Raising the profile of a not-for-profit organisation is no easy task. Add to that trying to bring in new members. And then imagine trying to fundraise and get all sorts of members of the public to give their hard-earned money to that organisation. It’s a brutally tough set of tasks, especially in these Albanese economic times. In my native Canada and in the US these jobs, lumped together, are often labelled as ‘advancement’. Some organisations have whole teams of people devoted to these tasks.

Well, I happen to know someone who is a genius at all three. You see this past weekend was the yearly conference of the Samuel Griffith Society, or SGS. This is the three-decades-plus-old body founded to support our written constitution, the world’s fourth- or fifth-oldest continuously operated in the world. More particularly, the SGS explicitly supports interpretively conservative understandings of that constitution. So we want them to shun all temptations in the direction of judicial activism and usurping the social policy line-drawing power that was plainly given to our elected legislatures in Canberra and the states.

I’ve been a proud member of the SGS since 2006. And a week ago we had our yearly conference. It was remarkable. The biggest number of attendees ever. The most young people there ever. Donations at an all-time high. No doubt there were many causes for all that but I reckon a big, big one was the public criticism the SGS received from a sitting High Court judge not long ago. That criticism was petulant and it seemed to disparage anyone who dared to criticise our top judges or who sought to argue for approaches other than what we’re seeing from these judges right now. But, my Lord, did that judge’s diatribe trigger an unbelievable reaction from the punters. All sorts of new members and new monies poured into the SGS.   It’s hard to imagine anyone else or any other strategy coming remotely close to delivering these results. In Advancement Office terms, this judge is nothing short of a genius. We will roll out the red carpet for him any time he wishes to visit or come speak at our conference. So thank you to this top judge and please, please keep the shrill criticisms coming.

As for the conference itself, it was a huge success. Speakers included an archbishop, this country’s top legal podcaster and retired constitutional law prof, a couple of top journalists, the chief executive of an Australian Jewish organisation, a couple of senior judges, and a Jesuit priest. Lots of topics were covered, including the shameful antisemitism that now infects this country and is making life so tough for our Jewish fellow citizens. But perhaps the most discussed topic of the conference weekend was the so-called ‘implied freedom’ that was discovered by our High Court back in 1992. To be clear, this awesome power to invalidate the statutes enacted by our democratically elected legislatures based on what was dubbed the ‘implied freedom of political communication’ had gone unnoticed for nine decades. No actual constitution-maker or constitution-ratifier can plausibly be said to have intended our top judges to have this pseudo-rights-related power. It was a judicial discovery (or pick your favourite other word) nine decades after Federation.

And what makes the SGS annoying to many of our top judges is that many of our conference speakers were very critical indeed not just of how the judges seem to have simply given themselves this power.  But also of how they have been inflating it of late so that they can second-guess and gainsay more and more decisions our elected politicians are making. I have been a severe critic of this implied freedom since my arrival here. To my mind it not only licenses a special undemocratic power and decision-making, it also has no legitimate foundation or licence. You can’t point to any actual lawmakers or constitution-makers who gave it to our judges, explicitly or implicitly. The judges seem to have given it to themselves. And it’s fair to say that some of these top judges don’t seem to like it when this illegitimacy is pointed out.

For instance, in a recent case one of our current High Court judges, and only one, simply doubted the plausibility of this judicial construct. The Chief Justice in the same case did not seem to be particularly happy with this apparent heresy and said so. Of course there is an irony here. Since its creation the judges have been telling us this implied freedom is there to protect our democracy and our ability to express ourselves in ways related to ensuring we have representative and responsible governments.  So if the judges purport to value democracy, why are they using this creation of theirs to invalidate and strike down democratically enacted laws? Its use appears to show no respect to the voters it purports to be protecting. And why do top judges also not want to hear other judges voicing doubts about its legitimacy – something some might see as trying to suppress speech that the implied freedom also claims to be protecting?

There is also the fact that since its 1992 creation, there have been eight cases in which the judges have used this thing (including two voting cases) to strike down legislation. Seven of those eight involved Liberal legislation being invalidated. The odds of that being just chance are about three percent.  Or compare two recent cases. One High Court one upheld a law restricting protests and prayers near abortion clinics. But a NSW Court of Appeal case just struck down a law that in the name of social cohesion and supporting our Jewish fellow citizens put a temporary ban on public assemblies near certain places of worship. The law protecting clinics gets the judicial tick but not the one protecting churches and synagogues. Make that make sense!

You see the judges have fine-tuned this implied freedom to a point, delightfully for them, where they get to look inside themselves and ask themselves if they think some statutory provision is reasonable, appropriate, suitably adapted, proportionate and more. It’s subjective judgment piled on subjective judgment. Critics at our conference noted that this all looks an awful lot like legislating from the bench. But judges have access to far less information than legislators and they are far more removed from actual voters. They don’t know what they don’t know. And we know the drafters of our constitution never intended to give them this sort of power. They were meant to police the federal division of powers, a task they have hardly excelled at.

Now defenders of this implied freedom, which is most of the lawyerly caste, tend to say it’s now locked in by two or three dozen High Court cases. So we should all just be silent and not make waves. My view is that given its illegitimate and implausible birth, and how it’s being inflated, the right side of politics needs to grow a spine and make High Court appointments of people who share the scepticism of the one sceptic now on the court. Three more and that could be that. I mean, for over a hundred years the Labor party has only appointed centralists – no federalists – to the top court.  What’s good for the goose, right?