My family and I arrived in Australia in January of 2005. So I’ve been here nearly two decades now. As it happens, the very last peer-reviewed legal article I wrote before moving here was for an Australian law review. It was on the Al-Kateb case. That was the 2004 High Court of Australia 4-3 decision that rejected the appellant’s argument that he should be released from detention because the Migration Act did not authorise what could turn out to be indefinite detention. For the government to win it had to prevail on two questions. Firstly, that this statute, properly construed, did authorise what could turn out to be indefinite detention. And secondly, that the relevant sections of this statute were (and today are) within the legislative power of the Commonwealth. In that law review article of mine I argued that the majority judgments (by Justices McHugh, Hayne, Callinan and Heydon) were far more convincing than the three minority ones. They were better in terms of how properly to interpret statutes; better too in terms of how to interpret Australia’s constitution; and most importantly they were better in terms of democratic theory and legitimacy and the role that blatantly undemocratic international law ought to play in all of the above.

Fast forward some eighteen years and we know that today’s presently constituted High Court must have overturned (implicitly or explicitly) Al-Kateb in changing its mind about indefinite detention which has resulted in the release of 93 very dangerous people and counting. Now I can’t comment on the High Court’s reasons for this change of mind because no reasons for its ruling have yet been released. That’s not unheard of but boy is it rare. But as I was wholly convinced by the majority back in 2004 it would take some pretty novel arguments to make me think whoever is in today’s majority of the High Court was correct to overturn Al-Kateb.

Some readers will recall that a few weeks back I argued that the current High Court is the weakest one in living memory. We are seeing the fruits of that now. The one High Court Justice who has been getting constitutional calls right of late is Justice Steward so I’m going to go out on a limb and predict that he dissented from this recent judicial handiwork. But as for the rest of the High Court justices who knows? As I have said again and again since the infamous Love decision of 2020, the nine years of Coalition governments are as responsible for this activist High Court as anyone. The only thing that has changed since 2004 is who is on our top court and it was Liberal attorneys-general who appointed three of the four majority judges in Love; who appointed almost all the justices who made what I consider to be the woeful decision in the Peter Ridd case; who appointed two of the justices who sided with the majority in the Vanderstock case that drove the final spike into the heart of our dying federalism arrangements; and who chose a majority of the current High Court justices. Let me put it this way. When I watch the Sky News ‘after dark’ hosts lamenting what is happening right now with these just released 93 (and counting) dangerous people I want to yell at the TV ‘but it was the Liberal party’s inability to take appointments seriously, especially top judicial ones, and to have the bravery to resist identity politics appointments, that has caused this – why don’t you talk about that?’. As ye sow, so shall ye reap. Right?

Here’s another way to make broadly the same point. I’ll illustrate it by talking about the UK judges as this problem of judicial activism is rife across the Anglosphere world. British legal academic David McGrogan has carefully compared five big cases there, all decided (or in the last one refused to be heard) by the UK Supreme Court. There was the very recent Rwanda scheme case; the two big Brexit/Miller cases (the Royal Prerogative one and then the proroguing parliament one); the then-Prince Charles letters Evans case; and the attempt to overturn the lockdown regulations Dolan case. All could be understood in terms of civil liberties and rights, or the rule of law, or the ‘principle of legality’. But as Professor McGrogan concludes ‘it is impossible to determine when the courts will concern themselves with the effects of policy on the protection of fundamental rights and when they won’t – except through speculation about the political preferences of the judges…. To be blunt, it seems to be the case that fundamental rights are taken very seriously by courts when that would produce an outcome that is roughly in line with the views of the average… Guardian journalist’. So in the first Brexit/Miller case the UK Supreme Court overturns all precedents about the prerogative power to make and unmake treaties and supercharges the role of the judiciary on the penumbral claim Boris was indirectly depriving citizens of EU rights (with every single judge deciding the case known, or very likely, to be a Remainer). McGrogan says, ‘This was transparently an attempt to thwart Brexit,’ and I agree with him. The second Brexit/Miller case about proroguing parliament was maybe worse, remembering that past Canadian and British governments had prorogued parliament. But not this time. This time the judges stopped it on the grounds of punctiliously upholding any potential rights infringement. Same again with the recent Rwanda scheme case of AAA. And yet again when it came to Prince Charles’s remarkably anodyne letters (revealing, amongst other things, a fascination with rare birds), even if that meant the judges ignoring the clear words of the Freedom of Information Act in the name of a nebulous, judicially created ‘principle of legality’.

Maybe we could stomach all of this judicial over-reach and usurpation of the elected branches if it were consistently applied. But no. Take the Covid lockdowns and the massive executive overreach – worse than World War II in various ways – that delivered the most pervasive and thuggish interference with civil liberties in two hundred years (Lord Sumption’s words, not mine) and the UK Supreme Court did not want to hear about it. A ‘litany of flagrant breaches of the most rudimentary elements of the separation of powers, which saw the executive… making up phoney rules on the fly’ (McGrogan’s apt description) and the courts suddenly want nothing to do with overseeing the elected branches. And the Dolan case was one of many judicial review attempts that went nowhere – a recent Edinburgh Law Review article looking at the whole of the Covid period finding only one successful challenge to any Covid regulation (in Scotland) on a peripheral matter ‘with no concrete implications’. Put it this way, no one can look at recent top-level constitutional law decisions and think, ‘the underlying core views and values of the judges do not matter to how they decide’.

We are lucky in Australia not to have a bill of rights or EU-type background treaties that supercharge the judges’ power and input.  But though less serious, it’s still a problem here. Look at any Anglosphere common law jurisdiction and it’s plain that whom you appoint to the top court matters and matters immensely. Nine years of Coalition government gave us appointees (Steward seemingly excepted) who are undoing the work of McHugh, Hayne, Callinan and Heydon.