. Samuel Taylor Coleridge

In May of 2015, the royal commission came to town, and opened public hearings in the Ballarat Magistrates’ Court on Tuesday the 19^th, with Justice McClennan presiding. Counsel Assisting, Gail Furness SC, outlined the evidence that was expected to be given, and a number of victims gave evidence about the abuse they suffered. The next day’s proceedings opened with the evidence of Gordon Hill about his abuse at the hands of priests and nuns while he lived at St Joseph’s Home in Sebastopol near Ballarat. He was followed by number of other witnesses, some of whom alleged that they had informed the then Father George Pell about abuse centred on the Ballarat East parish, where Pell was, for some time, an assistant priest. David Ridsdale also repeated his allegation that Pell attempted to bribe him to keep quiet about his abuse at the hands of his uncle, the then Fr Gerald Ridsdale.