Australia’s top judge is rapping the knuckles of federal MPs and a committee trying to ‘legislate’ by simply providing guidelines to laws. No way, says the CJ. 19 Dec 2014
Chief Justice raps knuckles of parliament’s SIC committee
By Bill Rowlings, CEO of Civil Liberties Australia*
The Chief Justice of Australia, Robert French, has rapped the knuckles of the Security and Intelligence Committee (SIC) of the Australian Parliament in a speech in NZ in late November.
Justice French (pictured) was delivering the Robin Cooke lecture – devoted to how the common law and constitutions interact – in Wellington on 27 Nov 2014.
Although all manner of officials and public authorities charged with the administration of particular Acts of Parliament develop guidelines based upon their interpretations, the final and authoritative interpretation is that of the courts,” the CJ said.
The common law constitutional function of courts in interpreting statutes does not extend to giving them a meaning that their text will not bear.”
Recently, in face of protests from civil society (including Civil Liberties Australia) that new terror laws were going too far in surveillance of, and restrictions on, innocent Australians who had never been convicted of an offence, the SIC group decided not to change the wording of the legislation, but to recommend that the government alters the explanatory memorandum, the ‘guideline’ document attached to the bill, only.
While Justice French was not so forthright as to link his comments directly to the recent SIC decisions, it is known* that the CJ’s attention had been drawn to how inappropriate it is that some SIC MPs believe they can “shape” the High Court’s interpretation of laws by comments the MPs are wont to insert in the exploratory memorandums attached to bills.
The MPs have now been given a highly judicial rap over the knuckles, and officially warned. Or they will be, when CLA draws the CJ’s speech to their attention.
They cannot squirm away from stating explicitly how they want the law to apply wholly and solely in the black-letter legislation of the land…not in airy-fairy guidelines that carry no force of law whatsoever, as the CJ points out, and as CLA pointed out to them during committee hearings.
Now the MPs know the ‘rules’; they should mend their ways.
* Civil Liberties Australia is certain that the CJ French was alerted: it was CLA who wrote to him pointing out the error in the ways of some SIC MPs, basically parliamentarians who don’t understand how the law works, in spite of themselves being the lawmakers.
PS: The SIC committee is known formally as the Parliamentary Joint Committee on Intelligence and Security
SPEECH: Common Law Constitutionalism, Robin Cooke Lecture, Wellington, New Zealand, 27 November 2014
* For background on author and political commentator Bill Rowlings, see: https://www.cla.asn.au/News/cla-board/