Last week our top court, the High Court of Australia, garbed itself in the fashionable attire of the cult of progressive wokeness. As I wrote in the Legal Affairs page of the Australian ‘by 4-3 it effectively constitutionalised identity politics; in a weird sort of way it elevated the common law – judge-made law to be clear – above the Constitution itself; it introduced a race-based limit on the parliament’s power; it looked very much to be a clear case of outcome-oriented judging, meaning you start with the conclusion you want and then struggle to find rationales to get you there. And given the tools it had to work with it made it fair to say that our top judges are vying for the title of the most activist judges in the common law world.’ That was the Love v. Commonwealth case and in my view it was an out-and-out disgrace, a view shared by Janet Albrechtsen and others.
Here I want to leave behind analysis of that case and look firstly at how, generally, it happened and then secondly at what we might be able to do about it. And to start the explanation for how this woeful High Court decision came to be I think our first stopping point has to be the realisation that of the four judges in the majority – the ones who did all the above things – three of them were appointed by the Coalition. In fact, those three were the last three appointees, two by the Abbott government with George Brandis as Attorney-General and one by the Turnbull government, again with Brandis as A-G. Put bluntly, the supposedly ‘don’t fiddle with our written Constitution’, anti-judicial activism, pick constitutional conservatives political party in this country, the Liberal party, has proved to be one of the most useless, ineffective, asleep at the wheel conservative parties in the democratic world. Either that or it’s full of Manchurian candidates. What the heck were the other Cabinet ministers doing in the meeting when Brandis walked in and said ‘hey, have I got an interpretively conservative judge for you’? Sure, Brandis has now cemented his place in Australia’s history as by far the worst Liberal Attorney-General. But every Cabinet minister in the room when these judges were signed off on ought to be ashamed of him or herself. Totally ashamed! You might have thought that after the second of these picks, the one where Brandis opted for a world first and chose the wife of the retiring High Court justice to replace her husband – and yes, I still get emails from overseas expressing total incredulity about this – some of the more awake or at least sentient Cabinet ministers might have been reluctant to take Brandis at his word the next and third time he wandered in and said ‘yep, no doubt this one’s a real constitutional conservative’.
Want to know why then candidate for President of the US Donald Trump promised that he would only pick his future top judges from a list he would and did make public – and from which he has gone on to pick all of his top judges? (And which, by the by, was a huge reason for his eventual success in 2016 and a big factor in his likely re-election this year.) It’s because right-of-centre political parties around the Anglosphere, including the Republicans in the US, have bad track records on judicial appointments. Bad to awful. Right-of-centre parties, you see, have to be especially careful because so many judges, once appointed and immune from accountability, move to the interpretive, legislate-from-the-Bench Left. They seem to crave what some critics have dubbed ‘Hero Judge’ status where you deliver the next ‘social justice precedent’ and get feted at all the massively left-leaning law schools.
By contrast you have to sit down and think for a long, long time to find even one or two examples from anywhere of a judge appointed by the Left moving to the interpretive Right.
So it takes time to find your Callinans and Heydons, who were excellent choices. And indulging in identity politics is pretty much guaranteed not to be a successful route to finding such judges – whereas listing the names, publicly, of ones you’re considering at least keeps you honest by exposing the named people to the brutal acid of widespread public input and knowledge and criticism which has a far better track record than listening to the A-G of the day, advised by a department with far more lefty lawyers than righties.
At any rate, we now know that none of these three Lib appointee top judges appears to be a federalist committed to rebalancing our Constitution in the light of a hundred years of the world’s most pro-centre rulings; we know, astoundingly, that Labor is picking better constitutional conservatives than the Libs (witness Justices Keane and Gageler); we know that these latest three Lib picks appear to be willing participants in the ever expanding ‘implied freedoms’ jurisprudence under which the High Court has supposedly ‘discovered’ these pseudo-rights that allow them, the judges, to invalidate democratic legislation when no Framer or Ratifier intended this and when a Bill of Rights was explicitly considered and rejected; the justifiable grievances go on.
So what is to be done? Peter Dutton has said he wants legal advice (good luck with that) about rectifying this Love decision, maybe arguing the next case under a different head of power than the aliens power. I don’t see that having a chance. Here’s the first thing that needs to happen, but likely won’t. The Attorney-General needs to call the Solicitor-General in and tell him, order him, to take the position in every single future case that Love was wrongly decided. The judges will hate it. The lawyers will hate it. It should be done all the same; indeed this should be the attitude as regards the ever burgeoning implied rights case law too. Instead our Solicitors-General seem always to go into court the next time and concede that the last activist case was rightly decided. Capitulation writ large! The Constitution is not whatever the judges say it is. That’s deconstructionist nonsense. So it’s perfectly valid to argue ‘that case is wrong and we, the government, will never concede its rightness’. Judges have the authoritative last word, like a referee. They do not have Philosopher King-like unchallengeable rightness.
Meantime, with three upcoming vacancies to the High Court maybe this Morrison government might take its core responsibility here a bit more seriously. I’m trying to summon up a bit of optimism, but God it’s hard. Any readers confident on this?
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