High Court decision should not be used to advocate politicisation of judges

By Naomi Neilson|17 February 2020

A recent opinion piece on the High Court decision in the Love and Thoms cases called explicitly for judges with a political leaning, but it’s these debates that ignore principles of law and betray the integrity of Australia’s systems of governance.

The opinion piece – which we have chosen to not name – took an issue with the judges and suggested they failed to play the role of conserving what the constitution means. The writer called for the mandatory replacements for Justices Virginia Bell and Geoffrey Nettle to be conservatives or it would betray the Australian constitution.

These comments, and the overall general opinion of calling for more politically inclined judges following the High Court decision, “[appear] to misapprehend the structure and purpose of our systems of governance,” said Griffith Law School’s Associate Professor Kate Galloway. In other words, it does not consider the separation of powers.

The three arms of government – legislature, executive and the judiciary – are intended to balance each other through separation of powers. Professor Galloway said Australia is not entirely perfect, as judges are often appointed by the government.

However, she added the proper role of the High Court and judges is to determine the meaning of the constitution according to law and, in doing so, to determine the proper exercise of power of both the legislature and the executive.

“To suggest the government must make expressly political appointments, for example, by appointing a ‘capital-C conservative’ is not to depoliticise the judiciary, but rather to expressly advocate its politicisation,” Professor Galloway told Lawyers Weekly.

“In light of the principle of the separation of powers, it is not appropriate to suggest the government make appointments solely on the basis that an appointee will necessarily uphold the policy preferences of the government of the day.”

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Professor Galloway said such a suggestion itself appears to be a betrayal of Australian constitution and “the integrity of our system of governance”.

The High Court decision has been a source of contention across the legal and political sector. The decision in finding that the “aliens” power in the constitution fails to extend to Aboriginal and Torres Strait Islander Australians has been labelled a “blow” to legal and democracy systems, with one article dubbing it “hateful and wrong”.

The Australian Bar Association said debate and commentary around the issue should “at all times respect the position of the courts and the rule of law”.

“Inflammatory language which attacks the integrity of judges who have taken an oath to serve the public tends to undermine the public’s confidence in the courts,” the ABA said. “Confidence in the courts and the rule of law [are] vital to the continuation of our peaceful community.”

The ABA said the commentary about the High Court went beyond the bounds of robust criticism. President Matthew Howard SC noted the decision involved difficult questions of constitutional interpretation about which members of the court reasoned differently.

“It is healthy that the public, through the media, is informed about such a significant decision. It is also a good sign of an open society that there can be a robust debate about the decision and its implications,” Mr Howard said.

“The concern of the ABA is where inflammatory language is used in that debate or comment which suggests a lack of honesty or legitimacy in the judgements reached. Such language may undermine the public’s confidence in judges generally and our system of justice.”

One opinion piece said the decision limited the Commonwealth’s power to decide who is and who is not an alien is a “direct attack on the sovereignty of the crown”.

“It is also inherently conservative in affirming the power of the Australian state to make and enforce the law,” Professor Galloway said. “There is no suggestion in the decision that the sovereignty of the Australian state is in question.”

Professor Galloway said the operation of the court reinforces this and the implications of the High Court decision “reinforces the power and authority” of the Australian state.

“It does, however, uphold centuries-long common law principle of accommodation of Indigenous laws in a colonial context. In this respect, the decision accords with the contemporary legal and social understanding of how Indigenous Australians fit within the broader Australian policy,” said Professor Galloway.

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High Court decision should not be used to advocate politicisation of judges
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