A “shameful”, “paternalistic”, “absurd” and “radical” decision by Australia’s High Court has exposed, for all to see, the danger of the current push for “constitutional recognition” of Aborigines, and of unelected judges taking it upon themselves to usurp the power of parliament and the people who elect it. Especially judges who base their decisions on magic, not hard-headed logic.

A landmark High Court ruling has found indigenous people — even those born overseas — cannot be considered “aliens” under the Constitution and deported on character grounds.

The 4-3 split decision on Tuesday was described by the Morrison government as creating “a new category of persons”, while constitutional lawyers said it could create “special rights or privileges” for Aboriginal people.

The case was in regard to two men, neither of whom was born in Australia or had ever bothered to take out Australian citizenship, and who then committed serious crimes occasioning bodily harm in Australia. As thousands of New Zealand-born criminals have discovered, Australia has no hesitation in removing such people from our shores.

Unless they can claim membership of a racial elite which has rights and privileges every other race in Australia is denied.

Judges Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman ruled that the ­tripartite test of biological ­descent, self-identification and recognition of Aboriginality by a traditional group — established by the Mabo native title cases — meant Aboriginal people “are not within the reach of the ‘aliens’ power conferred by the Constitution”[…]constitutional law expert Anne Twomey says the most contentious aspect of the judgment is whether it creates “special rights or privileges” for Aboriginal people­ and creates a race-based constitutional distinction.


Small wonder that this is being criticised as the “most radical instance of judicial activism in Australian history”.

As critics are noting, not only does this enshrine racial separatism at the highest levels of Australian law, it gives an unelected group, based solely on race, the power to override the government and the courts on immigration matters.

The lunacy at the heart of the latest­ decision by the High Court comes down to this: this is pure racism­ built upon an illegitimate exercise of judicial power.

By the narrowest of margins, the nation’s highest court has elevat­ed a racial distinction to a position of constitutional privil­ege that would never be accepted if such a question were put to the people at a referendum.

Four of the court’s seven judges have pre-empted the people of this nation by injecting a new ­racist concept in the Constitution that can only be overturned by referendum or a future High Court.

This shameful ruling has punched a hole in the principle that everyone is equal before Australian law and has eroded the federal government’s ability to protect the community from foreign­ criminals who have never tried to become citizens.


As I have written before, Australia’s highest court now explicitly endorses magic.

Justice Gordon considered that the concept of belonging had to be connected to the territory of Australia. She pointed out that Australian law already recognises the connection between Aboriginal Australians and Australia’s land and waters[…]Justice Edelman also discussed the “powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia”.

This is magical thinking. The law paid short shrift to a fringe Christian group here in Tasmania who refused to pay council rates because, they said, “the land belongs to God”. If Christian “spiritual connections” are illegitimate when it comes to matters of law, then why are Aboriginal “spiritual connections” somehow protected – except on the basis of racial separatism?

Most bizarre – and a perfect example of the soft racism of the left – was this:

The most potentially radical judgment was that of Justice Nettle. He concluded that the crown owes a unique obligation of protection to Aboriginal people, who in turn owe permanent allegiance to the crown.


As one of the dissenting justices pointed out, this is “rank paternalism”. It’s also demonstrable nonsense to assert that Aborigines ipso facto “owe permanent allegiance to the crown”. Just ask the Aboriginal protesters screaming to “burn Australia to the ground”, and “abolish Australia”.

The only silver lining to come out of this mess of judicial activism is that it will almost certainly be the final nail in the coffin for the “Recognise” referendum push. Australians are notoriously averse to passing referenda. Now that they’ve seen just how many liberties activist judges will take with the constitution, they’ll almost certainly run a mile from giving them any more rope to hang us with.

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Lushington D. Brady

Punk rock philosopher. Liberalist contrarian. Grumpy old bastard. I grew up in a generational-Labor-voting family. I kept the faith long after the political left had abandoned it. In last decade or...