Economics.org.au

Neville Kennard liked big-time wotif-ing. These Paddy McGuinness columns go close:

1. “Constitutionally Fraser should put up or shut up,” The Australian Financial Review, December 21, 1976, p. 4.
2. “The High Court reviewed,” The National Times, week ending October 7, 1978, p. 56.
3. “Timely look at the law’s role in social change,” The Australian Financial Review, November 30, 1979, pp. 16-17.
4. Anonymous Editorial, “Government by judiciary?,” The Australian Financial Review, December 4, 1979, p. 10.
5. Anonymous Editorial, “The High Court, the Wheat Board and the facts,” The Australian Financial Review, October 30, 1980, p. 12.
5a. Rod Metcalfe, “Farmer drops challenge to Wheat Board,” The Australian Financial Review, May 20, 1981, p. 3.
6. “The vindication of Murphy, J.,” The Australian Financial Review, May 6, 1988, pp. 100-99.
7. “High Court does it again,” The Australian Financial Review, October 28, 1988, pp. 100-99.
8. “Embarrassing problem of ISC members’ terms,” The Australian, August 24, 1989, p. 2.
9. “Doctrine of separation of powers — don’t you worry about that,” The Australian, October 3, 1989, p. 2.
10. “Just reforms and the State resurgent,” The Australian, September 10, 1991, p. 13.
11. “High Court’s coup d’etat,” The Australian, September 2, 1992, p. 11.
12. “High Court’s role now irrevocably politicised,” The Weekend Australian, November 13-14, 1993, p. 2.
13. “Another High Court revolution,” The Australian, January 25, 1994, p. 43.
14. “Keating and Mason need a lesson in applied Canutism,” The Weekend Australian, March 19-20, 1994, p. 2.
15. “Stealth attack on Constitution,” The Sydney Morning Herald, March 4, 1995, p. 34.
16. “More power to the people,” The Sydney Morning Herald, April 4, 1995, p. 14.
17. “Who decides how tax money is spent — judges and lawyers, or parliaments?,” The Sydney Morning Herald, August 25, 1995, p. 10.
18. “Courts have replaced poets as the ‘unacknowledged legislators’ of the world,” The Sydney Morning Herald, September 13, 1995, p. 16.
19. “High Court’s power is of its own making,” The Sydney Morning Herald, February 22, 1997, p. 41.
20. “Politics hold court in this judgement call,” The Sydney Morning Herald, December 17, 2002, p. 13.
21. “By lagging behind, court helps country move forward,” The Sydney Morning Herald, October 7, 2003, p. 13.
22. “Under Kirby’s law, we are all subject to the whim of judicial adventurism,” The Sydney Morning Herald, December 9, 2003, p. 13.

1.
P. P. McGuinness, “Constitutionally Fraser should put up or shut up,” The Australian Financial Review, December 21, 1976, p. 4.

It is a pity that all those members of the Government, from the Prime Minister down, who are so fond of accusing the Arbitration Commission of being irresponsible with respect to wages, do not pause to reflect on the implications of the Australian Constitution.

As the Constitution is framed, and as it has been interpreted by the narrow legal traditions of the High Court, the limitations of what an Australian Government can do in the way of economic policy-making by direct controls are fairly strict.

The Commonwealth has power to legislate with respect to “concentration and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.”

But it clearly does not have power to direct the instrument which it has set up in pursuance of this power, namely the commission, as to whether it shall grant or refuse wage increases (since to do so would interfere with the power), or go beyond it.

And, as the defeat of the 1973 referendum confirmed, it definitely does not have power to legislate directly to determine or limit wages and prices, nor to establish an authority to do this.

The limitations on interventionist economic policy imposed by Section 92 of the Constitution have never really been made clear, but the interpretation of its guarantee that “trade, commerce and intercourse among the States … shall be absolutely free,” while absurdly wide on any sensible reading of the section, which quite explicitly refers to Customs duties, is, nevertheless, established by the High Court.

Even the belated recognition of the real meaning of the corporations power in the 1971 concrete pipes case has been questioned by the verbal quibble that the power, since it refers to corporations “formed within the limits of the Commonwealth,” by the use of the past tense could be read as referring only to corporations existing before Federation.

Then, of course, although the Constitution refers explicitly to powers over banking and bills of exchange and promissory notes, it nowhere refers to power over interest rates — indeed, the founding fathers would have have believed that such power was possible.

So, perhaps one day some smart Constitutional lawyer might be able to challenge the Reserve Bank’s powers in this respect.

Clever schemes for getting around the lack of direct powers over prices and incomes by imposing tax penalties on companies which say wage increases over and above some norm stated by the Government are likely to founder on Section 55, which states that “laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.”

It is possible that much of the accepted apparatus of interventionist economic policy, with its preference for direct controls, could be invalidated on constitutional grounds.

This has some interesting implications for the future of economic policy-making in Australia.

For, of all the countries in the world, Australia is probably the only one constitutionally bound into a free-market capitalist system, and which has a Federal Government which could, strictly speaking, only use the instruments of economic policy to act upon that market rather than to directly regulate it.

In other words, the Australian Constitution is tailor-made for Friedman-style, non-interventionist policies.

If it is impossible to regulate prices and wages directly, then, to control them, it is necessary to control the rate of growth of the money supply.

To control the rate of growth of the money supply, it is necessary to abandon any attempts to control interest rates — for to allow the former to grow, while regulating the latter, only leads to a build-up in the real demand for credit, which has to show up in the market somewhere.

To control the money supply, it is necessary to act to prevent the contribution of the Budget deficit growing, and to limit the inflow of funds from abroad.

The one implies a lower rate of Government spending, the other an exchange rate which is not undervalued as the Australian dollar is at present.

All this implies that the most effective possible means of controlling inflation, within the provisions of the Constitution, would be by policies which on the one hand minimised any use of regulation but which allowed interest rates, prices, wages and so on to find the level appropriate to the setting of instruments which are clearly available to the Commonwealth, which boil down to control of the money supply and the exchange rate.

To make these work more effectively, that is to ensure that disinflationary policies worked directly on prices and wages, it would be necessary to promote competition both within Australia, and between Australian and overseas producers.

Clearly, the corporation’s power (as so far interpreted) allows stringent trade practices and anti-monopoly legislation.

And it is also clear that the Commonwealth has the power to expose domestic industry to greater competitive pressures by lowering or abolishing Customs duties.

However, it would seem that Mr Fraser is in no way a Friedmanite. He does not believe in freeing interest rates to rise when money supply growth is restricted. He does not believe in getting rid of tariffs.

He does not think the exchange rate is very relevant to the rate of inflation (as evidenced by his statement on television at the weekend that he still expected single-digit inflation next year).

And he does believe that wage increases should be reduced by direct Government intervention.

It might, therefore, be worthwhile over the Christmas break to ponder one question: how on earth does he think the present Government, or any other Government, is going to control inflation without either scrapping the Arbitration Commission, tariffs and interest rate controls (and why not the Reserve Bank as well?), or setting about changing the Constitution so as to make effective economic management possible?

Or, to put it another way, Mr Fraser and every other Australian ought to accept the implication of making a capitalist society work efficiently and without inflation, or opt for another kind of social and economic system.

***
2.
P. P. McGuinness, “The High Court reviewed,” The National Times, week ending October 7, 1978, p. 56.

Over the years, the High Court of Australia has made decisions that increasingly impinge upon the legislative, political and governing processes of the country.

The court also has set itself above the economy, making itself into an economic legislature. It not only pretends to determine the economic system under which we live, it believes it can actually determine how the economic system behaves. Even Governments don’t always think they can do that.

Fine distinctions are made that have absolutely no meaning in economic terms, and assertions made about matters of economics in which the court has no knowledge or expertise, as if they had the same force as legal argument.

The same happens in other areas of the wide purview of the court, but its pretensions as an economic legislature are among the most disturbing and apparent.

Three examples of this might be mentioned. One is the High Court’s decision, in the Tasmanian tobacco licensing case some years ago, that an excise tax (reserved to the Commonwealth, under the Constitution) was not a tax on consumption, and that therefore the States could, if they liked, levy taxes on consumption.

This is a notion that makes the mind of the economist boggle. When is an excise tax not a tax on consumption? The answer is, only when the demand for a commodity is perfectly elastic, so that any increase in price will cause purchases to drop to zero. Then, the whole of tax will have to be borne by producers if they are to maintain sales and stay in business.

This is an extreme case. For virtually any product, a greater or lesser part of the excise will be borne by the consumer — that is, it is a consumption tax.

This is very elementary economics, but the court in its judgment showed no awareness of it.

More recently, there has been a series of decisions with respect to Section 260 of the Income Tax Assessment Act that together amount to a repeal of this section, which forbids arrangements to avoid or evade tax.

The intention of Parliament is clear, yet the court has chosen to ignore it. The Privy Council, in a judgment by Lord Denning, did not ignore it when the matter was appealed to it some years ago. Appeal to the Privy Council has now been abolished, and Section 260 destroyed.

The usual response to such actions by the court is to say that it is the responsibility of Parliament to re-enact the law as it wants it, closing the loopholes or clashes that made the over-ruling of 260 possible.

But that makes it clear that the court would throw out any blanket provision against tax-avoidance schemes. This is why the Government has to fore-shadow ever more complex specific legislation against particular schemes.

By adopting this policy, the court has effectively usurped a large part of Parliament’s powers on taxation. It has made a simple and non-legalistic method of collecting income tax from wealthy individuals extremely difficult, and has reduced tax collection to a power struggle between the tax-collector and the taxpayer.

It has also made it probable that the emphasis of the tax system will have to shift towards indirect taxes, despite the inequitable features of such taxes.

In other words, the overall economic effect of the supposed set of tax-scales established by Parliament is radically altered by the High Court.

The court does not, of course, think with one mind. Any of its major decisions is the result of the majority of those sitting on the Full Bench. The composition of the Bench varies, and therefore the likely outcome of any case coming before the court will depend on the constitution of the Bench.

Furthermore, each justice of the court presents his own reasons — and there need not be any consistency between them. Judges can agree on conclusions arrived at in contradictory ways.

This brings an element of uncertainty and arbitrariness into the law, since each decision is the product of a jumble of arguments, not all of them well-based, and finally a counting of heads. The same case could be decided quite differently if the composition of the bench varied slightly.

A recent example of all the defects of the High Court as a super-parliamentary economic legislature making arbitrary decisions (as distinct from arbitral decisions) is the wheat stabilisation case, Clarke King and Co Pty Ltd v Australian Wheat Board.

This decision, brought down on September 8, is yet another in the interminable series of actions under Section 92 of the Constitution.

The views of most of the judges on this section are known, and a slightly different bench could easily have given a decision in favour of the plaintiff company, which objected to the wheat-pooling arrangements under the wheat stabilisation legislation of the Commonwealth and the States.

In fact, by a three-two majority, the bench upheld the wheat-pooling system, which gives the Wheat Board compulsory acquisition powers. The arguments of each of the judges are worth looking at briefly, starting with the majority.

Mr Justice Murphy simply reiterated his position on Section 92 that it means what any reading of the Constitution and constitutional convention debates would make clear to anyone other than a lawyer: that there shall be no customs duties between the States.

Therefore, a wheat stablilisation scheme is not affected by Section 92, and no further argument is needed. However, of course, Justice Murphy’s view is not shared by many of his colleagues.

In a joint judgment, Mr Justice Mason and Mr Justice Jacobs quoted from the Privy Council judgment on the bank nationalisation case this wonderful piece of judicial logic:

… It may be that in regard to some economic activities and at some stage of social development, it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation and that interstate trade commerce and intercourse this prohibited and this monopolised remained absolutely free.

Presumably, the judge who wrote that had no read George Orwell’s then recently published 1984, with its discussion of newspeak (“freedom is slavery,” etc).

The two judges go on to decide that the wheat-pooling scheme does not infringe Section 92 because, first, wheat stabilisation is necessary, and second, wheat-pooling is the only way of doing it.

Now, this is a judgment about facts and economics. The facts, as presented in the Industries Assistance Commission draft report on wheat stabilisation, which was presented with other material in evidence, simply do not support either assertion. And there is a large body of expert economic opinion that would reject the necessity of wheat stabilisation, or the assertion that there is only one way to run a stabilisation scheme.

The IAC wrote:

In the commission’s view, Government assistance to stabilise returns for wheat would not significantly improve efficiency of resource use or enhance community wellbeing … Its costs have the potential to be quite large. Thus, the commission concludes that assistance should not be provided to stabilise returns for wheat in the traditional form.

It proposed, instead, “pot-holing” arrangements, that is, some support for growers’ incomes in the event of a “distress level of prices.” In particular, the IAC recommended against the continuation of the statutory wheat-pooling arrangements administered by the Wheat Board.

Now, there has been plenty of opposition to the IAC’s report (particularly from the Wheat Board, which has recently been flexing its muscles). But, as the considered conclusion of an independent authority, having at its disposal a large amount of expertise, some weight should be given to its point of view.

But Judges Mason and Jacobs did not even refer to it, and show no evidence of having read it. This flimsy basis made up the majority view that determined the High Court decision.

The minority consisted of the Chief Justice, Sir Garfield Barwick, and Mr Justice Stephen. The latter does refer to the IAC report, and on the basis of its arguments concludes that the let-out provided by the Privy Council to the wide interpretation of Section 92 does not apply.

As long as the Section 92 interpretation is valid, it would seem that Justice Stephen came to the only conclusion possible. So he ruled for the plaintiff and against the Wheat Board.

So also did the Chief Justice. But Sir Garfield, like Mr Justice Murphy, essentially reiterated his well-known position. He did advert briefly to the issue of whether wheat stabilisation was necessary, obliquely referring to the IAC report. But he made it clear that he thought that facts are subordinate to law, as made by the High Court.

Despite this, the Chief Justice’s judgment was the longest, and contains much curious material of a non-legal and quasi-philosophical nature. Most important is this passage:

But the basic tenet of the Constitution of absolute freedom of interstate trade and commerce may not itself be watered down by recourse to social or economic theory of the times.

Section 92 remains at a paramount and permanent provision to which all powers deriving from the Constitution are subject.

