Tag Archives: High Court

Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen

The Conversation

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The dual citizenship saga that has rocked the parliament in recent months is unlikely to end any time soon. Shutterstock

Lorraine Finlay, Murdoch University

The release of the report by the Joint Standing Committee on Electoral Matters (JSCEM) into section 44 of the Australian Constitution is the latest chapter in the long-running dual citizenship saga. The committee was asked to consider the impact of section 44 and options for reform.

While the report emphasises it is for the Australian people to decide on the appropriate qualifications of their elected representatives, its very title – Excluded: The impact of section 44 on Australian democracy – is a clue to the final view adopted by the majority of JSCEM.

Is a referendum the answer?

The key recommendation of JSCEM is that there should be a referendum proposing either that sections 44 and 45 of the Constitution are repealed, or that the words “until the Parliament otherwise provides” be inserted into those sections.


Read more:
Explainer: what the High Court decision on Katy Gallagher is about and why it matters


The majority report states that the problems caused by section 44 are “wide-ranging” and “have significant and detrimental implications” for Australia’s democracy.

If either of the recommended referendum questions were passed, the effect would be to remove the disqualification criteria from the Constitution and instead leave it to the parliament to enact laws governing this area. This would supposedly allow for disqualification laws that better reflect modern community standards.

There are several practical problems with this, and that is without considering the underlying substantive question of whether section 44 should actually be changed.

The first problem is that it is highly unlikely a referendum would succeed, a point acknowledged by JSCEM. To succeed, a referendum question must be approved by not only a majority of voters across the country, but also a majority of voters in a majority of states. That means a referendum can be defeated with only 19.8% of Australians (being a majority of voters in each of the four smallest states) voting no.

It is highly unlikely that the Australian people would vote “yes” in a referendum that simply asks them to repeal section 44 – which is precisely what JSCEM has recommended. That would not only mean voting “yes” to allowing dual citizens to be elected (itself a controversial proposition), but would also allow individuals to be elected where they have been convicted of treason, are under sentence for a serious crime, or have a financial conflict of interest.

To be fair, JSCEM goes on to recommend that if the referendum passes, the parliament should enact laws to address matters of qualification and disqualification. Any such laws would most likely ensure that many of the circumstances described above would still result in disqualification.

But the difficulty with this is two-fold. The first is that – rightly or wrongly – many Australians blame our politicians for the problems with section 44. The idea they should put those same politicians in charge of deciding what disqualifications should apply to politicians in the future is unlikely to be met with great enthusiasm.

The second difficulty is that JSCEM is asking us to consider constitutional change in a vacuum. How can the Australian people judge whether or not to vote for repealing section 44 without knowing what, if anything, will replace it?

The committee suggests the removal or amendment of section 44 is a “necessary prerequisite” to a public debate on what constitutes appropriate parliamentary disqualifications.

I would suggest the opposite is true. A public debate on what constitutes appropriate parliamentary disqualifications is a necessary prerequisite to any referendum suggesting the removal or amendment of section 44.

In any event, the question of a referendum appears to be academic, with the government ruling out this option almost as soon as the JSCEM report was released.

The minority report

It is somewhat surprising that with recent polls suggesting a majority of Australians support the dual citizenship disqualification, only one committee member reflected this view and concluded constitutional change was not required.


Read more:
Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians


In his minority report, Liberal Ben Morton stated “there has been no compelling argument” to remove the dual citizenship disqualification. He also confirmed he would campaign against any constitutional change attempting to remove this requirement.

This provides further insight into why a referendum will not occur. A government holding a one-seat majority simply cannot risk the distraction and destabilisation of a constitutional referendum that would divide its own members.

Other reform options?

Despite this, majority report did go on to recommend a number of practical strategies to “mitigate the impact of section 44” if constitutional change is not pursued.

These include the development of online self-assessment tools, additional education and support for candidates, formalising the parliamentary referral process, and working with foreign governments to streamline citizenship renunciations.

