Comments on: The Threat of Judicial Activism http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/ Bill Muehlenberg's commentary on issues of the day... Fri, 12 Mar 2010 14:20:08 +0000 http://wordpress.org/?v=2.9.1 hourly 1 By: Damien http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108878 Damien Tue, 04 Nov 2008 07:39:36 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108878 Ewan and John That is great stuff on the native title issue. Thanks for the education! Damien Spillane Ewan and John

That is great stuff on the native title issue.

Thanks for the education!

Damien Spillane

]]> By: Gerard Flood http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108639 Gerard Flood Mon, 03 Nov 2008 05:42:54 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108639 Dear Bill, Congratulations for a very important piece! Great leadership! Especially praiseworthy is your addressing corrective actions. Also required is that defenders of democracy must, at parliamentary elections, make an issue of the Parties' policies and performances in judicial appointments. Until we like-minded democrats seek cohesive and cogent electoral effectiveness, we can't progress this issue. It is no comfort that judicial activism in Australia long pre-dates the libertarian assault on the citizenry. Some judges want to rule, instead of honoring their prescribed duty. It's really a power struggle against the sovereignty of the citizens. Well done! Gerard Flood Dear Bill,
Congratulations for a very important piece! Great leadership! Especially praiseworthy is your addressing corrective actions. Also required is that defenders of democracy must, at parliamentary elections, make an issue of the Parties’ policies and performances in judicial appointments. Until we like-minded democrats seek cohesive and cogent electoral effectiveness, we can’t progress this issue. It is no comfort that judicial activism in Australia long pre-dates the libertarian assault on the citizenry. Some judges want to rule, instead of honoring their prescribed duty. It’s really a power struggle against the sovereignty of the citizens. Well done!
Gerard Flood

]]> By: John FG McMahon http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108607 John FG McMahon Mon, 03 Nov 2008 02:51:04 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108607 Ewan, Having lived in North Queensland, Papua New Guinea or the Solomon Islands for many years I am very familiar with both Melanesian and Aboriginal cultures. There is no doubt of the entitlement of the Melanesian Australians to their traditional lands same as we are entitled to freehold ownership of our own properties. Equally adamantly the Aboriginals had no illusions that the Great Spirit of the Land owned them and their individual spirits. It would have been "blasphemous" for any Aboriginal group or individual to claim ownership of any land. Thus the Aboriginal claims of recent times are politically not culturally driven. John FG McMahon, Kolonga, Qld Ewan,

Having lived in North Queensland, Papua New Guinea or the Solomon Islands for many years I am very familiar with both Melanesian and Aboriginal cultures.

There is no doubt of the entitlement of the Melanesian Australians to their traditional lands same as we are entitled to freehold ownership of our own properties.

Equally adamantly the Aboriginals had no illusions that the Great Spirit of the Land owned them and their individual spirits. It would have been “blasphemous” for any Aboriginal group or individual to claim ownership of any land.

Thus the Aboriginal claims of recent times are politically not culturally driven.

John FG McMahon, Kolonga, Qld

]]> By: Natasha Sim http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108605 Natasha Sim Mon, 03 Nov 2008 02:41:31 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108605 Hello John, Sorry for the confusion & thanks for the clarification. Yes, Mabo is factually different from other cases of Aboriginal land title. I was referring to the responses above re: native title in general, sorry for being confusing by mentioning Mabo! My point was that the legal concept of land ownership is always going to be couched in Western terms (eg. working the land, being settled rather than nomadic). It is fallout from the time of Babel that Western law/language is at a loss as to how to deal with Aboriginal connections to the land, and yet to not deal with it would constitute oversight. Ewan, Agreed, but I think it's also important to recognise that the legalism that stems from that idea may also cause serious injustice to disputants. Sometimes strictly interpreting the law will render to the litigant (after a costly and protracted process) an unjust outcome, though it also maintains the integrity of the system of laws. Natasha Sim Hello John,

Sorry for the confusion & thanks for the clarification. Yes, Mabo is factually different from other cases of Aboriginal land title. I was referring to the responses above re: native title in general, sorry for being confusing by mentioning Mabo!

