Features Australia

Misjudging our Constitution

Judicial activists invented the right to invalidate laws

26 June 2021

9:00 AM

26 June 2021

9:00 AM

After so many mediocre (I was raised to be polite) High Court of Australia appointments from eight years of Coalition governments, last year I was asked what I thought the main quality to look for was in a potential appointee. My answer? Look for someone who is prepared to be hated. I meant it.

Throughout the common law world there are innumerable examples of supposedly right-leaning judges appointed by right-of-centre parties moving left once appointed. Conversely, there are almost no examples the other way. Almost no judge moves philosophically and morally to the right after being appointed. Why? Well, in the last three or four decades the whole legal caste — solicitors, judges, administrators in large firms, even barristers — moved from being to the right of the median voter to being to the left and by a fair bit. I don’t mean the old-fashioned redistribution of wealth sort of left-wing advocate, the sort for whom this openly conservative writer has a good deal of time. No, I mean the virtue-signalling views of the human rights barrister, inclined to be woke, left-wing voter, many of whom are financially very well off indeed.

This is the mindset that will scream blue murder on human rights grounds over supposed transgressions to those seeking to arrive in this country illegally but will say — make that said — virtually nothing about the Covid-induced last 18 months’ biggest inroads on our liberties and civil rights in three centuries. Small correction: the human rights brigade said nothing save for when those stuck in India were trying to come back to Australia. (See above.)

This sort of pro-international human rights law leftism has taken over huge swathes of our law schools, law firms, barristers’ chambers and the judiciary. Yes, there are exceptions, loads of them. But I speak in generalities you understand, and many an honest lawyer will quietly agree with what I’ve just said.

That means that any newly appointed High Court Justice who prefers being feted by the legal fraternity to being pilloried will accommodate its prejudices and worldview.


The sort of constitutional interpretation that I want from a judge — I would simply call it ‘honest interpretation in line with the intentions of those who had the legitimate authority to make our Constitution and laws’ but others will not like that characterisation — well, let’s just say that won’t make him or her popular.

I bring that all up because this past week the High Court released its decision in the case of Liberty Works v The Commonwealth as regards the Foreign Influence Transparency Scheme Act. To lay my cards on the table let me say straight up that in substantive terms I like very much the work that Liberty Works does on behalf of freedom; I like and know its main mover; I think the FITS Act is an instance of obvious over-reach; and I don’t think it’s at all surprising that the bureaucracy in Canberra tries out these sort of laws at first against conservatives. I’d repeal it tomorrow were I a legislator.

All that said, it seemed patently clear to me that this law is constitutional. The case was taken in an attempt to argue a part of the statute breached what is known as the freedom of political communication, also known as an implied right. Liberty Works wanted the High Court to strike down or invalidate parts of the FITS Act. Now here’s where it gets interesting. Australia, to my delight as a committed proponent of democratic decision-making, has no national bill of rights. There have been various attempts to bring one in by the human rights wing of the lawyerly caste (meaning most of it these days). In 1988 there was a s.128 referendum to bring in a truncated bill of rights and it received a resounding ‘no’ from the voters.

But only four years later, in 1992, the then High Court of Australia ‘discovered’ the above-mentioned implied right in the invisible interstices of our then nine decades old Constitution. It had apparently lain dormant and invisible all that time. And because it was never granted openly and plainly by the voters via a s.128 referendum or via their elected representatives in statutory form there is an aura of illegitimacy about the whole thing. The implied freedom is much circumscribed compared to an explicit right. Still, in my view the reasoning and arguments laid down as supporting the existence of this implied right are so exiguous, implausible and sophistical that I have on occasion in peer-reviewed law articles just bitten the bullet and said I think the judges made it up.

At the same time I would say that I am probably the most pro-free speech law professor in this country. Indeed I’ll mud wrestle anyone who cares to try to take that title from me. In general, though I very much dislike bills of rights because of how much power they transfer to the unelected judiciary, I at the same time like almost all freedom-enhancing policy calls. But I value democracy more. Honest interpretation is not the same thing as delivering what you, the interpreter, happen to like. However much the top judges back in 1992 may have wanted the tools a bill of rights would have given them, they were not given those tools. In enervated form they opted to give them to themselves. And yes, this is very popular in the academy.

Nevertheless, ever since my arrival in this country I’ve regularly pointed out that the whole implied freedom jurisprudence sits on judicial implausibility piled on judicial wish-fulfilment. Worse, since Justice Callinan retired no High Court judge has called this out, not even after the last eight years of Coalition judicial appointments.

And then, last week, recently appointed Justice Steward did just that in the Liberty Works case. Go and read the last few paragraphs of his judgment. He’s spot on. But boy he won’t be popular. Of course Justice Steward may, after a while, cave in and join the others in ignoring the fact the implied freedom emperor has no clothes. But it was nice to see a moment of bravery. And to give credit where credit is due, this already looks to be a good High Court appointment by former attorneygeneral Christian Porter (since sacrificed by invertebrates).

Oh, and here’s a little quirk you might also be interested in. Since the 1992 cases that ‘discovered’ this implied freedom, the judges regularly look at all sorts of costly challenges to legislation, subjecting them to Jesuitical proportionality analyses of ever-shifting sorts asking ‘is this reasonable?’ But since 1992 only a half dozen times have they ever struck down legislation. And you know what? Every single one of those post-1992 times part of a law has been invalidated, it has been Liberal legislation; never Labor legislation. In my view that’s simply because big-spending, don’t-care-about-borders, PC-type Labor laws will never fall foul of rights-related inspection. Small government, strong borders, conservative-type laws will. The way this Morrison government is travelling at least it won’t have any worries about the High Court invalidating any of its legislation.

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