From yesterday’s proceedings in Thomas v Mowbray & Ors:
HAYNE J: … do you say that the threat you thus identify is one which evokes the application of the organised force of this polity at the will of its Executive in response?
MR BENNETT: That is one thing which the power would permit, yes, your Honour, but not the only thing. It also permits legislation designed to defend against the attack made on it – - –
HAYNE J: That is bare assertion, Mr Solicitor. It says it is within power because it is within power. What I need to understand by the end of your submission is whether you are urging a move in the understanding of defence from a central core, which at the moment I would understood it to have had in earlier days, as concerning the application of organised force at the will of the Executive.
MR BENNETT: Your Honour, in my respectful submission, the power authorises something far beyond that and certainly the implied power of protection of the nation authorises something far beyond that.
HAYNE J: Let me take it a little further. Let the threat be identified as you do. Let me characterise it tendentiously as a threat of the performance of wicked criminal acts. What is it that brings that within defence?
MR BENNETT: The factors – - –
HAYNE J: Ordinary criminal conduct directed not at the polity but at the people of this country is not within the defence power. What is it that takes this within defence?
MR BENNETT: The factors to which I have referred, your Honour, with the existence of the threat being a threat to the polity and its people and the nature of that threat in the 21st century being something different to the nature of the threats which imagined in 1900.
HAYNE J: Terrorism is a very old phenomenon. You can trace it to the Zealots, you can trace it through the Assassins, you can trace it through the Thugs in India, you can trace it through the 19th century, that is, the commission of criminal acts commonly directed against members of the public motivated by political, religious, mixed motives for the purpose of exacting revenge for what is seen as a wrong done to the group for the purpose of achieving renown within the group that is sponsoring the terrorism and for the purpose of evoking reaction by the polity and people thus attacked is a very old tactic.
MR BENNETT: Yes, your Honour. In the absence of the circumstances I have listed it might well have been an interesting question whether the Commonwealth could in 1901 have legislated against anarchists, for example, but the Court does not need to consider that question. We are not in 1901; we are in an era where the factors to which I have referred apply, where the combination and seriousness of those factors as a matter of degree is far beyond anything previously imagined.
An implied power to protect the nation and its people must involve the ability to deal with it. The example I gave of the asteroid about to crash into Australia and cause enormous damage – your Honours may remember a film some years ago with that theme where a team of people were sent to destroy it. To do that would be something within the implied protection power. It would be classically defending the polity by defending the piece of earth on which the polity exists.
The fact that that may not have been contemplated in 1901 is simply irrelevant. That is a legitimate scope for national action and it is implied in the Constitution, as I will be demonstrating, that there is a power to defend the polity, the nation, the piece of land, whatever its society, the people, whatever one wants to use – - –
KIRBY J: But the asteroid does not really grapple with Justice Hayne’s question because the question is addressed against the background of a polity, Australia, which has had a division of the functions of the military under the defence power and the functions of civil authority and the police under the general powers of government, and that is a division which has been important for our liberties and it is really a very important inheritance from British constitutional tradition and you do not use the police traditionally for fighting asteroids.
MR BENNETT: No, your Honour, but you certainly have a power to pass legislation to do what is necessary to fight it.
…
GUMMOW J: What do you mean by “the nation�, Mr Bennett? That is the language of the French revolution actually.
MR BENNETT: Your Honour, it can in different contexts mean the polity, mean the people or even the physical land. The example of the asteroid involves defending the physical land.
…
MR BENNETT: … The third matter, which it is not necessary for your Honours to consider in this case, but it is worth bearing in mind in looking at the breadth of the power, is that the threat under the implied power of protection of the nation need not be human. It could be invaders from outer space, it could be a rogue asteroid which is likely to hit Australia and cause enormous damage. It could even be migratory birds infected with avian flu, although the power to shoot them down at the borders of Australia could no doubt be found in the quarantine power as well. But those matters are all matters which could be dealt with by a sovereign state under the implied power to defend the nation.
At least asteroids are tangible, Gummo, even if we’d prefer them to be terrestrially tangential. Especially when they contain rogue elements.
Of greater potential concern to the citizens of our Great Southern Land is the War On Asteroidism. Domiciled as many of them are in the ACT, perhaps operatives from ASIO could join Supreme Court Justices after dusk and be gainfully employed surveiling the night skies from the handily positioned Mt. Stromlo. For the good of all Australians.
