Australian Gag Order Stokes Global Debate on Secrecy(nytimes.com)
nytimes.com
Australian Gag Order Stokes Global Debate on Secrecy
https://www.nytimes.com/2018/12/14/world/australia/australia-gag-order-court.html
14 comments
[deleted]
Thats funny. The Age makes it seem like the jury is remanded. Remand is for the alleged offender[1]
[1] http://www.corrections.vic.gov.au/home/prison/remand/
[1] http://www.corrections.vic.gov.au/home/prison/remand/
>>A very high-profile figure was convicted on Tuesday of a serious crime, but we are unable to report their identity due to a suppression order.
Pell Online has the name, I think :) .
So stupid these orders, trying to change the truth.
Pell Online has the name, I think :) .
So stupid these orders, trying to change the truth.
> So stupid these orders, trying to change the truth.
These euphemisms are getting ridiculous. The person is cardinal George Pell, who has been convicted of sexual abuse (after an unanimous guilty verdict by the jury). He is the highest ranking member of the Catholic Church ever to be convicted as a sex offender.
These euphemisms are getting ridiculous. The person is cardinal George Pell, who has been convicted of sexual abuse (after an unanimous guilty verdict by the jury). He is the highest ranking member of the Catholic Church ever to be convicted as a sex offender.
Pell is involved in two separate trials. Until the second trial is completed, the gag suppresses news on the verdict in the first trial.
Without the gag, it's very unlikely that it would possible to obtain a conviction against Pell in the second trial.
Once the second trial is over, both verdicts are able to be discussed and circulated as news.
Without the gag, it's very unlikely that it would possible to obtain a conviction against Pell in the second trial.
Once the second trial is over, both verdicts are able to be discussed and circulated as news.
Something I'm clueless about, but why aren't jurors allowed to know prior convictions? That seems like highly relevant information. If a person has robbed ten banks before why not tell the jury in the trial for the eleventh?
Sure if a person had a multitude of driving convictions in a child abuse case I can understand the court denying it as irrelevant, but that isn't what's happening here.
Sure if a person had a multitude of driving convictions in a child abuse case I can understand the court denying it as irrelevant, but that isn't what's happening here.
To flip your question around, should a prosecutor have the power to, upon an 11th bank robbery occurring, simply drag in the guy who did the last 10 and present him as "probably" the guilty party? This has happened any number of times in the past. It's important that each case stand on its own merits, to the standard of "beyond reasonable doubt".
That said, judges have a lot of latitude to allow evidence of prior conviction if they feel it is in aid of a fair trial. They wield this power in order to keep all parties honest and unbiased as best they can. In this case - rightly or wrongly - the judge has decided that knowledge of the outcome of the first case would prejudice the second case, especially due to the emotional nature of the allegations. That's why the order was made.
While I have nothing but contempt for Cardinal Pell, who represents pretty much everything I dislike about the church, he has as much right to a fair and unbiased trial as any other person. Months of media saturation might indeed prejudice that, so I reluctantly support the intent of this kind of power, appropriately limited and temporary. It certainly is more complicated in the age of global media, however, and I really don't know what the answer is, if there even is one.
That said, judges have a lot of latitude to allow evidence of prior conviction if they feel it is in aid of a fair trial. They wield this power in order to keep all parties honest and unbiased as best they can. In this case - rightly or wrongly - the judge has decided that knowledge of the outcome of the first case would prejudice the second case, especially due to the emotional nature of the allegations. That's why the order was made.
While I have nothing but contempt for Cardinal Pell, who represents pretty much everything I dislike about the church, he has as much right to a fair and unbiased trial as any other person. Months of media saturation might indeed prejudice that, so I reluctantly support the intent of this kind of power, appropriately limited and temporary. It certainly is more complicated in the age of global media, however, and I really don't know what the answer is, if there even is one.
I personally feel like the best way to be persecuted in this world... Is to be persecuted in the first place. I know this all too well, personally. A history of misfortune or injustice is basically a recipe, and in fact a justification, for future injustice. Probably most tyrannies of peoples in the history of the world falls under this category.
This question gets asked a lot.
Prior criminal history isn't relevant at all to a criminal trial. Just because he robbed 10 banks before doesn't mean he robbed this one. It's prejudicial and really problematic any time a repeat offender is on trial-- the mentality becomes "well, the evidence is weak and nobody saw him do it, but he must be guilty...he's a criminal!"
