On the High Court

Joe Boswell writes: Re. “Hinch’s Senate Diary: funny cigarettes in Point Piper, resignations and the year in review” (Thursday)

It is disturbing and dangerous that various elected representatives and some ministers choose to criticise, traduce or even threaten the courts for doing exactly the job they are required to do. Senator Hinch’s opinion:

I think the High Court was grossly unfair to disallow Nash’s original replacement Hollie Hughes because she took “coin from the Crown” later in 2016. She was “clean” when she nominated and when the July 2 election was held. The Senate seat was hers.

The High Court’s verdict is not about being fair. It is based on applying the law to the evidence: let us be thankful. Hughes was not eligible because at a relevant time she had an office of profit under the Crown. That relevant time is determined by the Constitution as interpreted by the court. Despite anything Senator Hinch might imagine or wish, the relevant time extends from nomination until the seat is filled. So, the High Court could either apply the law or make up something in order to give Hughes a free pass. Can Hinch explain how his conclusion is fair to anyone disqualified by this rule previously, or fair to Jim Molan, the properly qualified candidate who must be excluded if Hughes was given the seat regardless?

I’d rather have the Constitution applied consistently as written, which accords rather better with notions like the rule of law and equality under the law. If there is unfairness here, it is written into the Constitution and it is ridiculous to blame the High Court for the consequences. Instead of making ill-considered attacks on the judiciary, Senator Hinch should remember that as a member of the legislature, if he really cares about this, he is in an ideal position to do something by seeking a change to these rules.

The Oath of Allegiance required from all members of the Australian Parliament is regrettably silent about upholding or respecting the Constitution.


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Peter Fray
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