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February 14th 2012 print

James Allan

Giving meaning to words

Even though Anna Bligh’s infringement here is not threatening any core aspect of democracy, it shows a mindset that will play fast and loose with the rules.

I’m just back from a month overseas. As you would expect, Australia gets little attention abroad, save for our hosting one of the four top tennis tournaments each year.

There are, of course, occasional exceptions. Having a Prime Minister surrounded by a screaming crowd of people doing their best to imitate a mob is one of those exceptions, this episode garnering lots of air time in the news coverage where I was.

Two things that got little or no coverage abroad that I think matter are the way the Queensland election was called and the recommendations of the Prime Minister’s Expert Panel on Constitutional Recognition of Indigenous Australians.

Start with Anna Bligh’s election call. Apparently she announced the election date but at the same time said she wouldn’t go to the Governor for a few weeks and so in the meantime she would not consider herself or the government bound by the conventions surrounding a caretaker government.

When my wife told me this I was tempted not to believe her. I hadn’t ever heard of this anywhere in the Westminster world before, though quite possibly Ms. Bligh’s minions have dug up a precedent somewhere.

Here’s the oddity of this. If Ms. Bligh wanted to wait to call an election for a March vote, she could have. That was within the allowed time frame. And if she wanted to go earlier, she could do that too. But this have-your-cake-and-eat-it-too approach, of saying you’re going to but wanting to keep the prerogatives you have until later is plain out bizarre.

The thing about conventions is that they are rules that have grown up over time and their value is that they are self-enforced. You don’t get to go to the unelected judges to adjudicate on them. So if you find these conventions not to your liking, you are supposed to follow them anyway. It’s part of the game.

So even though the infringement here is not threatening any core aspect of democracy, it shows a mindset that will play fast and loose with the rules.

Worse than that, however, is the Prime Minister’s Expert Panel’s recommendations.  I don’t mean the minimalist ones of repealing s.25 (though this is moribund today) and s.51(xxvi). I could vote for their repeal.

I mean especially the recommendation to add a new s.116A, a no ‘discriminate on the grounds of race, colour or ethnic or national origin’ provision.

This is an awful idea. If it is put to the people in a s.128 referendum I hope it is defeated, indeed I predict it will be. And it will be defeated not because Australian voters are dumb or in need of re-education or racist in their bones. It should (and hopefully will) get defeated because it’s a thoroughly bad idea.

Why? Because no one knows how it will be interpreted. It’s a blank cheque to the judiciary.  So when one of the members of the Expert Panel assures us, as he did, that this s.116A provision is not intended as a bill of rights type provision, what he needs to realise is that the Expert Panel’s intentions – what they want the provision to mean – are irrelevant.

Let me be plain. Some of us, certainly me, might like to live in a world where Australia’s top judges in big constitutional cases interpret the words of our Constitution in the way they were originally intended to mean. I think that’s the least bad way to interpret our Constitution.

But in the Rowe case brought by GetUp! a couple years back and the prisoner voting case of Roach from 2007 our High Court , by majority, treated our Constitution as a ‘living tree’, as something whose meaning changes and evolves over time, and as these 7 unelected judges alone get to pronounce from time to time.

I have made plain in various places that this GetUp! view of constitutional interpretation is to my mind an appalling one. But you can’t deny it’s where we stand now.

So it is plain out naive for someone on the Expert Panel now to pretend that his or their intentions make the slightest bit of difference. Put in place a s.116A and our top judges may well turn it into a bill of rights type provision. Not today. Maybe not in a year or two.

But on the basis of present interpretive practices it is likely to happen. And the fact this ‘living tree’ interpretive approach is at core highly undemocratic, that it severs meaning from authors’ intentions and indeed from original understanding at the time of drafting and being voted on, doesn’t change that fact.

No one with a strong liking for democracy, for letting the numbers count decision-making, can support s.116A. It has to be turned down.

There are no free lunches in life. If our High Court wants to take liberties to reach what they think are preferable outcomes on prisoner voting or when the electoral rolls can close, that affects all sorts of things.