This article was cowritten with Morgan Begg, and originally appeared in the IPA Review in April 2017.
Since 2013, the federal judiciary has been substantially reshaped, with four appointments to the High Court, along with 30 other appointments to other federal courts. In January 2017, for instance, retiring Chief Justice of the High Court, Robert French, was replaced by Susan Kiefel. Yet few Australians could name any of the recent appointments made by the government. Even fewer could explain their judicial philosophies.
Silently appointed High Court judges have been quietly undermining our freedoms for
more than 90 years. The only way to arrest this trend is by democratising the appointment process.
More than mere rubber stamps, the federal courts play the important role of interpreting and applying the laws passed by the Commonwealth. In 2016 alone, the Commonwealth parliament passed 4094 pages of legislation, along with almost 2000 legislative instruments. The courts have a significant amount of work to do in assessing what all of this means. At the High Court the stakes are even higher. This court is the last court of appeal in the Australian judicial system, with original jurisdiction to declare whether legislation passed by the Commonwealth parliament complies with the Constitution. The seven judges who sit on the High Court are exceptionally powerful individuals, but there is no accountability for how they fulfil their duties. Only at
the time of appointment can High Court nominees be scrutinised for their interpretation of statutory and constitutional issues.
Unfortunately, since 2013 the Coalition government has adopted the dismal method of silently nominating ‘orthodox’ judges to the High Court. Geoffrey Nettle and Michelle Gordon, both appointed in 2015, fit entirely within the legal mainstream, and attracted little attention or controversy when picked to sit on the court.
The problem with uncontroversial appointments is that they tend to avoid rocking the boat. This elevates the principle of stare decisis and affirms past decisions of the High Court, even when past decisions have taken the law far from the original federalist intent of the Australian Constitution.
When Susan Kiefel was elevated to Chief Justice in January, Western Australian James Edelman took her place. While Edelman has an undeniably impressive CV, his legal philosophy is at best an unknown quantity. The government has essentially left to chance what Edelman’s impact on the court will be, which is particularly dangerous since he is set to occupy a seat on the bench until he reaches mandatory retirement age in 2044. It is disturbing that we know so little about the people who sit on the High Court. The court has tremendous power, and its history suggests that it is a strong contender for worst court in the world.
History of the Court
Almost since its creation, the High Court has been an enemy of freedom. The main way the courts have undermined freedom is to attack federalism.
The decentralisation of political power is an important means of maintaining a free society. Laws and regulations for citizens should be made at a level closest to those citizens to help ensure that political outcomes are more representative. As the Australian population increases, but political power is more centralised in Canberra, decisions become less representative.
Likewise, political decisions become more broad as Canberra attempts to impose one-size-fits-all rules on a diverse population. The inevitable temptation for lawmakers
in a centralised jurisdiction is to conclude that political outcomes can be improved with more regulations, restricting the liberties of everybody along the way.
As part of the political bargain of uniting the colonies, the founding fathers of Australian federation essentially devised a power-sharing arrangement between the states and the newly created central government, the Commonwealth. The agreement became the Australian Constitution, which enumerated a number of policy areas that the Commonwealth would be allowed to make laws for, while the document implicitly reserved everything else for the states.
Almost immediately after federation, the High Court worked to overturn this arrangement. In 1906, Prime Minister Alfred Deakin expanded the court from three judges to five. The two new appointments were progressive politicians H.B. Higgins
and Isaac Isaacs, who immediately formed a radical minority on the bench to attack the federal structure of the Constitution.
The balance of the court was eventually tipped fully towards centralists, leading to the 1920 Engineers Case, where the concept of reserved state powers under the Constitution was swept aside. This decision more than any other fundamentally transformed the nature of the Australian Constitution, but was not the only decision to attack
the federal setup. In R v Brislan in 1935, the High Court broadly interpreted the Commonwealth’s power to legislate for ‘postal, telegraphic, telephonic and other like services’ to include one-way radio broadcasting services. The Uniform Tax Cases in 1942 and 1957 established that the Commonwealth could prohibit the states from collecting its own income taxes, causing the country’s most debilitating vertical fiscal imbalance. The Tasmanian Dam Case in 1983 dramatically widened the Commonwealth’s external affairs power, so that it could pass laws on any topic that was addressed in an international agreement signed by the government. The WorkChoices case in 2006 had the effect of centralising industrial relations power in Canberra, paving the way for Labor to pass its destructive Fair Work Act in 2009.
