Thursday, January 14, 2010

My Constitution, Section 30

Section 30 - Powers of direction and writ

30(1) All individuals have the right to make application with evidence to a court with appropriate jurisdiction for a direction to another individual to act or refrain from acting in such ways as the Reasonable Person would conclude beyond reasonable doubt as being necessary to remedy or prevent a breach of any other individual’s rights, and also to suspend action until a controversy is resolved in court of law, which direction may only be the minimum as is reasonable to prevent or remedy breaches of rights.
If man A has reasonable grounds to believe that the actions of man B are necessarily going to result in the initiation of force against A or his property, be that initiation unwitting or otherwise, then A has the right to take some form of action against B. In a reasonable world and under the best circumstances that would begin with a discussion between the two resulting in amicable settlement, but even in a reasonable world circumstances aren’t always the best and so there is always the possibility of disputes even between reasonable men. In such a case there is no option but for party A to take action despite B’s protestations. But doing so has to be done in an objective manner, and as this is a form of the use of retaliatory force party B has the right to compel A to submit to an independent arbiter’s assessment of the situation. When this is translated to the grand scale of broad society, and incorporating the government’s monopoly in the non-emergency use of retaliatory force, this results in courts having the power to issue injunctions, court-orders, and so on, on the basis of an objective standard for both content and method.

30(2) Every court shall, upon application with sufficient evidence of an actual or reasonably prospective wrong committed by parts of government within their jurisdiction, issue as many writs regarding that part of government to:
(i) enquire about authority to act;
(ii) enquire about reasoning for action;
(iii) enquire about adherence to rules and procedures of action;
(iv) direct them to suspend action until a controversy is resolved;
(v) direct them to produce records, verify their veracity or propriety, or rectify them;
(vi) bring the subject-matter to that court’s own attention;
(vii) direct them to act properly and in accordance with authority and procedure; or
(viii) forbid them from acting improperly and against authority and procedure;
as each court finds reasonable in order that those parts of government stay true to the requirement to carry out their powers solely in defence of the rights of Australians; and addressing such applications shall take precedence over any other matter before that court.
One of the main uses of this clause as a whole is that it is a major part of the system of checks and balances within governments.

In item one the court has the power to make a government show in what way it has the power to act, which is reasonable because governments have no authority but what is given to them by their citizens by way of what is Constitutional (at whatever tier of government).

Items two and three are evidence gathering, as is parts of item five. They isn’t likely to be used by itself, and will instead be part of a larger matter being considered by that court. The last part of item five, however, could be the end-point in some matter, though. That part is necessary since the content of records is going to affect the content of the use of force, so obviously justice requires that a man have the right to make sure that government records about him are accurate.

Item four is an interim order that may be issued when there is sufficient grounds for a belief that there is a case to be dealt with. It would also have to be made with consideration for the actual ability to stop work, such as on a construction project that involves slip-forming with concrete.

Item six will chiefly be used in the mechanics of appeals, as it already is today under the writ of certiorari, but it could also be used for other instances of courts exercising their monopoly on judgement.

Items seven and eight are obviously required, again based on that governments may only act in the specific ways they are authorised to and only in reasonable manners in line with those authorities to act.


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