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The Warning in the Court Decision

September 2, 2011

One part of me cheers whenever I see a government overruled by a court. It reminds me we have an independent judiciary and that this is one of the measures of our democracy. But the sheer subjectivity of judicial decisions gives me the creeps. The US Supreme Court is the most blatant example, as they devote themselves full-time to interpreting the Bill of Rights. They make decisions on capital punishment after surveying states and counting how many states apply it. No mystery of the law here. Just pure politics.

In 2001, when he was serving on the Federal Court, Chief Justice French upheld the legality of the Howard government’s decision to send asylum seekers to Nauru. I’m not au fait with the legal technicalities but this proves a judge can decide cases – with similar facts – so differently, with no intervening statutory changes.

This just deepens the reservations one must feel about what a court – an activist court of the left or the right – would do if presented with the splendid opportunity of a Bill of Rights in Australia.

I heard a story only this week about a Labor MP asking Prime Minister Robert Menzies why he was opposed to a Bill of Rights. Menzies’ reply was succinct: “Because somebody will interpret it.”

That’s all. “Because somebody will interpret it.”

Australia’s been saved from a charter of rights by the good sense of Kevin Rudd and his colleagues in 2010 when they rejected the Brennan Report’s recommendation.

Judicial lawmaking under our existing common law arrangements gives us hints of how politically potent judges would be if they had a charter.

10 Comments
  1. September 2, 2011 12:46 pm

    As a retired lawyer, it seems to me that Julia Gillard’s comments come close to contempt of court, especially her singling out of Justice French, when he was only 1 of 6. That would be an interesting first – an Australian Prime Minister sent to gaol for contempt of court.

  2. Byron permalink
    September 2, 2011 12:47 pm

    1 great message. So true. so poorly understood.

    Once it is written it can be interpreted to mean only what it says not what it meant to say. e.g. constitution s51 external affairs power.

  3. September 2, 2011 12:50 pm

    This is a straw man. Few are proposing an American style system.

    The real interest lies in analysing the strengths and faults of the systems with actual support, such as outlined here:

    http://www.smh.com.au/opinion/wisdom-of-politicians-is-frail-shield-for-our-rights-20090601-bsv7.html

  4. Peter Cant permalink
    September 2, 2011 2:44 pm

    So what of the constitution as it currently stands? Eight chapters of thick law, all requiring this dreadful “interpretation”. How would you rewrite it to minimise the need for this? Notably bereft on democratic specifics I might point out. How do you decide what you favour including and excluding from this document?

  5. Clinton Mead permalink
    September 2, 2011 3:39 pm

    For everyone’s reference, here is the text of Section 198A of the migration act:

    (3) The Minister may:
    (a) declare in writing that a specified country:
    (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
    (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
    (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
    (iv) meets relevant human rights standards in providing that protection;

    I can’t see how a law written in such a way cannot require interpretation from the courts.

    If the parliament really didn’t want the court to decide what places were suitable, they would have instead wrote:

    (3) The Minister may declare in writing that a specified country may be sent unauthorised arrivals for the purposes of this act.

    But they didn’t. The parliament obviously intended the courts to interpret (aiv) on “relevant human rights standards” because if they didn’t, they wouldn’t have passed “relevant human rights standards” into LAW which courts interpret. Not interpreting parts (ai-iv) would have been not following the law as it is written and this would have been judicial activism.

    Legislation is LAW, not guidelines or suggestions, and it applies to us all equally. If parliament doesn’t want the courts to examine something, don’t put it in the legislation. It’s that simple.

    • September 2, 2011 5:05 pm

      Any laws passed need to be compatible with each and our treaty obligations. This limits the power of parliament. They can of course abandon treaty obligations, but there are logical consistency issues that parliament can’t just legislate around.

      The best they can do when introducing new legislation is argue that there is no inconsistency with previous legislation or treaties. The courts can disagree.

    • September 2, 2011 5:26 pm

      written by laywers for lawyers.

  6. Ralf Kluin permalink
    September 2, 2011 7:04 pm

    The first ten amendments to the United States Constitution became known as the Bill of Rights because they contained many of the fundamental freedoms vital to the American people. These rights were so important that the American people insisted they be added to the new Constitution written in 1787. But the Bill of Rights did not suddenly appear when it was ratified by the states of the union in 1791. it was the result of over a century of experience with rights in America, and many centuries before that in England. To understand the American Bill of Rights and its history, Australians must first understand the principles underlying the idea of rights. What is a right? Where do rights come from? Who protects rights?

  7. September 2, 2011 7:15 pm

    There are two points to make here:

    (1) As the majority of the High Court points out, the Nauru solution was importantly different to the Malaysian solution. See paragraph 128 of the judgment of Gummow, Hayne, Crennan and Bell JJ: “…the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states.”

    (2) French CJ’s judgment in this case is in fact entirely consistent with his decision on the Nauru case. In both cases, he rejected the argument that s 198A required the Minister to establish certain “jurisdictional facts”. In the Nauru case, the plaintiff’s case was solely on the jurisdictional fact point, and so once that point was lost, the plaintiff lost the whole case. In the Malaysia case, the plaintiffs argued (1) s 198A required the Minister to establish certain jurisdictional facts and (2) even if s 198A did not require this, the Minister asked the wrong questions with regard to Malaysia. The difference was that in the Malaysia case, the Court had access to the Minister’s reasons and could assess whether the questions the Minister asked were correct.

    Julia Gillard’s comment was thus entirely unwarranted. Section 198A(3) has only been in the Migration Act for 10 years, and this is the first time the Court has had an opportunity to consider it. It is thus to say that the decision ‘turns on its head the understanding of the law in this country’ as Gillard asserted. We simply did not have High Court authority on the section before this, so the interpretation of the section was not definitively settled. To be honest, I am very disappointed with Gillard; she is a lawyer and she should know better.

    For those who are interested in the legalities of the decision, I have written a detailed blog post here: http://skepticlawyer.com.au/2011/09/02/malaysian-solution-post-mark-ii/

  8. September 2, 2011 8:45 pm

    Bills of ‘rights’ are examples of energy being diverted away from the main game, of the good forms of socialisation and public ownership that working people and families and pensioners expect from labor government.

    Time expended on bills of ‘rights’ is time wasted on poltically correct/legal positivism that pits smaller alleged wrongs/injustices, grievances against hiogher order natural and moral law issues of justice and mercy that mainstream Labor voters hold in their convictions and in their hearts.

    The more that we move away from the natural and moral core labor objectives on public ownership and socialisation to the greater extent necessary after so much loose interpretation of to ‘the extent necessary’ the more will we suffer ‘anti-social effects’ in personal lives and in the community; and more southward ong term demise of the ALP’s primary vote with each generation.

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