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Judges and the Constitution

August 27, 2011

Continuing his criticism of High Court judges (see below) at the Hobart conference of the Samuel Griffith Society, Professor Jim Allan assails the idea of a preamble to the constitution. “What form of words could give you confidence that High Court judges would not twist them…to get what they want?”

Good point, given their activism in asserting a judicial supervisory role in prisoner voting legislation (Roach and Rowe). Judges have given themselves the power to rewrite parliamentary legislation.

There is the argument that without judicial activism of this type we are locked into the thinking of 1901. This is the argument that the constitution is a living tree. Jim Allan replies that we have a choice: we can be locked into the constitution as it was devised or we can be locked into the opinions of four members of a seven-person High Court, as they assert their power to stretch and rewrite parliament’s laws.

But society is changing, assert the judicial activists. Yes, says Allan but who will you trust to respond to social change? Elected members of parliament or four judges (that is, a High Court majority)?

A charter of rights, of course, confers power on those four judges to determine what the words of a charter mean in practice – and tell us, as in Canada, that freedom of speech means lifting the bans on tobacco advertising.

  1. martin spencer permalink
    August 27, 2011 2:41 pm

    Judicial activism is both radical and reactionary. Section 116 of the constitution is explicit, lucid, precise, and forceful in the words used to define a separation between religion and the state. This has never been taken seriously by the High Court and they deserve to be rebuked. If today, this section was ‘re-interpreted’ by the high court to prevent state funding of religious private schools this would not be activism, it would be to respect the true meaning of the words.

    I also disagree that “we can be locked into the constitution as it was devised or we can be locked into the opinions of four members of a seven-person High Court” is taking the argument too far. There is only so much activism possible, and it can always be reversed by a referendum.

    Instead of complaining about judges, why not complain about the present reluctance of anyone to take constitutional changes to a referendum.

  2. August 27, 2011 2:43 pm

    If people are unhappy with the constitution and want to change bits of it, they can do so via a referendum. Judges should keep their beaks out of it.

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