It is a great shame that Justice Michael Kirby of the Australian High Court got up before an international audience to condemn a range of academics and present and former Australian politicians over their comments on the Australian judiciary.
The shame, of course, is not that of Justice Kirby, but in the fact that things have come to pass in Australia that a High Court judge has seen it necessary to launch such a defence of the judiciary. The shame is that hitherto the judiciary has been able to remain appropriately silent in the face of attack for two reasons. The first is that, hitherto, attacks on the judicial arm of government have been of an intellectual nature. Disagreements have been over the reasoning or substance of decisions, not over imputed motives for judicial decisions or on the quality and personality of the people who make them. The second is that, hitherto, when the fortunately rare attacks have been made on the personality or motive of judges, they have been appropriately defended by the people who should defend them — political leaders and, more particularly, the Attorney-General.
Alas, that has not been the case in the past couple of years.
The court and its judges have come under sustained attack by people in positions of leadership. There is nothing wrong with a sustained intellectual attack upon court judgments. However, there is much wrong with some of the hyperbole coming from the mouths and pens from some of these people.
The disquieting elements of the attacks are threefold. They have emerged most vociferously and uniquely after the two landmark cases on Aboriginal land rights. That indicates an undercurrent of racism in the attacks. Hitherto, vigorous disagreement with High Court judgments on issues of states rights and the like have usually been couched in more restrained language and have centred on the judgment and their outcome, not on the personality of the judges themselves.
The response, for example, of then Tasmanian Premier Robin Gray to the Tasmanian Dams decision in 1983 is in marked contrast with some of the reaction by senior politicians to the Mabo and Wik decisions. Mr Gray expressed his disappointment; his view that the court was wrong; and that it was a sad day for states rights and not what the Founding Fathers had had in mind at federation. Agree with him or not, it was reasonable criticism from a man in his position at the time.
Compare that with Queensland Premier Rob Borbidge calling the judges “”pathetic . . . self-appointed king and queens” and former Senator Graham Richardson calling them “”basket-weavers”. Professor Greg Graven said they were “”gripped in a mania for progressivism” and “”purveyors of intellectual dishonesty”. The Australian Financial Review called them “”a professional labour cartel”.
These charges are unwelcome, unworthy and untrue. It seems apparent that these critics have not read the judgments. One may not like the conclusions of some of the judgments in any of the cases heard by the High Court in the past decade, but an honest critic could not accuse any of the judges of intellectual dishonesty, being pathetic, self-appointed or basket-weavers (even in the benign sense of doing simple work to little end).
Any honest reading of these judgments from the extremes of Justice Daryl Dawson’s lone rejection of native title to Justice John Toohey’s most generous interpretation of it, reveal people who have taken on immensely difficult tasks with rigour and diligence. Writing scores of pages of well-reasoned judgment cannot be properly described as basket-weaving.
There is room for honest, well-argued disagreement with the judges’ judgments as the many differences within the court itself testify. But it is time for people in positions of power and influence to stop personal attacks and exaggerated attacks on the court. These attacks will erode confidence in the rule of law, equality before the law and the courts as the prime mechanism in society for resolving disputes. These sort of attacks can lead to a belief in some people that they can take the law into their own hands, because, after all, political leaders say the courts lack integrity. It is not exaggerating to say that these sort of attacks can contribute to an attitude that violence is a better way to resolve disputes. A decade ago Australia saw violent (and one fatal) attacks on members of the judiciary and their families.
The judiciary is the thin horsehair line between a civilised society based on the rule of law and a society corrupted by money, power, influence or violence.
The role of the federal Attorney-General, Daryl Williams, has been exceptionally weak. The Attorney-General should defend judges and the courts against ill-informed personal attack. The reason is because if he or she does not, it leaves only the judges themselves to defend themselves. If judges have to do this, it threatens their position as being generally above the fray. And once again that is inimical to the rule of law. Mr Williams, it is true, has not stooped to ill-informed attacks on judges himself. However, he has allowed his political colleagues to go to far and defended them publicly, instead of having the courage to exercise some of the independence from politics that his office occasionally demands and dissociating himself from his colleagues.
Another Attorney-General who should no better is Queensland’s Denver Beanland. He said the trend of criticism would continue if the courts got involved in “”hot political issues”. This shows an alarming ignorance of the role of the High Court in the Australian system. It is the precisely the forum for the resolution of some of the most important political disputes in the nation. The Constitution gives it the role of defining the parameters of power of the states and the commonwealth and to interpret the Constitution itself.