Wednesday, December 30, 2009

My Constitution, Section 22

Section 22 - Offences in Australia

22(1) An action is only a breach of rights if that action is:
(i) unwelcome contact upon person or property by another individual’s person or property and it was reasonable to foresee that the action would lead to such contact;
(ii) in danger of being unwelcome contact and it was reasonable to foresee that the act was such a danger;
(iii) communication of untruth regarding ownership of, information about, or welcome for contact with, person or property;
(iv) contrary to any legally binding agreements that have been voluntarily entered;
(v) contrary to the obligations of parenthood and guardianship;
(vi) breach of privacy;
(vii) contrary to lawful directions validly given by government;
(viii) a threat, plan, direction, incitement, express or implied permission reasonably construable as direction or incitement, accessory before or after the fact, or attempt, to commit any of the above.
These are all the various ways in which force might be initiated by someone. When reading these, remember that they are just specifications. Whether or not someone is found guilty of a crime will be based on the later clauses of this section and not this clause alone.

The first two and the fourth are obvious and need no explanation.

The third is necessary because understanding about what is and is not permitted might lead the innocent person to initiating force unwittingly. In this eventuality the party potentially at fault is the one who provided the information that lead to that understanding, and so provision of false information is the actual point for possible prosecution.

The fifth is necessary because the parents and guardians are responsible for children’s state of inability to exercise sufficient reason to be totally independent. Thus they are obliged to perform that exercise on their children’s behalf. Failure to do so constitutes an initiation of force against those children.

Item six has to be interpreted with the meaning of privacy as identified in Section 12. For the most part it is a restatement of Clause four, but it also covers the broader third-party matters identified specifically in section 12 (ie when one party is using a second party’s property that contains information about a third party).

Item seven has to be interpreted with the meaning of “valid”, which is provided for in many places in this Constitution. The rule of law will require that law enforcement Officers be able to give at least some lawful directions even to the innocent, such as defendants in a trial or when making an arrest or when a publicly-usable private space is being closed to the public unexpectedly and against regular public expectation of entry, and so on.

22(2) Only actions that breach rights may be made offences; and an individual shall not be prosecuted for an offence who did not have both physical and fault elements.
This is the part that prevents the first clause from being the sole consideration, and so makes allowance for innocent mistake and the like.

22(3) A physical element to an offence shall only be either:
(i) action personally carried out;
(ii) direction to another individual to act;
(iii) acquiescence in the action of, or unreasonable failure to control, another individual who the first individual had authority to control and reasonable ability to exercise control;
and ‘authority to control’ is having the legally-recognised entitlement to give directions to another who is obligated to obey and to impose penalties upon that other for disobedience.
An actual action of some kind must be performed, not merely a wish or intent. This will include giving another direction and instruction because there are many people who follow others (with or without sufficient knowledge of the wrongness) and so the director cannot escape liability by claiming hands-clean. This is particularly relevant when people are members of an organisation and the director is in a position of leadership to some degree, but it is not limited to it.

The third item arises when someone in an organisation has done one thing, ie moved personnel into an area, and gotten the dander of the rank and file up. It is the leaders’ responsibility to recognise what they have set in motion and so to prevent it from turning into emotion-driven crimes. Failure to do so constitutes complicity in those crimes. This will be most relevant for soldiers and their commanding officers, but it would also apply to other government organisations and even private organisations (though considerably less likely than for governments, because governments routinely use force whereas private organisations don’t).

22(4) A fault element to an offence shall only be either:
(i) intention that rights be breached;
(ii) that the Reasonable Person would know or suspect rights would be breached;
(iii) actually knowing or actually suspecting that rights would be breached;
(iv) unreasonable disregard for whether rights would be breached; or
(v) unreasonable failure to prevent rights being breached.
These are the various mind-sets of which at least one must be required for a victim to have grounds to brand the actor a criminal (rather than as a defendant in a civil trial). They make the difference between moral culpability and innocent fault.

The first is obvious.

The second has to invoke the Reasonable Person standard because of the need for common expectations in the pursuit of justice, both in terms of direct knowledge and of what may be expected to be figured out by reason. Note that the Reasonable Person standard includes consideration for when people are expected to have more knowledge and ability than usual, say when people are within a private scientific or industrial establishment rather than in a household or street.

The third and fourth relate to evasion of the facts. Evasion is always a sin at the best of times, and when an action causes a breach of rights then the evasion behind it makes that action an initiation of force. Thus the moral fault becomes sufficient to criminalise the sinner.

The fifth is related to consequences of other actions that did not themselves directly breach rights but set in motion a chain of events that did result in a breach of rights. If it was reasonable to foresee that such a chain had been set in motion then it is equally reasonable to expect the actor to take steps accordingly. Failure to do so is thus rightly accounted a moral fault that criminalises the original action. This one includes the acquiescence above, but is broader than that.

22(5) An offence is always misdemeanour if committed solely against property and where the value in controversy is less than the average income received by Australians in a single ordinary eight-hour day, while an offence is always a felony if:
(i) it consists of wilfully improper performance of duty of government Office;
(ii) it consists of unlawful confinement or unlawful transportation of person;
(iii) committed against person resulting in what the Reasonable Person would believe requires physical medical attention;
(iv) committed against property where the value in controversy is equal to or greater than the average income received by Australians in a single ordinary eight-hour day;
as at the 1st of January of the year in which the offence was committed; and the States and the Federal Government, each for its own purposes, may decide whether any other offence is a misdemeanour or felony.
The point about the Constitution specifying what is a misdemeanour, besides its use within this Constitution itself, is to prevent unjustly harsh law. It is one of the functions of the Federal Government to make sure that the States don’t get too excessively unjust, and this is one of the means by which it is done.

Wilfully improper performance of Office is always a felony because Officers are those who direct the use of force against others. Thus improper performance is never to be taken lightly.

False imprisonment and kidnap are psychological traumas even were there no physical trauma because of the reasonable thoughts about being viciously harmed or even murdered. These actions, too, should never be taken lightly.

The third is obvious.

The reason for a single eight-hour day’s labour being the standard is psychological. The difference in psychological effect is much greater than the monetary difference, if say that monetary difference is between 7 hours and 9 hours, because the 9 hours loss means “an ENTIRE day has been wasted!” whereas 7 hours loss might be made up for in the same day. Naturally it’s not universal, because what constitutes one day’s worth of work will change from one person to the next, but the principle is identifiable and an average across the whole nation serves as a reasonable marker for the nation.

The date of 1st of January is to make a point known in time, and to be the start of both the calendar year and the financial year for government.

22(6) No government shall pass a bill of attainder.
In high moral principle, a man should be held innocent until proven guilty. In middle principle and actual practice, a guilty finding must be made in a properly run court of law according to the principles of justice and rules of evidence. Bills of attainder are a violation of these principles, and have always been means of political persecution.


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