The freedom it guarantees must remain no matter what the climate of the times, social, economic or political, may be. After all regulatory restraint has been conceded, what remains must qualify as freedom of interstate trade in which individuals are able to participate.

There can be no warrant, in my opinion, by reason of changing political or economic climate for pushing out the perimeters of laws regulatory in nature to the point where they effectively destroy the guaranteed freedom.

Of this extraordinary passage, suffice it here to remark that if Section 92 of the Constitution is so fundamental, why was it not Section 1 or 2?

Taken together, the judgments of the High Court Bench represent a collection of tendentious politics, totally contradictory legal principles, and sheer ignorance. It is a peculiar way to run an economic system.

***
3.
P. P. McGuinness, “Timely look at the law’s role in social change,” The Australian Financial Review, November 30, 1979, pp. 16-17.

The role of law and constitution in Australia, and the interaction between law and social change, is a central but little examined area of legal activity today.

Jonathan Swift, one of the most trenchant critics of the pretensions of lawyers to power in England, and in particular their attempts to create a “common law” by reference to precedent, pointed to the major defect of lawyers as social engineers in Gulliver’s Travels. He said of lawyers that:

In all points out of their own trade they were usually the most ignorant and stupid generation among us; the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession.

Allowing that there has been some improvement in the legal profession since Swift’s day, it is nevertheless true that any reading of decisions of the High Court of Australia, let alone of the contributions of lesser figures in the profession, reveals an appalling mishmash of confusion of political and economic prejudices with legal principles, and a remarkable lack of acquaintance with the thinking of non-lawyers in the strictly non-legal areas into which the High Court necessarily strays.

This has tended to obscure a much more deep-seated political controversy regarding the significance and status of law and the Constitution.

The political division within the legal profession, which is ill-understood by lawyers themselves in the mass, is essentially between those who see the law as an instrument of social reform, and those who see it as the bulwark of the existing social and economic order.

For the most part, neither examines its position very carefully. But a major contribution to understanding of constitutions and the significance of the law in Australia has recently been made at a conference in Sydney.

This was the conference on “Constitutional Theory and Australian Practice,” organised last Friday by the Centre for Independent Studies.

The CIS is an independent policy studies body strongly oriented towards free market economics and classical liberalism, with a leaning towards right-wing libertarianism. A strong influence on many of its members is the Nobel prize-winning Austrian economist and political philosopher Friedrich von Hayek.

It has sponsored a number of conferences already, notably one last year on the ill effects of government regulation on the economy.

The underlying theme of a number of the papers at the conference derives from the view, elaborated by Hayek in his massive work, Law, Legislation and Liberty, that written constitutions protect good government against the “popular will.”

This position has a long tradition and received expression from Hayek’s intellectual mentor, John Stuart Mill, in the proposition that minorities need protection against majorities.

A version of this view has achieved considerable vogue among free market economists (often roughly identified with monetarism and Milton Friedman), who feel that economic policy is too important to be left to the politicians.

Thus it is frequently argued that the central bank should implement a monetary policy, and preferably a strict monetary growth rule, without interference by the government or parliament.

The papers at the recent conference together represented one of the most important contributions to analysis of the workings of the Australian Constitution to have emerged since 1975.

One of its greatest strengths was that its contributors came not just from the law, but from the discipline of political theory, and showed a much greater degree of acquaintance with political and economic theory than has so far been usual in the area of constitutional theory, which in Australia has for the most part been left to lawyers.

Dr Brian Galligan, of Latrobe University, delivered a penetrating analysis of the legal and political functions of the High Court, “Legitimating Judicial Review in the Australian Political System.”

He traced through the way in which, since Federation, the High Court has established its remarkable pre-eminence in Australian politics.

The first phase, under Griffith, Barton and O’Connor, was the high point of the early creative function of the court.

The Labor Party was not yet a major force, and Chief Justice Griffith was able to say that the Constitution was not, “to be construed merely by the aid of a dictionary, as by an astral intelligence, and as a mere decree of the Imperial Parliament without reference to history.”

The Labor Party was not a party to the original Constitution making, and it was with its rise to power that the Court developed the technique of legalism, which strengthened it in its role as a conservative bastion against “socialist” legislation.

Dr Galligan discusses a number of the crucial decisions of the Court, to show how they were the product of political judgment rather than reasoned argument. He says:

A strict and complete legalism has been the Court’s solution to the problem of adjudicating great political disputes where there is no consensus on substantive principles.

In this respect, legalism is the “noble lie” of Australian politics: it has allowed the Court to carry out its function of upholding the basic constitutional order with ease and success, and has helped ensure a constitutional stability that might otherwise have not been achieved.

Once it is exposed, however, legalism must become unworkable.

It is now only a matter of time before the public in Australia appreciate the enormous political power of the High Court and see constitutional adjudication for what it is, or what the critics say it is.

However, while recognising and documenting, the justice of the attack on the High Court by the critics of legalism, Dr Galligan points out the dangers of this attack. He says:

Where constitutional amendment is virtually impossible as is the case in Australia, the chief restraints on the judicial branch of government are institutional ones that derive from the structural nature of the Court, and the self-restraint of judges.

The modern theories of judging that take for granted judicial activism and creativity tend to erode the principle of restraint from the judicial mind.

This is an extremely important proposition, since it recognises that without a penchant for narrow legalism there is little restraint on the attempt by the judiciary to establish hegemony over the legislature — a tendency which is much favoured by those legal social reformers who feel that the Parliament is not moving fast enough for them.

But of course a change in the political prejudices of the legal profession is hardly in itself the justification for social reform.

This tendency to “judicial imperialism” has been remarked upon in the United States as well as in Australia. In recent times the High Court has presumed to interfere in the internal legislative processes of the Australian Parliament (the Petroleum and Minerals Authority Case) and in the executive privilege of the Federal Parliament (the Sankey Case).

This tendency has been strongly supported by many of the “reformers.” Professor Gordon Reid, in his contribution, quoted the Australian Law Reform Commission’s report as saying that “the history of (parliamentary) consideration of law reform proposals is not entirely a satisfactory one,” and “there is no doubt that inaction by Parliament upon law reform proposals causes despondency and diminishes the incentive to advance proposals.”

He links this with the increasing trend towards extra-parliamentary legislation by delegation, strongly advocated by Justice Sir Anthony Mason of the High Court.

The weakness of the reformers’ advocacy of such changes is that the great power of the enhanced judiciary could equally be used against an elected reform government, just as the legalism of the High Court in the forties was used politically against the Chifley Government.

Dr Geoffrey Walker went furthest of the contributors to the conference in attempting to link the judicial functions of the High Court with economic considerations, by summarising the new rationale of private property coming from some economists in the United States, that it is a necessary aspect of incentives to efficient allocation of resources, and ties it in with the High Court decision on section 47 (9) (a) of the Trade Practices Act.

This decision, relating to brewers’ tied houses, made use of section 51 (xxxi) of the Constitution, which provides for acquisition of property by the Commonwealth to be “on just terms.”

Since any form of government regulation involves an interference in property rights, and therefore the acquisition of some part of the value of unfettered property involves acquisition without compensation, this decision could be the seed for a number of challenges to government regulation under section 51.

The papers at this conference provide a useful exposition of views which are increasingly popular amongst the pro free enterprise economists, political theorists, and lawyers of the United States, applied to Australian circumstances and with particular reference to the basic issues of constitutional theory raised by the dismissal of the Whitlam Government.

The final word should be left to Dr Galligan, whose paper was undoubtedly the most thought-provoking of the conference:

Only a thin line at the very most separates the creative judge from the lawless one. Moreover, Australia lacks the basic political consensus that has allowed the open and free-wheeling constitutional method that the United States Supreme Court has relied upon in recent decades.

If judicial review is to survive in Australia, a more substantive jurisprudence than legalism and a less active role for the Court seems to be required.

To which it might simply be added that the survival of the High Court’s power of judicial review in its present form might require the undoing of some of the “judicial creativity” which has hidden behind the guise of legalism, especially in the construction placed on Section 92.

(The papers of the conference are available from the Centre for Independent Studies, PO Box 32, Turramurra, NSW, 2074. Telephone 84 5818.)

***
4.
Anonymous Editorial, “Government by judiciary?,” The Australian Financial Review, December 4, 1979, p. 10.

Last week’s unanimous decision by the High Court of Australia on the powers of the Broadcasting Tribunal was another reminder of how greatly the court can affect the course of Australian politics and economics.

Suddenly, the tribunal has once more leapt into prominence as a body which has great powers with respect to the transfer of television and radio licences, powers which are to be exercised “in the public interest,” the determination of which in this area has been delegated by Parliament to the tribunal.

However, this is only a minor example of the powers of the court. Much more important is the way in which the High Court has over the years since Federation gradually established itself in an extraordinarily powerful, and virtually unchallenged, position of supremacy in the Australian political system.

Far from being one part of a tripartite balance of powers between legislature, executive and judiciary, the High Court has (in what has been described as a long, drawn-out coup d’etat) effectively subordinated the other branches of government to itself.

The Constitution is the law above Parliament, which can be amended only by an elaborate and virtually impossible process. The High Court is now the sole interpreter of this law. Therefore it is above Parliament. Moreover, through the assertion of its powers to review executive prerogatives, it can on occasion assert its superiority to the executive.

The political role of the High Court, and the way in which it has attempted to hide this behind the guise of legalism, has always been apparent, although it used not to be common to discuss it. Increasingly, however, it is being exposed.

Any reading of High Court judgments in crucial cases which have determined the limits of the power of Parliament to legislate in matters affecting the working of the social and economic system shows how much these have owed to the personal beliefs of the judges. On occasion, a basic issue is decided by a majority vote, with no real consensus even among the majority — and the economic effects are enormous.

Last year’s decision of the High Court on the Wheat Stabilisation Case was a classical example. By a majority of one, the court decided that despite the interpretation of section 92 established partly as a result of the efforts of the Chief Justice, the Wheat Board’s powers of acquisition were within the Constitution. The various judgments were an amazing mixture of bad economics, worse political philosophy and little law.

Even more serious, the fact that the majority went the way it did could well have been simply an accident of the composition of the Full Bench which heard the case. Many observers believe that the result, with a slightly different Bench drawn from the then existing full membership of the High Court, could have been exactly the opposite.

Always willing to extend its own power at the expense of the legislature and the executive, the court now has behind it a substantial body of opinion in the legal profession as a whole. Law reformers, in particular, have become impatient with the pace of reform through Parliament, and look for judicial and other legal initiatives to achieve what the executive, the Parliament, and ultimately the electorate, will not grant.

A case in point is the reaction to the Karen Green case, when the power of the Director-General of Social Security under the Act to refuse unemployment benefits was judged to be inadequate. The Parliament, as is its right, amended the law to give the DG the power. Instead of accepting that the electorate has given the present Government the power to act in that way, there has been a continual complaint from many goodhearted people that somehow, Parliament “cheated” by not accepting the decision. This is tantamount to arguing that the power to legislate to amend legal rulings should be taken away from the representatives of the people.

This kind of judicial imperialism is ultimately a greater threat to our political system than most of the various interest group claims to power, like the role of the trade unions, which are commonly referred to when discussing the future of democracy.

And increasingly as the political and economic role of the High Court becomes more apparent to contenders for power, control of the High Court, through membership and through the spread of the doctrine of “judicial creativity” will increasingly loom as one of the central political prizes in our system.

The significance of this development has only begun to be discussed in Australia. Professor Gordon Reid has dealt with it in his essay on “The changing political framework,” to be published shortly in Quadrant. A recent conference on constitutional theory organised by the Centre for Independent Studies (reported in the Financial Review of November 30 by our Economics Editor, P. P. McGuinness) included contributions on the subject of a standard far superior to the usual academic political studies conference.

It must be recognised that the dangers of judicial imperialism are very largely the creation of the highly controversial political role which the conservatives on the High Court have exercised in the past.

A more modest interpretation of its powers in the past, and a greater willingness to accept the clear intention of the Constitution and of laws, might not have bred the doctrine of “judicial creativity” in its present form, which promises to further erode the powers of Parliament.

***
5.
Anonymous Editorial, “The High Court, the Wheat Board and the facts,” The Australian Financial Review, October 30, 1980, p. 12.

The High Court has decided that it does not know enough to decide the question of whether the Wheat Board monopoly acquisition powers over the wheat crop are constitutional. This is at least an advance on the decision handed down in the Clark King case in 1978, in which the facts were given short shift indeed.

In that case the majority of the Bench of five judges included some who depended on the dictum of the Privy Council in the bank nationalisation case, which in essence said that, first, the wide scope given to Section 92 of the Constitution by the Australian courts was justified, but, second, that circumstances could arise in which government monopoly of an industry could be justified if that was the only effective means of regulation of the industry.

These judges agreed with the now dominant interpretation of Section 92, that it gives some kind of guarantee against government interference to any transaction or even “intercourse” between States. This interpretation is carried even further in the latest exercise in less than profound political philosophy by the Chief Justice, Sir Garfield Barwick, issued on Wednesday.

Sir Garfield develops the notion that “absolutely free,” the wording in Section 92, does not mean “absolutely free.” He uses some interesting analogies. Thus he points to the fact that freedom to use a road does not mean freedom to ignore traffic laws. It might also be remarkable that it does not include freedom to ignore the statutory monopoly of the use of fast transit lanes.

Once such concessions are allowed, of course, the “paramount” nature of Section 92 has to come into question. As Mr Justice Murphy declares in his judgment, why would a general, paramount provision of the Constitution be tucked in as a minor clause in a chapter headed Finance and Trade?

Justice Murphy has taken a radical view of Section 92 by simply rejecting earlier interpretations. The Chief Justice, who condemns several of his brother judges for adopting interpretations which have “never been accepted by any justice of the court,” past or present, seems to forget that Justice Murphy, and other dissidents, are present justices of the court. Their authority is as great as Sir Garfield’s.

The political nature of past interpretations of Section 92 has, in any case, been adequately documented. The doctrine of “stare decisis” does not apply to political philosophy.

However, if Sir Garfield’s views on Section 92 and its meaning are accepted, the issue before the court was, as has been admitted, one of fact. For the Wheat Board’s powers of compulsory acquisition to survive the usual interpretation of Section 92, which Sir Garfield has done so much to instal, it would be necessary to prove that such powers were the only possible and conceivable method of regulation of the domestic wheat market.

