WEBVTT - Leighton Smith Podcast #254 - September 4th 2024 - Professor James Allan 0:00:09.133 --> 0:00:12.693 You're listening to a podcast from News Talks B. Follow 0:00:12.773 --> 0:00:16.373 this and our wide range of podcasts now on iHeartRadio. 0:00:17.133 --> 0:00:20.133 It's time for all the attitude, all the opinion, all 0:00:20.173 --> 0:00:25.253 the information, all the debates of us now the Leighton 0:00:25.373 --> 0:00:28.053 Smith Podcast powered by News Talks B. 0:00:29.013 --> 0:00:32.333 Welcome to podcast two hundred and fifty four for September four, 0:00:32.453 --> 0:00:37.053 twenty twenty four. The last two podcasts have brought forth 0:00:37.093 --> 0:00:41.773 a substantial number of email comments that reflected various views 0:00:42.453 --> 0:00:46.653 on those interviews. Firstly it was Stephen Rainbow, the newly 0:00:46.693 --> 0:00:51.053 announced Chief Human Rights Commissioner, and then last week in 0:00:51.813 --> 0:00:56.293 two five three it was Jill Ovans from the Women's 0:00:56.373 --> 0:00:57.013 Rights Party. 0:00:57.213 --> 0:00:57.453 Now. 0:00:57.613 --> 0:01:01.973 One of those emails suggested that my criticism of Justice Bromwich, 0:01:02.893 --> 0:01:06.213 who featured in the case Tickle and Giggle in the 0:01:06.413 --> 0:01:11.133 last week's podcast, was incorrect and out of line. It 0:01:11.173 --> 0:01:14.853 was a good letter. I just didn't agree, so I 0:01:14.933 --> 0:01:17.533 thought that it was worthy of investigating at a shall 0:01:17.533 --> 0:01:21.533 we say, a more elevated legal level. Enter Professor James 0:01:21.613 --> 0:01:24.413 Adam Canadian who taught for a number of years at 0:01:24.493 --> 0:01:29.373 the University of Otago now at the University of Queensland, 0:01:30.053 --> 0:01:31.413 and let me tell you. I think it was a 0:01:31.533 --> 0:01:35.733 very very very good discussion and it follows shortly. But 0:01:35.813 --> 0:01:38.333 first there's another matter I want to attend to. It 0:01:38.373 --> 0:01:40.973 seems of late that I'm getting an increasing number of 0:01:42.413 --> 0:01:48.253 letters asking for advice on books at associated matters, and 0:01:48.733 --> 0:01:51.333 I don't mind that at all, but I have to 0:01:51.413 --> 0:01:54.573 admit to have dropped behind a little in my correspondence. 0:01:54.573 --> 0:01:56.453 So for those of you who might be waiting for 0:01:56.533 --> 0:02:00.333 a response, it should still be coming. If it doesn't 0:02:00.333 --> 0:02:04.053 turn up soon, then let me know. But I'll give 0:02:04.093 --> 0:02:07.773 you all the advice that I possibly can. But referring 0:02:07.813 --> 0:02:12.493 to one book that I have reviewed and done an interview, 0:02:12.653 --> 0:02:15.773 or to actually two interviews with one of the authors, 0:02:16.613 --> 0:02:19.253 Climate Actually, ought to bring you up to date. Climate 0:02:19.293 --> 0:02:21.653 Actually is a New Zealand book. It represents more than 0:02:21.813 --> 0:02:27.853 four years of research. I'm quoting from the Amazon Australia commentary. 0:02:28.493 --> 0:02:32.653 Climate Actually represents more than four years of research respectively 0:02:32.693 --> 0:02:38.173 by three lay authors, where they considered the scientific concepts 0:02:38.413 --> 0:02:43.813 and evidence surrounding the current narrative of climate alarmists anthropogenetic 0:02:43.813 --> 0:02:47.093 global warming. Now, for those who have missed the debates, 0:02:47.293 --> 0:02:51.053 this is the claim that man made activities producing resultant 0:02:51.053 --> 0:02:55.533 excess emissions of greenhouse gases, including carbon dioxide CO two, 0:02:56.053 --> 0:03:00.973 methane H four, and nitrous oxide N two, are principally 0:03:01.013 --> 0:03:07.653 responsible for catastrophic global warming. The authors have been assisted 0:03:07.693 --> 0:03:11.493 by some of the most qualified academics available worldwide, whom 0:03:11.533 --> 0:03:15.853 they prevailed upon to provide a truthful explanation of what 0:03:15.893 --> 0:03:19.693 the claim of global