Topic on Comments:High Court of Australia dismisses appeal against conviction, compulsory voting

The defendant claims that he has a right to disregard the will of the majority regarding compulsory voting. I argue here that he does not. A holding to the contrary would deprive "The People" of the power to decide that they collectively want to use a compulsive voting system. Holding that compulsory voting systems are not enforceable would materially restrict the choices available to The People collectively. The instant holding, which affirms that The People do have the right to institute compulsory voting, does not materially restrict the choices available to The People individually. An individual who does not want to vote can conform to the law by filing a random vote, which requires minimal effort and time and satisfies the letter, although not the spirit, of the law.

The rights of The People Collectively are an important part of the rights of The People Individually. We are not talking about opposing parties here. The issue is one of the correct balance of two different kinds of rights which both attach to the same person. Weakening or restricting the power of The People Collectively harms the instant defendant, even though in this particular matter he opposes the will of the majority, because there will be many issues for which he will be aligned with the majority.

The argument made above relies upon the legitimacy of the voting system and, in particular, it assumes that compulsive voting is indeed the will of the majority. In general, citizens who do not like the status quo as determined by the majority have three choices: (1) accept it, (2) work to change it, or (3) emigrate.

Simple logic: which is the brighter of the two moves? A long involved court case over a trivial matter, or leaving the guy alone?

I wouldn't say this is a trivial matter. You can agree or disagree with Holmdahl, but individual rights are at the core of democracy so deciding how they work is important. The question here seems to be whether saying individuals have a right to vote implies they have the right to not vote. If not voting is an individual right, then a majority vote isn't enough to universally deprive everyone of that right. Sure, individual rights have parameters, like the classic case of free speech when yelling "fire" in a crowded theater, but depriving all individuals of an individual right is eliminating the individual right.

Despite Australia having signed the Universal Declaration of Human Rights, not all of those rights are directly listed in Australian constitution or any other law. For example, there is nothing speaking of right to healthy lifestyle; there are a few notes about not doing anything with the goal of harming someone's health, either directly or with the goal of own revenue, but there is nothing that would otherwise support that right, so if someone breaks a law for the sake of their health they would still be guilty of an offense unless there is an exception. (For example, road rules acts of the states have a special note that certain rules may be ignored if there is a question of saving someone's life.)

Again, it appears that there is nothing in Australian legislation that defines voting as a right, other than the Constitution. It does not have a glossary. Technically one could argue that saying that someone can do something doesn't contradict a duty to do it. It becomes a linguistic question, or possibly a question of common law and looking at how such situations were resolved in Australian and other countries court cases before.

I will assume that some act of a legislature ordained, "Thou shalt vote." If such a law is made, then the only way to escape it is to persuade a judge to rule that the law is void because it is in conflict with organic law. We do not have here a philosophical question about whether there is an inalienable human right to NOT vote. All we have here is a common law question as to whether the statute is unconstitutional, and that question was answered by the High Court.

In attacking the relevance of your post, I am also attacking the relevance of my own post!

As a practical matter — nothing to do with organic law — to make a democracy work one has to place a higher burden of consensus on some types of actions. That is, a robust democracy is not purely majoritarian. If a simple majority could take away the rights of the minority, the system would be inherently unstable. 'Individual rights' are a major class of things that must, for a robust democracy, require a higher level of consensus to tamper with.

The question raised by this case is, to my understanding, about the differential between different levels of consensus. Compulsory voting was imposed at the legislative level; Holmdahl claims that the right to decide whether or not one will vote requires a higher level of action than ordinary legislation.

Interesting point regarding the role of consensus in democracy. I saw consensus work beautifully during the evening assemblies in the Occupy Oakland encampment.

Any such claim by Mr. Holmdahl has no merit. In any real world jurisdiction, what is or is not a civil right is not decided by philosophers or mystics or inspired civil disobedient citizens. The question is determined by the High Court. And it was so determined.

In fairness, though, it does get messier than that. It's just a fact that a court of last resort can make mistakes. The messiness is that "last resort" is only an approximation — usually a very good approximation, hence the term "last resort". Where do you turn once the court of last resort has decided? At that point, the alternatives are all things that would have seemed too slim to mention before the decision; simple theory breaks down into a clutter of special cases that are too infrequent to make broad statements about. Broadly, one looks for a way to either convince the court of last resort to change its decision (this could take decades or centuries to achieve), or somehow override or bypass the court of last resort by some other channel. Or some strange blend of the two. Holmdahl has in mind to appeal to the UN Human Rights Council; if successful, that would be an interesting way to try for some political traction (though whether one uses that traction legislatively or judicially, or both, I'm not sure).

