Quite apart from the immense damage caused to the common law and the fabric of the Australian society, politics and economics by the Mabo Edict, the utterances of leading judges outside the courtroom, is a cause for much concern and indignation.
Mr Justice Einfeld of the Federal Court is reported as saying:
Australia is in danger of being engulfed in hatred, racism and division because of mischievous self-seekers spreading false information about Aboriginal land claims.
Corporate nobodies and people who should know better are deliberately stirring hatred and racism by misrepresentation in the guise of prosperity and a sound economy.
Australia is reaching another low in intolerance, racism, self interest and self-indulgence.(Einfeld 1993:5)
The "corporate nobodies" Justice Einfeld refers to have helped to augment Australia's wealth, making possible the payment of salaries of judges, bureaucrats and academics (who support the Mabo Edict). The "new level" of intolerance which the Justice refers to is reflected in his own abusive comments. He is unable to comprehend that people can be outraged by the reasoning and consequences of the Mabo Edict without a tinge of racism and support for exploitation. What is disturbing about Justice Einfeld's comments is his failure to comprehend that there could be sincere views, opposed to the sincere views he holds. This failure is the stuffing which fills out totalitarian systems.
What is even more disturbing are the utterances of the Chief Justice of Australia who in a conference held at Cambridge University on 12 July 1993 is reported as making derogatory comments about the critics of the Mabo Edict. He referred to
"the most sustained and abusive (criticisms) I can recall in my career as a lawyer". He referred to "the concerted campaign run by the mining interest supported by the pastoral interest to discredit our decisions (Quotations extracted from Hulme 1993:161)
These comments were widely reported in the newspapers and radio. I wrote to the Chief Justice asking for a clarification and for details about the comments.
The Chief Justice did not reply to the letter. His secretary replied in the following terms:
The Chief Justice has required that I reply to your letter of 6 August seeking a transcript of the remarks made by the Chief Justice at Cambridge in July. The Chief Justice was attending a conference organized by the Institute for Advanced Legal Studies and, on the occasion in question, spoke from notes only. Therefore, we are unable to provide you with a text. (Holmes 1993).
This constitutes an evasion of the issue. The Chief Justice refused to provide a confirmation or denial. My original letter asked whether the Chief Justice had been correctly reported, as well as for a text of the address. Only a part of my letter was answered.
There was a strong convention in Australian government and politics prior to the time when the Hon. Mr Paul Keating became Prime Minister, that a Prime Minister, Minister or public dignitary travelling overseas did not make adverse comments about internal Australian affairs nor make important declarations about policy initiatives.
Given the context in which the comments were made and their sweeping nature, the Chief Justice's failure to provide a clarification or an explanation is unfortunate.
But there is much more at stake and in issue.
Expression of opinion is the essence of a democracy. The famous words of Voltaire come to mind:
"I disapprove of what you say, but I will defend to the death your right to say it"
Hard debate and disputation is an integral part of the true democratic process. Respect for and toleration of the opinions sincerely held by others, based on reason and principle, is another important aspect.
Lenin once said:
"I think we must stick the convict's badge on anyone and everyone who tries to undermine Marxism ... even if we don't go onto examining his case".
This tactic has been cultivated to a fine art by modern socialists in politics, media, academia (and a few in the Coalition have caught the same disease). This tactic may be used by other sections of the community, but their words are rarely reported by the media.
The level of debate in public life in Australia has degenerated to a disgraceful level. Argument by abuse, overly vigorous assertions, cant phrases, innuendo, name calling, denunciations (attacking the man rather than playing the ball, to use sporting parlance) are extremely common. This serves as a substitute for rational argument and an avoidance of entering into serious debate with an opponent's rationally presented arguments. This type of language and debate has, always been associated with extreme elements in the political system. The problem is that today it is part of mainstream politics. The Prime Minister, Premiers, Ministers of the Crown and other public figures hurl abuse and denunciations at their opponents without resorting to rational argument — and the media follow suit —and are critical only when it is indulged in by those on the right of the political spectrum (conservatives, liberals and supporters of traditional moral values).
Hard criticism and strong arguments, provided they are honest and are supported by and based on reason and principle, are part of rational debate. Slogans, abuse and name calling are not, and must be roundly condemned.
The public policy debate in Australia is dominated by abusive rhetoric. Some have, over the years, perfected the art of suppressing opposing views through abuse of opponents.
A more subtle form of the Leninist tactic involves ignoring of or pretending that an alternative view does not exist. Thus opponents of the Mabo are painted as racists, company directors greedy for profits, political opportunists, motivated by narrow political factors, dumb, or deceived by false, hysterical or vituperative arguments or ideology.
There is in these tactics a conspicuous failure to recognize the existence of a contrary opinion and an all-pervading belief that there is only one approach. Both dimensions involve an undermining of the spirit of democracy. The essence of democracy is the opportunity for the expression of differing views, respect for opposing views, and belief that the better view will triumph. The above are attempts or methods to deny the existence of an opposing view. This is indicative of the totalitarian mentality. The totalitarian proceeds on the basis that his view is right and true and it is the only view.
It is deplorable that the Chief Justice of the High Court and a judge of the Federal Court have descended to the levels of political diatribe until very recently confined to the extremes of politics.
The remarks as quoted carry the unfortunate inference to the effect that two judges are unable to appreciate the right of others to criticise.
Sir Anthony Mason in an article in The Australian, Monday, November 8 1993 argues that the High Court has only done what the common law judges have always done.
