Ideological role reversal on the will of the people

Leftist critics of the right like Norman Abjorensen see them as opponents of popular sovereignty. Certainly, in the past conservatives have sometimes supported quasi-democratic upper houses as a way of keeping a restraint on popularly elected Labor governments. Labor responded by planning to abolish upper houses, successfully in Queensland, and didn’t get rid of its pledge to abolish the Senate until 1979.

But over the last 15 or so years there has been something of a role reversal. Conservatism developed a strong populist strain, while Labor governments and their left-wing supporters started thinking of ways to frustrate the will of the lower houses of parliament. This is most advanced in Victoria, where Labor changed the Legislative Council’s voting system to make it difficult for either major party to secure a majority, and introduced a charter of rights, handing substantial power to the judiciary, while reserving the parliament’s power to ultimately over-ride ‘rights’.

The political identity survey suggests that conservatives (combining self-categorised ‘conservatives’ and ‘social conservatives and economic liberals’) are now quite distinctive in their opposition to further ceding power to the judiciary and preserving the democratic system’s role in protecting individual freedoms, though a slim majority of the classical liberals in the survey also prefer the democratic system.

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The question read: Do you think individual freedoms should be protected by a constitutional bill of rights/a statutory charter of rights/the democratic system/other. ‘Democratic system’ answers are shown in the chart.

Interpreting these results is difficult, in that it is possible to oppose bills and charters of rights not because of support for greater democratic power but because of concern about damaging the judiciary, by giving it tasks it is not competent to undertake and which will cause it to be the subject of political controversy.

But on the basic practical question of where political power should lie, with elected politicians or unelected judges, among ideologues the democratic option is largely a right-of-centre cause, while the undemocratic option receives overwhelming support from left-of-centre groups.

Update: Support for a bill or charter of rights is below; as can be seen the ‘constitutional bill of rights’ is more strongly supported than a ‘statutory charter of rights’.
correctedbillS

68 Responses to “Ideological role reversal on the will of the people

  • 1
    Jc
    May 5th, 2009 13:22

    They are NOT race-based rights.

    I just spilled my coffee all over the screen. Surely you’re jesting, right?

    If the Dutch had left a few of their countrymen behind here when they dropped by in the 17th century, and their descendants were still hanging out in the Western Australian boondocks, then the Mabo decision would apply to them too. There’s no racial test involved./i

    Oh please. You’re asking me to assist you in the hypothetical of the absurd. So the descendants would have simply given up ALL their Europeans cultural traits and take up those of a primitive society?

    It is self-evidently ludicrous to suggest that Eddie’s ancestors should have simply popped down to the local titles office and registered Torrens Title on their land.

    Yes it is. Good to see that you don’t think I even suggested that, do you?

    Let’s go over it again, it’s up to the legislature to decide if there is going to be a substantial change to the current system of land title we use and who should be recognized as the owner(s).

    I really don’t know why you are supporting the current set up, as it is the biggest hodge podge socialist experiment we’d seen for a while. Tribal ownership clearly is a load of crap.

    In any case the property rights in question pre-dated the establishment of the Torrens Title system.

    Oh really? So if an aboriginal came along and demanded your home you would willingly give it up? After all his/her ownership predates yours.

    Property rights are a question of fact, not of bureaucracy.

    Which is why you would let a court determine a new method of title/ownership?

  • 2
    tommy paine
    May 5th, 2009 15:58

    Oh really? So if an aboriginal came along and demanded your home you would willingly give it up? After all his/her ownership predates yours.

    You should probably not argue at length about Mabo (note the spelling) when you quite evidently do not understand property law and indeed the legal system more broadly.

    The idea that the courts, when faced with an action claiming property rights, should have abstained from ruling on grounds of non-justiciability, is patently absurd. You do believe in the rule of law, don’t you?

    Even sillier is the idea that Mabo was some sort of collectivist coup through the use of the courts. One of the interesting points in Mabo was the way it recognised a form of title not deriving from a Crown grant. Legal doctrine holds that we can only hold title in land subject to the ultimate control of the Crown–that property rights are granted by the state. Mabo recognised a source of property rights which did not derive from the state.

