July 30, 2020

Horse 2739 - Rainbows Have Nothing To Hide But Banjos Might

"Why are there so many songs about rainbows and what's on the other side?"

This is the opening song that Kermit The Frog sings in the 1979 movie "The Muppet Movie"; which to this day, I have no idea whether that's the name of the movie or the movie within the movie that the movie is ostensibly about.

To specifically answer Kermit's question, I had a scavenge around the internet to find out how many songs actually address the question "about rainbows and what's on the other side" and came up with exactly one: this one.
The very next line of the song informs us that "Rainbows are visions but only illusions; rainbows have nothing to hide"; which explicitly tells us that there is nothing on the other side of a rainbow. I will go so far as to say that owing to the way that light is bent through water droplets, that there is in fact no other side of a rainbow and that they only exist relative to the observer. In fact, every rainbow that everyone has ever seen, is on the other side of the observer relative to the light source.

Wow.

Er...

I have run out of rant.

I really should have thought this through a bit better because now I am playing with the fourth wall and it's all gone a bit meta; which is kind of like The Muppet Movie itself.

No. Only joking. Actually what I wanted to rant about was Kermit's banjo and all of this was just an elaborate framing device.


Although the answer is not reliable, I have it on the flimsiest authority that Kermit The Frog is 24 inches tall. Using scalar calculations, I can establish that the scale length of Kermit's banjo is 17 inches.

The scale length of any chordophone is the distance from the nut to the bridge. This is the length of the string when played open (that is without anything else being done to it) that vibrates and produces the root note for that string. As western music decided a long time ago to use a 12-tone system and we can not escape basic physics, then the next highest octave is exactly half way between the nut and the bridge. If you mark off any interval between the nut and the bridge, then you get a different note and voila, you have the most fundamental explanation of how every stringed instrument in the history of ever works.

If you look more closely at Kermit's banjo, after you have ignored the obvious facts that he is a puppet and that this is a movie prop (we are playing inside the world created within the suspension of disbelief), then you can see that because he is so small, the banjo only has four strings; which I assume are tuned to the standard tuning for a four string banjo, of CGDA.
If this is the case, then Kermit's banjo with a short 17 inch scale length and in standard tuning, would have very sloppy tension across the strings; which would be advantageous if you are only a small frog trying to play the banjo. I think that we are led to believe by the soundtrack, that this is a short scale banjo rather than a banjolele or other instrument.

Even so, once you are prepared to accept all of that, it is still quite an effort for a 24 inch person to be playing a 17 inch banjo. I am near enough to being six feet tall as makes no difference and if I had a banjo which was in proportion to Kermit's banjo, then the scale length would be a monstrous 51 inches. That's well beyond the length of normal instruments and gets beyond even that of double basses, which are in general no bigger than 44 inches. Also as an aside,  the end part of a stringed musical instrument's bow that encloses the mechanism responsible for tightening and holding the bow hair ribbon is called a 'bow frog'.

Here's the thing that I have never been able to ascertain. I do not know if Kermit has a banjo because this is a piece of self insertion by Jim Henson or whether this is something else. Remember, Rowlf the Dog is a piano player and there are musical items all of the way through the Muppet canon. The reason for my confusion has to do with Steve Martin showing up as a waiter in the film (who also is inexplicably wearing shorts while working as a waiter).
Steve Martin apart from being a comedian (let's be honest, The Muppet Movie itself is a framing device for a series of vignettes with a revolving cavalcade of 1970s stars), is also a Grammy Award winning bluegrass banjo player. In fact, Steve Martin probably got his start in comedy by playing funny songs; which is a pretty common route for a comedian. I have wondered for a while if the actual banjo player, is in fact Steve Martin.
I make mention of this because while listening to a podcast this week, I heard Steve Martin say that the bluegrass festival that he was supposed to appear in, was cancelled due to the ongoing pandemic; he said that he would have to go back to playing the banjo in the swamp like Kermit.

I will also readily admit that in writing this I am also asking "What's on the other side of 'songs about rainbows and what's on the other side?'?" which relative to me as the observer, is now getting on for several layers of meta in this mental mille-feuille as well as being an elaborate framing device for a series of vignettes with a revolving cavalcade of barely connected thoughts clunking around.

July 28, 2020

Horse 2738 - Blacktown and Cheese

The Canadian dairy company Saputo Inc. which is the parent company which owns the Warrnambool Cheese and Butter company, has decided that it is going to change the name of Coon cheese.
Perhaps unsurprisingly, the wingnuts and the racists have come out from under their rocks and have made their feelings known across the media, as though changing the name of cheese was a violation of their heritage.

The only things which have ever existed since the beginning of time, are the stuff in the world and the people who care about that stuff. As for the people who care about that stuff, those same people overlay stories about the stuff in the world and the people in the world over the stuff in the world and the people in the world. The reminder here is that stories are important.

The relevant story here is that Coon cheese was named after E. W. Coon of Philadelphia who invented the process "for ripening cheese, consisting of supplying, through suitable means, humidified air"; which itself has become known as 'cooning'. While that might be a perfectly rational explanation of why the name is what it is, the amount of triumphalism which has followed is pathological.
The outrage behind changing the name of a brand of cheese seems strange to me. I can understand why perhaps we might want to celebrate an Australian cheese pioneer but an American one? Is there something I am missing here? Of all of the metaphorical hills to choose to die on, people choose this one?

Imagine my surprise when I was listening to the radio this week and this discussion turned towards changing the name of the place where I live, from Blacktown to something else because it is also seen as racist.
What makes this particular iteration of this grand discussion interesting is that now that all of the local newspapers have been shut down, epicenter of the media in Sydney has shifted even further to the east. I have serious doubts whether anyone working for either the Daily Telegraph or the Sydney Morning Herald lives to the west of the A3, or whether any of the people who have voices on the radio or the television as presenters do either. Certainly, all of the callers on this radio program, were all from the east of the city. I wonder how many of them had actually been to Blacktown in the past five years.

Before I proceed any further, I have to declare that I actually do live in the local government area of Blacktown City Council; which has the seat of government in the eponymous name of Blacktown. I see the name far more often than people whose most likely connection is to see it on indicator boards at railway stations.
To be fair, a very good argument can be mounted for why the name Blacktown should also be removed because it is also very obviously racist but the reason why I think that it should stay, is more important I think.

Geographical place names in Australia mostly come from three sources: a physical description, colonial triumphalism, and from first peoples' languages.
The first of the three needs no explanation; nor any apologies.
The second of the three would be harder to dislodge because of sheer weight of usage. The names of Sydney, Melbourne, Brisbane, etc. are all colonial triumphalism which were given to bear allegiance to colonial masters who were ten thousand miles away. I don't know if they are likely to be changed in a hurry.
The third of the three sources of names, gives rise to names like Parramatta, Toongabbie, Marayong etc. Those three names mean 'the place where the eels lie down', 'the home of the Tugugal' (who were a local clan), and 'the plain of emus'.
The name Blacktown comes from none of these sources and bears witness to an ugly history.

In 1823, Governor Major General Sir Thomas Brisbane (and for whom the city of Brisbane was named after) had the Native Institution (a 'school' for Aboriginal children) moved from Parramatta to  to the site where Richmond Road meets Rooty Hill Road North (which is currently where the flyover of the M7 is). It became known as the Black Town Native Institute or simply the "The Blacks Town" and later on "Blacktown".
Put simply, the 'education' and institutionalisation of Aboriginal children at Blacktown should be seen as the starting point of one of the ugliest stains in the history of Australia because it marks the beginning of government policies which involve the forced Aboriginal child removal and what has now become known as the "Stolen Generations".

There have been attempts in the past to change the name of Blacktown, however,. think that in this case the name should be retained precisely because of the past. Unlike the names which wave colonial triumphalism around, or the names which acknowledge country, the name Blacktown serves the purpose of acknowledging hurt. The name Blacktown is a visible scar.

One of the principles alluded to in the Uluru Statement From The Heart was the principle of Makarrata or 'truth telling'. My argument is that the name Blacktown should be retained because it subtly forces people to confront the past and consider the hurt.
The name Blacktown is almost unique in Australia because it is a white fella name, which acknowledges what white people have done and continues to speak truth into the future. An acknowledgement of Makarrata is deeper than a mere acknowledgement of country and does a better job than a first peoples' name or a name based in colonial triumphalism. In doing Makarrata, it is a reminder that this is a sad place.

