No Constitutional Preamble; No More Power to Judges
Australians will support a referendum to remove from our constitution any discriminatory provisions bearing on indigenous Australians.
I support inserting a provision that explicitly empowers the Federal Government to legislate for Aboriginal advancement.
I welcome the report in today’s Australian that the panel which has been working up the recommendations for the government will not recommend the insertion of a new preamble in the constitution. This is important because of the activist nature of the High Court. As the brilliant analyst James Allan points out in The Australian today, judges in France and India have taken constitutional preambles to stretch the constitution and assert their own judicial omnipotence.
Such preambles can be used down the road by interpreting judges in ways no living person, drafter or ratifier or anyone at all, could have imagined. Again, just look at France and India.
Let me put this all more bluntly. Anything beyond the minimalist repeal option is basically an anti-democratic proposal. It is a proposal that carries with it the potential for much greater judicial power in terms of invalidating and striking down parliament’s statutes, meaning the majority of voters’ statutes.
Perhaps you believe our distinguished High Court won’t be tempted to arrogate to itself the powers that should reside in Parliament? Well, that is contradicted by what Allan describes are the two worst High Court decisions in years: Roach (2007) and Rowe (2010).
Further, look at what the High Court of Australia did on off-shore processing in its decision of August 31 this year. It held invalid the Minister for Immigration’s declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. With the failure of Tony Abbott to support legislation to rectify this decision, Australia effectively has open borders. That is, the Australian Government is forced to bring to Australia for processing any unfortunates who put their money and their lives at the hands of international criminals, that is, people-smugglers.
This is entirely unacceptable to the Australian people who will never live with the suggestion that their government can’t deter people-smuggling, a species of trans-national crime, and can’t force illegal arrivals into a queue.
It is particularly unpopular with refugee communities in Australia who’ve got family, friends and compatriots waiting for orderly admission to Australia.
It is an executive prerogative to put in place effective border arrangements which tackle irregular maritime arrivals. The Australian Government wants to smash the business model of people-smugglers; our High Court has told them this is not possible.
For God’s sake, let us have black-letter lawyers, not judges who seek to usurp the rights of elected parliaments.
That is why any preamble to the constitution is of concern and why it is welcome that the panel, reportedly, will not recommend one. That’s wise. It’ll save me a lot of time. I would have joined the campaign to have done it in. Constitutional amendments can’t get carried at referenda,as I’ve heard Malcolm Turnbull recently say, unless there is no opposition. Not just support from all political parties. But no opposition.
Having played a modest role in preventing Australians being saddled with a charter of rights that adventurous judges would have creatively interpreted, I intend to do everything I can to limit the scope of judicial adventurism in other ways.