This is the issue of fact “beyond judicial knowledge” which will have to be heard by a single judge of the High Court, so that the constitutional issue may then be reheard by the Full Bench. A couple of very important points in respect of this need to be considered.

To begin with, any person with the least acquaintance with the experience of market regulation knows that total monopoly powers are not necessary. A stabilisation fund can operate, for example, buying and selling in the market without interfering with anyone’s property rights or right of free contract. Even more important, the Industries Assistance Commission carried out an extensive inquiry into wheat stabilisation which concluded that the compulsory acquisition powers of the Wheat Board were quite unnecessary to effective regulation.

That is, the facts have been established by an authoritative independent tribunal. The draft report of the IAC was available to the High Court during the Clark King case; some judges chose to ignore it. It would be an inexcusable waste of public funds, and an abuse of judicial authority, if the High Court should now propose to retrace the course of the IAC inquiry at great expense to everyone involved.

This is especially the case since the Wheat Board, in its arrogance, did not choose to present any factual arguments in the Uebergang case. This was pointedly alluded to by the Chief Justice. Really the only proper course for the “factual” hearing to come would be for the designated judge to read the IAC report, accept its findings (since there is no way that he could have greater expertise) and refer the case back to the Full Bench with the finding that compulsory acquisition powers are not essential to wheat market regulation.

In terms of the conventional interpretation of Section 92 this would mean the end of the overweening and arbitrary powers of the board. Mr Colin Uebergang and his associates would win their case.

But in the process of establishing their point, and in the tortuous processes yet to come, they are incurring very substantial costs, so far estimated at at least $250,000, in pursuing a case against a powerful statutory authority behaving in a way of which the Chief Justice himself clearly disapproves. There is therefore a very strong case for the Government to offer financial support to the Uebergang camp to ensure that the whole business is carried through to a conclusion.

The implications of the position put forward by the Chief Justice are of course enormous. It would undermine the powers of all existing regulatory authorities established by the Commonwealth as far as internal transactions are concerned. Even the statutory monopoly of Telecom and Australia Post, to the extent that they do not rest on specific powers of the Constitution (and Sir Garfield in any case would argue that Section 92 is paramount) would come under threat. There is even a possibility that the scope of State authorities’ powers could be affected.

Thus the rehearing of the Uebergang case by the Full Bench, once the very simple question of fact has been determined, will be of crucial significance. It could represent the crowning victory of Sir Garfield Barwick’s long campaign against the primacy of government and against considerations of public interest as supreme over private interest.

On the other hand it might have implications so extreme, and so threatening to the separation of judicial and legislative powers (a subject canvassed by Mr Justice Murphy), that the court may well decide that Section 92 requires reinterpretation.

***
5a.
Rod Metcalfe, “Farmer drops challenge to Wheat Board,” The Australian Financial Review, May 20, 1981, p. 3.

Mr Colin Uebergang is to withdraw his High Court challenge to the monopoly powers of the Australian Wheat Board, it was revealed in Sydney yesterday.

He is reported to have told his solicitors of the decision to withdraw, requesting them to notify the High Court.

He has also requested the winding-up of the Inverell-based trust fund used to finance the challenge.

Mr Uebergang was unavailable for comment yesterday, but Mr Bob Levy, Sydney representative of the Section 92 Association and a close friend of Mr Uebergang, said the decision was final and stemmed from an apparent lack of support.

“Colin is fed up and is pulling out of the challenge,” Mr Levy said. The battle so far has cost more than $325,000 and would cost much more if it continued.

“He believes the case is winnable, but the potential entrance of the Commonwealth and State Governments would be a staggering encumbrance which, at this juncture, would be impossible for Colin and his family to bear.

“The involvement of Governments has been threatened for some time, and unfortunately it is a threat which has worked this time.”

With the northern part of NSW and some sections of southern Queensland now entering their third year of drought, it is hardly surprising the resolve and financial support of many farmers has ceased.

The ending of the challenge and the withdrawal of Mr Uebergang are likely to spell the end of the Section 92 Association and the Graingrowers of Australia Association.

The Section 92 Association takes its name from the section of the Australian Constitution guaranteeing free trade between States. This formed the basis of the High Court challenge to the Wheat Board.

Both associations comprise large-scale wheat growers in northern NSW and southern Queensland who claim they are sufficiently large enough to supply wheat contracts on their own.

The movement of wheat across the boarder, guaranteed under Section 92, has been viewed as one way of avoiding the Wheat Board powers.

However, in 1978 the High Court ruled 3-2 in favour of the Wheat Stabilisation Scheme taking precedence over Section 92 when it found against a private trade — Clark King and Co.

However, the narrowness of the decision and the publication of an Industries Assistance Commission draft report recommending other wheat marketing support mechanisms prompted Mr Uebergang to mount his challenge.

***
6.
Padraic P. McGuinness, “The vindication of Murphy, J.,” The Australian Financial Review, May 6, 1988, pp. 100-99.

From the other side of the grave, Lionel Murphy has won a major victory. The revolutionary decision of the High Court this week means that Murphy was right about Section 92 of the Constitution.

Section 92 has bedevilled Australian government and politics for many years. Now the High Court has reversed the interpretations of over 50 years, and declared that Section 92 means what it says. By doing so it greatly expands the scope of the trade and commerce power of the Commonwealth.

The infamous Section 92 reads, simply: “On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” (There is another paragraph, which is no longer relevant.)

For years Lionel Murphy and others argued that this clause clearly means that there shall not be customs and similar barriers between the States — Federation meant that the States were joining into a single market (the High Court not very convincingly tries to distinguish its new position from Murphy’s).

But a series of past decisions of the High Court and the Privy Council invested Section 92 with a much wider significance, saying effectively that it meant that the Commonwealth had no power to regulate trade that crossed State boundaries, even if no discrimination between States was involved. Further, it was interpreted to say that an individual could not be prevented from setting up in business if that business crossed State boundaries.

This was despite the very clear provision of Section 51(i) of the Constitution, which gave to the Commonwealth Parliament legislative powers with respect to trade and commerce with other countries, and among the States.

It is a lasting subject for amazement that the clear and obvious reading of these two sections together should have been twisted for so long. It was, of course, done for political reasons — and it is one of the shabbiest elements in the history of the Privy Council and the High Court that the misconstruction of Section 92 should first of all have been permitted, and second should have lingered on so long.

It lingered in part because of the doctrine of precedent. But Murphy never accepted that in such a matter precedent should overrule clear commonsense, and he consistently refused to accept it in the matter of Section 92. When on the High Court, he frequently reiterated his view of what it meant, and refused to accept the precedents which existed. He also frequently pointed out that the High Court was no longer bound by Privy Council decisions.

Now the Full Bench of the High Court has unanimously accepted, less than two years after his death, that Murphy was right.

Thus Lionel Murphy has moved one more step towards being recognised, as he should be and despite his many grievous faults and the attacks of lesser men, as one of the greatest jurists in the history of the High Court — and certainly he will in retrospect eclipse the memory of the doughtiest defender of the political interpretation of Section 92, Sir Garfield Barwick.

What this means for the future is not at all clear. It certainly means that the powers of the Commonwealth to legislate in matters of regulation of the economy, and even nationalisation, are greatly widened. The Bank Nationalisation legislation of 1947 of the Chifley government would have been upheld under the new interpretation.

And so it should have been. It is a scandal that it was disallowed on this spurious ground. This is not to say that the legislation was wise or desirable — but the Australian Government should not have been denied by such means the right to act, even mistakenly.

In a sense, much of the political emotion has now gone out of the issue. Few these days seriously argue that bank nationalisation is a good idea. There are much more effective ways of regulating bank behaviour, to the extent that it is desirable. And at a time when the privatisation of the Commonwealth Bank can be seriously debated even in the Labor Party, the agenda has changed beyond recognition.

The whole climate of thinking concerning government regulation has also changed. Despite its newly regained powers, the Commonwealth is not likely to start implementing rafts of new regulations or nationalisations (not even if it had control of the Senate).

But now there is the opportunity to set about debating the application of the trade and commerce power in rational terms. There are many affected areas — one being the powers and status of the commodity marketing boards, which are now beyond legal challenge. They are not, of course, beyond criticism; the absurdities of past High Court interferences in such matters are behind us, and it is now possible to argue on their proper ground the merits of analyses such as those of the Industries Assistance Commission in its recent report on the wheat industry.

It does not follow that the Commonwealth will incline towards more regulation. But it will be possible for it to do something about clearing up the maze of alternatives to clear-cut Federal regulation which has grown up as a result of attempts by various State Labor governments, and indeed non-Labor governments, to get around the barriers of High Court political legislation.

The result could be a simplification and overall lessening of regulation. One obvious area is product standards and labelling. The Commonwealth’s powers with regard to the NCSC will also be greatly strengthened.

It is indeed fortuitous that the new ruling should come just when the true enormity of the abuses of regulation in coastal shipping has been documented by the IAC. Interstate road transport now clearly comes within the ambit of Commonwealth regulation; whereas once it was the only remaining degree of freedom in domestic freight transport, now it can safely be regulated in the expectation that such regulation will not be designed to serve the interests of the rail and sea freight services.

Hitherto, Section 92 has served as a kind of guarantee of private enterprise. This is no longer the case. It will inevitably be suggested that some kind of guarantee should now be inserted into the Constitution, by proper, public decision — not through the back door by way of the political prejudices of judges.

There might be a case for this — indeed, it sheds a whole new light on the proposals for some kind of Bill of Rights to be added to the Constitution. But it is dangerous for one generation to pretend to bind the hands of future generations, especially when this is done by undemocratic means.

Lionel Murphy might well have preferred the path of judicial activism to one of entrenched constitutional rights. Certainly, his views on how the Constitution ought to be interpreted, in the light of changing conditions and political evolution, not as black-letter law, have much to be said for them.

Ironically, however, it has been the return to black-letter law at the expense of precedent and historical accretion of interpretations which has given him his greatest posthumous victory. The real problem is how long, how very, very long, it takes to bring judges and lawyers to the path of common sense.

***
7.
Padraic P. McGuinness, “High Court does it again,” The Australian Financial Review, October 28, 1988, pp. 100-99.

The arrogance of the courts can be quite breathtaking. Barely a fortnight after deciding that barristers are beyond the reach of clients who feel that they might have a case for professional negligence, and that judges cannot be sued no matter how gross their negligence or bias, the High Court has ruled that journalists have no claim whatsoever to keep confidential their sources.

Lawyers are beyond the reach of the law; nobody else is.

Once again the evil and unjust defamation laws of this country have been used in an attack on the very lifeblood of democracy, free speech.

The journalist concerned is one of the most respected members of the trade, Peter Hastings. The issue is whether he should be forced to reveal the sources who gave him certain information regarding a Mr Cojuangco. I know little of Mr Cojuangco, and have no views on what Hastings wrote about him. The rights and wrongs of his defamation case are not part of my subject today.

But it is clear that the purpose of the demand to know the name or names of Hastings’ informants is to take direct action against them.

It is precisely to protect such information that journalists object to being asked to name their sources. Regardless of the law, English courts have a healthy attitude to this — they do not concede any special “journalists’ privilege”, but they do argue that, in general, the public interest is not served by punishing journalists who refuse to reveal sources.

There is a major exception to this. Brendan Mulholland, a London Daily Mail journalist, was jailed in 1963 for this reason. But it was not a defamation case. Nor was the major Australian precedent, with which I happen to be intimately acquainted, since it involved my father, at that time (1940) editor of the Melbourne Truth (in those days, a serious newspaper).

My father refused to reveal his source, and was cited for contempt. He argued the right to keep his sources confidential, and was overruled by the court. He still refused. Much to his disappointment (according to my mother; I still have a copy of a Christmas card he had printed with prison arrows and Pentridge as an address) he was not sent to jail, but was fined.

At the time, he was relatively young and healthy. Peter Hastings is a good deal older, and not in the best of health, so I would not presume to criticise him whatever decision he makes if he is threatened with jail for not naming his source. I nevertheless hope he does not.

Now, to advocate that someone should defy the law is no light matter; to advocate that someone should defy a judge’s instruction is not quite the same thing. For, although the law has now been ruled by the High Court to be such as to give the judge the power to instruct a defendant in a defamation case to reveal his sources, and to punish him if he does not, that does not mean that the judge will be acting either correctly or wisely if he makes such an instruction.

I would like to think that I, and any other journalist in a like situation, would defy the order and be prepared to go to jail. But I repeat, I will have no criticism of Peter Hastings whatever decision he makes. I am not in his shoes. I don’t have to live with the consequences.

But it would have been a good thing if the original judge, the NSW Court had shown some awareness of just how serious is the law they are asserting and making. (They are acting under the Rules of the NSW Supreme Court.)

There are two basic issues involved. Of them is the court’s assertion that there is no necessary privilege attracting to journalists’ sources. In this, they have to be considered correct — it is clear that journalists should not enjoy any special privilege of an absolute kind. It may be that on occasions the public interest, and indeed the national interest, might require that they be required to name their sources. (A relevant Australian example might be the case of the Foreign Affairs Department leak involved in the so-called “Hayden papers”.)

Depending on the actual circumstances, the balance might well be in favour of revelation of sources.

There is also the point made by the High Court that the presumption of journalistic immunity could encourage malpractice, in that articles could be written claiming serious sources which are in fact pure invention. Nobody who is familiar with the worst as well as the best journalism would pretend that this does not sometimes happen.

But, in the case of someone of such deservedly high reputation and consistent record as Peter Hastings, this is not relevant.

The other basic issue is whether it can ever be in the public interest, or, even more to the point, in the “interests of justice” (a phrase that the High Court bandies about but does not define — it is pretty clear that this depends on the prejudices of judges), to apply the extreme step of requiring identification of sources in a matter of defamation.

The real problem here is indeed not specifically of the High Court’s making. It is the truly dreadful state of defamation law in Australia, whereby the major function of this law is not to protect the reputations of private individuals, but to protect from criticism politicians, businessmen, criminals, and people who are genuinely involved in activities of public interest.

