If there was one word which could be used to describe Australia's constitution - one theme under which it could be said Australia was to operate - it would be federalism. Our constitution sets out in very clear, precise language the divisions of legislative power between the two senior levels of authority - the commonwealth and the six, “original” states. We can see from several finely, pain-stakingly scripted passages of our national constitution - not to mention the historically recorded intentions of those who wrote it - that it was intended to establish a highly de-centralised federation, one in which the commonwealth was forbidden to extend its authority so as to invade that of the states. Indeed, the constitutional amendment section, 128 - with its requirement of not only an electoral majority but also a majority of states - is the most striking manifestation of our founders' federalist intent.
The intended role of the judiciary is equally as clear. Above all else, the High Court of Australia was intended to be the protector of the constitution - an institution whose authority was to be invoked whenever the commonwealth stepped beyond its ambit of power, or whenever the authority of a state was unduly invaded. It was the institution which was to ensure that no level of government exercised or tried to exercise authority beyond that which the constitution allowed. In other words, the High Court was intended to protect federalism.
Yet over the course of the last two decades, the High Court has overseen the systematic de-construction of both federalism as an institution and its own role as federalism’s protector.
Through the gradual, but nonetheless definite rise of judicial activism (willingly referred to by its proponents as judicial progressivism) the High Court has well and truly ignored its intended role. In place of protecting federalism, the High Court has effectively pursued a course of constitutional and legislative re-drafting. Rather than examining its role and the application of the constitution in light of the intentions of the founding fathers, the High Court has instituted its own policy beliefs into its judgements, often interpreting the constitution and Acts of democratically elected Parliaments contrary to the intentions of those who drafted them.
Unfortunately, there are numerous examples.
Attacks on Federalism
Undoubtedly, the case which sparked the inherently anti-federal stance of the High Court and which began the systematic attacks on federalism from within the court, was the Engineers Case in the 1920’s. This has been followed by a steady stream of disastrous cases for the states - the Uniform Tax Case and the Tasmanian Dams Case, just to name two.
As recently as last year, the High Court delivered another catastrophic blow to the states in Hammond v. New South Wales, re-defining the accepted meaning of excise in section 90 and in doing so ruling the states incapable of collecting levies on petrol, tobacco and alcohol. No one can sincerely doubt that this decision, which has been described as “a profoundly unconvincing constitutional outing” was the result of a centralist ideology which prevailed within the court at the time. Indeed, it would seem that this has been taken for granted - debate within the media and, regrettably, within Australian politics, has been restricted to the desirability of this ideology and its policy outcomes, that is whether or not the decision(s) will have a positive or negative impact on Australia. Arguments as to the constitutional illegitimacy of such decisions or of their inherent inconsistency with the underlying intentions of the Australian constitution seem in large part restricted to constitutional academics whose own ideology is conveniently (and gratefully) inconsistent with the centralist dogma.
The assertion that the high court has failed dismally in its role as the protector of federalism is seldom denied within the realm of Australian constitutional academia. Indeed it would be fair to go so far as to claim that the court has openly and willingly ignored its role, substituting it instead for something which more closely mirrors its own policy beliefs. There are also numerous examples of this type.
Policy Decisions
The 1990s has been by far the worst period in so far as judicial activism involving the court's own policy objectives is concerned. The High Court has managed to attract headlines on numerous occasions with some of the most outrageous and extraordinary judgements in its history. It has even managed to attract legislative reaction - an indication of not only how much weight is accorded to the court's own policy, but also of the extent to which such policies are abhorrently inconsistent with those of the Australian people.
i. Implied Rights
In a series of cases throughout the late-1980s / early 1990s (which included the Australian Capital Television case, the Nationwide News case and Theophanous), the High Court developed the notion of a right to freedom of political communication which, it was said, was implied from sections 7 and 24 of the constitution (those sections dealt with the election of members - or more precisely the phrase “directly chosen by the people” - of the Senate and the House of Representatives respectively). These decisions had the effect of guaranteeing to every Australian the right to immunity from civil or criminal proceedings relating to expressions or communications which were “political”. Effectively, this meant that people (or more cynically - the media) could say what they wanted about whoever they wanted, provided such an expression constituted “political communication” (ie: was about a particular policy, ideology, suitability for office etc...), without fear of facing legal consequences (for example, defamation). Fortunately, the scope of “implied rights” is fairly narrow, effectively restricted to this freedom of political communication. The High Court wisely rejected the assertion in 1996 (McGinty) that these rights should extend to the notion of “one vote, one value,” but it remains to be seen whether this scope is widened in the future.
