“Newspaper columnist Janet Albrechtsen’s approach to the role of our High Court and her unjustified outrage may damage not only the development of Australian law but also her employer,” says legal affairs columnist HUGH SELBY.
Not content with a misleading attack on one of our High Court Justices, and instead of providing a substantive response to his interesting comments in a conference speech about the political philosophy of the Samuel Griffith Society, The Australian’s columnist Janet Albrechtsen has come back with round two.
This time she has widened her net to attack the High Court Chief Justice Stephen Gageler. You can find it here.
The Chief Justice is, “one of the grand pooh-bahs of the implied freedom (of political communication)”.
His failure to respond to her questions, she says, “raises questions about the court under his watch, none of them flattering, many of them troubling”. She accuses him of “slapping down” another judge and then broadens the brush to turn Justice Robert Beech-Jones’ conference speech into, “trying to shut down views they don’t agree with”.
She claims, without any supporting evidence, that the conference speech, “wasn’t just nutty. It was so inappropriate that many lawyers said it raised the issue of why there is no federal Judicial Commission to hold Beech-Jones to account for his behaviour.”
Such unsupported hyperbole doesn’t advance an argument, but it does mislead.
Hence, there are two purposes in this article. The first is to share some aspects of the work of the High Court and those lawyers who appear in that court.
The second, based on that sharing, is to show how Albrechtsen’s approach to the role of our High Court and her unjustified outrage may damage not only the development of Australian law but also her employer.
How our highest court responds to changing times
The first, insoluble problem, for those such as Albrechtsen and the Samuel Griffith Society – who want to keep the Constitution as a static entity – is that laws (any laws), being created by humans, are bound to be imperfect.
The process of law creation – be it by Parliamentary draughtsmen or judges – can never, ever foresee all the permutations of human conduct and society conditions to which it may be applied.
From this “built-in failure” comes the necessity to have a legal system, with independent decision makers, that has the capacity to enable the system to adapt to the changes as they arise.
Ms Albrechtsen pejoratively calls this “judicial activism” and frames it within some imaginary contest between the parliaments and the courts in which, she says, the High Court is overreaching.
Specifically, she attacks the High Court for developing an implied (but limited) right to express and critique “political communications”.
What an odd target. She, and I, and everyone else who comments upon the behaviour of our political class benefit from that implied right. We don’t have to expect threats of defamation action each time we comment.
Far from being a threat to our democracy, the “implied right” has enhanced democratic debate in this country.
The High Court has also refused to allow that implied right to be abused.
In other words, they are alive to the need for a pragmatic response to emerging claims.
Which takes us to the second insuperable problem for those of like mind with the Society: they want predictability from unpredictable humans. Those decision makers, being judges at every level of the hierarchy, combine their legal knowledge, acumen and experience with their inherited characteristics and their life experience to resolve problems.
Given the variability in humans that each of us experiences every day, we all know that any problem can be tackled in myriad ways.
Objectively, and with the benefit of hindsight, some of those approaches to problem solving work better than others. Which is why the sharing of experience is so useful to improving problem solving in any field.
The approach of our High Court judges to deciding cases with a Constitutional law element is informed by more than a century of legal reasoning by men and women of great talent.
We can be proud of our High Court: they stand ably on the shoulders of some Australian giants in our English-based legal system.
And what they do is to collectively advance our law so that it respects the past and informs the future.
An inevitable consequence of that process is that there are winners and losers. The latter may find it convenient to blame the umpire, but it would be better to look more closely at their own performance.
There’s nothing new in this characterisation. A pillar of our legal system are the authoritative appellate decisions about what the law now means. That adaptability is the genius of the common law.
Contrary to Albrechtsen’s assertions, the High Court can and does “refashion” its earlier decisions where a majority find that is necessary. It’s rare but it happens.
The importance of brilliant advocacy
The judges don’t decide cases alone. Their thinking about, and resolving of the cases brought to the court, is also influenced by the written and spoken skills of the competing advocates.
As in all callings, there are some lawyers who are clearly much better than nearly everyone else. Their ability to define the legal problem, to develop an approach to its solution, to anticipate and rebut other approaches, and then to write and speak about all of that with compelling assurance, and an appreciation of the wants and needs of their judicial audience, leaves the rest of us in awe.
Here is an example. Around a quarter century ago I and some law students were watching two of Australia’s best appellate advocates opposed in the High Court. Justice Mary Gaudron remarked as one of them stood to address the bench: “Ah, Mr Walker, what honeyed words do you have for us today?”
A little later his opponent, Mr Geoffrey Robertson (he of the ABC Hypotheticals, and based in London for many years) was interrupted by Justice William Gummow. His honour asked him a question about a particular legal argument as it might apply in the case before the court.
Mr Robertson looked directly at the judge, and then said without hesitation: “Your Honour, that argument was raised by you in (and he named the case and gave the page reference), but your honour was in the minority.”
The best jury trial advocates take the jurors on a journey, Pied Piper like.
The best appellate lawyers have the knack of presenting their case in a way that attracts and keeps the attention of the appellate judges.
