My knee jerk response is that it should be set out in the legislation that the Minister is limited to considering the person's behaviour while in custody and their criminal record only and the risk should be considered on the balance of probabilities. That at least would stop such legislation being used in other situations. It would take hours with all the material at hand to make a complete comment but those days are behind me.
given the courts dislike of ministers pretending to be judges and given the ultimate result in a number of theses cases will be mandatory detention without end, which is itself legally problematic - it is likely that there will be challenge
So if an intelligence agency discovered a person/group were planning a crime/terrorist attack - and they had not ever offended in the past - they would have to actually commit the crime/terrorist attack before being detained? You were brilliant today in the Misinformation Bill Senate Committee Professor Twomey. Thank you.
Attempting to commit a crime, is a seperate crime in itself. So you would be charged with the attempt rather than actual prohibited behaviour. An example being that attempted murder is a seperate offence for murder. Section 101.6 of the Commonwealth Criminal Code makes it an offence to commit terrorism Whereas s 101.6 makes it an offence to prepare to commit terrorism.
@@saspredydious9295 Thanks. There are still offences concerning conspiracy to commit a crime, etc, and I think there are offences re preparing for a terrorist attack, so there would be other options, depending on what has been done.
Anne, comments in the Constitutional Clarion is probably the best way for non lawyers to make suggestions to politicians due to the esteem in which you are held. As an engineer, I'm suggesting that the ankle monitor can be better designed so as to eliminate the restriction the judges allow - but government is likely to retain the restriction as it is now judicially approved.
Judge imposed punishments are according to laws made by parliament and are somewhat removed from the political process. A high standard should apply. Our laws provide for a particular minister to make decisions for administrative clarity. In many cases, it is the political unit we call the Cabinet making the decision. The minister either agrees to Cabinet decisions or resigns or is sacked. Ministerial decisions that impose a restraint or punishment can be made to a lower standard, if they are made public, as the minister is immediately accountable to the community for the decision.
The point of the doctrine of the separation of powers is that ministerial decisions should not be imposing restraints or punishment. The issue here is whether the 'exceptional' cases where restraints are imposed for a 'non-punitive purpose' should require the same levels of protection as when the same restraints are imposed by courts.
Tasmania’s family violence legislative schemes are strikingly similar to the YBFZ situation. Police officers above a certain rank can issue final restrictive orders, PFVOs, usually of 12 months, “if the officer is satisfied that the person has committed, or is likely to commit, a family violence offence”. In comparison, “a court may make an FVO if satisfied, on the balance of probabilities, that - (a) a person has committed family violence; and (b) that person may again commit family violence.” The bar is higher for the court. In comparison, a PFVO can be issued against a person who has never even been thought to have committed family violence. Tasmania is the only Australian jurisdiction where police have been granted judicial power to issue (and vary) final FV orders.
The ankle monitors need improvement. Anne advised the wearer must spend two 45-minute periods per day hooked to a charging machine at a specific location when the purpose is to know if the area the wearer is in is within the limits of the rules imposed on the wearer. The battery on the monitor should last more than a full day. The battery should be recharged by another battery that clips to the monitor and charges the internal battery by induction. The charging unit should have several locations for charging batteries by induction. This would allow the wearer of the monitor to have a recharge battery on the monitor, and another in a pocket. The recharge unit could have an internal battery that would keep it functioning for several days of electricity outage.
Actually, I didn't go into the full details in the video - but they are in the judgment. I think it was 90 minutes each time for recharging, but there is recharger unit the user can attach to the ankle bracelet while recharging. It is apparently bulky and heavier to wear, and it has to be charged separately by mains power. It's all set out in the judgment if you want to read it.
Hello Professor, A lot of statues have a section for Ministers powers. I always thought of them being broad ranging and wide sweeping. In other words their values, beliefs and experience; isn't that why they get elected? 🤔🇦🇺
That we even talk about not applying restrictions to a non-citizen unless they are present a risk of serious harm is an issue. A non-citizen who presents a risk of any harm, serious or otherwise, to a citizen should be subject to restriction. The Australian government should only concern itself with the harm, or risk of harm, to citizens, not non-citizens.
