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Tôi không muốn phủ nhận rằng những mối nguy hiểm ẩn nấp trong bất kỳ tài khoản đầy khát vọng của các quy định của pháp luật, đặc biệt là một khẳng định rằng có những giá trị bất thành văn hiến pháp mà cơ quan lập pháp phải tôn trọng. | anxiety about judicial review of legislation 91 judges said Willis invoke their preferred maxims of statutory interpretation not as a means of discovering an unexpressed intent but as a means of controlling an expressed intent of which they happen to disapprove .54 I do not wish to deny that these dangers lurk in any aspirational account of the rule of law especially one which asserts that there are unwritten constitutional values which the legislature must respect. However there are dangers which lurk in the judicial stance which I have called constitutional positivism as well as in the position taken by Willis and those who follow him in the family of positions that make up the positivist tradition one which we have seen is deeply sceptical of judicial review and which has powerful torch bearers today in all three of the Commonwealth jurisdictions on which I am focusing. The dangers should be obvious. Whether such judges operate within a common law or division of powers constitutional order they cannot qua judge distinguish between a statute that permits arbitrary detention and a statute that regulates the most banal activity one can imagine. They might bleat about how they love rights as much as the next man but when push comes to shove it is the rights of the detainee that are shoved. But there is worse to come. It is one thing for judges to shy away from invalidating a statute when they have no explicit textual authority to do so. But it is quite another for them to refuse to interpret a statute in the light of unwritten constitutional values because as Willis suggested such interpretation is a means of controlling rather than determining intent. But this is precisely where constitutional positivism leads something well illustrated by the recent decision of the Australian High Court in Al-Kateb v. Godwin 55 a decision which though not about emergency legislation or national security is clearly one of a number of decisions by judges in the Commonwealth which .
