February 11th 2017


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Articles from this issue:

COVER STORY Free-trade policy sending manufacturing into free-fall

CANBERRA OBSERVED Jeers at suggestion we not be fringe dwellers

EDITORIAL Nothing new among Trump's executive orders

QUEENSLAND Pro-life Brisbane marches as abortion vote nears

GENDER POLITICS Autism, gender-dysphoria link: the evidence mounts

EUTHANASIA Quebec, Dutch, Belgian and Oregon laws a 'mess'

OBITUARY Scholar's passing is our common loss

WESTERN CIVILISATION The owl of Minerva: the signs of times past

POETRY Hal Colebatch: the poet who celebrates heroism

POETRY

MUSIC Juggling with time: it's all in the head

CINEMA What doesn't kill you makes you stronger: Split

BOOK REVIEW Teen brings 'penny dreadfuls' to life

BOOK REVIEW Money and quantum physics

LETTERS

EDITORIAL The future of Senator Cory Bernardi

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LETTERS




News Weekly, February 11, 2017

A true choice booklet

It is not often something attractive comes out on the subject of abortion, and can be accessed directly on a computer. But the Texas Department of State Health Services has brought out a booklet for women to read, to help them make decisions regarding a very personal matter that can change their lives forever through unexpected pregnancy.

It is a 24-page beautifully produced booklet, with lots of information for a woman to read on options available to her. Part of the contents is directed at people living in Texas, such as help phone numbers and other services that are available there.

A similar booklet could be produced for Australian women to use in conjunction with abortion help phone lines in Australia. To find the booklet, do a search on Google for “a woman’s right to know Texas”.

Robert Bom,
West Rockhampton, Qld.

 

Constitutional question

I draw your attention to an article by Professor Anne Twomey in volume 88 of The Australian Law Journal at page 613, commenting on the decision of the High Court to invalidate the ACT Same-Sex Marriage Act.

I agree with Dr Augusto Zimmermann (News Weekly, August 27, 2016), who sets out the normal approach to constitutional interpretation. Professor Twomey, however, points out that the High Court has ruled out any reference to the intentions of the Founders, and any limitation of various terms to the definition of those terms in 1901.

She also comments on the way the High Court extends its function by deciding matters beyond those necessary to the determination of the case before it. This it did in the present case, as it did in the Mabo decision.

The more serious matter is the new principle of interpretation the court introduced on the basis of treating words and terms in the constitution as topics of “juristic classification”. On this basis, the High Court really claims the exclusive right to interpret any term in the constitution.

Extending this approach, the court argued that because there were in existence other kinds of marriage, the term marriage could not be confined to the traditional view exemplified in Hyde v Hyde. Therefore, the Commonwealth government would have power under section 51 to determine what marriages were to be lawful and legislate accordingly.

Thus no amendment of the constitution would be required to enable the Commonwealth Parliament to legislate for same-sex marriage (or for any other type of marriage, for that matter, currently permitted in any other country)! Plural marriage next?

Dr Frank McGrath,
Hazelbrook, NSW

 

In reply

I thank Dr Frank McGrath for his letter. In my article I say that, were the court to be truly faithful to the constitution, then judges would be interpreting the document according to the drafters' original intention.

Dr McGrath writes that: “Professor Twomey points out that the High Court has ruled out any reference to the intentions of the Founders, and any limitation of various terms to the definition of those terms in 1901.”

This may be so. Yet, it is the constitutional text itself that is ultimately binding in constitutional law, not ill-conceived court decisions.

As the late Justice Felix Frankfurter of the U.S. Supreme Court pointed out: “Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” (Helvering v Hallock, 309 U.S. 106, 119 (1940))

In Australia, Justice Isaac Isaacs once reminded us that some decisions need to be overruled because “it is not … better that the court should be persistently wrong than that it should be ultimately right”.

Judicial decisions must be critically analysed in light of the constitutional text and the best principles of constitutional hermeneutics. In other words, what the court says is less important than what the court ought to have said.

As Justice Frankfurter also correctly stated: “The ultimate touchstone of constitutionality is the constitution itself and not what we [that is, judges] have said about it.”

Augusto Zimmermann
Murdoch University, WA

 

Last word on car industry

Jeffry Babb (News Weekly, December 3, 2016) scolds me for allegedly recommending “the most bizarre business proposition” he had ever come across. He was referring to government transfers to car makers as if their only rationale was the anticipated return from taxation.

Government industry policy should not be compared with corporate business decisions. Governments should try to provide an environment that encourages investment. Only communist command economies attempt to make business decisions. Governments should concern themselves with a balance on the current account, full employment and the equitable distribution of income.

I once had the pleasure of talking with B.A. Santamaria about the unintended consequences of economic policy. He anticipated a chronic blowout in our current account deficit. He believed that industries that tackle that problem should be encouraged and protected.

If Mr Babb had read carefully, he would have noticed my reference to “indigenous” component manufacturers that earned “real national income” through exports and import replacement.

Let's concentrate on our $1 trillion foreign debt and what is to be done about it.

John Spooner,
Williamstown, Vic.




























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