Submissions for No case reveal obsession with ‘activist judges’

It outraged the Coalition, who were flummoxed that three of the four judges in the majority had been appointed by the Abbott, Turnbull and Morrison governments. They had worked on the basis that there was no impediment if the government wanted to “send home” someone who was not a resident, and who had committed a criminal offence that carried a sentence of 12 months or more.

Submissions from former High Court judge Ian Callinan, former prime minister Tony Abbott, former attorney-general Philip Ruddock, former royal commissioner Terry Cole and the Samuel Griffith Society either cite Love or go down the “activist judges” road.

Common thread

Another common thread is they vehemently oppose any process that would give most Indigenous people what they want – a representative body enshrined in the Constitution.

Callinan said it “would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality”.

“It was not until 1992, when the High Court was some 90-years-old, that it was able to discover in the text and structure of the Constitution something that had never been discerned before, an implied freedom of political communication.”

Callinan cited Love to refute the opinion of Solicitor-General Stephen Donaghue, KC, that there was no room for implications in the current drafting, such as a right for the Voice to be consulted.

“The opinion of the solicitor-general on any constitutional topic is worth having, but it is not the solicitor-general who has the say here, it is the [High] Court.

“Equally, the public might be interested in what the opinion of the solicitor-general was of the likelihood of success of the Commonwealth in the case of Love v Commonwealth.

‘Classic case’

“I doubt whether many lawyers or the solicitor-general, who unsuccessfully argued the case for the Commonwealth, gave an opinion predicting the outcome there.

“The case is a classic case study in uncertainty of outcome in Constitutional legal affairs.”

It feeds into the main argument of the No cause, that if you can’t be sure what it will do – and that extends to whether it will shift the dial on Indigenous disadvantage – then don’t vote for it.

Abbott doesn’t even accept that there is no right of veto. “Sometimes a right to be consulted amounts to a right to veto,” his submission said.

“At least to some Voice backers that’s exactly what’s intended; a kind of co-government in which nothing will happen except by the leave of the original inhabitants.” (Incidentally, there is no right to consult in the words – it’s a right to make representations.)

While Ruddock does see some value in the proposal – provided the government ditches any reference to representations to the executive and limits what it can lobby on – he lays bare the heart of the conservative opposition.

Ruddock said the current wording “transfers power away from the people and the parliament, and into the hands of the court”. (Donaghue firmly said it didn’t.)

“Many on my side of politics will not support such a far-reaching transfer of responsibility, be though they might support the Voice in principle.”

The Samuel Griffith Society, which Hearsay has called the constitutional version of the flat earth society, has banged the Love drum incessantly since 2020.

It also warned against “an implied duty to consult” in its submission and said it was “unnecessary and inadvisable” to link constitutional recognition with the advisory body.

Perhaps the society would do well to recall the words of Sir Samuel, the first chief justice of Australia and a leading light of the constitutional conventions of the 1890s.

“There is no doubt that here, as everywhere, there will be timid men who are afraid of launching something new; but when was ever a great thing achieved without risking something.”

One can safely say that those in the No camp do not regard the Voice as a great thing.

Vic Bar delay

The Victorian Bar is not expected to make a final decision on whether to support the Voice until next week. The Bar council scheduled a meeting for Thursday night to discuss the issue, and members were told it would only be a “preliminary chat”.

The Law Council joined the NSW Bar this week in declaring its support. Five past presidents of the council and/or the Australian Bar Association – Jennifer Batrouney, KC, Matt Collins, KC, Matthew Howard, SC, Noel Hutley, SC, Fiona McLeod, SC and Arthur Moses, SC – also signed a statement of support.