The freedom of political communication is one with which most Liberals would agree - free speech in all of its forms is entirely consistent with Liberal ideals. However, putting aside the political desirability of this judicial decree, it can not be argued that these novel interpretations of the Constitution fell within the intended role of the High Court. The authors of the Constitution, for better or for worse, chose, with the exception of a small number (eg: s116 and s92), not to include judicially enforceable human rights in the Constitution. This omission, whether intended or accidental, does not constitute an invitation for the high court to invent them by way of judicial constitutional amendment. On the contrary - while our founding fathers may not have been as clear about their intentions for the operation of such rights, they were eminently clear (as has been explained) about the intended role of the high court. Specifically within that latter intention, the authors clearly intended that the High Court not be a forum for “updating” the constitution. Not only can this be inferred - as a matter of fact - from the records of the Great Constitutional Debates of the 1890s, it is also painfully clear from the inclusion within the constitution of section 128, the amendment provision.
Incorporating a delicate mix of democracy and federalism, section 128 put amendment of the constitution entirely in the hands of the people and the states. It was specifically intended to outlaw amendment of any other type - for example legislative amendment or, in this case, judicial amendment.
ii. Mabo
The Mabo decision of 1992 inflamed passions across the country. The crux of the decision was to recognise the title of Australia's indigenous over Australian land. The concept of native title is not an inherently abhorrent one. The concept has existed in English common law for centuries. The fact that the High Court would recognise this right after more than 200 years of settlement, though dubious, is not why this decision should be criticised. Rather it is the fact that the High Court extended the concept to aboriginal Australians that constitutes another example of the court's willingness to pass judgement according to its own policy.
Native Title at common law involves the recognition of a land title system existing at the time of settlement. In the Mabo case, the plaintiff, Eddie Mabo, was an inhabitant of the Murray Islands. The fact that he was not what is today regarded as an aboriginal Australian is an important distinction. Murray Islanders, as the Mabo case heard, have a far more advanced concept of land ownership than aboriginals. Their system of land title includes the concepts of property (ie: land was a commodity which belonged to and could be traded by its inhabitants) and boundary (land had boundaries by which it could be defined). Aboriginals, by contrast, have no such land title system - their only claim is that they belong to it. Effectively, by extending the concept of Native Title beyond the Murray Islanders, the court recognised a system of land title that was totally inconsistent with what common law Native Title was all about. There was no basis at common law for deciding that the aboriginal system of land title (if it could be argued that one even existed) was of the type traditionally protected by the Native Title doctrine. Though the Court had every right (in a legal sense) to develop the common law as it saw fit (the courts are after-all, guardians of the common law), it is difficult to believe that their decision to extend Native Title as far as they did was based on anything but their own subjective policy desires.
iii. Wik
After the successful introduction in 1993 of the Native Title Act, native title passions were again inflamed in 1997 with the handing down of the Wik judgement. Here the court held that the grant of a pastoral lease did not have the effect of fully extinguishing Native Title, that is both pastoral lease rights and native title rights were capable of coexistence. Again this decision was based in the common law, so there is no constitutional argument as to its legitimacy. But when examined in the light of prevailing social and legislative views, we can see just how far the court had to go to substitute its own preferred policy outcome for a rational, gradual change in the common law.
When the Native Title Act was passed in 1993 it didn't properly confront the idea of coexistence - indeed moreover, it has aptly been described as the most poorly drafted Act in Australian legislative history. Nonetheless it was widely, almost universally accepted that the operation of the Act had the effect of extinguishing Native Title over pastoral leases, that is not to the extent of any inconsistency (between the claims of the pastoralist and those of the indigenous), but total, blanket extinguishment. This is not a matter of debate or theory. During cabinet debates leading up to the passing of the Act, then Prime Minister, Paul Keating, assured his fellow cabinet colleagues that this would be the case - that a grant of a pastoral lease would extinguish all Native Title rights. Graham Richardson, a minister at the time, recalled in an interview published in The Bulletin last year that it was made quite clear to regional Labor MPs that pastoral leases would not be the subject of Native Title claims (he went on in that interview to praise Prime Minister Howard and his so-called Ten Point Plan). It appears, oddly enough, from the debate surrounding the passage of the Act that the only person who voiced any concern over the possibility of coexistence was Liberal Senator Nick Minchin.
Nonetheless, despite clear legislative intent and with reckless disregard to the traditional practice of common law development (which is generally slow, cautious and heavily reliant on precedent), the High Court instituted its own policy stance and found in favour of coexistence (in opposition, of course, the ALP immediately reversed its view on the subject). The legacies of this outrageous act of judicial activism are WIK, the Ten Point Plan (a legislative outing designed to alleviate the problems associated with the judgement) and the likely prospect of a race-based double dissolution election (necessitated by a “recalcitrant” senate).
The concept of judicial progressivism is a deeply disturbing one, at odds with the fundamentals of democracy. Seven un-elected judges, no matter how superior their intellect or legal capabilities, should never be allowed to usurp the legislative power of elected Australian Parliaments. Legislative (and executive) power, according to the basics of liberal democracy, should be exercised by those whose authority is derived ultimately from the people. There can be no justification, legally or morally, for any form of judicial amendment to our constitution. Not only does it conflict directly with Australian democracy, judicial activism is openly contrary to the constitution and openly contrary to the intentions of those who wrote it.
