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No Constitutional Preamble; No More Power to Judges

December 9, 2011

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.

Writes Allan:

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.

  1. December 9, 2011 4:31 pm

    Bob, I nearly always agree with the sentiments you post, but not this time. This message mixes too much fact and fiction for my liking.

  2. December 9, 2011 5:13 pm

    You are conflating the High Court’s decision on off-shore processing with an as yet to be defined constitutional preamble.

    The first has nothing to do with the second – and this is no way an example of “judicial activism”. The High Court merely said that the Minister’s proposed actions were not consistent with the current laws as written. The Court did not say that the laws could not be changed – Tony Abbott said that. Indeed for the Minister to be able to change the current law without a parliamentary majority would require either a constitutional change or some very adventurous judges!!

    And let us also acknowledge that the most popular model for charter of rights in Australia, maintains the supremacy of elected parliamentarians over judges. There may be some issues with the model, but the sovereignty of parliament is not amongst them.

  3. TerjeP permalink
    December 9, 2011 6:44 pm

    I support inserting a provision that explicitly empowers the Federal Government to legislate for Aboriginal advancement.

    That’s racist. In fact it is institutionalised racism which is even worse. And contrary to popular opinion I don’t think it serves the interests of those that people like to imagine it would.

  4. Michael Longley permalink
    December 10, 2011 12:29 pm

    Could not agree more Bob, the idea that we ought to go down the American road and try to remove more power from our elected representatives in favour of self-selected judges via this constitutional fetishism clearly is not being though out clearly by sections of progressive civil society.

  5. Clive permalink
    December 11, 2011 1:58 pm

    The import fact to remember is the separation of powers within Westminster system of government should bear in the mind

  6. Clinton permalink
    December 12, 2011 1:28 pm

    “It is an executive prerogative to put in place effective border arrangements which tackle irregular maritime arrivals.”

    You admit yourself, changing the legislation would resolve this issue. This shows, by your own admission, that it is legislation that is preventing the exercise of this prerogative, not the courts. It is indeed “black-letter law” which prevents the minister from sending unauthorised arrivals to Malaysia.

    Judicial activism in this case would have been to ignore the black-letter law of the migration act and allow the minister to send unauthorised arrivals to Malaysia, despite the black-letter law of the migration act which states in black letters the following:

    “(3a) (iv) meets relevant human rights standards in providing that protection;”

    What do you think this clause is for? Do you think it is the black letter law which should be followed by black letter judges, or would you rather encourage judicial activists to ignore this law?

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