The parliamentary year has ended with a striking result from Newspoll: Labor leads 59-41, up from 55-45 last fortnight, with Kevin Rudd leading Malcolm Turnbull as preferred prime minister 66 per cent (up three) to 19 per cent (down two). Kevin Rudd’s approval rating of 70 per cent is one point shy of his previous best from April, while Malcolm Turnbull’s approval and disapproval have both gone five points in the wrong direction, to 47 per cent and 32 per cent (The Australian offers a graphic and a nifty preferred prime minister tracker showing figures back to early 2006). Nonetheless, the leadership ratings suggest voting intention would have been even worse for the Coalition if Brendan Nelson was still leader. Turnbull’s approval rating is still seven points higher than Nelson’s best result, and the 47 per cent gap on preferred prime minister is roughly equal to what Nelson managed when Rudd’s approval was in the mid-50s. Elsewhere:
• Essential Research also has Labor leading 59-41, up from 58-42 last week. Also featured are questions on the performance of Julie Bishop as Shadow Treasurer, the relative popularity of Julia Gillard and Julie Bishop and “global terrorism and international unrest”.
• The Australian Parliamentary Library has published a paper providing statistical details from every election since federation, along with a precis detailing the circumstances of each election.
• Sky News, Foxtel and Austar have announced that a public and political affairs television network called A-APAN, along the lines of the American C-SPAN, will be launched on January 20 next year. It will feature coverage of parliament and committee proceedings, industry meetings, and congressional and parliamentary coverage from the United States and the United Kingdom. It will be available on pay TV and digital free-to-air, the latter initially only in Sydney.
• Colin Barnett says the proposal for fixed terms in Western Australia will feature “a mechanism if there is some catastrophic behaviour of a government that you might be able to bring on a poll”. It will also provide for flexibility in the announcement of a date in either February or March, rather than fixing a precise date.
• Antony Green has weighed in on the recent criticism of New South Wales’ system of fixed four-year terms.
[“Parliament has legislated for x, but I find that law invalid”, not on the grounds that it is unconstitutional, but simply because he or she thinks it ought to be invalid.]
THIS is what I would consider an activist judge. Usually that term is just used by people who don’t believe in social progress.
[In a modern democratic state the only legitimate source of law and authority is the will of the people, expressed through their elected Parliament.]
But at an extreme, couldn’t this turn into mob rule?
What if a political party proposed that all other political parties be banned, and for some strange reason “the people” voted for this.
Should THAT be legal? Surely there are certain fundamentals to your political system that are can never be over ruled, because the are the things that the system assumes will always be in effect.
[a law can be invalid if it infringes an implied right in the constitution]
Of course. The law is then unconstitutional. That doesn’t contradict what I said.
You continue to beg the question.
If you want to say “The generally held view is…” then you won’t get an argument from me.
However if you wish to say that “It is an unarguable fact that…” then you are wrong. Robin Cooke – who did know something about the law – held otherwise.
No one’s mentioned unemployment?
Up very slightly to 4.4%.
Heard economic commentator Peter Switzer say earlier this week that he’d talked to a number of CEOs who’d told him they were laying off/not replacing staff even though business was still very good, so many of the additional 0.1% may have got the boot through fear rather than economic necessity. However, I see that it was WA and the NT that took the hit. so it all depends on which sectors were affected.
[What if a political party proposed that all other political parties be banned… Surely there are certain fundamentals to your political system that are can never be over ruled]
I’m in favour of a bill of rights. At present we don’t have one, but I imagine the High Court would find an “implied right” in the Constitution and overturn such a law. But ultimately the sovereignty of the people must be respected.
[a number of CEOs who’d told him they were laying off/not replacing staff even though business was still very good,]
So people are getting sacked as an insurance policy in case things actually do get bad?
Great… 😐
Well, the argument then regresses as to who considers that reading implied rights derived from deep common law is a “firm foundation” or not.
(In the spoeech I linked Kirby, who disagrees with Cooke’s idea discusses ways that courts can do such reading.)
What question am I begging?
If the will of the people is not the only legitimate source of law and authority in a democratic state, what is?
[Of course. The law is then unconstitutional. That doesn’t contradict what I said.]
So I’m just going to clarify what I was saying in my previous posts.