The stories that we tell about the stuff in the world and the people who care about that stuff, are pretty much all that we have and describes all that has ever existed. I think that the stories which acknowledge the past and tell the truth about it, are also more useful than the stories which are used to cover over it. I also think that the names of places in our country which tell our own stories, are more important than the mere branding of products for sale.

July 27, 2020

Horse 2737 - Karen Kvetch Goes To Bunnings, Where "The 1948 Charter Of Human Rights" Is Just The Beginning

https://www.theaustralian.com.au/breaking-news/video-of-woman-who-refuses-to-wear-mask-in-bunnings-goes-viral/news-story/0b295e267e7efdfed2e267f177859b59
https://7news.com.au/lifestyle/health-wellbeing/bunnings-customer-melts-down-over-face-mask-requirement-because-it-doesnt-apply-to-her--c-1193956
“That’s discrimination and I can have you sued personally for discriminating against me as a woman,”
“It’s an unlawful condition of entry, therefore that exposes you, personally and Bunnings to being sued for discrimination because it is in breach of the 1948 Charter of Human Rights to discriminate against men and women.”
- Karen Kvetch, as quoted in The Australian and 7 News, 27th Jul 2020.

I was asked to make a comment on this story, as a lay person in the law. Again, I want to protect the identity of the person who asked for my opinion, just in case this is traced back to them.

Yet again, within the week, we have seen someone make an appeal to the authority of something that they obviously have never read. In this instance, Karen Kvetch who I suspect believes in conspiracy theories and is mad that her doctor won't give her hydroxychloroquine to fight off the 5G radiation, has made an appeal to the authority of the Universal Declaration of Human Rights (1948) as though it were some kind of superhero or alien who is going to come down and save her.

To be fair, Ms Kvetch's complaint is coated in a layer of truth but just like a Snickers bar, if you bite into it, it's nuts:

http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
- Article 2, UDHR 1948.

For Ms Kvetch's complaint to hold up, the statement that this Bunnings is specifically discriminating against her because she is a woman. This is a pretty easy thing to test because the video quite clearly shows other women walking around inside the store. The video which Ms Kvetch has provided, disproves her claim.

At the same time, I am sure that Ms Kvetch should be aware that that same document also lays out the rather obvious principle that an individual's rights clearly aren't absolute. The UDHR doesn't accept the so-called theory of sovereign citizenship and sets limits to how far someone's individual liberty extends:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 
- Article 29 (2), UDHR 1948.

Furthermore, the UDHR actually states that Ms Kvetch might have a degree of duty to the staff of this Bunnings:

Everyone has duties to the community in which alone the free and full development of his personality is possible. 
- Article 29 (1), UDHR 1948.

Oh dear.

Quite apart from what rights Ms Kvetch appears to be claiming, the staff of this Bunnings also have rights and freedoms under the UDHR which they have the right to claim.

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 
- Article 25, UDHR 1948.

If everyone has the right to a standard of living adequate for the health and well-being of themself, then it would appear that the staff of this Bunnings also have that right. Remember, the are also entitled to all the rights and freedoms set forth in the Declaration and taken together, this Bunnings also has duties to the community to protect said rights, as determined by law to meet the just requirements of morality, public order and the general welfare in a democratic society.

I have no idea what kind of conception of law that Ms Kvetch has but I am willing to suggest that she would concede that government interference might be justified if it can be shown to be necessary for the protection of the liberty or property of other persons.

Even if she does not, then the rest of us would accept that private landowners or occupiers can take reasonable steps to protect themselves, their employees and people on their property. It might be inconvenient but I would argue that just like pubs and clubs have the right to refuse to serve alcohol, shops and businesses have the right to refuse entry or ban any person from their premises provided they don’t breach anti-discrimination laws. Clearly, this this Bunnings in protecting the health and well-being of their staff, have made it a condition of entry that customers wear a mask and sanitise their hands. Is this unreasonable?

https://www.worksafe.vic.gov.au/occupational-health-and-safety-your-legal-duties
For your employees, you must provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. As part of this you must, so far as is reasonably practicable:
- Keep workplaces that you manage and control in a safe condition, free of risks to health (for example, ensure fire exits aren’t blocked, and the worksite is generally tidy).
...
Take reasonable care for your health and safety in the workplace. You must also take reasonable care for the health and safety of others who may be affected by what you do or don’t do.
- Worksafe Victoria

Is it unreasonable to provide and maintain a working environment that is safe and free of risks to health? No.
Is it unreasonable to make it a condition of entry that customers wear a mask and sanitise their hands? No.
Is this actually "discrimination because it is in breach of the 1948 Charter of Human Rights to discriminate against men and women"? No.

Karen probably can have both this Bunnings and this member of staff sued personally for discriminating against her as a woman but she'd lose and be ordered to pay costs.

July 26, 2020

Horse 2736 - What We Can Learn About Con Law From A Con Artist

https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/
MEMORANDUM FOR THE SECRETARY OF COMMERCE
SUBJECT:       Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census

Sec. 2.  Policy.  For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.  Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.  Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.  
- Memorandum, White House, 21st Jul 2020

As far as United States politics cycles go, there are three to do with elections and the fourth which has to do with the census. Members of the House of Representatives are elected every two years and are always up for reelection. Members of the Senate are split into three classes and have six year terms, which means that a third of Senators are up for reelection at any given time. Presidents of the United States are elected for four year terms. The fourth cycle is the census, which is the basis upon which the number of members of the House of Representatives are apportioned among the states; which is on a ten year cycle.
If you take the four cycles together, it means that every four years all of the House, a third of the Senate, and the President are all on the ballot at the same time. Every twenty years though, the census is also taken in that same election year as opposed to just one where the House and a third of the Senate are up for reelection; such a year of the nexus of those things coming together is 2020.
The 2020 Census like every other census, apportions the number of members that each state gets in the House of Representatives and this is why President Donald Trump, is so scared.

The reapportionment of members of the House of Representatives, scares people of a faction who stand to lose members. This is a similar issue as to why the District of Columbia and Puerto Rico are denied statehood. A state is entitled to two Senators and that would mean that as both the District of Columbia and Puerto Rico are both nominal wins for the Democratic Party, then the balance of power in the Senate would shift for the foreseeable future.
Likewise, the reapportion of the members of the House because it is dependent on the population of the states, would also mean that states like California and New York would gain extra members if illegal aliens are counted in the census. Trump's order has nothing actually to do with the morality or rightness of counting the people of people who are in the country illegally but rather, the political consequences of reapportionment.

The bottom line for the argument against Puerto Rico is this and nothing else: there are 3.4 million people currently living in Puerto Rico which means that they would be entitled to five seats in the US House if they were a state. (They'd get the 128th, 209th, 294th and 378th seats, in addition to their automatic seat, in case you were wondering.) The five unlucky states that would lose one seat each? Minnesota, California, Texas, Washington and Florida. Almost certainly, all five would be the loss of Republican seats in the House.
The size of the US House of Representatives has been capped at 435 voting members by law for over a century. So Congress could add seats to the House for Puerto Rico. (When Alaska and Hawaii became states, the number of voting representatives was briefly increased to 437 before returning back to 435 with the next census.) And then (maybe) reduce the number with the next census.

The reason why President Donald Trump doesn't want to include illegal aliens in the census is identical. California would likely pick up two more seats; with New York and Florida picking up one each. Again the losers would be Texas, Washington and Minnesota; which would all be Republican seats.
I do not think that Mr Trump either has the political acumen nor the foresight to have thought about any of these implications; instead I suggest that the advice came from people like Mitch McConnell, who play the game of politics for things which are bigger than proverbial sheep stations.

However, I personally think that Mr Trump's Executive Order is overreach and quite possibly illegal:

https://www.law.cornell.edu/constitution/articlei
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. 
- Article 1, Section 2, US Constitution

Article 1 Section 2 of the US Constitution vests the power to conduct the census not in the hands of the President but in the hands of the Congress.
I do not think that my opinion is wrong; especially when you consider that no lesser authority than the US Government also says this on its own website about the census:

https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html
The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.
- Census.gov website, as at 26th Jul 2020.