Convictions are supposed to be made after considering the facts of the case as presented, not speculation based on past behavior.
Prior criminal history isn't relevant at all to a criminal trial. Just because he robbed 10 banks before doesn't mean he robbed this one. It's prejudicial and really problematic any time a repeat offender is on trial-- the mentality becomes "well, the evidence is weak and nobody saw him do it, but he must be guilty...he's a criminal!"
Convictions are supposed to be made after considering the facts of the case as presented, not speculation based on past behavior.
I totally agree with your point and I'm setting a dangerous precedent by arguing the point I'm going to argue for in a second. Please note that I am fully against what I'm going to argue now but I'm going to argue it for the sake of playing the devil's advocate.
That being said ...
>Convictions are supposed to be made after considering the facts of the case as presente
The fact that someone robbed 10 banks is a fact. You're literally witholding (relevant) facts from the case.
How is a person's history not a fact? I mean, the robbery happened in the past, which is also a fact. How are the two different.
So we rob a bank at T=10, Imagine that person robbed a bank at T=1, not relevant, what if person robbed a bank at T=2, T=3, .. etc. Even if we rob a bank at T=9.999... it is suddenly not relevant anyore?
I realize the absurdity of the point I'm making but how is previous crime not a valid feature? If we train a machine learning algorithm to predict guilty/not guilty (I'm going into dangerous territory here, I realize this) and the training set contains criminals that are repeat offenders, wouldn't "repeat offender" get a high feature weight in say a random forest?
That being said ...
>Convictions are supposed to be made after considering the facts of the case as presente
The fact that someone robbed 10 banks is a fact. You're literally witholding (relevant) facts from the case.
How is a person's history not a fact? I mean, the robbery happened in the past, which is also a fact. How are the two different.
So we rob a bank at T=10, Imagine that person robbed a bank at T=1, not relevant, what if person robbed a bank at T=2, T=3, .. etc. Even if we rob a bank at T=9.999... it is suddenly not relevant anyore?
I realize the absurdity of the point I'm making but how is previous crime not a valid feature? If we train a machine learning algorithm to predict guilty/not guilty (I'm going into dangerous territory here, I realize this) and the training set contains criminals that are repeat offenders, wouldn't "repeat offender" get a high feature weight in say a random forest?
Indeed, a prior conviction raises the Bayesian probability of a given suspect having committed a similar crime. In probability terms, the prior probability of suspect S having committed crime Cn, given that they committed crime C0, C1, etc., is certainly higher than without that information.
But how much higher? Given 8 billion people in the world, the priors are quite low for any given person P having committed any particular crime Cn. On the other hand, humans (including jurors) are liable to bias, and without other alternatives they can very easily be fooled. By the time someone has been dragged in front of you, and you're told that they committed C0, C1, etc., then you're asked if they committed crime C and to you it looks very plausible because it's hard to take into account the (still) very low prior, especially if you lack other alternative hypotheses.
So while you're right that it is a valid inference, we choose not to allow that inference in order to counter the much higher magnitude of bias caused by the representativeness heuristic and the like.
But how much higher? Given 8 billion people in the world, the priors are quite low for any given person P having committed any particular crime Cn. On the other hand, humans (including jurors) are liable to bias, and without other alternatives they can very easily be fooled. By the time someone has been dragged in front of you, and you're told that they committed C0, C1, etc., then you're asked if they committed crime C and to you it looks very plausible because it's hard to take into account the (still) very low prior, especially if you lack other alternative hypotheses.
So while you're right that it is a valid inference, we choose not to allow that inference in order to counter the much higher magnitude of bias caused by the representativeness heuristic and the like.
> playing the devil's advocate
Ok. IANAL :)
> The fact that someone robbed 10 banks is a fact.
The legal world is, officially, very humble. It isn't a fact that someone robbed 10 banks. It is a fact that they were /convicted of/ robbing 10 banks. The legal system isn't perfect, lots of basically guiltless people get chewed up by the machine. An acceptance of that reality permeates a lot of legal practice (embedded in the system, although I expect a lot of lawyers get it too).
> How is a person's history not a fact?
The key word you are missing is relevant fact. Some very great minds have put a lot of effort into making the legal system robust against the unreliability of all the evidence that passes through it. The rules regarding evidence in the Common Law tradition are quite well thought out. A case starts by gathering evidence of what transpired, proceeds by assessing it against some standard and finishes taking a (more or less) predictable action.