warming is actually about from a 0:03:19.773 --> 0:03:23.053 scientific point of view. They produced an easy to read 0:03:23.093 --> 0:03:27.453 publication for all interested people to read a more likely scenario, 0:03:27.693 --> 0:03:32.613 devoid of any biased media interference, and with the goal 0:03:32.933 --> 0:03:36.853 to show future generations that in the twenty first century 0:03:37.373 --> 0:03:41.693 we were not all gullible to climate alarmist doctrine. The 0:03:41.813 --> 0:03:46.293 truth is the actual science shows that the culprit is 0:03:46.373 --> 0:03:50.333 water vapor. This is the most significant greenhouse gas GHG 0:03:50.973 --> 0:03:55.253 by orders of magnitude, but it is never mentioned. Our 0:03:55.293 --> 0:03:59.053 authors deduce the only possible reason for the emission of 0:03:59.173 --> 0:04:02.973 water vapor as a greenhouse gas is because no one 0:04:03.053 --> 0:04:07.733 has yet devised a business plan to tax rain. There 0:04:07.773 --> 0:04:11.493 is a universe uall misunderstanding that weather is climate. What's more, 0:04:11.573 --> 0:04:15.093 global warming is not climate. CO two is not carbon emissions, 0:04:15.133 --> 0:04:18.693 and CO two is not toxic, but is the elixir 0:04:18.773 --> 0:04:23.293 of life. The planet is actually in a CO two drought. 0:04:23.973 --> 0:04:27.093 We need more CO two, not less, which will make 0:04:27.133 --> 0:04:31.773 the planet greener, plants more drought resistant, and food sources 0:04:32.013 --> 0:04:36.773 much more plentiful. Ever heard that before? Since the Industrial 0:04:36.813 --> 0:04:40.733 Revolution there is an estimated thirty percent increase in crop productivity, 0:04:41.093 --> 0:04:43.653 and yet the alarmists are trying to remove the very 0:04:43.733 --> 0:04:47.653 basis on which survival depends. Though, if you need a 0:04:47.773 --> 0:04:52.053 scary story, reducing CO two concentrations below one hundred and 0:04:52.093 --> 0:04:57.133 fifty parts per million will bring on the sixth global extinction. 0:04:58.573 --> 0:05:04.733 Plants cannot photosynthesize at that level and will die if 0:05:04.773 --> 0:05:08.173 they do that. How is oxygen to be produced, which 0:05:08.173 --> 0:05:11.493 we do we all depend upon for survival. You've never 0:05:11.533 --> 0:05:15.253 heard that before. Either. Climates has changed for the last 0:05:15.373 --> 0:05:19.613 countless millennia and will continue to do so despite humans. 0:05:20.213 --> 0:05:23.613 This book is written in simple language to assist everyone 0:05:23.653 --> 0:05:27.853 to understand the complex true science, and it is a 0:05:27.933 --> 0:05:32.213 must to follow the money, including to the Greenhouse Fund 0:05:32.573 --> 0:05:37.653 administered by the UN's Paris Accord, into which all emissions 0:05:37.693 --> 0:05:42.453 trading systems taxes are payable. Why are our children in 0:05:42.493 --> 0:05:45.493 New Zealand And elsewhere school about climate change according to 0:05:45.533 --> 0:05:50.253 a curriculum that compulsorily requires them to be taught only 0:05:50.373 --> 0:05:55.093 the incorrect doctrine of the climate alarmist. For anyone who 0:05:55.133 --> 0:05:57.693 is curious about any or all of this, this book 0:05:57.773 --> 0:06:00.493 is a must read. At best, you'll get the picture. 0:06:00.733 --> 0:06:04.693 At worst, you'll do your own research and the results 0:06:04.733 --> 0:06:07.933 will astound you, as they did the authors. Now, the 0:06:07.933 --> 0:06:11.773 book is authored by Andrew Hollis, whom we interviewed on 0:06:11.813 --> 0:06:15.413 two occasions, Mike Sanke and Alan Trotter. And I think 0:06:15.453 --> 0:06:18.653 I'm right in saying that Alan Trotter was the driving force. 