    Mabo illustrated our system of government working as it ought. The unelected High Court, as is its prerogative, ruled on a contentious legal dispute with reference to legal principles. The elected parliament, as is its prerogative, legislated to overrule the common law with reference to political considerations. You may not like the judgment, but the institutions of government were functioning correctly.

  • 3
    Jc
    May 5th, 2009 17:05

    Tommy

    Thanks for the spelling lesson. If had bothered to read the argument you would have noticed that the points you brought up have been discussed at length. so I suggest you go through them again and see if you still have a problem.

    In sum, the high court basically decided rights based on racial identity.

  • 4
    caf
    May 5th, 2009 17:38

    It has nothing to with race, the race of the claimants had nothing whatsoever to do with the reasoning involved.

    It is really quite simple. The court found that in the absence of specific action by parliament, land ownership that existed before the founding of the colony was not necessarily extinguished by that founding. This is not actually that controversial in the English Common Law tradition, and is the equitable and fair position. The changing of system of government should not invalidate prior property rights, because property rights do not exist by gift of the State but are a consequence of the observable fact that a particular person or set of persons owns a particular object.

    The State does not grant property rights, it recognises them.

  • 5
    Jc
    May 5th, 2009 21:40

    Caf:

    This is an insane discussion. You’re completely blind to the issue that race was certainly very much part of the decision. In fact group rights based on race was all to do with it.

    Secondly the courts keeps arguing against the strawman Terra nullus concept which they didn’t seem to know what it even defined.

    Thirdly, the country was annexed to Britain. the concept of property rights didn’t even figure in such a primitive society.

    Look, give them the land, give them more if need be, but please do it through the parliament and recognize this through the parliament rather than a court making law.

  • 6
    caf
    May 5th, 2009 22:42

    You have not provided one single point of evidence to support the assertion that it was based on race.
    Your “thirdly” is one of the legal questions that the case was about – “did the concept of property rights exist in the society that existed on the islands in question prior to colonisation”. This question is one of legal fact, which is why the courts were the right place to answer it.
    The court determined what the current legal status was – and left it up to the legislature to effect a change in that status, if it so chose. This is right and proper.

  • 7
    Jc
    May 6th, 2009 00:33

    I asked you earlier if you would give up your house if it was built of ancestral land and you haven’t responded.

    You have not provided one single point of evidence to support the assertion that it was based on race.

    What an absurd claim to make. This issue that it was based on racial preference shouldn’t even be debated.

    The court determined what the current legal status was – and left it up to the legislature to effect a change in that status, if it so chose.

    It actually instructed the parliament to act. the parliament t had no choice.

  • 8
    Jc
    May 6th, 2009 02:11

    In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act 1985, which declared that on annexation of the islands in 1879, title to the islands was vested in the state of Queensland “freed from all other rights, interests and claims whatsoever”. In Mabo v Queensland (No 1) (1988) the High Court held that this legislation was contrary to the Racial Discrimination Act 1975.

    Funny how the racial discrimination act is cited in the case but by your account I haven’t proven my case.

    Perhaps I really didn’t need to as the court did it for me.

  • 9
    tommy paine
    May 6th, 2009 11:26

    I asked you earlier if you would give up your house if it was built of ancestral land and you haven’t responded.

    You do understand that native title can only exist over land which has not been alienated by the Crown in favour of a private owner, right?

    Funny how the racial discrimination act is cited in the case but by your account I haven’t proven my case.

    I thought your case was that the Parliament should decide these things? So you complain when the courts apply the parliament’s legislation? Que?

    The racial issue is really a sideshow here. If you read your own quotation, you’ll see that the RD Act was used to slap down an effort by Qld Parl to have the Mabo litigation stopped. The crux of the case was not about Eddie Mabo’s pigmentation, but about:

    -doctrine of tenure
    -nature of British acquisition of sovereignty over Australia
    -whether the property rights of extant inhabitants of land can survive conquest (vis a vis settlement) by the British Crown

    If you read the case carefully, you’ll see that one of the justices also found another path by which Mabo had property rights: the doctrine of possessory title. Once again, I fail to see how the application of common law principles is anything but proper for the High Court. Political types and social theorists can pontificate all they want about the meaning of Mabo, but it was a legal judgment, and the social/political implications of such an important decision do not derogate from judgment’s basis in legal doctrine.

