Our elected representatives, not unaccountable judges, should determine who comes to this country
In thinking about the recent doings of our High Court and whether it is starting to look worryingly activist we need to keep in mind this key distinction: the label ‘conservative’ means something very different to the label ‘interpretively conservative’.
These two terms are frequently used as though they were synonymous. They’re not. A conservative is someone with a particular set of first-order political beliefs about the sort of policies that would best serve society.
By contrast, a judge who is interpretively conservative is someone who is extremely faithful to the original meaning of the legal text; he or she gives the constitutional or statutory words the meaning most likely to have been intended and understood when the instrument was being adopted or enacted.
In the case of Australia that usually means leaving most things to the elected legislatures and to democratic decision-making, even if you personally happen to disagree with the choices made by the elected legislature.
You can bring the distinction down to earth by thinking about last week’s Malaysia case where the High Court was interpreting the Migration Act and the Gillard government’s supposed solution to the boats bringing asylum-seekers. The sole dissenter was Justice Heydon. He would have upheld the Gillard government’s Malaysia deal. He read the legislation in a way that deferred to the elected Parliament and the judgment of the Minister. And yet Justice Heydon is probably the most conservative of all the Justices on the High Court as far as one’s first-order views go.
Similarly, the recent voting cases of Roach and Rowe involved our High Court in invalidating Howard government legislation on the basis, according to the majority Justices, that Australia’s written Constitution gave those same Justices a supervisory and gainsaying role over what Parliament could do when it came to decide, say, which prisoners could vote or whether the electoral rolls can close when an election is called, or seven days later.
The majority judgments in those two cases, in my view, rested on the most implausible and far-fetched understanding of our Constitution, one that just happened to liberate significantly the scope top judges have for over-ruling the Parliament. Indeed I think they were two of the worst decisions in some time. But Justices Heydon and Hayne both wrote powerful, and interpretively conservative, dissents in both those decisions.
Speaking in broad terms then, the judicial world divides into those who emphasize fidelity to the legal text and
who interpret that text as having an unchanging original meaning. The other half of the judicial world, especially with
constitutions, sees these legal texts as living trees that need judicial gardeners to prune and cultivate them to keep pace with changing social values.
And that implicitly involves not just a fair bit of glancing around at other jurisdictions (ones that all have bills of rights, though the judges generally fail to mention as much), but also a potentially significant amount of judges consulting their own moral and ethical antennae, as it were.
If this sort of judicial activism gets out of hand, it is worrying stuff for those of us who like our policies to be made by elected representatives of the people. Call us democrats if you will.
Win or lose the political battle, we want the top judges to keep their noses out of which prisoners can vote, when the electoral rolls can close and how to resolve the asylum-seeker issue. Or rather we want that, unless the legal text being interpreted clearly takes the issue out of the hands of the elected politicians and gives it to the top judges (a different matter than the top judges simply giving the issue to themselves by means of implausible interpretive techniques).
Think of it this way: a scoring rule in some sport is not the same thing as admitting that some real life person has to be given final authority to interpret the rule. Law is not whatever the judges say it is, even if it has that practical effect in big constitutional cases where no one can effectively respond to the judges’ decisions (any more than teams can respond to a bad refereeing call).
Or put more bluntly still, the concept of the Rule of Law does not collapse into Rule by Judges. That is why we all need to criticize our High Court when the majority of Justices look to be getting too big for their unelected boots.
We need to sympathise with Prime Minister Gillard even if we happen not to like her first-order political preferences. It’s the big picture that counts, not the happenstance that you might be cold-bloodedly enjoying a bit of government discomfort from a High Court ruling going against them.
Of course one might respond by saying that our High Court is nowhere near as intrusive into democratic decision-making as the Canadian Supreme Court, and that former Justice Kirby – had he been transplanted to that Canadian Court – would have been the most interpretively conservative judge on it. I think both those claims are correct. But as John Cleese was wont to say, dripping with sarcasm: ‘That’s high praise indeed’.
This all cashes out not just in terms of the likelihood of politicising our judiciary, it also affects the willingness many of us will have to agree to any new preamble to our written Constitution. It’s likely one will soon be put to the voters in a Section 128 referendum, perhaps to recognise in the preamble the role of indigenous Australians.
But given the interpretive approaches of the majority of our present High Court Justices, what form of words – however clear – would ever leave you confident latter day judges might not inflate the proposed new words, or redirect them or apply them to some purpose neither you nor any other people voting ‘yes’ in the referendum intended or understood the actual words used to mean?
The High Court in the mid-1970s didn’t think its role was to second-guess Prime Minister Whitlam. It even upheld his plan to give Senate representation to the Territories, a much, much more debatable call in terms of constitutional interpretation than the recent voting cases.
They weren’t in the business of ‘discovering’ implied rights and new supervisory judicial powers over Parliament that no one had noticed or thought existed for a century.
Judicial activism can deliver you the short-term outcomes you like; alas it has insidious long-term effects when
it comes to democracy.
James Allan is professor of Law at the University of Queensland.