Replacing flexibility with a doctrinaire theory
If you have followed this explanation then you will have grasped that the process of running appellate cases (from determining the grounds of appeal, to the content of the written submissions, and then to what happens at the hearing of the appeal), necessarily engages a rather broad range of possibilities on the part of both the opposing lawyers and the appellate judges.
In the interests of the best results an appellate journey cannot be confined to some constraining theory of one inflexible right way to approach judicial analysis, be that in Constitutional cases or any other appellate cases.
But that inflexibility (I’d call it blinkered) is what some lawyers and media (such as columnist Albrechtsen) are trying to sell us as a better way to decide constitutional issues. I’ve termed it a “creationist approach” to reflect the priority it gives to adhering to past times.
Fortuitously, the recent advances in AI give us useful insights into how such a doctrinaire approach will work.
A formulaic approach can be expressed in software propositions. Therefore, we can remove the pesky element of politically incorrect judges.
In their place we introduce the following process. Upload the competing submissions from the parties, including interveners.
Upload the Constitution. Upload the relevant extracts from the debates that led to the Constitution.
Note that we don’t upload all the cases decided since 1900. They are infected by wrong thinking (that’s what the true believers in their preferred American model claim).
Some inconvenient hurdles such as the evolution of the common law, and the role of decided cases are got rid of.
Maybe there are some judgments that conform – even if they were dissents at the time and rarely cited. They are born again so upload them.
Now upload the formula for the creationist approach to legal problem solving which will instruct AI as to how it is to assess each submission against the Constitution.
Hey presto, we have an outcome. Perfect. No need for judges. No need for that High Court Building either – it can be turned into a museum.
As a nice touch, when published the decision should be formatted so that it looks just like the old Law Reports – difficult to read, no headings, no numbering of paragraphs, no table of contents, no useful opening summary, no index, etcetera.
No room for half measures
Recreating the past can’t be done with half measures. You can’t pick and choose with creationism: it’s all or nothing. As soon as there is any room for deviation all is lost. Heresy is inevitable.
So we work backwards. If this rigid creationist ideology is to guide the end result then we must consider how the writing of submissions will evolve.
First up, the submission writers must have subscribed to the same creationist software so that they can refine what they write to maximise the chances of success. This applies to all the parties.
I wonder how much the annual subscription for that software will be? To ensure purity of approach I expect that only persons approved by a committee of the Samuel Griffith Society will be allowed to buy it.
There was a time when barristers wanting to get silk in NSW would attend the Chief Justice with their fee book.
The Society, given its bent for the “past is good”, might want to do the same with applicants to be software users. They might also check their thinking patterns so that only true believers pass muster.
Control the quality of all the inputs and the consistency of the outputs is better assured. Which is not to say that the outputs will benefit anyone.
When preparing cases there will be endless tweaking of the submissions to achieve ever greater conformity to the pure text of creation.
At which point someone, foolish, exclaims how simple it is supposed to be, how much better than the old ways.
The facts are established from the earlier hearings before this final appeal. What is there to debate about?
Let someone with experience of life and some respect for history take them aside and show them the many versions of the Bible: which one is the most correct? They can’t tell us.
Then let them explain why one approach within any of the major religions is objectively to be preferred to the other approaches – all of which have firm adherents.
If the system has human intervention then variation is inevitable.
As is error. Who is brave enough to claim that the creationist software is perfect, guaranteed free from any possible error?
Be careful what you wish for
If we tie the meaning of our Constitution in the second quarter of this century to what it may have meant at the start of the first quarter of the last century, we should not be surprised if widespread disrespect for our law and those who interpret it is the result.
Take as a topical issue the regulation of the internet. The Constitution’s Section 51(5) permits our Commonwealth Parliament to make laws about, “Postal, telegraphic, telephonic, and other like services”. Those who made our Constitution had no inkling that our world would have an internet.
To argue that “other like services” includes the internet is judicial activism.
With that activism the High Court has said that “other like services” means communications by any electronic means.
Which is why we have an eSafety Commissioner to keep our children safe. However, it follows from the creationist approach that we can’t have a Commonwealth eSafety Commissioner.
Australian media want the social media platforms to pay for their use of Australian media material. If that is to happen, the Commonwealth has to pass laws that are within its Constitutionally given powers.
The Australian has been arguing that Big Tech must pay its fair share to support journalism. An article on June 4 reported on the “News Bargaining Incentive”. This will require the tech giants to pay 2.25 per cent of their Australian gross revenue to be distributed to the news media sector.
News Corp Australasia’s Mr Miller, was quoted as saying: “Meta’s strident opposition to the incentive reveals its readiness to go to extreme lengths to not pay for the content it profits from, combined with deep contempt for Australian law and standards of behaviour.”
Do you think it likely that The Australian or any part of the Murdoch media empire will contend that Commonwealth laws that bring it income should be struck down as not within the thinking of our Constitutional framers?
And if any of the foreign entities that control the social media platforms contests the validity of the Commonwealth laws in our High Court, is it likely that the Murdoch empire will engage lawyers who’d like our Constitution to be interpreted as denying the existence of the internet?
Dear Janet, it’s not wise to bite the hand that feeds you.
Hugh Selby, a former barrister, is the CityNews legal columnist.
Leave a Reply