Features Australia

Why judges matter

On our High Court coin tossers

17 October 2020

9:00 AM

17 October 2020

9:00 AM

Over in the US we are witnessing the struggles over a Supreme Court nomination to fill one of the nine spots on their top court. And here in Australia Attorney-General Porter and the Morrison cabinet will soon be filling two upcoming vacancies on the seven person High Court of Australia.  If the Coalition’s High Court appointment record these last seven years is anything to go by, expect to be bitterly disappointed.

Why? Start with the recent Love decision in which the High Court entered into the realms of deconstructionist mumbo jumbo about ‘deeper truths’, ‘questions of otherness’ and ‘metaphysical constraints and connections’ that amount to claiming some purported higher and transcendent knowledge flows to some humans, not others, based on the happenstance of their genetic inheritance and on some supposedly ineffable, some-are-nobler-than-others spiritual connections to the land. This was done so that our top unelected judges – four of seven of them – could invalidate a Commonwealth immigration provision. It was judicial activism writ über-large. And three of the four judges in the majority in that lamentable Love case were all Liberal appointees – the three most recent Brandis High Court picks, in fact.

Alas, this is all part of a more recent general trend over the last few decades in which Australia’s top judges have grown far too big for their unelected boots – far too prepared to think it is their job to decide if parliament’s legislation is reasonable, proportional, suitable and appropriate. And this has happened despite the dead certain fact that next to no one at the time of federation – neither the drafters nor the ratifiers of our Constitution – wanted judges to have this power over the elected parliament. They debated putting in a bill of rights and soundly rejected that proposal. We know, too, that in two constitutional referenda since federation that Australians have rejected inserting bill of rights type provisions, the last of those being in 1988. And yet in 1992, only four years after the voters turned down giving this sort of instrument to the judges with all its attendant increase in judicial power, our High Court in two cases ‘discovered’ something called an implied freedom. It had been lurking there unseen for nine decades apparently. It was said to exist in the text and structure of the Constitution, despite the fact that only real-life humans can imply meaning (in the strict sense of what it means to imply something). Since 1992 this pseudo-rights-like judicial power to second-guess the elected parliament has grown and metastasised. Now it’s at the point that it affords the judges the power to strike down legislation on the grounds of it being deemed – by them – to be unproportional, unreasonable, unsuitable, inappropriate or unnecessary (a sort of litany of value-judgements if you’re being honest).


Now I’ve been arguing for some time that our top judges are on the path to giving themselves a pseudo bill of rights without the bother, you know, of having to undergo any democratically legitimate process like enacting a statutory bill of rights or amending the constitution. But here’s something that virtually no one ever talks about. It’s like a dirty little secret. You see after those first implied rights decisions in 1992, which involved invalidating Labor legislation, every single subsequent time legislation has actually been struck down by our High Court under implied rights doctrine it has been Liberal legislation. Only one side of politics. Sure, the top judges often consider legislation through this implied rights lens and end up not striking it down. And in those cases when the law is allowed to stand there are almost as many examples of Labor legislation being examined as of Coalition legislation. But since 1992 whenever law has actually  been invalidated and axed it’s always been Liberal legislation. We saw it in Roach in 2007 on prisoner voting, Howard government legislation.  It was Howard legislation again in Rowe in 2010, a GetUp! initiated case on when the electoral rolls could close, and one possibly affecting the outcome of that year’s election. Unions NSW in 2013 was NSW Liberal legislation struck down.  Brown in 2017 was Tasmanian Liberal legislation. And in 2019 there was again NSW Liberal legislation.

So why has it always been Liberal legislation that is found to be wanting, after the process of judges asking themselves ‘is this statutory provision reasonable, suitable, proportional, necessary, the permutations go on’? Why is it never Labor legislation? Interesting question, isn’t it?

One answer is that it’s just been chance. Flip a coin five times and there’s a one in 32 chance that Liberal comes up each and every time. Bad luck old boy. Of course if that’s right then over the next couple of decades things will balance out; that’s what happens in Vegas as anyone who knows probability will tell you.

If you don’t buy that then another possibility is that this sort of gainsaying implied rights framework is structured to hit right-of-centre political parties much more than left-of-centre ones. Think of the claim this way. If you’re a comparatively big spending, more open borders, identity politics and international treaties loving party then the rights-related framework at the heart of this whole proportionality analysis by unelected judges is considerably more likely to leave your party’s legislation alone. By contrast, if you’re a party that to some extent opposes all of those things (I’ll be charitable to the Libs) then this intellectual framework the judges have imposed on us (sorry, that they ‘discovered’ in the text and structure of the Constitution) will hit you way more often than it hits the other side of politics. Which would be fine if the voters had opted to impose that framework on political life by entrenching or enacting a bill of rights. But less fine if the judges just imposed it on all of us themselves.

And that brings us back to Liberal appointments to the High Court. Why do they never pick anyone opposed to this ‘we judges will ask ourselves if your legislation is reasonable, necessary and proportional’ bumpf? It’s not as if the original foundations of the implied freedoms edifice are anything other than massively shaky, intellectually implausible and (to my mind) self-serving. But the Libs virtually never appoint those types of judges. They don’t pick any judges to challenge this judicial construct, despite it being their legislation that’s massively more likely to be hit. Nor do they send the solicitor-general in to the next case being heard with firm instructions to argue that Roach and Rowe and Brown et al. were all wrongly decided. Instead it’s concession heaped on genuflection piled on indulgence, all of which makes the sort of woeful decision we saw in Love more likely.

Or maybe the Libs have just lost five coin flips on the trot.

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