by Mary W Maxwell, LLB
Here at GumshoeNews, we have been almost fainting at the way due process gets obliterated in two types of courts in Australia, the federal Family Court and the states’ Childrens Courts. Try never to be a Protective parent in a case where your child has been removed from you by court order – you will be shocked day after day.
And worse, your friends won’t believe you — since they “know” that such judicial atrocities can’t happen.
Here are typical yelps we have heard from the Mums:
The judge told me to “Shut up.” (That’s verbatim.)
I was not allowed to bring a McKenzie friend into the courtroom (a support person in a self-represented case).
The Crown Prosecutor met with the judge alone.
Hearsay was admitted as evidence.
I was not allowed to subpoena key witnesses. – Etc.
And before you say “Oh, that’s Australia,” please know that it’s just about identical in the US.
Due Process for Due Process’s Sake
In this Part 2 article of the series “Recover the Law,” I hope to make the sometimes fairy-dust matter of due process achieve a very solid existence. Pardon me if I end up overdoing it.
Overdoing is better than underdoing it. To treat as small inconveniences the loss of the right to face your accuser, or the right to have counsel or to cross-examine witnesses is to start zooming down a slippery slope to disaster.
Here is my slightly overdone premise: due process is everything. The law is due process. A tyranny will be able to emerge speedily once a society has scuttled due process.
The Growth of Due Process, from the 13th Century to the 17th Century
We love to talk about the Magna Charta as if it were a people’s moment, back there in 1215. Granted, the event at Runnymede has provided us with a valid symbol. The individual gained some rights – forever.
Strictly speaking, though, it was no uprising of the poor. It was an uprising of the wealthy. The barons pushed the king into a corner and made him sign a promise that if he misbehaved he would be willing – willing, mind you – to be distrained (stressed out) and even have his wealth confiscated.
Some years later, in 1354 (how time flies!), there was a statute to clarify what King John had signed up to. “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”
Anyway, by the time Sir Edward Coke came along with his Institutes of the Lawes of England in 1628, there was real expansion of the meaning of due process, so much so that Coke equated the phrase “due process” with the phrase “the law of the land.”
That is how New Hampshire citizens think of it. I attended a gun owners’ meeting in Concord last week and the sense of liberty in the room was palpable. A gun owner in NH feels that is life is personal and the state has no business therein. Certainly – certainly – not to disarm a farmer.
Developments in 1789 and 1868
Every man and his dog knows that the Bill of Rights (1789) uses the phrase “due process” in connection with the right to a fair trial. That was already discussed in Part 1 of this series. It is a mighty thing, and even includes Miranda’s.
Some scholars have complained that Jahar was cheated of his Miranda rights after he was shot at in the boat to the tune of 228 bullets. Excuse me but I can’t relate. To me the due process problem there was the 228 bullets.
Attorneys can focus on due process and make it do wonders for a client — even over a traffic violation. Consider the following case in Canada. The law there says all highway signage must be bilingual, not just in Quebec. A lady got a ticket for a traffic violation in Ottawa. Her lawyer found the loophole — she got let off because the sign did not offer French. Never mind that she spoke not a word of French.
But now to the biggie, the 14th Amendment. It was largely motivated by “Reconstruction” of the South. The feds wanted free rein in the southern states. The 14th Amendment of 1868 allows the Supreme Court to proscribe bad legislation by any state.
Well, not exactly proscribe. In the US there is no doctrine of Parliamentary supremacy, as in UK and Australia. There is a playoff in the US – or there ought to be – whereby power checks power, and interest checks interest. Parliament – i.e., Congress – occasionally finds itself constrained by the Supreme Court.
Substantive Due Process
The constraining of the legislature has been done by the Supreme Court’s expansion of the idea of due process to include “substantive due process.” That’s a way to check a new law that disrespects what we might call the New Hampshire individual.
The New Hampshire individual, and his protector in the Supreme Court, can sense when a law offends liberty. That includes the liberty to own property.
”It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.”
Now let’s look at two cases, Dred Scott v Stanford and Lochner v New York.as to how they did or did not deal with due process.
Dred Scott lived in Missouri, a slave state, but his “owner,” Emerson Stanford took him to Illinois and Wisconsin, both free states, then back to Missouri. In 1846 he filed for freedom for himself and his wife on the grounds that he had become free in Illinois.
