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.

If the polls are true, we’re about to have a Labor federal government, led by Kevin Rudd, who, as the premier’s closest adviser, was at the very heart of the Goss QLD Labor government that placed itself above the law, by illegally destroying evidence that they had been notified needed to be preserved for forthcoming court proceedings.
The Labor government gave undertakings to lawyers that the evidence would be available, and then immediately had it shredded, to avoid scrutiny of child sexual and other abuse , of children in state care…ensuring that the abuse continued …..it is inconceivable that Rudd , in his powerful position, didn’t know about and condone the whole thing.
Peter Beattie was chairman of the CJC at the time.
During the course of the subsequent extraordinary cover-up, the same government prosecuted and convicted to the fullest extent of the same law, an ordinary citizen, whose transgression was similar to , but much less serious than, that of the Labor government….they appealed his sentence , trying to get it upgraded to a jail sentence, knowing they had broken the same law themselves with impunity.
Soon after the destruction of evidence, a murder went completely uninvestigated by the QLD police, even though the perpetrator, ( who was connected to the sexual abuse matter, and who confessed to the murder twelve years later ) , was found right there at the scene, and was available for questioning in hospital for about two months.
An inquest was never held….separation of powers appear to have been non-existent.
The cover-up continues in Beattie’s QLD, while Beattie preaches to Howard on law matters.
Except for a few, the legal profession have played dead on the issue.
Rudd will be appointing three high court judges if the worst befalls us, so how could Australians have faith in separation of powers, and law as written , under Labor.
Google ‘The Justice Project’, ‘Lindeberg Petition’, ‘Dilkera O’Neill’

Dilan, While you may be a Lecturer with the Faculty of Law I view some of your comments are darn silly (politely stated) and if anything give me grave concern what on earth you are teaching in legal studies.
As a “CONSTITUTIONALIST” I have set out in my blog at http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_Q numerous constitutional issues.
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BECAUSE OF LIMITATIONS ON POSTING I HAVE SET A MORE EXTENSIVER RESPONSE TO YOU AT THIS BLOG.
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As an Attorney (not a lawyer) I assist people in their litigation and, so to say, eat lawyers and spew them out because of the rubbish they can come up with.
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As long as the judges are actually exercising judicial power under Chapter III of the Constitution it should not matter if their work shows a degree of recognition of the social consequences of their decision.
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Judges are to interpret the Constitution and any laws made within it as intended by the Framers of the Constitution, not to do their own social engineering!
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As for your “terra nullius” argument, the Constitution provides very limited powers to the High Court of Australia that is that the High Court of Australia was to adjudicate within the framework of the Constitution and so accept the States (formally Colonies) as was at Federation and not beyond! Hence, I view MABO decision as to “terra nullius” was beyond constitutional powers as was the Australia Act 1986 Sue v Hill decision.
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Surely, you as a lecturer should be aware that the Racial Discrimination Act 1975 is unconstitutional and so ULTRA VIRES?
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See further my blog, you may just "learn" something what is really applicable, constitutionally that is!

The critical point that is often missed in regard to the implied freedom of political communication established by the Mason Court is that it only protects political speech from official censureship.
It is a restricted freedom from law only. A politician, acting off his own bat, as a private citizen, is still legally entitled to attack political signage exposing his corrupt relationship with big corporations to prevent voters from finding out about it.
Thus the freedom of political communication is a deceptive title.

Prodigal