Queensland Premier Rob Borbidge, outraged at the Wik decision, launched a curate’s egg attack on the High Court last week. It was good in parts, and bad in parts. More importantly, like the curate’s egg simile, the points he made were not very new. But in general it was a muddled attack that grasped at any point to discredit Mabo and Wik or anything that curtailed state power, however contradictory those points were.
Borbidge’s attack was that High Court judges are appointed in secret by the Federal Government; that they virtually are unaccountable for their judgments; that they imply things in the Constitution that are not there; that recently the court has gone on a jaunt making up law rather than stating it; that this follows a line of centralist judgments favouring federal power over states rights; and that these trends have undermined the rule of law.
Oddly, enough one of the first and most tellingly accurate accusations that High Court judges imply things in the Constitution that are not there was an attack on those judges between 1903 and 1920 who mysteriously implied states rights in the Constitution that were not stated in the words.
Until the Engineers’ case in 1920 the judges of the High Court held in a series of cases that the states had immunity against the operation of federal law. In the Engineers’ case, Justice Sir Isaac Isaacs said these judgments sometimes varied with the natural textual meaning of the Constitution, were sometimes irreconcilable, and sometimes were based on what the judges called the principle of necessity, “”that being itself referable to no more definite standard that the personal opinion of the judge who declares it”.
In the Engineers’ case Robert Menzies argued successfully that federal industrial law should apply to state employees.
Seventeen years of implied states’ rights were overturned.
Borbidge complained about a long line of pro-federal judgments such as uniform taxation that in effect abolished state income tax (does Borbidge want it back?); the seabed cases which gave the Commonwealth power over seabed resources; and the Dams case by which the foreign affairs power was permitted, through treaties, to give the Commonwealth power over a range of environmental and other issues.
But these extensions of federal power have come through a quite legalistic interpretation of the words of the Constitution once the fetter of implied states’ rights were removed.
But Borbidge is troubled by other implied rights (those that might fetter state power), particularly the implied freedom of speech that fetters state power to inflict defamation law on Australians that protect politicians from greater scrutiny.
On theother hand, Borbidge’s attack on the way judges are appointed is not new, but it has merit.
In 1913 Attorney-General Billy Hughes appointed Charles Powers and Albert Piddington to the court in an attempt to stack it for political purposes for the Fisher Labor Government so that the court would be more likely to uphold centralist federal legislation _ indeed, to get rid of the implied states’ rights.
Powers had never practised at the Bar. The legal profession in Sydney and Melbourne shunned him, refusing to congratulate him on his swearing in.
Piddington was overseas at the time of his appointment. Before appointing him, Hughes got Labor MP Dowell O’Reilly, Piddington’s brother-in-law, to cable him: “”Confidential. Most important know your views Commonwealth versus States Rights. Very Urgent.”
It would be a bit like Paul Keating getting a mate of Michael Kirby’s to ask him: “”Most important know your views native title versus pastoral leases”.
Piddington replied by cable: “”In sympathy with supremacy of Commonwealth powers.”
The press denounced both Piddington and Powers, citing half a dozen better prospects. Piddington resigned without sitting. Powers went on to become the High Court’s most ineffectual judge before or since.
Despite that experience, federal governments are notorious for appointing people they think will decide cases broadly in their political favour. Fortunately, on appointment the judges usually prove less predictable and less reliable from the point of view of those who appointed them. The best Australian example of this was Justice William Deane, now Governor-General. He was appointed by Malcolm Fraser, a conservative, states’ rights Prime Minister. Deane turned out to be among the most radical and centralist judges the court has seen.
But it is not just about left vs right or centralism vs states rights. It is also about power. Various members of the Keating Government were incensed by the High Court’s implied freedom of speech decision. So Keating changed the balance of the court in two fell swoops. It removed Deane, the court’s strongest implied-rights judge, upstairs. In his place they appointed Bill Gummow, a noted legalist and literalist.
The trouble for Borbidge is that governments will not surrender the power of appointment easily for any job anywhere, let alone a job as important as High Court judge. But he is right in suggesting that the appointment power has been abused by governments of both persuasions. Piddington and Power were the worse examples. But there are others include party members, ministers and people with known sympathies.
However, Borbidge probably picked a poor example with Justice Kirby. If Borbidge read a few of Kirby’s judgments he would see the point: they are rigorously and legalistically argued.
Borbidge’s ideas of referendums to approve judges, 10-year terms and popular recall have problems. But there are grounds for diluting the power of the Federal Government to appoint judges, perhaps with parliamentary scrutiny and veto. But Borbidge’s idea of giving the Commonwealth every second appointment and rotating the alternate appointment through the states would just make the problem worse; state governments are far more cronyistic than the federal government.
But the main muddle in Borbidge’ speech was his assertion that Mabo and Wik undermine the rule of law. To the contrary. When the First Fleet arrived, it came with a body of English law, a fundamental principle of which was equality before the law, for everyone, including indigenous people. It meant everyone could assert their property rights. Mabo and Wik reasserted the rule of law and equality before it after 200 years of abuse of those concepts.
And in any event, the pastoralists won the Wik case. The court said they were entitled to everything stated in their leases to the exclusion of native title. To the extent pastoralists rights existed they were to be preferred to native title right. The judgment upheld pastoralists’ rights and constrained native title. It is difficult to see what Borbidge is complaining about.