Wednesday, January 29, 2014

The document we have sure ain't broken, so why change it? | The Australian

The document we have sure ain't broken, so why change it? | The Australian

 THERE are two ways of understanding disagreement on important public
issues. One way is to assume your own view is the result of some sort of
pipeline to God, indisputably good in other words, and so all those who
disagree with you are either dumb, malevolent or in need of some
re-education. The other way is simply to recognise that a lot of smart,
nice, well-informed people simply disagree on all sorts of important
issues ranging from euthanasia to how to deal with those trying (dare
one say illegally?) to come to this country by boat, over to labour
relations, on to whether to amend our Constitution, and more.

In the past two decades our top judges have taken to
interpreting our written Constitution in a way that is very hard to
defend. Twenty years ago, the High Court discovered, or read in, or flat
out made up (according to taste), an implied freedom of political

I count myself as one of the biggest free speech adherents in the
country, and in substantive terms, I like this outcome. But as a matter
of honestly interpreting the words of our Constitution, these cases
strike me as so implausible as to be laughable.

And in a democracy where all of us count equally with an equal vote to
choose people to make social policy, that is a very bad thing.

Or more recently, in a couple of voting rights cases, our High Court in
my view issued two of the most interpretively implausible decisions I
have read since coming to this country. In both instances they
over-ruled the elected parliament and struck down statutes passed by the
elected representatives of the people.

And they did so with virtually no textual warrant from our Constitution.
They treated the words as some sort of jumping off point for seeing the
Constitution as a “living tree” that can be pruned and altered over
time, but of course only by them, seven unelected ex-lawyers.

Of course not everyone sees these cases the way I do. But notice that
once you go down this road, it becomes something of an unknown how a
change to our Constitution today will be treated by a future High Court
in 15 or 20 years.

And I fear that this mooted change to our Constitution to insert some
sort of recognition clause might be used by latter day judges to do all
sorts of things unimaginable, or pooh-poohed, today.

If you doubt that, ask yourself how many people back at the start of the
1900s thought that the phrase “directly chosen by the people” could be
used by judges to dictate when the electoral rolls could close or that
some of those in prison could vote when parliament said they could not.
The answer is that none of them back then thought this. They thought
they were leaving these issues to the parliament. So when people today
assure you that the words they propose to insert will transfer no power
to our unelected judges, there are some sensible grounds for being
sceptical, at least until we see what explicit words emerge as the
proposed amendment.

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