XPost: aus.politics, alt.france, nl.politiek   
   XPost: de.soc.weltanschauung.islam, uk.legal   
   From: dolfboek@hotmail.com   
      
   DOES THE GOVERNOR GENERAL HAVE AN EX-JUDICIAL AUTHORITY TO ORDER BIRCHING?   
      
   If one considers as corporal punishment the legal precedent the cat o'   
   nine tails, which a type of multi-tailed whip or flail. It originated as   
   an implement for severe physical punishment, notably in the Royal Navy   
   and British Army, and as a judicial punishment in Britain and some other   
   countries.   
      
   The term judicial birch generally refers to the severe type in use for   
   court-ordered birchings, especially the Manx hazel birch. A 1951   
   memorandum (possibly confirming earlier practice) ordered all UK male   
   prisons to use birches (and cats-o'-nine-tails) from only a national   
   stock at South London's Wandsworth prison, where they were to be   
   'thoroughly' tested before being supplied in triplicate to a prison   
   whenever required for use as prison discipline.   
      
   FOSTER V MINISTER FOR CUSTOMS AND JUSTICE B92/1999 [2000] HCATRANS 121   
   (23 MARCH 2000)   
      
   KIRBY J: I think the question is still relevant because we have to test   
   your theory of the section against the possibility that the Minister has   
   to, as it were, speculate not only on what the discretion that will be   
   exercised by the sentencing judge will be, not only what might be the   
   subject of some review of the sentence, but what factors would enter   
   into the sentence, such as offers of return to people who have been   
   defrauded or a pleading of guilty and so on.   
      
   Are any of the other matters that have to be considered under the   
   section of this problematical class? In other words, the death penalty,   
   well, one just looks that up. But are any of the other matters that the   
   Minister has to take into account of this variable malleable content?   
   Torture, for example. Would one know whether in a particular case for   
   particular offences - I suppose you could have some offences where even   
   in oppressive countries there is no torture but in such countries there   
   is for particular offences having a political character, so presumably - - -   
      
   MR SOFRONOFF: Your Honour, the direct answer is none of the other   
   specific matters that are addressed in section 22 are of that flexible   
   kind. With respect to torture, one can readily see that say a sentence   
   of *BIRCHING* might be regarded here as torture and if that is possible   
   under an enactment of a foreign country, then that is readily   
   ascertainable as a matter of objectivity. However, although we are   
   speaking of Commonwealth countries here, some of them from time to time   
   are in such a state that one could readily accept that in some of them,   
   despite the absence of the provision for lawful imposition of torture,   
   there may be a risk that that would occur and that would be something   
   that - - -   
      
   KIRBY J: There was a report only last week of one Commonwealth country   
   where they were going to cut the person up and do it in public and do   
   other such things to the person, so I assume it just depends from time   
   to time on the evidence available.   
      
   MR SOFRONOFF: Yes, and in our submission, although it is true that the   
   actual sentence that would be passed would depend upon a great number of   
   matters, some of which will not be known until much later, it is always   
   possible for a range to be given by those who are familiar with such   
   things, such that for the broad purposes that the Attorney is required   
   to consider it is possible to conclude that no oppression would result   
   because some significant gaol term would, nevertheless, be imposed - 3   
   months, 4 months, 5 months, whatever it might be such that the arguments   
   - - -   
      
   ...   
      
   KIRBY J: Does *BIRCHING* come up under any other head or is it only   
   available - - -   
      
   MR SOFRONOFF: It could only be torture, your Honour. If it is not   
   torture, and minds could differ about that - they obviously do because,   
   as we all know, somebody was caned in Singapore a few years ago. If it   
   is not torture then it is certainly a matter that would be - as a likely   
   or possible punishment, ought to be considered by the Minister before   
   sending - in that case it was a youthful offender. It was not extradited   
   but if it were an extradition case she would have to consider whether   
   that was a matter that would render it oppressive.   
      
   The purpose of my mentioning severe punishment is this, once one admits   
   that a severe punishment may be material, one admits that punishment is   
   material and once one admits that punishment is material it can be   
   readily accepted, in our submission, that if what is being sought is   
   extradition in circumstances where no significant punishment will be   
   imposed, the Minister may consider that that is something that renders   
   the surrender oppressive or too severe a punishment.   
      
   McHUGH J: But does not your argument lead to the conclusion that the   
   Attorney or Minister must examine the weight of the evidence to see   
   whether or not the person may be convicted?   
      
   MR SOFRONOFF: No, your Honour.   
      
   McHUGH J: Why not?   
      
   MR SOFRONOFF: Because one thing that does emerge from the Extradition   
   Act is that one does not have an occasion ever to test guilt or innocence.   
      
   McHUGH J: But why should not the Attorney have that obligation? If he   
   has got an obligation to consider the sentence, why should he not have   
   an obligation to consider the likelihood of conviction?   
      
   MR SOFRONOFF: Your Honour, I would answer the question that she would   
   have an obligation to consider the likelihood of conviction only if it   
   can be demonstrated that there is no real likelihood of conviction. That   
   would be a rare case, but I say that because there is authority in this   
   Court that that would be a matter that would render an extradition   
   oppressive. The case is - - -   
      
   HAYNE J: But that is likely, is it not - that is likely to take you over   
   to accusation not made in good faith? If there is no realistic prospect   
   of conviction, one is at once perhaps into the field of accusation not   
   in good faith and, if you are not in that territory, then where lies the   
   middle ground? [Copyright in the High Court of Australia, TRANSCRIPT OF   
   PROCEEDINGS. AT CANBERRA ON THURSDAY, 23 MARCH 2000, AT 2.51 PM]   
      
      
      
   We would submit that since the OFFICE OF GOVERNOR GENERAL has an   
   EX-JUDICIAL AUTHORITY as implication established by #940 - RIGHT TO RULE   
   and according to #902 - RULE OF LAW, that in order to preserve the   
   ANTHROPOCENTRIC SINGULARITY FIRST PRINCIPLES being the #451 - PRAXIS OF   
   RATIONALITY which as metakosemeo is constitutionally the product of a   
   CAESAROPAPISM as intrinsic to QUEEN VICTORIA'S LETTERS PATENT and the   
      
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