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 The gloves are off on the High Court activists

16.02.20. Those in the legal profession have by tradition been more than loath to make comment on any High Court judge. The reasons are probably obvious in that a complaining lawyer might one day have to appear in a case before one of them with a long memory who may well exact revenge one way or another. But this past week’s astounding determination by the High Court has crossed the line and the legal fraternity have come out fighting. A Pandora’s Box has been opened and MM’s bush lawyer asks the following:
If this decision, that laws on immigration do not apply to aboriginals, then what other words and laws in the constitution apply to aboriginals? For example, can an aboriginal born abroad be elected to federal parliament? When other Australians can’t?
If an Aboriginal’s father was born overseas does this prevent his election or must he renounce his British or whatever citizenship?
Can Aboriginals born overseas but now living in Australia be extradited to the US if they commit a crime there?
Are Aboriginals subject to Bankruptcy laws, marriage laws, trade and commerce laws? Janet Albrechtsen wades into the fray also. 

Source: Janet Albrechtsen, News Corp

High Court in the crossfire of runaway judicial activism

The swamp has spread from Washington.
Leslie, a reader of this newspaper, wrote this on Wednesday shortly after the shocking decision by the High Court of Australia. The word swamp is an acronym for “superior wisdom alienates mere peasants”. And that is precisely what the High Court guaranteed when it decided that two violent criminals who were not born here, and are not Australian citizens, will not be deported because they attract special status as people with Australian Aboriginal descent.
With scant regard to the law, the majority of the High Court dreamt up a legally bogus exception based on race to exclude two men from the normal application of our non-citizens laws. Four judges imagined that their personal preference to tinker with the Constitution matters more than our constitutional right to change our founding document by a referendum, and only by a referendum.
In creating this exception, in legal jargon “an implication” to treat two people differently based on their race, a majority of the High Court has revealed a likely trajectory of brazen activism, and a propensity to divide the country by race. The silver lining is that the court’s activism will help convince Australians it would be a grave mistake to insert a race-based voice into our Constitutions. That would cement inequality under the law into our founding document far beyond this week’s misconceived decision by four judges.
That said, this runaway court needs fixing fast. If it can do this in a case involving section 51 (xix) of the Constitution that gives parliament power to make laws with respect to naturalisation and aliens, what will the High Court do with other clauses?
Lawyers across the country effectively received an invitation from the country’s highest court to ask courts to concoct other special race-based exceptions.
This week’s decision shows how quickly the High Court can fundamentally alter the direction of the country. To be sure, 80 per cent of cases it decides are mundane, with little impact on the country. But the other 20 per cent of cases that the court decides are squarely about politics and values.
This case falls squarely in the 20 per cent. It is about the values a judge places on precedent, the rule of law, the words of the Constitution, the powers of parliament and the working of our democracy. These are fundamental values. Four judges created new law, undermined the rule of law, altered the words of the Constitution, snubbed the power of parliament and appointed themselves philosopher kings in our democracy.
It explains Chief Justice Susan Kiefel’s powerful and sharp dissenting judgment castigating the majority for going beyond the judicial role. “Implications are not devised by the judiciary,” she wrote. In a cool-headed, legally rational and pointed judgment, Kiefel said that what the two criminal defendants asked from the court, and what the majority granted them, is “antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges”.
Now remember that three of the four majority judges were appointed by a conservative government. Labor MPs must be laughing. If there is one thing Labor knows how to do expertly, doggedly and unashamedly, it is putting its kind of people into big jobs to shape the politics of this country well beyond parliament.
By contrast, conservative governments are hopeless on this front. Whether they are too polite, too nervous or lacking conviction about their values, they consistently appoint activist judges who thumb their noses at elected politicians. Our politicians could learn something from Donald Trump. He has built a powerful political coalition by arguing against unelected philosopher kings presuming to make law because they think a lumpenproletariat and their elected repre­sentatives won’t do it.
From the Prime Minister down, the Coalition should remember Brexit, too, where millions of British people have good reason to distrust experts — all those with big jobs, public servants, tenured professors, banking bigwigs, judges too, who warned against Brexit. In fact, right across the West, distrust among ordinary people of the so-called “clever classes” — people with lots of degrees but little common sense — is at an all-time high.
When the High Court added itself to this group, presuming to change the Constitution because its policy preferences are more important than those of voters, it gave the Morrison government a political opportunity. And, make no mistake, this a political matter. The High Court has made it political by ignoring the law when dreaming up special exceptions based on race to allow two criminals, two non-citizens, to live in Australia.
The real question is whether the Morrison government has the political courage and the commitment to the rule of law to turn this court around.
Consider what is at stake and where the opportunities lie. Under the Constitution, High Court judges must retire at 70. Two of the four judges who unveiled their activist colours this week will remain on the court for many years to come. At 55, Michelle Gordon has 15 more years on the court. The youngest justice, James Edelman, has 24 more years. No doubt he is positioning himself as a coalition-building future chief justice.
Against that grim scenario, there are some small mercies: the other two judges in the majority in this case will retire in the next 12 months or so. Geoffrey Nettle turns 70 in December and Virginia Bell in March next year.
That means the Morrison government will make two appointments to the court. To be sure, it can be hard to predict whether a judge promoted to the High Court from a lower court will go off-piste once freed from the shackles of appellate supervision and suddenly vested with great power. Some judges have been models of restraint at the Bar or at lower levels of the judiciary only to suddenly and without warning become desperate to seek canonisation at inner-city dinner parties when promoted to the High Court.
But not even this can explain why so many previous Coalition governments have so often and so comprehensively mucked up High Court appointments. For that not to happen again, Scott Morrison and especially Attorney-General Christian Porter may want to reflect on two particular appointments in recent years.
Consider Edelman’s appointment in light of his judicial adventurism this week. It is well known that the judge, though appointed to the High Court before Christian Porter became Attorney-General, was a friend of Porter. When some raised concerns whether he could be trusted to apply the law, not make it up, they were told he was “solid”. It has not turned out that way.
In truth Malcolm Turnbull, the prime minister at the time, wanted someone adventurous. While Turnbull is long gone, he left behind what some have dubbed a “classic Turnbull disaster”: a judge on the High Court who thinks like him. And that is the critical point about judicial appointments. They outlast prime ministers and presidents and their governments.
Tony Abbott’s appointment of Gordon to the High Court in June 2015 was yet another poor choice by a Coalition government that should care more about fixing the politics and values of the court. Many lawyers worried that Gordon’s adventurous decision about bank fees in Paciocco v ANZ (which was comprehensively overturned by the Full Federal Court and by the High Court) indicated an activist judge. Her judgment in this week’s High Court decision seems to have vindicated that view.
For the Morrison government to succeed where previous coalition governments have failed, the Prime Minister and Attorney-General should also reflect on appointments by the Howard government. Back then, deputy prime minister Tim Fischer called for capital-C conservatives to be appointed to stop the slide towards lawmaking by the court. John Howard appointed two very accomplished judges in Dyson Heydon and Ian Callinan. While they were conservative in their judicial method, and have very fine legal minds to boot, they did not match someone such as William Gummow, who was able to forge majority opinions on the bench. A judge who can form and lead coalitions with other judges is how you effect change on the court.
This dreadful High Court decision is the wake-up call needed to jolt the Coalition to get the next two appointments right. After this week, more Australians will understand that when judges frolic with the law, impos­ing their personal policy preferences over parliament and the people, it is the antithesis of democracy.

