Features Australia

They love the sound of their own Voice

Activist judges will, yet again, be the winners

18 June 2022

9:00 AM

18 June 2022

9:00 AM

Back before 1982 when Canada brought in an entrenched Charter of Rights (without any referendum or even election on the issue, by the way), the naysayers were won over by the promise of what was called a ‘notwithstanding’ clause. This is Section 33. If the elected legislature thinks some decision by the unelected judges to invalidate a law is wrong, it can declare that the statute still operates ‘notwithstanding’ the judges’ views of how the Charter of Rights operates. (There are exceptions, but that’s the gist of the matter.) Virtually all of the people pushing for this incredibly potent Charter of Rights which would (and did) deliver more powerful judges than even in the US knew their desired instrument was in trouble. So they played up the ‘notwithstanding clause’ to the hilt. ‘This’, they assured all those more in favour of democratic decision-making, ‘would keep the last word with the elected branches’.

And as I thought at the time, and as has been borne out by history, the minute (make that the second) the Charter of Rights became part of Canadian law the very same people who pointed to it as a last-ditch protector of parliamentary sovereignty started jumping up and down and screaming at the very idea it might ever be used. Want to know how many times in the forty years since 1982 that the Canadian federal parliament has ever invoked s.33 to override the unelected judges? Zero. Zip. Zilch. This will shock you, I know, but it turns out that conservative governments – even those of Stephen Harper – are gutless and cowardly and simply will not stand up to the braying lawyerly and progressive classes who shout blue murder at the very thought mere politicians would gainsay unelected judges. Got that?

Now move here to Australia and the mooted (but yet to be detailed) proposal for a ‘Voice’ to Parliament. I’m against this on all sorts of grounds, but two big grounds are a) on the core liberal democratic principled ground that citizens should never be treated differently based on race (or due to genetic inheritance or immutable characteristics, however you wish to phrase it); and b) on the wholly empirical basis that our top judges on the High Court are already highly activist on constitutional law cases, almost always in favour of a left-wing, progressive worldview (see the cases of Love, of Roach, of Rowe, the list goes on), and that any – and I mean ‘any’ – sort of constitutional amendment that in any way mentions Aboriginal Australians will see those judges become even more activist. As Donald Rumsfeld said, there are known unknowns and unknown unknowns.  Putting any sort of ‘Voice’ package into our Constitution – which is one of the world’s oldest and most successful – will deliver both sorts of unknowns. I know it will drive judicial activism, just not the specifics of that activism. And there will also be other outcomes no one can predict. One hallmark of conservatism is not to want to gamble with something that is working well, and in the case of our Constitution is far, far better than the democratic average.

You can add to those two downsides this prediction which I take from what happened in Canada. The vast preponderance of today’s advocates for the ‘Voice’ who are now hyperventilating about how this new body will not have a veto and the last word will remain with Parliament will later on – should the Voice win a future s.128 referendum – jump up and down in apoplectic rage at the mere prospect that Parliament might override this Voice body’s views. I’ll put money on that. And in your heart, readers, do you think a supposedly right-of-centre future Coalition government will stand up to these bleating ‘you can’t gainsay this body’ progressives? Or not? Remember, no Canadian federal conservative government has done so in 40 years. Never once.

So, it’s illiberal; it will feed and encourage judicial activism; and the promise of a parliamentary ability to stand up to its demands, in practice, won’t be worth the paper the Voice is yet to be written on. Bad, worse and worse again.

All of this brings me to Peter Dutton and the now opposition Coalition team. If there has been a bigger fan of Mr. Dutton since the day Scott Morrison became leader till now I don’t know who it is. But let’s be honest.  On this matter of the ‘Voice’ Mr Dutton has so far been – what’s the phrase I’m looking for? – totally useless.

You might have forgiven his waffling, insipid interview with Andrew Bolt on the matter because he had yet to pick his shadow Cabinet. But now he has. And Mr Dutton has made Julian Leeser the shadow attorney-general and the shadow minister for Indigenous Australians. Really? Seriously? I knew Julian when he was a conference convenor for the Samuel Griffith Society. He’s a very nice and well-meaning man. That said, he’s no solid conservative. Sure, he’s no Black Hand ‘moderate’ either. But this is an MP who opposed the full repeal of the s.18C hate speech laws. I would not make any even half-hearted supporter of s.18C a shadow attorney-general come what may, Mr. Dutton. Just as bad, Mr. Leeser is a big supporter of some version or other of the ‘Voice’. In fact he’s a longstanding supporter and advocate. This is who you put in as shadow minister for indigenous affairs?

Let me be blunt. If the Dutton opposition does not come out against the ‘Voice’ then I will want Mr Dutton gone as leader. In my view it will lose him the party base and will do so overnight. To purloin terminology from the philosophy of psychiatry, ‘this is bonkers’. Even more bonkers, I’d say, is that even if the Libs under Dutton come out for the ‘Voice’ I think it will lose.

Here’s what Mr Dutton could do. Wait for the details to be laid down by Albo (don’t participate in any way). Then come out against the ‘Voice’ but make it a conscience matter for the partyroom. Each MP can decide as he or she sees fit. But along with that Mr Dutton should ensure that there will be real grassroots democracy in the Liberal party as well and that all preselections can be fought and decided at the local level. Let us see how pro-Voice MPs do in their own party constituency preselections.

Now lest anyone thinks I’m being too hard on Mr Leeser I would say that he would do a much better job appointing top judges than any of his Liberal predecessors going back to the dawn of this millennium. Read recent High Court cases, see how Liberal appointees have decided (with one, maybe two honourable exceptions), and then know that I am right that Julian would do vastly better. In fact, how could he do worse given past appointments that in principle seemed to boil down to ‘we’ll appoint the retiring judge’s wife’ or ‘let’s go with a former top judge’s daughter’?

But superiority in picking judges is not enough to have the man driving party policy on this crucial Voice matter that will affect Australia’s democracy and constitutional structure for, well, the indefinite future.

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