The nature of the laws would have to change significantly as the court found the entire foundation behind the laws (largely moralizing/restricting the actions of others based upon personal values) unconstitutional. The government can't simply move a couple of punctuation marks and become compliant.
Parliament can specifically say "we know this law is unconstitutional, but we like it anyway, so it's staying for 5 years. And then we can renew it if we want." They may not want to do that, as it's a pretty strong thing to do, but they are absolutely able to.
I must say its rather amusing to see the very American style hyper legalistic logic applied to most parliamentary democracies. According to the very letter of the law, the queen could become absolute ruler over Canada aswell :).
All hail Empress Elizabeth II, terror of all the known world?
Laws and customs only mean as much as a government willing to be responsible to the people, as the NSA has shown everyone.
> I must say its rather amusing to see the very American style hyper legalistic logic applied to most parliamentary democracies
You would be quite mistaken to believe such hyper-legalistic logic only came into existence with The United States. The US only built on the myriad of legalese already put in place by the British, Byzantines[1], Romans, and Greeks, <insert dominate culture/country of the era>.
How do you think Julius Caesar came to power? He abused the laws put in place by the Roman Republic by refusing to step down at the end of his term.
[1] The Byzantines themselves[2] have become synonymous with "complex political system"
> According to the very letter of the law, the queen could become absolute ruler over Canada aswell :). All hail Empress Elizabeth II, terror of all the known world?
You are more correct than you could ever possibly imagine.
It certainly is. The syntax of the Australian Constitution sits firmly within British conventions of monarchical behaviour, buttressed by the Acts of Westminster and the Australia Acts.
We are an independent nation in custom and law. If Her Majesty tried to do anything, she would be ignored. If she sued, the High Court would politely explain that her role is entirely ceremonial and that Parliament is the supreme source of executive and legal power in Australia.
The principle that Parliament is supreme over Crown was established in British law before Australia was colonised. It's pretty well-accepted at this point that the royals have no power.
The Queen did not dissolve Parliament. (Neither did the Governor-General during the Whitlam dismissal.)
The Queen has never, and cannot, do so in right of Australia, because her powers are irrevocably and excludably delegated to the Australian Governor-General.
In terms of dissolving any Parliament nominally under her sovereignty, it can only be done by the Queen or a Governor-General upon advice. The Queen can't do it of her own initiative. Neither can the Governor-General. They have to be told to do it by the Government of the day.
Use of the incredibly contentious notwithstanding clause is in no way moving some punctuation marks: It is an extraordinary action, having never been used by the federal government. So no, in the context of what I said they can't.
From a political standpoint, absolutely it's extraordinary; from a legal standpoint it's relatively simple, just needing a majority vote. I'd be very surprised if they did invoke it, but prostitution is something a lot of Canadians (especially conservatives) feel pretty strongly about.
(And mainly, I was just trying to bring up an interesting legal quirk of our constitution, since it's fairly unusual and most of HN's audience might not be aware of it).
Due to the Court's reasoning - i.e. if prostitution is legal, it violates people's rights to prevent them from taking steps to protect their safety while engaging in it - I predict the government will react by making prostitution itself illegal.
Perhaps, but that possibility has long been in its arsenal: Prostitution has been legal in Canada for years, decades; this court ruling overturned as unconstitutional the laws criminalizing many associated activities, e.g., solicitation, living off the avails, etc.
It was illegal to talk to a John, making vetting the John uh, difficult. It was illegal to hire bodyguards, because they would be living off the avails.
While the ruling comes into effect only next year, the practical upshot, as with other rulings of this ilk in recent years, is that arrest and prosecution will now proceed only in the most egregious cases.
My bold and brave prediction is that this Conservative-majority Parliament will duck the issue altogether and make regulation of prostitution a provincial matter - simply because they are unlikely to be able to reach any sort of consensus that would not fracture a fragile alliance between the ultra-conservative base, which makes most of the contributions, and the just right of centre centrists that are its silent majority.
>The nature of the laws would have to change significantly as the court found the entire foundation behind the laws (largely moralizing/restricting the actions of others based upon personal values) unconstitutional.
following that logic most laws would be unconstitutional.
- personal drug use (of any kind)
- bans on same-sex marriage (which I just looked up, and seems to be legal in Canada anyway)
- any form of gun control
I'm not saying that I do or do not think the above should be legal, but they all are examples of "we know what's best for you". I think that's what the GP commenter was alluding to.