If someone has 10 convictions, they have received an appropriate treatment for what they have done. Imagine that a bank robbery has occurred and someone has a history of 10 bank robberies is the suspect. If the case is borderline, and the 10 prior convictions is what pushes it over the edge, then this is effectively the same as further punishment for past misdeeds.
If the 10 past misdeeds are acceptable evidence, then it is equivalent to punishing someone further for past crimes. That isn't acceptable - the sentence at the prior conviction is meant to be the end of the matter and to allow otherwise violates principles of fairness. For reason of fairness, they can't be accepted and the current case must be tried on the merits of only evidence about that instance of crime.
Ok. IANAL :)
> The fact that someone robbed 10 banks is a fact.
The legal world is, officially, very humble. It isn't a fact that someone robbed 10 banks. It is a fact that they were /convicted of/ robbing 10 banks. The legal system isn't perfect, lots of basically guiltless people get chewed up by the machine. An acceptance of that reality permeates a lot of legal practice (embedded in the system, although I expect a lot of lawyers get it too).
> How is a person's history not a fact?
The key word you are missing is relevant fact. Some very great minds have put a lot of effort into making the legal system robust against the unreliability of all the evidence that passes through it. The rules regarding evidence in the Common Law tradition are quite well thought out. A case starts by gathering evidence of what transpired, proceeds by assessing it against some standard and finishes taking a (more or less) predictable action.
If someone has 10 convictions, they have received an appropriate treatment for what they have done. Imagine that a bank robbery has occurred and someone has a history of 10 bank robberies is the suspect. If the case is borderline, and the 10 prior convictions is what pushes it over the edge, then this is effectively the same as further punishment for past misdeeds.
If the 10 past misdeeds are acceptable evidence, then it is equivalent to punishing someone further for past crimes. That isn't acceptable - the sentence at the prior conviction is meant to be the end of the matter and to allow otherwise violates principles of fairness. For reason of fairness, they can't be accepted and the current case must be tried on the merits of only evidence about that instance of crime.
Keeping in mind you are playing Devils Advocate.
I can see how from a risk and prevention perspective, prior convictions are highly relevant. The ML example factors into this. Banks would not be unwise to lock the doors when a person with 9 bank robbery convictions walks past.
In fact, I would suspect that even if the jurors should base it just on the facts, the person is more likely to end up in front of the court because the police would run through the list of convicted bank robbers in the area.
The risk of an incorrect conviction for this person must go up.
The facts standing on their own is important because it's not just about risk prevention, ML learning is a (potentially highly accurate) guess, but still a guess. Admitting prior convictions is basically the same for humans, it fires up the predictive nature of our brains.
I can see how from a risk and prevention perspective, prior convictions are highly relevant. The ML example factors into this. Banks would not be unwise to lock the doors when a person with 9 bank robbery convictions walks past.
In fact, I would suspect that even if the jurors should base it just on the facts, the person is more likely to end up in front of the court because the police would run through the list of convicted bank robbers in the area.
The risk of an incorrect conviction for this person must go up.
The facts standing on their own is important because it's not just about risk prevention, ML learning is a (potentially highly accurate) guess, but still a guess. Admitting prior convictions is basically the same for humans, it fires up the predictive nature of our brains.
Because its prejudicial nature outweighs its evidence. If someone robbed a bank, their character shouldn't be necessary to figure out if they did or didn't. If the prosecutor wants to put him on trial for all the banks at once, then he can do that.
The problem with all of this is that we aren't trying to predict whether the guy will ever rob a bank again or assess the odds of him doing this one, which is where your logic works best-- we are trying to determine beyond a reasonable doubt that he did, in fact, rob this one.
That he robbed banks before is a fact, yes, but not one that puts him at the scene of this crime. Statistical likelihood is not a relevant fact in a criminal trial (but might be acceptable in a civil matter, where the standards are lower).
That he robbed banks before is a fact, yes, but not one that puts him at the scene of this crime. Statistical likelihood is not a relevant fact in a criminal trial (but might be acceptable in a civil matter, where the standards are lower).
It certainly seems relevant when character witnesses are used to portray the accused as incapable of committing a crime.
A criminal history is the antithesis of this. It is useful to the same degree.
A criminal history is the antithesis of this. It is useful to the same degree.
Does anyone really put much faith in character witnesses though? One possible point: someone who can’t produce anyone to say something positive about them is clearly guilty.
