I’m not the first to point out the incredible disconnect of Team Albanese when it comes to our top judges, but let me repeat the key point. This Labor government spent nearly a year and a half assuring us that the present High Court of Australia was a perfectly safe pair of hands should we Australians vote ‘Yes’ to the Voice in a s.128 constitutional referendum. Yep, even though Albo agreed to give the proposal its own chapter in our Constitution that, apparently, was nothing to worry about. Ditto the fact it would cover the Executive as well as the Legislature. No worries that ‘may make representations’ would undergo a bit of judicial prestidigitation and become ‘a right to be consulted’. No worries that the judges who brought you the Love case (that invented out of thin air a special right for those non-citizens of Aboriginal genealogy and hence re-wrote our Constitution) would use the Voice to redraft other aspects of it. No worries that this Voice body would have input into every single Bill before Parliament and to whatever they wished as regards Executive actions. Or that governmental action would seize up (for right-leaning governments, at any rate) or require rent-seeking payments to get anything done. You see, the Albo line was that our top judges were a perfectly safe pair of hands.

I never bought that insouciant prognostication for one second. This, and recent iterations of the High Court, are activist. We’ve seen this juristocracy activism in matters related to Aboriginal litigants. We’ve seen it with the burgeoning desire to conduct proportionality analyses (aka legislate from the bench) – as though the judges’ view of what is reasonable and suitable and justifiable is somehow morally superior (or preferable) to what elected politicians think (who, by contrast, are at least accountable for their views at the ballot box). We’ve seen it with the uber-centralising tendencies in federalism disputes (which is hard to believe given that our top court for the past century has been the most centralising top court in the federalist world, bar none). But the line run by Labor and this Albanese government during the whole Voice campaign amounted to ‘nothing to see here folks’.

Until now. In the aftermath of the NZYQ case, in which the High Court ruled sections of the Migration Act to be unconstitutional, the new line out of the Albanese governments amounts to: ‘What can we do? It’s the High Court? No one can really predict what these judges will do.’ Notice the disconnect? The hypocrisy even? As someone who thinks this current High Court is clearly at the activist end of Australian judicial behaviour – by which I mean this and recent High Courts have been ever more willing to gainsay and second-guess and over-rule the elected branches – I have a bit of sympathy for the Albanese government. (Did I say that out loud? Yep. Because I do. I call them as I see them.) With all due respect to those who are downplaying what the High Court did in NZYQ, let me be plain. They overturned a 2004 Al-Kateb case directly on point. The majority judges in that 2004 case were some of the best High Court appointees (in terms of being interpretively conservative) in any of our lives. By contrast, the reasoning in this NZYQ case is weak. It prefers loose talk about evolving understandings of the Constitution over blunt talk that the judges got it wrong in 2004 (so masking what they are now doing). It relies, weakly in my view, on an amorphous principle from an even older case than Al-Kateb. It more or less mandates releasing anyone once it is unlikely he or she can be sent home or anywhere else (though why the government in court ever concedes that anyone is unlikely to be sent home is beyond me). And worst of all – and here I find myself agreeing with the gist of an op-ed in The Australian by Greg Craven – is the whole basis for this invalidating of these provisions of the Migration Act. It is one wholly made-up by the judges themselves. (By the way, where was Professor Craven’s scepticism of activist judges when he was pushing a ‘Yes’ vote to the Voice?)

You see, what was in play in this recent case is known as the Separation of Powers doctrine. It’s based more-or-less on the fact that our Constitution comes in differently enumerated chapters. (See above about one of the huge risks of that Voice proposal being given its own chapter.) It emerged in about the mid-1950s. Or if you prefer, that’s when the judges began to create this doctrine that allowed them this power. From then on we see an ever-growing body of case law that separates what the judges can do from what the elected branches can do. Be clear. Nothing like this exists in Canada, in Britain, or in New Zealand. And people in those countries are all as free and as democratic as we are. It also seems to me to be clear that not one of the framers or ratifiers of our Constitution imagined that he was giving this sort of ‘separately enumerated chapters in the Constitution gives a nowhere explicitly granted striking down of statutes’ power to the judiciary. No. The judges gave it to themselves. They did the exact same thing, only worse, in making up out of thin air (oops, I mean ‘discovering in the unwritten and unintended bowels of the Constitution’) the implied freedom of political communication doctrine. I’ll be blunt. Interpretation is seeking the intended meaning of those with the legitimate authority to make a law or the Constitution. Neither the implied freedom nor the Separation of Powers doctrine counts as a plausible interpretation of the text in my view. It is judicial amendment at the point of application.