The failing of the High Court in this case is not in its interpretation of the law — that is clear — but in its negligent attitude to much more important issues of public interest and the workings of defamation law. This is the fault of the NSW Supreme Court, in this case also.

There is a strain of contempt for the values of free speech and democracy which recurs in most Australian legal discussions of defamation law. Too often no distinction is made between criticism of public figures (including judges — the idea that a judge could sue for defamation relating to his or her public activities is repugnant to all standards of fairness) and the defamation of private individuals.

Nor is any distinction made between deliberate and accidental defamation; where no malice at all is involved. For example, an error in a name, or even a coincidence of names, can be the basis of a totally undefendable action.

It is not true that this is a matter for the legislature to remedy. For we are dealing here very largely with judge-made law. And judges must be criticised for the lack of attention to important issues of public policy which arise when they make and apply such law.

The dereliction on the part of the High Court in this latest judgement is its lack of sensitivity to these very basic issues. While it (or at least the majority) spent a great deal of time arguing the interests of the legal profession as far as barristers are concerned, in terms of fairly dubious principles of public policy, such considerations disappear when they deal with a profession other than the law.

***
8.
Padraic P. McGuinness, “Embarrassing problem of ISC members’ terms,” The Australian, August 24, 1989, p. 2.

It was inevitable that the proposal put forward in the Budget to merge the Inter-State Commission with the Industries Assistance Commission to form the new Industry Commission should have encountered some legal and constitutional hitches.

This is mainly because the Inter-State Commission (ISC) has a peculiar status, and also because the members of the ISC who have invested a lot of effort in the building up of their own status in terms of the constitutional role of the ISC should feel slighted by the Treasurer’s proposal.

The ISC in theory exists because the Constitution provides (in no less than four sections) that it should; in practice it exists only because the present Government has revived it because it seems to have the possibility of extending the central Government’s powers in matters of economic policy.

But for years despite the constitutional provisions the ISC was nonexistent.

In the first place, it has to be pointed out that Section 101 of the Constitutions says categorically that “there shall be an Inter-State Commission …”

The fact that despite this statement there has been for most of the period of Federation no such body indicates that there is more than one way of ignoring the explicit words of the Constitution.

The real reason why the ISC fell into desuetude and then was abolished was the jealousy on the part of the High Court of the powers given to the ISC under the Constitution.

The High Court has developed over many years a view of the separation of powers which came to its highest fruition in the Boilermakers Case judgment of 1956, which led to the dismantling of the old Arbitration Court. This view is that the judicial power of the Commonwealth is vested in it and its subordinate “pure” courts alone.

The wording of the Constitution does not say any such thing. Section 71 of the Constitution says that “the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction …”

Note that it is the Parliament which, according to the Constitution, vests “such other courts” with the judicial power of the Commonwealth.

In a long and evolving coup d’état, the High Court has wrested the authority to vest judicial power in other courts away from the Parliament and claimed that only it can decide this.

It has said that the judicial power cannot be vested in a body which has other than judicial functions.

Here is where the ISC comes in. For Section 101 of the Constitution reads, in full: “There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of the Constitution relating to trade and commerce, and of all laws made thereunder.”

There are two very important words in this: “administration” and “execution”. It is clear that the makers of the Constitution did not intend that the judicial and administrative-executive powers of the Commonwealth should be separated as far as the ISC was concerned. The High Court simply imposed this doctrine.

There is for the nonce not much that can be done about it. It is conceivable that the Parliament could in the future decide to assert its constitutional power to insist upon the terms of the Constitution being observed by the High Court — an end which could probably only be achieved by indicting for misbehaviour and dismissing all those members of the High Court who insisted on reading the Constitution other than as it is written.

This is a highly unlikely, but not at all impossible, situation. Certainly the wilful assumption by High Court judges of powers not given them by the Constitution could be interpreted, in terms of Section 72, as “proved misbehaviour”.

Which brings us back to what might happen in the near future. What the Government no doubt has in mind is the assumption by the Industry Commission of the constitutional role, insofar as it is allowed by the High Court, of the power of the ISC to interfere in interstate matters related to trade and commerce.

Section 101 of the Constitution clearly refers back to the rarely invoked Section 51 (i) of the Constitution, which says that the Parliament of the Commonwealth shall have power to make laws with respect to “trade and commerce with other countries and among the States”.

In other words, the powers of the Inter-State Commission were clearly intended by the framers of the Constitution to be much greater than the unelected legislators of the High Court have ever allowed.

By investing the Industry Commission with these powers (and there is nothing in the Constitution which says that the ISC has to be named the Inter-State Commission) the Commonwealth Government clearly hopes that its scope will be very much greater than that of the Industries Assistance Commission.

However, there is the remaining problem of the tenure of the existing members of the ISC, who are appointed for a term of seven years under the Constitution. The simplest solution to this is to treat their remaining terms as being served out as commissioners of the Industry Commission.

Alternatively, the Staples precedent could be used, and the change of name used as a pretext for not re-appointing them to the new body. This of course could lead to some embarrassing arguments with the High Court.

It might well decide that Justice Staples was wrongly removed at the same time as insisting that even though it has decided that the ISC has not got the judicial powers granted it in the Constitution (wrongly — but you can hardly accuse the High Court of acting illegally, even though it is acting unconstitutionally by everybody else’s definition except its own) the same technique could not be used to get rid of the ISC commissioners.

It might distinguish the two cases by pointing to the fact that Section 103 of the Constitution entrenches the tenure of the ISC members in the same way as that of the members of the High Court and other courts — which of course supports the reading of the Constitution as giving judicial as well as administrative powers to the ISC.

That would entail re-reading the words of the other clauses relating to the ISC — something that the High Court would not care to do. (It is worth noting that the otherwise admirable 1988 Final Report of the Constitutional Commission totally dodged the issue of the clear meaning of the provisions relating to the ISC as being contrary to the rulings of the High Court, as did also the report of the trade and national economic management advisory committee of the Constitutional Commission, headed by Justice Everett, the then head of the ISC.)

So in the meantime the renaming of the IAC as the Industry Commission, incorporating the powers of the ISC, such as they are, creates the embarrassing hangover of the problem of existing ISC members’ terms.

There could well be some fascinating legal argument yet to come as to who is in charge of whom.

***
9.
Padraic P. McGuinness, “Doctrine of separation of powers — don’t you worry about that,” The Australian, October 3, 1989, p. 2.

Much has been made of the supposed inability of the former Queensland premier, Sir Johannes Bjelke-Petersen, and the new Queensland Premier, Mr Cooper, to comprehend the so-called “doctrine of the separation of powers under the Westminster system”.

Ridicule has been heaped on them for this alleged ignorance. It would, however, have been better directed if in the first place there were such a doctrine, and in the second place those claiming superior knowledge were not merely revealing their own ignorance every time the matter was brought up.

The notion of the separation of powers has a long history in political thought, but was formulated clearly in something like its modern form by the great French thinker Charles Louis de Secondat, Baron de Montesquieu (1689-1755).

Montesquieu was a student and admirer of English political institutions, and he believed what he saw as the division and sharing of power by the King, the Parliament and the judges in England, following the “Glorious Revolution” of 1688, was a model for good government and political liberty. Unfortunately, he did not understand the English system very well.

Just what the doctrine of the separation of powers is can be debated. It is defined in Roger Scruton’s excellent Dictionary of Political Thought, which (in part) says:

The three powers normally considered to be separable in the exercise of government are the legislature, the executive and the judiciary, the first of which formulates policy and enacts it as law, the second of which carries policy into action and the third of which applies the law according to the rules of procedural justice, and resolves disputes.

The United States Constitution is based on Montesquieu’s theory. The executive, headed by the President, is totally distinct from the legislature, Congress. The role of the Supreme Court is to interpret the basic law of the Constitution and ensure its observance.

But the Westminster system of government in fact does not share this doctrine of the separation of powers, and never has.

This is clear enough when it is recalled that the monarch has no real powers and that the head of the executive is the Prime Minister, who heads a Cabinet drawn from the legislature. Moreover, the final court of appeal in Britain is the judicial committee of the House of Lords, the Upper House of the Parliament.

That the Westminster system is quite distinct from the US system of separation of powers was clearly understood by Walter Bagehot, who in his classic work on The English Constitution (1867) wrote:

The Americans of 1787 thought they were copying the English Constitution, but they were contriving a contrast to it. Just as the American is the type of composite government, in which the supreme power is divided between many bodies and functionaries, so the English is the type of simple constitution, in which the ultimate power upon all questions is in the hands of the same person.

The ultimate authority in the English Constitution is a newly elected House of Commons. No matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential Constitution or small matters of daily detail …

The Queensland Constitution was modelled on the Westminster system. It does not distinguish strictly between the administrative and judicial powers (as was recognised by the Constitutional Commission which reported last year; that body in its final report recommended no change to the State judicial/administrative set-up).

The abolition of the Upper House in Queensland in 1922 removed the check upon hasty and ill-considered legislation which the House of Lords provides at Westminster. So in Queensland the doctrine of separation of powers has never existed as part of its formal or informal constitutional set-up, any more than it has at Westminster.

The Commonwealth of Australia has a Constitution that combines some features of the US Constitution with the Westminster model. As a result of the early seizure of political power by the High Court, that part of our Constitution which provides for mixed judicial-administrative powers (in relation to the Inter-State Commission, especially) has never been allowed to operate. So what the “separation of powers” doctrine has become in Australia is a doctrine of judicial independence and, in the case of the High Court, final authority.

The doctrine has evolved in the United States, too, as a result of judicial imperialism. In that country the Supreme Court makes both law and policy and even low-level administrative decisions (as in the bussing of school pupils supposedly to overcome racial segregation in schools).

So what was the barrister at the Fitzgerald commission hearing in Queensland on about when he asked Sir Joh that question? That is by no means clear.

Nowhere in the Fitzgerald Report can I find any discussion of the doctrine of the separation of powers and the Westminster system. So it must be that a totally confused barrister perhaps not very well-educated in political theory was asking an equally confused, and certainly ill-educated, rural populist politician a meaningless question.

From the report, it can be deduced that he was talking about the independence of the judiciary, and in particular the interference by the police force that seems to have taken place in Queensland in appointments to the judiciary. But the executive, of which the police force is an arm, always appoints judges (presumably after asking the police if they know of any reason why a person might not be fit to be a judge).

Instead of saying clearly that there was something crook about the criteria on which judges were considered for appointment and promotion, which has nothing to do with either the separation of powers or the Westminster system, a non-existent (as far as Queensland is concerned) political doctrine was invented.

The doctrine has been taken up by various people who know no better, and the National Party leaders belaboured because, not surprisingly, not having sufficient background in political theory to know what on earth these people think they are referring to they have been bluffed into thinking that they are being asked a sensible question they cannot understand.

It is the questioners who are deficient in knowledge and understanding.

None of this diminishes the degree of corruption and crookery which does exist in Queensland. But it does suggest that the defects of the Queensland system have to be sought elsewhere.

The absence of an Upper House, which means that there is no check upon the Legislative Assembly, is one of these defects. Another is the absence of a constitutional provision or law that would allow the Supreme Court to hold the executive accountable for its actions. Another is the absence of a tradition of openness and propriety in government. Yet another is the absence of a tradition of respect for minority rights, and civil liberties. Another is a lack of general respect for the rule of law. And another is a profession of the Bar, which tries to exclude competition from the rest of Australia.

Unhappily for Queensland, the local critics of the National Party Government and of the Fitzgerald Report appear to understand little of all this. They themselves are part of the problem.

***
10.
Padraic P. McGuinness, “Just reforms and the State resurgent,” The Australian, September 10, 1991, p. 13.

Among the reforms which the Independents in the NSW Parliament are exacting from the Greiner Government, which will bring about a virtual constitutional revolution in that State, is a proposal for an independent judiciary.

So far, Nick Greiner and his Government have conceded a reform which will transform political campaigning in NSW — that is, the four-year term with a fixed date for elections. This will ensure that the next election in NSW will take place on Saturday, March 25, 1995, and the last Saturday of every fourth March after that.

The only ways in which this cycle will be able to be interrupted is by way of defeat for a government on a motion of no confidence in the Legislative Assembly and the inability of the Opposition to then form a government with the support of a majority of the existing members of the Assembly; or by a federal election on the same date, which would cause the State election to be postponed three months. It is proposed that at the next State election there will be a referendum to entrench this provision — that is, to require another referendum to change it.

State Constitutions are modelled far more closely on the Westminster system of government than is our federal Constitution, and incorporate the principle of parliamentary sovereignty in a way the Australian Constitution does not. The doctrine of the separation of powers (between parliament, executive and judiciary) does not exist in the States, although it is partially present, in the form of strict separation of judicial powers, in the Commonwealth. (When the so-called separation of powers was appealed to in Queensland, members of the then Queensland government were rightly puzzled, since no such doctrine exists in any State Constitution.)

It is clearly unsatisfactory from the point of view of an independent judiciary that there be no guarantee of its independence with respect to government and parliament. Such independence is a prerequisite of the rule of law. So the importance of the NSW Independent MPs’ demand that the judiciary be given some kind of protection similar to that enjoyed by judges under the Commonwealth Constitution can not be overstated.

Just what independence of the judiciary means is debatable. On the one hand it means that judges cannot easily be removed from office — in the case of the Commonwealth judiciary, by resolution of both houses of parliament “on the ground of proved misbehaviour or incapacity”. Just what proof means in this context became a difficult issue when Justice Murphy of the High Court was in jeopardy.

On the other hand, it means freedom of the judiciary from interference in the process of justice. To the extent that this means not leaning on individual judges, offering rewards or threats to secure judgment according to the wishes of the government of the day, it is fairly straightforward — at least in Australia; in Britain in recent times the judiciary seems to have become a willing servant of government despite all its traditions. To the extent that the whole judicial and court system depends on funding from the government, and is partly administered by it, there are additional problems.

A recent paper published by the Australian Institute of Judicial Administration (Governing Australia’s Courts by T.W. Church and P.A. Sallmann) looks at the problem of how judicial independence and the administration of the court system interact. The essence of this issue is in a quotation from an American author: “The basic problem, crudely put, is that judges don’t want to govern themselves, but they don’t want anyone else to do it either.”

