In all democracies there are two simple rules of law. You can neither backdate the law to make innocent people criminals nor bind future governments to make changing a law impossible. This separates the democracies from the dictatorships, and although many democracies include a higher level of law which is entrenched, a constitution, there will always be methods to change this when it proves unjust or incorrect. There may have been attempts in the past to do so around the democratic world, but till now they were no more than a speculative foot in the water which was rapidly removed by one way or another. But today, October the 11th 2011 marks a new stage in western and indeed world democracy.
Today Australia has, as fully expected, voted to introduce a carbon tax. This in itself is quite unremarkable, but looking within the act itself, in ways only lawyers would think to do, it contains clauses which, without going into the legal side, would charge a future government so much to buy back the rights of the individuals handed over to the state by this act it would de facto be virtually impossible to afford. Being on a relatively shaky ground, Julia Gillard has a minority coalition government likely to fall at the slightest push. There was no real mandate for this law, she in fact promised not to introduce it at all (although this is also not unusual for any politician) but relying on the Green party for her position of Prime Minister ended up with no choice. Attempting to entrench this law meant however short her personal or party leadership lasted, one thing which was not going to fall was her essential law.
“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself”
- Lord Bingham of Cornhill
Today Australians woke up as normal, heard the law had been passed, most heaved a sigh of reluctant acceptance, and carried on with their daily business. But besides a handful of interested lawyers, none realised they were now living in a de facto dictatorship. Technically binding the future, even if not expressed, is equivalent to cheating and getting top marks if in the future those marks are relied on. Therefore in effect this law has now set the precedent that Australia can and has retrenched its law. Having a single law entrenched is bad enough to lose your democratic status, but as now on the statute book unchallenged and unquestioned, it means it can be repeated ad infinitum should a similar situation and PM choose to do so. The genie is out of the bottle and it will take the knowledge and action of the Australian people to truly put it back and stop such a scandal from ever happening anywhere in the democratic world in the future.
‘under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’(Dicey, The Law of the Constitution 1885 p39-40)
Additionally, Britain does not have a constitution, although the Magna Carta and Bill of Rights still hold a similar position in their own limited areas, but Australia however does. And as far as a constitution is concerned, the method of breach is not relevant, only the breach itself. Whether a law deliberately or indirectly binds the future is not the point, only whether that is the likely effect, so that will be no defence if attempted in a future challenge to Gillard’s law.
This clause in the Australian constitution alone casts doubt on the binding effect in the face of a future challenge, in fact the carbon tax itself:
"just terms" for the compulsory "acquisition" of property by the Commonwealth (section 51(xxxi))
Again, without going into complex details, this means that by removing the right of Australians to use energy without an additional tax they have, in a roundabout way, breached this section already, as the minutiae of the act uses this method to both legalise and bind the tax itself. As it was the route taken in the relevant clauses to tie up the ownership of the carbon credits then allowing their return would be an almost priceless task. This reflects the similar US fifth amendment:
"nor shall private property be taken ... without just compensation"
Therefore before even using Dicey’s long-accepted principles of democracy, their own constitution implies by removing the rights of companies (and potentially individuals) to their own energy use methods without penalty, they are possibly in prima facie breach of their own constitution without compensation (which of course would negate any profit from the tax’s collection, so effectively negating the Act itself), that is up to interested parties in Australia to pursue as they would any other potentially unconstitutional law. But I would have to search long and hard, as would the combined legal forces of the western world, to find an example where a country has successfully made a new law impossible to overturn. And even if they do then all that would mean is that country (unless it was also Australia) has simply beaten Australia in the race to a western dictatorship. Whichever way you try and look at it, today is a crucial and tragic day for both the people of Australia but the whole civilised world, as what they have managed first will now spread the world over if not stopped as soon as practically possible.