Setting aside the openly racist roots of the United States and counting some as 'three fifths of a person' for the statistical count (ie. slaves), the Constitution emphatically empowers the Congress and not the President. It also doesn't speak about whether or not people have either citizenship or voting rights; it is worth remembering that women didn't get the right to vote ian the United States until 1920 and there were still vestiges of disenfranchisement until the Civil Rights Act of 1965.

https://www.law.cornell.edu/constitution/amendmentxiv
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
- 14th Amendment, Section 2

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
- 14th Amendment, Section 5

Just in case the main body of the text of the US Constitution wasn't clear enough, the 14th Amendment reconfirms that the apportionment of members of the House of Representatives happens on the basis of the number of persons in the state and that Congress, not the President, has the power to enforce the provisions of the article.

If I as an Australian citizen and not a constitutional lawyer can walk through the provisions of the US Constitution this easily, then I do not think that it should be all that hard for the Supreme Court of the United States to hand back President Donald Trump's Executive Order and tell him to throw it into the bin.

July 24, 2020

Horse 2735 - I Think I Have A Good Understanding Of The Bill Of Rights

Me: Both the words of the 2nd Amendment and Hamilton's argument for it, are so that militias can be raised in a hurry in lieu of a standing army. 
"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions."
- Hamilton, Federalist 29. 10th Jan 1788.

They: You don't know what you are talking about. The 2nd Amendment is about freedom. You should read what the founding fathers said.

If you hang around in political discussions on the internet for long enough and especially in discussions about US Politics, if you voice an opinion which differs from the assumed orthodoxy then you will very quickly be accused of not knowing what you are talking about; including if your opinion has been backed up with evidence. A common tactic used is that people will ask you to look to what the founding fathers said, or what the US Constitution says; even if you have actually quoted from the Constitution or the Federalist Papers or the Anti-Federalist Papers.
An appeal to authority is made all the more laughable when after having quoted the very thing that you've been asked to look at, you then get accused of not understanding the thing that you have just quoted or perhaps not understanding an ill defined concept of 'freedom'. What I find amusing is that a general appeal to authority might then be pivoted to some attack on the freedoms that someone else has, as though the United States is the freest country on earth.

I could critique the mechanics of the United States Constitution which I think is demonstrably ridiculous on multiple levels: from the vesting of the executive in the hands of one person, to the complete deadlock that happens when the two houses are opposed, to the stupidity of having the court as a political appointment; I could also point to the obvious that it has had to be changed on many occasions because it wasn't fit for purpose. Those things tacked onto the end are called Amendments for a reason.
I could go on and on. However this post is only going to look at the Ten Amendments to the United States Constitution, which are often treated as though they were handed down on two stone tablets by God himself. The amendments were only tacked onto the end of the Constitution as a concession so that some states would sign up to the new experiment. The truth is that both Madison and Hamilton were both horrified at the thought of there being a Bill of Rights. So much for what the founding fathers thought, I suppose.

There is a suggestion that don't have a Bill of Rights in Australia but this is either based in ignorance or deliberate stupidity. I mean that if you are deliberately blind and don't want to include the Bill of Rights Act 1688, the Scottish Claim of Right 1688, the Universal Declaration of Human Rights 1948, the International Convention on Political Rights 1951, and the Convention on the Rights Of The Child 1992, then we don't. I find the suggestion by people that we don't have a Bill of Rights in Australia really deliberately stupid.
The reason why the framers of the Australian Constitution didn't include a Bill of Rights is that they correctly assumed that rights would be subject to change and be expanded upon in a changing world. Those people lived through the invention of electricity and the beginning of gas and water being delivered directly to people's houses; so enumerating rights would have been an exercise in nonsense.

This post is a general response to the suggestion that we don't have rights in Australia when quite obviously we do; and of a more complex nature than just the ten that the people of the United States could come up with 229 years ago. This is a map of the current legal situation in my state of New South Wales, with respect to the Bill of Rights as enacted by Congress in 1791:

1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

One of the benefits of starting a country later, is that you get to look at what everyone else has done and make improvements. Not only did we like the opening clause of the 1st Amendment, we clarified and expanded it. It doesn't give rise to a right though.

http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
- Section 116, Australian Constitution (1900)

When it comes to the rest of this amendment, the right to Free Speech has been repeatedly confirmed by the courts and these are the two big landmark cases:
- James v Commonwealth (1936)
- Lange v Australian Broadcasting Corporation (1997)

James v Commonwealth 1936 deals with an entirely separate issue and Lange v Australian Broadcasting Corporation 1997 deals with the supposed limit to what kind of political communication can be made.
The thing to remember in a Westminster Political System is that the base assumption is that people are allowed to do whatever they like unless that is hedged in by law. James v Commonwealth stresses that 'free speech' is itself a vague concept and has to take its meaning from context and Lange v Australian Broadcasting Corporation says that unless there are other torts such as defamation or incitement to violence, then political communication is fine. That right to political communication is even broader than merely the freedom of the press because it doesn't just protect the press as a privileged class.
Both of these cases in the High Court of Australia already assume that the right to free speech exists and so they don't act as a wellspring but rather, as confirmation of a thing which always was.

As for the right to petition the Government for a redress of grievances, well we already had that.

http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s5.html
Right to petition
That it is the right of the subjects to petition the King and all commitments and prosecutions for such petitioning are illegal.
- Section 5, Bill of Rights Act (1688)

"the King" at Common Law in England and by extension the United Kingdom, her colonies, later the Empire and her Dominions, is interchangable in a lot of cases with the Corporation Sole of "The Crown". Petitioning the Government for a redress of grievances existed before the invention of the United States.

2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s7.html
Subjects' arms
That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.
- Section 7, Bill of Rights Act (1688)

Probably the most pointed taunt that Americans will have against the right to bear arms in Australia is the ban on automatic weapons which into law after the Port Arthur massacre. I will stress here that this didn't actually remove a right, it merely defined that there was a limit of what was acceptable.
The section in the 1688 Bill of Rights contains the phrase 'suitable to their conditions' and the original words of the text to the 2nd Amendment stated 'a well regulated militia, being necessary to the security of a free state'; both of which acknowledge that the right should be tempered with sensibility.
As it stands, the current working operation of the 2nd Amendment only reads 'The right of the people to keep and bear arms... XXXXX ... shall not be infringed'. as the result of Heller v DC (2008) effectively striking out the rest of the words of the text.

I will concede that we don't have an absolute and unlimited right to bear arms in Australia but this is because we're sensible. Nobody should have that right and the only reason that anyone would actually want such a thing is because they want to be deliberately stupid. The preamble to the United States Constitution says that some of the aims of the document are 'in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty' and the truth is that an armed militant population does none of those things.

3rd Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

https://avalon.law.yale.edu/18th_century/quartering_act_1774.asp
That, in such cases, it shall and may be lawful for the persons who now are, or may be hereafter, authorised be law, in any of the provinces within his Majesty’s dominions in North America, and they are hereby respectively authorised, impowered, and directed, on the requisition of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billetted in such manner as is now directed by law, where no barracks are provided by the colonies.
- Clause 1, Quartering Act (1774)

Neither the Quartering Act 1765 or the Quartering Act 1774 had any force outside of North America. These acts have never been in operational in Australia. The 3rd Amendment also doesn't give rise to a right.

This amendment is so pointlessly redundant that no cases have ever been brought to the United States Supreme Court. Either that means that the law was perfect which might be likely, or it was so unbelievably stupid as to be utterly useless in its operation (which I think has been proven by 229 years of evidence); or both.

4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the base assumption is that you are free to do whatever you like unless that is hedged in by law, then this whole thing is redundant. 'The right to be left alone' and 'the right to quiet enjoyment of one's property' are both rights which have been proven to exist at law in Australia but which would have never have been thought of in the United States.

Moreover those clauses about needing a warrant, don't really define a right but rather they define a set of limits which are placed upon the officers and administrators of the law. Even so, the current version of the Search Warrants Act in NSW hedges in the common law powers of the officers of the law anyway.

http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/repealed_act/swa1985175/
Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing is abolished.
- Section 24, Search Warrants Act (1985)

5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Broadly speaking, under Australian law if you believe you are a suspect in the commission of a crime, then you have a right to refrain from answering any questions surrounding the alleged offence. While we don't have the reminder that someone has a right to remain silent, Australian law protects an accused person in court from any inference that exercising their right to silence is an admission of guilt. In most situations, this means that a jury would need to determine the innocence or guilt of a party from the facts of the case. If someone chooses to exercise their right to silence, then it is incumbent on the presiding judge to direct the jury that they can not interpret that silence as an admission of guilt.

http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s128.html
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness--
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
- Section 128, Evidence Act (1995)

The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. Although broadly referred to as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).

Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that ‘may tend to prove’ that the witness has committed an offence under Australian or foreign law, or is liable to a civil penalty. Under Section 128(2):

Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence; and
(b) that, if he or she gives the evidence, the court will give a certificate under this section; and
(c) of the effect of such a certificate.

6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

I would have said that this was a good idea that Australian borrowed from the US Constitution and incorporated as Section 80 of our own:

http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s80.html
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
- Section 80, Australian Constitution (1900)

Except:

http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
- Clause 39, Magna Carta (1215)

This means that effectively, the right existed in England 576 years before the US Constitution adopted it. Relative to us, that still the equivalent of a right existing not quite two hundred years before any English people had ever set foot in America.

7th Amendment
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

I suspect that the 7th Amendment was supposed to codify the right to a jury trial in some civil cases and then prevent judges from overturning a jury's findings of fact. It looks like a concession to the Anti-Federalists to get them on board with the whole federal project. At any rate, we already had that 'right'.

http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s11.html
Juries
That jurors ought to be duly empannelled and returned.
- Section 11, Bill of Rights Act (1688)

8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This right already existed almost word for word across the British Empire 103 years earlier.

http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s10.html
Excessive bail
That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted.
- Section 10, Bill of Rights Act (1688)

Really? I could have done this with Ctrl-X and Ctrl-V.

9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The thing to remember in a Westminster Political System is that the base assumption is that people are allowed to do whatever they like unless that is hedged in by law. If this is a declaration that there are additional fundamental rights that exist outside the Constitution, then it means to say that the rights enumerated in the Constitution are not an explicit and exhaustive list of individual rights. This is exactly the reason why the framers of the Australian Constition were so anxious not to include a Bill of Rights. They didn't want Australians to be blinkered like a horse, who was blind to what else they could see.

Yet again, if the base assumption is that people have the right to do whatever they like unless that is hedged in by law, then although it is helpful to write that down, it doesn't really achieve very much. The mere existence of a catch all right is made to look all the more ridiculous when you consider that several other amendments which have come afterwards, kind of demonstrate that this was an internal lie.

10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I guess that this was included to reinforce the principles of separation of powers and federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people?

Was it actually true? The right to vote, the right not to be held in servitude and slavery, the right to adequate education, the right to adequate health care and so on, have either had to be added or are still being contested in the United States. If you have had to add rights, they can't very well be assumed to have already been had by the people, can they?

Conclusion:

Of the ten Amendments that make up the Bill of Rights, the most generous reading would suggest that there's only seven actual rights enumerated, one amendment to cover an act which was never applicable in Australia and two amendments which are so redundant in the conception of rights that they have never needed to be spelled out in Australia.
Apart from the 3rd Amendment which is conspicuous in not actually being a right, Australians have all of the rights contained in the United States Constitution and depending on what your general theory of rights is, had all of them before there ever was a United States.
As for the accusation that I don't know what I am talking about, then that accusation is demonstrably false - Quod Erat Demonstratum. 

Not to put to fine a point on it but the original sin of the United States and one of the reasons why the so-called 'Intolerable Acts' was passed was to do with the issue of slavery; which was solved at common law in the British Empire with Somerset v Stewart (1772) and Knight v Wedderburn (1777). Had the United States not fought so desperately for its right to retain slaves, then the Slave Trade Act (1807) and the Slavery Abolition Act (1833) would have applied; and the US Civil War would never have happened.
Meanwhile, the other more important rights such as the right to life, the right to be left alone, the right to be safe in one's community, the right to decent health care, the right to a decent education, the right not to be shot or raped, the right to be treated the same as other people by officers of the law &c. are not at all in the United States Constitution.
All of the movements like #BlackLivesMatter and #MeToo are really just repackaged requests for the same rights which already aught to be in existence. It speaks volumes about a country which started out with the self-evident truth that all men are created equal and has then spent its entire existence proving that not only is that a lie but that life, liberty and happiness are cheap.

I find it ridiculous to be told that I somehow have less freedom or that I don't understand the United States Constitution, when as someone who has been around the law for more than 20 years, I think that I have a pretty good handle on it; especially when I can readily map it to the law which exists in my country.

July 22, 2020

Horse 2734 - Supercars Gen-3 Should Go Forward To The Past

As a motorsport fan in Australia, I have effectively lived through five periods of top level touring car racing in this country. Before 1980 Group C regulations were kind of moving away from production cars. From 1980-84 we had our own kind of unique formula. From 1985-1992 Group A regulations were run, before a turbo revolution and the arrival of the R32 Skyline made a mockery of the rules. We had a Group 3A set of V8 Supercars. And then finally, we've had Car Of The Future regulations which have meant that the last vestiges of what was once a production car series, has been abandoned entirely; in favour of bespoke racing machines.
That's roughly the story of the last 45 plus years in Australian top level touring car racing.
Consequently what we have today, is a series where one car bears no resemblance at all to the road car because it has had to have been stretched to fit over a control chassis; and the other which is from a company which not only no longer trades in this country but where the company that built the road car was sold off and out of the group. Neither of them use engines found in the road cars; so the whole series makes the old adage of "race on Sunday, sell on Monday" a perfectly complete nonsense.

Let me just throw a really idiotic idea into the world and see where it lands. I think that it is time for the Supercars to abandon the premise that they are related to anything on the road.

NASCAR had a similar problem back in the 1980s when there were precisely zero cars left with the 5.8L V8 in the showrooms. The great behemoths of the 1970s had disappeared from the auto companies lineups as a result of the 1970s oil crisis and the 7L monsters were no more. The cars which were left in the so-called 'malaise era' were what were considered to be compact cars only a decade before; the rules were then changed so that the minimum wheelbase would be 110 inches.
The thing was that the regular cars which people were buying, shrunk faster than anticipated and that meant that the new minimum length that the regulations demanded, was also met by exactly zero cars. The aero wars of the 1980s was sparked by car makers stretching cars every which way until the things on the racetrack bore no resemblance at all to the road cars.
NASCAR had enough of races being won by manipulating the rulebook and they mandated having a standardised car, onto which the manufacturers could change the look of the noses and tails of. That has pretty well much been the same kind of idea for three successive generations of car.

In Australia, we've reached a similar set of problems. The Supercars firstly had the problem that precisely zero road cars in the showrooms had a 5L V8 any more. They then faced the problem that the VE Commodore was too big to fit the regulations and so they allowed Holden to cut and warp the car. When the ZB Commodore it was also allowed to be warped to conform to the regulations. When the S550 Mustang came along though, DJR Penske who were the chief fabricators of the car, didn't even pretend to take a road car and warp it but rather, they built a bespoke bit of kit that sort of looks like the S550 Mustang (not really).
I think that the Mustang actually shows the way forward because without Holden existing any more; Ford having no car that conforms to the size dimensions, and nobody else really interested in playing, then the Mustang's solution of being a bespoke bit of kit, is really the last sensible option if the series is to retain its character. If not, then it simply just dissolves into being some weird GT3 thing (although that would also be a sensible option).

If having a bespoke bit of kit is the way to go, then that really opens the door for people to go buckwild with proposals and mine is about as buckwild as they come. Here it goes...

Supercars should build their own bespoke Commodores and Falcons (or whatever they choose to brand them as).


I do of course realise that the intellectual property for these cars is already owned by General Motors and Ford respectively but given that Ford aren't going to produce a 1983 XE Falcon ever again and General Motors aren't going to produce a 1984 VK Commodore ever again, then I do not think that it would be that much of a wrangle to buy the likeness rights to something which has been out of production for more than 35 years.
As all the cars are built upon a standard chassis, have a standard gearbox, standard differential, and have a standard electrical wiring loom, then building a set of standard carbon fibre panels to fit over the top, isn't too much to ask. It is basically taking the existing process and changing the cosmetic shape.
Like the current cars it means mushing around the panels but we already know that a Falcon will fit over a Falcon and the Commodore can be enlarged slightly.

Or rather, if we abandon the premise that Supercars actually need to be branded with the logos of a manufacturer, the manufacturers would be free to come and go as they like, and the teams themselves could decide how to brand the cars.
If this sounds like a dumb proposal, may I remind you that Formula One currently has teams branded as Red Bull and Haas and in the past has had teams such as Benetton and Footwork. The general public doesn't really care if a manufacturer is running or supporting a team or not; though manufacturer support might translate into sales for them.
By having a completely neutral car, the teams could swap out the grills and light clusters to their heart's content and we'd not be any better or worse off for it. NASCAR has already done this kind of thing in the past and currently does so I. the present. While you can buy a V8 Mustang and a V8 Camaro, neither Ford or Chevrolet will sell you a 5.8L V8 Mustang or Camaro. Toyota choose to make their cars look like a Camry in the top series and a Supra in the division immediately lower but there has never been a V8 Camry or Supra for the road. That fiction is 100% completely fine.