0:06:19.173 --> 0:06:23.133 But nevertheless they've all done a very good job. Now 0:06:23.133 --> 0:06:29.253 it's available from Amazon Australia. The price is very respectable 0:06:30.453 --> 0:06:33.133 and you'll get it in a very quick time for 0:06:33.333 --> 0:06:37.133 five six days. And that's volume one. Of course, volume 0:06:37.213 --> 0:06:41.173 two which at this point is available on kindle if 0:06:41.213 --> 0:06:43.373 you want the If you want the book form, you 0:06:43.453 --> 0:06:46.933 have to wait a little longer. Now coming up next, 0:06:47.053 --> 0:06:59.453 Professor James Allen. There are essential fat nutrients that we 0:06:59.533 --> 0:07:02.333 need in our diet as the body can't manufacture them. 0:07:02.413 --> 0:07:06.373 These are Omega three and Amiga six fatty acids. Equism 0:07:06.733 --> 0:07:10.253 is a combination of fish oil and virgin evening primrose oil, 0:07:10.693 --> 0:07:13.933 a formula that provides an excellent source of Omega three 0:07:13.973 --> 0:07:17.613 and Omega six fatty acids in their naturally existing ratios. 0:07:17.733 --> 0:07:21.533 The Omega six from evening primrose oil assists the Omega 0:07:21.573 --> 0:07:24.453 three fish oil to be more effective. Equisine is a 0:07:24.533 --> 0:07:27.853 high quality fish oil supplement enriched with evening primrose oil 0:07:27.893 --> 0:07:32.173 that works synergistically for comprehensive health support. 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Always 0:08:13.853 --> 0:08:17.293 read the label and users directed and if symptoms persist 0:08:17.413 --> 0:08:29.013 seeing your healthcare professional. Farmer Broker Auckland, Professor of Law 0:08:29.173 --> 0:08:32.133 the University of Queensland. James Allen is well known to 0:08:32.373 --> 0:08:36.933 this podcast audience and he is much appreciated and it's 0:08:37.133 --> 0:08:39.973 great to have you back on the podcast, particularly on 0:08:40.013 --> 0:08:44.933 this particular topic. Jim. I realized that after last week's 0:08:44.973 --> 0:08:48.173 podcast and the interview with Jill Evans, the national secretary 0:08:48.173 --> 0:08:51.693 of the Women's Rights Party, I realized that we needed 0:08:51.693 --> 0:08:53.733 to do some more on it, and there was only 0:08:53.733 --> 0:08:56.693 one person who I thought was appropriate for that, and 0:08:56.733 --> 0:08:59.973 that was some I say, with the best of intentions you. 0:09:01.213 --> 0:09:03.653 Well, thank you for having me on Lighton, and thank 0:09:03.693 --> 0:09:05.893 you for mimicking what the sort of thing my mother 0:09:05.933 --> 0:09:06.373 would say. 0:09:06.453 --> 0:09:09.973 So I appreciate I think you said that last time, 0:09:11.093 --> 0:09:13.773 but that's all right. Your mother was Your mother was 0:09:13.813 --> 0:09:14.373 worthy of it. 0:09:15.293 --> 0:09:18.253 You know that old Eisenhower joke when he used to 0:09:18.293 --> 0:09:22.693 get introduced, he'd say, I was a fabulous introduction. My 0:09:22.773 --> 0:09:24.653 dad would love to have been here to hear it, 0:09:24.893 --> 0:09:26.973 and my mom would have believed it beautiful. 0:09:27.253 --> 0:09:30.933 From Jill Evan's press release, I want to quote we 0:09:30.973 --> 0:09:34.013 stand with CEL on this fight as it heads toward 0:09:34.053 --> 0:09:37.413 the High Court in Australia. We also encourage New Zealand 0:09:37.413 --> 0:09:40.493 women and meant to take a stand against adding a 0:09:40.573 --> 0:09:45.253 gender identity and expression into our human rights legislation, or 0:09:45.293 --> 0:09:49.333 we will find ourselves in the same boat. Online submissions 0:09:49.373 --> 0:09:53.453 to the Law Commission's review close five September, so this 0:09:53.533 --> 0:09:55.213 is going to This is going to air on the 0:09:55.253 --> 0:09:57.773 fourth of September, So we're pretty much out of time, 0:09:57.813 --> 0:09:59.813 but not too late if you were, if you want 0:09:59.853 --> 0:10:04.293 to involve now. When I ranged Jim and asked him 0:10:04.293 --> 0:10:07.773 to come on, he was certainly agreeable. What he didn't 0:10:07.773 --> 0:10:09.973 tell me was that he had penned the column for 0:10:10.013 --> 0:10:13.013 the Spectator on this. It didn't surprise me when I 0:10:13.013 --> 0:10:14.853 found out this morning that he'd done that, and I 0:10:14.893 --> 0:10:18.533 read it and I thought, that is exactly how I 0:10:18.573 --> 0:10:22.453 wanted to approach this with him, This particular case of 0:10:22.653 --> 0:10:26.933 tickle versus giggle, which is he says in the headline 0:10:27.253 --> 0:10:30.653 is no laughing matter. You also say that it is 0:10:30.693 --> 0:10:33.933 a woke judgment. How would you like to get from 0:10:34.013 --> 0:10:37.453 the beginning of this to the outcome of woke judgment? 