So when the NSW Independents put forward what they believed was a fairly elementary proposition to somehow entrench judicial independence for State judges, they were met with a barrage of obfuscation from both the bureaucrats and the Supreme Court. The bureaucrats did their best to pull the wool over the Independents’ eyes in the belief that they did not have access to good legal advice, and backed down hastily when it emerged that they did — indeed, some of the best. The Supreme Court tried to drag the issue of administrative independence into what was an argument about the independence of judges, not their control over their budgets and staff.

As things stand now, the Government is conceding that it might be acceptable to legislate for a mode of dismissal of judges similar to that which exists federally, even though there might be difficulties in entrenching this. That hardly matters, since to amend such legislation in order to prepare the ground for removal of a judge or judges would draw the issue sufficiently to the attention of the community to make abuse of process difficult.

How the courts should best be governed, the extent to which there should be self-management within a legal and bureaucratic framework which gives them some say in the allocation of resources and the appointment and control of staff, is the subject of the AIJA paper. Questions of case management, efficiency and speed are involved here. The Greiner Government is already in the course of establishing a Courts Administration Department, separate from the policy concerns of the Attorney-General’s Department, along lines pioneered in South Australia.

But the important issue is to protect the members of judiciary from pressures and threats which might lessen their ability to, in effect, tell the government (and organs of the government such as the police) to jump in the lake when they see fit to do so in the interests of justice and the rule of law.

So if the Greiner Government concedes the Independents’ demands in this area, as it has done already on the fixed four-year term of parliament, the State of NSW will have taken a long step away from the Westminster system towards a system which recognises a true separation of powers. If the next step is also to talk about entrenching this provision, NSW would be likely to find itself facing a series of referendums in 1995 which would effectively create a written Constitution which, like the Commonwealth Constitution, could be amended only by the people.

As well as parliamentary reforms, the Independents are concerned with basic civil and political rights, such as freedom of expression (that is, they want the defamation law made less onerous). It would not be a long step there to the formulation of a Bill, or charter, of rights and freedoms. Again, this could be legislated without entrenchment in the first place, as New Zealand did. Its Bill of Rights came into force almost exactly a year ago, and while it could be amended or overruled by the single-chamber parliament at any time, it has to be taken into account in applying all other laws by the New Zealand courts.

It may be that, far from the States withering away as so many old-fashioned centralists and modern eco-fascists would like, we are on the threshold of a revival of constitutional federalism in Australia, with the States bringing themselves up to date with the modern democratic principles of a basic law which can be amended only by the people, guaranteeing the rule of law which is embodied in our Commonwealth Constitution.

Like the Soviet Union, fortunately without the trauma, we are rediscovering the virtues of division of sovereignty. It would be perfectly sensible in that context for income-taxing powers to revert to the States (who lost them only as a result of the emergency of war) and genuine co-operative federalism to become the model for the 21st century in Australia and the rest of the world.

***
11.
Padraic P. McGuinness, “High Court’s coup d’etat,” The Australian, September 2, 1992, p. 11.

The High Court has been flexing its muscles lately, demonstrating that it is an immensely powerful institution to which governments at all levels in Australia are subject. It has also been demonstrating that it makes the law as well as interprets it.

In this it is becoming more like the United States Supreme Court. That body is one of the central institutions of the US polity, and so has become the centre of continual controversy, criticism and analysis. Unfortunately, our High Court is something of a mystery, insufficiently reported and analysed except in legal terms.

There is, for example, no source in which one can find detailed analyses of the legal and political careers of its members and there are few attempts to interpret its work from a wider than legal perspective. There are few, if any, analyses of the judgments over time of any of its members elucidating their assumptions, preconceptions, political beliefs and legal biases. Yet Parliament, which is subject to the court, is discussed ad nauseum.

A timely exception to this neglect is a new book, The Political Impact of the High Court (Allen & Unwin, $24.95), by David Solomon, who until recently reported on the court for The Australian and is now chairman of the Electoral and Administrative Review Commission in Queensland.

This is the first book in recent times to attempt to give a full account of what the High Court is and does, and why it does it. There is an earlier book by Brian Galligan, The Politics of the High Court (University of Queensland Press, 1987), which covers some of the same ground.

Solomon sketches out the history of High Court decisions as they affect a number of key policy areas in Australia — the use of the external affairs power, as authorised by the court, to legislate under treaties entered into by the Commonwealth for new areas like the environment (the most famous being the Tasmanian Dams judgment), the rocky road to the establishment of an effective federal regulatory regime for corporations, the lack of Bill of Rights (to which the recent as yet unexplained judgments on free speech are relevant) and issues of uniform taxation and federal balance.

One chapter sketches the history of section 92 of the Constitution, which has been the most politically controversial single section. This was the “little bit of layman’s language” that was to become, under successive High Courts, a charter for freedom of banking, business etc not from interstate tariff barriers (as was intended by the Founding Fathers) but from “excessive” federal regulation.

He explains how the High Court suddenly and (almost) unexpectedly threw out the whole history of interpretation of section 92 and started afresh according to the literal meaning of the section.

Unfortunately, it was about here that I began to become a bit critical of Solomon’s account. If anything, he is far too nice and balanced in his account of things. Why the High Court has entered upon one of its most activist periods in many years (rivalled only by the period during which it effectively suspended the Income Tax Assessment, under Sir Garfield Barwick, of which he gives a useful account) is left virtually undiscussed. It is this change that makes our High Court more and more like the US Supreme Court.

Not for the first time in its history the court has effectively perpetrated a coup d’etat, seizing power which was never explicitly given it in the Constitution and which was not anticipated by the Convention members who drafted it. Solomon (this criticism only means that he did not write exactly the book I would have liked him to have written) does not ever discuss the propriety of the court’s decision that it alone could decide who should exercise the judicial power of the Commonwealth.

He does not even mention the fate of the Interstate Commission, which was clearly intended to mix judicial and administrative functions but which was emasculated by the High Court early on.

The Barwick court was pretty outrageous in its interpretations of the Tax Act but it at least tried to put itself in a clear stream of judicial interpretation and precedent. Over the past few years, in fact ever since Cole v Whitfield (1988), the judgment which rejected the established interpretation of section 92, the High Court has refused to follow precedent unless it feels like it. It has transformed itself, with remarkably little public notice, into a legislature.

This has interesting implications, both for the law and politics. In the first place, it means that most of the established body of constitutional law in Australia is worthless. The decisions of the High Court cannot be predicted in terms of it.

Far from the rule of law, we now have the rule of the High Court. A constitutional lawyer trained more than 20 years ago who had been asleep in the interim (as many of them have been) has little of value to contribute to the field today.

There is only one judgment that could have given any indication of the outcome of the free speech cases last week, and that dates back only to 1988, and itself built on no precedents. There is no judicial tradition or precedent to justify the Mabo judgment, which overthrew the established doctrine on land claims of the indigenous peoples.

We are, that is, in a lawless condition as far as the interpretations of our Constitution are concerned. Or, more precisely, we are in a condition in which the High Court has to be recognised an an active, and highly political, legislature.

This means that we can no longer persist in the cosy belief that it is just a matter of eminent lawyers adjusting the law to modern conditions. It has to be accepted that many of the present members of the High Court were and are political appointments, who got the job not just because of their abilities and status but mainly because they were seen as acceptable and sympathetic by the Labor Government. The same, of course, has to be said about many of the appointments of past Liberal-National Party governments.

In itself, this may not be a bad thing. The huge body of analysis of the membership and decisions of the US Supreme Court, and the hearings into the fitness of proposed appointees of that court, are an integral part of the high politics of that nation.

We will have to accept that since our High Court is now irrevocably politicised (some would argue that it always has been) there should be much more inquiry into its memberships, their beliefs and their backgrounds.

Moreover, just as the supporters of the US Supreme Court’s judgments of the “liberal” era are shocked to see a series of Republican administrations turning it into a different kind of court, we can expect to see a Coalition government appointing judges to the High Court who share its beliefs, just as the Hawke government did from 1983 on.

To understand this development and the fact that our High Court will be at the centre of political controversy for the next decade. Solomon’s careful and temperate account of the issues will be indispensible.

Those who criticise the present court will have to start thinking about not only reversing the long coup d’etat by which the court has seized power, but what to do about it for the second century of Federation.

***
12.
Padraic P. McGuinness, “High Court’s role now irrevocably politicised,” The Weekend Australian, November 13-14, 1993, p. 2.

Our High Court judges cannot have it both ways.

First of all, they start to play the kind of political and lawmaking role that is normal for the United States Supreme Court, and then they complain about being treated as players in the political game.

It is too late: the High Court is inevitably and irrevocably politicised, and the Mabo judgment which reversed more than 200 years of legal doctrine on land title in Australia is only the most recent example of this.

So, when Professor Geoffrey Blainey, the most eminent and accomplished living Australian historian, points to the inadequacies of the High Court judgment in the Mabo case, he is making a point of fundamental importance.

Quite correctly, he has pointed to the fact that many of the judges in the Mabo case strayed a long way from their expertise in the law and made judgments about history which are far beyond their technical competence.

To put it bluntly, a majority of the judges of the High Court in the Mabo case simply did not know what they were talking about.

Their understanding of Australian history is on the evidence of what they wrote no more profound than that of the Prime Minister — that is, it is on a level barely superior to pub gossip. And it was merely silly for a former High Court judge, Sir Ronald Wilson, to say that when Professor Blainey calls on the High Court to explain its historical understanding he does not understand the process of the law.

Of course he does: his point was that the court did not explain its judgment properly and should have done so.

The history of the case is largely unknown. That is, the inputs both formal and informal into the thinking of the High Court have not been documented.

What does appear from the judgment is that some of the judges, at least, are convinced of a view of the history of white settlement in Australia which has been established mainly by propagandist historians desperately rewriting the past in order to gain control of the present.

It is always worth retelling Orwell’s classic account of the process. The Party slogan in 1984 was: “Who controls the past controls the future; who controls the present controls the past.”

O’Brien the inquisitor says to Orwell’s protagonist, Winston Smith:

You believe that reality is something objective, external, existing in its own right. You also believe that the nature of reality is self-evident. When you delude yourself into thinking that you see something, you assume that everyone else sees the same as you.

But I tell you, Winston, that reality is not external. Reality exists in the human mind, and nowhere else. Not in the individual mind, which can make mistakes, and in any case soon perishes: only in the mind of the party, which is collective and immortal. Whatever the Party holds to be the truth, is truth.

This is a pretty accurate description of the process and purpose of the massive rewriting of Australian history which has been going on over the last 20 years.

It is a process to which many academic historians, who are far from being unbiased searchers for historical truth but ideologues, have contributed.

The value of the work of these historians should, therefore, be taken into account when discussing the judgment of the court.

What is clear is that the court was not presented with a balanced view of the issues, nor did it have the ability or capacity to bring such a balanced view of the realities of Australian history to the case.

It was presented with a series of briefs by propagandists and advocates of a particular view of Australian and Aboriginal history prepared by historians, lawyers and others who played no public role in the case.

The formal defendant in the case was the Queensland government, with the Commonwealth intervening.

Neither of these parties made any serious attempt to bring balance to the case.

In particular, the Commonwealth ran dead, in effect throwing away any serious role in arguing either for the previous view of Aboriginal land rights or subjecting the plaintiff’s case to any legal, historical or anthropological analysis, and effectively backing the plaintiff. Whatever this was it was not the kind of presentation of the issues which one is entitled to expect in such an important matter.

The lawyers involved in the case were and are advocates and propagandists.

There is nothing terribly wrong with this (at least when they do not later act as judges in their own favourite causes, as sometimes happens); but the absence of any serious argument to the contrary, and indeed the cavalier way in which the High Court accepted the biased views with which they were presented, and the briefs which were submitted to them formally and informally, needs far more discussion and examination than it has so far received.

When lawyers and others defend the High Court against criticism in this matter, they are really trying to prevent discussion and examination of the fundamentals. They have won and they want to prevent anyone questioning their victory or reversing it.

To this end, they resort to threats, abuse and denigration of critics of the High Court.

The history of the Mabo case urgently needs to be told — and not from the point of view of the winners.

As I have on several occasions written, I believe that the arguments of the court on the legal issue of native title are convincing. But one of the least attractive aspects of the case is the way in which the judges were prepared to elevate their own emotional positions into legal arguments.

This is the case especially with the joint judgment of justices Deane and Gaudron, which is an expression of moral outrage, again about facts with which the judges are not fully acquainted and without any apparent sense of history or comparable experiences in other countries and other eras, which is really not appropriate in any court, especially not our highest court.

Moreover there are other features of the judgments which are a cause of concern.

Thus, the facts of the Mabo case are quite different from the situation which pertained on the mainland of Australia, and the situation and title of the Murray Islanders has virtually nothing in common with that of the mainland Aborigines, and never had. Their customs and practices were totally different.

It is a perfectly valid argument to state that the High Court should have confined itself to the Murray Island issue alone.

This does not mean that the judgment as made can be opposed. For good or ill, the High Court as at present composed is the final arbiter of the law in our legal and political system and everybody is bound by its determinations.

But that does not mean that they are irreversible, and still less that they cannot be subject to robust criticism, along with the behaviour, prejudices and inadequacies of the judges themselves. If they do not like that, the way of resignation is always open to them.

When Professor Blainey called on the Chief Justice Sir Anthony Mason to resign, he was resorting to hyperbole — but he has a point.

The court and all its current members are now hopelessly politicised; when the chief justice steps down from the Bench on reaching retirement age in 1995 the nomination of his successor must and ought to become a matter of public political controversy.

Moreover, it is perfectly appropriate now for the political process to deal with not just the Mabo judgment but its reversal, if that is what the people want. Commonwealth and State parliaments within their respective jurisdiction can change the law as made by the High Court. Whether the West Australian Government is right in doing so is arguable, but its right to do so is unarguable.

***
13.
Padraic P. McGuinness, “Another High Court revolution,” The Australian, January 25, 1994, p. 43.

The little-remarked judgment of the High Court, delivered just before Christmas, in the case of the Environmental Protection Authority of NSW and Caltex represents yet another judicial revolution wrought by the court.