[Postscript: I'm amused by the way my own phrasing comes out saying you can't make broad statements and then explicitly making a broad statement. Hopefully, that's oxymoronic rather than self-contractory.]

By definition, the High Court does not make mistakes. It just changes its mind occasionally. (smile) An international court cannot reverse the decision of the High Court, which is by definition the law. Sovereignty gets in the way; sovereigns are touchy about encroachments thereon. The only thing that an international court can mobilize is public opinion. That can be formidable, but it does not reopen the question of what the law is.

That definition is another example of the sort of approximation I'm talking about, that usually looks okay, but then around the fringes one needs to attend the difference between approximation and reality.

The law is an emergent phenomenon arising from the interactions of people in society. In a certain sense, the "court of last resort" is public opinion, since in a sense the people give the government permission to exist. But that too is an approximation, and one that on examination breaks down very quickly into 'applied politics'.

Reference: Wilkins, David E., American Indian Sovereignty and the U.S. Supreme Court, http://utpress.utexas.edu/index.php/books/wilame

Mr. Wilkins quotes another legal scholar saying that judicial determination of issues is just another form of politics. But statements such as these are about what determines what the result of supreme adjudication is at any point in time. Analyzing the forces that produce the supreme adjudication does not change the institutional fact that the law is, at any moment in time, whatever a judge says that it is.

At any point in time, for any given issue, the law can be contradictory, simultaneously. Three different judges, or even the same judge, can decide an issue of law three different ways in three different cases. So even saying "the law" is an abstraction that ignores that there are issues of law that the courts are in the process of ruling on, through the maddeningly slow process of appellate review and scholarly commentary.

Today, at this moment, there is absolutely no question about what the law in Australia is for the defendant and appellant in this article. What the law should be, and how the law came to be what it is at this moment, are distinct questions.

I'm not sure whether you're agreeing with me, disagreeing with me, or simply trying to clarify your point. For my point, it seems obvious there is no contradiction here. Human institutions are themselves approximations (or illusions, if one chooses to phrase it that way), and within the framework of the insitution it's natural that the "law as absolute" approximation would hold. That doesn't interfere with the "law as applied politics" view; they are the same thing viewed from different perspectives. It does seem rather futile to try to make a legal argument on the basis that 'law is politics', which tries to take the outside-the-framework view of law and apply it inside the framework.

I'm both agreeing and disagreeing with you. I especially like your most recent post. But I am pushing back on the way that you are using the word "law". Public opinion did not determine whether Mr. Holmdahl goes to jail. A judge determined it. I am taking an institutional, practical view that says things like, "The law is whatever a judge says it is." and "What the law is on any issue of law at any point in time is completely determined within the sovereign state according to (1) the organic law, (2) the legislated statutes, (3) the persons who comprise the judiciary, and (4) the customs and traditions that govern the behavior of those individuals.

You are telling a different story. Your story is just as true as my story, and it is just as interesting. IMO, your story understates the finality and correctness of what the High Court did to Mr. Holmes. Perhaps my story overstates it and the truth is somewhere in the middle.

It should be understood that any legislation that violates the legal principles embedded in the constitution is no legislation at all. “A pretend law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it”. Chief Justice Latham 1942

As I successfully submitted that the Framers of the Constitution specifically refused to make voting compulsory. Neither the Commonwealth and/or the 9 Attorney-Generals challenged me on this. The Appeal was not before the High Court of Australia but before the County Court of Victoria exercising federal jurisdiction. However, on 4 December 2002 the Magistrates Court of Victoria at Heidelberg issued an order that the NOTICE OF CONSTITUTIONAL MATTER (also served upon all Attorney-Generals) was to be heard and determined by the High Court of Australia. The High Court of Australia more than 21 years later has not done so, this because technically they cannot do so because of implied bias, where they have to decide if they themselves are validly commissioned as judges. The right to vote or not to vote is like the right to walk along the street or not to walk along the street. You may walk along the street as long as you follow legal requirements but if you decide to stay home that is your choice. Likewise, if you exercise your right to vote you must do so as legally required but if you do not desire to exercise to vote you cannot be forced to do so. This never was about human rights, etc, but about legal principles enshrined in the constitution and the Court upheld both appeals on 19 July 2006 on this and other constitutional issues I submitted to the court, and again neither the Commonwealth and/or any of the Attorney-Generals challenged my numerous submissions!