Unread postby lazerzap » Thu Jan 02, 2014 8:35 pm

The framers (of the Constitution) did not seek to establish a Constitution that would set the ground rules for all time but a document that would evolve. The Constitution can be reinterpreted by the High Court, and more important, amended by the Australian people. Where there has been significant updating, this has been done by the judges of the High Court. They have generally been willing to reinterpret the Constitution to meet their perceptions of the needs of the Australian society. This is distinctly second-best solution to that of Australians undertaking the task. It risks further alienation of the people from their government by suggesting that the task of renewal is not their responsibility but that of the High Court.[95] On the issue of 'precedent', Emeritus Professor Leslie Zines, writes:[96]

'The High Court has never regarded itself as bound by its own decisions and in the area of constitutional law the principle of stare decisis is regarded as having somewhat less force than in other areas of the law, for the obvious reason that parliament cannot rectify the consequences of a decision of the High Court on the Constitution.

The High Court has on a number of occasions overruled its earlier decisions in constitutional law.'
Whatever room there may be for debate about the meaning of what the framers of the Constitution said, either expressly or by implication, and subject to the possibility of constitutional change, [the High Court is] bound by their choice not to say certain things. We can interpret what they provided, and we can make implications from what they said, where that is appropriate. But if they remained silent on a matter, and legitimate techniques of interpretation cannot fill the gap they left, then we are bound by their silence.[97]

The 2000 US presidential election has highlighted the possibility of the stacking of the courts. That the (US) Supreme Court has been the object of political stacking by both sides has been obvious for years. In Australia, we are rapidly going down the path to similar politicisation of the courts. The High Court has obviously been highly political for years, no more so that when Chief Justice Sir Anthony Mason, after his Pauline conversion to activism, led it into all kinds of capers. But Mason was never partisan, even though quite a few judges have been and are. One classic case was Justice Eddie McTiernan who held onto his place on the High Court into advanced senility so as to ensure that he was succeeded by a Labor appointment.[98] To be sure, our system occasionally produces a judge who is non-conformist to the point of quirkiness, or anti-government to the point of anarchy.[99]

No one can predict the make-up of the Australian Parliaments in 2050 and, noting that the Justices of the High Court are appointed by the Governor-General-in-Council[100] on the advice of the Government, nor can anyone predict the make-up of the High Court either. Accordingly, no one is able to state with absolute confidence as to whether or not that, some time in the future, outside and unconstitutional influences on these institutions could take place. Any possibility of misusing powers under s 15 (1) of the Australia Acts should have cause for concern. Even the remote possibility of circumventing s128 (of the Constitution) should be closed off.[101] Could our current constitutional arrangements allow us to tread the pathway to the slippery slope of anarchy in the future?
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