Flat White

Time to take back our country after the High Court’s constitutional coup

21 February 2020

12:59 PM

21 February 2020

12:59 PM

Without any consultation whatsoever with the Australian people, much less their consent, the Constitution has been amended to block the lawful deportation of violent criminal aliens declared to be indigenous.

This was done with breathtaking arrogance by four little-known black-robed High Court justices sitting in Canberra’s palace of justice, a brutally ugly building which despoils the vista across  Lake Burley Griffin. To do this, the unelected four have marched down a century-old, well-trodden path of constitutional violation, a path which should now be as firmly closed as the elites have the fire trails in our national parks.

Be warned, this judicial coup is no aberration. In the extraordinarily rushed GetUp! case weeks before the 2010 election, the court ruled (delaying handing down its reasons until the following Christmas) that about 100,000 unverifiable names of those in breach of the electoral law should be added to the rolls. The election produced a hung parliament, which saved the Gillard government.

In the current coup, the judges have inadvertently shot themselves in their buckled shoes. They have guaranteed the defeat of any referendum to adopt any, even the most minimal, of several confusing versions of indigenous constitutional recognition.

The constitutionally wise have been shown to be justified in their warning, ‘Give the unelected judges an inch and they’ll take a mile.’

To see the sort of results which would follow, a national legal lobby is actually proposing that persons convicted of crime should receive significantly discounted sentences if they can be loosely categorised as indigenous. 

This is yet another occasion to reflect on the unusual ability of President Trump to do three things: identify serious problems, propose common-sense solutions and, above all, apply them courageously. This rare quality became apparent in the 2016 campaign when he indicated he would only appoint judges who would interpret the Constitution as intended. He released a list of eminent lawyers deemed so appointable. This was the first thing that led me to the conclusion that he was clearly the superior candidate.

As with other aspects of his presidency, this is important not only because a stronger US is crucial to the free world, but also because the President’s policies and administrative skills are so superior he can teach even experienced conservative politicians elsewhere what they should be doing.

Australian conservatives should pay attention. They have been asleep at the wheel. Of the four who just announced their coup, three were Coalition appointees. When the Court gave the green light to parliament on ‘same-sex’ marriage, notwithstanding the clear constitutional intention concerning the marriage power, there was not one dissent.

When the Court, having invented ‘common law’ native title, used it to seize leasehold title from farmers and others without constitutionally-prescribed compensation, the Howard government saw the importance of appointing sound traditional lawyers. So they appointed one of the strongest federalists who have ever sat on the court, Ian Callinan. Then followed three sound appointments, Dyson Heydon, Murray Gleeson and the present Chief Justice Susan Keifel, who dissented from the latest example of ultra-activism. 

Apart from following President Trump in only appointing originalists to the Court — there is not one — the present Coalition should abandon not only those fashionable elite follies of constitutional recognition and the so-called ‘voice’ or ‘third chamber’, but also that Coombian disaster, costly, morally debilitating, separate development based on some fictional past utopia.

It is of underlying importance that, because of a succession of changes disguised as interpretations and imposed by unelected judges, Australia has become what was never intended: by far the most centralised among comparable federations at a cost, experts calculate, of about 10 per cent of GDP.

When our founders proposed an Australian version of the US Supreme Court, they imported one aspect never intended by the American founders, the power to change the constitution by barely disguised ‘interpretation’, inventing, for example, a fictional right to abort. The Americans had intended the court to be like the British equivalent, not intruding in the roles of the legislature and executive. (That lasted until the Blair government vandalised the constitution.)

Our founders, erudite men, were no doubt made wary by the pro-slavery decision in Dred Scott v. Sandford (1857) which undoubtedly triggered the Civil War. By making our High Court also the general appellate court, unlike the American, they perhaps thought that the exercise of a traditional judicial function and merely being busy would be sufficient to restrain any activist tendencies.

But they made one serious error in not appreciating that leaving the appointment of the judges to the federal or central government would inevitably create a court with a centralist agenda. That began immediately the founding fathers on the Court passed on. An overdue reform is to require appointments to be made by rotation among the states which will, at last, see the appointment of the first South Australian judge and fewer decisions made as perceived through the narrow and elite Sydney-Melbourne-Canberra prism. In addition, we surely do not need so many other competing federal courts.

The most urgent reform today is not to allow four unelected judges a free hand in making the Constitution mean what they want it to mean. In a democratic society almost everyone is accountable; why not judges? True, they can be removed by the governor-general on an address of the Senate and House on the grounds of ‘proved misbehaviour’. But it is difficult to see the politicians agreeing that activism is the misbehaviour common sense indicates it surely is.

The cause of our present serious malaise and decline lies in the judicially-enabled distortion of our federation by the politicians.

This is yet another reason for urgent reform to save the nation from the insidious decline imposed by the political class, which includes activist judges. Just as we federated, the solution lies with the people through a latter-day Corowa Plan. 

Australians, and especially those many endowed with common sense, must take back their country.

A petition on constitutional reform can be seen at https://bit.ly/38yRKPB.

Got something to add? Join the discussion and comment below.


Got something to add? Join the discussion and comment below.

Show comments