All human beings present a risk of harm to others. No one can know what a person will do in the future, particularly under difficult circumstances. If you travel overseas, I doubt you would think it appropriate for another country to lock you up indefinitely on the basis that you are a non-citizen and you present a risk of harm, serious or otherwise, to the citizens of that country.
@ actually I would expect another country to do so. A migrant who seeks to enter a country unlawfully commits a crime. A person who seeks asylum should have their movements restricted until their asylum status is determined. If it’s determined they are not eligible for asylum they should be detained and deported where, if they choose, they can apply to emigrate. A non-citizen who commits a crime or serious offence should have their visa status revoked, be detained until they are deported. To be granted asylum, residency, or citizenship is a privilege and should be subject to revocation should a person give reason to do so.
The problem arises because there is apparently no way, in these cases, to force the country of citizenship to accept the detainee as a deportee (Iran and Afghanistan, were such countries as I recall). Perhaps an alternative or parallel way to tackle the problem would be to work towards a system in International Law whereby each country MUST accept the return of their own citizens. But I'll concede, that would be a pretty daunting task!
As a more general thought, the 21st century is seeing a widespread global upswing in migration, of all kinds and in large numbers - we are in a period of "The Great Movement of the Peoples" (as historians in future centuries will call it). So immigration law most countries will find considerable challenges in dealing with unprecedented circumstances. Like Australia's Migration Act 1947 which still harks back to travel by ship, in many ways ... all those references to "the master of a vessel" etc.
I'm a little confused as to the naming conventions of Australian high court cases - you've had videos on the NZYQ case and now the YBFZ case - I assumed that the former case in some way involved a New Zealander but I'm less sure now - are these just randomly assigned names or do they have some specific meaning?
When the court proceeding involves a protection visa, then the court must use a pseudonym to protect their identity. In accordance with s 91X of the Migration Act 1958
@@JamesVCTH Thanks. Yes, they are pseudonyms. NZYQ had nothing to do with New Zealand. I think the four letter ones are easier to remember (at least for me) than the ones with numbers, like Plaintiff M68/2015.
@@constitutionalclarion1901That whole set of Plaintiff M6x cases does my head in (M61, 63, 64). Fully agree that the four letter ones are more memorable - maybe we could lobby for some more vowels in them to give them cute pronunciations?
Yeah the Federal Government has to find a way to deal with the outcomes of the High Court however, should not shortchange freedom of an individual who has not committed an offence in this country as of yet. Furthermore I am of the opinion that the Federal Courts should be dealing with all criminal matters subject to their jurisdiction instead of State/Territory Supreme Courts. What do you think about this? Am I wrong?
This whole matter is a "dog's breakfast". I was of the belief that ALL those subject to the monitoring process had previously committed a serious crime (either overseas or in Australia). Clearly only some of these people have committed a serious crime. If arrival as an illegal immigrant was made an offence that was subject to mandatory supervision (as opposed to being detained in an Immigration Detention Centre). This offence could be for a limited period of time (several years) and after that time the illegal immigrant's status could be reviewed. The left-wing civil-libertarian in me says all of this is wrong but at the end of the day we do need some control over who comes to Australia. I don't know what's the correct answer; but resolution by a court would obviously go some way to resolving the problem. Thanks for your challenging but informative videos. PS: The three books behind you with the blue/white/green cover slips bother me. The book on the right has its slip "slipped up". Could you have a look and resolve a serious problem for a serious pedant 😁😜🤔🫢😵💫😬
If you don't follow the law in regard to immigration, you are outside any litigation and therefore an illegal alien, jailed until deported imo... not indefinately for profit as is currently the way... home you go asap unless threat to life in doing so
@@12cm32 The issue with the people these videos have been about is that NO OTHER COUNTRY WILL TAKE THEM not even the country they left from. Iran is a serial offender in this case. One solution might be to drop them off at the embassy of their home country and leave them there (at the front door?). But then what do you do with the illegal immigrant who has no documentation and refuses to state where they come from. This happens quite often and is done quite deliberately.
@@peteranderson7497 I think the books you are referring to are three books on the Constitution of India. I will fix the cover now. (They don't often get used, so not sure how it got out of alignment).
