Sunday, May 09, 2010

Judicial activism - intervention needed into parliamentary failure

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About a year about I established Judicial Analytics to examine opportunities for private citizens to explore opportunities to seek legal remedies for unethical coercion, expropriation or extortion by governments, or agencies empowered by government. It is my view from my studies of the law that there is significant capacity within the law to take such action, which would limit the powers of government, however these matters need to be taken to the High Court, or the Administrative Review Council.
Statutory law is increasingly displacing Common Law, which is far superior in as much at it is based on sound principles, and those principles are based on logic and held in context. The opposite is true of statutory law. Its arbitrary, it often bears no relationship to other law, and it seldom retains any contextual clarity because there is no over-arching principle. This is why such law is controversial.
Clearly when parliaments were established there was the expectation that parliaments would be reasonable. The problem of course is that the 'founding fathers' did not expect the passing of a bill based purely on numbers to secure a parliamentary majority.
There is very little difference between the criminal act of extortion and the coercion being considered by the Rudd government to expropriate wealth from Australian miners. It really makes very little difference whether Australian voters support or are abhorrent of the process by which the act in executed. The parliament is acting inappropriately and the High Court ought to be acting with due regard for process, in the 'spirit of the Constitution'.
We have already seen in other countries like India where the failure of the parliament to enact rational or proper has resulted in the High Court taking its own initiative. Some people have this dogmatic idea that the role of parliament is to make the law, and the courts merely interpret it. But this is not correct. In the process of interpreting the law, the High Court has the power to create law. In fact, all courts have the power to 'create law' in this sense. Really the process is one of extending the law to a new & specific context, or in some cases, correcting an erroneous interpretation previously made. The Constitution has been pretty uncontroversial in the previous century. My guess is that this will change in coming decades.
Andrew Sheldon
Resource Rent Tax
Applied Critical Thinking |

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