  • 10
    Jc
    May 6th, 2009 11:53

    You do understand that native title can only exist over land which has not been alienated by the Crown in favour of a private owner, right?

    Perhaps even better than you. The Parliament was the body that was forced to clarify the point you’re making, so strictly speaking the courts decision could have allowed aboriginals to claim even privately owned land.

    I thought your case was that the Parliament should decide these things? So you complain when the courts apply the parliament’s legislation? Que?

    There you go thinking again, Tommy ?
    I said the case was racially motivated. It was. I was based on racial preference otherwise our current laws of property rights would have been sufficient.

    The racial issue is really a sideshow here. If you read your own quotation, you’ll see that the RD Act was used to slap down an effort by Qld Parl to have the Mabo litigation stopped.

    Well actually the Queensland parliament wanted to give away the land based on private ownership under common law principals were apply in the modern world and Mabo wanted some concocted system that was completely alien to our property laws.

    The crux of the case was not about Eddie Mabo’s pigmentation, but about:

    -doctrine of tenure
    -nature of British acquisition of sovereignty over Australia
    -whether the property rights of extant inhabitants of land can survive conquest (vis a vis settlement) by the British Crown

    Tommy for the Nth time the core argument from the court was the principal of Terra Nullus , which is something those clowns couldn’t even define.

    If you read the case carefully, you’ll see that one of the justices also found another path by which Mabo had property rights: the doctrine of possessory title. Once again, I fail to see how the application of common law principles is anything but proper for the High Court. Political types and social theorists can pontificate all they want about the meaning of Mabo, but it was a legal judgment, and the social/political implications of such an important decision do not derogate from judgment’s basis in legal doctrine.

    You mean like concocting some primitive form of “ownership” that no one understands, not even now.

  • 11
    tommy paine
    May 6th, 2009 20:08

    Tommy for the Nth time the core argument from the court was the principal of Terra Nullus , which is something those clowns couldn’t even define.

    And? The HCA finding that Australia was not terra nullius meant:

    1. That Britain conquered Australia, it did not settle it.

    2. Accordingly, English law overruled local law only insofar as it was positively intended to do so. A settled territory automatically inherits English law. In a conquered territory, on the other hand, local law survives in some circumstances. (Blackstone talked about this–which flies in the face of your notion that the HCA just made the whole thing up)

    3. Because Aboriginal legal norms were not automatically extinguished at the British acquisition of sovereignty, Aboriginal property rights could survive in some circumstances–basically when the land hadn’t been acquired by the Crown and alienated or used in some manner inconsistent with native title. As such, Aboriginal land rights existed outside of the system of tenure in some sense.

    As I mentioned above, Justice Toohey found a wholly different route towards Mabo having title.

    I’m not sure what your real point is. The notion of terra nullius was important, but this is a legal judgment. The court relied on established legal principle and adapted the law as is its role. You have obviously taken exception to the High Court’s finding in Mabo. That is fair enough–there is some really complicated in Mabo. A lot of it is confusing and I can see how one could disagree with the reasoning taken. Nevertheless, the HCA fulfilled its constitutional role.

  • 12
    Jc
    May 6th, 2009 20:43

    1. Those clowns sitting on the bench at the time could not even define what the terra nullus actually meant, so their finding was based on a non existent premise.
    2. English common law didn’t really intend to accommodate hunter-gatherer “legal principles”. And I think you’re being far too kind there.
    3. My point is clear, it was a bad finding and the HCA was attempting to legislate from the bench.
    4. Yes, it certainly is confusing when things go wrong like they did in this case.

  • 13
    tommy paine
    May 6th, 2009 21:51

    1. Those clowns sitting on the bench at the time could not even define what the terra nullus actually meant, so their finding was based on a non existent premise.

