OPINION: High Court stable while politics goes mad
THE political stunts and partisanship over the appointment of Brett Kavanaugh to the US Supreme Court should make Australians feel lucky. The stand-out element of stability in the Australian political system during the Rudd-Gillard-Rudd-Abbott-Turnbull madness has been appointments to the High Court.
There were eight during that time. Every one was warmly welcomed by national and state legal practitioners’ associations and more importantly by the non-appointing side of politics. Each of the appointees had a strong record in state supreme courts or the federal court, except one who had a solid record as Commonwealth Solicitor-General, a role that requires extensive opinion writing of the sort High Court judges do.
None was labeled small-l liberal or conservative. None gave rise to any political controversy.
That is how it should be. The only question is why.
It may be because we do not have any Senate confirmation process or other political oversight over appointments.
It may be because the High Court’s role is different from that of the US Supreme Court. Our High Court not only interprets the Constitution as in the US. It is also the highest court of appeal in matters of state law. It is the body that ensures the development of a uniform Australian common law. That imbues judges with a legalism that is wider than pre-determined positions on social questions that arise from the Constitution.
Maybe it is because our Constitution does not have clauses that require the High Court to weigh into socially controversial issues very often. In the US the Supreme Court decides on guns, abortion, political donations, capital punishment, racial discrimination and Presidents and presidential hopefuls who oppose those decisions vow to do something about it, which in turn means appointing people with pre-determined overtly and avowed political positions. Forget the law.
Also, it is possible that, in the 2007-2018 political turmoil, governments and Prime Ministers were facing pressures from so many fronts that they avoided further controversy with High Court appointments.
Maybe, but that did not stop an embattled Whitlam Government appointing the controversial Lionel Murphy in 1975; or the behind-in-the-polls Keating Government appointing Michael Kirby in 1996; or the behind-in-the-polls Howard Government appointing Ian Callinan in 1998. The last two were seen (mostly wrongly) in some quarters as partisan.
The main political battle surrounding the High Court until around the time of the Hawke Government in the mid-1980s was not a direct left-right, liberal-conservative brawl on social issues, but about states’ rights. Labor sought to increase Commonwealth power over the states to push an environmental, economic as well as social agenda. The Coalition resisted this.
But the game was up for the states in the mid-1980s when the Hawke Government abandoned clever legislation that attempted to expand the heads of Commonwealth power in the hope the High Court would let it through – as previous Labor Governments had done.
Instead, it just told the states that unless they legislated at state level for various elements of its agenda: environment; road rules; gender-equity and so on, they would not get extra money the Commonwealth was providing.
Never get between a state government (of whatever hue) and a fat Commonwealth cheque (whatever the political hue of its signer).
At a stroke, the arcane arguments of the limits of Commonwealth power which had dogged High Court appointments and cases from the appointment of Charles Powers and Albert Piddington in 1913 to the 1976 Fraser Government replacement for Edward McTiernan (appointed by the Scullin Labor Government 46 years earlier).
The argument these days has moved from State v Commonwealth to Individual v Government.
One might think that this would be ripe ground for a judicial divide along political lines. Not so.
In that territory the left-right or liberal-conservative divide blurs. The left’s freedom seeker is the right’s rugged individualist. The right’s regulation of social conduct is the left’s regulation of business morality. Who knows where the judicial gavel may fall in that environment.
In Australia, it may be impossible to predict the outcomes or in US terms “the votes” of the justices, but at least we can be confident that the result will be well reasoned on legal grounds. Overt political appointments have been absent for decades. Political outcomes have not had a place in the legal sphere.
For example, the Rudd-appointed Chief Justice Robert French upheld the Abbott Government’s intervention into Aboriginal communities on the purely legal-constitutional point that the 1967-amended Constitution said the Commonwealth Parliament had power to make laws “with respect to” Indigenous people. The legal meaning of “with respect to” did not mean “to the advantage of” despite what all the people who voted in the 1967 referendum thought they might be doing – namely, advantaging Indigenous people.
Legalism pervades the High Court’s work. For example, all the Section 44 cases were decided not on the challenged MP’s party stripe, but on the law – unlike the US Supreme Court’s decision in Gore v Bush which just came to a 5-4 piece of blatant political partisanship.
Similar was the position of Justice Harry Gibbs who joined a minority of three in the First Territories Senators Case. When the retiring McTiernan was replaced by Keith Aickin in 1976 the conservative Queensland Government thought they would have another crack at it, now the numbers had changed.
But Queensland did not reckon against the High Court’s legalism. The numbers had changed, but so, in the eyes of the stickler for precedent, had the law. Gibbs said the 1975 case (in which he was in the minority) was now the law, and he would apply it.
It would be unthinkable for our High Court to abandon decades of jurisprudence on abortion, as some hope the United States Supreme Court will do.
As it happens, a case before the High Court now relates to abortion: whether state laws prohibiting protests near abortion clinics offend the implied term in the constitution for free political communication.
Do not expect our court to go into a frenzy of pro-choice v pro-life rhetoric and partisanship. Rather expect long and arcane judgments setting out the history and limits of the freedom of political communication.
I do not pretend that all of our High Court judges all of the time are immune from political considerations, but the normal pattern is that they play little or no part in the face of legal reasoning.
True, our appointment process is flawed. Basically, the Prime Minister decides. But, at least in the past 10 years, it appears to have worked.
Crispin Hull is the author of The High Court 1903-2003. The Law Book Company.
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