The court’s decision by a 4-3 majority has drastically changed the common law in this country with respect to the protection of corporations against inquisitorial legal proceedings. Hitherto, the common law has clearly been that a corporation has the same right as an individual to refuse to answer questions or produce documents if it considers that such evidence might tend to incriminate it. This follows a long tradition of the English common law.

It is clear from the legislation of both Commonwealth and State parliaments that the legislators believed both that this principle of common law remained intact, and that when it was intended to overrule it this was explicitly stated in the legislation. Yet the High Court has now taken upon itself (once again) to legislate in clear defiance of the parliaments. This is excused on the very weak ground that Parliament does not change the law “simply by betraying a mistaken view of it”. For the implication of the specific abrogation of a common law rule is totally convincing evidence that Parliament believes that rule to exist, and therefore is surely legislated endorsement of the common law.

In other words, the court has ruled that although parliaments have legislated in the well-founded belief that the common law granted immunity to corporations against self-incrimination, they have all along been mistaken about the status of the common law because the High Court has now changed its mind! But now the High Court is saying that because Parliament did not legislate prospectively against a court decision to change the common law the intentions of legislators are without force.

It must be recognised that this is a far more radical decision, far more subversive of the powers of democratic legislatures, than the Mabo decision. For the Mabo decision is at least built upon common law precedents, and instructions by colonial administrations in London, which are provable. This time, however, the court has simply invented a new law.

The majority of the court (Chief Justice Mason and Justices Toohey, Brennan and McHugh) has done this by throwing out English, Canadian, and New Zealand common law precedents and instead drawing upon the judgments of the US Supreme Court in interpreting the fifth and fourteenth amendments of the US Constitution.

The minority judgment (that of Justices Deane, Dawson and Gaudron) argues that despite the belief of the late Justice Murphy that protection against self-incrimination really was only a personal, human right, the purpose of the rule under common law has always been to preserve the accusatorial rather than inquisitorial nature of our legal system.

The majority of the court has, however, now decided that corporations can be in effect tried under Star Chamber procedures.

Not just corporations, either. For by following the US Supreme Court, which has for many years argued that the fifth amendment (of Hollywood fame) is a legal right for individuals but not for collective entities (not just corporations existing under the corporations power of our Constitution), the High Court has established that the Government and its regulatory authorities can accuse any entity as distinct from an individual person of any offence, and then compel it to hand over all its records: accounts, correspondence, memoranda, decisions, statistics, minutes of meetings, documents prepared for executive consideration, office diaries, telephone records, notes of conversations, electronic mail — the lot.

Thus under the common law as it has now been created by the High Court a government could charge a union, a political party or an environmental lobby group, as well as a corporation, with an offence and take over all its records, and conduct a fishing expedition through the lot. A plaintiff with deep pockets can trump up charges without evidence, and then compel the defendant to hand over the evidence (if it exists). The enormous power for abuse and intimidation which this puts into the hands of public authorities is obvious.

It would be possible for a charge to be laid merely as a means for obtaining access to records in the hope of finding evidence upon which to base another and quite different charge.

The peculiarity of a High Court decision that builds upon US Supreme Court interpretations of the US Constitution — a procedure which has nothing to do with the common law — to change our common law will undoubtedly elicit considerable controversy. It changes the nature of our common law in very fundamental ways. For what the US court has done is to invoke a basic law which is above the legislature; but what our High Court has done is to imitate it without the availability of such a basic (constitutional) law in order to set its own legislative authority above that of the legislature.

There may indeed be a case for abandoning or modifying the privilege of self-incrimination in the case of corporations and other collective entities.

It is clearly difficult to mount a case against a corporation when virtually the whole of the evidence may well be contained in the books and documents of the corporation. In the specific case, the argument is that the main evidence that Caltex may have been violating the law will be contained in its own records of discharge of pollutants into the ocean. But surely there has to be other, directly observed evidence — otherwise the authorities have an unlimited right to demand production of all a company’s records.

The new state of the law is that every corporation (and trade union, etc) has to be presumed guilty whenever charged until proven innocent by means of a search of all its records.

This also puts the executives and staff of collective entities in an invidious position. They may be called upon to give evidence in court as to the existence of documents and records which incriminate them by showing they were responsible for decisions which broke the law. While they retain the right not to incriminate themselves by producing their own personal letters or diaries, or confessing their culpability, they have now not got the right to protect themselves by not producing office diaries, etc, which might incriminate them personally as well as the corporation.

The arguments put forward by the High Court majority for effecting such an important change in the common law are skimpy and unconvincing; especially since Chief Justice Mason was one of the majority which upheld the privilege of corporate non-self-incrimination a decade ago (the Pyneboard case) as “too fundamental a bulwark of liberty to be categorised simply as a rule of evidence”. By contrast, the minority judgment is cogent and convincing.

There is, of course, nothing that can be done about the way in which the High Court has now set itself up as a super-legislature until the Commonwealth Parliament acts to limit its pretensions, something which will in any case be difficult since the court is judge and jury in its own case.

***
14.
Padraic P. McGuinness, “Keating and Mason need a lesson in applied Canutism,” The Weekend Australian, March 19-20, 1994, p. 2.

One day Paul Keating’s minders are going to have to take him aside and tell him what the legend of King Canute was really about. So the next time he thinks of telling business to start investing, he will remember that King Canute had the brains not to pretend that he could order the sea to recede; instead he was demonstrating to his fawning courtiers that he possessed no such power.

At the same time, the Keating minders could remind their mealticket of the old adage to the effect that you can lead a whore to culture, but you can’t make her think.

But at least Keating is only an elected politician, and if the Opposition ever gets its act together there is a chance that he could be convinced of his own inability to summon the animal spirits of business from the vasty deep.

In the meantime, to try to foment a wages breakout as a way of encouraging business investment is only too typical of the fantasyland in which he exists when he moves outside the purview of Labor Party knee-capping.

Rather more worrying in his faux-Canutism is the Chief Justice of the High Court, Sir Anthony Mason, who faces no election — although he faces enforced retirement next year.

The Chief Justice is a curious case. When he was appointed to the High Court in 1972 it was as a very conventional conservative lawyer, who had served three years on the NSW Court of Appeals after a five-year term as Commonwealth Solicitor-General, having been educated as the typical WASP lawyer at Sydney Grammar School and Sydney University.

He enjoyed and deserved (as of course he still does) very great professional esteem and respect.

He served on the High Court under Sir Garfield Barwick C.J. and voted pretty regularly for Barwick’s strange and convoluted political theories, manifested most notably in the latter’s belief that section 92 (free trade) was the cornerstone of the Constitution, and that tax dodging was a fundamental human right.

Somewhere along the line thereafter he went through a kind of Pauline conversion, and his views on matters legal, political and moral now seem to be quite different from those which were discernible in earlier years.

This was demonstrated with great clarity at the end of last year, when he joined in a majority decision to greatly change the common law rule against self-incrimination by depriving corporations, unions, and other organisations of this protection, when a decade earlier he had described it as “too fundamental a bulwark of liberty to be categorised simply as a rule of evidence”.

(For the benefit of ignorant and paranoid media watchers, I have discussed these issues before, most recently on February 12 and January 25: that should save some work for the researchers.)

Similarly he has reversed his position on taxation law and now appears to be in the process of reversing his former position on the desirability of a bill of rights to be incorporated in the Constitution, or invented by the court and enforced by judges.

Lest there by any misunderstanding, I am an enthusiastic supporter of the High Court’s newfound concern for human rights, and indeed of its discovery that free speech is a necessary attribute of representative democracy. I sincerely hope that the court will, in judgments pending at present, decide that politicians should not be protected by defamation laws which are ridiculously restrictive.

But I am not holding my breath. After all, if a fundamental principle of free speech in democracy is the freedom to criticise politicians, even if inaccurately, it might also be presumed that this would extend to criticism of judges. Especially when judges play an increasingly important political role, and propose to continue to do so.

Speaking a few days ago at the Sydney Institute, the Chief Justice discussed criticisms of the judiciary by the media and by some politicians.

In general, his remarks were to the point: but he presented a defence of the High Court’s legislative role which seems to me at least a little disingenuous.

He pointed out that of course courts in common law countries have a legislative role — in the process of “discovering” the law they make it.

The common law is of course the system of law developed by the English courts over many years and was supposed to be based on the customary law which obtained in England before the conquest.

It was originally pretty phony, a combination of a bid for power and a defence against arbitrary executive interference formulated by judges who were highly political themselves (like the great Sir Edward Coke).

Gradually it became the prerogative of the English courts to make the law and to invent common law when it did not exist, claiming that it was nothing but the codification of contemporary custom.

But the whole point of such judge-made law is that it depended on slow and conservative decision-making, with great weight being given to precedent and earlier judgments.

Over the past decade, however, our High Court, having been relieved of any possibility of appeal to the Privy Council, has been getting more adventurous in its legislative activities, reversing previous rulings and changing the law according to its own perception of contemporary standards.

In this it is continuing the Long March through the institutions begun by the late Lionel Murphy.

But unlike Murphy, who always and sometimes unwisely made a point of mixing widely at all levels of Australian society, most of them have no idea of what contemporary standards in Australia really are, nor of popular attitudes.

Instead, they rely on the reviled mass media on the one hand, and on the other the gossip and fads prevalent among lawyers, academics and the great and the good, to inform them.

Thus, although it is impossible to disagree with the Chief Justice when he says that nobody (or few) these days would accept that a husband has the right to force his wife to sexual intercourse, and that therefore the High Court was justified in removing the common law presumption that he has, it is nevertheless true that few issues are so easy and black and white.

When the court abolishes a “bulwark of liberty” by changing the common law, one is entitled to ask for a much more thorough justification of the decision than was provided.

When it revolutionises property law, it must expect robust criticism.

When it turns the Constitution into a document which can be amended at the whim of government through the use of the external affairs power, that also must produce a few raised eyebrows.

And when it changes the common law by drawing on judgments made by the United States Supreme Court, relying on the US Constitution, it must appear totally bizarre.

Only a Keating-style Canute could believe after all this that it is possible to roll back the rising tide of demands that new appointments to the High Court be publicly vetted in advance.

If Parliament will not do this, the press will have to — even if free speech with respect to judicial as well as elected politicians remains denied to it.

***
15.
Padraic P. McGuinness, “Stealth attack on Constitution,” The Sydney Morning Herald, March 4, 1995, p. 34.

Something strange and rather sinister is going on in Canberra, but at least it is at last receiving attention. This is the continued attack on the Australian Constitution by the Commonwealth Government’s legal bureaucracy.

This cannot be blamed on Paul Keating alone, though since he has been Prime Minister he has been enthusiastically going along with the process whenever it serves his purposes.

In part it has been the fault of the High Court, but in recent times there is evidence that the body has begun to feel that the aggrandisement of Commonwealth powers, at the expense not just of the States but of legal forms and the separation of powers laid down in the Constitution, has been going too far. The court has been transforming itself into a bastion of protection of the Constitution and the rule of law against arbitrary action by the Federal Government, perhaps anticipating the role it would play if a formal Bill of Rights were ever to be incorporated into our Constitution.

For quite some time now the court has gone along with the centralism of Canberra in undermining the powers and sovereignty of the States. As is so often thoughtlessly repeated, States’ rights are not human rights, and the unthinking centralist bias in many sections of the community has endorsed this direction. By its broad interpretation of the external affairs power of the Constitution, the court has made it possible for the Commonwealth to use international treaties and conventions as heads of power in order to overrule State law, even in matters reserved to the States by the Constitution.

There are some powerful arguments for insisting that with the increasing globalisation of policy making on everything from the environment to human rights, this is desirable and necessary. But it is often merely a way of stamping out local diversity. Why should we have “national standards” on everything? Centralism and the misapplication of international conventions have become just one of the devices subverting the Constitution. Another has been the proliferation of a tribunal system which has cut across the strict separation between parliament and the executive on the one hand and the judicial power on the other, which the High Court many years ago discovered in the Constitution. (Whether it was right in this is arguable, but it is now settled doctrine.) We have recently seen the court call a halt to the breakdown of the separation of powers in the case of the Human Rights and Equal Opportunity Commission, a decision which has enormous significance for all other Federal tribunals, commissions and suchlike kangaroo courts. Some of these have been stacked with zealots who have, under the powers invalidly given them by Federal law, assumed judicial powers to implement their prejudices.

Yet another device to subvert the separation of powers has snuck into a number of Federal acts of Parliament, and has been proposed as an addition to the Acts Interpretation Act which governs the way in which the courts interpret legislation. As Chris Merritt reported in the Financial Review on Thursday, the Government has proposed to amend this act so as to instruct the High Court whenever it finds a law constitutionally invalid to rewrite it so as to achieve the same end so far as constitutionally possible.

Such a clause in the Industrial Relations Act is at present under challenge. This is a similar clause in the Native Title Act. These clauses are extremely objectionable, since they effectively transfer to the court an essential function of parliament, the writing of legislation.

Moreover, they must have an intimidating effect on any questioning of the constitutional validity of a law since any challenger would not know precisely what the law would become if rewritten according to such legislative instructions in the course of any particular case. Not surprisingly, the Attorney-General, Mr Lavarch, denies that his amendment would have the wide implications suggested. This is in accord with a new form of propaganda which has become prevalent in Canberra, which is to deny that legislation clearly designed to have sweeping effects will actually change anything important. This is legislation by stealth. We have seen it in the Industrial Relations Act, in the Human Rights Act, in the Political Broadcasting Act (which tried to suppress free speech), in the Commonwealth Electoral Act (which was amended late in 1992 to prohibit the advocacy of informal voting) and in many other pieces of legislation which have passed through Parliament virtually unreported, undebated and unnoticed.

There was a good deal of fuss about the Sexual Privacy Act, and the Government stoutly denied that this would make it possible to defend incest as a private sexual act. But now a Queensland prostitute is using it to try to defeat Queensland’s anti-prostitution laws. While those prostitution laws are idiotic, no-one realised that the Sexual Privacy Act could be used to contest them. Similarly, racial vilification legislation is defended on the grounds that it will not inhibit genuine discussion — but that cannot be known until it is too late.