0:10:39.333 --> 0:10:43.773 So you know, when you're writing an op ed column 0:10:43.773 --> 0:10:47.093 you have to generalize, So you know, obviously you have 0:10:47.133 --> 0:10:50.533 a limited number of words. But as I said, the 0:10:50.653 --> 0:10:54.013 gist of the criticism sort of goes in this ranked order. 0:10:54.093 --> 0:10:56.733 The first problem or the politicians on the right side 0:10:56.773 --> 0:11:00.013 of politics, so they never it seems like this is 0:11:00.053 --> 0:11:02.653 a generalization, but basically the left comes in and they 0:11:03.333 --> 0:11:05.893 make these amendments. Some of them are part of a 0:11:05.973 --> 0:11:08.573 sort of culture war amendments, and then when ours, the 0:11:08.693 --> 0:11:11.133 right of center, comes into power, they never repeal them. 0:11:11.173 --> 0:11:14.333 They never repeal them. So one of the things is 0:11:14.373 --> 0:11:17.533 that back in twenty thirteen, the Gillard Labor government here 0:11:17.693 --> 0:11:22.613 amended the Sexual Discrimination Act and added the gender identity 0:11:22.653 --> 0:11:25.173 as one of the protected sort of heads. So it 0:11:25.253 --> 0:11:27.773 had been sex and a bunch of other things race, 0:11:28.333 --> 0:11:32.773 but they added gender identity. And so we come forward 0:11:32.853 --> 0:11:38.213 eleven years and as listeners may know, you had this 0:11:38.333 --> 0:11:44.333 women's only app was called Giggle, and a gentleman who 0:11:44.413 --> 0:11:50.213 had or was in the process of transitioning his slash 0:11:50.333 --> 0:11:53.893 her I'm going to use the biological pronouns. His name 0:11:54.013 --> 0:11:59.213 was Tickle, so you get this fantastic British farce case 0:11:59.293 --> 0:12:05.013 name of Tickle and Giggle, And so he wanted onto 0:12:05.053 --> 0:12:08.893 the app. The women's only app, and to make it workable, 0:12:09.053 --> 0:12:13.653 the organizers of the app had sort of computer software 0:12:14.173 --> 0:12:16.333 based on I think was a photo I don't really know. 0:12:16.373 --> 0:12:18.973 They would make an initial take and if you didn't 0:12:19.053 --> 0:12:21.973 like the take, then the woman who organized it would 0:12:22.253 --> 0:12:26.453 herself look at your photo. And I think he got 0:12:26.493 --> 0:12:28.093 through the first thing, but then she had a look 0:12:28.093 --> 0:12:31.453 at the photo and he was excluded. And long story short, 0:12:31.533 --> 0:12:34.493 eventually goes to the Human Rights Commission for not being 0:12:34.533 --> 0:12:38.653 able to access this women's only app, and of course 0:12:39.533 --> 0:12:43.093 there's no conciliation, and so it goes to a federal 0:12:43.133 --> 0:12:50.293 court action basically claiming discrimination. And this was a first 0:12:50.333 --> 0:12:54.293 instance judgment by a federal court judge, of course, one 0:12:54.373 --> 0:12:57.133 appointed by the Liberal party, the right of center party 0:12:58.413 --> 0:13:04.533 former Attorney General George Brandis, whose other judicial appointments included 0:13:05.453 --> 0:13:08.053 choosing the wife of the retiring High Court judge to 0:13:08.053 --> 0:13:10.813 be replacement in a world first that's never happened anywhere 0:13:10.853 --> 0:13:14.453 else in the world. So it's firstly a political problem. 