{ 4 comments… add one }
  • Finn 16/02/2020, 7:10 am

    Johnny Coombs QC many years ago appeared before Barwick CJ & the Full bench on an insurance personal injury case. With 5 mins to go before lunch he described the horrific injuries and suffering of the appellant. Lunch.

    His opponent complained that Coombes addressed as if he were addressing a jury. You know, ordinary people. To which Barwick leaned forward and said in his frosty and crackling voice, “not always a mistake Mr X”

    That Johnny Coombes won is neither here nor there. Barwick was not an activist. He was merely stating that the law does not operate in a vacuum.

    But take the same situation and apply in Love’s case.

    Law is a code of order, not morals. That is it’s enduring power and importance of law. It’s majesty in common law counties is that it is about equality under law.

    This decision, in unverified adjectival phrases used as pillars of judgement, is far more dangerous to Australians than it being incorrect. It establishes the power of the court to apply procedures of perceived justice/injustice (morality of the few up there) in place of law.

    Procedure? Yes. The enabling of the court to proceed without evidence (legal or factual) to back up its decision. It can fall back on perceived but not actually “attachment” to the land.

    Horribly bad decision. It’s everlasting evil is that it enables the judiciary to make law.

  • luk1955 16/02/2020, 7:42 am

    Absolute power corrupts absolutely. There are no people exceptions.

    • Finn 16/02/2020, 8:45 am

      Well said Luk

  • Baysidegal 16/02/2020, 11:12 am

    I’m wondering if a person flys into a Australia on a wrong visa and Customs decides to send them back from whence they came, if they claim ‘aboriginality’ does that entitle them to stay also?

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