Features Australia

Girt by vibe

Judicial activism has destroyed the meaning of citizenship

17 July 2020

11:00 PM

17 July 2020

11:00 PM

One Country Two Systems. Orwell grasped the semantic proclivities of totalitarians long before the odious regime in Beijing sought to mask 21st century Marxist-Leninism with Confucian opacity. We now know that the time for euphemism is past. The stultifying dead hand of repression is descending upon Hong Kong. Two systems? No longer.

Sadly, but unsurprisingly we may soon be able to describe Australia as One Country with Two Systems of law. I baulk at deploying the term ‘justice,’ as the judicial activism underpinning the decisions in Love and Thoms, make a mockery of that term for reasons I shall address. Queensland Senator Amanda Stoker, in a persuasive paper delivered to the Samuel Griffith Society recently denounced the reasoning of the majority ‘…the decision in Love is entirely unsatisfactory for reasons of judicial activism, policy-making, and racial divisiveness.’ Stoker, one of the rising stars in the Coalition served as an associate to former Justice Ian Callinan. Callinan, readers will recall, conformed to the description ‘Capital C Conservative.’ He was appointed by the Howard government to quell criticisms of judicial activism by the Mason Court, especially the Mabo decision which radically reinterpreted the underpinnings of land tenure in Australia.

Outside legal circles, the scathing criticisms of the High Court’s judicial activism in Love and Thoms have been subsumed in the media clamour surrounding the Wuhan virus and more immediate threats to the federal compact, through the trashing of Section 92 (free trade, commerce and intercourse between the States), and the expansive use of the Australian Defence Force to provide de facto policing and quarantine enforcement. However, there is an emerging consensus that a line needs to be drawn in the sand to halt the left’s long march through the institutions. The Academy and the ABC are beyond redemption but there is no better place to start than with the High Court. Constitutional originalists feel betrayed that the decisive voices in the plurality in Love were provided by Coalition appointments. Attorney-General Christian Porter is being urged to ensure the vacancies occasioned by the retirements of Justices Virginia Bell later this year and Geoffrey Nettle in March 2021 are filled by those who favour strict legalism in Constitutional matters. As Senator James Paterson wrote last week, that has nothing to do with partisan affiliation, nor is it an argument for election of judges or inquisitorial confirmation processes as employed by United States Senate in vetting Supreme Court Justices.


In Love and Thoms, the High Court handed down dangerous decisions that institutionalised racially defined privilege. Their decision created a unique category of person hitherto unknown to the laws of this nation. The new category comprises those who are not Australian either by birth or through acquisition of citizenship by pledge of allegiance. By definition such people have always been aliens. No longer. Provided they meet tenuous self-identification as indigenous people they are immune to deportation despite committing serious crimes. The full ramifications of this may take some time to be fully understood. But make no mistake, it is judicial activism undermining the very foundations of what it means to be an Australian.

One of the primary reasons that Australian colonies buried their petty rivalries to create the new Australian nation was to ensure implementation of uniform immigration laws and control of our borders. In an era of transnational terrorism and crime such powers have never been more vital to our security. And having just endured a summer of dire natural challenges followed by a pandemic we are being told that our shared sense of being one people facing common perils demands national unity. The power to determine who may be deported from our shores has assumed paramount importance. There is ample sound jurisprudence from our own High Court interpreting the so-called ‘nationhood power’ under Section 61 to suggest that defining and deporting aliens is an innate characteristic of the legal personality of nation among other sovereign entities. Regrettably, the emotive, metaphysical waffle of the majority, in Love, usurped what should remain a matter for the parliament and ultimately the Australian people.

It is not hyperbole to claim the High Court decided that the ‘vibe’ of the Mabo decision, in the words of that esteemed fictional lawyer, Dennis Denutto from the classic Aussie movie The Castle, prevailed over the text of the Constitution and the Migration Act, in relation to a power central to our national identity. To the majority of the High Court, the vibe of Mabo imbued a tiny minority of aliens with a metaphysical status exempting them from deportation despite being dangerous criminals whose love of this country never motivated them to even apply for citizenship. They conspicuously ignored also that any indigenous interest in land derived recognition as a form of common law title, concomitant upon Australia’s colonisation by Britain, and their status as British subjects. As Chris Kenny noted ruefully of this decision, it makes it very difficult for Conservatives to support the Indigenous Voice to Parliament. Like Kenny, I accepted the Mabo decision and also felt that some formal process of reconciliation may bring closure to the interminable expressions of grievance about our colonial past. However, Love served a salutary reminder that departure from the text and structure of our Constitution is fraught with peril.

Moreover, the rabid militancy of the Black Lives Matter movement, which has so clearly been hijacked by Marxist nihilists makes it impossible for any Conservative to lend any support to identity politics. The judicial activism of the High Court and the street activism of affluent millennial brats has killed the Voice stone dead. No substantial reform to the Constitution can pass without significant support from Coalition voters across the entire federation. In the wake of the destruction of the symbols of liberal democratic past that is simply never going to happen. Our national identity matters. No crisis is so dire as to compel me to identify as a Melburnian. Tear down my statue if you must. I shall settle for being an Australian citizen. What that actually means may await the composition of the High Court at a date to be fixed.

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