The Psychology of the High Court: Call for the Valium
Craven, Greg, Review - Institute of Public Affairs
The High Court of Australia has been embroiled in controversy for some time now. How serious is it? Greg Craven explains that it may be very serious indeed.
SOMETHING decidedly odd has happened within Australia's second oldest sport, constitutional politics. Usually a majestic if bloody quadrille between State and federal politicians, occasionally enlivened by some more esoteric spat between executive and legislature, Australian constitutionalism has a new star. Blushing becomingly in the spotlight of constitutional controversy now stands the High Court itself. For the first time, at least in many years, more debate rages over the role and doings of the Court than over the actions of any of the constitutional litigants who come before it.
This is a position of prominence for which the Court, like any aspiring starlet, has had to work hard. Its decision in Mabo, right or wrong, certainly gave the Court an enormous boost as a household name. Far more dramatic in point of constitutional principle, however, has been the Court's discernment of `implied rights' in the Constitution, an eurekan discovery that has pleased left-libertarians as much as it would have amazed the Founding Fathers. Finally, last month's State tax decision saw the Court deal the States a fiscally crippling blow with all the absentminded brutality of a runaway tram.
So the Court now holds centre stage, but this has been achieved at a cost. Politicians who would scarcely before even have heard of the Court now speak of it in tones previously reserved for their most loathed opponents. Otherwise timid academics take courage, and talk of the Court as a threat to democracy. The Court itself receives these criticisms with overt and quite unjudicial irritation. In the midst of this unprecedented angst, it is a fair question to ask-what on earth is going on?
The answer is that we are witnessing a basic change in judicial psychology, of a significance not equalled by anything in the last couple of centuries. Put crudely, the highest officers of our judiciary have decided to become politicians. Not party politicians-that would be too crude. Rather, the High Court has entered the far more subtle and important fields of social and culrural politics, in which contexts some of its members undoubtedly wish to determine the future shape of our country.
Mabo is a good example of this. While critics of the decision are quite wrong to argue that it was constitutionally improper-the Court was, after all, merely deciding an issue of its own common law-Mabo certainly owed little or nothing to legal analysis. It proceeded rather upon a judicial conviction (at least arguably correct) that the tragic social consequences of Aboriginal dispossession would be best dealt with through the adoption of a regime of native title.
The case of implied rights is even clearer, and far more constitutionally troubling. Every sane constitutional lawyer knows that the implied rights purportedly discerned in the Constitution by the High Court are as bogus as a bad toupee. The simplest way of expressing this is that all implications necessarily are based upon intention, and that we know as a matter of absolute historic fact that the Founders never intended the subsistence of any of the rights which have from time to time been ventilated by members of the High Court. Again, the Court has invented these rights not because they are constitutionally plausible, but because it believes them to be socially desirable.
Even the Court's time-honoured sport of dismembering the autonomy of the States may be viewed through this socio-political prism; though in this context, the virtue of novelty hardly can be claimed. The recent State tax decision merely represents another stage in that tortuous process, begun in the Engineers' case, whereby the Court has taken it upon itself the agreeable task of substantially de-federalizing Australia. …