My point was that the legal concept of land ownership is always going to be couched in Western terms (eg. working the land, being settled rather than nomadic). It is fallout from the time of Babel that Western law/language is at a loss as to how to deal with Aboriginal connections to the land, and yet to not deal with it would constitute oversight.

Ewan,

Agreed, but I think it’s also important to recognise that the legalism that stems from that idea may also cause serious injustice to disputants. Sometimes strictly interpreting the law will render to the litigant (after a costly and protracted process) an unjust outcome, though it also maintains the integrity of the system of laws.

Natasha Sim

]]> By: Ewan http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108594 Ewan Mon, 03 Nov 2008 01:55:58 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108594 John FG McMahon is right. I had forgotten that detail. The Mabo case applied specifically to a land claim on one of the Torres Strait Islands where there arguably was a strong claim to prior title. That decision in favour of Eddie Mabo was then unreasonably extended to apply also to the mainland of Australia, which as John points out is a completely different situation. The whole process was judicial activism from start to finish. The result is we now have a form of title (native title) which is racist (only applies to descendants of aboriginal Australians), and which caries pagan religious overtones. It gives tacit state approval to animism through a claimed "spiritual connection with the land". Ewan McDonald. John FG McMahon is right. I had forgotten that detail. The Mabo case applied specifically to a land claim on one of the Torres Strait Islands where there arguably was a strong claim to prior title. That decision in favour of Eddie Mabo was then unreasonably extended to apply also to the mainland of Australia, which as John points out is a completely different situation. The whole process was judicial activism from start to finish. The result is we now have a form of title (native title) which is racist (only applies to descendants of aboriginal Australians), and which caries pagan religious overtones. It gives tacit state approval to animism through a claimed “spiritual connection with the land”.

Ewan McDonald.

]]> By: Ewan http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108563 Ewan Sun, 02 Nov 2008 22:52:44 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108563 Natasha, the point about the judicial activism that led to the creation of native title is that it was properly the role of the legislature not the courts to determine this. Ewan McDonald. Natasha, the point about the judicial activism that led to the creation of native title is that it was properly the role of the legislature not the courts to determine this.

Ewan McDonald.

]]> By: John FG McMahon http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108559 John FG McMahon Sun, 02 Nov 2008 21:27:07 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108559 Natasha, The Mabo case has been hijacked. When one examines the background of Mr Eddie Mabo one learns that he was in fact Melanesian not Aboriginal. The Torres Strait Islands are populated entirely by Melanesians. In their culture they build robust and enduring houses in a community (village) in which they make gardens, build pens for domesticed animals, eg pigs and have a system of land ownership with the title passing from one generation to the next in a time honoured tradition. In some cases, in PNG for example, it is the women who hold the title. The Aboriginal culture is in stark contrast to the Melanesians. The Aboriginals did not own the land; the land OWNED them and quite often family groups of Aboriginals would wander hundreds of miles from their usual haunts depending on availability of food and to attend traditional gatherings such as the Bunya festival held every three years on Bunya Mountain in SE Qld. Mr Mabo was indeed entitled to customary ownership of land; the Aboriginals are not! John FG McMahon, Kolonga, Qld Natasha,

The Mabo case has been hijacked. When one examines the background of Mr Eddie Mabo one learns that he was in fact Melanesian not Aboriginal. The Torres Strait Islands are populated entirely by Melanesians. In their culture they build robust and enduring houses in a community (village) in which they make gardens, build pens for domesticed animals, eg pigs and have a system of land ownership with the title passing from one generation to the next in a time honoured tradition. In some cases, in PNG for example, it is the women who hold the title.

The Aboriginal culture is in stark contrast to the Melanesians. The Aboriginals did not own the land; the land OWNED them and quite often family groups of Aboriginals would wander hundreds of miles from their usual haunts depending on availability of food and to attend traditional gatherings such as the Bunya festival held every three years on Bunya Mountain in SE Qld.

Mr Mabo was indeed entitled to customary ownership of land; the Aboriginals are not!

