Bennelong Papers

A Playground for Lawyers and Activist Judges

Prime Minister Morrison’s announcement of a change to the wording of the National Anthem, urged on him at the behest of various Aboriginal activists and the ‘wokeistas’ of both sides of politics, has been met, by the target audience with an entirely predictable yawn.  Labor MP Linda Burney, for example, has told ABC News that what she really wants is a ‘constitutionally enshrined Voice’.  She is not alone.

Chris Kenny, a journalist whom I admire more than almost any other, has written recently in The Australian,  concerning the proposed Voice to Parliament:

Former prime minister Tony Abbott — a leading opponent of the Voice, to be sure — neatly argues that recognition of Indigenous Australians would not alter the constitution so much as complete it. This is true because the Constitution brought together six groups — the peoples of six colonies — and the people it overlooked as partners or participants were the original inhabitants.

There are two things questionable about this statement, one of them quite startling.  Firstly, Abbott’s well-meaning claim that recognition of Indigenous Australians in the Constitution would not alter it is disingenuous at best. By its very nature it will alter the Constitution but will that alteration be benign, as Abbott would have you believe?  Even the suggestion that the statement of recognition form part of the Constitution’s preamble, rather than the body of the Constitution, as was proposed by John Howard in 1999, is fraught.  There is a school of eminent legal thought that even a mention in the preamble confers some degree of constitutional force. 

Former Chief Justice, Sir Harry Gibbs, in ‘A Preamble: The Issues’ published in 1999, opined:

A reference in a preamble to a matter will make evidence of that matter admissible.  Recitals in a preamble are prima facie evidence of the facts recited.  It would be arguable that these rules were not excluded by a provision that the Preamble has no legal force…

[A preamble] could significantly affect ministers and other executive officers in the exercise of their discretionary powers … In addition, there can be no doubt that reliance could be placed on the words of the Preamble by interested groups seeking, for example, to establish Aboriginal rights … The preamble could form the basis of claims for compensation or of arguments for political change.

It is odd that Sir Harry referred to ministers and executive officers – who, when it comes to acceding to demands from special interest groups that could be very unpopular with the majority, could be expected to defer to their own political survival – but did not mention judges.  Judges, are secure in their tenure, and, given recent events, are quite likely to find imaginative interpretations of the Constitution to advance a particular ideological position, regardless of how ill it might be received by the general public.

The second point with which I take issue is Kenny’s justification for supporting Tony Abbott’s statement i.e. that Indigenous Australians should have been a seventh partner in the Federation.  Since the Constitution is essentially a prosaic document – a power-sharing contract, if you like – if this were the acknowledged basis for including Indigenous Australians in the Constitution it would necessarily imply that some form of political power resides with them.  It would give them the same political status as the six States.  Even if the amendment were not written in those specific terms, if Kenny’s argument formed part of the YES case, that would provide ample and powerful ammunition for an activist High Court to concede political power to Indigenous Australians – power the vast majority of Australians never before envisaged – on the basis that this is what the Australian public really intended when they voted for the amendment.  This is an alarming prospect.

Is that likely?  Extremely so, I would say.  While generally accepted that our High Court is not as activist as the US Supreme Court, there are examples where, arguably, it has over-reached. 

Let’s start with the 1992 Mabo decision.  It may not be widely understood that the High Court did not discover Native Title in the Constitution, which would make it unassailable.  It discovered it in the Common Law.  Keith Windschuttle observes in The Breakup of Australia that with the Mabo decision the High Court

effectively, reversed more than 150 years of previous court deliberations to find that native title or Aboriginal ownership of the land was part of the Common Law of Australia. 

Sir Harry Gibbs (left), by then retired, described the Mabo decision as ‘judicial activism’.   To be fair, that is one man’s opinion, but Gibbs also claimed the decision was based, at least in part, on what some of the judges saw as contemporary values.  If we accept that as true, it would be beyond the remit of what most thinking citizens would be prepared to concede to judges.  Nonetheless, whatever the legal arguments, Native Title is now firmly embedded in our governance and will never be reversed.  What is interesting, however, is that it seems to me that it need not have been so. The Mabo decision included a provision that ‘native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest and consecutive’. Common law can be superseded by statute law and, had there been a more hard-nosed government in power in 1992, it could have legislated native title out of existence.  But it didn’t. Instead, it codified the High Court decision in the Native Title Act of 1993.