These are mostly sensible recommendations that will encourage greater compliance with the existing constitutional provisions. Given it is highly unlikely a referendum will happen, they are also the most important in practical terms.

The JSCEM report provides a number of practical recommendations to improve compliance with section 44. But it also confirms there is no easy fix.

The ConversationInstead, it looks as though the dual citizenship saga still has a long way to go.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Three reasons why the decisions of Joyce and Nash may be difficult to challenge

The Conversation

File 20171030 17711 1p8hzgp.jpg?ixlib=rb 1.1
Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged? AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.


Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.

Standing

First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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The High Court sticks to the letter of the law on the ‘citizenship seven’

The Conversation

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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a by-election on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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High Court unanimously rejects challenge to Senate voting reform

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Anne Twomey, University of Sydney

In a unanimous judgment, the High Court on Friday crushed Family First senator Bob Day’s High Court challenge to the recent Senate voting reforms.

The court regarded none of Day’s arguments as having any merit. It dismissed them as “untenable” or failing at their very threshold.

Remind me again, what are the changes?

The voting changes to which Day objected provide for optional preferential voting both above the line and below the line in Senate elections.

Under the previous voting system, if an elector marked “1” above the line for a party, the party then determined how the vote was distributed to all the candidates on the ballot paper. If electors voted below the line, they had to number sequentially every candidate according to their preferences. This could amount to more than 100 candidates.

The consequence was that about 95% of people voted above the line. This allowed parties to determine the flow of their preferences.

First in New South Wales and then federally, people began to manipulate this voting system. They created microparties with catchy names to harvest votes, and did deals with other parties regarding preferences, so that they could be elected even though they had a very small proportion of the primary vote.

The consequence was that people with negligible public support were being elected on the preferences of voters who often had polar-opposite political views to the candidate their vote had actually caused to be elected.

In NSW, after the infamous 1999 “tablecloth” ballot paper, the Labor government changed the voting system for the Legislative Council to allow optional preferential above-the-line voting. In 2016, it was a Coalition government at the Commonwealth level that adopted the same approach.

Now, when an elector marks “1” above the line for a party, the elector’s preferences go to the candidates for that party in the order they are listed below the line. They then flow to the candidates of the party marked “2” above the line, and so on.

Voters thus regain control over their preferences. They can see on the face of the ballot to whom the preferences go and decide how far those preferences should go.

Voters are instructed to vote for at least six parties or groups above the line, or at least 12 candidates below the line. This is intended to reduce the risk of too many votes becoming “exhausted” by not having enough preferences for the vote to end up electing a candidate.

How the case was argued and decided

Day had argued the government’s changes would leave those voters who wish to vote for minor parties “disenfranchised” because their vote, if their preferences exhaust, will not go on to elect any candidate. His arguments before the High Court, however, were more technical in nature.

First, Day argued that because the ballot offers electors the option to vote above the line and below the line, this is two separate methods of voting – breaching the requirement in Section 9 of the Constitution that there be a single method of choosing senators.

The High Court dismissed this argument. It said “method” should be construed broadly to permit more than one way of indicating a choice within a single uniform system. It said Day was arguing for a:

… pointlessly formal constraint on parliamentary power to legislate with respect to Senate elections.

Day’s second argument was that when voting above the line, people were really voting for parties – not candidates. Therefore, the Senate was not “directly chosen by the people” as required by the Constitution.

The court described this argument as “untenable”. It noted that, under the new system, a vote above the line is a vote directly for the candidates of that party listed below the line. The court politely refrained from pointing out that the validity of Day’s election would be threatened by his own arguments on this point.

Day’s third argument concerned the problem with the exhaustion of votes and the fact that the votes of some electors may not end up electing candidates. He attempted to derive a principle of “direct proportionality” from the Constitution, which required that all electors have their votes reflected in the election of candidates.