Now that view of mine is very much a minority one on this. (Likewise, how many constitutional law professors in this country were openly against the Voice? You’ll only need one hand to count them.) Still, the fact remains that our top judges have slowly created in themselves a power to invalidate laws based on the idea that there are some things only the judges can do. Again, this doesn’t exist in Canada, Britain or New Zealand. And the High Court of Australia then used this amorphous notion to strike down the relevant parts of the Migration Act that dealt with indefinite detention of non-citizens. Worse, they overturned a clear precedent that had stated these sections were constitutional. Worse again, four of the seven top judges are Coalition appointees (just as three of the four in the majority in Love were Coalition picks). And worse again and again, this NZYQ case was a unanimous decision – not a single Justice of the High Court opted to dissent and say that Al-Kateb had been rightly decided.

This state of affairs is not all Labor’s fault, is it? And here’s another point. Remember back to the brutal lockdown response to Covid where the politicians and bureaucrats who made the calls bore virtually none of the costs – disgracefully Mr Morrison and Co. did not even take a pay cut in the name of the patently false ‘we’re all in this together’ sloganeering? While deciding which businesses were essential (and hence some of which would go under etcetera) they kept their jobs and in some ways had even more power than before. Well, that sort of ‘not paying the costs of one’s decisions’ is analogously in play here too. Our top judges will not bear the costs of the fact that many of these very dangerous people will have to be let out into the community. It’s not as though a government is going to rent a house on the same street as one of the top judges and house the newly released people there, is it? No, it’s the poor and the working class who will bear the costs of inevitable repeat offending. This is the point that Nassim Taleb makes, that better decision-making flows from ‘having skin in the game’. Anyway, I suppose some sort of jerry-rigged scheme will be constructed with ankle bracelets and incredibly expensive monitoring that might limit the damage. But it will not be as effective as incarceration. These are people who came here claiming to be refugees. (And don’t get me started on that treaty from the early 1950s that is undeniably out of date now nor on the patently undemocratic nature of international law that so many of our great and good – ‘Yes’ voters in large part – clearly prefer to letting matters be decided by the vote of their fellow citizens). These are people who can’t be sent back to their country of citizenship because the view is that would not be safe. No one else wants them, understandably. And agree or disagree with the hard-headed option of indefinite detention it was not as though the Minister had a blanket power to incarcerate willy-nilly. It was a very circumscribed power now undone by this judicially created Separation of Powers doctrine (that, again, does not exist in my native Canada and Britain and New Zealand).

To wrap up then, is Team Albanese useless? Yes. Is it a disgrace that it freed up the Australian Human Rights Commission to argue in court against the government’s own position (reversing the ban of previous governments)? Yes again. Are the bleatings of this Labor government incredibly hypocritical given their steroidal assurances of ‘nothing to worry about with our top judges’ during the whole year and half of pushing the woeful Voice proposal? You bet they are. But they weren’t solely at fault for what happened.

I’m a democrat from top to bottom. I really dislike unelected judges second-guessing and over-ruling the elected branches. It’s bad even when the elected branches explicitly give the top judges this power via some sort of bill of rights. But we haven’t done that in this country. Our problem is that in various ways the judges have simply given a gainsaying power to themselves. Here’s how it should work in a democracy. If you don’t like indefinite detention then vote for a political party that repeals the legislation. If you win it will be repealed and those who make that call will be accountable.

But that is not the world we live in. And so there is plenty of fault to go around on this but be clear that it is by no means all to be laid at the foot of this Labor government – look instead at who appointed whom and what our judicial caste considers to be its proper role.