Yet in judge-only trials the judge is allowed to know the defendants criminal history. How are they able to overcome this bias?
The whole reason for the need of this rule is we actively select the dullest of our communities to sit on juries. As the saying goes if you are guilty you want a jury trial and if innocent a judge-only trial.
The whole reason for the need of this rule is we actively select the dullest of our communities to sit on juries. As the saying goes if you are guilty you want a jury trial and if innocent a judge-only trial.
Whether there is a prior conviction or not has no impact on the truth of this instance. Prior convictions are taken into consideration during sentencing
The prosecutor has the burden to prove guilt based on the evidence. Prior convictions isn’t “evidence”.
Thanks. A lot of the articles breaking the gag order did not mention this. It makes them look rather shabby.
They have to acknowledge the reality of the internet -- most people* here seem to know about the result despite the gag order -- and find other ways to handle such issues.
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* Obviously I don't have any hard figures so I don't know what percentage of people.
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* Obviously I don't have any hard figures so I don't know what percentage of people.
Yeah... look, with our Government passing far reaching anti-encryption laws (that impact the entire world) without the need for judicial oversight[1] and planning to move our embassy from Tel Aviv to Jerusalem after officially recognising the latter as the capital of Israel[2], and the general Australian population paying no bloody attention at all; gag orders are pretty low down on the list of stupid shit going on.
It's getting down-right depressing to be an Australian citizen.
[1] https://www.itnews.com.au/news/australias-encryption-bill-fa... [2] https://www.theguardian.com/world/2018/dec/14/australian-gov...
It's getting down-right depressing to be an Australian citizen.
[1] https://www.itnews.com.au/news/australias-encryption-bill-fa... [2] https://www.theguardian.com/world/2018/dec/14/australian-gov...
> planning to move our embassy from Tel Aviv to Jerusalem after officially recognising the latter as the capital of Israel
Note that your source says that they are not moving the embassy until after a peace deal is reached.
Note that your source says that they are not moving the embassy until after a peace deal is reached.
Scott Morrison said:
> And we look forward to moving our embassy to West Jerusalem when practical, in support of, and after, final-status determination
So he is indeed already planning to move the embassy, and chose to make this decision public.
> And we look forward to moving our embassy to West Jerusalem when practical, in support of, and after, final-status determination
So he is indeed already planning to move the embassy, and chose to make this decision public.
You offered this as an example of Australian government stupidity. My point is that their planned move is to take place after the issues that make moving it stupid will no longer be applicable.
Moving it before the status of Jerusalem is settled, like the US plans to, is stupid.
Saying you'll move it, but only after the city's status is settled by a two state peace deal, does not seem to be stupid.
Moving it before the status of Jerusalem is settled, like the US plans to, is stupid.
Saying you'll move it, but only after the city's status is settled by a two state peace deal, does not seem to be stupid.
A few days ago I, an Australian, got an Apple News alert on my laptop about a Washington Post article that discussed Pell's conviction. When I clicked the alert, Apple News opened and displayed the article in full, uncensored.
I'm curious to know if Apple would therefore be in breach of the suppression order even though they're not the publisher, and if they are in breach, if anything is likely to happen to them as a result. I haven't seen any mention of it anywhere else, but I can't imagine I'm the only person to have received the alert.
I'm curious to know if Apple would therefore be in breach of the suppression order even though they're not the publisher, and if they are in breach, if anything is likely to happen to them as a result. I haven't seen any mention of it anywhere else, but I can't imagine I'm the only person to have received the alert.
That's part of the question on how gag orders can possibly work in a global information economy. How is Apple supposed to know that they have to pick out articles about this particular case and ensure that no Australian sees them? How is Australia supposed to send a gag order to the transitive closure of every content aggregator which might include the case?
They don't need to work 100%, they just need to work enough so that a jury can be empanelled.
This week there have also been very similar issues raised around a gag order issued by a court in New Zealand, which is intended to keep the identity of a murder accused secret. The victim in this case was a British tourist, so the media in England has been reporting heavily on the case.
To make it worse Google auto-emailed a whole bunch of people breaking the gag order ....
Media the world over do withhold names: rape victims, underage defendants, so it isn't impossible for them to control themselves if there was a clear risk of a miscarriage of justice (which may or may not be the case in this instance).
Slightly off-topic, but the picture in the article of a (recently demolished) newsstand neatly represents the international portrayal of Australia...laid back people in flip-flops lounging about without a care in the world. The reality is that, given the location, those were far more likely to have been tourists.
