The High Court’s Mabo decision was not a judicial decision at all, but a usurpation of the powers of the people and Australian Parliament, according to a Queensland professor of law.
Professor Geoffrey Walker, of the University of Queensland, said yesterday that the decision was right according to the facts as they applied on Murray Island in the Torres Strait, but the judges had gone well beyond their judicial function because it was “‘a sweeping change of policy” requiring legislative implementation rather than a judicial settlement of one claim applying the law only to the case at hand.
It had delivered “”the most divisive and disruptive decision in its history.
“”The economic consequences of that excess of judicial power are already becoming apparent,” he said.
He was giving the seventh Bert Kelly Lecture. His attack came the day after the Chief Justice, Sir Anthony Mason, called the campaign against the decision by miners and pastoralists as disconcerting.
Professor Walker called for a change to the composition of the High Court. The six state Chief Justices should sit with the permanent High Court judges on all matters involving the constitutional division of powers.
However, Professor Walker praised last year’s free-speech decision by the court _ a decision which led to widespread attack on the ground that it was judicial legislation.
Professor Walker cited a series of cases and pieces of legislation which he said showed a serious under-mining of Australia’s democratic and federal tradition. They included the use of the foreign affairs power to block actions by state governments and retrospective legislation.
He said Australian Constitution had been subverted by elitism and centralism which had under-played the value of federalism and in part caused a fall in Australia’s economic fortunes.
The unease about Australia’s economic and social prospects had given rise to a rash of proposed constitutional remedies. Most of these, however, were elitist, giving even more power to those in power. They included longer parliamentary terms, abolition of the states and upper houses and higher salaries and more staff for MPs. The proposals were supported by what he called the political-media establishment.
However, there was a better alternative which argued that the remedy for the failings of our representative democracy was not less democracy, but more.
He called for wider use of the ballot box with citizen’s initiative. Under this signatures of usually between 2 and 5 per cent of the population would trigger a binding referendum for a change in the constitution, the repeal of a law or the enactment of one.
This force extreme groups to put their views to the test rather than coercing politicians to enact the things they want because they made the most noise.
“”It enables controversial issues to be taken out of the hands of extremists,” he said.
The press often portrayed public opinion as fickle or ill-informed. But like the court process or parliamentary debates, it, too, went through stages of snap opinion to sound public judgment.
“”The pre-occupation of the media with quick polls that identify mainly snap opinions has led to a view that public opinion is fickle and irresponsible,” he said.
The media frequently portrayed differences between the states as a failure, rather than as healthy experimentation with competing solutions. the division of power between state and federal governments helped protect liberty. People could always vote with their feet if a state infringed some liberty they thought important.
Australia had a strong democratic tradition, either first or among the first with adult suffrage, secret ballot and referendum-approved constitutional change. This should be extended by giving the people more power, not less.