Wednesday, 7 September 2011

Janet Albrechtsen's opinion on Australian High Court

High Court gets on its high horse, flexing its interventionist muscle

LOOKING back on his time as US president, Dwight Eisenhower once said: "I made two mistakes, and both of them are sitting on the Supreme Court." It was a reference to his nomination of justice William Brennan and chief justice Earl Warren who took a once conservative court along a more left-liberal path.

Eisenhower said that in appointing judges, one needed to pay more attention to ideology and less to political imperatives. Australian prime ministers, Liberal or Labor, would do well to follow Eisenhower's advice.

Last week's decision by the High Court of Australia to strike down the Gillard government's Malaysia Solution is a clear marker that our highest court is getting on its high horse, flexing its more interventionist intentions.

In any other circumstances, the leader of the Labor Party would be cheering the result. Except when the Labor leader is also the Prime Minister. All of a sudden, more interventionist judges look like irritating intruders on public policy.

And therein lies the rub for the ALP. Its penchant for progressive politics, which necessarily affects its choice of judges, will sometimes come back to bite the government.

Gillard revealed that much when she described the High Court's decision as a "missed opportunity to enhance our region's response to the evil of people-smuggling". It was "a missed opportunity to send the strongest possible message to people-smugglers", she said.

There is Labor's problem. Gillard foolishly assumed that such an activist mind-set would necessarily echo Labor's immigration policy. The lesson for Gillard, and any prime minister, is clear: if you want consistency, choose your judges carefully. Virginia Bell, appointed by Kevin Rudd in 2009, is also the court's most left-wing judge. More progressive judges don't have much time for precedent and are far more willing to muscle up to the executive power of government.

The other lesson is this: when they reach the lofty High Court, some judges are likely to fall for the pleasures of progressive judging where you get a wider berth to interpret law as you please.

Back in 2001 when deciding the Tampa case as a judge of the Federal Court, French was all in favour of far-reaching executive power for the federal government. On his elevation to the High Court, the Chief Justice is all in favour of flexing the court's ability to check executive power.

Of course, last week's case involved judges also appointed by the Howard government and concerned a section of the Migration Act not previously interpreted by the High Court. French and the other majority judges were entitled to find as they did. But their decision is, without a doubt, a more activist one than the decision reached by the dissenting judge,Dyson Heydon.

When French was announced as the new Chief Justice of the High Court in July 2008, left-wing lawyers were delighted. This was, according to lawyer Greg Barns, the moment when the Rudd government began "the task of wresting the High Court back from the conservatives who have dominated the bench for the past decade". Barns crowed that French would "make the rabid anti-judicial activists seethe with rage".

In fact, Gillard and her government are seething with rage. But what did they expect? It is true that judges invariably "make" the law. As French once said: "The courts are frequently confronted with statutes that use very broad language and leave it to the judges to develop the law within the framework of that language. This is law-making that parliament asks the judges to do."

That's what happened when the High Court interpreted section 198A of the Migration Act last week. The majority judges interpreted the section to require that Malaysia have legal obligations towards asylum-seekers. In the absence of those legal obligations, Gillard's Malaysia Solution was effectively tossed out as invalid.

But as Heydon said, there is no mention of legal obligation in the section. In the absence of clear words, Heydon was right to suggest that reading in legal obligations was to "add a fifth wheel to the coach". In other words, it was a case of the majority judges imposing their own preferred reading of section 198A contrary to clear words of the section.

The neat irony is that the only judge who found in the government's favour was the one who would never get appointed by a Labor government. Heydon, appointed by the Howard government, is regarded as the most intellectually gifted and judicially proper of the High Court judges.

The other prickly point arising from the High Court's decision is about upcoming appointments. In October next year Justice William Gummow retires and Heydon retires in March 2013. That presents an interesting conundrum for Labor and its Green bedfellows. Knowing they are headed for electoral defeat at the next election, the Gillard-Brown minority government may decide to appoint judges who will boost the activist bent of our highest court. That will certainly create greater potential for the Court to stymie future actions of a conservative Abbott government.

Alas, the judging gig often lasts much longer than a term or two in the Lodge. Accordingly, the problems the Gillard government confronted last week will also potentially confront a future Labor government. And that potential is all the more real when you consider that a prime minister must formulate policies that win over middle Australia.

The High Court, on the other hand, has no such democratic constraints and more than once we have seen judges and courts in this country defer to the apparent brilliance of their own progressive minds. Nowhere is the divide between the progressive mind-set and that of middle Australia more evident than when it comes to immigration. Exhibit 1: the glee of Labor's Left faction, refugee lawyers and activists about the High Court decision and its demand, based on misplaced compassion, for an end to offshore processing.

If Gillard is serious about showing conviction about border control and "breaking the people-smugglers' business model", she will work with the Coalition to amend the Migration Act to put offshore processing beyond doubt, even to a muscular High Court intent on imposing its own policy preference about refugees. Just as the Kim Beazley-led opposition worked with the John Howard government to enact section 198A to set up offshore processing on Nauru a decade ago. After all, the history of the immigration compact is unequivocal. When the government, not the people-smuggling industry, controls the nation's borders, Australians support higher immigration rates. And that is a most compassionate outcome.

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