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http://www.theaustralian.news.com.au/common/story_page/0,5744,11498186^17301,00.html
DENNIS SHANAHAN
Courting an opponent to popular government
November 26, 2004
WHENEVER there is an abject failure by an Opposition - as there was with Mark Latham's Labor at the last election - there is a tendency for others to take up the cudgels against the Government.
When various groups or individuals decide that the Howard Government didn't "deserve" to win, that its mandate was not legitimate, that voters were tricked or just plain got it wrong, a guerilla war is carried out in the name of justice. More often than not, it is really waged in the name of just that they didn't win.
Alarmingly, the first suggestion after this election that the Government faces an alternative opposition-in-exile has come not from the gaggle of usual suspects, but from a member of the High Court. In a lecture in New Zealand last night, Justice Michael Kirby warned that "our constitutional arrangements may be under greater strain than was previously the case". "Judges often travel to the beat of a drum different from that heard by legislators and the executive. Their sights are, or should be, fixed on a different time frame -- one measured in decades or centuries, not responding to populist causes, wedge divisions or tabloid fury," he argued.
These are noble judicial sentiments except they were prefaced by a curious observation that when governments have a large majority and control of both houses of parliament, the judiciary has an even more important role in checking the progress of the legislature. Since when did the role of the High Court change in any way according to the size of the majority of the government of the day or the fact it controlled the Senate?
Are judges meant to adopt the role of the balance-of-power parties in the Senate? Would the role of the High Court in interpreting the Constitution and legislation be less important if Labor had won or if the Coalition did not control the Senate?
Kirby is saying that an elected government in Australia today has to be watched more closely by the High Court if it controls the Senate. After the 2001 election there were a number of people, particularly those seeking access to Australia for asylum-seekers, who adopted the view that Howard had used "wedge politics" and racism to win the election unfairly.
Journalists, civil rights campaigners, lawyers, the churches, unionists, academics and even some Liberal Party members took up the cudgels against Howard and his Government. Labor was also internally riven, but because of Kim Beazley's resignation as leader after his loss, the anger was aimed at Howard. After this election there has been less opportunity to claim that the electorate was tricked, that Labor was wedged or that race was used. The Coalition won on economic issues and Latham's failure to convince voters that he was ready to govern.
Labor, and Latham, are torturing themselves trying to find an excuse for such a devastating loss and are on the cusp of becoming irrelevant. Howard not only won with an increased majority but he also won -- from July 1 next year -- the narrowest control of the Senate. Since the election, Howard has gone out of his way to reassure people he will not abuse the Senate power and has almost avoided laying out an agenda for his fourth term. For a Prime Minister given a clear mandate for his fourth term Howard has walked on eggshells.
While Latham languishes, Kirby has treated us to his notions of how the High Court should behave in such circumstances. As part of a dissertation on deep-lying rights within the Constitution and the question of "sovereignty", the judge said: "Parliament tends to reflect, in a very general way, transient popular majorities." (Sure does.)
Then he said: "The sad experience of history, including recent history, is that parliaments, from time to time, overlook or even override the fundamental rights of minorities. In Australia, this has been done to those of minority religions, communists, refugees and others, including a minority I understand well, homosexual people."
Kirby says, correctly, that parliaments are not sovereign and are subject to the Constitution and the law. But he goes on to say: "Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important."
His point is underlined later by the observation that in Australia and New Zealand serious injustices to minorities are normally repaired before they become intolerable. "But not always."
He also argues that as the "willingness of the High Court of Australia to find rights implied in the language and structure of the Constitution recedes", along with judicial support for "deep-lying rights", calls for a bill of rights will grow.
Warning that "divisions may be more acute today than in the past" Kirby says these "are times when a vigilant and courageous judiciary is required as an occasional counterpoise to elected parliaments and ministries".
Again, these are fine sentiments on judicial independence and the role of the checks and balances in Australia. Yet, read with his observations on control of both houses of parliament, Kirby is going a step further in suggesting that denying the government Senate control is now one of the checks and balances and not just the Senate itself.
When that new check is removed, then the High Court has to act with greater vigilance according to Kirby's logic. He is suggesting that the relative strength of the Government should govern the court's behaviour. And, paradoxically, he's implying the greater the strength of a government mandate after a democratic election, the greater the court's vigilance should be.
This goes beyond judicial activism, pursuit of a bill of rights, the separation of powers and judicial differences over the deep-lying rights of the Constitution. Kirby's argument implies that a government with control of the Senate should face a more rigorous High Court. Who's respecting the sovereignty of the people now?
Dennis is hardly Janet Albrechtsen or Andrew Bolt so its a bit hard to label him some rabid right winger. Imagine if a high court judge came out and said Australia is far too generous to immigrants, that multiculturalism is a disgrace, that the refugee system was a rort and a joke etc etc. Their resignation would be demanded immediately by the chattering classes. This bloke though, continually speaks when he shouldnt. If he speaks out like this then he is fair game from conservative politicians. Now he has put his head above the parapet surely it wont be long before Abbot gives it a thoroughly good kicking.
