The High Court has been flexing its judicial muscle recently, most recently this week.
So what’s new? Courts are supposed to flex judicial muscle.
The newness in the approach of the late 1990s is an insistence on constitutional purity, almost to hell with the consequences, and a more rigorous view of the separation of powers with a more powerful role for the High Court.
On constitutional purity we have had the recent cross-vesting case and the states’ excise cases. On judicial power we have had this week’s case on One Nation’s Senate seat and we are about to get a ruling on David Eastman’s challenge to the appointment of the judge who tried his case. Earlier we had some immigration cases.
Taken together, these cases are pointing to a more rigid and rigorous view of the court’s role in the constitutional scheme of things. Hitherto, the court was more willing to be practical. It accepted that on occasions political, administrative and legal practices had grown up and had to be tolerated for the sake of convenience. No more.
The High Court used to tolerate state taxes on alcohol, tobacco and petrol because federal-state relations had grown up on that basis. Last year it swept them away. It required huge legislative changes with the Commonwealth collecting the taxes on the states’ behalf. The court refused to stay its order for a short time while the matter could be fixed.
A fortnight ago the court struck down a decade of jurisdictional peace between federal and state courts that had been agreed at all levels of government and by all parties.
The court’s new toughness was best put by Justice Michael McHugh in the cross-vesting case.
He said: “”It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant’s point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing. . . . If Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.
“”However, the judiciary has no power to amend or modernise the Constitution to give effect to what the judges think is in the public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.””
McHugh has carved out a legislative no-go area. The states and the Commonwealth (presumably representing all Australians) want state courts to refer matters to federal courts when the main issue is federal even though some state issues are involved. McHugh says the Constitution will not allow it.
The immigration cases also carve out a legislative no-go area. The federal Government and Parliament have been trying for years to stop snout-troughing by lawyers in the immigration area. The Government has been trying to put paid to this idea that everyone who arrives on a boat or jumbo jet without a passport is entitled to a full judicially supervised process to determine whether they can stay. The High Court’s response is: Sure, the Parliament can take away the Federal Court’s role, but it cannot take away the High Court’s role which is determined by the Constitution and which enables the High Court to have a role in every case, however impractical and unworkable it would become. It was almost a threat by the judicial arm to the legislative arm that the High Court would be made unworkable by an overload of immigration cases if the legislature dared put an end to snout-troughing by the legal-judicial arm.
Then we have the Heather Hill case. Heather Hill is the One Nation candidate who got a quota in her own right at the last election. She was an Australian citizen at the time of election, though born in Britain. The majority in the High Court worked through the rigidities of the Constitution. It found that Mrs Hill had not renounced her British citizenship because she had travelled on a UK passport. That meant she was under “”acknowledgment of allegiance to a foreign power”, according to the Constitution, and so disqualified.
In the Hill case, the court also made it clear that judges, not Parliament, would determine eligibility on Members of Parliament. So Warren Entsch can get little joy out of the Government’s success motion in the House a fortnight ago. That motion declared Entsch had no fatal pecuniary interest.
In the next month or so, the court will bring down its decision in the Eastman case. It is possible that the rigidities of the Constitution will lead to the ghastly result that a dozen people convicted in the ACT of horrible crimes should be set free because the judges at their trials were not appointed correctly.
Now, I don’t mind a little constitutional rigour. At least we know where we are. But constitutional rigour leads to absurd results like elected Australian citizens losing their parliamentary seats; murderers going free; the tax system in upheaval; people from overseas clogging the courts; and litigants forced to go to two court to hear one case.
That being the case, we will have to respond to this new environment. We will have to get used to changing our Constitution a little more often than eight times a century.
In the past a more flexible High Court was willing to develop things when the legislature lagged, even in the face of what seemed constitutional obstacles: native title, environmental law, human rights, corporations law and so on. Now the court has changed.
The correction will have to come from where it should come: the people.
The trouble is that the referendum process has been so debauched by politicians over the past century that the people do not trust them to put sensible changes. They usually put up silly proposals that involve grabs for power by politicians.
If the process had not been so misused in the past, it would have been a simple matter to put several more questions in November’s referendum to fix the recent anomalies and the one pending. Yes cross-vest; yes replace the “”foreign power” test with one of Australian citizenship; yes allow states to tax alcohol, tobacco and petrol; and yes allow temporary judges to sit in the ACT.
Maybe we should welcome the absurd outcomes of these recent cases as a catalyst for consitutional change by the people. Hitherto we have had it by judicial stealth.