What the High Court justice did in his talk was to pull aside the curtain emblazoned with Sir Samuel Griffith’s name and reveal the sad spectacle on the other side. The response was strident and personal, writes legal columnist HUGH SELBY.

Anyone committed to fair play would want to play the ball and not the man. That’s what we expect of our sports people.

That’s what we expect, too, when important issues are being debated: that the focus will be on examining the issue and the facts, not on smearing the presenter.

On the other hand, when winning, not fair play, is the be all and end all, then playing the man, shooting the messenger, using the ad hominem argument is attractive to those who know that the facts, the message, the content are against them.

Any advocate learns early that attacking an opponent’s witness’ credibility, truthfulness, motives is a powerful tool, especially when the facts favour the opposition.

The “credibility attack” in cross-examination is so powerful, and so potentially misleading, that our evidence law puts fetters on it. Judges will limit its use.

Outside of the courtroom, in the marketplace of ideas, there is no such powerful “referee”. That’s why we are confronted, from time to time, by those that take aim at those who expose false propaganda, and arguments that lack substance. 

It’s an age-old routine. Even Socrates (470BC to 399BC) is claimed to have said: “When the debate is lost, insults become the loser’s tool.” 

And insults can work wonders, especially when left uncorrected.

Which explains why this piece takes a return aim at a recent piece by columnist Janet Albrechtsen in The Australian.

The title, no doubt much admired by its coiner, is “Low-rent rant by a high court judge”. You can find it here. 

That’s a brave heading to use, the more so when the target is Robert Beech-Jones, a judge whose reputation for the judicial craft is the envy of we lesser lawyer mortals.

The breadth of the research that underlies his comments and his reasoning, to much of which Albrechtsen takes strong exception (available here), being his Griffith Country speech, given in Townsville in mid-May to a gathering of lawyers.

Even if you have no intention of reading the speech (despite it being well written and with a light touch) do take the time to admire first hand the number and content of its authoritative footnotes.

Then ask yourself these questions; first, what is “low rent” about this material? Second, “where is the rant?”

You might find, as I did, that “rant” better describes Albrechtsen’s article which, by the way, doesn’t take the reader to the source material for good reason: not a word of explanation by her, legal as distinct from political, as to how we’d be better off adopting the Samuel Griffith Society’s preferred methods to the tried and true that we use now in our courts and which the judge explains.

Once the reader goes to the judge’s text her ad hominem attack on him is exposed for all to see: it’s not pretty.

The misnamed Society

Her purpose is to try to restore credibility to a collective of lawyers (practitioners, academics, students) who want to upend both well tried methods of Australian Constitutional interpretation and our methods of choosing judges.

These Australian lawyers want us (side thought: perhaps not we common “us”, but rather their preferred judges and politicians) to adopt notions held by those American lawyers who are forever mentally stuck with the law and legal thought as it was at the time of the acceptance of their Constitution in 1788, the very same year that the British colony in NSW was established.

They are the legal system’s equivalent of religious creationists: as it was so it shall ever be. To them the notion of evolution, of changing in response to changed circumstances is an abomination.

This collective has a name, the Samuel Griffith Society, a clever misappropriation of the first Chief Justice of our High Court, creator of a renowned, and widely used, Criminal Code, and onetime Premier of Queensland. 

His approach to law making and the High Court’s interpretative work with our Constitution must be anathema to the Society membership. What irony. Didn’t they check his background?

How galling to have it pointed out, by a present Justice of our High Court, that their “hero” was Australia’s first proponent of a legislated bill of rights and that his proposal was more radical than anything seen since.

Worse, much worse, was that while Sir Samuel was not Marxist, he was, “more than Marx curious; Marx adjacent if you like”.

Brings to mind those sad occasions when the only way to save a brand after a disaster is to rebrand it. But what would be a better name, one that reflected their willingness to replace our home grown judicial craft with an approach that has so dramatically failed contemporary American democracy by empowering their Donnie to do as he likes, when he likes, and wherever on the world stage he wishes to bring tragedy?

Putting that idle thought to one side (it being their problem not ours), the evolution of what our Constitution means can be seen in the willingness of members of the High Court to respond to the society of which they too are members.

Sir Samuel wrote in 1906 that, “the Constitution was intended to regulate the future relations of the Federal and State Government, not only with regard to then existing circumstances, but also with regard to such changed conditions as the progress of events might bring about”. So he would not agree with the Society that uses his name. 

