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August 24th 2011 print

James Allan

No free lunch in life

Our High Court in recent years has decided a couple of cases in a way I think is awful. In both cases our top judges struck down legislation passed by the elected Parliament.


There seems to be an enduring desire to think the world we limited biological creatures inhabit can be one where some particular option is all good and no bad. Think of it as the ‘I want a free lunch’ syndrome.


Let me give you four examples of this sort of thinking. Start in the United States. Plenty of people in the last few weeks have been condemning the American political system for the way it seemed to be gridlocked and unable to raise the debt ceiling legislation. But stop for a moment and consider that that was precisely how the US system was designed.

The American system was specifically designed to be a ‘checks and balances’ system. Part of that system includes a very strong upper legislative house, the Senate, to balance and constrain the lower house. That was unusual back in the late eighteenth century, and still is rather unusual. Sure, Australia copied that feature from the US, but Canada did not, New Zealand did not, and the UK lacks it too.

But if you have a system where the two legislative houses can check and balance each other, in order to make it harder to enact bad legislation, then you also have it in place when you might need to pass legislation many think imperative.

There’s no free lunch. If it checks and balances when you don’t like the mooted legislation then it will be in place to check it when you do like it.

Here’s another example. Our High Court in recent years has decided a couple of cases in a way I think is awful. These are the two voting cases of Roach and Rowe. The former had to do with which prisoners could vote and the latter to do with when the electoral rolls can close.

In both cases our top judges struck down legislation passed by the elected Parliament. In both cases the approach to how our Constitution was interpreted involved a heavy dollop of reliance on the very suspect implied rights cases and on a view that the meaning of our Constitution can alter over time, as discerned (you guessed it) by our top judges. They even gave themselves a power to undertake proportionality analyses.

Now here’s the thing. On the level of my personal druthers, I liked the ultimate outcomes in both these cases. Were I a legislator I’d have opted for both those outcomes. But, and it’s a really big but, as a judge whose job it is to give our Constitution it’s most plausible meaning, these are two of the worst, least convincing judgments I’ve read in a long time. The judges are not there to read in their personal druthers.

And here’s another thing. People are presently mooting the possibility of a new preamble to our Constitution to recognise aboriginal people. But it seems to me that no form of words can ever be devised to protect us from future judges who travel down the interpretive path of these Roach and Rowe cases. Once words are interpreted in a way almost wholly disconnected from how they were originally intended and understood, why would anyone think new words added to a Constitution today would be any more constraining on future top judges?

So I’m pretty sure I’m going to be opposed, and vote against, any new mooted preamble and do so because our top judges today, or a majority of them, have adopted an approach to interpreting the Constitution that makes what people at the time of adoption think the words mean more or less irrelevant. As I said, there’s no free lunch. Doing that has costs as well as benefits.

Here’s another example. Say you live in a district or constituency with a candidate who is running for office as an independent. You look around and calculate that your one MP won’t affect the good, solid benefits of majoritarian democracy. One of the two big parties will still win a majority and you’ll get stable government. So you can afford to vote for a colourful independent. He may even help bring home a bit of bacon whichever one of the two parties wins a majority.

By now you see where this is going. In fact all the people in Mssrs Windsor’s and Oakeshott’s districts can say it out loud with me. ‘There’s no free lunch.’  Once every half century or so you’ll have miscalculated and your fun little punt on an independent candidate might end up empowering some free spirit (I describe them as politely as the facts allow) to choose the government and have a huge say in how the whole country is governed.

Oops! But you can’t now complain. As we’ve seen, all options in life come with potential costs as well as benefits. You pay your money and you take your chances.

Which brings us to my last example of the free lunch syndrome. It involves poor Ms Gillard. If I just opt to give the Greens all sorts of things they want I’ll get back into government and then I’ll have three years to make people forget I did things like, well, lied to their faces. Still, if I just focus on the benefits of doing that maybe the downsides, the costs, will magically disappear.

Alas, I’m afraid not. All options and choices come with potential downsides and costs as well as potential upsides and benefits. If anyone in Australia today knows there are no free lunches, it is surely our current Prime Minister.