Even John Howard did not attempt to overturn Mabo but, in 1996, legislated merely to amend the 1993 Act to protect the interests of leaseholders.  So much for the Left’s oft-propagated insistence that Australia is an essentially racist country.  Paul Keating’s legislation of the Mabo decision was a magnanimous act (although I doubt Keating would see it that way; he would have believed we owed it to Indigenous people).   But it has now fuelled the demand for more and more, spawning the specious claim that native title could not have existed without some form of native sovereignty, despite the explicit insistence of the Mabo High Court that it did not.   In hindsight, it might have been better had we been blessed with that hypothetical hard-nosed government in 1992.

Thoms v The Commonweath

In February 2020, the High Court, by a majority of four to three (the Chief Justice among the dissenting view), ruled that, persons not being Australian citizens but who have sufficient connection to traditional Indigenous societies cannot be treated as aliens for the purposes of Section 51 (xix).  (Brendan Thoms was born in New Zealand to a part-Aboriginal parent.  He was in Australia on a visa when imprisoned for a crime.  The government intended to deport him on character grounds.)   This judgement is grounded in the existence of native title.  That this decision is contentious is evidenced by the fact that three of the seven Justices disagreed strongly with the majority.  In essence, the majority created a new class of non-citizens who nonetheless enjoy all the rights of every other citizen.  To quote the Guardian:

In separate judgments, justices Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled that the tripartite test of biological descent, self-identification and recognition of indigeneity by a traditional group – established by the landmark Mabo native title cases – can put Indigenous Australians beyond the reach of the aliens power in the constitution.

In doing so, the majority recognised a new category of “belonger” – somebody who is neither an alien nor a citizen – who owe allegiance to and are owed protection by the crown.

 On the other hand, Chief Justice Susan Keifel is reported in The Australian thus:

Chief Justice Susan Kiefel said it was “erroneous” to apply the connection to land required in native title cases to an “entirely different area of the law”.

She differed with the majority in stating that a mechanism, by which Aboriginal communities would have the power to determine when normal migration laws will apply, “would be to attribute to the group the kind of sovereignty which was implicitly rejected by (the Mabo decision)”.

I am not a constitutional lawyer, but this judgement strikes me as perverse.  In this case, although the decision derives from common law (via Mabo), it is not open for the government to legislate it away because the government cannot change the Constitution by legislating the meaning of its terms, such as ‘alien’.  Only the courts can do this, apparently.  Although the legislative intention of the government in this case has been thwarted, that is not, per se, of much consequence since it is unlikely that many more instances of Aboriginal non-citizens needing deportation will arise.  However, it sets a dangerous precedent for the discovery of other rights that distinguish Indigenous Australians from all others.  Who knows what can be conjured out of such a nebulous concept as ‘attachment to the land’?

Given what the High Court has already achieved simply by recourse to common law, it frightens me to think what it could do, given a toehold in the Constitution. The peril is even more pronounced when you factor in a plethora of international agreements to which we are signatories – such as the Declaration on the Rights of Indigenous Peoples.


George Pell

My final example of judicial adventurism (for want of a better word) is the case of Cardinal Pell, in which two senior judges, Victorian Chief Justice Anne Ferguson and President of the Victorian Court of Appeal Chris Maxwell, created legal history by reversing the burden of proof in a criminal case, effectively convicting Pell because he had failed to prove the impossibility of the allegations against him!

Most Quadrant readers will be well aware of the general outline of this scandal but the full extent of the bizarre notion of jurisprudence exercised by this pair can best be appreciated by reading Keith Windschuttle’s new book The Persecution of George Pell. (which can be ordered here). Admittedly, this case had nothing to do with the Constitution, but either of these two are only one step away from the High Court. And the frightening thing is that, despite the humiliation of being reversed 7-0 by the High Court – not on an obscure point of law, but on one of the fundamental principles of our justice system – and the fact that their Appeals ruling cost Cardinal Pell more than 400 days in prison, much of it in solitary confinement, neither has seen fit to resign.  So both, despite the shortcomings of legal minds evident in their opinions, are still technically available for elevation to the High Court.  How many of similar disposition are waiting in the wings?

In his Australian piece, Kenny goes on to say:

There is a symbolic sense to this, but it rings true in the practical as well. Given the widely endorsed reform of 1967, surely the provision for a “voice” under the constitution would complete the document in a far more meaningful and useful way. Still, constitutional enshrinement of a voice is off the table for now; Scott Morrison says it will not be considered.

It staggers me that even someone as astute as Chris Kenny cannot see the danger in putting even symbolic amendments into the Constitution.  In fact, in some respects, symbolic statements are more dangerous than explicit legal provisions because they provide ample opportunity for imaginative interpretation.  Once something is in the Constitution, the High Court can interpret it anyway it likes, and its decision will then be beyond the reach of Parliament i.e. the elected representatives of the people.

