Play Nice Random Chat Thread: Episode III

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Constitutional law doesn't work that way mate. Each case is unique to its own circumstances..

One thing that is black letter law is that no government law can discriminate upon religious freedom. This includes contracts which MUST be bound by law in order to be valid in the first place.
I've already outlined how it works and provided a publication by the Parliament authorised by the CJ of the HCA. You cannot run a termination of employment case against your employer using s116, only laws made by the Parliament which come within the ambit of s116.

The employment contract is a source of employment law separate from, but shaped in its outer limits by statutes and instruments. Andrew Stewart's text is a great, easy to access reading there.

You're free to read that publication or I'm sure you can rip a copy of a constitutional law text somewhere from the internet.
 

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Well I did the Vale thing in Grumpy Old because he could get a bit Grumpy...his media comebacks were gold

He was a great Prime Minister. Labor’s greatest, probably in terms of social reform and elections and it is probably splitting hairs when it comes to comparing him with John Curtin and an argument for another day

But he did lead us out of the doldrums that this country had become in 1982
 

Snake_Baker

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I've already outlined how it works and provided a publication by the Parliament authorised by the CJ of the HCA. You cannot run a termination of employment case against your employer using s116, only laws made by the Parliament which come within the ambit of s116.

The employment contract is a source of employment law separate from, but shaped in its outer limits by statutes and instruments. Andrew Stewart's text is a great, easy to access reading there.

You're free to read that publication or I'm sure you can rip a copy of a constitutional law text somewhere from the internet.
Your are utilising the context of WW1 Irish Catholics as a relevant legal precedent for this?! How?

This is what I was referring about earlier. How does that fit the Folau scenario? How is that an "overview of the limitations"
 
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Your are utilising the context of WW1 Irish Catholics as a relevant legal precedent for this?! How?

This is what I was referring about earlier in relation to context.
Read the entire section. It's a recent publication on the state of law regarding religious freedom in Australia, and discusses topics far beyond that early case. It quotes law reform Commission reports which are very recent, all of which complain about the narrow scope of s116.
 

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Read the entire section. It's a recent publication on the state of law regarding religious freedom in Australia, and discusses topics far beyond that early case.
I did.

The only thing of relevance in the thing is a piece of statute law that actually supports Folau!

The Workplace Relations and Other Legislation Amendment Act 1996 includes a range of provisions intended to prevent and eliminate discrimination in employment. Religion is among the specified grounds of employment discrimination prohibited by this Act.
 
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I did.

The only thing of relevance in the thing is a piece of statute law that actually supports Folau!

The Workplace Relations and Other Legislation Amendment Act 1996 includes a range of provisions intended to prevent and eliminate discrimination in employment. Religion is among the specified grounds of employment discrimination prohibited by this Act.
Otherwise known as s772 of the Fair Work Act. The exact thing I've been telling you that Folau is better off running with. The 1996 WR Act is non-existent, now.

Again, s116 is used to challenge laws made by the Commonwealth. I.e. if the FWA permitted employers to fire people for expressing their religious opinion. You could challenge that particular section of the federal statute. It does not expand to employment contracts, which is why every s116 case has revolved around some kind of statute.

The conclusion to that section of the reading states this:

"In recent years, the High Court has demonstrated a general trend towards
greater awareness of human rights in a number of recent decisions.
Despite this, the wording of s. 116, nonetheless, remains limited in scope.
Alone, it does not amount to a constitutional guarantee of the right to
freedom of religion and belief.24"

The human rights Commission report it cites directly above will have a detailed discussion of the lack of practical protection it provides people.
 
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Snake_Baker

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Otherwise known as s772 of the Fair Work Act. The exact thing I've been telling you that Folau is better off running with. The 1996 WR Act is non-existent, now.

Yeah, statute law. A law that can only stand provided it's application is constitutional.

"an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no offices; it is, in legal contemplation, as inoperative as though it had never been passed" - Haskins v Commonwealth (2011) 244 CLR 22, 42 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
 
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That's what I told him three pages ago.

Good luck convincing him.
Look, I don't really want to get involved in the little feud you two have going on. I don't do snark, and Snake has only even been polite to me so I will respond in kind.

I maintain my position a few pages ago that this is bigger than just Izzy, and it raises the question of how 'free' one is to enter into an employment agreement with their employer and to negotiate those terms and conditions.

I just disagree that the constitution will be of assistance to Izzy here. I won't disclose too much about myself but yes, I have a law degree, my speciality has been employment law, and no, my speciality is not constitutional law. I do think I would have seen or at least heard of an employment law case being made via s.116 if it was possible.

The lawyers are all talking about weaponising s.772 on behalf of Izzy, and/or his contract itself.
 

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Yeah, statute law. A law that can only stand provided it's application is constitutional.

"an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no offices; it is, in legal contemplation, as inoperative as though it had never been passed" - Haskins v Commonwealth (2011) 244 CLR 22, 42 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
Section 772 actually provides a *possible* protection to Izzy. He's not going to challenge it as unconstitutional when that provision itself is the one thing providing him with any semblance of protection.

If it did the opposite, and actually mandated a suppression of his religious expression, then he would be able to challenge it under s116. Does that make sense?
 

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I just disagree that the constitution will be of assistance to Izzy here.
Bingo x3.

It's what I've been saying since the start of this inane back and forth.

The arguments and supporting evidence you have put forth in this discussion are concrete, and for rational people would bring the subject to a close, such is their totality.
 

Chadwiko

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Anyway, my earlier point prior to forgetting about possible (but unlikely) redress under s772 was that the idea of corporations enforcing social behaviour and silencing opinions is utterly frightening IMO.

