Random selection of High Court judges from say a shortlist prepared by an independent judicial council

Isn’t the High Court supposed to be an independant judicial council? Who appoints the appointers? I wish Google language tools had an option for English to Dog Latin.

I’d guess that the appointers will be appointed by the Executive, so we’re probably not solving any problem at all, just inserting a new layer of cushy jobs for partisan hacks. My Magic Eight Ball also prophesied that the random selection means that if indeed the High Court is being stacked with Rabid Partisan Whores – a proposition no-one in this thread seems to actually be arguing – all we will be doing is randomly deciding what kind of Rabid Partisan Whore we get.

What happened was there were a couple of cases in the early 70s in NSw and Victoria when the judges said that abortion was legal as long as the mothers life was in danger (or something like that).

Yep. That’s the common law at work.

Not exactly. What happened was there were a couple of cases in the early 70s in NSw and Victoria when the judges said that abortion was legal as long as the mother’s life was in danger (or something like that). After that, phew, the political debate was over and abortions were carried out with the right boxes ticked, according to this case law, even if it wasn’t true, and this approach was adopted around the country.

More recently we’ve had a couple of judges very inconveniently say that abortion is unlawful, apart from exceptional circumstances which didn’t apply to the cases on which they were passing judgment. This led to rushed legislation in a couple of jurisdictions (WA and ACT) which legalised that which had been going on de facto for decades.

The still in-complete legalisation of abortion in Australia has not been based common law, or a bill of rights, or laws passed by parliaments. It’s been based on a couple of special cases, and a lot of averting one’s gaze out of political expediency.

Its transparent, it allows for public input, it avoids the excessive politicisation of the US system and the executive dominance of our system.

Rather than presidential appointment, I think I’d prefer transparent process that produces a shortlist, with a lottery to decide who the actual appointments are.

As for the Hicks case being boring – it’s not a surprising attitude from the political side Andrew comes from. They wish the whole thing would just disappear as it exposes a real contempt for both democracy and the rule of law.

The problem was that though Hicks – even on the version of events given by his supporters – had engaged in military cooperation with a totalitarian force he had not technically breached Australian law as it stood at the time. To have applied the law retrospectively would have breached another important legal principle.

Because the Australian government did not want retrospective legislation but did not want an enemy combatant to go free either, it went along with the US process, which has been absurdly prolonged and resulted in judicial mechanisms that did not have the confidence of many people.

The Hicks case has turned into a fiasco, but it has no consequences for due process here, or for that matter in the United States proper.

The Constitutional Court has 9 members. They get a single 18 year term and the terms are arranged so that a judge is appointed roughly every 2 years. I think the critique of the US left is probably right, but it’s exacerbated by 2 features – life appointment and simple majority confirmation. Roberts was barely 50 when Bush appointed him CJ. He could easily remain CJ for another 30 or 40 years, long after the Bush ‘heritage’ is otherwise consigned to the dustbin of history.

The chance for very long term appointments without any consensus is an invitation to politicise the Court. It’s an open question whether Roe V Wade and similar cases drive politicisation, or it’s politicisation that drives Roe v Wade and similar cases. In any case, a more comprehensive bill of rights with more careful drafting than the US would avoid many problems ad leave ultiate power over rights with voters, not judges. The surprise discovery of rights that are not explicitly stated in the US constitution seems to drive much of their activist judge paranoia.

Much of the worst warping of Australia’s constitution has been in the area of Federalism – the High Court has been centralising power for a very long time.

It is different amongst political parties where it would be political as they debate policy.

My thoughts largely stem from what I deem unethical but legal ruling of the High Court that does not effectively uphold the spirit of the Constitution. I’d sack them if possible except for the obvious two.

All of this said, I’m a supporter of a bill of rights and federalism.

Australia’s liberalisation of abortion was judicially led. I’m not sure where we’d be but for the rulings which held that abortion was legal if it was necessary to preserve the health of the mother and that that included her mental health – then of course pretty liberally interpreted.

It’s certainly a sounder legal basis on which to get to a pro-choice position judicially than the right to privacy (of all things).

Given all the systemic pressures for government to bloat every day of every week, a Bill of Rights would on balance merely be a corrective.

