Comments on: The 1967 Constitutional referendum http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/ Observations from Carlton's Lone Classical Liberal Fri, 05 Dec 2008 01:11:37 +0000 http://wordpress.org/?v=2.5.1 By: Jacques Chester http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7339 Jacques Chester Thu, 31 May 2007 06:18:55 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7339 Andrew; It's been a long time since I did Const law, but as I recall he or an academic sympathetic to him had a lengthy article in the Federal Review about theories of consitutional interpretation. Kirby J is a "dynamist", which is I suppose a species of realist. Essentially the argument is that the document's text is our only authority and the only way to understand the meaning of the document is with modern English - taking the words by current meaning, not the undiscoverable intentions of the drafters. Also, going back to an old essay I wrote, I find a quote from <em>Brownlee v The Queen</em>: <blockquote>... if, as I hold, the text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians, reflected in this Court, it is imperative to keep the mind open to the possibility that a new context ... may convince the court ... that its predecessors had adopted an erroneous view of the Constitution</blockquote> (2001) 180 ALR 301 I could send you my old essay if you like - email me on jacques@chester.id.au Andrew;

It’s been a long time since I did Const law, but as I recall he or an academic sympathetic to him had a lengthy article in the Federal Review about theories of consitutional interpretation. Kirby J is a “dynamist”, which is I suppose a species of realist. Essentially the argument is that the document’s text is our only authority and the only way to understand the meaning of the document is with modern English - taking the words by current meaning, not the undiscoverable intentions of the drafters.

Also, going back to an old essay I wrote, I find a quote from Brownlee v The Queen:

… if, as I hold, the text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians, reflected in this Court, it is imperative to
keep the mind open to the possibility that a new context … may convince the court … that its predecessors had adopted an erroneous view of the Constitution

(2001) 180 ALR 301

I could send you my old essay if you like - email me on jacques@chester.id.au

]]> By: Andrew Leigh http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7343 Andrew Leigh Tue, 29 May 2007 05:52:58 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7343 JC, can you give me some other examples of where Kirby J has opposed intentionalism in constitutional interpretation? JC, can you give me some other examples of where Kirby J has opposed intentionalism in constitutional interpretation?

]]> By: Jacques Chester http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7344 Jacques Chester Tue, 29 May 2007 01:47:06 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7344 <blockquote>There’s more about this particular farce</blockquote> What a bracing dose of stereotypical vitriol. I'd like to know how the High Court could have ruled any differently without having generated either more severe alienation from traditional ownership or a radical, insoluble constitutional crisis.

There’s more about this particular farce

What a bracing dose of stereotypical vitriol. I’d like to know how the High Court could have ruled any differently without having generated either more severe alienation from traditional ownership or a radical, insoluble constitutional crisis.

]]> By: Jacques Chester http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7345 Jacques Chester Tue, 29 May 2007 01:44:42 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7345 There was a fascinating court case which hinged on the meaning of that referendum - Kartinyeri - with various judges arguing this and that. Predictably enough Kirby argued that the amendment only allowed laws for the benefit of aborigines, not to their detriment. His argument was based on the intention of the amendment, which is funny, because he doesn't like intentionalism at all in other areas of Constitutional law. Anyway. My 5c. There was a fascinating court case which hinged on the meaning of that referendum - Kartinyeri - with various judges arguing this and that. Predictably enough Kirby argued that the amendment only allowed laws for the benefit of aborigines, not to their detriment. His argument was based on the intention of the amendment, which is funny, because he doesn’t like intentionalism at all in other areas of Constitutional law.

Anyway. My 5c.

]]> By: kyangadac http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7342 kyangadac Mon, 28 May 2007 10:50:54 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7342 "I can't help but wonder what there is to celebrate about the fact that it was only 40 years ago that we decided to acknowledge that the First Australians were human beings." There's more about this particular farce at http://kiangardarup.blogspot.com/2007/05/40-years-on-jaccuse.html “I can’t help but wonder what there is to celebrate about the fact that it was only 40 years ago that we decided to acknowledge that the First Australians were human beings.”
There’s more about this particular farce at
http://kiangardarup.blogspot.com/2007/05/40-years-on-jaccuse.html

]]> By: Sukrit http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7338 Sukrit Mon, 28 May 2007 01:54:04 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7338 My interpretation is that the '67 referendum just gave the Cth more power. I wrote about this previously: <blockquote>In the 1967 referendum, a resounding majority of Australians voted to give the Commonwealth government power to make laws with respect to Aboriginal people, wherever they lived in Australia, and to include Aboriginal people in national censuses. The change aimed to foster a coordinated approach to Indigenous policy that bypassed the divergent policies of individual states. Today, however, it seems as if less Commonwealth imposed uniformity would have been better for Indigenous peoples.</blockquote> http://www.nit.com.au/opinion/story.aspx?id=9458 Abolish the native title act! My interpretation is that the ‘67 referendum just gave the Cth more power. I wrote about this previously:

In the 1967 referendum, a resounding majority of Australians voted to give the Commonwealth government power to make laws with respect to Aboriginal people, wherever they lived in Australia, and to include Aboriginal people in national censuses.

The change aimed to foster a coordinated approach to Indigenous policy that bypassed the divergent policies of individual states.

Today, however, it seems as if less Commonwealth imposed uniformity would have been better for Indigenous peoples.

http://www.nit.com.au/opinion/story.aspx?id=9458

Abolish the native title act!

]]> By: Andrew Norton http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7341 Andrew Norton Mon, 28 May 2007 00:13:29 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7341 I need to do more research on citizenship in Australia, but it seems to have long had a surprisingly weak legal status. A book published a decade ago on Aborigines was called 'Citizens without Rights' which was a fair description of the situation they were in, as citizenship in itself did not offer much. And for all the fuss about the citizenship test now, the more important distiction is temporary/permanent resident, not non-citizen/citizen. I need to do more research on citizenship in Australia, but it seems to have long had a surprisingly weak legal status. A book published a decade ago on Aborigines was called ‘Citizens without Rights’ which was a fair description of the situation they were in, as citizenship in itself did not offer much. And for all the fuss about the citizenship test now, the more important distiction is temporary/permanent resident, not non-citizen/citizen.

]]> By: conrad http://andrewnorton.info/2007/05/the-1967-constitutional-referendum/#comment-7340 conrad Sun, 27 May 2007 23:59:34 +0000 http://andrewnorton.info/blog/2007/05/27/the-1967-constitutional-referendum/#comment-7340 At least for the first point, you can substitute six decades for four decades, and it doesn't sound much better. At least for the first point, you can substitute six decades for four decades, and it doesn’t sound much better.

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