In Australia if they really wanted to, they could have a Falcon and Commodore and call them whatever they wanted to and I really don't think that the general public would mind if they were branded as a Henry or a Lion. That way, the old rivalries could square off and new ones could be written.
Also, having a completely neutral car, would lower the development costs. Teams in Super GT for example, can buy an off the shelf unbranded 4.5L V8 for the GT300 class and an off the shelf 'mother chassis' and this has meant than 20 different marques have appeared over the years which have in reality all been plug and play bits of kit.
The one thing that 2020 has proven is that motorsport fans are happy to watch the spectacle, even if the cars are completely fraudulent. Earlier in the pandemic, we had people running iRacing on computer rigs at home and while it wasn't exactly the same, it was still kind of fun.

The thing that has been constantly proven through what amounts to five distinct era of top level touring car racing in this country is that provided there is machinery to run and the top level teams run in it, the fans are roughly fine with it. The teams themselves are fine with switching marques if it meets with success. Alan Moffat ran a Mustang, various Falcons, RX-7, Commodores, Sierra. Peter Brock drove Toranas, Commodores, an M3, a Sierra, and Commodores again. Jamie Whincup has been in a Commodore, Falcons, and back to Commodores. Scott Maclaughlin campaigned a Volvo before the Falcon and Mustang.

If the category actually abandoned the premise that the cars on the track bare any relationship at all to what is on the road, then they have an almost unique opportunity to make the next generation of cars look like literally anything. Pick cars from the 1950s, how about the coupes from the 1970s, I personally like the three-box cars with flared guards and kicker style duck tails from the early 1980s. Pick anything.
What would be really unfortunate is that with no manufacturers wanting to play, that the whole thing collapses; which it is in real danger of doing.

July 21, 2020

Horse 2732 - Don't Be A Boofhead And Don't Listen To Boofhead Legal Advice

As someone who has been either inside the Commonwealth Law Courts as a court recorder/annotator/bookkeeper or outside the law courts in a forensic accounting firm, I am continually amazed at both the sheer arrogance of lawyers and the sometimes ignorance of the law which those same lawyers purport to have studied and read and around which they derive their profession. To be fair, a lot of my complaint with a lot of people who wrangle words for a living (lawyers, journalists, scriptwriters etc.) is that they "did not do the research".

Nathan Buckley is a corporate and litigation partner at G&B Lawyers, in Sydney. It should be noted that this Nathan Buckley is not the same Nathan Buckley of the Collingwood Australian Rules Football Club. That Nathan Buckley although he is a racist and a boofhead, is not this boofhead. Admittedly I have no idea exactly how one becomes a partner at a law firm but I would hope that a basic requirement would be that one has at least read the law.


I am not a lawyer and so I will have to yield to the opinion of someone more learned than I am but it is my understanding that legislatures and parliaments have the power to make laws (see Section 51 of the Australian Constitution 1900) and that courts have the power to interpret and decide what the law is (see Madison v Marbury SCOTUS 1804). I know that it is incredibly bootstrappy and to be honest I don't really care that it is bootstrappy but legislatures and parliaments which have the power to make laws also have the power to make the laws which define how laws are made. The Constitution of a thing, be it a club, a Church, a corporation, or a nation, is nothing more than the rules which define how the rules are to be made. Constitutions are the one law to rule them all and if that sounds pretty important, it's because it is.

What we keep on seeing again and again is that people who have never read the law, will often make an appeal to the authority of the law that they obviously have never read. I have seen this on the floor of law courts where people have tried to argue that they have the right to do something based upon the Magna Carta (1215) or the Constitution (1900) as though it were some kind of superhero or alien who is going to come down and save them from themselves. I think that that is what Nathan Buckley may have done here, despite the fact that I do not know what he originally wrote.
The other thing that we keep on seeing again and again is that people who have never read the law will often make an appeal to the authority of the United States Constitution, as though it had any force of law here at all. Moreover, people will make an appeal to the authority of the Bill of Rights at the end of the United States Constitution as though it were that same kind of superhero or alien who is going to save them from themselves. It doesn't.

One of the weird Australian things about living in Australia is that the Australian Constitution applies in Australia. Whod'a thunk it? Since this is the case, like good little Australians, we can look at what the Australian Constitution actually says and do what Nathan Buckley obviously never did in the first place; read the thing.

My suspicion is that Nathan Buckley's complaint was that he thought that he could invoke the Constitution as a superhero or alien to say that he had some kind of political right to free speech which allowed him not to wear a face mask, despite and in spite of a public health order in the state of Victoria.

In that respect, the Australian Constitution Act (1900) is gloriously silent. One of the things that the framers of the Australian Constitution did after seeing the stupidity of what was at the time 109 years of the American Constitution, was deliberately not include a Bill of Rights. The reason is that in a Westminster system, the default position is that a person is free to do whatever idiotic thing that they like unless it is hedged in by law and/or common sense.
In that respect, although the Australian Constitution Act (1900) is silent on the subject of whether any rights exist, the courts have confirmed that there is indeed a right to free speech as hedged in by law (see James v Commonwealth 1936) and a right to political communication (see Lange v Australian Broadcasting Corporation 1997).

The question is then not whether or not that Nathan Buckley has a right to free speech and political communication but whether or not this actually is a free speech or political communication issue and whether or not the constitutions of the Commonwealth or Australia or the state of Victoria have anything to say about that.

http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(ix)  quarantine;
- Section 51, Australian Constitution Act (1900)

This is about as close as you get to what the Australian Constitution Act (1900) has to say about a state public health order. It has been established that the Commonwealth does have the ability to quarantine a state and close the borders and while there are considerable overlapping Commonwealth/State responsibilities and divisions between clinical health practitioners and public health policy-makers, the Constitution itself is vague.

As for the question of whether or not the state of Victoria has the power to enforce a statewide public heatlh order, the Constitution Act (1975) of Victoria has this to say:

http://classic.austlii.edu.au/au/legis/vic/consol_act/ca1975188/s16.html
Legislative power of Parliament
The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.
- Section 16, Constitution Act (1975) Victoria.

http://classic.austlii.edu.au/au/legis/vic/consol_act/ca1975188/s85.html
Powers and jurisdiction of the Court
(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
- Section 85, Constitution Act (1975) Victoria.

Wow.

I asked a client of ours who is a QC what he thought of this and his comment was:
"Don't credit me but I think that Parliament of Victoria and the Supreme Court of Victoria have the legislative power of God himself. They could unilaterally legislate to exterminate all living things in Victoria and it would be lawful. This prize mountebank is a known pest. The Andrews' Government wants to preserve life because it is very expensive not to. This charlatan isn't responsible for people's health and neither does he want to be held responsible to his fellow citizens."

I wouldn't go as far as to suggest the Parliament and Supreme Court of Victoria have the legislative power of God himself but I do think that Nathan Buckley is trying to appeal to some superhero or alien type entity or else wants to be one or perhaps thinks himself as already being one.


Whatever the case, the NSW Law Society have told him off; which I suppose proves that even a lawyer can be brought to heel. Nathan Buckley quite rightly asserts that he has a right to free speech as hedged in by law and immediately demonstrates why it should be hedged in by law. Not even an appeal to some superhero or alien who is going to save someone from themselves if they are a boofhead, a mountebank, or a charlatan.

If the government wants to order you to wear a mask either as a reminder that the coronavirus is deathly serious or as a public health measure, don't be a boofhead; just wear one.

July 15, 2020

Horse 2731 - The 1975 Constitutional Coup Is Not The Fault Of The Queen

"All because he didn't have any socks!"
Ha ha ha ha. Wait. You're not laughing.

That's probably because that's the punchline to a joke which was told so long ago that everyone has forgotten what the joke was and that there ever was a joke.