Slightly off-topic, but the picture in the article of a (recently demolished) newsstand neatly represents the international portrayal of Australia...laid back people in flip-flops lounging about without a care in the world. The reality is that, given the location, those were far more likely to have been tourists.
> The reality is that, given the location, those were far more likely to have been tourists
That's my hometown and I doubt they're far more likely to be tourists. I think it's more likely they're University students (from QUT).
That's my hometown and I doubt they're far more likely to be tourists. I think it's more likely they're University students (from QUT).
So who is it?
Cardinal George Pell, 77, was convicted Tuesday on five counts of child sexual abuse in Melbourne. [1]
1: http://outline.com/https://www.washingtonpost.com/lifestyle/...
1: http://outline.com/https://www.washingtonpost.com/lifestyle/...
The first thing I recalled after learning about this case, was the case of Lindy Chamberlain-Creighton [0].
I have heard arguments in the past for this kind of censorship. In my country (Panama) the closest thing is called "reserva del sumario," (secrecy of the proceedings) but there is no way enforce it legally against parties not involved in the trial afaiu. The most the former chief prosecutor (of a very corrupt governement) was able to call on the main journalistic association to remind journalists of their dury to respect the secrecy of the proceedings.
I stand in favor of not limiting freedom of expression. We should not limit ourselves to framing the issue as one of free expression vs a free trial (or a free election, since I just mentioned a Latin American country). Risking being too optimistic, I think that instead of framing the issue as one overexposed potentially false suspicions or opinions, one should see it as one of underexposed relevant opinions.
https://en.wikipedia.org/wiki/Lindy_Chamberlain-Creighton
I have heard arguments in the past for this kind of censorship. In my country (Panama) the closest thing is called "reserva del sumario," (secrecy of the proceedings) but there is no way enforce it legally against parties not involved in the trial afaiu. The most the former chief prosecutor (of a very corrupt governement) was able to call on the main journalistic association to remind journalists of their dury to respect the secrecy of the proceedings.
I stand in favor of not limiting freedom of expression. We should not limit ourselves to framing the issue as one of free expression vs a free trial (or a free election, since I just mentioned a Latin American country). Risking being too optimistic, I think that instead of framing the issue as one overexposed potentially false suspicions or opinions, one should see it as one of underexposed relevant opinions.
https://en.wikipedia.org/wiki/Lindy_Chamberlain-Creighton
Anyone knows how such trials work? What evidence can there be from 30 or more years ago? Is it two parties saying the opposite and the jury choosing who to believe?
But what about social media? Can’t see how these gag orders work anymore when you can see results on your FB wall or Twitter etc.
Interestingly, the mods of /r/australia were mostly adhering to the order, which surprised me.
pxi(1)
harry8(4)
From the Hacker News guidelines [1]: "If they'd cover it on TV news, it's probably off-topic." (IIRC, this particular guideline dates back to when Hacker News was called Startup News).
The linked article, from the New York Times, elliptically discusses a topic that the New York Times itself cannot report on in its online edition, due to a gag order by an Australian judge. So it is not covered, and cannot be covered, by the modern-day equivalent of TV news.
[1] https://news.ycombinator.com/newsguidelines.html
The linked article, from the New York Times, elliptically discusses a topic that the New York Times itself cannot report on in its online edition, due to a gag order by an Australian judge. So it is not covered, and cannot be covered, by the modern-day equivalent of TV news.
[1] https://news.ycombinator.com/newsguidelines.html
Admittedly, the guideline says "probably". In this case, I'd suggest that the global reach of online media and the fact (as you point out) that the New York Times, an American media company, is effectively banned (not really banned, but more "erring on the side of caution" I imagine) from reporting it, is of interest.
As an Australian, I read an article stating that George Pell had been removed from the Pope's "council of nine (cardinals)", and then almost immediately after, read an article on the suppression order. A bit of quick searching, and I found out what the news was. Which begs the question, if the NYT (and presumably other international online media orgs) self-censored in the way described above, why would Google, Bing, DuckDuckGo, not do the same?
EDIT: I'm not suggesting that the search engines should self-censor (or that they shouldn't), I'm just wondering why they'd come to a different conclusion than, say, the NYT.