As to the Voice itself, the idea that a legislated body would pose no risks is naïve to say the least.  Special interest groups, such as particular industries, establish bodies to represent their collective interests to Parliament.  These are not legislated.  What is to stop Indigenous Australians forming their own lobby group, their own voice to Parliament, based on a preferred model that comes out of the advisory group of which Chris Kenny is a member? 

There are a number of valid reasons for legislation eg, to allow the Voice to be publicly funded and to ensure proper governance in terms of representation on the body.  My understanding is that one of the provisions is that the advice provided should not be binding on the government.   On the face of it, this should not pose a problem but, at the very least, there will be a moral force behind the advice (particularly if members of the body are freely elected and accountable to their constituents), that could inhibit government action where the advice differs markedly from government policy. Why legislate such a body without some onus on government to heed its advice.  What, for example, would become of such actions as John Howard’s ‘intervention’, prompted by the revelation of shocking child abuse in remote Northern territory communities, or the cashless debit card?  Both of these initiatives have been strongly supported by those closest to the problem, such as Jacinta Price, but vocally opposed by those far away and for whom political grandstanding is their stock in trade.

Kenny talks about combining symbolism with practicality.  It is hard to see how enshrining the Voice would engender its advice any more cogent, so the practicality argument doesn’t wash.  And as I observed earlier, symbolism in the Constitution is a dangerous thing, particularly as this provision could not even be confined to the Preamble.

In 1967, the vast majority of Australians, enthusiastically supported by the Indigenous population, gave the Commonwealth the power to make laws in respect of Aboriginal people.  They did not do this because they saw them as First Nations people deserving of special rights. They did it because they recognised that Aboriginal people could not, through their own agency, lift themselves out of the Third World conditions in which many were living. Despite a few encouraging exceptions, disappointingly that is still the case.  Activists will say it shows the paternalistic model has failed and we should allow Indigenous people to determine their own future – that communities should devise the solutions and government simply fund them.  That sounds like wishful thinking to me, not to mention throwing good money after bad.

I do accept that, in theory, advice from local communities could provide useful input as to how a program could be best implemented at a local level or modified to gain buy-in from the community involved.  But having read Alistair Crooks’ illuminating Quadrant essay, I am not at all confident the advice from this proposed ‘august’ body will be either as robust or of such granularity as would be needed for purpose.

It is a reasonable position to be open to persuasion on the question of a legislated Voice, depending upon the model proposed. But it is beyond the pale to support a trial run for a Constitutionally enshrined Voice. The pitfalls would be many, the benefits few — if any at all.

Peter O’Brien’s Bitter Harvest can be ordered here

7 thoughts on “A Playground for Lawyers and Activist Judges

  • Tony Tea says:

    Abbott’s “would not alter the constitution” contains trace elements of why do it then?

  • Peter Smith says:

    A perpetual problem. It has nothing to do with special recognition of indigenous people. I am quite happy to do that. They deserve recognition. All indigenous people do. The problem is that Aboriginal people in remote communities and some within mainstream communities are disadvantaged because they can’t seem to compete. In remote communities this is a geographical issue. Across the board, it might be a cultural issue. It might be an issue which dares not speak its name: intellectual acumen. It doesn’t matter market capitalism offers solutions. Unfortunately, governments’ rules and regulations, including safety nets and minimum wage laws, get in the way. Thus, there are no solutions. Once we realise that there are no solutions, we might have some chance at least of finding our way to finding one. Doing what we’ve done before isn’t one.

  • Andrewurban says:

    White Australia has long been sorry, in every possible way, for the then colony’s wrongs, even wrongs that may not have seemed so at the time, even those wrongs that were committed with best intentions. In hindsight, we are all very sorry and have said so publicly, sincerely. Almost daily, it would seem.
    So much apology, so little response.
    Where was the day that marked that vital, cleansing response to ‘sorry’, the sign that the sorry was heard and accepted, that those wrongs, while never forgotten, would now be laid to rest and ‘forgiven’? And where is the Aboriginal and Torres Strait Islander who could articulate it on behalf of all indigenous people? Indeed, would they all consent to it? The failure to close this wound is the ever-bleeding injury that continues to cause all Australians pain. There can be no healing until this is addressed and the wound properly dressed.
    Relentless calls for recognition and a separately identified group to have a voice in policy making are unhelpful bandages for this wound; recognition has been ongoing for decades and policies are now made for all Australians as one nation, as one community. There are no corners of society, government, the law or institutions where Aborigines are discriminated AGAINST. There is no greater social taboo than to be perceived as insensitive to Aboriginal culture and needs. Such has been the depth and tangible effect of the private and public acts of recognition – and the sorry.
    Never mind the sorries and the apologies, the recognition and the public repentance, the flogging continues. At least the convicts in young Australia who endured their floggings could expect it to end.
    The flogging doesn’t end until the flogger is satisfied and the crime is seen as punished. Just as a prison sentence, once served, settles the debt with society. Or as a penalty, once paid, acquits the offence, without erasing it.
    When people say ‘sorry’ to one another, it is an incomplete act, until it is answered by ‘accepted – you are forgiven’. Until that happens, Australia is cursed to a hideous Groundhog Day of guilt and remorse, without forgiveness, without remedy or redemption, always pressed for yet more compensation, yet more sorry fodder. Worst of all, all this with no improvement in the quality of the lives of those on whose behalf this black charade is played.

