Flat White

Conservative, in the best possible sense

17 January 2022

3:14 PM

17 January 2022

3:14 PM

In National Federation of Independent Business vs Department of Labor, Occupational Safety and Health Administration, the U.S. Supreme Court overturned the Biden administration’s vaccine mandate for workplaces with over 100 employees. American media have widely attributed this outcome to a ‘conservative’ majority on the bench.

In Djokovic vs Minister for Immigration, the Federal Court of Australia upheld the Morrison government’s decision to cancel the visa of an unvaccinated tennis star, whose vaccination scepticism was perceived as lending support to anti-vaccination activists. Nobody has suggested – nor could it be suggested – that this decision was influenced by any political agenda.

Superficially, both decisions might be seen as producing a right-of-centre outcome, the former overturning a decision by a liberal-left administration, the latter upholding a decision by a politically conservative government. An alternative view is that the Australian decision was only ‘conservative’ in the narrow sense that it upheld the exercise of executive power by a minister in a conservative government; in a wider sense, the effect of the decision was to place the public interest ahead of individual rights. The American decision explicitly, and unapologetically, adopted the reactionary position that the rights of the individual take precedence over the welfare of the public.

But the real difference between the two judicial approaches is much more fundamental. It does not lie merely in the fact that Australia’s tough border protection policy enjoys bipartisan support, subject only to differences of nuance. In the case of Novak Djokovic, far from opposing the government’s decision to cancel Djokovic’s visa, criticism by the Federal opposition has focused on the granting of the visa in the first place, despite a decision in earlier proceedings that the visa was lawfully and properly granted on the basis of the material supplied by Djokovic. Media suggestions that Djokovic’s visa application contained materially false or incomplete information have not been litigated, and are now unlikely to be as the Minister accepted Djokovic’s explanation that any errors were his agents’ genuine mistakes.

Rather, the essential difference lies in the approach of the respective countries’ judiciaries to their roles in supervising the exercise of administrative or executive power. The Australian approach reflects the sentiment expressed 70 years ago by a man widely regarded as Australia’s greatest jurist, Sir Owen Dixon, who famously remarked:

… close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

It may be difficult for the layperson to grasp that the function of an Australian court, in judicially reviewing a decision by a government official, has – in the words of Chief Justice Dixon – ‘nothing to do with the merits or demerits of the measure’. When an appellate bench is reviewing the decision of an inferior court, the question is whether the lower court’s decision was right or wrong, good or bad, sustainable or unsustainable. But when a court is reviewing an administrative decision, the sole question is whether a rational decision was lawfully and correctly made. A minister or public servant who has statutory authority to make a decision not only has authority to make a good decision, but equally has authority to make a bad one.

To describe as ‘conservative’ the American judges who decide cases based on their own political inclinations and agendas – as distinct from a ‘strict and complete legalism’ – is a misnomer. A conservative is a person who seeks to conserve the traditional values and features of the existing system of government. Foremost amongst those values and features is the separation of the judicial branch of government from the legislative and executive branches. So understood, a democratic socialist can be as much a ‘conservative’ as an alt-right activist may not be.

Conservatism, in this strict sense, is also deeply and fundamentally democratic. Australian judges, like their colleagues on the U.S. Supreme Court, have no electoral mandate. If they uphold or strike down a policy decision by the elected government, otherwise than on the basis of demonstrated constitutional or legal invalidity, they are usurping the functions of the elected government. To elevate the personal political opinions of a coterie of unelected judges above those who have stood for and attained elected office is the antithesis of true conservatism.

This is why Sir Owen Dixon described ‘close adherence to legal reasoning’ as ‘the only way to maintain the confidence of all parties in Federal conflicts’. A decision which is (and which is seen to be) the result of impartially applied legal principles serves to maintain confidence in the judiciary; a decision that is premised on political considerations invites protest, defiance and contempt. When a court upholds a government policy, any credit for the policy (if it is popular) and any obloquy (if it is unpopular) should belong to the government, and the appropriate form of protest should be at the ballot box.

A lot of nonsense has been written about the Djokovic decision as a ‘vindication’ of the approach taken by the Australian Government. It is nothing of the sort. All that the Court’s decision establishes is that the Minister had power to make the decision which he made, and followed the correct process in making it.

Opinions will doubtless continue to differ regarding the merits and demerits of the government’s handling of the Djokovic case. But suggestions that the Court’s decision provided any ‘vindication’ are wrong, through either ignorance or deliberate mischief-making. The government, alone, must accept the political consequences – whether adverse or positive – for the decision which the Court has found to be a lawful, valid and rational decision, without any reference to its ‘merits or demerits’.

Anthony Morris QC is a Brisbane barrister.

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