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.