The Fed Court judges said that certain parts of the Migration Act were invalid because they were unconstitutional. This was because they tried to oust jurisdiction from a Chapter III court. This “ousting of jurisdiction” is an implied right in the Constitution that has been elaborated to such an extent that the Parliament (effectively) can’t restrict the right to judicial review for anyone in Australia. Of course, if there had been less activist judges on the Federal Court, it is likely that such an extension of the Chapter III implied right would not have happened.
[Surely there are certain fundamentals to your political system that are can never be over ruled, because the are the things that the system assumes will always be in effect.]
You could potentially get around some of these extreme cases by citing the UK Bill of Rights (the one from the 17th century) as well as the Magna Carta and other parts of pre-federation UK constitutional law. These all formed part of the Australian common law when it was established, so could act as a restriction on the actions of Parliament…
Swing Lowe, the people always have the power to overrule the courts. They can elect candidates to Parliament pledged to alter the Constitution to overturn the decision of the court, pass a bill to so, and then do so at referendum.
Have you read anything I have written?
I have cited legal theorists, in particular a former Supreme Court Judge of New Zealand, who argued that the authority of “the will of the people, expressed through their elected Parliament” is limited by deep rights inherited from common law traditions.
[deep rights inherited from common law traditions]
“Common law traditions” = “rulings by long-dead English judges”. This you want to pit against the will of the Australian people?
[If the will of the people is not the only legitimate source of law and authority in a democratic state, what is?]
But aren’t there lots of things in our system that don’t directly come from “the people”?
The Common law
The Constitution
Conventions (like the office of Prime Minister, it isn’t written down anywhere)
International Treaties and Declarations of Rights
[Swing Lowe, the people always have the power to overrule the courts. They can elect candidates to Parliament pledged to alter the Constitution to overturn the decision of the court, pass a bill to so, and then do so at referendum.]
Theoretically, that’s true. Practically, it’s a different question.
Why?
1. It’s damn hard to change the Constitution. We all know the stats (8 out of 44 amendments have passed in 107 years). The last issue of this sort was the banning of the Communist Party in the 1950s. Menzies passed legislating banning it, the High Court rejected it and then the referendum allowing the government the power to ban political organisations was (narrowly) rejected by the people.
2. No matter what the legislation does, it always amazes me how the courts can find an implied right or “lack of explicit intention” in the legislation to stop it working in the way the government originally envisaged. That’s not a bad thing IMHO – it acts as a (sometimes) effective break from mob rule and wedge politics…
[This you want to pit against the will of the Australian people?]
It already happens. And more often than you think, the dead English judges win.
As long as the parliament is properly elected and exercising its powers in a constitutional manner there is really no issue and I’d doubt anyone would really object to that.
Adam,
Don’t forget that Billy Hughes served 7 years in the NSW Parliament as well. He was elected in July 1894, his first term coinciding with the last term of Sir Henry Parkes. Like quite a few NSW state MPs elected to the House in 1901, he served as a state and federal MP from March to May 1901.
Martin, I am reading Kirby’s article in between posting. Much as I respect Kirby, it seems to me so far to be a lot of mystical, undemocratic, reactionary bunk. “Fundamental laws that lie beyond the reach of the sovereign people”? What is this, the middle ages?
[Swing Lowe, the people always have the power to overrule the courts. They can elect candidates to Parliament pledged to alter the Constitution to overturn the decision of the court, pass a bill to so, and then do so at referendum.]
This sounds like a good argument for why we need a Bill of Rights that can’t ever be revoked!
But could parliament pass absurd laws. Like one saying that court decisions only come into effect 99 years after they were made?
No Antony, I haven’t fogotten that, but we discussing terms in the House of Reps. Bob Debus was only elected to the Reps last year, but if fact he is one of the longest-serving MPs if we include his state career, which goes back to 1981.
Hahaha look at the Tories jeering at Brown:
http://au.youtube.com/watch?v=5stftd5qv3M
[“Fundamental laws that lie beyond the reach of the sovereign people”? What is this, the middle ages?]
It sounds like he is referring to Human Rights, you know, things we are born with and aren’t simply laws defined by parliaments.
[But could parliament pass absurd laws.]
Yes, and a giant asteroid could land on Parliament House. It’s not possible to safeguard against everything which could conceivably happen, only things which there is some reasonable likelihood of happening.
What is and is not a “human right” is determined by the popular will, either formally or informally, and they change radically over time. Unless you believe in a God who gives us our laws, you can’t posit laws that exist independent of human will.
[It sounds like he is referring to Human Rights, you know, things we are born with and aren’t simply laws defined by parliaments.]