The court was again very dismissive of this argument. It said:

There is no principle of “direct proportionality” to be infringed. There is no disenfranchisement in the legal effect of the voting process. The plaintiffs’ argument, based upon effects adverse to the interests of so-called “minor parties”, was in truth an argument about the consequences of elector choices between above the line and below the line voting and in the number of squares to be marked. It should be rejected.

Ultimately, it is up to voters to decide whether they want to give full preferences or whether they want their vote to exhaust rather than elect someone they oppose. This is not disenfranchisement – it is democratic choice.

Day also argued the ballot paper was misleading, as it does not include in the instructions all the additional vote-saving provisions. The court concluded the ballot paper was not misleading. The paper’s instructions accurately reflected the law and there was no need to include all the savings provisions.

Overall, the High Court was dismissive of the arguments made, not even attempting to develop them in a way that could give them substance and merit. Being a unanimous judgment, it is plainly clear that the new Senate voting system and the use of above-the-line and below-the-line voting are constitutionally valid.

It is now up to voters to exercise their greater freedom in granting their preferences to ensure the Senate truly represents their voting wishes.

The ConversationAnne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

 

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Twenty years after the High Court’s Wik decision, how does the ‘judicial activism’ charge stand up?

The Conversation

Tanya Josev, University of Melbourne

2016 marks 20 years since the High Court handed down the Wik Peoples v Queensland decision on the extent to which pastoral leases over land in Queensland extinguished native title. This year also marks the 20-year anniversary of the stoking of the judicial activism debate in Australia.

It is no coincidence that the rise of the “judicial activism” terminology coincided not only with the Wik decision, but also with the new Coalition government’s campaign to ensure all arms of government focused on the protection of “mainstream” interests. The Coalition argued these had been ignored at the expense of progressive, boutique interests during the Keating government years.

The terminology’s sudden prominence – one of the Coalition campaign’s byproducts – had a profound effect on the way the High Court’s work was discussed.

Where did it come from?

“Judicial activism” was coined in the US. It has never been regarded as a term of art in the legal field in any jurisdiction.

Historian Arthur Schlesinger Jr first used the term to describe a particular voting bloc on the US Supreme Court in the 1940s. He gave no precise definition, but suggested the “activists” were more likely than the other, more restrained, voting bloc to use the US Constitution’s civil rights protections to invalidate legislation.

Schlesinger considered his term to be politically neutral. In academia in the 1950s and 1960s, some legal scholars expressed an early scepticism about his terminology.

Academics were aware that “activism” appeared to lack a fixed definition. Did it involve a discernible method of interpreting the constitution? Or did the “activist” label merely apply to a judicial outcome?

Ronald Reagan helped the term ‘judicial activism’ take hold in the US. Reuters

The terminology only took off in public discourse in the US in the 1970s and 1980s. The presidential campaigns of both Richard Nixon and Ronald Reagan harnessed it as a pejorative to describe the Supreme Court’s work.

Nixon and Reagan argued the court’s supposed implicitly progressive activism – protecting the rights of African Americans and the criminally accused, for instance – could only be quelled (and power returned to Congress) by a Republican president being given the opportunity to appoint strident anti-activists to the bench.

By this point, many academics and judges in Australia were aware of the terminology. However, they regarded it either as tainted as political language, or as a term uniquely applicable to the US. It was linked with bill of rights litigation, which is of less significance in Australia due to the lack of explicit civil rights protections in the Australian Constitution.

The same might be surmised of the popular media. They also avoided using the term, even as the High Court handed down politically charged decisions in the 1980s. The term remained dormant in Australia until the early 1990s.

“Judicial activism” only came to the fore in Australia between 1992 and 1995, as the Mabo native title decision was handed down, followed by a suite of decisions on implied rights in the constitution.

A handful of commentators and academics also used it rather innocuously, in passing, in this period. This was perhaps because they were aware of the term’s inherent ambiguity.