That demonstration of a punchline to a joke that nobody remembers is kind of what yesterday was like. Yesterday, the correspondence between the Governor-General John Kerr and the Palace were made available to the public for the first time. Or rather, the correspondence was given the impression that it was made public because if you'd actually managed to get through to the National Archives of Australia website, you would have been confronted with the rotating donut of doom and not actually got through to the letters themselves.
There are according to the index, some 400 plus pages of correspondence which had been under suppression orders for the last 44 years and some of them made their way out into the hands of the general public, thanks to the leaking from journalists. I haven't yet been able to get to the storehouse of documents itself but I have seen the punchline in one of the letters which reads:

“I should say that I decided to take the step I took without informing the Palace in advance because under the Constitution the responsibility is mine and I was of the opinion that it was better for Her Majesty not to know in advance, though it it, of course, my duty to tell her immediately.”
- Kerr, 11-11-1975

The short answer to the 44 year old mystery is that the Governor-General John Kerr acted on his own accord, using the powers assigned to him by the Constitution, to remove a Prime Minister and the Government; without the direction or interference from the Queen. Put simply, this was an entirely Australian coup, carried out without informing the Queen until after the act was finished.

No doubt that the republicans will question why we should continue with the institution of the Crown, despite the fact that the dissolution of a Premiership has only happened twice in Australia since 1855 (Lang in NSW in 1931, Whitlam Federally in 1975); which means to say twice in more than a thousand legislative years. Neither of those occasions were the result of interference with from the monarch, which means that functionally, Australia is independent.
These people are more concerned with symbols than the actual functioning of government and they generally have no idea whatsoever about how to put safeguards in the system; thus guaranteeing that it will happen again.

Monarchists will probably cringe and backpedal at the thought that the Queen stood idle in the process while her representatives assumed the power of Vice-Regal and smashed democracy in the process. The obvious question of what the point of the monarchy is for in the twentieth century, let alone the twenty-first, comes into sharp focus. If the monarch functionally is completely useless, then why should it persist?
I don't know exactly how many monarchists there are but if they are primarily concerned with the symbols rather than the actual functioning of government, then the chances are that they are in favour of the existing power structures precisely because they derive some selfish advantage from it.

Pragmatists like me, point to the vagueness of the powers assigned to the Governor-General and will assign praise to the fact that because nobody actually knows what the powers of the Governor-General are, they are loathe to use them.
I think that Australia ended up with a pretty good system of government through some design via the Constitutional Conventions of the 1880s and 1890s and through sheer dumb luck and historical accident, thanks to some utterly selfish designs after the First World War; which have backfired magnificently.

I don't particularly care whether or not we have a Monarch or a President other than to say that Australia has comprehensively proven that its legislative bodies are cruel. I really don't want to see the institutions change if it results in more cruelty and more corruption; which unfortunately given the knavery of the political parties in this country, I see as absolutely inevitable. Unless someone is able to comprehensively lay out a set of changes to the system which are demonstrably logically better, then I waggle my pointing finger of judgement and say that they haven't thought it through properly.

What the release of these letters proves is that the palace was so far removed from the process as to be completely irrelevant. The really scary thing isn't that Kerr used the powers which were available to him but rather, it appears as though he may have been egged on to use them. I still haven't been through the archive of letters yet but I bet that they will contain nothing of Kerr's meetings with either Malcolm Fraser or worse, Rupert Murdoch.
It is an established fact that Kerr stayed for the weekend on Murdoch's estate in the Southern Highlands in October of 1975, but I suspect that the details of what were discussed that weekend will never be known. Kerr is dead and so can not discuss the matter and everything that I have read about Rupert Murdoch on the issue, indicates that he feigns ignorance on the matter. As there are no stories told in a vacuum, then this part of the story remains untold.

Perhaps even more of a mystery is why the Palace put suppression orders on the store of documents. I can understand that in 1976 it probably would have unleashed seven different kinds of chaos but as the long game of time plays out deeper and deeper and memory fades more and more, the ability of the letters to cause any chaos now has been inoculated.

The real tragedy in all of this is that the Constitution worked absolutely perfectly. Kerr was well within his legal powers to both make and unmake a government and even if the Fraser Government had been installed and they say on Wednesday 12th of November 1975, there would have been a vote of no confidence on the floor of the House of Representatives and Whitlam would have been remade as PM. This is akin to what we find in contracts and the so-called "double shotgun" clauses.
The real overlooked thing is that there was zero crisis of the Constitution but rather, the actual crisis was inside the Coalition in 1972 when the Whitlam Gov was elected. Having been leaderless and suffering a series of implosions following the resignation of Menzies in 1966, the born to rule mob never accepted the legitimacy of the ALP victory in 1972 or again in 1974 and entirely manufactured the 1975 crisis.

There are no conspiracies here; just a smack down fight. Fraser blocked supply, Whitlam wouldn't call an election, Kerr was afraid Whitlam would sack him, Kerr got in first. Kerr met with Murdoch, Kerr met with Fraser, Kerr wrote to the palace like a child who was afraid to admit that he hadn't done his homework. Kerr did Fraser's dirty work. The stain here is on the Liberal Party.
Fraser turned out to be a mediocre Prime Minister rather than just a gutter rat seeking power at any cost. He was like the mule with a spinning wheel in that  he didn't know what to do with the power when he got it; after he shouldn't have got it.

July 13, 2020

Horse 2730 - Predicting The 2020 Presidential Election For Fun And Frivolity

I have been asked by someone to make a prediction about the 2020 United States Presidential Election. Having been through this exercise before, I know from experience that not only is this a fruitless task this far out but that I am a terrible prophet. While you don't need a weatherman to tell which way the wind blows, I can not even do that. Run away now. Save yourselves!
When it comes to predicting the future results of elections, I have an 15/21 record on this blog. That kind of margin indicates that I am really good at picking foregone conclusions; for once you remove those, the margin falls to 6/12 and that means that as a political pundit I am really no better than a coin toss.  If media companies would to pay me for my obviously brilliant analysis, then by all means please do so but you'd get about as much sense if you put lipstick on a pig and set it loose in the newsroom.

What makes this problem an especially difficult one is that a presidential election in the United States is not merely on the basis of the popular vote but rather it is the result of 51 contests which then apportion instructions to an arcane body called the Electoral College¹; which then votes on behalf of the people and even then isn't necessarily bound by those instructions. The Electoral College awards as many 'electors' per state as there are members of the House of Representatives and Senate which that state send to Washington plus 3 Electoral College votes from the District of Columbia which is what it would have gotten in it was a state.

Those 51 separate contests mean that overall popular opinion isn't the determinant of actual results and by design, the opinions of smaller states have an outsized view. Say what you like about the political ramifications of that but I think that in principle, it is a good idea despite the system itself being immensely stupid. The architect of the United States Federal Government, Alexander Hamilton, probably arrived at this as a compromise after the smaller states delegates in the original thirteen colonies complained loudly about being completely ignored. The Electoral College deliberately overeggs the pudding in favour of smaller states for that reason.
If there actually was a concerted effort by the bigger states, then every election could be decided by decree by the twelve biggest, as they together control just over half of the Electoral College votes. Of course getting California, Texas, Florida and New York to agree on what ingredients should go on a Tuna Melt Sandwich would be nigh on impossible and even if you could get some kind of agreement, then the two pieces of bread would most likely be different and Texas would still want barbeque chicken and bacon on it; thus ruining the point of a Tuna Melt Sandwich. If these states can't agree on a sandwich, then the actual balance of power lies elsewhere.
In 2016, Trump won the Presidential Election by a minority of the popular vote which by virtue of geography translated into a majority of Electoral College Votes. Herein lies the crux of the problem.

The United States of America, in terms of its politics, is only true in one aspect of its name. It is not and has not ever been United. It is not and has never been a uniform America. The key word here is the States which determine everything  and in that aspect, America could be as many as 12 countries and certainly no fewer than 6: New England, New York, The South, The Mid-West, The West, California. Presidential Elections are turned on the basis of those six countries at bare minimum.
Countries like New Zealand, Australia, and to a lesser extent the United Kingdom, are reasonably predictable when you use the political device known as a Uniform Swing Calculator. Broadly speaking, those countries have a relatively uniform electorate and once you work out what the national swing is, you have a pretty good idea of how far the county falls in one direction or the other and you can pick out the number of seats that are going to change hands with a fair degree of accuracy. The United States of America on the other hand, has at least six sets of swings going on and they do not all point in the same direction.
This means that if one is going to play the prediction game with anything approaching part way sensible as a bare minimum condition, then one may as well plug 51 sets of swings into 51 swing calculators and then hope that it spits out a result.