As an Australian, I read an article stating that George Pell had been removed from the Pope's "council of nine (cardinals)", and then almost immediately after, read an article on the suppression order. A bit of quick searching, and I found out what the news was. Which begs the question, if the NYT (and presumably other international online media orgs) self-censored in the way described above, why would Google, Bing, DuckDuckGo, not do the same?
EDIT: I'm not suggesting that the search engines should self-censor (or that they shouldn't), I'm just wondering why they'd come to a different conclusion than, say, the NYT.
They aren't publishing it, just indexing what others have published.
The aggregation of information should never be censored; it is telling you where things are out there in the world.
As a loosely related topic; the conveyance of truthful or believed to be truthful information should never be suppressed. However polity asking someone to be quiet for a time or for some other reason might be. This is why I believe 'state secrets' and secrets of all other types should only be for a specific limited time, and that all official records MUST receive re-classification on a regular interval (say once every 10 years, but a new review party who must also agree that it's worth keeping secret for another 10 years). Failure to review should result in publishing ~1 year after the expiration period.
The aggregation of information should never be censored; it is telling you where things are out there in the world.
As a loosely related topic; the conveyance of truthful or believed to be truthful information should never be suppressed. However polity asking someone to be quiet for a time or for some other reason might be. This is why I believe 'state secrets' and secrets of all other types should only be for a specific limited time, and that all official records MUST receive re-classification on a regular interval (say once every 10 years, but a new review party who must also agree that it's worth keeping secret for another 10 years). Failure to review should result in publishing ~1 year after the expiration period.
Good points.
On indexing, I'd question if that's all that search engines do. They used to "only index" (in reality, "simple" index), but doesn't the complexity of current promotion/demotion algorithms go beyond that (given the biases those algorithms encode)? Might that cross the line? Do these algorithms encode a sort-of editorial policy?
Also, agree in principle re: classification timeouts and mandatory review, though the sheer number of state/corporate secrets might make that impractical.
On indexing, I'd question if that's all that search engines do. They used to "only index" (in reality, "simple" index), but doesn't the complexity of current promotion/demotion algorithms go beyond that (given the biases those algorithms encode)? Might that cross the line? Do these algorithms encode a sort-of editorial policy?
Also, agree in principle re: classification timeouts and mandatory review, though the sheer number of state/corporate secrets might make that impractical.
>They aren't publishing it, just indexing what others have published.
Depends on how you define publishing, I guess.
They definitely pushed news about both things to my phone, and I'm in Australia, moreover Google clearly knows I'm in Australia as many of the news articles relate to Australia/Australian things.
Depends on how you define publishing, I guess.
They definitely pushed news about both things to my phone, and I'm in Australia, moreover Google clearly knows I'm in Australia as many of the news articles relate to Australia/Australian things.
> the fact [..] that the New York Times, an American media company, is effectively banned [..] from reporting it
This is absolutely fascinating to me too, that an Australian court order is influencing the behaviour of media in another country - the NYT no less! I can't think of any precedent to this.
I'm Australian too, and I am honestly not sure how I feel about this. There are good arguments on both sides. We're really in uncharted territory.
This is absolutely fascinating to me too, that an Australian court order is influencing the behaviour of media in another country - the NYT no less! I can't think of any precedent to this.
I'm Australian too, and I am honestly not sure how I feel about this. There are good arguments on both sides. We're really in uncharted territory.
The NY Times have an Australian Bureau[1] and as such the laws of Australia apply to that Bureau.
[1] https://www.nytimes.com/interactive/2017/world/australia/new...
[1] https://www.nytimes.com/interactive/2017/world/australia/new...
I worked for a wholly Australian-owned company that was subject to the EU GDPR laws. This was because we had customers, offices, and partnerships in EU Countries.
(Since it is too late to edit my parent comment): Just to clarify, my parent comment was not a complaint that this article was posted to HN; rather, it was to justify my posting the article in the first place.
I agree, it is news-worthy on HN:
Discussion about suppression of speech on the Internet.
Discussion about suppression of speech on the Internet.
Just yet another reason for common law countries to adopt constitutions that are explicitly not open to interpretation
You can see how easy even a body without executive power per se can mop the floor with weakly defined common law freedom of speech statues
You can see how easy even a body without executive power per se can mop the floor with weakly defined common law freedom of speech statues
Australia does need constitutional human rights protections (currently we are in violation of a few international agreements, since we don't even have statutory protections).