In 1996, as “judicial activism” entered political discourse, it assumed a new dimension as a term of absolute denunciation in Australia. In the years ahead, chief justices as diverse in views as Anthony Mason, Murray Gleeson and Robert French all warned against the activist label. This was because it concealed, rather than revealed, the essential critique that was being made of the High Court.

How it took hold in Australia

The Wik decision involved no “civil rights” questions. The High Court majority decided the grant of a pastoral lease did not necessarily extinguish native title, but would extinguish native title to the extent of any inconsistency.

This was hardly a judgment that promoted native title interests at any expense. But it nevertheless rankled the Coalition at both federal and state level as an example of sectional interests prevailing. The pastoralists were seemingly regarded as representative of “mainstream” interests in this case.

The deputy prime minister, Tim Fischer, and Queensland premier, Rob Borbidge, repeatedly attacked the High Court for its activism in Wik in “making [native title] law”, rather than interpreting it.

Tim Fischer led the criticism of the High Court for the Wik decision. AAP

Borbidge’s view of the work of the High Court was simplistic. The High Court has always made law; this is not a matter of controversy. But the prime minister, John Howard, and others tacitly acknowledged the use of the terminology after Borbidge’s remarks.

Within a matter of weeks, a sustained public attack on the High Court had begun. The majority judges were described as “bogus”, “purveyors of intellectual dishonesty” and “undermining democracy” in further developing a framework for the recognition of native title.

A judicial activist, it seemed, engaged in non-judicial behaviour. They decided cases in favour of a preferred (non-“mainstream”) litigant or interest, to reach a result that was inconsistent with a conservative worldview. Whether there was any particular method discernible as constituting activism was another question entirely.

These early accusations seemed to equate activism with (progressive) results-oriented decision-making. However, it appeared no early protagonists in the debate were able to flesh out their claim that the majority decision in Wik was devoid of reasoning, or a ruse to mask the court’s progressive agenda.

Later attempts to give the term meaning also failed to gain traction. Was activism equated with dynamic (as opposed to legalistic) reasoning? Or did it involve significant change and expansion to common law principles, often to parliament’s surprise? Or the use of non-legal sources – for instance, works on Australian history – to buttress arguments?

Did judicial activism involve recourse to international legal materials rather than relying on Australian precedent? Or was there no method at all?

The only common thread was that activism – whatever it may be – was not something a judge should ever engage in.

Here to stay?

Using a catchphrase such as “activism” allows a commentator to avoid giving explicit reasons for their disapproval for a decision, while nevertheless using the catchphrase to accuse the bench of judicial illegitimacy.

It is a serious and derogatory charge to make of a court. It is a potentially unjust charge to make if no working definition of activism is disclosed at the outset. This is especially so when a commentator’s implicit understanding of activism extends only to examining the ultimate result in the case and deciding whether it accords with their own political preferences.

The term, it seems, is here to stay, both in certain sections of academia and elsewhere. It has arisen as an accusation levelled at the Federal Court while processing refugee claims, and has been described as a potential threat that might arise should a bill of rights be introduced in Australia.

Even over the past year, commentators have argued that proposals for Indigenous recognition in the Constitution will further encourage the courts’ activism. They have also argued that criticism of the former High Court judge presiding over the trade unions royal commission, Dyson Heydon, fails to appreciate his impartiality as an anti-activist.

Will the popular media assess the potential candidates for the soon-to-be-vacant seat of High Court chief justice through the “activist” lens?

Informed critique of the courts and their work is essential to the proper functioning of a democracy. Unhelpful shorthand phrases, however, do not assist with producing informed critique. Rather, they promote a form of opaque criticism that may well cloak analysis (or lack thereof) of court judgments, if not judicial outcomes.

The ConversationTanya Josev, Lecturer, Melbourne Law School, University of Melbourne

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

 

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