This is a fascinating moment because it identifies just how far 9/11 has perverted ideas about civil society.
Before 9/11, military defence was interpreted as constitutional when fending off threats to sovereignty and to the integrity of the polity.
Now, military defence, as an extension of the prerogative of the Executive, extends to crime (which is what al Qaeda-style terrorism is), shooting down diseased birds, or even zapping asteroids.
The Executive thus sees itself as an embodiment of the General Will, the virtuous essence of the Nation. Once that claim is made, then there is no logical limit on the scope of its competency, and therefore there is no legitimate scope for dissent against the claims and actions of the Executive. To do so is Sedition.
This state of affairs is very familar to a student of history like Gummow: it is Revolutionary France and John Howard is Australia’s Robespierre in control of the Committee for Public Safety and the machinery of State Terror.
“L’État, c’est moi” predates Robespierre.
But if we’re talking about an “embodiment of the General Will” then that original Emo punk, Adolf, unfortunately comes to mind.
If it is just “political will” then it’s none other than Vladimir Ilich Lenin in 1918, just before Fanny Kaplan exercised a bit of “people’s will” on him.
Great minds think alike.
The quote’s attributed to Louis XIV.
“This is a fascinating moment because it identifies just how far 9/11 has perverted ideas about civil society.
Before 9/11, military defence was interpreted as constitutional when fending off threats to sovereignty and to the integrity of the polity”
Thanks Katz, you’ve put your finger on what was bugging me when yesterday’s thread about fighter jets hit a tangent about ‘asymmetrical warfare’ and someone segued into riot control techniques in 1916 vs today.
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“Now, military defence, as an extension of the prerogative of the Executive, extends to crime (which is what al Qaeda-style terrorism is), shooting down diseased birds, or even zapping asteroids.”
Has been the case for a long time. There’s never been a hermetic seal separating police and military. Our SAS, just like the special forces of many countries, stand ready to deploy in response to a terrorist incident — which, as you say, may be basically criminal in nature.
As for asteroid strike, well, it’s happened before, and will happen again. If it were detected in time, someone would have to provide the force to try to deflect it. I’d say the US/Russian militaries would be the obvious candidates. But that’s just me. Katz would no doubt bring a legal challenge to the employment of military force, and turn to the Victorian police instead.
There was a West Wing ep about it!
thanks gummo, reading the whole proceedings – they sure cover alot of ground….. the RWDB – Mr Solicitor (Mr Bennett) for the Commonwealth is so polite, he should come here and learn how to call Kirby a left-wing fcukwit, who just doesnt realise that Usama is gunna blow his very sorry arse to kingdom come, if he doesnt let the Commonwealth have all the powers they need to round up terrsts. (or as homer simpson might say – stupid constitution).
“Before 9/11, military defence was interpreted as constitutional when fending off threats to sovereignty and to the integrity of the polity. Now, military defence, as an extension of the prerogative of the Executive, extends to crime…”
Bingo! *Gary Oldman voice from ‘The Professional’*
Every major terrorist attack aimed at the West over the past three decades or so that didn’t succeed was stymied and/or perp walked by hard, steady and boring police, security and intelligence work, not by expeditionary military manoeuvres or over the top legislation.
Consider the first attempt by whacko fundies in 1993 to bring the World Trade Centre down upon itself. By 1998, all the main players had been tracked down, tried, judged and punished and without using armed forces to attack other unrelated countries.
Meanwhile Osama’s either died free and no one reported it or he’s giving his ISP hell over crappy broadband access in the Hindu Kush.
Let the Religion of Peace be with you and protect you from asteroids dudes http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/spot_the_common_problem_hint_it_isnt_us_or_us/desc/
Yeah, Nabs, but sometimes you need a guy in a black gas mask with an MP-5, and it isn’t going to be one of those poofter intelligence officers.
The storming of the Iranian embassy, for example, needed to be carried out by people armed with more than a microdot camera and a bottle of whisky.
I bet obby that even your loved ones and neighbours now duck and cover when they see you coming ‘cos they now know from bitter experience that even their cheerful and noncommittal “G’day” will only be met by crumpled newspaper clippings and incoherent non sequitur rants about Mussulmen hordes forcing carnal knowledge upon our household pets.
Weird. Bestiality. Smoko Room. Caliphate. Eggs. Beacon of Light. Lefties. Sperm. Tiddles. Dude.