Izzy is rich, so he has a degree of protection. But from a workers rights perspective, the idea of "your social media must abide by our corporate social philosophy" disturbs me. The vast majority of us earn our livelihood from corporations, whether public or private. We aren't rich enough to be in a position of negotiation regarding these these company policies being inserted into contracts (would be 99 per cent of people just sign the dotted line and start earning).

I guess Kaepernick would be the other side of the coin in most people's eyes?

Dangerous path to tread. Especially when we have many people trumpeting it as an "oh well you're free to sign the employment agreement" deal, as if it is an exchange of equals and not a one sided imposition of terms and conditions. Is it really a free choice if the alternative is unemployment (and thus, poverty for most of us in that situation)?

Thoughts on that side of things?
 

Val Keating

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The other interesting thing in the Falou case is the motive of the Wallabies to sack him. They’re sponsored by Qantas who have some pretty heavy links to countries that outlaw (by punishment of death) homosexuality. Suggesting that Qantas would pull sponsorship on moral grounds just doesn’t cut it.

Say what you want about Falou, but I don’t think he’s stupid. If he is he has people that aren’t. They’ll pay him and then he’ll go play rugby somewhere else.
 

Snake_Baker

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Woof. Your strike rate for being wrong in this thread is astounding...
I never thought this day would ever come but I am actually starting to feel bad FOR you.

I can see why you're so in sync with the air head element down at the football club.
 

Snake_Baker

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............I have a law degree, my speciality has been employment law, and no, my speciality is not constitutional law..........
Okay.

Then surely you know that all Australian laws, including employment law, are subject to the constitution?

Please tell me you know that much constitutional law.
 
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Okay.

Then surely you know that all Australian laws, including employment law, are subject to the constitution?

Please tell me you know that much constitutional law.
But isn’t it the High Court that interprets the Constitution to the Case before them, and only on their willingness to accept Leave for the Case to appear before them?

In other words you have to prove fairly strongly that a Constitutional infringement has occurred to even make it there so it actually isn’t just a ‘vibe’
 
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Okay.

Then surely you know that all Australian laws, including employment law, are subject to the constitution?

Please tell me you know that much constitutional law.
All Australian LEGISLATION, yes. Employment legislation, such as the FWA, included.

S116:

'Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.'

The common law is another source of Australian law that exists outside of statutes. To give the common law explicit *statutory force* (and thus, attract statutory remedies) it would need to be incorporated in a statute.

Izzy has not been terminated in accordance with any statute, but because of an (alleged) common law breach of contract. The Commonwealth has not legislated in respect of this, and the only possible legislation we do have - section 772 of the FWA - MAY provide Izzy with a protection.

Section 116 is used to challenge statutes, that's why it mentions the Commonwealth, and 'to legislate' - because it refers to Commonwealth legislated law. The common law of contract, breaches and termination, are NOT legislated by the Commonwealth, but have developed in the courts over centuries.

As I posed several pages back, what specific legislation would Izzy allege is unconstitutional?
 

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All Australian LEGISLATION, yes. Employment legislation, such as the FWA, included.
That's good to know

The common law is another source of Australian law that exists outside of statutes. To give the common law explicit *statutory force*, it would need to be incorporated in a statute.

Izzy has not been terminated in accordance with any statute, but because of an (alleged) common law breach of contract. The Commonwealth has not legislated in respect of this, and the only possible legislation we do have - section 772 of the FWA - MAY provide Izzy with a protection.

Section 116 is used to challenge statutes, that's why it mentions the Commonwealth, and 'to legislate' - because it refers to Commonwealth legislated law. The common law of contract, breaches and termination, are NOT legislated by the Commonwealth, but have developed in the courts over centuries.
Okay mate, yes I have a fundamental understanding of common law, but all legal reasoning must be conducted in accordance with constitutional rights and restrictions. The constitution overrides common law also. This applies all the way down to jaywalking and running chook raffles.

Surely you're not suggesting otherwise?

Again, I am not making a moral judgement here, I am just stating basic legal facts.
 

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Anyway, my earlier point prior to forgetting about possible (but unlikely) redress under s772 was that the idea of corporations enforcing social behaviour and silencing opinions is utterly frightening IMO.

Izzy is rich, so he has a degree of protection. But from a workers rights perspective, the idea of "your social media must abide by our corporate social philosophy" disturbs me. The vast majority of us earn our livelihood from corporations, whether public or private. We aren't rich enough to be in a position of negotiation regarding these these company policies being inserted into contracts (would be 99 per cent of people just sign the dotted line and start earning).

I guess Kaepernick would be the other side of the coin in most people's eyes?

Dangerous path to tread. Especially when we have many people trumpeting it as an "oh well you're free to sign the employment agreement" deal, as if it is an exchange of equals and not a one sided imposition of terms and conditions. Is it really a free choice if the alternative is unemployment (and thus, poverty for most of us in that situation)?

Thoughts on that side of things?
Very sound reasoning.

But as a society dont we need to protect vulnerable people (like gay teens)?

Izzy didn't ask for all this talent, but with what it brings, comes a higher level of impact when he expresses his opinions.

Assuming the warning he received covered the genuinely disastrous potential of such expression, then the consequences are absolutely justified.

The meme he posted becomes truly malevolent in that context, and as a high profile representative of the ARU, they should have every right to punish him.
 

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What is so distressing about Christians voicing the biblical interpretation that homosexuals are bound for hell? Is this some type of revelation that only just recently lurched up at people and caught them off guard?
 
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