0:13:14.693 --> 0:13:18.373 Our side just never does anything, and never they just 0:13:18.453 --> 0:13:21.733 don't fight back. And then what I also said was 0:13:22.293 --> 0:13:25.853 if you read the judgment often not often, but sometimes 0:13:25.893 --> 0:13:27.413 you read a judgment where you look at the law 0:13:27.453 --> 0:13:30.653 and you say, look, you could write a plausible judgment 0:13:30.693 --> 0:13:36.413 either way, so you can't really excoriate this judge. It's plausible, 0:13:36.493 --> 0:13:38.333 but it's also plausible that he could have gone the 0:13:38.413 --> 0:13:43.013 other way. Predictably, he didn't. He sided it with Tickel, 0:13:43.613 --> 0:13:46.933 and he ended up awarding ten thousand dollars in damages 0:13:47.533 --> 0:13:52.533 and fifty thousand dollars in costs. So that's what Grover, 0:13:52.813 --> 0:13:57.093 that's what Miss Grover has to pay. The legal materials 0:13:57.133 --> 0:14:00.173 would have allowed the judge to decide for Giggle in 0:14:00.213 --> 0:14:04.213 an equally plausible way. But if you were a predicting 0:14:04.293 --> 0:14:07.613 going in, he would say he's going to decide with 0:14:08.773 --> 0:14:11.693 the transgender person. So I can run you through the 0:14:11.693 --> 0:14:14.093 basics if you want. I'm not sure what you're looking for, Laton. 0:14:14.173 --> 0:14:16.413 I am. I am looking for it. I want to 0:14:16.493 --> 0:14:19.613 want you to tell us, explain to us how this 0:14:19.653 --> 0:14:23.853 process worked. Why the judge. You say that he had 0:14:23.893 --> 0:14:26.653 a choice, and that and and that was my gut 0:14:26.693 --> 0:14:29.493 reaction right at the very beginning, that he did not 0:14:29.733 --> 0:14:32.573 have to as somebody suggested it to me in a letter, 0:14:32.653 --> 0:14:35.773 he wasn't confined to ruling the way that he actually 0:14:35.813 --> 0:14:37.213 did correct. 0:14:37.333 --> 0:14:40.693 Well, I agree with you. So it's just it's a 0:14:40.773 --> 0:14:45.053 it's an anti discrimination type piece of legislation, the Sexual 0:14:45.093 --> 0:14:49.013 Discrimination Act, And basically the goal of this legislation, most 0:14:49.053 --> 0:14:51.053 of it comes out in what the eighties and nineties 0:14:51.053 --> 0:14:53.453 around the englishphere, and it's it's sort of to take 0:14:53.493 --> 0:14:56.933 groups that you are perceived to have been historically disadvantaged, 0:14:57.013 --> 0:15:04.093 women and to pass a statute that you know, blocks discrimination. 0:15:04.893 --> 0:15:09.893 And so you have the normal sort of category, so 0:15:10.733 --> 0:15:14.093 you can't discriminate against women, so you think of, you know, 0:15:14.293 --> 0:15:18.373 equal pay for jobs, that sort of thing. And this 0:15:18.453 --> 0:15:21.333 piece of legislation also has a what they call the 0:15:21.373 --> 0:15:26.213 Special Measures provision. But basically you in effect you can 0:15:26.293 --> 0:15:32.293 discriminate if your purpose is to achieve substantive equality between 0:15:32.293 --> 0:15:36.813 and one of the groups is men and women. And 0:15:36.853 --> 0:15:38.933 then when they made this, they made this amendment to 0:15:39.053 --> 0:15:42.853 Labor Government twenty thirteen, they also included gender identity as 0:15:42.893 --> 0:15:48.053 a protected head and so you could also discriminate for 0:15:48.093 --> 0:15:52.293 the purpose of the substantive equality between different gender identities, 0:15:53.253 --> 0:15:56.453 and so it doesn't count as discrimination if that's your goal. 0:15:57.173 --> 0:16:01.093 And so that's the sort of basic setup of the 0:16:01.373 --> 0:16:06.773 of the case. The basic argument for the applicant was 0:16:07.413 --> 0:16:11.373 I was discriminated against based on my gender identity. They 0:16:11.493 --> 0:16:14.813 responded effectively as saying something along the lines of, well, 0:16:14.853 --> 0:16:18.333 you were discriminated against, but you were discriminated against because 0:16:18.333 --> 0:16:23.453 of your sex, not your gender identity, and that's protected. 