I shan't bore you with the details of the spreadsheet which I used but suffice to say, it looks like the results of putting lipstick on our imaginary pig and set it loose in the newsroom. I should point out here that the one insane anomaly is everyone's favourite superhero, Florida Man². Florida is like God's Waiting Room of America. Florida is where old people go to retire and because old people come from all over the country to retire, Florida tends to blink red and blue like a malfunctioning police car. I don't know if Florida is a bellwether state because it controls 29 Electoral College votes but it has the power to be the hinge on which Presidential Elections turn.

This time around, the two blinking lights are Virginia and Florida. Together they are worth 42 Electoral College Votes and that is easily enough to turn the election red or blue. At the moment I have Biden/Anyone beating Trump/Pence 276-262 and that margin is simply too small to make any meaningful prediction.
Four years and six months ago,  Donald Trump said “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” We now know that that is absolutely true and that the percentage of the vote that that equates to is 38%. Likewise, a generic Democratic candidate could probably have said exactly the same thing and that percentage of the vote that that equates to is 41%. The 21% left over isn't uniformly spread; which is why looking at a uniform swing is useless. The actual margin of competitive votes is less than 100,000 people; spread over about four states.

I'm going to predict a Biden victory but even then, I think that my reliability at picking a winner i July is really no better than a coin toss.

¹which has been copied by exactly zero other countries.
²Google "Florida Man" and especially the "news" section and you'll see that Florida Man is the worst superhero ever.


July 10, 2020

Horse 2729 - Can Someone Explain To Me Why The Name "Washington Redskins" Should Stay?

There is yet another push going on as a result of the current Black Lives Matter movement (which is just the latest incarnation of what should be properly called "Hey White People, stop being a bunch of cruel and violent racist expletive deleteds"), to change the name of the Washington Redskins football team to something not so obviously racist.

There have been two historical responses to this request which keeps on happening; which on the face of it look different but are in reality, exactly the same response.
1. No. Which is: insert some garbage about heritage, history or other such nonsense about how some imagined forefathers played in the uniform; which is actually just a roundabout way of saying "No thanks. We actually like being racist expletive deleteds, thank you very much."
2. Nothing. Which is: the non-reactive method of making the first response but without having to come up with nonsensical excuses.

I really fail to see why in an age which has come after hundreds of years of colonial repression, degradation and in some cases extermination and genocide of indigenous people around the world and where previously willfully blind eyes have only recently half-opened, why this isn't a fait accompli. What makes this all the more stupid is that even before the racists started claiming the vague concept of 'heritage', sports teams and franchises were already picking themselves up and plonking themselves down in new places with entirely new marketing.
In America, the homeless Raiders have been moved around more times than is sensible, the Los Angeles Rams, Brooklyn Dodgers, Hartford Whalers and loads of other teams have either been moved, renamed, or both.

On the other hand, as a small kid I wondered why a team needed to be called the City Somethings at all. Football clubs in England were just named for the place where they came from like Liverpool, Chelsea, West Ham etc. Where you do have differentiation between clubs in the same city with United and City, that usually indicated that there may have been multiple clubs which came together.
The phenomenon gets more strange still, when you consider that in the immediate period just before I was born, sporting teams in Australia didn't actually carry the 'Somethings' part of the City Somethings in their name. Any nicknames that they did acquire, were merely just that. The South Melbourne Australian Rules football club was (and still is to some hard core fans) known as the Bloods but the name of the team was always South Melbourne Football Club.
What's weirder still is the modern idea of naming sporting teams after nebulous concepts like Victory, Jazz, Storm, Heat, Thunder. At least a 49er is rhyming slang for a 'miner' and Steelers and Rabbitohs are named after the local industry in the city.

As someone who doesn't understand in principle why a team needs to be called the City Somethings, coupled with the fact that teams in a franchise system have a high propensity to rebrand themselves anyway, I do not find arguments to keep the name Redskins convincing.
Also, as the United States has a surfeit of geography , I must admit that I have no idea where the Washington Redskins come from. Is it Washington DC, Washington state, or some other city called Washington? If the basic function of a name is to identify a thing, then the name Washington Redskins does a monumentally poor job of it. If your name is both racist and geographically ambiguous, then why wouldn't you just change the name?
If anyone has a part way sensible argument as to why this name exists in the first place, let alone why it shouldn't be changed, please leave a comment below. I don't get it at all.

Aside:
As someone who follows motor racing, the idea that you can't change all of the colours is ludicrous. Cars in NASCAR can change their entire colour scheme from week to week. While you do have examples like Ferrari who are mostly one very particular shade of scarlet, they have also in the past run stripes, white and black accents, and even run cars in yellow and blue. Mercedes-Benz which is famous for its Silver Arrows, started out running white, changed to silver to get underneath a weight limit (allegedly), has in the past run the colours of the Nazis, and this year have adopted a black scheme for the Black Lives Matter movement.

America likes to hold itself out as a shining example of capitalism in action. If the most ultra-capitalistic sport in the world (ie motor racing) can and does change colours and team names in some cases, purely at the heck and call of the sponsors, then why wouldn't a sport which was shaped by television want to change to meet the wishes of the sponsors? Maybe there is a market for racist football teams? I don't know.

Aside II:
If I was Grand Poohbah and Lord High Everything Else then I'd want to change the name of the team to something that actually reflected the city (assuming of course that it is Washington DC).
It's not like this is an intractable problem. There are minor league baseball teams called the Savannah Bananas, Macon Bacon, and the Rocket City Trash Pandas. No, I have not made any of those up.

Name it after the stagnant swamp of the Potomac that the city of Washington DC sits on; call it the Washington Swamp Rats. Double down on the fact that this is the seat of government and fly as close as possible to the existing seals which government departments have; call it the Washington Department of Chaos. Name it after George's most famous medical complaint; call it the Washington Wooden Teeth. Completely abandon the name Washington entirely and riff on the Great Seal of the United States and call it 13 Arrows And Oak Leaves. Call it Washington 51 after the push for DC statehood.

If I can spitball the problem, I can't see why it's so hard to solve. Maybe they just like being racists?

July 09, 2020

Horse 2728 - The Internal Paradox Of Trying To Cancel Cancel Culture By Trying To Cancel Cancel Culture

In this post I am going to attempt by self-contradiction to explain why two terms that keep on cropping up in the media irritate me. I am also self-aware that by waggling my pointing finger of annoyance at expressions in English, I am equally guilty of falling into cliche and trope myself. Political speech especially employs a deliberate lack of precision; which is designed to prevent actual thought and in this case, these two terms are more likely to be used as weapons rather than descriptors.

Almost without exception, when someone complains about things being too 'politically correct' what they are actually complaining about is that someone pulled them up for saying something knavery. I can not think of an example where someone has requested for someone else to be more politically correct. No, the person who asks someone to stop saying knavish things, does so because their life becomes more unpleasant as the result of the person saying knavish things.
The people who want the racism, sexism, discrimination, violence, denigration, degradation etc to stop, almost always demand it directly. They want others to listen, to stop acting like a knave and to stop engaging in those things which actively puts people in danger and harm. The voice of someone who is on the receiving end of someonen else's lack of love and decency, never resorts to such weasely terms as 'politically correct'.

If I was to hazard a guess, it would be that the term 'politically correct' came from that part of the right, who chose to use language to sanitise and dehumanise the things that if they actually looked at in the face, would scare them. 'Politically Correct' sounds like it came off of the same euphemism factory conveyor belt which turned 'shell shock' into 'battle fatigue' and then 'post traumatic stress disorder' so that the right could blame that on mental health, instead of their actions literally sending hundreds of millions of human bodies to be chopped up by machine gun fire in wars. The term 'politically correct' sounds like it was devised by the same kinds of people who at this current moment in time are asking people to volunteer to die from COVID-19 rather than the economy suffering and if it wasn't, then it certainly has been employed by those kinds of people.

The common argument against political correctness, is that people have a right to free speech. Of itself, an argument for the right to free speech seems reasonable but I personally find arguments that rights are absolute to be at best misguided and more often than not, an argument put forward which actually acts as a defence for the right to commit abuse of people. Granted, there are legitimate arguments where something ought to be said where people in power need to be held to account but where you have people and organisations in positions of actual political and societal power, those people arguing they they have a right to free speech, even after they have been convicted by the courts for running foul of defamation and discrimination laws, is nothing more than an expressed wish to continue being cruel knaves and not having to pay for it.

