The judgement that there is an implied constitutional guarantee of freedom of political speech is similar to the judgement, by very conservative judges, in the Concrete Pipes case. There is nothing in the Constitution to say that its fundamental purpose is to guarantee free trade between the states; and nothing in it to say that it is to be interpreted by reference to the disucussions which took place prior to its adoption. Yet that is what became a tenet of Australian law, until this sensible decision overturned it.

The main room for regret is that the decision is so limited in its scope.

As a law student I have read many of Mason's judgements and it was plain to me that he was as liable as any to look at facts, form a view as to what a just result should be, and then rationalise that result.

Despite the above, Chief Justice Mason, remains my favourite former High Court Justice. His decisions were sensible, yet compassionate and I think it is no unhealthy thing that our highest court is ruled by men who have the heart to take into account social and human implications when making their decisions.

History shows that the strict application of black letter law is the bane of justice.

only when the law is written by politicians, kalin.

allowing judges to write law may be better than letting pollies do it.

until, that is, you realize that pollies override judge law when they wish, both groups mining the pathetic oz constitution for their own guild profit or personal wishes.

I would recomend having at look at the constitutional debates.
these can be found by using "Constitutional Debates"
using catagory constitution.

Go to the Australian Parliament home and use the search function.

One could also send an email to this boke and have added link to his site.

Remember behind every document are debates, and it is the debates that define the constitution.

http://www.schorel-hlavka.com

Only elected representatives of the people should make the rules - all of the rules - NOT unrepresentative judges.

It's probably difficult for a lawyer to understand this.

Leigh,

While I respect the democratic principle behind your comment, our elected leadership make broad strategic level rules all the time, and leave the details to judges. It is impractical for things to work otherwise. There's also the vast common law which is all judge created based on their common sense - which has evolved and continues to evolve as our society and it's perceptions of common sense have evolved.

Why do we have these laws that are not of democratic origin? Because our system is imperfect and no-one, not even the great committee of elected politicians, is so omniscient as to be able to make up rules which cover every circumstance in a just way. To truly achieve the end you have expressed we should do away with courts altogether and have parliament sit on every one of society's disputes.

It may be hard to believe, but almost all the civil, and good number of the criminal trials/disputes that our judicial system deals with, arise because the laws are unclear or involve some highly subjective principle.

Thus we need judges.

Could they be elected. Of course, but then they would pander to their electoral supporters and lose their judicial impartiality. Would you really want to see the likes of Bob Brown, Pauline Hanson or Fred Nile presiding as judges.

Mason was a great High Court Justice, and despite haveing certain political leanings, he never, ever pushed these in a judical context, beyond what the elected representatives through the Constitution and or legislation, allowed. Moreover, democratic processes always have the last say under our Constitution because any decision of a judge can be reversed by legislative amendment, or in the case of a ruling on the Constitution by the High Court, by referendum.