DENNIS SHANAHAN
Courting an opponent to popular government
November 26, 2004
WHENEVER there is an abject failure by an Opposition - as there was with Mark Latham's Labor at the last election - there is a tendency for others to take up the cudgels against the Government.
When various groups or individuals decide that the Howard Government didn't "deserve" to win, that its mandate was not legitimate, that voters were tricked or just plain got it wrong, a guerilla war is carried out in the name of justice. More often than not, it is really waged in the name of just that they didn't win.
Alarmingly, the first suggestion after this election that the Government faces an alternative opposition-in-exile has come not from the gaggle of usual suspects, but from a member of the High Court. In a lecture in New Zealand last night, Justice Michael Kirby warned that "our constitutional arrangements may be under greater strain than was previously the case". "Judges often travel to the beat of a drum different from that heard by legislators and the executive. Their sights are, or should be, fixed on a different time frame -- one measured in decades or centuries, not responding to populist causes, wedge divisions or tabloid fury," he argued.
These are noble judicial sentiments except they were prefaced by a curious observation that when governments have a large majority and control of both houses of parliament, the judiciary has an even more important role in checking the progress of the legislature. Since when did the role of the High Court change in any way according to the size of the majority of the government of the day or the fact it controlled the Senate?
Are judges meant to adopt the role of the balance-of-power parties in the Senate? Would the role of the High Court in interpreting the Constitution and legislation be less important if Labor had won or if the Coalition did not control the Senate?
Kirby is saying that an elected government in Australia today has to be watched more closely by the High Court if it controls the Senate. After the 2001 election there were a number of people, particularly those seeking access to Australia for asylum-seekers, who adopted the view that Howard had used "wedge politics" and racism to win the election unfairly.
Journalists, civil rights campaigners, lawyers, the churches, unionists, academics and even some Liberal Party members took up the cudgels against Howard and his Government. Labor was also internally riven, but because of Kim Beazley's resignation as leader after his loss, the anger was aimed at Howard. After this election there has been less opportunity to claim that the electorate was tricked, that Labor was wedged or that race was used. The Coalition won on economic issues and Latham's failure to convince voters that he was ready to govern.
Labor, and Latham, are torturing themselves trying to find an excuse for such a devastating loss and are on the cusp of becoming irrelevant. Howard not only won with an increased majority but he also won -- from July 1 next year -- the narrowest control of the Senate. Since the election, Howard has gone out of his way to reassure people he will not abuse the Senate power and has almost avoided laying out an agenda for his fourth term. For a Prime Minister given a clear mandate for his fourth term Howard has walked on eggshells.
While Latham languishes, Kirby has treated us to his notions of how the High Court should behave in such circumstances. As part of a dissertation on deep-lying rights within the Constitution and the question of "sovereignty", the judge said: "Parliament tends to reflect, in a very general way, transient popular majorities." (Sure does.)
Then he said: "The sad experience of history, including recent history, is that parliaments, from time to time, overlook or even override the fundamental rights of minorities. In Australia, this has been done to those of minority religions, communists, refugees and others, including a minority I understand well, homosexual people."
Kirby says, correctly, that parliaments are not sovereign and are subject to the Constitution and the law. But he goes on to say: "Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important."
His point is underlined later by the observation that in Australia and New Zealand serious injustices to minorities are normally repaired before they become intolerable. "But not always."
He also argues that as the "willingness of the High Court of Australia to find rights implied in the language and structure of the Constitution recedes", along with judicial support for "deep-lying rights", calls for a bill of rights will grow.
Warning that "divisions may be more acute today than in the past" Kirby says these "are times when a vigilant and courageous judiciary is required as an occasional counterpoise to elected parliaments and ministries".
Again, these are fine sentiments on judicial independence and the role of the checks and balances in Australia. Yet, read with his observations on control of both houses of parliament, Kirby is going a step further in suggesting that denying the government Senate control is now one of the checks and balances and not just the Senate itself.
When that new check is removed, then the High Court has to act with greater vigilance according to Kirby's logic. He is suggesting that the relative strength of the Government should govern the court's behaviour. And, paradoxically, he's implying the greater the strength of a government mandate after a democratic election, the greater the court's vigilance should be.
This goes beyond judicial activism, pursuit of a bill of rights, the separation of powers and judicial differences over the deep-lying rights of the Constitution. Kirby's argument implies that a government with control of the Senate should face a more rigorous High Court. Who's respecting the sovereignty of the people now?
Dennis is hardly Janet Albrechtsen or Andrew Bolt so its a bit hard to label him some rabid right winger. Imagine if a high court judge came out and said Australia is far too generous to immigrants, that multiculturalism is a disgrace, that the refugee system was a rort and a joke etc etc. Their resignation would be demanded immediately by the chattering classes. This bloke though, continually speaks when he shouldnt. If he speaks out like this then he is fair game from conservative politicians. Now he has put his head above the parapet surely it wont be long before Abbot gives it a thoroughly good kicking.