@@constitutionalclarion1901 Thank you! You have resolved my pedant itch! I should send you a picture of my own library; not a fly cover out of place. Seriously, I do appreciate your content. On the current subject, years ago in a former life I worked for the Dep't of Immigration in IT. I managed the systems for tracking arrivals and departures. I have a very humorous story about the infamous Ozzie Bob Trimbole, but that can wait for another time. Thanks again!
The minister is not impartial. So the whole process is flawed. Establishing fact is very difficult. Opinions are easy but, everyone has one. The minister will essentially be a hostile witness.
So what do we do then? Indefinite detention seems harsh. Many are just trying to provide a better life for their families. Eg. if you lived in the USA after last Tuesday, wouldn't you want to find somewhere better to live? 🫢🤔😵💫😬 These videos are about the relative few illegal immigrants who have a serious criminal history either in their homelands or in Australia. This is a very small number relatively.
As far as I'm aware, it is not a criminal act. We are a party to treaties that accept that people can arrive and claim refugee status, which we as a nation will then assess.
Dog's breakfast Prof. What is wrong here is the High Court deciding that the ongoing detention of non citizens whilst awaiting removal is "punishment". You can make the arguments regarding the judicial power, but the notion that ongoing detention is "punishment" is political not judicial. And we now have people who have been convicted of crimes, who are awaiting removal, who will not receive a migration outcome under any circumstances, living freely in the community for no good reason. By what definition is that "better" than detention? How is one "punishment, but the other is not? Meanwhile, the community, concerned by the idea that those who have failed the character test contained within S501 of the Migration Act, have their concerns ignored due to an extraordinary piece of overreach by the High Court. It is a simple fact that people who have committed crimes, who will never be issued a permanent visa, are now living freely in the community, how is that a good thing? That the will of the parliament to restrict the movements of such people is now subject to endless interventions by the judiciary due to their decision that detention awaiting removal is punishment is simply appalling. This will not end well.
They cannot be removed either because they are stateless or they are owed non-refoulement obligations. So their removal is not foreseeable, so their detention is no longer legitimate under separate of powers.
They are applying legal and constitutional principles in a complex area of law, which is their job. You might find it difficult to understand, but you would probably find that also the case in relation to any subject that requires knowledge and expertise which you do not have. It should not be a ground for criticism.
@@constitutionalclarion1901 Clearly the courts are being used to frustrate the good governance of the nation. Why else are appeals lodged constantly against legislation, Also, what do you know about the constitution that I do not?
As you say, the constitution reserves punishment for judges. In the Boer War, but probably after the constitution was agreed, the British Empire held Boer communities in concentration camps to allow them a certain freedom of movement to look after themselves, while being restricted from attacking the British. In WW2, we detained the German Jews from the Dunera in concentration camps at government direction. It was part medical quarantine, part whatever. There is significant unreported story to this in that the camp staff did not see them as dangerous, but the government probably wanted them somewhere where they would not see military train movements which were kept secret.
"The British held Boer communities in concentration camps to allow them a certain freedom of movement to look after themselves, while being restricted from attacking the British". Nothing could be further from the truth. Conditions in the Boer concentration camps were terrible. There was overcrowding, meagre rations, no sanitation and no medical care. Many people (especially children) died of malnutrition and diseases like typhoid and dysentery. Please look up Boer concentration camps 1899-1902 before you make comments like this.
The individuals being discussed have no legal right to be in Australia. If they could be deported, they would. How illegal non-citizens are to be dealt with is a political decision. All over the world the treatment of illegal immigrants is hotly debated in numerous countries. It’s a highly political topic. The High Court should have no role in deciding the fate of illegal non-citizens. Illegal non-citizens are outlaws.
Every exercise of government power involves matters of politics and matters of law. The High Court has no interest in the politics of immigration, just that the law is upheld when the government exercises power.
@ here the HC is overturning law, not upholding it. Notice that the High Court and Prof Twomey aren’t actually quoting the constitution because I don’t think it explicitly describes the convention that the courts have the right to incarcerate rather than the Executive
@@surturz Section 71 of the Constitution invests judicial power singularly in the courts. The power to punish someone is a judicial power, therefore it cannot be exercised by the executive alone. This was first established in the Wheat Case in 1915 (decided by judges who were involved in drafting the constitution in the 1890s) and later expanded upon in 1956 with the Boilermakers case. The reason Anne isn’t being explicitly legal is because she’s trying to give a layman’s explanation of the law. The High Court is upholding a century of established constitutional case law.