0:16:23.653 --> 0:16:26.573 That's protected by I think I can't remember section sevent 0:16:26.653 --> 0:16:32.053 d or something like that same statute. So that's those 0:16:32.093 --> 0:16:37.133 are the arguments. The judge says, well, look on its 0:16:37.253 --> 0:16:42.173 ordinary meaning sex is changeable. Well that's laughable, right, But 0:16:42.773 --> 0:16:46.933 he points to case law, and in a way, the 0:16:47.053 --> 0:16:49.213 judge is sort of signaling that, you know, I'm not 0:16:49.253 --> 0:16:51.413 deciding this based on what I think sex is. I'm 0:16:51.413 --> 0:16:54.293 deciding it based on case law. What he doesn't say 0:16:54.453 --> 0:16:57.733 is the cases he cites are to do with pensions 0:16:57.973 --> 0:17:00.973 and marriage, not the Sex Discrimination Act. I'm not really 0:17:00.973 --> 0:17:03.493 this isn't really my area. But quick flip and it 0:17:03.533 --> 0:17:07.853 looks like, to some extent context matters. The judge also says, 0:17:07.853 --> 0:17:11.653 look this a skillered amendment in twenty thirteen that added 0:17:11.733 --> 0:17:18.373 gender identity clearly points to a win for the applicant Techo. 0:17:19.093 --> 0:17:22.533 The judge rejects the special measures defense. The section seventy 0:17:22.933 --> 0:17:28.653 special measures. Defense to the argument by the respondent is 0:17:28.693 --> 0:17:31.413 this is to achieve some sort of male female equality 0:17:31.453 --> 0:17:33.813 so we can have our own spaces. And then you 0:17:33.853 --> 0:17:37.693 get some constitutional arguments that relate to Australia's written constitution 0:17:37.773 --> 0:17:41.093 about whether the federal government could do what it did 0:17:41.173 --> 0:17:44.533 with the twenty thirteen Amendment. And one of the issues 0:17:44.533 --> 0:17:48.013 that comes up tangentially is whether the International Convention on 0:17:48.053 --> 0:17:53.613 Civil Emploical Rights Article twenty six. In Australia, the High 0:17:53.653 --> 0:17:58.133 Court has basically gone crazy on federalism matters and basically 0:17:58.173 --> 0:18:01.253 it lets the center legislate on anything. So we have 0:18:01.373 --> 0:18:06.933 the most centralizing top court in the federalist world. Things 0:18:06.933 --> 0:18:10.533 happen in Australia. It would never happen in Canada, Germany, 0:18:10.813 --> 0:18:14.613 the US, any Switzerland, any country with real federalism. And 0:18:14.893 --> 0:18:18.013 it's not because of the original design of our constitution 0:18:18.093 --> 0:18:20.653 we just copied the Americans. It's because we have one 0:18:20.693 --> 0:18:24.693 hundred years of High Court decision making that gives power 0:18:24.933 --> 0:18:26.853 to the center at the expense of the states. And 0:18:27.093 --> 0:18:29.773 two of the most egregious cases one was called Tasmanian 0:18:29.853 --> 0:18:33.093 dam And so normally with a federal system you look 0:18:33.133 --> 0:18:36.013 at the heads of powers, and you say, is there 0:18:36.053 --> 0:18:38.573 any sort of head of power that allows the central 0:18:38.573 --> 0:18:41.333 government to do this, or in Canada's case, allows the 0:18:41.373 --> 0:18:46.013 provinces to do this, And in the American and Australian constitutions, 0:18:46.013 --> 0:18:48.573 if it's not in the head of power list for 0:18:48.653 --> 0:18:53.173 the Center, that stays with the states. Anyway, this Tasmanian 0:18:53.253 --> 0:18:56.973 Damn case gave power to the Center because of the 0:18:57.013 --> 0:19:01.173 external affairs power. So basically, if the federal government enters 0:19:01.173 --> 0:19:04.653 into a treaty with another country on some topic, the 0:19:04.773 --> 0:19:08.213 topic in the treaty allows the federal government to legis 0:19:08.533 --> 0:19:13.293 this is ridiculous. It just destroys any sane notion of federalism. 