    ‘Those clowns’ were the foremost jurists in this country. You really are making an absolutely bizarre claim. ‘Terra nullius’, as I have said, was part of the old English common law–the Court quoted Blackstone in the Mabo judgment. It is also a doctrine used in public international law. There have been at least a few instances of the doctrine being litigated in the PCIJ and ICJ last century. Manifestly, the High Court did define the (rather self-evident) meaning of the term. It was noted by the court that European understanding of Aboriginal culture and indigenous people more generally had advanced since 1788, and so it could no longer be said that Australia did not ‘belong’ to anyone before colonisation. On the other hand, I’ve read that even by the standards of the day, British occupation was properly regarded as a conquest rather than settlement. Point is–the doctrine exists, and has done for at least several centuries. If you don’t believe me look up, for example, the Western Sahara Case.

    2. English common law didn’t really intend to accommodate hunter-gatherer “legal principles”. And I think you’re being far too kind there.

    Au contraire. It is an established principle of English common law that where territory is taken by conquest rather than settled, due heed is given to local legal arrangements until they are overridden or extinguished. That’s the whole point of the case.

    3. My point is clear, it was a bad finding and the HCA was attempting to legislate from the bench.

    Certainly, the HCA was ‘making law’, but making law in a judicial mode is not legislating. Superior courts have always adapted old principles as appropriate, and indeed they must. Unlike legislatures, courts may not pick and choose which issues to tackle.

  • 14
    tommy paine
    May 6th, 2009 21:51

    Excuse my italics.

  • 15
    Jc
    May 7th, 2009 01:25

    Those clowns sitting on the bench at the time could not even define what the terra nullus actually meant, so their finding was based on a non existent premise.

    And they were the best legal brains because our politicians assigned them? Please! That’s like when (some) American journalists praised Hillary as is being a former top 100 lawyer in the US. However she never passed the DC bar exam.

    Sorry your assertion on the Terra Nullus point is false, as I’ve already mentioned previously.

    ‘Those clowns’ were the foremost jurists in this country. You really are making an absolutely bizarre claim. ‘Terra nullius’, as I have said, was part of the old English common law–the Court quoted Blackstone in the Mabo judgment.

    As I have said there were various definitions of this term that had equal claim to legitimacy. They just picked the one that best suited their bias.

    There have been at least a few instances of the doctrine being litigated in the PCIJ and ICJ last century. Manifestly, the High Court did define the (rather self-evident) meaning of the term.

    See above.

    It was noted by the court that European understanding of Aboriginal culture and indigenous people more generally had advanced since 1788, and so it could no longer be said that Australia did not ‘belong’ to anyone before colonisation.

    And so having advanced from hunter-gatherer society by co-mingling with European settlement the court, in its wisdom, decided to apply an alien system that “operated” prior to settlement. How retro!

    On the other hand, I’ve read that even by the standards of the day, British occupation was properly regarded as a conquest rather than settlement. Point is–the doctrine exists, and has done for at least several centuries.

    With different meanings.

    Au contraire. It is an established principle of English common law that where territory is taken by conquest rather than settled, due heed is given to local legal arrangements until they are overridden or extinguished. That’s the whole point of the case.

    If you stretch any further you could rival the Harbor bridge.

    This obviously applies to relatively advanced societies such as India etc.

    Certainly, the HCA was ‘making law’….

    Thank you

  • 16
    tommy paine
    May 7th, 2009 08:37

    Yes, the meaning of legal doctrine changes over time. That’s how the common law works. You’ve implicitly accepted in that last post about India that terra nullius and the conquest/settlement distinction do exist, and do have meaning. Obviously your problem is that the Court accepted a construction of the doctrine which doesn’t suit your ideological bent.

    If you seriously don’t believe that superior courts should make law, we have some problems.

  • 17
    Jc
    May 7th, 2009 13:59

    Yes, the meaning of legal doctrine changes over time.

    Nice try. The point is that there were several definitions of the word.

    That’s how the common law works.

    To pick and choose which definition supports a bias? Please.

    You’ve implicitly accepted in that last post about India that terra nullius and the conquest/settlement distinction do exist, and do have meaning.

    Not at all. I suggested that India did have some form of developed legal framework that deserved recognition. I would hardly describe India as a Stone age/hunter gatherer society. Would you?

    Obviously your problem is that the Court accepted a construction of the doctrine which doesn’t suit your ideological bent.

    If you seriously don’t believe that superior courts should make law, we have some problems.

    They are supposed to interpret law and add new facets to basic principals not devise a new title system.

  • 18
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    May 19th, 2009 21:48

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