Thanks to @JamesVCTH for the answer below. Yes, it is the doctrine of the separation of powers that the High Court was upholding. As stated, that doctrine has been applied by the High Court for over a century. It is imposed by both the text and structure of the Constitution. Section 71 gives explicit 'judicial power' to the courts - not to the executive government. Punishing people is a judicial power. The Constitution also gives the High Court jurisdiction over constitutional matters and the judicial review of actions by Ministers. Judicial review of ministerial decisions to ensure that they comply with the law and the Constitution has been in existence since the Constitution came into force. None of this is new or surprising.
If someone is a substantial risk to do harm then it should be left to the court to consider the question, than a politician. A politician is never impartial, are often looking too extend policy for political point scoring. And they love throwing our money into the courts to defend their position.
Muscle Car Bear has posted this comment in several C.C. videos and ignored the polite responses. So I suggest people just downvote his/her posts unless he/she comes up with something different.
Such incredible education. I just had no idea i was so interested in australian constitutional law.
Yeah, she does expand the gray cells.
Thanks. I'm really glad there are people who appreciate these videos - not just those who are here to throw mud.
These videos are very valuable and interesting. I hope to see more people interested in constitutional law.
My knee jerk response is that it should be set out in the legislation that the Minister is limited to considering the person's behaviour while in custody and their criminal record only and the risk should be considered on the balance of probabilities. That at least would stop such legislation being used in other situations. It would take hours with all the material at hand to make a complete comment but those days are behind me.
What are the odds that a minister has the necessary epistemological wisdom to make such a judgement?
Good to see/hear the how and why of the court's decisions and the, slowly growing, smarter response of the govt.
Glad it was useful.
given the courts dislike of ministers pretending to be judges and given the ultimate result in a number of theses cases will be mandatory detention without end, which is itself legally problematic - it is likely that there will be challenge
So if an intelligence agency discovered a person/group were planning a crime/terrorist attack - and they had not ever offended in the past - they would have to actually commit the crime/terrorist attack before being detained?
You were brilliant today in the Misinformation Bill Senate Committee Professor Twomey. Thank you.
Attempting to commit a crime, is a seperate crime in itself. So you would be charged with the attempt rather than actual prohibited behaviour.
An example being that attempted murder is a seperate offence for murder.
Section 101.6 of the Commonwealth Criminal Code makes it an offence to commit terrorism
Whereas s 101.6 makes it an offence to prepare to commit terrorism.
@@saspredydious9295 Thanks. There are still offences concerning conspiracy to commit a crime, etc, and I think there are offences re preparing for a terrorist attack, so there would be other options, depending on what has been done.
@@constitutionalclarion1901Just checked and Benbrika himself was (inter alia) convicted of a preparation offence, [2009] VSC 21
Thanks. Yes, it rang a vague bell, but I didn't have the info to hand when I replied.
Anne, comments in the Constitutional Clarion is probably the best way for non lawyers to make suggestions to politicians due to the esteem in which you are held. As an engineer, I'm suggesting that the ankle monitor can be better designed so as to eliminate the restriction the judges allow - but government is likely to retain the restriction as it is now judicially approved.
Judge imposed punishments are according to laws made by parliament and are somewhat removed from the political process. A high standard should apply.
Our laws provide for a particular minister to make decisions for administrative clarity. In many cases, it is the political unit we call the Cabinet making the decision. The minister either agrees to Cabinet decisions or resigns or is sacked.
Ministerial decisions that impose a restraint or punishment can be made to a lower standard, if they are made public, as the minister is immediately accountable to the community for the decision.
The point of the doctrine of the separation of powers is that ministerial decisions should not be imposing restraints or punishment. The issue here is whether the 'exceptional' cases where restraints are imposed for a 'non-punitive purpose' should require the same levels of protection as when the same restraints are imposed by courts.
