It outraged the Coalition, who were flummoxed that three of the four judges in the majority had been appointed by the Abbott, Turnbull and Morrison governments. They had worked on the basis that there was no impediment if the government wanted to “send home” someone who was not a resident, and who had committed a criminal offence that carried a sentence of 12 months or more.
Submissions from former High Court judge Ian Callinan, former prime minister Tony Abbott, former attorney-general Philip Ruddock, former royal commissioner Terry Cole and the Samuel Griffith Society either cite Love or go down the “activist judges” road.
Another common thread is they vehemently oppose any process that would give most Indigenous people what they want – a representative body enshrined in the Constitution.
Callinan said it “would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality”.
“It was not until 1992, when the High Court was some 90-years-old, that it was able to discover in the text and structure of the Constitution something that had never been discerned before, an implied freedom of political communication.”
Callinan cited Love to refute the opinion of Solicitor-General Stephen Donaghue, KC, that there was no room for implications in the current drafting, such as a right for the Voice to be consulted.
“The opinion of the solicitor-general on any constitutional topic is worth having, but it is not the solicitor-general who has the say here, it is the [High] Court.
“Equally, the public might be interested in what the opinion of the solicitor-general was of the likelihood of success of the Commonwealth in the case of Love v Commonwealth.
“I doubt whether many lawyers or the solicitor-general, who unsuccessfully argued the case for the Commonwealth, gave an