I appreciate the fact that Marbo does not effect most of us that directly but it does give those guys the momentuum for interventionism. If they choose to legislate from the court, how can stop them?

Instead of strenghtrening the senate, why not go the prez route and give the office veto power over legislation. I always thought the previous attempt to have a prez was basically flawed in the fact that it didn’t allow for a directly elected Prez. It also showed the good horse sense of the public at large in that they expressed the opinion through the vote that THEY would like to be the ones deciding on the Prez. than very much.

elect the prez and he immediately assumes a popular mandate to insinuate himself in the politcal process. Have the parliament choose and he/she become their stooge.

(2) rights to a fair trial, procedural fairness and equality before the law flowing from the posited inherent nature of the judicial power conferred on federal courts under Chapter III of the Constitution.

Where does this leave the anti-terror legislation (or more specifically the provisions which allow detention without charge and the other abominations). Is this an acknowledgment that the laws breach the constitutional guarantees of procedural fairness?

And Mabo can be overstated. It is certainly far far less inopportune a decision than Roe which was a farce. And its precedential value is far far less – it almost doesn’t have to be overturned, even if you don’t agree with it, because it doesn’t really mean much for 99% of Australians.

So whilst Mabo was a judicial creation of rights from penumbras or some other obscure source, it has very little momentum (if any) and it probably shouldn’t keep you up at night. To wit, I’ll bet you can’t name a right that came out of Mabo (ignoring Toohey J’s reasons).

As for the actual rights Ken has enumerated, they also have a very confined momentum. It is not like there are a shortage of plaintiffs trying to extend them, but there is deep judicial reluctance to do so. You would be reassured to know that I think the majority of senior Australian judges (and no matter what Sir Anthony Mason figures), and certainly those on the High Court, largely share your concerns.

I’m not lawyer, however in my humble opinion I see Marbo as a form of judicial over reach. I am not arguing for or against the benefits or otherwise of the outcome, however I am concerned that decision was made in the court and not in the political arena where it belonged.

Patrick, Marbo to me was our Roe to some extent.

Also Patrick, if rights are fashioned by the courts they in a sense have the momentum and a sort of authority to do what they like in terms of trimming the edges or adding to them in such a way as to make themselves both the arbiters and the initiators. I have no problem with the court arbitrating these rights, however there is a problem when they initiate these rights too.

(1) federal right to vote and freedom to discuss political issues (and associated freedom of movement and association) flowing from the provisions of Constitution sections 7 and 24 for the Houses of Parliament to be directly chosen by the people. Those provisions would be devoid of any real meaning if Parliament was free to prohibit discussion about political issues and/or decide without restriction who was allowed to vote.

(2) rights to a fair trial, procedural fairness and equality before the law flowing from the posited inherent nature of the judicial power conferred on federal courts under Chapter III of the Constitution.

There is no suggestion in current High Court jurisprudence (except occasionally from Kirby J) for a broad judicially fashioned right to due process or equal protection. It is those express rights in the US Constitution that have mainly been used to manufacture wide-ranging constitutionalised civil rights guarantees of abortion, gay rights etc. That won’t happen in Australia unless a majority of Kirby clones are appointed, which is highly unlikely given Rudd’s conservatism and the relative slowness of judicial turnover caused by retirements. Nor is there any scope whatever for manufacture of substantive economic rights (living wage , or the right to have our teeth fixed). So, as Patrick said, you can relax.

Pardon me if I don’t break out the champers just yet.

The rights that the High Court construes are essentially those that are required if the Constitution is not to be traduced or actively subverted. I tend to be very conservative indeed on rights – I regard Britain’s accession to the EU as a disaster for reasons of rights alone – but I am very comfortable with the ‘rights’ jurisprudence of the High Court of Australia.

In the case of free speech, that is a misnomer. The constitutionally protected right is the right to communicate openly and broadly on issues relevant to the election of parliamentarians – ie, nothing more than is required for the Constitution, which proposes a system of elected government, to operate as intended.

The rights you speak about are of course are terrific thing. However I am a little concerned that these rights were derived through judicial process/ over reach meaning that its not their job.

How do we know they stop there? If the court is reading these rights into the constitution where does it stop the court reading even more things we didn’t know were there?

I’m thinking about such things as the right to a “living wage” , or the right to have our teeth fixed etc.

Recently I read somewhere (it may have been you) how the court found our constitutional right to free speech as being an assumptive right by the existence of the constitution itself. Well the fact it is that it didn’t. I’m more than a little concerned that a short dozen robed geezers are finding rights etc. all over the place.

I don’t see it as their job. In fact it would be better in some ways to rule that we don’t have say free speech as a constitutional right in the hope that it would put a match to our backsides to go out and do something in the proper way.