One of the real failures of political philosophy over the past 250 years has been the decoupling of people's rights and any responsibility that people have to each other as part of a society. There is an argument to be made that the idea of a social contract is invalid because nobody voluntarily signs up for it but by the same token, nobody voluntarily signs up to be born in the first place. I think that it is deeply dishonest for an individual to assert that they have rights and then act as if they have no responsibility to act decently to anyone else.

Particularly over the last two decades, after some groups of people have established the right to be considered human in some cases, people who have been previously powerless have begun to fight back using what little power they do have, in a continuing quest for others to act decently.
Again we come back to the concept of the previously power asking the powerful to stop saying knavish things because their life becomes more unpleasant as the result of the person saying knavish things. If you really want someone to stop saying knavish things, then the mechanisms that work the best, are the existing laws and regulations and the power of the pocket book. Here we run into the weasely terms of 'deplatforming' and 'cancel culture'. If you cut off the economic incentive for knaves to stop saying knavish things, the hope is that they will stop saying knavish things.
Unfortunately, this ends up meaning that you get elements of all the political left and right and the political north and south joining forces; which ends up just further enabling the authoritarian right to continue on its merry way.

This week there has been an open letter calling for an end to 'cancel culture' signed by JK Rowling, Margaret Atwood which has gained 150 signatures and will be published in Harper’s Magazine. To be fair, I don't give two hoots about Harper's Magazine but as it is published in New York City, it does have a reach into the board rooms of the rich and powerful. Weirdly the signatures include Noam Chomsky, New York Times opinion editor Bari Weiss, author Salman Rushdie and Martin Amis. Already, some signatories have realised they they have been co-opted and duped and have asked for their names to be removed.
This is something of a paradox because while the authoritarian north wants to use free speech as a defence for abuse the libertarian south mostly wants to use it to stop existing power dynamics from punching downwards. The paradox exists because this open letter which is calling for an end to cancel culture, is itself cancel culture; and the one thing that cancel culture can not cancel, is itself.

I'm wondering if there is no new culture war going on at all but rather, just new set of terms of describing disagreements between people who hate racism & discrimination & people who love to perpetuate it. While all of this has been going on, the term 'woke' has just replaced 'politically correct' as the most pretentious way of saying 'not a massive bigot'. All of this would go away if the knaves who want to say knavish things stopped saying knavish things because those people on the receiving end of the abuse, wouldn't be receiving that particular kind of abuse any more.

July 06, 2020

Horse 2727 - What Grandma Ivy Saw

Some friends of ours have recently celebrated the arrival of their daughter Ivy. As I am not a parent, I do not know what that is like first hand but I imagine that apart from the occasional cooing from friends and family, having a very small baby is like living with a gunpowder keg; in that they require constant attention and are likely to go off and explode without warning.
A baby starts off mewling and puking and knowing nothing about the world, and then over the course of 80 years or so, learns a tiny little bit about the world, before the world inevitably changes into something unrecognisable; and they eventually end up mewling and puking before the cold embrace of death comes for them as well.

The first task of any parents is to give their new person a name. In this respect, Ivy is a brilliant name. Ivy is one of those names which is different enough that there aren't going to be three of them in her classes in school but sensible enough that it works equally as well for a small girl, as it does for a captain of industry, as it does for a grandma.
On that last point, assuming that the world doesn't chaotically spiral into a dystopian future (which is a possibility), then Ivy should have a nominal life expectancy of 84 years. 2020 + 84 = 2104. Unlike most of the twentieth century which had a surprisingly optimistic view about the year 2000 despite three world wars (two hot; one cold), I do not know if we have as optimistic view about the year 2100. I do not think that the 21st century has anything like jazz, rock and roll, or Les Trente Glorieuses to look forward to, like the 20th century had.
However, there are at least some things that we can know about the 21st century and the world of 2100, either by extrapolating what exists now or by what always was.

She will see at least three kings of England. 
It is reasonable to assume that Elizabeth II will die at some point; wherein she will be followed by Charles III; who will be followed by William V; who will in turn be followed by George VII. George VII is at the moment only a wee lad and almost certainly has no real concept of the job that he will inherit.

Australia Will Probably Be A Republic In Her Lifetime.
Australia has spent the last 45 years questioning why the Governor-General had the ability to sack a Prime Minister as the representative of someone 10,000 miles away. The republican movement makes the simple argument that Australia should have its own head of state, on the basis of the rhetoric of growing up and maturing as a nation. I personally don't like the idea of Australia becoming a republic because I see the actual advantage in changing symbols (which is really all that it does) as being less than zero.
Probably during the reign of King Charles III, the republican movement will gain enough inertia to force a referendum because it will be aided and abetted by the economic right who will enjoy the ensuing media smokescreen to do something really appalling. It is really easy to stab someone in the back if you get behind them first.

There will still not be flying cars.
This was a favourite of science fiction writers of days past and the thing which always gets in the way of this is the operation of physics. The simple unavoidable truth is that it takes orders of magnitude of extra energy to fly.
Sure, we might have self-driving cars and possibly no private cars as all of the oil runs out but the smartest boffins in the world can't rewrite the rules of nature.

Koalas Will No Longer Be A Thing.
What we have learned over the past 60 years especially is that as the planet heats up (for whatever reason, including whatever idiotic non-anthropomorphic conspiracy theory that you can invent) that the incidence of bushfire has become more severe and continues to get more severe. At the same time though, as Australians continue to build houses and clear what used to be economically unproductive forest areas, the total amount of area that is viable for koalas is shrinking and will eventually become so small as to make it impossible.
Some scientists have put the date at 2050 but I think that it will certainly be inevitable by 2100.

Summers Will Be Horrible.
I expect that there will be 50°C days in Sydney in summer. When you consider that only this past month, there were 40°C temperatures recorded north of the Arctic Circle for the first time ever and that the hottest years on record have all happened this century, then the trend must invariably keep on heading up the ziggurat lickety-split.
That might mean the end of cricket on the radio; which I personally think would be a national tragedy but I would find it very easy to imagine that Ivy has bigger and more pressing things to worry about than a rising ball outside of the off-stump which leave Australia at 23-6 against India.

Life Will Get Considerably Worse For Most People.
One of the lessons that the long game of history teaches us is that people who have power like having it and want to retain it. Over the last 200 years as we've seen the franchise extended to more people, we have also seen the next form of governance emerge. Straight up rude fascism didn't work because of its brutality but it taught corporations how to manipulate power by infecting government. The period of my lifetime has been characterised by privatisation and the increasing impotence of government.
For Australia it means that the old age pension will probably be got rid of, the ABC and SBS privatised and destroyed, universities privatised; public health care, transportation, schooling and the prison system privatised as well. Corporations already act as if they are above the law because they are, and as the automation of what used to be the workforce happens even more, the underclass of people who might have been educated and cared for and who would have had a claim on a portion of the economy through their labour, will no longer do so. The bottom line for corporations is the bottom line and if they don't have to care about people then they certainly will not want to pay for them.

This Is Probably The Last Pandemic That Australia Will Actually Cope With.
If you privatise health care then the expense instead of being carried by the nation as a collective and without profit motive, gets carried by smaller entities and due to reductions in economies of scale and reduced bargaining power, then the end user costs go up. Since price supplied goes up, the corresponding amount of demand shrinks and a new smaller equilibrium point is found. Unfortunately in the case of public health care, if that equilibrium point doesn't include the entire population then in a pandemic, the people who can not afford health care will not have it. When people can not afford health care, they are either turned out onto the streets or they simply never present themselves in the first place.
Pandemics do not care about your economic status of if you die. As privatising health care in Australia will probably be a thing, then the people who control and operate health care will want to protect themselves first; even at the expense of other people's lives.

We will all be dead.
The only certain thing in life is that the circus can not go on forever. Not even the best efforts of science can fight against the laws of science and that means that the law of entropy eventually gets cited and the messengers of death come around to collect.
In the year 2100 I will be 122 years old and therefore dead. Ivy's parents will be at least 100 years old and also very likely dead. Probably everyone who is currently reading this will also be very likely dead. I have no idea of what your conception of what happens to you after you die but I am reasonably sure that after the last person who is alive when you were also dies, then you are reduced to not much more than a name in the land of the living. It demands an answer to the question of what you do about it.

I think that Generation X is probably the last to have a life that would have been seen as comfortable, Generation Y will begin to feel the effects of the world falling apart, Generation Z will be the wedge generation and Generation Alpha will be the the first generation in a while to have begun in a time period where the decisions that were taken a long time ago, will start to make their effects known.