Until recently, I thought that Australia was free from the scourge of activist judges. But in view of events of the last few weeks, I am not so sure. In fact, it looks as if we are well and truly in its grip. Two recent court decisions show a disturbing tendency of some judges to go far beyond the proper judicial function and to trespass into the realm of government and politics, posing a real threat to the democratic process.

The first decision, Hopper v. Victoria, came from the High Court on 15 April. This was a challenge to laws passed by the Victorian parliament which provided for a cap on the amount of money that could be spent on elections as part of a wider regulation of election spending. However, there was an exception in the case of established political parties who were allowed more leeway on what they could spend through separate entities. But, said the High Court, those laws are invalid because if you let political parties raise money above the cap and others cannot, this frustrates a clause in the Australian Constitution that guarantees political communication, not an express clause, but an implied one.

Only a day later, on 16 April, the second decision, Jarrett v. State of New South Wales, was delivered in the Supreme Court of NSW. In that case, the court was faced with a challenge to laws passed by the State parliament that enabled a declaration to be made by the Commissioner of Police prohibiting public assemblies in Sydney. These laws were passed in the aftermath of the hideous antisemitic bloodbath at Bondi on 14 December 2025. The community reaction to this massacre was such that the government decided, in the exercise of its judgment, that public demonstrations would generate fear in the community and be a threat to social cohesion, such that for a specific period and in a limited area, it was reasonable to avoid this disharmony by banning them. The laws were challenged by the Blak Caucus and the Palestinian Action Group who wanted to hold demonstrations and you can imagine what sort of demonstrations they would be. So the elected government decided that a ban on demonstrations at this sensitive time was needed to protect social cohesion and avoid division, especially at such a distressing time for the Jewish community.

The court, however, overruled the parliament and held that the laws in question were invalid. This was done on the same ground used in the Hopper case, that they infringed ‘the implied freedom of political communication’.

Both decisions were, in substance, the same. They both asserted that there was a clause in the Constitution that guaranteed freedom of political communication. They both asserted that you cannot actually see or read this clause because it is not spelt out but is implied. And they both asserted that if a law passed by a parliament, valid in all other respects, put a ‘burden’ on this implied clause, the court could undo what the parliament had done in its own judgment and could declare that the law was invalid.

So, activist and unelected judges in both cases, and disturbingly in a string of other cases, have given themselves the power to declare laws passed by elected parliaments to be null and void because they are contrary to a clause in the Constitution that no one else can see, because it is only implied.

It is wrong for a court to be involved in this sort of exercise.

First, this implied power was never set out by the founding fathers when they wrote the constitution and established our system of elections, parliaments and governments, each with carefully defined powers and approved by the people. Nor has it ever been passed at a referendum or by legislation. Accordingly, the implied power should not be used at the whim of a judge to override the workings of elected parliaments and it is undemocratic for it to occur.

Secondly, the implied power is open-ended and vague where there should be clarity and certainty. Since it was discovered or invented, it has changed, always expanding and, like Topsy, it keeps on growing, so the scope for a court to invalidate a law is continually expanding. This is extremely unhealthy because it is the very opposite of the certainty that should be at the centre of a democratic constitution.

Thirdly, the test of whether the law is valid or not is said by the courts to be whether it is ‘reasonably appropriate’ for our democratic political system and whether it is fair and reasonable. But surely, whether or not it is reasonably appropriate that political parties should be allowed to raise money for elections or whether potentially antisemitic demonstrations should be banned, even temporarily and in a limited area, are questions of judgment for elected governments that are answerable to the people through their parliament. Elected parliaments make judgments on community behaviour, not courts.

We are therefore seeing a disturbing trend of the diminution of the rights of the people through their elected parliaments and an expansion of the powers of unelected judges. What is claimed to be an aid to the democratic and political process ends up being the most undemocratic structure that can be imagined.

If we want to go down this path of allowing judges to invalidate laws passed by our parliaments simply because of an implied power, we should legislate or have it approved by the people at a referendum. That is called democracy. But it is not democracy to allow malcontents like the Blak Caucus and the Palestinian Action Group to obtain through activist courts what they could never hope to win through elections.

It is disappointing that there has been virtually no push back against these latest two expansions of power by unelected judges. The Samuel Griffith Society stands out as a lone and brave opponent of it. It is time that others joined in and supported the Society in its opposition.