Feel free everyone to assemble the above words in any order you like. Drunk and blindfolded too. Not like you’re gonna make any less sense than him.
Nabs. You forgot – Religion. of. Peace.
paulus, i think our state police services employ guys in black masks who carry a few gun-things and door banger-in things too. can’t remember the last time we were storming foreign embassies in oz to rescue hostages, but i think the high court dudes mentioned the hilton bombing being the only time these 119 was used, and we still aren’t sure it wasn’t the guys from the state police services in black masks with a few gun-things… and not the terrsts…(= Tim Anderson who ended up doing how many years at Long Bay.)
“The NSW Special Squad” who needed an Army when you had those father-fcukers on the job.
“..but sometimes you need a guy in a black gas mask with an MP-5…The storming of the Iranian embassy, for example…”
And who do you do think briefed them on their key objectives? HQ Land Command? Or the Home Office?
Using special ops on home terrority I’d count under ’security forces’. What bit of “expeditionary” didn’t you understand?
You keep a sharp lookout for those asteroids nabs and I’ll keep you up to date with what’s going on a in the national meeja OK?
“What bit of “expeditionaryâ€? didn’t you understand?”
OK then, what about the terrorist attacks prevented by Operation
Infinite JusticeEnduring Freedom, aka the expedition to Afghanistan.That stymied the further terrorist attacks that Osama would have launched against the West — unless you consider that 9/11 was a one-off and that Osama just intended to retire and start growing tomatoes.
And I’m picking up the special lingo of the left around here like ‘dudes’, which is naturally free of any hint of ugly Americanisations.
Well, we’re not calling you “bro”, dude.
By the way, I am an American so I reserve my right to use Americanisms.
Why do you hate America, obs?
obs,
all of the examples listed in bolt’s daily atrocity exhibition are insurgencies that go back decades with long convoluted histories.
why dont you link to the biggest and nastiest war on the planet in terms of dead people – the Congo. Kinshasa not doing it for you?
or how about the Ivory Coast, Sri Lanka, Burma, Peru, Colombia or any other place that has on-going insurgencies, car bombings, assassinations sans muslims.
listen old cob, why dont you turn up the wireless and put on the billy, fair dinkum.
Pleased to hear you got out from under the Great Satan Kim and avoided ending up in Gitmo or under one of the Bush Admins global warming asteroids or hurricanes or some such.
jo….err, ummm….do you realise you may be casting aspersions on brown and black people in polite company?
Now you’ll love this little glimpse of the special relationship between the Doctrine of Peace and the Religion of Peace. They even have those loving Trotskyist, Leninist type factions
http://memri.org/bin/latestnews.cgi?ID=SD146507
with their own conspiracy theories. Beware the Protocols of the Mullahs of Qom eh? Heh, heh, yeah with a little help from Default Plan B in Iraq Mecca head.
“OK then, what about the terrorist attacks prevented by Operation Infinite Justice Enduring Freedom, aka the expedition to Afghanistan.”
You mean the Bali, London and Madrid bombings?
And everyone who was brought to justice over those outrages and over every other terrorist attack mounted and/or foiled in the last 30 years or so, was done so through police, intelligence and security work, not through expeditionary adventures.
Meanwhile Afghanistan is home to a resurgent Taliban and on target for one of its biggest poppy crops ever – which gets turned into heroin, a key funding source for the new world disorder.
Spies, bribery and subordination, not bombs, bluster and bullshit traditionally works in The Great Game.
C’mon Paulus, you’re normally much more worldly than your recent comments on this thread would suggest.
Weird, you’re observa dude.
All I’m meaning to suggest is that you do sometimes historically get state-sponsored terrorism, and in those cases the bombs and battleships are the appropriate remedy. (I hasten to add that by no means all terrorism is state-sponsored; I’m certainly not one of the ‘Saddam was the mastermind of 9/11′ whackjobs).
Bali, London and Madrid were the operations of local ‘franchises’, as they say. They drew no more than inspiration from al-Q central office. But if Afghanistan had not had the loving attention of the CIA paramilitary teams, USAF, and USMC, Osama would undoubtedly have been directly organising further attacks.
But anyway, I have an important and pressing question for you, Nabakov. As an old and grizzled veteran of this site (so I presume since you were here when I arrived) you may be in a position to tell me: why do people keep calling Obs weird? Was there one particular thread where this began? He does seem a little off-beat in some respects, but compared to some denizens of the blogosphere, such as Graeme Bird, Obs is the very model of wisdom and normalcy.
