When I was at law school, I was the oldest student in the class. I was at the time 58 years old. An old geriatric in the eyes of most of my fellow students. I wrote a couple of pieces as assessable assignments that counted towards the end mark and decided whether the student failed or passed.

The first one was on O’Loughlin J’s decision of 700 pages, in respect of the stolen generation. I harshly criticized it, on numerous grounds, and when the highly intelligent lecturer gave out the results, she called me aside. She said it was obvious that I had done an enormous amount of in depth research, but she did not have a clue what I was trying to say.

She kindly allowed me to rewrite it, and when I inserted a footnote to every controversial word in it, ( footnotes don’t count in the overall word limit) I was given a good mark. I was vindicated in my opinion when Kevin Rudd said sorry to the stolen generation, and clarification of S 79 will make that sorry mean something. Lorna Cubillo and Peter Gunnar are still waiting for justice.

The second occasion was an assignment on the “Kable Principle”. I hold controversial views on what it means, and on two occasions I submitted assignments on its contents. Like lots of novels as written by the High Court it runs to 120 pages, and it takes a Welsh miner to find the gems hidden in it. The Judge of that assignment was a thirty year old Roman Catholic woman, and an otherwise competent lawyer. She gave me five marks out of thirty five, for a job I had spent forty hours work writing, with every controversial word footnoted. She would not let me rewrite it, so I decided to move on.

Next semester I was at another University, and essentially wrote the same assignment with totally different results. The whole point is if S 79 Constitution was not an obscure provision, beyond the ordinary comprehension of a Judge, it would not need clarification

While you are in the mode of changing the world, PtB, could you also get the government to agree that retrospective, or retroactive, legislation should not be permitted in Australia.

It is pure expediency, and is in direct contravention of Article 15 of the International Covenant on Civil and Political Rights, which Australia has signed and ratified, and which provides that "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed."

Australia is a serial abuser of this Article, which should be enshrined in our Constitution, but isn't.

When the doctor diagnoses the cause of a cancer infecting a body, he can then direct his knife or another treatment to fix the problem. The cause of the cancer afflicting the administration of law in Australia is the failure of the lawyers to read and understand and apply s 79 Constitution. Mr Pericles, if you would like to read the decision of R v Kidman (1915) 20 CLR 425, a full version of which is to be found here, http://beta.austlii.edu.au/au/cases/cth/HCA/1915/58.html you will see that in 1915, the six learned doctors of law, were of no doubt that there was one justice stream, in the Commonwealth and it was to maintain the Kings peace, that the common law was part of the Constitution. Most retrospective offences were there anyway.

The failure to accept the International Covenant on Civil and Political Rights is a symptom of the underlying disease. It should be a bipartisan declaration that clarifies S 79 Constitution. The lack of an effective opposition both before and after 2007, has led to huge injustices. The disease has been blocking the application of a number of laws passed by Paul Keating’s government that should be immensely beneficial. One of these is the Trade Practices Act 1974 and if the National Competition Policy was applied to lawyers, and the courts of the Commonwealth started being bastards to the Courts of the States, instead of playing matey matey, and refusing to compete for business, then the cancer/canker could be cured.

Kevin Rudd should be the surgeon, and take a knife to the legal profession. He can do this by removing the doubt about S 79 Constitution. He is an intelligent man, and more than a match for Turnbull. He cannot take the electorate for granted any more than John H could. It used to be said that a government is only as good as its opposition, and Turnbull should be a surgeon too. I just want this world or at least our part of it, to be disease free both in medicine and law. It is as if the Constitution has AIDS

That's exactly my point.

The "reasoning" in R v Kidman for the permission to retrospectively legislate is clear:

"There is no prohibition in the Australian Constitution against passing ex post facto laws, as there is in the American Constitution, both as to the States and the United States. The prohibition to the United States apparently assumes that Congress would otherwise have had the power."

