[AusNOG] Dutton decryption bill

Mark Newton newton at atdot.dotat.org
Thu Sep 20 15:09:29 EST 2018

On Sep 20, 2018, at 2:43 PM, Paul Wilkins <paulwilkins369 at gmail.com> wrote:
> Mark,
> Most people read "delusional" as meaning as so out of touch with reality as to be indulging in fantasy.

Yes, exactly. Thank you for clarifying, that’s precisely what I meant.

> But not so, clearly there is a strong precedent, where the UK's RIPA laws were found in breach of article 8 of the European Convention on Human Rights.

The UK can’t set precedent for the High Court.

The European Convention on Human Rights is not precedent for the High Court.

And even if there was a relevant precedent, the High Court isn’t bound by precedent anyway. It can consider it, as part of its function as a common law judiciary, but it is in no way required to follow it. Precedent only binds lower courts, the High Court can redefine it at will.

I’m having trouble understanding what’s wrong with your mental model of how the world works that makes you think otherwise.

> This action was brought by NGOs. I don't think it would be delusional to think these same NGOs are reviewing the Assistance and Access Bill and considering their options.

They won’t have any options, the High Court won’t hear the case.

> And this of course reflects the ordinary process of legislation where draft bills evolve into Acts of Parliament. It's normally considered bad form to draft legislation that the courts will strike down as unlawful, so it's avoided.

The Courts will not strike it down as unlawful.

The International Covenant on Civil and Political Rights is not Australian law. It has never been upheld as law. It can’t be held up as law, except in the narrow cases where the Parliament has given effect to it.

Which, in this case, they clearly will not.

> So we may get to see another round of public consultation on the Bill, with protracted public discourse as to whether the Assistance and Access Bill is "necessary and proportionate" and whether statutory safeguards are adequate.

Nope, not happening. Utterly delusional.

 -  mark

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