Tasmania’s family violence legislative schemes are strikingly similar to the YBFZ situation. Police officers above a certain rank can issue final restrictive orders, PFVOs, usually of 12 months, “if the officer is satisfied that the person has committed, or is likely to commit, a family violence offence”.
In comparison, “a court may make an FVO if satisfied, on the balance of probabilities, that - (a) a person has committed family violence; and (b) that person may again commit family violence.” The bar is higher for the court. In comparison, a PFVO can be issued against a person who has never even been thought to have committed family violence. Tasmania is the only Australian jurisdiction where police have been granted judicial power to issue (and vary) final FV orders.
Thanks. That's a very interesting comparison.
🙏🙏🙏
The ankle monitors need improvement. Anne advised the wearer must spend two 45-minute periods per day hooked to a charging machine at a specific location when the purpose is to know if the area the wearer is in is within the limits of the rules imposed on the wearer.
The battery on the monitor should last more than a full day. The battery should be recharged by another battery that clips to the monitor and charges the internal battery by induction. The charging unit should have several locations for charging batteries by induction. This would allow the wearer of the monitor to have a recharge battery on the monitor, and another in a pocket. The recharge unit could have an internal battery that would keep it functioning for several days of electricity outage.
Actually, I didn't go into the full details in the video - but they are in the judgment. I think it was 90 minutes each time for recharging, but there is recharger unit the user can attach to the ankle bracelet while recharging. It is apparently bulky and heavier to wear, and it has to be charged separately by mains power. It's all set out in the judgment if you want to read it.
Hello Professor,
A lot of statues have a section for Ministers powers. I always thought of them being broad ranging and wide sweeping. In other words their values, beliefs and experience; isn't that why they get elected?
🤔🇦🇺
The problem here is the imposition of punishment, which is ordinarily reserved for courts, not the executive government.
That we even talk about not applying restrictions to a non-citizen unless they are present a risk of serious harm is an issue. A non-citizen who presents a risk of any harm, serious or otherwise, to a citizen should be subject to restriction. The Australian government should only concern itself with the harm, or risk of harm, to citizens, not non-citizens.
All human beings present a risk of harm to others. No one can know what a person will do in the future, particularly under difficult circumstances. If you travel overseas, I doubt you would think it appropriate for another country to lock you up indefinitely on the basis that you are a non-citizen and you present a risk of harm, serious or otherwise, to the citizens of that country.
@ actually I would expect another country to do so. A migrant who seeks to enter a country unlawfully commits a crime. A person who seeks asylum should have their movements restricted until their asylum status is determined. If it’s determined they are not eligible for asylum they should be detained and deported where, if they choose, they can apply to emigrate. A non-citizen who commits a crime or serious offence should have their visa status revoked, be detained until they are deported. To be granted asylum, residency, or citizenship is a privilege and should be subject to revocation should a person give reason to do so.
The problem arises because there is apparently no way, in these cases, to force the country of citizenship to accept the detainee as a deportee (Iran and Afghanistan, were such countries as I recall). Perhaps an alternative or parallel way to tackle the problem would be to work towards a system in International Law whereby each country MUST accept the return of their own citizens. But I'll concede, that would be a pretty daunting task!
As a more general thought, the 21st century is seeing a widespread global upswing in migration, of all kinds and in large numbers - we are in a period of "The Great Movement of the Peoples" (as historians in future centuries will call it). So immigration law most countries will find considerable challenges in dealing with unprecedented circumstances. Like Australia's Migration Act 1947 which still harks back to travel by ship, in many ways ... all those references to "the master of a vessel" etc.
I'm a little confused as to the naming conventions of Australian high court cases - you've had videos on the NZYQ case and now the YBFZ case - I assumed that the former case in some way involved a New Zealander but I'm less sure now - are these just randomly assigned names or do they have some specific meaning?
When the court proceeding involves a protection visa, then the court must use a pseudonym to protect their identity. In accordance with s 91X of the Migration Act 1958
@@JamesVCTH Thanks. Yes, they are pseudonyms. NZYQ had nothing to do with New Zealand. I think the four letter ones are easier to remember (at least for me) than the ones with numbers, like Plaintiff M68/2015.
@@constitutionalclarion1901That whole set of Plaintiff M6x cases does my head in (M61, 63, 64). Fully agree that the four letter ones are more memorable - maybe we could lobby for some more vowels in them to give them cute pronunciations?