It took until 1857 for the case to be decided at the US Supreme Court. Justice Roger Taney argued that s Mr Stanford’s “property” – the slaves– could not be taken from him. This was partly based on an incorrect claim that in Illinois slavery was still happening.
You may be shocked to hear that I do not fault Taney’s reasoning on the property issue as such. The government is not allowed to take your property.
Now to the bakery case, Lochner v New York. The state had passed a law that bakeries must not require a man to work more than 60 hours. The defendant, Lochner, owned the bakery. He won the case, and did not have to pay a fine to New York state for having asked an employee to work beyond the statutory limit.
That bakery owner’s win was thanks to substantive due process. The huggy-feely legislation was deemed invasive of the bakery owner’s rights.
It was deemed an invasion of the employee’s rights, too. No coercion had been used. We all have the right to make contracts. Perhaps workers want to do 12-hour shifts to make extra money. The New Hampshire gun owners would say “Right on, Lochner!”
But Socialism Has a Place
How then, after the Lochner ruling, did we get to the point of states limiting work hours and guaranteeing minimum wages? The US Supreme Court began to tolerate state’s taking some freedom away if the state could be seen to be using its police power.
The “police power” is not just to catch criminals but to guard the health and welfare of society. A health decision could be made in regard to working hours. Even before Lochner, laws were allowed to survive if they were provably base on health.
For example underground miners were limited to a 10-hour workday. There came to be what is called “Brandeis briefs” – files in support of a law that showed statistics as to the health needs. The idea of “judicial notice” also came to the fore. The judge could see with his own eyes what was going on in society.
(For example, Judge O’Toole would have been exercising a prerogative of judicial notice by noticing that scripted terrorism was occurring all over the place.)
The New Deal in US and in Australia
Sudden socialistic involvement of the US government in lives – seemingly for altruistic reasons – came with the New Deal of the 1930s, including the Social Security Act of 1935.
When the Court balked at some of the New Deal legislation, FDR cleverly came up with the threat of packing the court with persons more to his taste. (The Constitution says nothing about the number of SCOTUS judges being limited to nine.)
Australia is way more “New Deal-y” than the US. Due process gets swept under the rug quite easily.
NSW barrister Terry Shulze represented an egg farmer in court. He argued Coke-ishly that the law requiring farmers to cooperate with the Egg Board was not an OK law.
The court pretended not to understand this substantive-due-process approach. However I think they did recognize the threat involved. Parliament quickly passed a law changing the egg board, thus mooting the case and depriving the farmer of a precedent-setting win.
The Fixated Persons Investigation Unit of NSW
I have called this article “The Breadth of Due Process” as part of a celebration of law. Regard for due process is extremely vital – it is our power against the might of the state.
As mentioned, the Magna’s Charta’s landmark was procedural rights. The protection of an accused person is the sine qua non of a free society (free in the sense of not despotic). If the accused is not protected, anything can happen to any of us.
This year, 2019, NSW Police Commissioner Mick Fuller unabashedly proclaimed his “right” to arrest and incarcerate for 14 days anyone he feels like arresting. Oh? Are there no restrictions? Sure, he says he restricts it to persons who are fixated and are potential harmers of society.
But for the police to be the arbiter is ridiculous. There was a complete abjuring of due process. I went straight to my lawyer in Adelaide when I learned of the NSW “fixated persons investigations unit” — as I figure I qualify as fixated.
First off, my lawyer did not believe me but he looked up the NSW unit and then believed me. He advised me if I get arrested to demand habeas corpus. That is an ancient writ by which the king demands that the jailer bring forth the body (a still-alive body) and explain why she is locked up. “Habeas corpus” translates to “You have the body.”
Today it does not involve a king, you just get a magistrate (lower level judge) to have a look at you and find out if your incarceration is legal.
The Bikies in South Australia
In 2010 something happened. A gang of motorcyclists known as the Finks discovered that SAPOL had put together something akin to the “Fixated persons” arrangement.
The scheme went like this. The Attorney General could determine that such-and-such a group was trouble, and could instruct a magistrate to put particular persons under “orders.” The person would be charged with any crime.
You wonder how the AG thought he could get away with it. (Note: today the AGs of Australia are all getting away with something even worse involving children.)
The South Australian AG had indeed picked out two men, Sandro Totani and Donald Hudson, members of the Finks bikie gang. This led to the case South Australia v Totani which made it to the High Court.