I can answer that, Paulus.
Zoe started it.
Mind you, Birdy isn’t the best basis for comparing “normal”.
But who wants to be normal anyway?
None of that changes the fact that obs is a weird dude.
must remember not to handle the wildlife, i’ll leave to the zookeepers in future.
leave it…….
Bed time, jo!
“Bali, London and Madrid were the operations of local ‘franchises’, as they say. They drew no more than inspiration from al-Q central office.”
That was gonna be my next point, you thieving bastard.
“why do people keep calling Obs weird?”
It probably started about the time he quoted Wilheim Reich as an authoritive source on the universal pyschology of the completely mixed bag of fruits, nuts and liquorice allsorts that hang about this site.
Or was it when he started getting all Santorum, lecturing everyone that gay marriage was a slippery slope to violating his cat Tiddles and then snakes? Lots of snakes.
Or perhaps when his every second comment started included a link to a completely OT News Corp article?
Or wait, was it when he started imparting the folk wisdom of the “smoko room”, again often utterly OT?
But yeah as Kim said, Zoe started it. It’s all her fault the witchy bitch.
Look I’m sure obby’s a perfectly decent old buffer in real life. It’s just he has a major problem with online life, especially with all those smart cheeky chicks effortlessly patronising him. Though I suspect he secretly enjoys the attention. He certainly seems like someone who has bored shitless everyone in his corporeal life and now wants his fur rubbed up the wrong way by strangers while trying to pretend he doesn’t like it. I used to think such behaviour was pathetic until I started getting older too.
As for Birdy, oh yes he is certainly sui generis but not really in the way he thinks he is.
For “pathetic” read “bathetic”.
For “susage” read “hostage”.
For “susage” read “sausage”.
He’s very uneven. The occasional Ubermenschlich (is that a word?) rave is all very well, but…
Nabs, we’re drinking BruichLaddich on the Derrideans of Death thread!
http://larvatusprodeo.net/2007/02/15/the-war-on-the-punditariat/#comment-349162
Get your bum over there, dude.
Did Tiddles have a word in your shell-like?
Don’t be silly, Paulus.
Of course the military with their hardware and expertise would be the ideal asteroid zappers.
And as long as Parliament gives consent, as far as Gummow and I are concerned, they can zap to their hearts’ content.
It’s not the performance of these functions that disturbed Gummow, it was the rhetorical legitimation of untrammelled executive control of these functions that sent a French-Revolution-inspired shiver down his spine.
And in any case, why shouldn’t a citizen have a right to bring a legal challenge to the exercise of any executive function? Doesn’t the legal system exist to serve as a check on executive tyranny?
That’s a great line from Kirby!
Yes, a High Court transcript this witty, erudite and mischevious hard to find. Thanks for the link.
However, a couple of other things caught my eye:
(1) Bennett (Solicitor for the Commonwealth) is getting into dangerous territory: Caught between being a Jew-hater and an apologist for genocide!
“If the Canaanite cities had had a federation with section 51(vi) in it there is little doubt that it could have been invoked against the children of Israel”.
But seriously folks….
(2) What I found interesting was Bennet’ts bit about not really needing a control order “if the terrorist act is one which is likely only to cause damage to property and not a substantial amount of property”.
OK, so digging a trend across all the main roads into a CBD (or an industry park) at 3 in the morning (leaving flashing lights on so no-one accidentally drives their car into the ditch and gets hurt, taking care not to cut water, gas or phone lines and ideally leaving enough room for an ambulance to get through), causing no deaths and only minimal damage to property, is an act that does not warrant a control order. So, according to the definition of terrorist act in section 100.1, not endangering life (and thus in subsection 3), digging up all the roads is not a terrorist act. But I bet if someone were to do it, the executive would be calling it a terrorist act as soon as a microphone was shoved in their faces.
(3) Oh, and we also get the commonwealth (through it’s solicitor) being against Jesus:
GLEESON CJ: Was whipping the moneychangers in the temple an act of terrorism?
MR BENNETT: Your Honour, it might depend on a number of matters.
OK, so the government solicitor is likening Jihad Jack to Jesus, or saying that Jesus SHOULD have been executed by the Romans as a terrorist. What will the Howard-loving Christians think!