The rationale of this particular m'learned friend is "It is specifically disallowed in the US Constitution. Therefore, if it doesn't appear in the Australian Constitution, we must have intended for retroactive legislation to be allowed"

I'm pretty sure this has been tested in court a couple of times in the intervening years, too, and has somehow avoided the description "crazy law".

So I can do something perfectly legal today, having taken all the legal advice available to me, and be slapped in jail for it if Kevin takes it into his head to change the Law, at some unspecified time in the future.

And this is not a trivial issue, as I have personally experienced.

So, go for it, PtB.

Rattle their cages. Wake them up. There are injustices everywhere we look, happening all around us, every day.

Just do me one favour, though.

Don't bring Magna Carta into it.

Please?

Most people understand that the basis of computer science is an on–off switch. This is what a transistor is. The basis of law is simply put the same, except in law it is right-wrong. In both there should be no grey areas, but man in his absolute ingenuity has invented confusion.

In the Pape decision, the High Court or at least five out of the seven who considered the question, stated that there is an on-off switch for legislation. The on-off switch is in the Constitution. Understanding that document is fundamental to understanding all law. In a Muslim country the Constitution is actually the Q’uran, but Muslims will tell you it is often observed in the breach. It is likewise in our country.

There is lots of legislation like the Habeas Corpus Act 1640 16 Charles 1 Ch X. which say the same thing as S 15A Acts Interpretation Act 1901 ( Cth) which says that anything that contradicts the constitution is void. The late Lionel Murphy, despite his professed atheism, was a very good lawyer, and one of his more memorable pronouncements before his untimely death, in a case called Metwally, at paragraph 4, has to do with the fact that if a law is not in line with the Constitution, it is not a law no matter where it is made. He stated that the courts cannot make laws for individuals, outside the Constitution, and neither can a Parliament or a Council.

This is why it is important to clarify S 79 Constitution. If KR clarifies S 79 Constitution, with or without the assistance of the Parliament as a whole, he will do his country a great service. We have a single profession with a choke hold around our collective necks, and it is only able to do this because we all are of two minds about S 79 Constitution. It is as if the heart of the law is in fibrillation. The patient will die if it is not rapidly fixed, and Rudd needs to put a cardiac Wacker Packer, on the Constitutional chest of Australia

Back to S 79, and the first five words are the federal jurisdiction of any court. I am glad you have read the Kidman decision, and I hope you got the bit where they said,

If, then, by the common law, as applied to the new fact or combination, in this case the sovereignty created by the Constitution Act, which the King exercises by new representatives in right of the new Commonwealth, it appears that any person in Australia has obstructed or taken any step towards obstructing His Majesty, the Commonwealth, as representing the King in that sovereignty, has a justiciable matter of complaint—a matter capable of judicial solution, according to a settled legal standard.

The settled legal standard was jury trial in both civil and criminal matters. The King does not discriminate, and discriminatory legislation, has been illegal since time immemorial. Nasty lawyers have invented discrimination. One of those nasty lawyers was Menzies. In S 30 (3) Bankruptcy Act 1966, he gave the representative of the King, a Judge, power to sit with or without a jury. Menzies used the word Court, and that is NOT the word in s 79.

Rudd has changed that word in the Trade Practices Act 1974 and Australian Securities and Investment Commission Act 2001 from Court to court, in some very significant sections, but he needs to finish the job, and declare what S 79 means.

The next six words are may be exercised by such number of judges. Surely that cannot mean One Judge. May is a facultative word, allowing federal jurisdiction to be exercised, but if Kidman is rightly decided, there is only one jurisdiction in Australia and it is federal.

If that is the case, then all State Courts are illegal, like the Land and Environment Court, CTTT in NSW and VCAT in Victoria, because they don’t have judges, just a Judge. If a Judge exercises State Jurisdiction, he is indictable.

Rudd’s measure will be seen by how long he takes to carry out his promise to uphold the Constitution. He has the power, and should use it