Thanks to the High Court, federalism in Australia has been forced aside in favour of a strong central government. The only hope of reversing this is to appoint judges who
would reconsider the decisions in the cases above.
What do we want from the High Court?
High Court judges should err on the side of federalism and individualism. Contrary to the expansive reading of Commonwealth power that the court has adopted for generations, judges should understand that the Commonwealth is limited by the
law, and that this is good because it protects the freedom of the individual.
Collectively, judges with a deeper appreciation of Australia’s liberal heritage need to take steps to wind back the court’s centralist constitutional jurisprudence. For conservatives, this represents a challenge because the court will have to reconsider a number of precedents that it has set. But breaking from the decisions of the past is justified if it
defends something more timeless, like the liberty that is owed to us as Australians, and the deep constitutional concepts that secure it.
In practice, this means that the court will need to take all opportunities to re-impose limits on Commonwealth powers. For example, section 18C of the Racial Discrimination Act was enacted under the external affairs power. But the legislation goes far beyond the
requirements of the treaty that was being implemented. This arguably makes it unconstitutional. Hearing a challenge to its constitutionality would also enable the court to wind back the absurd precedent set in the Tasmanian Dam Case. While the court is unlikely to be able to wash away long trails of precedent in one case, piece by piece the court could begin crafting a jurisprudence based on freedom rather than the ever-
expanding control of the central administrative state.
The High Court goes beyond constitutional jurisdiction. It also has final appellate jurisdiction for civil and criminal law. The Court is limited by the Judicial Act 1903
to only hear appeals on matters of public importance, or that involve a clash
between courts, or are necessary for the administration of justice. This again differs from the US Supreme Court, which only hears cases that involve constitutional, interstate or
federal government matters. As part of restoring the federal character of our constitution, the High Court should refrain from hearing civil and criminal appeals, acknowledging that many disparities between state laws reflect real differences in local interests. Additionally, parliament could amend the Judicial Act to limit the court’s
Fixing the High Court
Other than the proposals outlined above, what steps should be taken to move the High Court in the right direction?
The first and most obvious change would be for judicial appointments to be subject to vastly increased scrutiny. The protocols of the Attorney-General’s department for appointing judges to the federal courts demonstrate the insular nature of
appointments. These protocols, published in September 2012, aim to ensure that the appointments are both based on merit, while increasing the diversity of the High Court’s gender, cultural background and geographical origins. Likewise, the protocols aim to
ensure greater transparency, but the whole process is obscured. The result is that even where the protocols are observed, it is not open to the public for debate or scrutiny.
The protocols require the federal Attorney-General to consult with ‘interested bodies inviting nominations of suitable candidates’ such as the chief justices of the federal courts, the Law Council of Australia and the state and federal bar associations. The names put forward are not open to public scrutiny. As in the United States, High
Court appointments should require the approval of parliament. This could occur through a joint sitting, ensuring all of the electorate’s interests are taken into account. Voters should be able to consider who a candidate or party will support for judicial
appointments and what that support might mean for the country. The lack of scrutiny of judicial appointments is undemocratic, and the supposedly apolitical appointment
process is designed to keep it that way.
As it stands, the public has very little opportunity to debate the merits of different judicial philosophies, and, given the lack of coverage of court appointments, may not even know that alternatives to centralism exist. Instead of meekly accepting the
closed shop of lawyers promoting leftist doctrine through their control of this branch of government, we should have a say in the appointment of judges. The opaque appointments process has led to the centralists having the run of the court. Increasing the scrutiny of appointments would create the potential for more intellectual
diversity on the court because governments would have to explain their choices to voters.
The search for greater diversity should also include governments looking beyond the judiciary for appointees. There are no constitutional restrictions on who can sit on the High Court. The High Court of Australia Act 1979 requires appointees to come from
state or federal judiciaries or to have been admitted lawyers for a minimum of five years. But if the court were to further restrict its appellate jurisdiction, then these requirements would not be a justifiable. In any event, Australia’s best justice of recent times, Justice Ian Callinan, was appointed directly from the bar, exemplifying the need
to think beyond those currently occupying the country’s benches.
Over the longer-term, however, the only real solution to the failures of the High Court will be for conservatives and classical liberals to develop a legal counter-establishment. In the United States, groups like the Institute for Justice promote sound conservative legal thinking through test cases and by contributing to the development of
right-thinking lawyers who can then move into judicial postings. There
is no equivalent path in Australia for lawyers and law students who question the status quo.
As long as academia, law schools, courts, chambers and firms are dominated by centralist and progressive groupthink, our constitution will continue being distorted by the most powerful court in the land