Dear Janet,

We have had this discussion before, but it does not seem to sink in. Having read your article “Obama will Democratise the judiciary“, there are two matters with which I take issue. There should probably be more but these two are so significant that they would render any other issues irrelevant. I would sincerely welcome your response to these issues because I would really like to know whether the issues I raise alter your opinion in any way, and if not, how it is that you recast your argument with two of the central aspects on which it is based missing.

The two elements which I challenge you on are:

1. The Judiciary

You have misquoted Barrack Obama’s position on the appointment of judges. Perhaps you took your lead on this issue by listening to a Republican Party advertisement which also misquoted Obama’s view on the courts and the judiciary. If so this was lazy and sloppy research. The Republican campaign has throughout its duration misrepresented, distorted and lied in its attacks on Obama.

If you take the time to have a look here and here, you will find that what Obama really said is the opposite of what you (and McCain economics adviser Douglas Holtz-Eakin who started this lie) allege.

What you also fail to address is that judges appointed by Bush also engage in judicial law making. If you stand against judicial legislating you have to be even handed and condemn it wherever it is done, whether conservative or progressive. It’s just that if you take a conservative line, that is not legislating, but if you take a progressive view — shock horror — you are legislating from the Bench. In many of the Guantanamo cases it has been the Bush appointees who have sought to rely upon alleged “precedents” (e.g. the Quinlan Case) which have represented a twisted bastardisation of long established legal principles.

If you wish to see legal opinion that truly seeks to be legislative in its interpretation of the current law then read any of the infamous “torture” memos and the line of argument adopted by James Bybee, John Yoo and others to justify torture by the US in clear breach of not only international law (for which the advisors and Bush show complete contempt) but also of US law.

Yoo and other legal advisors literally take the view, which was also argued by the US Government in court, that when wearing his “hat” as the Commander in Chief of the US military, the President was not bound by any international law (including the Geneva Conventions and Convention Against Torture, to which the US is a signatory) and not bound by any US Federal law.

What an absolute outrage! Can you imagine if Bush had secured a majority on this proposition?! It would have been the greatest fraud of statutory interpretation and judicial legislating perpetrated by a court on the people of its nation since the Supreme Court fraudulently awarded George W. Bush the 2004 election.

You also refer to the findings in Mabo as a judicial fiction. Again you have seriously misstated the position of the Australian High Court. The court in Mabo in fact found that earlier decisions which found that Australia was terra nullius were wrong, and that it was the suggestion that Australia was terra nullius which was a judicial fiction which enabled the rights of our indigenous people to be effectively ignored.

You have again with your description of Mabo, just as with the Obama allegation, summarised the alleged position of the court in terms which are the exact opposite of what it was doing. The High Court in Mabo was addressing previous judicial law making by recognizing that the alleged “facts” on which previous decisions had been made were themselves a fiction.

2. An Australian Bill of Rights

Here, in suggesting that an Australian Bill of Rights would be a judicial license for judges to legislate, it is my view that you are again playing loose with the facts. The American Bill of Rights is a Constitutional Bill of Rights. I am not aware of any suggestion that Australia should adopt such a Bill. You omitted to mention in your article that Australia already hosts two Bills of Rights — in Victoria and the ACT. Failing to mention these Bills, and instead drawing your arguments from a faulty analogy with the US Constitution is, in my view, shows a contempt for your readers in so far as you seek to manipulate their opinions with your questionable reasoning. I can only assume that you have used the US Constitution, rather than the two Bills which already exist in the ACT and Victoria, for at least two reasons:

  1. Because it would be difficult to explain how, given your arguments against a Bill of Rights, these two Bills could exist without the world coming to an end in Victoria and the ACT; and
  2. If you referred to these Bills you would presumably have to explain that they offered NO scope for judicial legislation because under both Bills the relevant State and Territory Parliaments retain complete sovereignty. As I am sure you are already aware, these Bills seek to give human rights a higher profile by:

a) Forcing the framer of legislation to document a consideration of any adverse impact on human rights and draw these to the attention of the Parliament for consideration in the passage of that legislation through the Parliament;

b) Providing for the Courts to draw the attention of the Parliaments to any legislation which they consider impinges inappropriately on human rights.

How such legislation threatens a new era of judicial law making is beyond me — perhaps you could explain it further?

I look forward to your reply, perhaps even an erratum or at least an apology in the paper.

Kind regards,

Graham Dent