0:19:13.853 --> 0:19:16.613 And secondly, in the work choice, this case a bad, 0:19:16.733 --> 0:19:22.373 bad sort of foray into destroying federalism by John Howard, 0:19:22.413 --> 0:19:25.653 who was a centralist at heart. The High Court decided 0:19:25.693 --> 0:19:28.733 that you could use the corporation power to give the 0:19:28.773 --> 0:19:32.053 Center power over labor relations, even though labor relations had 0:19:32.093 --> 0:19:34.813 not explicitly not been given to the Center, and even 0:19:34.853 --> 0:19:38.773 though two constitutional referenda had said the Center doesn't get 0:19:38.773 --> 0:19:41.733 this power. So long story short, the judge, and I 0:19:41.733 --> 0:19:45.293 don't blame him for this part says, well, look, yes, 0:19:45.013 --> 0:19:49.613 the Center did have the power to pass this law. 0:19:50.573 --> 0:19:56.173 I'm skeptical about the claim that the International Convention on 0:19:56.213 --> 0:20:01.013 Civil and Political Rights gave the power to the Center 0:20:01.093 --> 0:20:04.933 on the gender identity because that article twenty six of 0:20:05.013 --> 0:20:09.133 that treaty that doesn't actually mention gender identity. So the 0:20:09.213 --> 0:20:12.573 judge says, well, it falls under other status. You know, 0:20:12.573 --> 0:20:14.973 it lists all the things it doesn't list gender identity. 0:20:15.773 --> 0:20:18.533 So what is going on is how how do you 0:20:18.613 --> 0:20:23.093 approach the reading of a written text. And I'm originalist, 0:20:23.133 --> 0:20:26.093 I think as with ordinary language, and you know most 0:20:26.173 --> 0:20:31.013 legal linguistic philosophers agree with this, meaning is static, it 0:20:31.013 --> 0:20:33.373 doesn't change. So if you say I'm going to meet 0:20:33.413 --> 0:20:35.213 you at the cinema to your friend and you lose 0:20:35.213 --> 0:20:37.733 yourself on you mean, her job is to try to 0:20:37.733 --> 0:20:39.973 figure out my meaning, and she's her job is not 0:20:40.093 --> 0:20:42.053 to sort of put the words in their most favorable 0:20:42.133 --> 0:20:44.333 light and pick the cinema that has the reclining seat 0:20:44.373 --> 0:20:47.013 and the nice glass of wine. My meaning was the 0:20:47.053 --> 0:20:49.573 cinema I meant. And if she can't get a hold 0:20:49.613 --> 0:20:51.213 of me, her job is to try to figure out 0:20:51.213 --> 0:20:53.773 what I meant. And fifty years from now, it was 0:20:53.813 --> 0:20:57.333 still the cinema that I meant. And that's bog standard 0:20:57.373 --> 0:21:01.693 outside of law, you know, that's but it's it's lawyers 0:21:01.693 --> 0:21:03.693 don't like that. They prefer to adopt a sort of 0:21:03.733 --> 0:21:06.533 what sometimes called a living tree, or you know, the 0:21:06.613 --> 0:21:09.573 text can change over time, the meaning. 0:21:09.373 --> 0:21:12.013 And it always changes in their favor. 0:21:12.893 --> 0:21:15.373 Yeah, and so the judge said, on its ordinary meaning, 0:21:15.413 --> 0:21:18.493 sex is changeable, well, on its ordinary meeting, almost no 0:21:18.533 --> 0:21:21.373 one believes that, except for ten percent of activists. But 0:21:21.453 --> 0:21:23.613 as I said, he pointed to the case law and 0:21:23.653 --> 0:21:26.013 he said, you know, there's a thirty years of case law, 0:21:26.053 --> 0:21:29.533 but it's it's more complicated than that. These were sort 0:21:29.573 --> 0:21:31.613 of pensions cases and marriage cases. 0:21:31.373 --> 0:21:33.653 All right, so what you what you what you're telling 0:21:33.733 --> 0:21:36.493 us is that there is a history of case law, 0:21:36.853 --> 0:21:39.093 but it has nothing to do with gender issues. 0:21:39.853 --> 0:21:41.493 Well, it does have to do with gender issues, but 0:21:41.493 --> 0:21:43.653 it doesn't have to do with the Sexual Discrimination Act. 0:21:43.733 --> 0:21:46.493 You know, it's more pensions and stuff like that. And 0:21:46.613 --> 0:21:51.493 on the on the twenty thirteen amendments, if you you know, 0:21:51.653 --> 0:21:54.013 he said, you know, the he sort of suggests there 0:21:54.053 --> 0:21:57.973 was an overt intention to redefine sex. But I don't 0:21:57.973 --> 0:22:00.853 think that's true. If you look at answered to that amendment, 0:22:00.853 --> 0:22:05.093 there's no mention of overtly redefining sex, and they explicitly 0:22:05.133 --> 0:22:09.413 didn't do that as regards the special measures exclusion, and 0:22:09.413 --> 0:22:13.733 in fact, the explanatory memorandum to that amendment said that 0:22:13.773 --> 0:22:16.213 these new grounds were to be subject to the existing 