Agreed. I had real problems when teaching referring to the correct 'Plaintiff M...' or 'Plaintiff S...' case. It got too confusing.
Yeah the Federal Government has to find a way to deal with the outcomes of the High Court however, should not shortchange freedom of an individual who has not committed an offence in this country as of yet. Furthermore I am of the opinion that the Federal Courts should be dealing with all criminal matters subject to their jurisdiction instead of State/Territory Supreme Courts. What do you think about this? Am I wrong?
Criminal matters go to State courts because the Federal Courts do not have the experience to deal with them (or the facilities, like jury rooms, etc).
This whole matter is a "dog's breakfast". I was of the belief that ALL those subject to the monitoring process had previously committed a serious crime (either overseas or in Australia). Clearly only some of these people have committed a serious crime. If arrival as an illegal immigrant was made an offence that was subject to mandatory supervision (as opposed to being detained in an Immigration Detention Centre). This offence could be for a limited period of time (several years) and after that time the illegal immigrant's status could be reviewed.
The left-wing civil-libertarian in me says all of this is wrong but at the end of the day we do need some control over who comes to Australia. I don't know what's the correct answer; but resolution by a court would obviously go some way to resolving the problem. Thanks for your challenging but informative videos.
PS: The three books behind you with the blue/white/green cover slips bother me. The book on the right has its slip "slipped up". Could you have a look and resolve a serious problem for a serious pedant 😁😜🤔🫢😵💫😬
If you don't follow the law in regard to immigration, you are outside any litigation and therefore an illegal alien, jailed until deported imo... not indefinately for profit as is currently the way... home you go asap unless threat to life in doing so
@@12cm32 The issue with the people these videos have been about is that NO OTHER COUNTRY WILL TAKE THEM not even the country they left from. Iran is a serial offender in this case. One solution might be to drop them off at the embassy of their home country and leave them there (at the front door?). But then what do you do with the illegal immigrant who has no documentation and refuses to state where they come from. This happens quite often and is done quite deliberately.
@@peteranderson7497 I think the books you are referring to are three books on the Constitution of India. I will fix the cover now. (They don't often get used, so not sure how it got out of alignment).
@@constitutionalclarion1901 Thank you! You have resolved my pedant itch! I should send you a picture of my own library; not a fly cover out of place.
Seriously, I do appreciate your content. On the current subject, years ago in a former life I worked for the Dep't of Immigration in IT. I managed the systems for tracking arrivals and departures. I have a very humorous story about the infamous Ozzie Bob Trimbole, but that can wait for another time. Thanks again!
The minister is not impartial.
So the whole process is flawed.
Establishing fact is very difficult.
Opinions are easy but, everyone has one.
The minister will essentially be a hostile witness.
The criminal act is entering a country without consent.
So what do we do then? Indefinite detention seems harsh. Many are just trying to provide a better life for their families. Eg. if you lived in the USA after last Tuesday, wouldn't you want to find somewhere better to live? 🫢🤔😵💫😬
These videos are about the relative few illegal immigrants who have a serious criminal history either in their homelands or in Australia. This is a very small number relatively.
No babies without license!
As far as I'm aware, it is not a criminal act. We are a party to treaties that accept that people can arrive and claim refugee status, which we as a nation will then assess.
Dog's breakfast Prof. What is wrong here is the High Court deciding that the ongoing detention of non citizens whilst awaiting removal is "punishment". You can make the arguments regarding the judicial power, but the notion that ongoing detention is "punishment" is political not judicial. And we now have people who have been convicted of crimes, who are awaiting removal, who will not receive a migration outcome under any circumstances, living freely in the community for no good reason. By what definition is that "better" than detention? How is one "punishment, but the other is not? Meanwhile, the community, concerned by the idea that those who have failed the character test contained within S501 of the Migration Act, have their concerns ignored due to an extraordinary piece of overreach by the High Court. It is a simple fact that people who have committed crimes, who will never be issued a permanent visa, are now living freely in the community, how is that a good thing? That the will of the parliament to restrict the movements of such people is now subject to endless interventions by the judiciary due to their decision that detention awaiting removal is punishment is simply appalling. This will not end well.
