The recent NSW Court of Appeal decision in Jarrett v NSW stands as a stark monument to the folly of judicial activism. It says the legislation introduced by the Minns government, with bipartisan support, to stop the weekly occupation of Sydney streets by the hard-left, is unconstitutional.
To the ordinary Australian – the quiet citizen trying to cross the Sydney Harbour Bridge to get to work or reach a hospital – the ruling is not merely incomprehensible; it is an affront.
It is the latest fruit of a tree planted not by our Founders, nor by the people in a referendum, but by a handful of judges who, four decades ago, discovered a ‘freedom’ of political communication that appears nowhere in the text of our Constitution. They claim it is necessary for the system of government our founders designed and the people approved. Curiously, no one knew anything about it for most of the life of this country, enjoying uninterrupted freedom of speech and democratic governance for longer than all but a handful of countries.
Invention Without a Mandate
The logic is simple: if the Founders and the people who approved the Constitution in the 1890s had intended such a ‘freedom’ to exist, they would have put it in the document. They were precise people, well-versed in the protection of liberty through the mechanisms of responsible and representative government and the common law. They knew that true liberty is found in an ordered society, not in an abstract ‘implication’ that can be stretched or shrunk at the whim of High Court judges who began to replace the founding bench which included some who actually wrote the Constitution.
By the time we reached Lange v ABC in 1997, the judges were forced into a defensive posture. Their initial invention a few years before was becoming so confusing and legally unstable that they reacted like American pioneers moving into Indian land: they moved the caravans into a united defensive circle. Their ‘unanimous’ decision was less a clarification of law and more a tactical retreat to save a judicial creation from its own internal contradictions.
The False Promise of the US Model
In Lange, I argued as an amicus curiae on behalf of the Press Council that if the Court were to insist on this path, it should at least adopt the US model and create a clear, enforceable right. But an historical perspective suggests that even the American path is a trap. The US Supreme Court has yet again gone too far, creating a ‘public figure’ defence and a disregard for sub judice contempt that allows for a degree of defamation and trial-by-media incompatible with a civilised, ordered society. No society needs a system where a person’s reputation can be shredded with impunity or where a fair trial is sacrificed on the altar of sensationalism.
A Hierarchy of Protagonists
The ‘freedom’ we are left with today is not a shield for the citizen, but is, in my view, a license for judicial bias. We see an enormous discretion afforded to the bench.
On one hand, the courts look favourably upon laws that restrict the ‘gentle protest’ of a solitary individual praying or handing out leaflets near an abortion clinic, citing the ‘dignity’ of the patient seeking a ‘medical service’. Since some have second thoughts after, and some say they were pressured, what can be wrong with gently suggesting a reconsideration? On the other hand, the courts too often seem to grant a virtual license to aggressive minorities to block major arterial roads and bridges for what some believe to be antisemitic demonstrations. It seems the right of a mob to shout genocidal chants on the Sydney Opera House steps or on the Sydney Harbour Bridge is more ‘essential to democracy’ than the right of the ordinary Australian to use that bridge for its intended purpose: transport.
Restoring the People’s Constitution
The creation of this freedom was a major mistake by judges who should have stayed judging and not played politics. Our Constitution is a delicate instrument of our Commonwealth, in essence, our Crowned Republic. If it is to be changed, it must be done, and only done, by the people through the referendum process set out in Section 128.
That is how we federated: through an elected convention followed by a serious, considered debate and a series of referendums. That process gave us a good Constitution – one that was seriously damaged when, in my opinion, activist judges went into league with a political class.
We saw this same impulse in the 1999 republican model – a ‘politicians’ republic’ designed to increase the power of the ruling government. It was pushed by a desire for revenge for the perfectly proper dismissal of the Whitlam Government in 1975 – a dismissal carried out for reasons Whitlam himself had long propounded until they were applied to him.
The best path forward is a return to the people. If we are to balance order and speech, it must be done through citizen-initiated referendums.
A prominent federalist, Charles Kingston, the South Australian Premier, strongly supported citizen-initiated referendums (CIR). Through his efforts, South Australia was the first jurisdiction in the world to give women the vote. He was dissuaded by Alfred Deakin from proposing the inclusion of CIRs in the Constitution because, Deakin argued, any need for this was filled by and was incompatible with responsible government. Responsible government does not mean, as the layman might assume, sensible government. It means a government must enjoy the confidence or support of the Lower House, at least on motions of no-confidence and grants of supply. While Kingston’s radicalism was the ‘democratic engine’ of the conventions, Deakin’s objection to CIRs is based on a 19th Century view of parliamentary supremacy that was superseded by the introduction of the referendum into the constitution.
It is fascinating, indeed timely, that at least one party is a strong adherent of CIRs. This is the party we are constantly told has no policies: One Nation.
In my view, this is yet another reason to give one’s first preference to One Nation, a position argued here in the last election. It is expected that if the Albanese government is defeated in the next election, a government will emerge which is supported by the Liberals, Nationals, and One Nation. That does not mean they will all necessarily be in the government. One could be outside but refraining from joining a vote of No Confidence or supporting a denial of supply.
If a Coalition government of Liberals and Nationals emerged in that situation, One Nation could in negotiations insist on support for holding a referendum to incorporate CIRs into the constitution.
If that were passed, ‘value judgments’ could, as in Switzerland, be taken away from the High Court and returned to the ballot box. Only then would our infrastructure and our social order be protected from the caprice of a judicial elite.
