My wife and I moved from pre-handover Hong Kong to Dunedin, New Zealand, back on Remembrance Day of 1993. I had got a job at the Otago law school. We stayed eleven years before moving to Brisbane. It was a wonderful place to live and to work – no overbearing university bureaucracy, a law school that made important decisions for itself (which never once has happened in my entire time in Australia), no insane one-size-fits-all, top-down uni ethos, and a broad range of viewpoints and political perspectives on campus. That said, I was one of the first critics of the then nearly new New Zealand statutory bill of rights. I wrote a number of critical academic articles including one whose theme was that these instruments are sold as harmless Clark Kent-type innovations but that they would slowly transmogrify into Superman-strength documents that handed huge powers to the unelected top judges. (And by the way, that New Zealand statutory model was copied by the Brits and then by the states of Victoria and Queensland, all for the worse to anyone who values democratic decision-making.)

Over the years my prediction has bit by bit been borne out. Here’s but one past example. When the Brits under Tony Blair opted to take the Kiwi statutory model and add a legislated ‘declarations power’ – a power to announce that ‘we unelected judges declare you politicians have breached this rights provision’, on some debatable, contested rights-related issue over which reasonable people disagree, often including the judges themselves in their 4-3 ruling – the top Kiwi judges knew that the NZ legislature had not given such a declarations power to them in their statutory bill of rights. So they simply gave it to themselves. Nice work if you can get it! Indeed, these days top judges around the common law Anglosphere simply do not care what the legitimate lawmakers intended when they made a law. They shun any interpretive approach (often labelled ‘originalism’) that seeks to limit outcomes by tying them to what the legitimate law-makers intended, a mind-independent constraining fact about the world. Can’t have those. So instead, most judges revel in the notion of ‘living constitutions’ and in the idea that the judiciary has its finger on the pulse of changing social values. Is there a more laughably implausible supposition? Top judges are the most cocooned, glad-handled group going.  Day in and day out they’re genuflected to by barristers and others, sometimes in ways that would make Uriah Heep proud, as well as being idolised by many law students whose adoration more than a few crave. You couldn’t pick a group more divorced from every-day life, nor one more shamelessly flattered.

Anyway, last week the top New Zealand court took this activism to a whole new level. Wait for it. The Kiwi Supreme Court declared that the law that set out a right to vote for those 18 and over was rights-infringing. Now which law set that particular age out? Why, it was in the statutory bill of rights itself in section 12. You see the Kiwi legislators clearly intended the right to vote to apply to those 18 and above. Remember, they put it unambiguously into the bill of rights itself.  To paraphrase a Kiwi commentator, the NZ Supreme Court last week decided that the NZ bill of rights breached itself. See if you can follow this serpentine reasoning. In the bill of rights there’s another provision dealing with discrimination, section 19.  And from there the judges wandered over to a discrimination statute and noticed that its purview for ‘age discrimination’ started at 16 years old. That’s enough detail to leave readers to work out for themselves the general structure, and pathetic implausibility, of what the judges did across the Tasman. They plumbed the depths of sophistical casuistry.  These are the same judges who uttered not a peep about Jacinda Ardern’s thuggish pandemic response being rights-infringing.

Now in last week’s column I pointed out that law schools have become comparative deserts if you seek any lecturers or professors to the right of an ABC current affairs presenter selected at random. Law schools aim to churn out ‘socially aware’ activists.  Law firms get these students. Law firms are now amongst the most woke workplaces going. And then it feeds into the lawyerly caste from which judges are selected. Back in the early 1990s I said that when you buy a bill of rights, all you are ever buying is the views of the top judges. I preferred the elected legislators who are accountable to all of us voters. But I never would have guessed back then the degree to which top judges would allow their commitments to ‘social justice’ to infect their ability to deliver what most of us would describe as ‘plausible interpretations of the legal text’. And it’s not just New Zealand. The 2020 Love decision by our High Court is almost equally open to being described as ‘activism on steroids’ or ‘judges imposing their druthers on the rest of us, the wording of the legal texts be damned’.

Two ancillary points are worth making here. One is that these days we often see a sort of tag-team effort to get controversial social policies brought in. First off, the top judges will purport to ‘discover’ some rights entitlement based on some interpretive innovation (again, I speak as kindly as possible). Then, right on cue, the left-wing political party will say ‘we have to legislate this because the judges have declared this is a timeless fundamental right’. Without the judges they never could have gotten it enacted you understand. And that’s what NZ Prime Minister Jacinda Ardern did right on cue last week. Or in Australia realise that since the ‘implied freedom of political communication’ was first ‘discovered’ by the High Court deep in the entrails of a then nine-decades-old Constitution that overtly had rejected any such explicit right, the only legislation that has ever been struck down and invalidated using this ‘implied freedom’ has been Coalition legislation. Never Labor legislation. Mirabile dictu!

Second point. It is these top judges with these proclivities that advocates for the Voice tell us will not be activists when it comes to interpreting its provisions. ‘Nothing to see here Australia. Don’t you fret.’ Chris Kenny says that. Greg Craven says that. The whole bureaucratic establishment trying to ram this down our throats says that. Yet the evidence from Canada, from NZ, from here, is that the judges will be activists. Maybe not right away. Maybe not in huge leaps. But just as with bills of rights,when you buy the Voice you will be buying the interpretive views of the top judges as regards its reach and power.

Rather than just seeing opponents of the Voice being insulted and called ‘hard right zealots’ or ‘ideological partisans’ I’d love to hear advocates of the Voice actually tell us why our top judges will not be activists in this area when they (and most all of their confreres around the common law world) are playing so interpretively fast and loose in all other areas of public law. Good luck with that attempt.