They are not awaiting removal. The regime applies exclusively to persons for whom there is no reasonable prospect for removal.
They cannot be removed either because they are stateless or they are owed non-refoulement obligations. So their removal is not foreseeable, so their detention is no longer legitimate under separate of powers.
But they are not awaiting removal as there is no prospect of removal…
It's all pretty esoteric and convoluted legality. What is the judiciary trying to achieve?
To make judgements of law?
@@ZodiacKillers Well they are doing a lousy job!
They are applying legal and constitutional principles in a complex area of law, which is their job. You might find it difficult to understand, but you would probably find that also the case in relation to any subject that requires knowledge and expertise which you do not have. It should not be a ground for criticism.
@@constitutionalclarion1901love this
@@constitutionalclarion1901 Clearly the courts are being used to frustrate the good governance of the nation. Why else are appeals lodged constantly against legislation, Also, what do you know about the constitution that I do not?
As you say, the constitution reserves punishment for judges.
In the Boer War, but probably after the constitution was agreed, the British Empire held Boer communities in concentration camps to allow them a certain freedom of movement to look after themselves, while being restricted from attacking the British. In WW2, we detained the German Jews from the Dunera in concentration camps at government direction. It was part medical quarantine, part whatever. There is significant unreported story to this in that the camp staff did not see them as dangerous, but the government probably wanted them somewhere where they would not see military train movements which were kept secret.
"The British held Boer communities in concentration camps to allow them a certain freedom of movement to look after themselves, while being restricted from attacking the British". Nothing could be further from the truth. Conditions in the Boer concentration camps were terrible. There was overcrowding, meagre rations, no sanitation and no medical care. Many people (especially children) died of malnutrition and diseases like typhoid and dysentery. Please look up Boer concentration camps 1899-1902 before you make comments like this.
The individuals being discussed have no legal right to be in Australia. If they could be deported, they would. How illegal non-citizens are to be dealt with is a political decision. All over the world the treatment of illegal immigrants is hotly debated in numerous countries. It’s a highly political topic. The High Court should have no role in deciding the fate of illegal non-citizens. Illegal non-citizens are outlaws.
Every exercise of government power involves matters of politics and matters of law. The High Court has no interest in the politics of immigration, just that the law is upheld when the government exercises power.
@ here the HC is overturning law, not upholding it. Notice that the High Court and Prof Twomey aren’t actually quoting the constitution because I don’t think it explicitly describes the convention that the courts have the right to incarcerate rather than the Executive
You speak as if we've always lived like this, where states dictate travel. Crazy.
@@surturz Section 71 of the Constitution invests judicial power singularly in the courts. The power to punish someone is a judicial power, therefore it cannot be exercised by the executive alone.
This was first established in the Wheat Case in 1915 (decided by judges who were involved in drafting the constitution in the 1890s) and later expanded upon in 1956 with the Boilermakers case.
The reason Anne isn’t being explicitly legal is because she’s trying to give a layman’s explanation of the law. The High Court is upholding a century of established constitutional case law.
Thanks to @JamesVCTH for the answer below. Yes, it is the doctrine of the separation of powers that the High Court was upholding. As stated, that doctrine has been applied by the High Court for over a century. It is imposed by both the text and structure of the Constitution. Section 71 gives explicit 'judicial power' to the courts - not to the executive government. Punishing people is a judicial power. The Constitution also gives the High Court jurisdiction over constitutional matters and the judicial review of actions by Ministers. Judicial review of ministerial decisions to ensure that they comply with the law and the Constitution has been in existence since the Constitution came into force. None of this is new or surprising.
If someone is a substantial risk to do harm then it should be left to the court to consider the question, than a politician. A politician is never impartial, are often looking too extend policy for political point scoring. And they love throwing our money into the courts to defend their position.
Is this the silly woman who believes in the King of Australia?
What do you mean? It is a legal fact that there is a King of Australia so it is not a question whether someone believes it.
So called "Republicans" when they observe the kings birthday public holiday in Australia 🗿
Muscle Car Bear has posted this comment in several C.C. videos and ignored the polite responses. So I suggest people just downvote his/her posts unless he/she comes up with something different.