Some would argue that the types, content and extent of rights are so complex and contestable the best forum to debate rights is the parliament.
Personally I’ve got no problem having a bill or charter of rights but would rather a legislative one rather than an entrenched one.
[Hahaha look at the Tories jeering at Brown]
Classic stuff 😀
Let them laugh. Supergordon will fix them up soon enough.
Kirby is describing Cookes opinions – he doesn’t actually agree with them.
I’m not even saying that I necessarily agree with them. I am merely pointing out that their is a repsectable, if minority, opinion which holds that the authority of parliament is not absolute, even before taking into account the express provisions of the constitution.
But in any case this started off as just one example of why the idea that a BIll of Rights is undemocratic is nonsense. As we’ve covered you don’t need to hold nearly so extreme a viewpoint to agree with that.
does Ruddock get any benefits for having served 35 years?
Doesn’t the ALP have a rule that forces MPs and Senators to retire at 65?
[does Ruddock get any benefits for having served 35 years?]
A new coffin to sleep in
Adam #1009
[What question am I begging?
If the will of the people is not the only legitimate source of law and authority in a democratic state, what is?]
What about when the will of the people (i.e. the majority of the people) clashes with a right, real or perceived, of minorities?
So, if the majority of Australians decide holocaust deniers should go to jail, are you OK with that?
What if the majority decides that an internet filter is a great idea, even is it slows the internet to a crawl? Everyone happy with that?
There has been a lot of defending of rights on PB lately, but suddenly the will of the majority has precedence.
I seem to have some recollection that one of the strengths of democracy is supposed to be that it has mechanisms (i.e. separation of powers) that protects minority views against the will of the majority.
[What is and is not a “human right” is determined by the popular will, ]
This makes no sense. That means those Islamic governments you hate can abuse (what I consider) the inherent rights of women, so long as a majority of the people in their countries want to do so.
I think there are some rights that we are just born with, which is why they are universal. Governments that don’t protect such rights are inherently corrupt.
[and they change radically over time]
I don’t think this is true. Slavery was ALWAYS inherently wrong, it is just that some governments chose to ignore that fact.
This is very close to a relativist argument, rights are whatever different people say they are. I don’t think that is liberal or democratic.
[Unless you believe in a God who gives us our laws, you can’t posit laws that exist independent of human will.]
Oh come on! There are numerous strands of Liberalism that rationalism laws without proposing they originate from a divine source.
I don’t understand how your “rights are determined by people” can fit with your support of a League of Democracies, which all ASSUME that humans posses certain rights simply because they were born with them, and aren’t awarded them via the State. If the State awards them, then they could be revoked at any moment.
[Some would argue that the types, content and extent of rights are so complex and contestable the best forum to debate rights is the parliament.]
This is scary. This means if you just happen to be born in a country where the Government is run by thugs, then you don’t have any rights.
I don’t agree with this. We have certain fundamental rights simply cos we are born morally equal. Surely this is a fundamental that the principles “equality before the law” and “natural justice” are based on. If we assume that some people are born inferior to others, then why would we think everyone should be treated the same before the law?
I think there must be a connection of some sort between human rights, and basic liberal democratic principles. You can’t have one without the other.
In Australia, the will of the Australian people is sovereign. There can be no other basis for the functioning of a modern democratic state. The Australian people have *chosen* to express that will through an elected Parliament, which legislates within the limits prescribed by the Constitution, and subject to judicial review of the constitutionality of its acts. Its power is further diluted by the federal system, which divides power between the Commonwealth and the states, in accordance with the saying at Proverbs 11:14 – “In the multitude of counsellors there is safety.” But all these things are just refinements and safeguards built around the central principle of popular sovereignty. Once we have grown up enough to say goodbye to God and the King as sources of authority, we are left with no other principle.
The cricket this summer should provide some disconfirmatory evidence for another of Adam’s pop theories. I confidently expect that the MGB will go home as one of the South African players most liked by Australian crowds. (Admittedly that may be damning with faint praise.)
[What about when the will of the people (i.e. the majority of the people) clashes with a right, real or perceived, of minorities?]
And of course this is a tension that has always existed in democracies. Democracy can either mean “the voice of the people” or “the will of the mob”. Democracies have always protected minority views as well as majority opinion. Simply doing whatever the majority wants is majoritarianism, and isn’t necessarily democratic.
I mean, wouldn’t we have capital punishment still if governments just implemented the majority will?