0:22:16.253 --> 0:22:20.333 provisions for special measures. In other words, you can discriminate 0:22:20.573 --> 0:22:25.173 in order to achieve this sort of substantive equality between 0:22:25.773 --> 0:22:28.573 men and women. So one of the underlying issues is 0:22:29.093 --> 0:22:34.693 do these amendments apply So where you bring in gender identity, 0:22:34.733 --> 0:22:39.413 do they apply to discrimination matters but not to special 0:22:39.453 --> 0:22:44.653 measures or do they apply to both? And the judges 0:22:44.733 --> 0:22:48.053 sort of assumes the answer to that question. I think 0:22:48.093 --> 0:22:50.013 it's just as plausible. And in fact, if you look 0:22:50.013 --> 0:22:53.653 at the intention of the Act back in twenty thirteen, 0:22:54.813 --> 0:22:59.333 almost I think they almost zero of the submissions took 0:22:59.373 --> 0:23:02.413 this amendment to have the meaning the judge gave it. 0:23:03.173 --> 0:23:06.493 And so if you think that what the measure meant 0:23:06.653 --> 0:23:09.613 was locked in in two thousand and thirty teen, and 0:23:09.693 --> 0:23:13.853 again that is bog standard linguistic philosophy. But you know, 0:23:13.893 --> 0:23:16.733 many judges, when it comes to constitutional matters, think that 0:23:17.413 --> 0:23:21.053 in the course of updating constitutions, think the actual meaning 0:23:21.093 --> 0:23:23.573 can change over time, which I think is almost incoherent. 0:23:25.213 --> 0:23:28.853 You're not bound by what the understanding was in twenty thirteen, 0:23:28.893 --> 0:23:32.693 but the understanding overwhelmingly was these amendments aren't going to 0:23:32.773 --> 0:23:36.373 apply to the special measures, which is between men and women. 0:23:36.853 --> 0:23:40.053 And back in twenty thirteen, it's pretty clear what the 0:23:40.133 --> 0:23:43.693 meaning of sex was. And again when they put in 0:23:43.773 --> 0:23:48.173 gender identity, they didn't explicitly deal with the special measures, 0:23:48.213 --> 0:23:51.573 which is indicative of something. Anyway, I think a judge 0:23:51.613 --> 0:23:55.853 had plenty of material to decide for a giggle. Now, 0:23:56.293 --> 0:24:00.333 are there other ways you that prover could have dealt 0:24:00.333 --> 0:24:02.613 with this? Yes, she could have taken the app offshore 0:24:02.693 --> 0:24:04.893 and you know, based it in the US, and then 0:24:05.173 --> 0:24:09.213 dared dared the sort of government here to deal with 0:24:09.293 --> 0:24:13.533 an offshore app. There's some scope to think you might 0:24:13.573 --> 0:24:17.373 have played around with how the sort of winnowing was done. 0:24:17.373 --> 0:24:19.933 Maybe have an app that anybody can sign up to 0:24:20.973 --> 0:24:24.133 and then invite applications based on I don't know your 0:24:24.173 --> 0:24:29.133 chromosomes for sort of a club like status. Because if 0:24:29.173 --> 0:24:32.733 the app is for the public, and that's what the 0:24:32.813 --> 0:24:38.413 judge held and that's plausible, then you're bound by the 0:24:38.453 --> 0:24:41.053 Sex Discrimination Act, no exemption. But if it's like a 0:24:41.053 --> 0:24:44.453 private club, there's an exception for private clubs. So that's 0:24:44.453 --> 0:24:47.053 why you can have men's only private clubs and women's 0:24:47.093 --> 0:24:49.253 only private clubs. I mean, there might have been ways 0:24:49.293 --> 0:24:52.493 to set this up that would have made it harder 0:24:52.853 --> 0:24:55.933 for Tickle, but even the way they did set it up. 0:24:56.053 --> 0:24:59.093 And to some extent, this is a political battle because 0:24:59.133 --> 0:25:04.973 the reaction over here has been vociferously against what they're doing, 0:25:05.573 --> 0:25:09.293 or sorry, vociferously against this judgment. And you know, you 0:25:09.413 --> 0:25:11.893 wonder to what extent are they are they running a 0:25:12.893 --> 0:25:18.493 political battle here to simply embarrass people who want to 0:25:18.533 --> 0:25:21.853 say that women can't even have an app where they 0:25:21.853 --> 0:25:26.053