I will quote a 2010 article from news.com.au:
Breaking news
Finks bikie gang say High Court ruling is vindication The South Australian Government must go back to the drawing board with its anti-bikie law after the High Court’s ruling it is unconstitutional. The High Court today declared as unconstitutional sections of SA’s controversial laws banning gang members from associating.
The majority judgment throws into doubt a key aspect of South Australia’s Serious and Organised Crime Control Act, which allows restrictions to be placed on gang members without a court having the power to review the evidence. The High Court has sided with the Finks Motorcycle Club, upholding a ruling by the SA Supreme Court in 2009.
Following today’s judgment, the South Australian government has been ordered to pay costs to Finks motorcycle gang members Sandro Totani and Donald Hudson.
A majority of the High Court bench considered that South Australia’s organised crime act was incompatible with the political independence of magistrates courts.
Chief Justice Robert French said courts and judges needed to decide cases independently of the executive government.
“That is part of Australia’s common law heritage, which is antecedent to the constitution,” he wrote in his judgment.
The court had misgivings about obliging magistrates to impose serious restrictions on a person’s liberty “whether or not that person had committed or was ever likely to commit a criminal offence”. [Emphasis added]
Now that’s progress.
Exuse me, i said SAPOL organized the gig but it was Parliament that did so. (re Bikies case)
I blame SAPOL for enough things without blaming them when they are innocent. Zorry.
Why do you continue to insist that the lawlessness metered out in the Family Court is unique to said entity?Anyone who’s had any sort of dealings with any branch of the so-called justice system would know that nothing could be further from the truth
Yeah, I’ve got 21 years at the coal face. Crikey, I have absolutely NO faith in the Australian judiciary. It’s shocking, Hell, that’s why I recommend every Australian research the Port Arthur Massacre. Time for Ozzies to pull their head out and start dealing with reality.
The Port Arthur verdict was really nothing more than a parody of what goes on in most magistrates courts most days of the week.
A while back you mentioned that, whilst upright magistrates are a rarity, you might come across the odd one. That happened to me back in Aug’04 when an entire case was turned ass about face via one simple order delivered by an older guy called McIntyre: The other party’s rep went from being as cocky as all hell to a quivering blob of jello
I reckon the same ratio applies to all other government officers. Once in a blue moon you come across one who actually has some sort of commitment to delivering some sort of service and its absolutely mind-blowing. Andrew McGregor must have been a genuinely good cop, whereas the ones picked out for that “role” are just a bit weak/naive.
I would expect that the ratio of ‘good ones’ would increase if the Australian law schools used the Socratic Method of teaching – https://www.thoughtco.com/what-is-the-socratic-method-2154875
As it is, instead of legal reasoning using critical thought, the profession is seeped in sophistry. For a good part, if not the majority of the judiciary, any BS argument is worthy if it has a modicum of appearance to support the decision. What is so striking is that the judge is often the only person in the court room that believes the BS – the rest of the court just rolls their eyes.
The system needs a complete overhaul in order to restore confidence. No more ‘good ol boys club’ as the means of advancement. Judges need to work their way up, not SUCK their way up.
Somebody should tell a Queensland librarian who was imprisoned for consorting with a bikie, that her incaceration was illegal. Of course, in Qld the police would arrest her for something else, like self-defense after they assaulted her, or some crime equally hienous.
You think I exaggerate… LOL, well, I was introduced to the top Maroochydore detective, in the Rebel’s club house, by their Seargent-at-arms. Meanwhile, Maroochydore police are still looking for the $100,000 that disappeared from the station evidence safe. And I once caught a senior seargent arbitrarily changing an officer’s liquor licence ruling, to please a fellow committee member.
Ergo, in Queensland, it don’t matter what the law is; corruption rules right to the top, regardless of party in power.
Re police prosecutors and judges… they even get their heads together before the trial and discuss sentences.
Freemasonry is the one ring that rules .
For a truly free world , we do not need secret societies in every town . Until they are removed from power , it’s business as usual .
It is much more than ‘incompetence’ on the bench. Yes, that does exist, Hell, I had to teach basic math to a judge so that he could compute future economic loss. Some of them are not all that bright, imagine being a lawyer that had an IQ two standard deviations above the norm trying to discuss evidence to a judge that couldn’t even make the norm. It’s like trying to discuss quantum mathematics with an Orangutan.