[Slavery was ALWAYS inherently wrong]
A good example. No-one, literally *no-one*, in Ancient Greece thought this was so. Were they ignorant, stupid, barbaric, reactionary? No, they juist operated by a different system of values. You need to acknowledge that most of what we now consider “obviously right” in terms of human rights has been invented since the enlightenment.
[I confidently expect that the MGB will go home as one of the South African players most liked by Australian crowds.]
Maybe so, but “go home” is the operative phrase. It’s the ones that don’t go home that we don’t like.
Adam, I might as well say “The Australian people have *chosen* to ensure their will is respected through judicial restraint of executive power” etc etc.
You are really just restating your opinion. And it’s a perfectly fine opinion and one in the majority. But you really aren’t providing any additional argumentation.
[Maybe so, but “go home” is the operative phrase. It’s the ones that don’t go home that we don’t like.]
Hahahahahaha
[I might as well say “The Australian people have *chosen* to ensure their will is respected through judicial restraint of executive power” ]
But you’d be wrong. When did the people choose to do that? Judges have set themselves up to do this, because of political views they hold. Sometimes I agree with them and sometimes I don’t, but they can’t claim any popular mandate for what they do.
[Once we have grown up enough to say goodbye to God and the King as sources of authority, we are left with no other principle.]
But the Crown remains the primary source of authority, that’s why bills require Royal assent to become acts, and why they can be disallowed by the Monarch.
If Australia was a Republic, THEN the populace would be sovereign, that is the unifying feature of all republics.
And when did the people choose to vest their entire popular will in the form of a parliament? I can’t remember ever being asked that in my life, not even in an election campaign.
Either way you are describing a legal fiction.
Dario 1031,
[
Dario
Posted Thursday, December 11, 2008 at 1:47 pm | Permalink
does Ruddock get any benefits for having served 35 years?
A new coffin to sleep in
]
Best line of the day, if not the week 😀 ……. good on you 🙂
[But the Crown remains the primary source of authority]
Dear me, constitutional law 101: the Crown in Australia is bound by and subject to the Constitution. When Queen Victoria signed the Commonwealth of Australia Constitution Act, she renounced the prerogatives of the Crown in regard to Australia. Elizabeth II is only Australia’s head of state because the Constitution says she is, not by divine right as is the case in the UK.
[And when did the people choose to vest their entire popular will in the form of a parliament?]
By referendums in the 1890s.
[A good example. No-one, literally *no-one*, in Ancient Greece thought this was so.]
I’m not talking about people’s opinions. I was saying from basic principles, if you think all people are born equal, then you can’t believe in slavery.
In order to think slavery was OK, you first had to have a theory that some people were morally inferior to others. Any government that legislated to say that some people are morally inferior to others couldn’t be a liberal / democratic government.
Therefore, there is a connection to a belief in human rights that people are born with, and democratic government. So democracy isn’t sustained simply because people vote for democratic politicians, it is sustained because our system of government is an outcome of a deeper philosophical belief in universal human rights.
[You need to acknowledge that most of what we now consider “obviously right” in terms of human rights has been invented since the enlightenment.]
Of course it was DEFINED (I wouldn’t say invented) since the enlightenment, because it was that revolution that first proposed that humans have INHERENT rights that they are born with, that they don’t earn, or have conferred on them by the State.
It was also the start of the revolution that ultimately revealed that human moral worth is not divinely inspired. Rights are things we are born with, we don’t acquire them from Governments, the State or even God, we posses them simply because we exist as distinct individuals of the species Homo Sapien.
[if you think all people are born equal, then you can’t believe in slavery.]
Of course, but how long have people believed all people are born equal? Only fairly recently, and only in some parts of the world. Nearly everyone believed in inherent inequalities between races until the 19th century, and between the genders even more recently.
[Dear me, constitutional law 101: the Crown in Australia is bound by and subject to the Constitution. ]
A constitution that allows the Monarch to disallow laws, and requires Royal assent to all bills before they become law… Great!
[When Queen Victoria signed the Commonwealth of Australia Constitution Act, she renounced the prerogatives of the Crown in regard to Australia.]
But the reserve powers that allow him or her to sack the Prime Minister!
[Elizabeth II is only Australia’s head of state because the Constitution says she is, not by divine right as is the case in the UK.]
I don’t think it makes any difference. If there is no good reason other than “because the constitution says it is” why our Head of State is the Queen, then I can’t see how it follows that sovereignty is vested in the Australian people.
Anyway, fun though this is, I must go and do some work now. *poof*