October 20, 2004

Constitutional health

Posted in Uncategorized at 10:39 pm by thelawthoughts

It was interesting today to hear Bob Carr propose to refer the power to run hospitals to the Federal government. Following on from my last post, it seems that Mr. Carr is willing to forgo his fairly definite responsibility to stop the ‘buck-passing’. Everyone else I saw interviewed (Thwaites, Beattie, some NSW Labor MP) disagreed, saying the Commonwealth could not run hospitals properly.

Frankly, I don’t think the States can talk. Although I think Mr. Carr himself is passing the buck, such a proposal would indeed pass the buck to the Federal government. Nobody is running hospitals well, so in the end all that seems to be happening is Mr. Carr is trying to get rid of not only an obvious political hot potato, but what is surely a massive management headache for his administators.

I think the most interesting point this proposal brings up is the undesirability of State government in itself.

We are over-goverened and whilst there were strong arguments for protecting State legislative power at Federation, due to the uncertain application of the federal structure immediately after Federation, those concerns should largely have been resolved. In my opinion, Mr. Carr should be handing his whole in-tray over to the federal government, although he could hold off on proposals like this one until we have some real accountability in the federal Parliament. Imagine what hospital legislation might get past a compliant Senate!


October 17, 2004

Constitutional power and health care

Posted in Uncategorized at 10:13 pm by thelawthoughts

Right from the start, let me admit I didn’t get such a good grade for a recent essay on Consitutional powers. I am no authority and am happy to be corrected, but as I understand, the Commonwealth can only legislate on subjects for which it has the power to do so under s51 of our Constitution.

Apparently, our federal government is sick of being blamed for poor State management of health and education. The solution? A more ‘interventionist’ policy. According to the Herald-Sun (which the reader believes at their peril) John Howard is planning in his fourth term to sort this mess out by telling the States how to run a hospital system and school curriculum.

Again, correct me if I am wrong, but does our government realise they have NO power to legislate on health or education? Incidentally, this is why State governments run hospitals and schools as it is, because the federal government is simply prohibited from doing so.

I would suggest that if the federal government was allowed to be ‘interventionist’ in health and education, it would have been doing some major intervening a long time before Mr. Howard and his bright spark friends came up with that idea!

October 15, 2004

De Factos

Posted in Uncategorized at 10:36 am by thelawthoughts

Why is the Victorian government proposing (under the Commonwealth Powers (De Facto Relationships) Bill) to refer power with respect to de factos to the federal government?

This bill proposes to allow the Commonwealth to legislate on the distribution of financial resources in the event of relationship breakdown. Given all the effort that has gone into providing more protection and certainty for both parties to a de facto breakdown in this State (witness eg Property Law Act amendments), why are we referring power to a government which has made its position on rights which should be granted to such people abundantly clear?

What will happen to the rights of de factos, given the federal government’s clear stance on the desirability of family values, as well as the emergence of Family First as possibly gaining Senate seats (if the Liberal Party do not retain overall control)?

Smoking bans and private choice

Posted in Uncategorized at 10:14 am by thelawthoughts

The decision of the Bracks government to ban smoking in all public buildings in Victoria, should it be enacted, can only be a good thing. Apart from saving the health of people who have not consented to breath in other peoples’ smoke, we are forgetting the huge increase in patronage at many venues in Ireland and New York after smoking bans were introduced.

The health arguments and benefits are clear. What is being forgotten is that people like me, who avoid pubs and clubs unless it is absolutely necessary to attend, will be in such venues with much higher regularity should there be no smoke. To argue against such a ban on the basis of lowered profits is not only unfair to the huge numbers of barstaff who inhale this smoke on a daily basis, it is misleading to suggest their jobs will be in danger.

The more interesting debate in this issue is the extent to which governments should interfere in the private sphere. People argue that smoking is a private choice which should not be interfered with by the government. In my opinion, smoking in public is a very public choice, which should be confined as much as possible to when it truly occurs in the private sphere.

As I understand, behaviour or activity which causes negative economic consequences are called externalities. Smoking is an example of a negative externality, which imposes costs on society as a result of its occurrence. Behaviour which imposes this negative effect on others should, in my opinion, be regulated as much as possible to reduce this external effect.

Other examples of this type of regulation abound. Causing injury to pedestrians is one negative externality of speeding. We disallow that behaviour as much as possible. Playing music at 3am is another form of this ‘pollution’, which is regulated to remove the infringement on the rights of others.

People indeed have a right to exercise free choice, this is not the issue. However, when that choice infringes on the rights of others, by imposing this ‘cost’ or ‘pollution’ on other members of society, who have not consented to the imposition, there is, in my view, something to be said for legislating to remove this infringement if at all possible.

October 13, 2004

Fiscal prudence

Posted in Uncategorized at 9:17 pm by thelawthoughts

Not legal as such, but I saw an interview with Peter Costello tonight. When questioned as to why his government seemed to spend more during an election year, instead of agreeing that the government became more profligate in election years he characterised his government as being more prudent in non-election years. There is some handy spin going on!

What, exactly, is the difference?

October 12, 2004

Cycling legally

Posted in Uncategorized at 11:41 pm by thelawthoughts

I have a question. Are cyclists to follow the road rules, or pedestrian rules? It seems to me that cyclists are meant to follow the road rules, but correct me please if I am wrong. Therefore, it follows they must be bound to, for example, stop at red lights and stop when tram doors open to let passengers alight.

The funny thing is, I see cyclists regularly run red lights and ride past open tram doors, as I say, just for example. Apart from being dangerous, this is blatantly illegal. If I made the same error in my car, I would be subject to fines and demerit points. Why don’t I ever see bike riders getting booked for the same traffic offences?

It just seems that if, as in the City of Boroondara, we are going to give half our road space over to cyclists, why should they not be bound by the same rules that other road users are bound by?

October 8, 2004

Aliens and Citizens

Posted in Uncategorized at 1:50 pm by thelawthoughts

How alien does one have to be before they will be deported? Not very, it seems. In Singh v Cth, it was held recently that Tania Singh, 5, is an alien for the purposes of the Citizenship Act (Cth) and is now set for deportation back to her (parents’) native India. Fair enough, some would say, as she does not qualify as a citizen under the provisions of the Act. The question we need to ask is, to what extent should Parliament be able to take a term like ‘alien’ and define its meaning?

For a small girl, born in Australia, attending State schools, to be held an alien is one step too far. The High Court has given Parliament the authority under this decision to determine the limits of its own power under the Constitution. Currently, the Act defines children who have lived in the country for ten years to qualify as citizens. Admittedly, Amanda Vanstone is not about to propose a law which holds all people, say, born outside Australia as aliens. But, under this decision, what is stopping the Parliament defining ‘citizen’ in an ever more arbitrary fashion, excluding even more defenceless individuals from gaining citizenship in Australia. Nothing. Nothing at all…


Posted in Uncategorized at 1:46 pm by thelawthoughts

Welcome to the Law Thoughts, a weekly offering of discussion of our law today. From local government to international law, whatever takes the fancy in the world of law will be discussed here. Enjoy!