The Federal Opposition has now decided to let the Aboriginal Land Fund legislation through the Senate, but not before the Government had threatened to use a totally improper procedure to invoke a double dissolution. While the High Court could not prevent a double dissolution, it can invalidate and has invalidated a law which has been improperly used as a trigger. The Government had itself just begun to realise that it was stepping into an area where it could not be sure of achieving what it wanted — while in normal matters the Governor-General acts on the advice of the Prime Minister, in the matter of a double dissolution based on the Senate’s “failure to pass” legislation he must make his own decisions, which in this case would be unlikely to please the Government.

Clearly, the High Court has, by no particularly intention of its own, had to make more and more rulings invalidating government legislation in recent years, to prevent the excessive extension of executive power.

In part it has done this by discovering the necessity of guarantees of free speech in a constitution based on representative democracy, and in part it has done it by continually defending and reasserting the separation and independence of the judicial power from the executive, despite repeated attempts from the federal legal bureaucracy to create its own subordinate judiciary in the form of tribunals.

The sight of a government thrashing around, looking for more and more ways of imposing its rule without recourse to the courts, as is being seen also in Victoria, is never a pretty one. But it is amazing how selective are those who denounce what the Kennett Government is doing to undermine the courts in Victoria without applying the same standards to the much worse, because it is much more widesweeping, subversion of justice by the Commonwealth.

***
16.
Padraic P. McGuinness, “More power to the people,” The Sydney Morning Herald, April 4, 1995, p. 14.

Like baby-boomers, the most radical of doctrines when they get old become deeply conservative. So when Sir Garfield Barwick, the former Chief Justice of the High Court, at the weekend defended the doctrine of parliamentary supremacy he was not just taking a conservative position but really echoing the radical doctrines of the Jacobins of the great French revolution.

He was doing this through the mediation of the English constitutional theorist A.V. Dicey, who formulated the doctrine of parliamentary supremacy as the essence of democracy in the belief that the Westminster system as it had evolved towards the end of the 19th century was the most perfect form of democratic government the world could imagine, and democracy could work satisfactorily only if it were not too close to the people.

In fact, of course, the English political system, while it gave the world many good things, has degenerated into one of the most ill-functioning and imperfect forms of modern democracy. And its underlying assumption, that a political class should control the fate of the nation while the voters are only allowed to interfere once every four or five years, has been nakedly exposed.

The Jacobin notion was that parliament should have absolute and unfettered powers to speak on behalf of the people and mould the people to its wishes, without checks or balances. This was the very opposite of the doctrine of the separation of powers which the French writer Montesquieu idealistically deduced from the apparent state of affairs in 17th century Britain. Jacobin democracy allowed no rights to the people, which parliament as its alleged spokesman and representative could not abridge or abrogate, especially to the benefit of the political class. Thus the pretence that defamation law is not an infringement of freedom of speech derives from its function as a shield for the powerful.

The American constitution makers knew all this, which is why they bound themselves with a written constitution which forbade through the Bill of Rights (the first 10 amendments, adopted shortly after the main constitution) many of the abuses of the English Crown and parliament, such as laws muzzling the press.

From the beginning it forbade retroactive legislation and laws singling out an individual for special punishment.

The development of democracy since then has been a continual struggle between the political elites and the people. Sir Garfield is undoubtedly right when he points to the dangers of the judiciary seizing too much power, as it has in the United States and is doing so in Australia, to legislate and make policy regardless of the wishes of the people. Parliament should then become the protector of the people against the judiciary, as the latter in the past, and in recent judgments by the High Court on political free speech, has been the protector of the people against parliament and the executive. There is an eternal tension, a see-saw here, which is the point of the doctrine of the separation of powers. From time to time the relative powers of the institutions will change.

The radical doctrine of the supremacy of the parliament is in fact a doctrine of the dictatorship of parliament over the people. It derives from the notion of representative rather than direct democracy, the objection to the latter being being that it is possible only in small communities. The real objection to popular democracy is of course that it gives the people too much say in the affairs of the nation when, according to the political elites, their judgment cannot be trusted — they might vote for capital punishment, for example. Now that the political elites see themselves as on the verge of gaining control of the legal system, they want to use that to curb the powers of parliament and the people. The High Court by its radical reinterpretations of the Constitution has usurped the power of the people to amend the Constitution.

So Sir Garfield is pointing to a real problem. But its solution will not be found by returning to the musty Jacobin thesis of parliamentary supremacy, but by shifting the power usurped from the people back to it, through more referendums and through greater powers for the people to initiate legislation and the rejection of legislation. The various ideas of initiative, referendum and recall of serving members of parliament are again once-radical doctrines which, when they no longer seem to serve the interests of the political power-mongers, are described as conservative or reactionary. (It is only necessary to recall that the Charter which was the centre of popular radical movements in 19th century Britain had as one of its central propositions annual parliaments.) NSW has just seen an attempt by the political elites (Labor and Liberal) to deny a genuine referendum to the people by desperately ignoring it. This proved to be an unsuccessful tactic.

The theory of representative democracy is one which assumes that the representatives are better than the people themselves. This is the essence of Edmund Burke’s famous speech to his electors in which he declared that his duty lay in serving them through his own judgment rather than in listening to them. This may once have been the case, but it is clearly now the prevalent view among ordinary people that their representatives are with only a few exceptions worse than themselves. This is exploited by those who wish to govern through the law whenever the High Court expands its powers and seizes control of the Constitution. It is the general trend in the US and Canada, where we have seen the burgeoning of legislation designed to favour the “new class” regardless of the declared wishes of the people. Whenever this is expressed crudely through the kind of revolt which we have seen first in Canada and most recently at the US mid-term congressional elections, it is written off and denounced as mindless and reactionary populism.

It is, however, much more than that, however imperfect or even dreadful its political spokesmen. It is a genuine popular demand for a return of power to the people from the political elites who govern in the name of the people.

The power of modern communications as it evolves will make a renewal of a form of popular, direct democracy possible in a way which it has never hitherto been in mass societies. The day when not just electronic voting at the polling booth, but from one’s own home, becomes possible is very close. For a start, it will make the instantaneous counting of even the most complex distribution of preferences a reality.

The next great political struggle will be to wrest power away from both the judiciary and the parliament and return it to the people under the rule of law, not lawyers. Again, Sir Garfield is perfectly correct in seeing the High Court as having far overstepped the boundaries of its power.

***
17.
Padraic P. McGuinness, “Who decides how tax money is spent — judges and lawyers, or parliaments?,” The Sydney Morning Herald, August 25, 1995, p. 10.

Warnings against the do-gooder activism of the High Court are often dismissed as alarmism, but we have just seen a prize example of how decisions of high principle only too often have unintended consequences. This is the creation of a new protection for alleged criminals which has turned into a potentially huge income support system for the legal profession.

In 1992, the High Court, in the Dietrich decision, decided that the common law entitlement to a fair trial had to involve provision of legal representation. This has to be provided by the taxpayer through legal aid, or by some other means. In the case against Bill Farrow (Pyramid Building Society, etc) in Victoria, the accused has tried to have trial deferred by claiming indigence, despite large transfers of funds to members of his family, and therefore the necessity of legal aid. In NSW, Ivan Milat, who has been charged with the backpacker murders, has also claimed legal aid. Naturally, I have no views on the case.

In the Milat case, the NSW Legal Aid Commission had offered support for his legal representation, but also demanded that he should make some contribution and set rates for payment of the lawyers involved which were unsatisfactory to them. A couple of weeks ago Justice David Hunt, Chief Judge at Common Law of the NSW Supreme Court, delivered a judgment which, in effect: deferred Milat’s trial indefinitely until the Legal Aid Commission agreed to pay rates which he said were adequate rates for sufficiently qualified lawyers (it is a complex case); without seeing any documentary evidence decided that Milat had no capacity to pay; and severely castigated the commission for its behaviour.

The commission is appealing against this decision, with very good reason.

What Justice Hunt, it appears, has done has turned the right to a fair trial into a vast system of financial support for the legal profession, with appropriate rates of pay being determined not by parliamentary appropriation or government policy, still less by the market, but by any judge concerned acting as a kind of one-man industrial relations commissioner setting lawyers’ fees according to his own beliefs as to what the appropriate pay for a particular level of expertise in a particular case should be.

One might have hoped that the enormous investment in training more and more lawyers might one day have led to greater competition between lawyers, driving their incomes down to levels more appropriate to their actual training and abilities than at present. But like the original Medibank scheme and its successors, lawyers instead are to be given unlimited access to public funds in the name of justice, and courts, not Parliament, will control the expenditures on the law. Justice Hunt seems to have the impression that a parliamentary appropriation act is not a law and therefore should not be taken into account in the interpretation of the law.

It now will be the case that whenever a person without considerable apparent wealth is accused of anything, there will have to be a preliminary case in which a judge decides how much should be spent on maintaining lawyers in the manner to which they wish to become accustomed before the trial can be permitted to go ahead. Thus, if a case is particularly complicated, or important issues of law emerge, we could see the public having to fork out for a battery of lawyers — and sometimes these would have to be among the highest paid members of the profession. This could be especially the case in some of the financial and taxation cases.

Of course, until everyone has access to the best lawyers in the business, there will always be inequity. The same is true of the medical profession.

But it is clear that it is nonsensical to insist that a fair trial, or fairness in medical treatment, must involve the provision of a uniformly high level of care regardless of cost. Money buys higher standards of legal advice, as it pays for higher standards of medical care. If we want to find an alternative, it will be necessary to find a different way of allocating scarce resources and rewarding practitioners. Like substituting the opinions of judges for the workings of the market, or for the ad hoc administrative decisions of legal aid authorities, or the wishes of Parliament.

Now this is all the fault of a High Court which, as on a number of occasions in recent years, has done mischief by insisting on making law without considering the responsibilities for raising and disbursing taxes from the community. It is power without responsibility. At least there were two members of the court in the Dietrich case — Justices Brennan and Dawson — who realised that high and shining principle is not necessarily justice in the long run.

The NSW Government and the Legal Aid Commission will now have to spend a lot more money on expensive lawyers trying to sort out this mess.

They will almost certainly have to go again to the High Court which, as with other of its courageous ventures into reinvention of the common law, will eventually have to come to terms with the unworkability of giving government over to lawyers, not to mention its incompatibility with the separation of powers.

In the meantime Ivan Milat will stew in custody, and until some resolution of these issues is arrived at, his trial will be indefinitely adjourned. Other accused will be able to claim that the funding offered by legal aid authorities all over Australia is insufficient and our whole criminal justice system will seize up.

***
18.
Padraic P. McGuinness, “Courts have replaced poets as the ‘unacknowledged legislators’ of the world,” The Sydney Morning Herald, September 13, 1995, p. 16.

The “Mason Court and Beyond” conference at the weekend was a tribute to the way in which the High Court under Chief Justice Mason positioned itself in what is thought of at the mainstream of world jurisprudence, which is marked by the increasing cross-fertilisation of legal thinking between the democratic countries of the world. This was signalled by the presence of some eminent foreign judges and legal thinkers who emphasised the way in which they took notice of the contributions of our High Court, just as it takes notice of theirs.

However, there was one glaring absence — there was no senior judicial representative of what is now the greatest common law jurisdiction in the world, that of the US. This may have been accidental, but it is more likely to be a result of the fact that the US Supreme Court has long since passed the zenith of its judicial activism. What the other courts represented — such as those of England, Canada, New Zealand and the new South Africa, as well as a couple of European civil code countries — is the rest of the world trying to catch up with a fashion which is waning in the United States. The balance of power in the US is swinging back to the legislature away from the Supreme Court, and the “progressives” are now fighting a rearguard action against the changing balance of opinion on that court.

The theme of many of the contributions from eminent foreign jurists at the Mason conference was twofold— that the law is increasingly being internationalised as a result of the spread of treaties having supranational effect, as well as the recognition of international law by domestic jurisdictions, and by the acceptance of international law as a source of domestic law which can influence and change the common law. In all this the Americans are the odd man out, since in the first place treaties when ratified by the US Senate immediately become part of domestic law (which is one reason why the Senate is so jealous of its prerogative), and in the second place, otherwise the US generally does not recognise international law as a source of domestic law. Thus despite the activism of the US Supreme Court since 1954, the main source of law remains in principle, even if the power is not always asserted, in the power of the US Congress. This is not the case for us and for the other countries celebrated at the Mason conference.

On the other hand there are those courts, such as the Canadian Supreme Court, which participate in the informal international association of common law courts which exchange and buttress each other’s doctrines. Thus Justice Beverley McLachlin of that court spoke of the development of the law by the courts to match their conceptions of justice; she spoke of the courts as applying morality to the development of the law. However, she made no distinction between morality and moralism, nor did she indicate whose moralism was to be preferred. Moral philosophers might have quite a bit to say about this. Maybe Justice McLachlin believes there are unique moral standards but the basis for them was not argued.

On the other hand there are the civil code courts, especially in countries of the European Union which have subscribed to a treaty which creates a European law and a European court which takes precedence over the national courts here. One extreme was represented by Dr Jurgen Kuhling, of the Federal Constitutional Court of Germany, who, while recognising the role of European law, also remarked that his court “promises to protect [Germany and its basic law] against impermissible assumptions of power by European authorities”. The other was represented by Professor Fried Van Hoof, of the Netherlands Institute of Civil Rights, who considered the Dutch Constitution in effect superseded by the Maastricht Treaty. The constitutional prohibition against review of legislation on constitutional grounds by the courts has been overruled without this having been made clear to the people. The same is true of a country like Finland.

Then there was the position of Lord Slynne of the UK, a former member of the European Court of Justice, who, unlike many other Tories, knows that Britain has long since abandoned its national sovereignty, and even more extreme that of Trevor Allan, a Cambridge don who believes that the common law cannot only guarantee rights, but can overrule parliaments — a position very attractive to the courts which not only now make our laws but also make our constitutions, regardless of popular sovereignty. The most extreme (and perhaps understandable) position was that of Justice Ismail Mahomed of the new Constitutional Court of South Africa, who believes that both parliamentary and national sovereignty are too dangerous to be permitted.