John FG McMahon, Kolonga, Qld

]]> By: Natasha Sim http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108496 Natasha Sim Sun, 02 Nov 2008 13:52:39 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108496 I agree with the sentiment here about judicial activism. Generally it is a dangerous, due to the fact that judges are unelected (although having democratically elected persons passing laws hasn't seem to stop radical legislation getting through, re: abortion decriminalisation; when the intelligentsia of a country declines the rot will creep in no matter what protections are put up against it). However, addressing the comments above, I do think a willingness to heed broader principles of justice has in certain areas helped the development of law, especially in the area of contracts, where a blackletter interpretation of someone's signature on a piece of paper can occasionally result in grave injustice. There is a particularly difficult balance to be kept, and I'm sure it becomes more difficult to keep it when faced with two irreconcilable 'system[s] of law' and of land 'ownership', as the court in Mabo was. Sometimes a decision places before you two evils, of which you must choose the lesser. Natasha Sim I agree with the sentiment here about judicial activism. Generally it is a dangerous, due to the fact that judges are unelected (although having democratically elected persons passing laws hasn’t seem to stop radical legislation getting through, re: abortion decriminalisation; when the intelligentsia of a country declines the rot will creep in no matter what protections are put up against it).

However, addressing the comments above, I do think a willingness to heed broader principles of justice has in certain areas helped the development of law, especially in the area of contracts, where a blackletter interpretation of someone’s signature on a piece of paper can occasionally result in grave injustice.

There is a particularly difficult balance to be kept, and I’m sure it becomes more difficult to keep it when faced with two irreconcilable ’system[s] of law’ and of land ‘ownership’, as the court in Mabo was. Sometimes a decision places before you two evils, of which you must choose the lesser.

Natasha Sim

]]> By: Ewan http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108488 Ewan Sun, 02 Nov 2008 12:42:34 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108488 Damien did well to highlight that very clear example of judicial activism in the Mabo and subsequent Wik cases. In the first (Mabo) the court invented a "native title" right which applied to Crown land only, but the subsequent Wik case extended that title to leasehold (such as pastoral and mining leases) also. I think in more recent times native title has been extended to include much of the coastal waters around Northern Australia. Only freehold property is considered exempt from native title claims. In the process of inventing native title, the court also misrepresented the legal doctrine of <i>terra nullius</i> which historically simply gave European colonising powers the legal force to the claiming and settlement of lands where no recognisable system of laws or ownership of property was held to exist. The court however reinterpreted <i>terra nullius</i> to mean that the land was considered uninhabited, and therefore because Australia was clearly inhabited by the aboriginal people at the time of European settlement, the court could then somewhat disingenuously claim that <i>terra nullius</i> was a "legal fiction". Ewan McDonald. Damien did well to highlight that very clear example of judicial activism in the Mabo and subsequent Wik cases. In the first (Mabo) the court invented a “native title” right which applied to Crown land only, but the subsequent Wik case extended that title to leasehold (such as pastoral and mining leases) also. I think in more recent times native title has been extended to include much of the coastal waters around Northern Australia. Only freehold property is considered exempt from native title claims.

In the process of inventing native title, the court also misrepresented the legal doctrine of terra nullius which historically simply gave European colonising powers the legal force to the claiming and settlement of lands where no recognisable system of laws or ownership of property was held to exist. The court however reinterpreted terra nullius to mean that the land was considered uninhabited, and therefore because Australia was clearly inhabited by the aboriginal people at the time of European settlement, the court could then somewhat disingenuously claim that terra nullius was a “legal fiction”.

Ewan McDonald.

]]> By: Damien http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/comment-page-1/#comment-108482 Damien Sun, 02 Nov 2008 11:53:09 +0000 http://www.billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/#comment-108482 Bill You forgot to mention the infamous judicial activism of the 1992 Mabo case. The adventurous high court decision spawned a precedent for the writing of new legislature to deal with this venture that invaded political territory. Damien Spillane Bill

You forgot to mention the infamous judicial activism of the 1992 Mabo case. The adventurous high court decision spawned a precedent for the writing of new legislature to deal with this venture that invaded political territory.

Damien Spillane

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