There have been many critics of the law making role of the High Court in Mabo and in earlier constitutional cases.
The Chief Justice takes up arms against his critics, which is legitimate in a free society. What however is remarkable is the manner in which he does so. His comments involved denying to his critics any reasonable point of view and ridiculing their arguments.
He says
"only a person entirely ignorant of the history of the common law could make such a suggestion".
He accuses his critics of writing "legal fairy tales".
No informed critic denies that common law judges have made law. The real criticism (which Sir Anthony Mason completely ignores) is that what the High Court has done is in no way comparable to the way in which the judges have developed the common law.
The common law was made by the judges over many hundreds of years. Extensions and expansions were made over decades, if not centuries. Changes in individual cases were few and far between.
Where changes were made they were at most an extension of principle. Even fundamental cases like Rylands v Fletcher and Donoghue v Stevenson involved an extension within the framework and the methodology of the law.
Moreover the period of fundamental changes in the common law has virtually come to an end in England in recent decades, due to the dominance of parliament. In an era of parliamentary law making, the Courts have deferred to the legislature.
The law making era of the common law by and large belong to a past generation.
The High Court in Mabo has made a fundamental change in an era in which in other democratic nations, judicial law making is in retreat.
Previous decisions were ignored with contempt in Mabo. The common law process, until now, has involved detailed consideration of existing decisions and with reasons where appropriate the Court would explicitly overrule earlier cases which it considered erroneous. In Mabo, the High Court simply ignored existing decisions on the issue of native title. When the Court overrules a decision this means that the decision is characterised as containing (generally in part) erroneous principles of law. The High Court avoided overruling contrary decisions, instead, it just ignored them.
There are grounds for claiming (limits of space prevent me from further developing the relevant arguments) that the comments of Justice Einfeld and Chief Justice Mason constitute misbehaviour under Section 72(ii) of the Constitution which justifies dismissal. Standards of conduct expected of judges are proportionate to their position. Thus more is expected of a Chief Justice of the High Court than a Justice of the Federal Court. Much more is expected of any superior court judge than a politician. Therefore the type of language used by a Prime Minister or Minister is totally inappropriate for a judge. Evaluated in these terms, the comments of Justice Einfeld and the Chief Justice may arguably be said to constitute misbehaviour which is a ground for removal from office.
Sir Anthony Mason escaped with very light criticism from the press for his comments on the critics of the Mabo Edict. The public affairs journalists by and large identify with the Court's perspectives on the Mabo Edict. The lightness of the criticism can be explained by adopting a hypothetical situation. Assume that the High Court which decided Mabo consisted of a majority of judges who took a view similar to that of Dawson J in Mabo and they followed existing precedent. It could be predicted that there would have been an uproar, fuelled by media, focusing on reactionary, racist, conservative, exploitation supporting and other critical epithets about the judges. Assume that the Chief Justice reacted to this criticism (which probably would have been made more virulent than the criticism of Mabo) with comments identical to those made by Sir Anthony Mason in Cambridge. The media reaction would have been one of outrage and assertion of the right for free speech of the critics.
Sir Anthony Mason and Justice Einfeld attack the critics of the Mabo Edict. They overlook the manner in which criticism has been directed on even rational critics of the Mabo Edict by the Prime Minister, Ministers of State, Aboriginal Leaders and many others. A comparison of the public comment in the newspapers will demonstrate that the critics of the Mabo Edict have attacked the motives and character of those who criticised Mabo accusing them of supporting racism and injustice and being reactionary. The critics of Mabo have provided reasons (no doubt controversial but reasons nonetheless). They have also provided detailed justifications of their position, including a focus on the economic consequences, the effects on non-Aborigines who are 98.5% of the population, the possible breakup of the nation, the disunity engendered, the false expectations, the historical misstatements, the large areas of uncertainty and the manipulation of the law. There have been cogent arguments provided by the critics of the Mabo Edict. Their opponents have not responded to these criticisms, but often focused on injustice, racism, exploitation, oppression etc.
Intellectual terrorism (argument by strong words, cant phrases, abuse and character assassination as a substitute for rational argument) has been more common on the side of opponents of the critics of the Mabo Edict than on the critics themselves.
The media has, by and large, supported the opponents of the critics. There are many who are to varying degrees, antagonised, angered and alienated by the Mabo Edict. Many of them lack media exposure. They do not have the intellectual capacity to verbalise their arguments.
This unfortunately provides a context within which violence can erupt. The manner with which the Prime Minister and supporters of the Mabo Edict and extensions of it have argued, has not helped.
On the other hand, expectations have been raised by the Mabo Edict. This can equally lead to violence, if the high expectations are not realised.
The Mabo Edict has brought to a head the process of radicalisation of Aborigines which has been taking place. The Aborigines are being lead to believe by the media and Aboriginal activists that their grievances are bigger than they are and that justice demands compensation for what happened more than 100 years ago.
There is a difference between the criticism which followed the comments of Justice Derek Bollen of the South Australian Supreme Court and what the High Court judges have endured over Mabo.
Justice Derek Bollen was operating within the confines of traditional legal doctrine and methodology. Some of his comments were very badly drafted. There were sweeping and unsustainable generalisations. He could have exercised more care and sensitivity. But his words were taken out of context and analysed unfairly. This led to a wide ranging controversy.
The point however that has to be emphasised is that Justice Bollen was operating within the law. The Parliament has the power to amend the law if it is necessary. By comparison the High Court has provided a politically based legislative edict.