But having a constitution that is not open to interpretation would be unprecedented and would be an awful decision. Without constitutional interpretation by the High Court, we wouldn't have the Mabo decision (an interpretation of the "on just terms" wording) nor would we have the right to freedom of political speech (an interpretation of the definition of representative government). And almost every country in the world has constitutions that are interpreted by their Supreme Courts -- not doing so would make the Constitution unusable as a supreme law of the land.
But having a constitution that is not open to interpretation would be unprecedented and would be an awful decision. Without constitutional interpretation by the High Court, we wouldn't have the Mabo decision (an interpretation of the "on just terms" wording) nor would we have the right to freedom of political speech (an interpretation of the definition of representative government). And almost every country in the world has constitutions that are interpreted by their Supreme Courts -- not doing so would make the Constitution unusable as a supreme law of the land.
You substantiation for your position are weak.
The degree that separates a constitutional state vs. inconstitutional ones is the firm definition of its legal state – a source of truth in the system, and not an amorphous interpretation existing in heads of demented supreme court justices.
The degree that separates a constitutional state vs. inconstitutional ones is the firm definition of its legal state – a source of truth in the system, and not an amorphous interpretation existing in heads of demented supreme court justices.
Can you give an example of a constitutional state which does not have "amorphous interpretation existing in heads of demented supreme court justices"? None come to mind.
I can give you both, an extreme example of a country whose judiciary champions the trollishly named concept of "legal realism" (better to be called legal surrealism,) and a number that continue to uphold the rationality that law was written to a rule to follow.
The first one is USA, whose judiciary gladly swallowed the executive order 6102, and the entirety of nonsense surrounding domestic surveillance programs. One whose supreme court said that a man has "in fact gained" wealth from surrendering his gold for less than half of its price, and managed to validate FISA courts whose very existence goes prima fascie against the word of 10+ constitutional statutes.
The second, the best example I know of is Pakistan, and to some extend India. British legal process, as well as German empire's one was textualist for quite long time. A very famous case of late British empire law, if not the most known one was when a man sentenced to hanging was pulled out of the noose in the very last moment, when a lawyer argued that "a sentence of hanging, gives no permission for murder." Even today, a supreme justice of Pakistan, a man known for the thunderous legal activism, is bound by hands and legs by the word of constitution, and hits the stone wall of SJC's opposition when his actions diverge even by a single letter from his formal legal mandate.
The first one is USA, whose judiciary gladly swallowed the executive order 6102, and the entirety of nonsense surrounding domestic surveillance programs. One whose supreme court said that a man has "in fact gained" wealth from surrendering his gold for less than half of its price, and managed to validate FISA courts whose very existence goes prima fascie against the word of 10+ constitutional statutes.
The second, the best example I know of is Pakistan, and to some extend India. British legal process, as well as German empire's one was textualist for quite long time. A very famous case of late British empire law, if not the most known one was when a man sentenced to hanging was pulled out of the noose in the very last moment, when a lawyer argued that "a sentence of hanging, gives no permission for murder." Even today, a supreme justice of Pakistan, a man known for the thunderous legal activism, is bound by hands and legs by the word of constitution, and hits the stone wall of SJC's opposition when his actions diverge even by a single letter from his formal legal mandate.
> The second, the best example I know of is Pakistan, and to some extend India.
I cannot speak about Pakistan, but I will comment on India.
India has a concept of the "basic structure" of the constitution[1], and that no constitutional amendment may violate the fundamental rights that the constitution's "basic structure" grants. Now, it should be clear that politically this has been overturned a few times by different leaders, but conceptually the Indian constitution is very much interpretive -- and in fact the "basic structure" doctrine is a Supreme Court decision.
So India most definitely does not fit the mould you describe. I couldn't find any information about literalism in Pakistan's constitution, so I really cannot comment on that.
> when a lawyer argued that "a sentence of hanging, gives no permission for murder."
This is not an example of interpretation -- in fact it's actually a wilful ignorance of the law. The sentence in British law has been (since its inception), "to be hung by the neck until dead". In any case, I have serious doubts that such a story is true (it's also clearly embellished).
> The first one is USA [...]
I disagree with domestic surveillance as well as many of things you mentioned, but you haven't given an example of how these things were allowed under constitutional interpretation. There in fact is a lot of evidence that shows that PRISM violated the constitutional rights of US citizens. I don't think there's any Supreme Court decisions about it though, so there isn't really a good argument in saying it's an interpretation problem if the constitution has never been interpreted for this particular case.
