A Lawless And Politically Motivated High Court
The High Court in recent years has often openly acted upon the proposition that the Constitution should be construed in such a way as to maximise the powers available to the Commonwealth Parliament (Cooray and Ratnapala 1987:203-25; Cooray 1985:27-34).
But in two recent cases (Nationwide News Proprietary Limited v Wills 1992:68 and Australian Capital Television Broadcasting Ltd v The Commonwealth 1992:577) involving freedom of political discourse, the High Court has conjured up an implied right of freedom of political discourse which places limits on the area of the legislative power of the Commonwealth Parliament (which limitation will also apply to the State Parliaments).
The ruling of the Court in the Mabo Edict on native title read with the Racial Discrimination Act (Commonwealth) will operate to place substantial restrictions on the legislative powers of the State Parliaments.
The consequence is that the High Court on the one hand operates to provide to the Commonwealth Parliament a wide area of legislative power without limitations on its legislative power imposed by the Constitution. The High Court in isolated instances, which may become more frequent as in inventing the freedom of political discourse, places restriction on power of Parliaments (State and Commonwealth). When the High Court judges (or a majority thereof) decide cases on principles which are not found in the Constitution or as in the Mabo Edict when they reject settled law they do so in accordance with their political philosophy. Any individual's political philosophy is slanted and biased in particular directions given the range and diversity of human rights.
Padraic McGuiness writes that the High Court will not
"follow precedent unless it feels like it" and therefore we Are "in a lawless condition as far as the interpretations of our Constitution are concerned" (McGuiness 1992:11).
Political Type Criticism Will Follow A Politically Motivated Court
Mabo is a political judgment and consequently it is inevitable that comment and criticism which arise in the political arena on political issues will be directed at the High Court.
The legislative power exercised by the High Court has put at risk the respect hitherto held for the High Court. This respect had been dwindling as a consequence of the attitude to federalism adopted by the High Court in recent years (accelerating a process which had been going on from the 1920's).
A Political Judgment NOT A Judicial Decision
The widespread criticism in the most stringent terms which attended the decision of the High Court was inevitable. The High Court has provided a political judgment. It has not provided a judicial decision.
Political decisions and acts passed by the Parliament are subjected to critical comment and lead to controversy. The High Court has provided its own legislation and therefore cannot stand back and expect to be treated as a Court. It has stepped outside the law. It has stepped outside judicial methodology. The judges of the High Court who have provided a political judgement must expect the type of criticism which politicians receive. Having provided a political judgment they cannot take refuge within the walls of the High Court and the independence of the judiciary and demand that they be treated with the respect accorded to judges.
In the face of hard criticism of the Mabo Edict it has been argued that criticism of the court may endanger its independence. In the vast majority of cases in which judges confine themselves to interpretation of law, criticism of the courts is accepted and sometimes welcomed.
Criticism is inevitable when the judge assumes a law making role and places himself above the Constitution. He is like any other politician.
Mr Justice F.G. Brennan, (Brennan 1993: 12) in an unpublished paper delivered in Canberra on 16 July 1992 to a Human Rights Conference is on record as saying that a Bill of Rights would bring the courts "into the political process as a new and dominant force".
His Honour also says
"Once the right is defined, the Court must weigh the collective interest against the right of the individual. This is the stuff of politics, but a Bill of Rights purports to convert political into legal debate, and to judicialise questions of politics and morality". He sees the courts "as the repositories of a supervisory power over the branches of government".
His Honour states that Canadian judges operate in a new constitutional climate brought about by a bill of rights enacted by Parliament. He adds "surely Australia and Australian judges might do the same". His Honour quotes Madame Justice McLachlin:
"The advent of the Charter in Canada has elevated judges from a position where they once toiled in relative obscurity to the level of media figures".
Justice Brennan seems to assert what Sir Anthony Mason denies (Mason 1993:23) that the High Court is doing something new.
Do Australians want their judges to be media figures? Do we not have enough journalists? Do we want judges who are like journalists?