I’m no expert on Roe v Wade, so correct me if I’m wrong but using some right to privacy – itself I presume unstated in the US bill of rights to overturn democratic laws which say that abortion is illegal seems like stretching things a tad to me. Personally I guess I’m mildly pro-choice though I’ve never had any close encounters with abortion so my views are untested. But I don’t want to poke my nose into people’s business if they want an abortion. But I fully respect the views of others that regard it as deeply wrong. So judicially overruling its criminalisation seems pretty wrong to me. Shouldn’t the same principles apply to drug taking – isn’t criminalising heroin an infraction on the right to privacy?

Andrew, I’m sorry that you find the story of David Hicks boring. I guess I’m just an old fashioned classical liberal, a hopelessly 10th September kind of guy, but personally I don’t like the idea that someone can be sold to the US military, placed in a hood for I don’t know how long, flown around on secret flights to be tortured at unknown and unacknowledged destinations (I don’t think this happened to Hicks, it happended to others – some of whom were completely innocent of any wrongdoing), locked in solitary confinement in a legal no-man’s land for 5 years.

Please don’t mistake me for someone who cares particularly about David Hicks. I don’t. Or even for someone who thinks that David Hicks should have been been treated more ‘fairly’. Of course he should have been, but nasty things can happen to you if you toddle off into war zones.

I care for the complete and cynical disregard for the basic building blocks of a free society.

And as the now very boring David Hicks saga shows, even those countries with due process protections can find ways of getting around them.

I would certainly agree with you that Roe v Wade is an unfortunate way to use the law and a bill of rights.

In what way?

Do you think there should be the kinds of rights that I specified that I wanted above – rights to due process, rights not to be detained without coming before an independent magistrate? If they’re not enshrined in our constitution, should they be?

Nor would I just take at face value 19th century liberal concerns about the tyranny of the majority, which were part of a general opposition to/concern about democracy that prevailed at that time. Democracy in practice hasn’t been as bad as forecast.

I also want to avoid Roe v Wade type situations, which have helped create major faultlines in US political culture instead of the more sensible compromises reached in most other Western countries.

I can’t find it quickly, but Michael Walter wrote a good essay years ago lamenting that the US left had gone down the path of legal action instead of trying to build public support for their beliefs. There is a lesson there for all political movements.

I support freedom (obviously), but I prefer to achieve it through persuasion than judicial fiat.

But isn’t a classical liberal ALWAYS concerned about the power of majoritarianism to degenerate into oppression of the minority? Isn’t that one of the building blocks of classical liberalism. It would be one reason why I’d be happy to call myself a classical liberal – amongst other things.

If you don’t want the judiciary protecting the rights of the minority, who did you have in mind? And how are they to protect rights if not according to some statement of them. Now the British common law has done a reasonable job of protecting rights (ie in the upshot and along with the British Parliament and the functioning of political conventions). But surely the rights that are embedded in common law come from judicial activism. And mightn’t expecting a judiciary to protect rights without some formal articulation of what they are be a recipe for more judicial activism rather than less?

The idea that the parliament can simply ignore basic rights if it is so minded by overruling some High Court judgement doesn’t sound too flash to me if the judgement is fundamental enough – for instance some finding of a right to due process or equality under the law.

Don’t you guys reckon I’ve got a right to due process, and to come before an independent magistrate if I’m to be detained? A right to my property. All of course balanced by others’ rights. Is parliament the only institution that should have a major say on those subjects?

compromise fought and negotiated between members of parliament, and between stakeholders, negotiators, lobbyists and the community

in the article that Andrew links to. This process is called ‘rent seeking’ and usually leads to inefficient prescriptive legislation. Rather we err on the side of the State being able to do nothing (or at least being slowed down in its natural rapacious tendency to do more) than to do a half-arsed something.

While as I understand it Parliament still has the power to imprison. I wrote a private members bill for John Button when he was in Opposition in 1981 which was loosely based on a bill that Owen Dixon had written several decades before which required Parliament to refer anyone it wanted to imprison for concempt of Parliament to the judiciary.

Button supported it, but looked a bit unimpressed when his fellow parliamentarians looked askance and asked ‘now John why would you want to do that?’ It turned out John was not too sure of the answer and the bill died a quick death.

I think something was revived about a decade later and may now be on the books. I didn’t keep a close eye on it but my recollection is that it did not unambiguously prevent the parliament from repeating the dose it dished out to the two journos who ended up in Goulburn jail for a while in the 1950s for (IIRC) speculating on the motives of a parliamentarian whose motives migth well have been as they speculated.