The result is so many of them use a fall-back position of what is ‘politically correct’, or more precisely ‘what is correct for my future’, then there is the judgements based on ‘she’s got a nice body and smile’, or ‘I don’t want to let my old mate down on this case’, or ‘I don’t like this lawyer, I’ll down his client’, or just plain malice ‘I don’t like this defendant/plaintiff.
Until you have run dozens/hundreds of cases where the law and evidence is overwhelming and the judge decides to do whatever he damn well wants to do – you do not understand the Australian judiciary.
Well, Berry, I don’t recall ever insisting that the family court and chilluns court were uniquely bad.
But I shall do so now, with pleasure.
Those two godforsaken courts are uniquely bad for the following reasons, not in any particular order:
No human (other than the litigants) can enter them. Ever. So no one would even be able to compare what goes on in there with anything else. (BTW, Mary Maxwell is reportedly blacklisted as a McKenzie friend in SA, though I have never been one and never applied to be one.)
The judge can, and does, say to a nice-minded solicitor “If you mention sexual abuse by the father, or say the mother does not coach, you will lose your admittance to this court is that clear?”
The Family Law Act openly and unashamedly exempts the Fam Court from the Evidence Act. Thus while Barrister Shulze may, in other courts, see a judge cheating by allowing hearsay or other inadmissible evidence, these judges are not cheating when they do it. You can’t haul them before an ethics panel for a breach, as it ain’t no breach.
In other courts the only bad thing the judge can do is imprison you or impoverish you. But here a judge can – and does – take a 4-year-old from a loving parent and siblings. Goodbye ties that bind, so long family connection, CYA.
The said kid then gets to be sexed up, tortured, brain-washed, whatever, with no one to say “Hey wait a minute, excu-use me, who is harming this child.”
That kid – we are going by Royal Commission statistics here – will end up on drugs, lack self-esteem, and not be able to form relationships.
Any Protective parents want to add to that list, feel free. Or any judges want to show me where I’m wrong, please do. Or any happy-satisfied litigant wnat to refute the likening of a judge to an orangutan, go ahead. We are an Equal Opportunity webiste.
“Once in a blue moon you find a good magistrate.”
May all Protective parents have that luck this week!
.
It appears to me that the whole “fixated persons” spiel is nothing more than a cousin of the VRO concept. In both cases all claims to beneficence are belied by the overarching ramifications. The latter has certainly proved itself to be nothing more than an unscrupulous tool of oppression; a means of exploiting personal conflict/acerbating petty revenge.
Gee that’s the first time i ever heard that, Berry.
Once you have heard someone lurking in your garage at night and you live alone, and then get a threatening phone call, what are you to do? If you know who the fellow is, isn’t it natural to seek protection?
Is not a court able to distinguish bewteen a worthy and unworthy request?
In the majority of cases, a Magistrate will grant the order to cover their ass. Often if someone wants an AVO (in NSW it is called an Apprehension of Violence Order) then the other person will put in a reciprocal AVO – tit for tat.
This ploy is especially effective if someone has a firearms license (say a farmer). A person in NSW is banned for 10 years from having a firearms license after the AVO has lapsed. (part of the ‘tough new gun laws’ – ie: disarmament of the people)
Holy shite.
The question that needs to be asked is how would a piece of paper protect anyone from any sort of genuine threat ? The issue goes to the fact that prospectively based penalties defy the Rule of Law.
I knew a really mild-mannered guy whose neighbour had a VRO issued against him re a boundary fence dispute after he(the neighbour) entered his property uninvited, tried to talk him down, and was told to f**k off by his wife.
I knew another really mild mannered guy who had a VRO issued against him when he asked the Po to assist him in retrieving a motor vehicle that was being unlawfully held by an incompetent & ruthless repairer.
Both Orders wound up being axed, but by then the damage had already been done
And then there was the case in Queensland about 25 years ago where a former wife got an AVO against her former husband. He came over and she waved the piece of paper in his face.
She got him so mad he grabbed the piece of paper and tried to make her eat it – unfortunately, she choked to death on it.
Killed by an actual AVO (VRO) – admittedly there is a horror there, but I still find the irony humorous.
“You’ll eat your words, Your Honour.”
It’s impossible for a judge , on 10k or more per day , to have any compassion and connection to someone
on $15 /hr or less . There in lies the inequity .
They have absolutely no concept of the commons
sufferings in the debt usury system .
[…] Fisher’s persuasive argument. Let’s just take the famous Dred Scott decision of 1857. Gumshoe carried an article on it about six months […]