The retirement of Sir Daryl Dawson from the High Court gives the Howard Government its first chance to make a High Court appointment.
Some have seen this as a chance for the Government to change the balance of the court and to turn the tide against activism as seen in Mabo, Wik and the freedom of speech cases. Nonsense.
The first Howard Government appointment to the court will make the court slightly more judicially active. How so?
The fact is that Dawson has been the most judicially conservative judge on the bench for nearly two decades. It will be virtually impossible for the Government to find someone in the same mould among the leaders of the bar and bench in Australia.
On the foreign-affairs power, Dawson has consistently taken the narrowest view of all the judges in every case. He has rejected the view that the power can be used by the Commonwealth to expand into a wide range of legislative areas just because a treaty has been signed _ like the environment; racial discrimination; employment and so on. He insists there must be a genuine foreign-affairs element, though his view has widened slightly over time because as a true legal conservative he has felt bound by the doctrine of precedent and therefore bound to follow at least the base level of previous cases.
On native title, he was in a minority of one against native title in Mabo. But once again in later cases he felt bound to follow the precedent set by his fellow judges and in Wik and the Western Australian challenge to the Native Title Act he acknowledged it now exists as part of Australian common law.
He has been against implying rights into the Constitution. He rejects the idea that the Constitution’s establishment of representative government implies a right to freedom of political communication that would override state defamation laws.
On the common law and judicial law-making, like all judges he acknowledges that judges make law, but that that role is confined only to the use of precedent, reasoning and analogy. He rejects the idea put by most judges in the Mason court that judges faces policy choices and value judgements that they must make in the light of community values or community consensus.
On Australia’s general constitutional position, Dawson continues to hold that sovereignty in Australia arises out of the Imperial Parliament and the Act it passed called the Commonwealth of Australia Constitution Act. All other judges have expressed or acknowledged the view that sovereignty in Australia comes from the people. The difference is more symbolic than practical, but it flows to judicial reasoning when cases arise on individual rights.
It is hard to see the Government getting a replacement with these credentials of conservatism.
The exception for Dawson is criminal law where he has frequently sided with civil-liberties view, but this is of little political or constitutional moment.
Who would be the replacement? Perhaps Keith Mason, NSW Solicitor-General. Or perhaps South Australian Chief Justice John Doyle if the Government is to be seen to give the smaller states a go (though that is a fatuous reason an appointment; Doyle could take the position on legal and intellectual merit).
Doyle would be more legalistic and conservative than most on the present court, but not so much as Dawson. Doyle accepts (indeed, applauds) the role of policy and value judgments in judicial law-making; its just that he would give them a more limited role and thinks it imperative that judges should give very detailed reasons for drawing on them, rather than plucking the choice from the air with a brief or no explanation.
Mason, who must be seen as a leading contender but for the fact he is from NSW and this states-sensitive Government would be silly enough to make that a consideration, is likely to be much stronger on upholding individual rights against Parliament and the Executive than Dawson and indeed stronger than what many in the Howard Government might like.