I am a long-time critic of our High Court’s adventurism and willingness to usurp the legitimate lawmaking power of the elected legislature.

This shows up in two main places.

The less well-known of these involves the judicially created ‘separation of powers’ doctrine that today means the unelected judges get to strike down statutes of the elected Parliament on a basis no one – not a single person alive before the 1950s – ever intended, imagined, or thought desirable. Nor is anything like this available to judges in Canada or Britain or New Zealand to let them gainsay the Parliament. The idea really rests on not much more than the fact that our Constitution comes in separate chapters. And chapter III deals with the courts.

And so, from a 1956 case through one to do with State courts we arrived in 1992 with the Lim case (yep, an immigration detention sort of case).

The High Court there put pretty severe limits on the elected Parliament’s ability to give government the capacity to detain people. Be clear. There is no obvious, or in my view plausible, basis for this result. You might like the outcome. You might not.

In a nutshell, as put by a later court, the idea was that punishment, punitive actions, has to be done by the courts unless it was done for some other reasonable, legitimate, non-punitive purpose (all assessed solely by judges).

To which one might enquire, ‘Says who?’

Well, says our High Court.

Given that no one can point to a single Framer or Ratifier of our Constitution who intended this – or even any well-informed person at the time who thought this – it sure looks like a judicial creation. The supposed rationale goes ‘the 1956 case tells us judicial power has to be exercised by the courts; detention is punishment; that needs a judicial process (though in many instances that is simply untrue, but we’ll just deem them to be historical exceptions); and so top judges get to decide if some government action in this area is reasonably seen as for a non-punitive purpose’.

As I said, the idea that the mighty and awesome power of judicial invalidation of statutes can be read-in to our Constitution here (in part because it happens to have been divided into separate chapters) is far-fetched. But it was kept pretty cabined by the 2004 Al-Kateb case which had some of this country’s best top judges. But then the 2023 NZYQ case overturned Al-Kateb, and did so with a majority of Liberal High Court appointees. The 2004 case had held that it didn’t matter if deportation wasn’t reasonably foreseeable or likely, as long as it was theoretically possible. Nope, said the 2023 judges.

And out of detention came loads of people, some very dangerous.

Could the judicial activism get worse?

Yep… The next year, 2024, the High Court in YBFZ extended this ‘only we judges get to do this’ thinking beyond detention. It moved it to other punishments, ankle bracelets, curfews, etc. So out of detention and not in ankle bracelets these people came.

I am pretty much the last person on earth to feel sorry for this Albanese government but let’s be honest, team Albo didn’t create this mess that makes dealing with some incredibly dangerous people who claim statelessness near impossible. Our High Court did that.

And the claim it flows from the ‘text and structure’ of our Constitution is risible.

No text, none, points to this.

And what structure exactly? Because a document happens to be divided into chapters? (By the way, this is clearly why the Voice proponents wanted this body to have its own separate chapter. The implausible, but potent, separation of powers edifice makes having your own chapter a grounds for supercharging judicial activism.)

All this without a single, solitary person with the legitimate authority to draft or ratify our Constitution intending this result. Nope. The top judges just think they, themselves, are a safer pair of hands. It almost, not quite, makes you wish the government would buy houses near each top judge and house the undeportable bad ones there.

As we learned from the Covid thuggery, bad decisions flow from having no skin in the game.

And that takes me to the second, and worse, area of judicial activism in this country the so-called ‘implied freedom of political communication’ cases.

Remember, our Founders explicitly and unequivocally rejected a bill of rights as have voters in two failed s.128 constitutional referenda. No matter to the High Court. You see a 1992 case simply discovered – I say ‘made-up out of thin air’ – a supposed limit on legislative power (which is just a polite way of saying ‘we judges will invalidate a law if we happen to think it disproportionate, unsuitable, unreasonable, inappropriate, pick your favourite wholly subjective adjective’). Though not a personal right, this comes close to functioning as a mild sort of judicially created bill of rights power. And get this. From that 1992 case to last year the High Court has invalidated laws only eight times (though it has to be argued in near-on all constitutional cases, driving litigation costs way up).

And every single one of those eight, all of them, happened to be Liberal legislation struck down. Never Labor laws. This year, though, a Labor law was invalidated. So eight of nine.

And that brings me to the Pauline Hanson case that just got leave to be heard in our top court. (The High Court is actually hearing that and three other ‘implied freedom’ cases.)

This has to do with our woeful s.18C hate speech laws.

In the aftermath of the Queen’s recent death two elected Senators get into a back-and-forth. Hanson tells a Greens’ Senator to show a bit of gratitude for her adopted country and if she doesn’t want to respect the monarchy then she should ‘piss off back to Pakistan’. The Federal Court and then Court of Appeal (overwhelmingly Labor appointees, if you think that relevant) found Hanson’s tweet breached 18C. So it’s on to the High Court.

Now I think I am the most pro-free speech law professor in the country. I will mud-wrestle anyone who pretends to my title. But we have here a conflict between 1) a desired short-term outcome and 2) the long-term benefits of plausible, honest interpretation that leaves social policy-making with the elected branches.

The High Court could, of course, decide for Hanson purely on statutory interpretation grounds because how to read s18C is highly debatable. Do this say I, because I think the current judicial reading is wrong. Or, the top judges could reinforce their own powers by claiming to speak in the name of our Constitution, despite there being no legitimate basis for that self-given power.

Remember, this ‘implied freedom’ power will also be the basis for our unelected judges to decide if they want to invalidate three other laws.

Personally, I think all these laws are bad. But long term, if you have a democratic bone in your body, this sort of judicial usurpation of power has terrible consequences.

It’s bad enough when voters give such awesome power to judges by agreeing to a bill of rights. It’s far, far worse when those judges just give the power to themselves. One or two good outcomes be damned!