How each judge responds when deciding a particular case before the High Court reflects their assessment of what, if any, development in the law is necessary. For that reason, in any case there may be a range of decisions that reflect individual perspectives. Those perspectives are then reflected in the reasoning process.

The notion that there is one “unifying theory” that judges should follow is not the Australian way. There is, bluntly, no need for it.

Consider the implications that flow from the text of the Constitution. One such implication is the freedom of expression about political matters. That implication is “alive” today. It is not, as those with an American focus might think, unrestrained in its reach. Where the circumstances demand there can be constraints.

As it happens, Sir Samuel believed in a couple of implications that were rejected by the High Court shortly after his time as Chief Justice.

Rejection of past ideas, as much as adoption of emerging ideas, is evolutionary.

Separate from such stand-alone implications are the case-by-case decisions that over time radically change our governance. A good example is our industrial relations system in which the federal mechanisms now dominate. 

Section 51(35) of the Constitution provides for the Commonwealth to make laws for the conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. For decades this provision meant that most employment condition matters were handled in state industrial bodies. That’s now legal history and we are all the better for it.

Dressing up the perverse

Research for the judge’s mid-May paper included an examination of Society Conference papers over many years. There is an analysis of some repeat topics and the views expressed; for example, they bemoaned land rights being recognised for indigenous Australians.

They would like to be more influential in the selection of judges, seeking to ensure, a la the American model, that potential judges are screened for their correct thinking. They want “court stacking”, the process that has assisted Trump to have near carte blanche. That is the Society’s notion of progress.

What the High Court justice did in his talk was to pull aside the curtain emblazoned with Sir Samuel’s name and reveal the sad spectacle on the other side. 

How dare he?

So how did columnist Albrechtsen respond? She accuses him of cheap shots, whipping up a moral panic, more emotion than logic, unhinged attacks, profoundly inappropriate for a sitting judge, incendiary, grabbing at strawmen only to rip them down, wicked, the paper is a like a job application to be Chief Justice, a low-rent argument quality, being intemperate, embarrassing the High Court, being unprofessional, threatening law students, an emotional rant. 

Remember the wisdom of Socrates.

In this article we’ve done something Albrechtsen chooses not to do: provided you with the links to both the judge’s article and her article. 

Read and be better informed about how easy it is to mislead.

It’s an over-used ploy in Albrechtsen’s attack pieces about judges who dare to speak on issues of importance to our legal system, such as the ACT and NSW Chief Justices (about which I have written in CityNews), to allege that unnamed senior people in the profession (silks and senior silks, no less) have expressed their concerns to her. 

Senior, respected members of the legal profession have no good reason to be anonymous, not in this country.

In her latest piece she even tries to tar the High Court Chief Justice with speculation. Oh, how tawdry, Janet.

Writing about how the speech affected the Society she quotes its newly installed executive director about, for example, “why constitutional conservatism is so integral”. That’s an utterance without meaning.

Arrant nonsense is this assertion by the same newbie: “When you have a body like the Society critiquing High Court decisions, it’s so uncomfortable to the court that we have one of its judges coming out and slamming the work of the society.”

It all falls into place when we are told that it’s all part of “the culture wars”, that every other legal body is “on the left”.

It’s not true that judges should be seen, but not heard, outside their courtrooms. It’s a matter of choice by each judge. Albrechtsen asserts that more than 40 sitting and former judges have spoken at Society functions. So what distresses her, and those looking to upend our traditions, is not judges who speak in public, but judges who criticise in public.

Albrechtsen exaggerates when she asserts that court stacking is a common pursuit of both sides of Australian politics. It is true that from time to time judicial appointments by both sides reflect favours over merit. T’was ever thus, and ever will be. But, thankfully, it is not true that, “court stacking is a common pursuit”.

The Justice expressed the view that the Society is a political organisation. That view as to its recent activities (which may have been different in its earlier years) is supported by the material in his speech. Especially troubling, because young minds might be seduced by it, is Albrechtsen’s claim that his view, “is factually incorrect. A devotion to constitutional originalism is not political. It is a philosophy about judicial method not about politics”.

Quite so, but missing his point. I am reminded that to have lust in your heart is not the same as satisfying it. The purpose of the Society is to increase the adherents to its foreign philosophy and then achieve its implementation within our legal and political spaces. It is political through and through.

Hugh Selby, a former barrister, is the CityNews legal affairs columnist.