Our top judges are vying for the title of the most activist judges in the common law world

Our top judges are vying for the title of the most activist judges in the common law world. By James Allan, Garrick professor of law at the University of Queensland.

This week’s High Court of Australia case, Love v Commonwealth, on the question of deporting plaintiffs who were born outside Australia, are foreign citizens and who have not been naturalised or made Australian citizens, but who claim to be Aborigines, was in my view a disgrace.

By 4-3 it effectively constitutionalised identity politics; in a weird sort of way it elevates the common law — judge-made law to be clear — above the Constitution itself; it introduces a race-based limit on the parliament’s power …

It looks very much to be a clear case of outcome-oriented judging, meaning you start with the conclusion you want and then struggle to find rationales to get you there.

Sounds harsh, I know. But I stand by all of the above claims. …

Brendan Thoms, left, has more rights than most Australians reading this, because he is aboriginal.

The third dissenter, Justice Patrick Keane, comes out and says what the vast preponderance of Australians believe. “There is no support in the … Constitution for the contention that there is a special class within the people of the Commonwealth who, by virtue of their biological descent … enjoy a constitutionally privileged [position].” …

The other three majority judgments, by Justices Geoffrey Nettle, Michelle Gordon and James Edelman, indulge in all sorts of politically correct nostrums and observations that sound far more political and activist than legal and constitutional — all basically leveraging or bootstrapping off the common law decision in Mabo to end up with a constitutional outcome that amounts to a just-discovered limit on the elected parliament’s power.