[1]: https://en.wikipedia.org/wiki/Basic_structure_doctrine
I cannot speak about Pakistan, but I will comment on India.
India has a concept of the "basic structure" of the constitution[1], and that no constitutional amendment may violate the fundamental rights that the constitution's "basic structure" grants. Now, it should be clear that politically this has been overturned a few times by different leaders, but conceptually the Indian constitution is very much interpretive -- and in fact the "basic structure" doctrine is a Supreme Court decision.
So India most definitely does not fit the mould you describe. I couldn't find any information about literalism in Pakistan's constitution, so I really cannot comment on that.
> when a lawyer argued that "a sentence of hanging, gives no permission for murder."
This is not an example of interpretation -- in fact it's actually a wilful ignorance of the law. The sentence in British law has been (since its inception), "to be hung by the neck until dead". In any case, I have serious doubts that such a story is true (it's also clearly embellished).
> The first one is USA [...]
I disagree with domestic surveillance as well as many of things you mentioned, but you haven't given an example of how these things were allowed under constitutional interpretation. There in fact is a lot of evidence that shows that PRISM violated the constitutional rights of US citizens. I don't think there's any Supreme Court decisions about it though, so there isn't really a good argument in saying it's an interpretation problem if the constitution has never been interpreted for this particular case.
[1]: https://en.wikipedia.org/wiki/Basic_structure_doctrine
Both FISA court and executive order 6102 went through the supreme court, don't feign ignorance. Googling both quickly reveals a number of supreme court cases.
> concept of the "basic structure" of the constitution
Which comes out of its plain text meaning, requiring no legal creativity to devise it. Were legal decisions of pre-independence India public. I would've put tons and tons examples for you. Out of all edge cases, you picked the biggest one.
Please fully accept that constitution is the source of truth of the legal system. The very purpose, and the literal meaning of the word stand for constitutions being the mechanism establishing reason for any legal action.
> concept of the "basic structure" of the constitution
Which comes out of its plain text meaning, requiring no legal creativity to devise it. Were legal decisions of pre-independence India public. I would've put tons and tons examples for you. Out of all edge cases, you picked the biggest one.
Please fully accept that constitution is the source of truth of the legal system. The very purpose, and the literal meaning of the word stand for constitutions being the mechanism establishing reason for any legal action.
"Just yet another reason for common law countries to adopt constitutions that are explicitly not open to interpretation"
I don't think that's possible. Do you have an example for this?
I don't think that's possible. Do you have an example for this?
I put up Pakistan as an example, but another example that just came upon my mind is Kuwait. I have no idea how strong is its mandated textual interpretation is in real life.
It would be interesting to take a look. I can't imagine you could write a legal text that leaves no room for interpretation or omission and covers everything that may come up in real life.
All human communication is subject to interpretation because it's an imperfect model of patterns that exist only in our own mental model of reality intended to induce similar patterns in inevitably different minds.
Everything is to a degree subjective and this conversation itself is subject to interpretation.
The more complex the affair the fewer that will agree perfectly with any interpretation.
Hell even the beat cop gets to interpret the law when he is electing to enforce it by arresting the perpetrator.
You are asking for imaginary things.
Everything is to a degree subjective and this conversation itself is subject to interpretation.
The more complex the affair the fewer that will agree perfectly with any interpretation.
Hell even the beat cop gets to interpret the law when he is electing to enforce it by arresting the perpetrator.
You are asking for imaginary things.
Do not think that. Think in a manner less philosophising.
Fairly well worded constitutions work, plainly and simple, there is no second thought about this.
Fairly well worded constitutions work, plainly and simple, there is no second thought about this.
Can you give an example of a constitution that works poorly and one where it works well and the differences. I'm only familiar with one.
On the day of the conviction, they released online articles about "suppression orders".
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* https://www.theage.com.au/national/victoria/why-the-media-is...
* https://outline.com/jVdYJr
# Why the media is unable to report on a case that has generated huge interest online #
> A very high-profile figure was convicted on Tuesday of a serious crime, but we are unable to report their identity due to a suppression order.
> The person, whose case has attracted significant media attention, was convicted on the second attempt, after the jury in an earlier trial was unable to reach a verdict. They will be remanded when they return to court in February for sentencing.
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The article then goes on about suppression orders and how Google Trends for the person's name increased on the day of the trial.
So anyone who is internet-savvy would be able to figure out who it was.