Eight hundred and five. Four hundred and twenty-two. The first of those is the number of footnotes. The second is the number of paragraphs of reasoning. That’s what you’ll find in the High Court of Australia’s recently decided Yunupingu case. That’s the case in which our top judges overturned a half-century old precedent that had been affirmed and affirmed and affirmed. Our top judges did that to hold that native title recognised at common law before the Native Title Act had been enacted, and that had been extinguished before that statute too, constituted an acquisition of property. And as this related to a territory the s.51 (xxxi) acquisition of property on just terms provision in the constitution kicked in. Let’s be honest. No one has a clue what the financial repercussions of this will be. First the judges ‘recognise’ native title in cases starting with Mabo in the early-1990s. The cases talk in terms of the common law doing this. But the term ‘common law’ stopped meaning ‘the law common to all’ centuries ago. The phrase simply means ‘judge made law’. It is a polite way of saying that it was our unelected judges who did the recognising. But such ‘judge made law’ constitutionally loses to statute law, to laws made by the elected legislature. So in that sense Mabo and later cases left parliament with the last word.

Now, though, native title has been half-constitutionalised via the just terms provision. That means that the elected legislators can do nothing if they object because the constitution trumps statutes. So the Crown (ie all of us taxpayers) has got to pay, even when the removing or ‘extinguishing’ happened before anyone had a clue this judge-made or judge-recognised native land title even existed. In fact, even when the ‘extinguishing’ happened back when the then top judges said it did not exist.

Notice two things. Firstly, this Yunupingu case creates a lot of uncertainty. And not just about how much money will potentially have to be paid out. It’s also not clear if our top judges will opt to do a bit more overturning of precedents down the road. You know – the way they overturned Al-Kateb last year to make dealing with illegal immigrants brutally difficult, however dangerous they might be. So as regards native title who now knows if the High Court might choose to look at what they did in creating, out of thin air, the so-called ‘implied freedom of political communication’. You’ll recall that that was where, after nine decades, our unelected judges ‘discovered’ (I would say they made it up out of thin air) something that had never been intended by a single person who drafted or ratified our constitution. Still, the judges ‘discovered’ this implied thingy (legal term of art) right after a s.128 referendum had failed to give them something similar. And they justified this ‘discovery’ by relying on laughably implausible reasoning that no one even tries to defend any more. So as I said, maybe our unelected judges can do some similar sort of hocus-pocus ‘look, it’s actually implied in the structure’ in the future to get around the fact that our constitution does not have any ‘acquisition on just terms’ provision that applies to the states. States can take and not pay. In fact, it happens not infrequently. Think of farmers and all the financial losses they have suffered with various state laws limiting how they can use their own land. No money need be, or often is, paid. Heck, sometimes the Commonwealth succumbs to the temptation to get the states to do the job precisely so no compensation has to be paid. Who wants to bet their mortgage that when it comes to native title our High Court won’t be creative and ‘fix’ this ‘anomaly’? Remember, this is the same court that only a few years ago gave us the Love case that relied on post-modern mumbo-jumbo and steroidally supercharged emoting to simply make up a constitutional limit on who the elected branches could deport. That was basically the worst-reasoned case I have ever read. Finding some rationale to make the states pay compensation – the words of our constitution be damned! – would be child’s play in comparison.

Let me put the Yunupingu decision this way. I think it settles once and for all the debate during the Voice about whether that proposed Albanese amendment (that lost in every state, even Victoria) would have the effect of triggering judicial activism or judicial usurpation of the parliament’s democratic role, call it what you will. There were many good reasons to reject that Albanese thought-bubble proposal. But for me one of the strongest was that it seemed overwhelmingly likely – given the current composition of our High Court which, to my mind, is the weakest maybe ever, but certainly since the second world war – that the current top judges would use the Albanese Voice provision to make-up all sorts of ‘implied’ further requirements. You know – by over-ruling long established precedents or by inserting new Love-type ‘implied’ provisions into our constitution. (Sidenote – our top judges sure do think there was an awful lot of implying going on when our constitution was drafted and ratified. Or at some unspecified later date by unspecified other people. Too bad they didn’t just talk about these things openly and, you know, put them explicitly into the document so the rest of us non-judges might see them.)

Put bluntly, that debate is over. The Voice would have given the High Court all sorts of tools to be even more ‘adventurous’ than what we’re seeing right now. And the judges would have used those tools. Indeed, it might be nice if the Greg Cravens, Chris Kennys and Julian Leesers of Australia admitted as much. During the debate around the Voice I had said I figured our top judges would wait 15 or 20 years and then the adventurism and activism and usurping would start. But now I’d cut those guesses in half.

Let me finish by returning to the start. Whatever you think of the substance of what our High Court is churning out, surely we can all agree that the form stinks. 805 footnotes. 422 paragraphs in length. Seriously? These cases do not read as though they were written so much as word-processed. One gets the feeling that the footnotes are a sop to the law clerks who have to do something I suppose. Go back and read cases from forty or fifty years ago and notice the difference to today. Meanwhile no sane person who wasn’t a sadomasochist or employed to do so would wade through these cases.

Luckily for readers I have run out of space or I would have to take you through the MZAPC High Court case that is part of the recent judicial edifice making deporting people from this country ever more difficult. Brought to you in large part, remember, by Coalition judicial appointees. That said, Mr Dutton is correct that something has to be done. Our judicially rewritten constitution is becoming a real problem. But his suggestion, limited to dual citizens, is far too narrow.