  • Stephen says:

    Aboriginals already have a voice in Government. It’s the same voice we all have. They can participate in political debate and vote in elections. Equality of opportunity and equality before the law should be the limit and this has already be achieved. To select one group of citizens and give them a special status with a strong prospect of unintended consequences is a terrible idea. We don’t have established religion in order to prevent sectarian conflict, why risk escalating racial conflict by “establishing a race. Tony Abbott has a well known and admirable sympathy for Aborigines but on this issue he is too much heart and not enough head.

  • garryevans41 says:

    The Aboriginal Provisional Government (APG) formed by Bob Weatherall and Michael Mansell on 16 July 1990 issued Aboriginal passports on the basis that the aboriginal nation is separate to the Australian nation.
    In 1992 as an alternative to being required to register their children at birth with the Australian state, the APG started issuing birth certificates so that aboriginal children can be registered as citizens of an aboriginal nation. This was a rejection of the obligations imposed by Australian law, but they are more than willing to accept taxpayer welfare and grants.

  • DG says:

    Clearly, we are in Alice in Wonderland when it comes to the meaning of words. Constitutional recognition of ‘indigenous Australians’, Chris Kenny? What? Do you mean people born here? That includes ol’ pale face me. Good, go ahead and recognise me, then. Let’s see, what shall I be? I know, I’ll be a citizen. And Aboriginal Australians? Heck, they can be citizens too.

  • lhackett01 says:

    In a letter to the editor of The Australian newspaper, not published, I wrote, “Re: The dangerous naivety of kowtowing to people who claim ‘victim’ status.
    Changing a word in the Australian National Anthem will not placate the Aboriginal movement. Aborigines will stop their grasping only when politicians and others grow spines and agree that Aborigines must comply with the law and pull their weight as part of Australian society. Their claimed ‘victim’ status is based on supposed historical events that no living Aborigine has experienced. The claims of intergenerational trauma are made merely to garner sympathy from a gullible Government and public. Such ‘trauma’ is no more true than that the trauma of the Second World War is destroying lives today. While compliant Government policies continue to provide manna for such ‘victims’, their claims will continue.”

    As for MABO, in my paper, ‘Aborigines, the Constitution and the Voice’, at, I write, “Activist judges have created a discrimination problem. Based on ‘Progressive’ ideas rather than applying the law as it was at the time the British settled Australia, the High Court has created interpretations of past laws that discriminate in favour of Aborigines. Further, they have extrapolated judgements made in particular cases to cases that are only vaguely related, and they are continuing to make judgements that discriminate between Australians.” I quote Sir Anthony Mason, former Chief Justice of the High Court of Australia where he said, “Moreover, since the reception of English law into the settled colony of Australia was justified on the ground that it was ‘legally uninhabited’, the enforceability of any pre-existing rights depended on some different rule which necessarily contradicted the ‘legally uninhabited’ rule.” Justice Mason also said, “By accepting that Australia was not, in fact, terra nullius in 1788, yet legally uninhabited for the purpose of acquisition of sovereignty, the Mabo High Court acknowledged that sovereignty was acquired over Australia under the enlarged doctrine of terra nullius. Despite this conclusion, however, the majority of the High Court expressly disapproved of the application of the concept of terra nullius to an inhabited country and recognised that the notion that inhabited land may be classed as terra nullius no longer commanded general support in international law.” This landmark decision gave rise to important native title legislation, The Native Title Act 1993. This legislation guides decisions about Aboriginal title claims. Presently, Claims have been agreed, or are in process, that when added to previous titles given under State rights, will likely result in various forms of Aboriginal title over about 74 per cent of the Australian landmass. In many cases, the public is, and will be, excluded from most of these areas unless invited in by Aboriginal title-holders, usually only for the purposes of ceremony.

    Imagine the result if Aborigines are given a Voice in Parliament. Activist judges and lawyers will have a field day. Other Australians can ‘go jump’.

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