The essence of the views of nearly all these eminent lawyers from around the world was not only that internationalism was desirable, but that it can be applied by the courts without the consent and knowledge of the people, and sometimes without that of parliaments. The only warning was that sounded by Dr Kuhling who, such as our own Sir Ninian Stephen — the former High Court judge and Governor-General — was concerned about what Sir Ninian, following European usage, has called the “democratic deficit”. This is the situation in which laws and constitutions are made not be the people and their representatives but by what South Australian Chief Justice John Doyle called “unaccountable and uninformed lawmaking by a small elite”. It seems that it is not poets, but judges, who are the “unacknowledged legislators” of the world.

***
19.
Padraic P. McGuinness, “High Court’s power is of its own making,” The Sydney Morning Herald, February 22, 1997, p. 41.

As the outcome of the 1996 Federal election demonstrated all too clearly, it is foolish for any government to ignore genuine popular feeling or to dismiss it as merely ill-informed, just because it is expressed ignorantly and crudely. This truism ought not be forgotten in the current debate over the High Court, just because the criticisms and suggested reforms of the court expressed by premiers such as Rob Borbidge or Jeff Kennett are laughably naive.

There are good reasons for much of the resentment against the High Court which is currently felt in the community. And it is not only the “sub-human rednecks” who think so. The Chief Justice of South Australia, John Doyle, has warned on a number of occasions against the growing adventurousness of the courts and the legal theorists, and the development by the courts of law that should properly be made by the Parliament. This has been aided by the use of international precedents and examples as well as by the application of international treaties and conventions.

There is a feeling, which has been expressed even by such a distinguished former Chief Justice of the High Court as Sir Ninian Stephen, the former Governor-General, that the courts and the international treaty-makers have developed a “democratic deficit” — the treaties are negotiated and implemented by bureaucrats and lawyers, and the law is being taken out of the hands of elected representatives of the people. This gives rise to attacks on the courts for their remoteness and lack of answerability, especially when they make law, as they have done in Mabo and Wik, which seems in no way to be the result of a democratic process.

Another populist element in this attack on the courts is at a lower level and is expressed when courts seem to give excessively light sentences, or discover legal rights for illegal immigrants, or free accused criminals because of the inadequacy of legal aid funding.

This is, however, not the only direction of attack on the courts. They are also subjected to a storm of abuse and demands for the “education” of judges whenever they seem to express gender, race or religious prejudices or merely insensitivity.

The best-known example is the attack on Justice Derek Bollen of the South Australian Supreme Court, who seemed to be saying on one occasion that there was an acceptable degree of “rough handling” in a marital relationship. This kind of thing is just as much an attack on the independence of the judiciary as criticism of the courts for making law. And there are whole schools of feminist jurisprudence which teach that the rule of law and the judicial system as it exists are merely instruments of male oppression.

Why does the High Court have as much power as it does have? This springs from the combination of the English common-law system with a written constitution of which the courts are the sole interpreters.

Such interpretation has always been political, no more so than when the doctrine of section 92 of the Australian Constitution as a safeguard against nationalisation of the banks and of free enterprise was developed, chiefly by Sir Garfield Barwick. At that time the attacks on the High Court came from the left side of politics.

The power of the High Court is really of its own invention, the result of what has been called a long coup d’etat. It is based on the doctrine that our Constitution enshrines and requires strict separation of judicial from legislative and administrative powers. It does not. To say this is to evoke withering comments about either ignorance or heresy.

Chapter III of the Constitution, which vests the judicial power of the Commonwealth in the High Court and in “such other courts as [Parliament] invests with federal jurisdiction”, has been read to mean that only a court as defined by the High Court can have federal jurisdiction. Fair enough. But there is no solid ground for this to be interpreted as requiring strict separation of powers and there are good grounds in the Constitution for the contrary interpretation.

These are found in section 101 of the Constitution, which says: “There shall be an Inter-State Commission, with such powers of adjudication and administration as Parliament deems necessary …” Clearly no separation of powers is to be found there, and this is why the High Court early on simply refused to accept the existence of such a commission. That is, it invented the doctrine. It is, of course, by now irreversible, unless by referendum which the court would probably interpret out of existence anyway.

There are in any case very good political, historical and constitutional reasons for the separation of powers. But whenever one branch of government becomes too powerful, it risks retribution. This need not take such absurd forms as the wrecking of our courts, which with all their faults are pretty good and honest, by such absurdities as elected judges (a sure recipe for corruption) or handing some or all appointments to the High Court over to State governments.

But at the very least it does require a greater answerability of judges to the public and far more criticism of past and future appointments.

Cast an eye over the list of Federal Court judges. After 13 years of Labor government it is dominated by judges closely associated with the Labor Party and/or the fashion for legal adventurousness. This does not mean they are not good judges. But it does suggest that there ought to be public parliamentary committee hearings, along US lines, on any proposed appointment to the High Court or the Federal Court. And the High Court had better start listening to the people.

***
20.
Padraic P. McGuinness, “Politics hold court in this judgement call,” The Sydney Morning Herald, December 17, 2002, p. 13.

All appointments to the High Court are political. So are objections to any potential candidate as a political appointment. What the argument is really about as the Government prepares to appoint a replacement for retiring judge Mary Gaudron is whose side that judge will be on. After 13 years of Labor government the Labor side (which includes feminists, gay activists, tree huggers, legal imperialists and self-appointed protectors of Aborigines) believes that any appointment of a judge who does not subscribe to its agenda must be political.

How many political appointees are there on the High Court? Gaudron for one — she saw her career accelerated because she was a woman and clearly aligned with the Labor side. Happily, she is a good lawyer and judge, despite occasional forays into feminist propaganda and historical nonsense about Aborigines. Another clearly political appointment is Michael Kirby. That does not detract from the fact that equally he is learned in the law (and other matters). Ian Callinan was clearly a political appointment also, though by the other side, and thus he is treated as the outstanding example of supposed political malpractice in appointments on the present High Court. He, too, has proved a worthy appointment.

Michael McHugh was also a Labor appointment, yet he has proved one of the more conservative members of the bench. Bill Gummow, though appointed by a Labor government, was not considered an especially political appointment, any more than were Ken Hayne or Murray Gleeson, the chief justice. Even so, these have all on occasions expressed what are essentially political points of view.

What the progressivists fear is that an increasingly confident Howard Government will shift the court’s balance further from the fashions which they hold so dear, and towards not a “conservative” position but back towards black letter law, rather than continuing in the increasingly unpredictable mode of wilful and unaccountable legislation according to judges’ own preferences.

In effect, this was what Gaudron and Kirby were doing in the recent Yorta Yorta case when they wanted to change the principles laid down in the Mabo judgement to make it easier for any Aboriginal claimants to demand land rights regardless of history and common law.

There have been obviously political appointments on both sides, the most glaring being Murphy and Barwick — but at least the latter knew something about the law.

The Government’s pre-emptive critics are insisting that a woman must be appointed. There are certainly some female jurists who would be eminently suited — but to appoint a judge on this ground alone would be found insulting by many women. Gender is not a valid qualification. Nor, as Justice Roddy Meagher has provocatively pointed out, are there that many women among eminent practitioners of the law. None of those mentioned as possible appointees is especially distinguished.

By contrast there are a number of distinguished male appointees — for example, Justice John Doyle, chief justice of South Australia. In the future Jim Spigelman, chief justice of NSW, will be an obvious contender, though not necessarily a political one, despite his identification with Labor in the past.

The Attorney-General, Darryl Williams, has been criticised for making informal soundings of some possible appointees. Why on earth not? If he does not already know a good deal about those he has approached, including political leanings, he would not be approaching them, regardless of whether the eventual appointment is “political” or not. That will be in the eye of the beholder.

The Government ought simply accept that whoever it appoints will be criticised by the progressivists unless he or she is someone who ought not really be appointed but who meets their criteria. That is, regardless of critics it ought to appoint the best candidate it can find, and one who is genuinely distinguished in the law rather than in politics.

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21.
Padraic P. McGuinness, “By lagging behind, court helps country move forward,” The Sydney Morning Herald, October 7, 2003, p. 13.

The health of our polity as the centenary of the High Court of Australia arrives is in part due to the very qualities of that court. It has shown that it can survive roundabouts of politics and fashion, succumbing to the pressures of both from time to time but over the longer period generally settings its own errors right.

Thus it responds to changing circumstances but with a lag, such that it often resists elected governments and popular opinion, and over time the changing composition of the court corrects for its earlier errors.

The court has never been crudely partisan, despite the abuse to which it was subjected from the left of politics as a result of decisions such as those on bank nationalisation and from the right of politics as a result of decisions such as those on Mabo and Wik.

Indeed, the self-correcting tendencies of the court were apparent in the latter case when there was a bare majority for the decision; and in 1988 the court sensibly abandoned the tortured interpretations of Section 92 of the constitution to admit that the section meant what it said and no more — that there should be no tariff or other protectionist barriers obstructing trade and other transactions across state borders.

Nevertheless the court has suffered during the whole century from the besetting sin of arrogance, and while there is some sign that this is being corrected — the present Chief Justice Gleeson has defended the right of the community to criticise the court in strong terms — certain of its doctrines have become set in stone, despite their dubious nature.

Chief of these is the doctrine of separation of the judicial and executive powers. Not only does the constitution of 1901 express no such doctrine, it explicitly denies it in section 101, which gives “powers of adjudication and administration” to a non-court, the Inter-State Commission.

There is little chance that this judicial coup d’etat could ever now be reversed. No more could the heavy bias in favour of centralism which took hold from 1920 on. Yet another development, which reached its high point in the irresponsible years of the Mason court, (1987-95), was the arrogant assumption that the High Court could alter the constitution at will despite the contrary provisions of the constitution itself.

This was done by assuming that international law, an amorphous body of doctrines which have been given the status of legislation never put before any democratically elected parliament, could overrule any provisions of our laws or constitution.

This has been achieved by a continual extension of the notion of common law. Common law in the past was “found” by the courts, but it could be modified by legislation. No legislature can modify international common law — it is purely an invention of unelected international agencies and of courts.

This has even led to the extraordinary notion of “new customary international law”, which means that courts can claim there is some kind of international common law which changes rapidly without benefit of treaty or governmental agreement and which can be employed to overrule democratically elected parliaments.

Naturally such a state of affair appeals to those who believe that there is a kind of natural law which is above man-made laws, but which emanates not from a divine being but from the divine right of the courts, and from the serried ranks of legal academics who dream up such notions.

Thus it is now accepted legal doctrine in the universities, at least, that there are certain rights and legal principles which cannot be subjected to the will of the people but can be decided only by courts.

Such doctrine has influenced, and continues to influence, the courts. However, it is apparent that there is a backlash against this, such that changes of governments and subsequent changes of judicial personnel will over time lead to the obsolescence of such fashions. This has been happening with our High Court.

But, as the Chief Justice has also said, our court has never been simply politically partisan. Only on one occasion has a division in the present court corresponded to whether the judges had been appointed by Coalition or Labor governments, and that was on an apolitical issue. Rather, we have seen the normal cyclical change in doctrine in the court as a result of changing appointments and changing fashions among the political elites.

A good court changes its mind slowly.

***
22.
Padraic P. McGuinness, “Under Kirby’s law, we are all subject to the whim of judicial adventurism,” The Sydney Morning Herald, December 9, 2003, p. 13.

It can’t be long until a party appearing before the High Court of Australia asks one or more judges to disqualify themselves from the hearing on the grounds of perceived bias and prior statements of position on a relevant issue. The No.1 target for such an application is likely to be Justice Michael Kirby.

Kirby has become such a prolific writer and commentator on all kinds of legal, social and political issues that he has a declared position on just about everything. In the series of four lectures he gave at the University of Exeter, in Britain, recently he goes further, attacking the critics of judicial activism and asserting that judges should not hesitate to make new law and overthrow old law on the basis of their own beliefs about what constitutes justice and human rights.

This he argues on the basis that common law has, in the English and related legal systems, evolved by way of judicial creativity over 800 years. This is true. But the judicial creativity which he admires has been rampant for only 40 years, and is obviously the product of the baby boomer generation of the ’60s and the revolution of social attitudes which it purported to have brought about. The truth is that that revolution was the product mainly of technological changes, together with the changing fashions of the politically active elites.

It may be true that if you remember the ’60s you weren’t there, but that is true of the vast majority of the citizens who now find themselves subject to the fads and fashions which became prevalent among the more or less educated leisured middle classes in those years.

The question is whether the creation of the common law, which took place over 800 years, should have accelerated at the rate it has over the past 40 years, and whether this represents the outcome of a democratic process. There has been a comparable acceleration in the Catholic religion, where the traditions evolved over a couple of thousand years are routinely opposed and flouted by its clergy, a process set off at the start of the ’60s by the Second Vatican Council (but which has gone much further than the council envisaged).

Kirby describes the revolution he endorses as a reformation, and the criticism of it as a counter-reformation, “an attempt to restore reactionary theories about the judicial function”. He never faces up to the major complaint about his so-called reformation, that it removes any certainty about the law when a rule which evolved over hundreds of years, or an approach which has become relied upon over decades, suddenly becomes subject to unpredictable reversal on a retrospective basis.

For it has to be remembered that while Parliament only rarely legislates retrospectively, and then is subject to heavy criticism, the High Court changes the law by deciding specific cases such that people who relied on a principle which had previously been upheld by the courts find that though they were then right they are now wrong. In other words, where there is no predictability in the law there is no law, only the fiat of unelected appointees who once appointed are accountable to no one.

But Kirby does not believe that judicial adventurism is without principle. He relies on another theory. This is unclear, but seems to be essentially that there are principles of human rights and justice which are inherently true, and only judicial authorities can define them. Where do the judges find these principles? Either they make them up as they go along, or they rely on a theory of natural moral law, either as defined by, say, Catholic natural law philosophy or some other external doctrine. Kirby calls this “legal policy”.

Where does his legal policy derive? From nowhere but the often ill-informed beliefs by the judges about the society and the economy. Thus he refers to the matter of liability, and whether a rule might “result in intolerable economic burdens on citizens”, “have adverse implications for the availability of liability insurance”, “leave a vulnerable party without recompense reasonable to the circumstances”, and so on.

These are all matters for research, which the High Court does not undertake, and judgement which properly lies with parliament and government, not with the courts. His reformation is the triumph of lawyers over the law.