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Love factually

A professor of law’s New Year’s Eve wish

8 January 2022

9:00 AM

8 January 2022

9:00 AM

This New Year’s Eve, instead of resolutions and promises, I made a New Year’s Eve wish. I think in today’s puritanical times (and if Mr Morrison is anything other than a poll-driven, focus group-guided PM, he is a modern-day Roundhead puritan) we can be sure MPs will not be making resolutions to improve our libertarian freedoms. But what about in the legal arena? You see, some readers might be wondering what the best wish for the New Year would be on the constitutional law front. And I’m here to reveal to you all what would be in my New Year wish-list letter on that question.

Remember last year’s Love case? That was the case on the question of deporting plaintiffs who were born outside Australia, who are foreign citizens and who have not been naturalised or made Australian citizens, but who claim to be Aborigines. That was the same case that in a 4-3 decision (three of the four in the majority being Coalition High Court picks I should stress) effectively constitutionalised identity politics. In deciding this case the majority justices opened up the constitutional law textbooks and delved into the meaning of such arcane legal concepts – and I am not making this up I assure you – but concepts such as ‘otherness’; or ‘deeper truths’; or, when it comes to Australia, of ‘connections [that] are spiritual and metaphysical’ to claim that judge-made law now recognises ‘that Indigenous peoples can and do possess certain rights and duties that are not possessed by, and cannot be possessed by non-Indigenous peoples of Australia’.And that was just Justice Gordon.

Justice Nettle talked of how ‘different considerations apply… to… a person of Aboriginal descent’. (One wonders why different considerations would apply in a liberal democracy committed to the rule of law and to formal equality, as opposed to one committed to the poison of identity politics, but I defer to Justice Nettle here.) He mentioned how the Commonwealth’s claims to the contrary ‘intuitively … appear at odds with the growing recognition of Aboriginal peoples as “the original inhabitants of Australia”’ and of their ‘essentially spiritual connection with “country”’. (Note here that top judges, all unelected and assigned the job of interpreting our Constitution, not drafting it, appear to be deciding key constitutional law cases based on their intuitions.) And wait, there’s more. Justice Edelman, in his judgment, talked of ‘essential meaning[s]’, ‘metaphysical construct[s]’, ‘powerful personal attachment[s] to land’ and so on. All in all this Love case elevated the common law – judge-made law to be clear – above the Constitution itself. Out of the blue 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. Given the tools with which the judges had to work – remember, Australia has no national bill of rights – this case was a stunning example of judicial activism with example after example of lunatic, post-modernist, steeped-in-identity-politics, blatantly activism-enhancing comments, and conclusions. And these three justices were all appointed by George Brandis and the Coalition!

Let me be blunt. This Love decision is all much of a muchness with critical race theory type premises – namely, that truth is not objective but is in the eye of the beholder and based on personal experience; that some groups of people (leave aside the scientifically illiterate and incoherent way in which people are allocated to these groups) are unqualified to comment on things affecting those in other groups; that belonging to racial groups should determine outcomes (often in a statistical sense); and so on.

All the various Gordon/Nettle/Edelman prattle is just about the worst sort of mumbo jumbo ever used in a constitutional law judgment, and it has repeated echoes of the worst aspects of critical race theory garbage. It is likewise premised on these judges having their fingers on the pulse of shifting community values (as if that should matter in constitutional interpretation), though to be frank I would have thought that if you were looking for the group of people least likely to have their fingers on the pulse of what the community does and does not recognise you would be hard pressed to do better than choose a cocooned committee of ex-barrister top judges who are genuflected before, day in and day out. It is a sad day when this sort of identity politics captures our top court.

And so for this new year I would like the High Court to over-rule this woeful Love decision. And there are faint signs that that just might happen. It seems a follow-up case premised on the same foundations as Love has been removed from the Federal Court to be heard in the High Court next year. Moreover, two of the four justices who were in the majority in Love have since retired, and if the Coalition in replacing them did not aim explicitly for appointees likely to overturn this case then it is even more incompetent than I think it is (which, believe me, is saying a lot).

Anyway, we will see if my new year wish is answered. Readers should notice that if the government argues explicitly for the overturning of Love, as I think it most definitely should and will do, then we are into one of the most interesting areas of legal philosophy in a common law system. As a top judge, is your highest loyalty to the Constitution itself – and to finding the meaning the legitimate authors and ratifiers intended – or is it to your fellow members of the lawyerly caste, the earlier judges who decided the similar case in a way with which you disagree?

Put differently, if you as a judge think an earlier case was wrongly decided do you follow it anyway (that, in large part, is known as the doctrine of stare decisis) or do you overturn it? This came up back in the Seventies in two cases about whether voters in the Territories could elect senators. In the first case, 4-3, the High Court said ‘yes’ (rightly in my view as this was a case with two mutually inconsistent provisions). A justice retired. He was replaced with one explicitly likely to decide the other way. In the second case that new judge did go with the earlier minority but two of the earlier minority flipped so as to uphold stare decisis and precedent.

However, I think that was wrong. In constitutional cases (unlike, for me, in common law and statutory ones), a judge’s highest duty is to a truthful interpretation of the Constitution (and to all the voters not before the court). If you believe the honest interpretation is ‘X’ then that should be your answer, then, now, and in the future. In my view it is plain that Love was wrongly decided. Do your jobs judges and over-turn it.

That’s my wish for the New Year. We can only keep our fingers crossed.

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