We need a values-based framework for an Australian Legal Conservatism, writes IPA Research Director Morgan Begg.
Australia’s legal traditions are in crisis. Australia was founded on the idea of constitutional government, the division of powers, and the protection of the individual against the excesses of State power. But in 2024, Australia has just exited a period in which the unprecedented use and abuse of State power was exercised against the Australian people without any intervention from the courts. Over recent decades, every nook and cranny of the Constitution has been transformed beyond anything its founders would have foreseen. And law schools are producing graduates—the next generation of lawyers and judges—steeped in social justice doctrines, and ignorant of the virtues on which Australia was founded.
Conservative-minded people have been adept at diagnosing the problem of Australia’s courts and identifying the need for Australian governments to appoint better judges. But this raises the inevitable question: what qualities or principles held by a judge would address the recognised problem of legal progressivism?
The reality is that the antithesis of legal progressivism—legal conservatism—has not been sufficiently developed in Australia to answer this question.
Indeed, in a speech to the Samuel Griffith Society conference in 2019, High Court Justice Geoffrey Nettle expounded on the legal conservatism of former Chief Justice of the High Court Sir Harry Gibbs. While this is a topic for which there is much fertile ground, the speech itself was light on the topic of the conservatism of Sir Harry. Much of the speech focussed on the role the judge played in curtailing the right of Australians to appeal to the Privy Council. The merits of these developments can be debated; but it must be said that the changes were not a worthy example of Sir Harry’s legal conservatism. For one thing, the Australian Constitution explicitly foresees appeals to the Privy Council as a feature of Australia’s judicial structure, and closing the door on this appeals path meant something was being lost, not conserved. Moreover, making the High Court the last court of appeal in Australia’s judicial structure has not led to conservative decisions from the bench. So, with the benefit of hindsight, we can conclude that even on an outcomes metric, the reforms were not a win for conservatives.
That a sitting High Court judge could fail to represent legal conservatism accurately highlights how much work needs to be done by conservatives in the legal field if they are to develop their own coherent vision and doctrine to counteract the legal progressivism that dominates the profession.
JUDICIAL ACTIVISM
Australia’s judicial class is fundamentally activist, but it is an activism dressed in the type of legal language that has the appearance of law but really disguises the exercise of arbitrary and discretionary decision making which allows courts to intervene when they are not wanted, and to remove themselves when they are needed.
University of Queensland law professor James Allan summarised the problem well, in terms of proportionality analysis, whereby judges create an unendingly flexible standard that only they themselves can determine has been met. And so it is that you can have a body of decisions from the High Court which says simultaneously that banning political donations over a certain amount from trade unions breaches the implied constitutional right of political communication necessary for a democracy, and a separate judgement finding a law that limited donations from property developers was not only valid but good for democracy.
Recent years have shown that judicial activism has not been expressed in terms of intervention but, rather, a failure to intervene when the argument for intervention was compelling. To find examples of this, one need only consider the numerous challenges to public health rules during the pandemic. Not one court made a decision that went against government public health orders. Consider the case of Loielo v Giles [2020] VSC 722 in Victoria where the Victorian Supreme Court held that the test of whether a public health official’s decision to impose a curfew was “reasonably necessary to eliminate or reduce a public health risk” as required by the State public health legislation was at least in part answered by the public health official making the rule. It was a stunning abdication of the court’s responsibility to act as a check on the power of the executive in Victoria at a time when it was exercising unprecedented and draconian powers.
All judges make decisions based on values.
The High Court has made an artform of using and abusing legal language to make its decisions appear well reasoned. However, in Love v the Commonwealth; Thoms v the Commonwealth [2020] HCA 3, the court for the most part abandoned the pretence of reason when it held that two foreign citizens, who had Aboriginal ancestry and had committed crimes in Australia, were not able to be deported like any other non-citizen criminals because their racial identity placed them in a quantum state of simultaneously being non-citizens and non-aliens. The claims by Justices Gordon and Edelman that Indigenous Australians had timeless “metaphysical ties” to the Australian continent is as close as this country has ever got to having a Flora and Fauna Act.
Despite the abstruse legal language used by many judges, all judges make decisions based on values; conservatives must either embrace a conservative conception of the law or abandon all values and, in so doing, reinforce the progressive status quo.
LITERALISM
Interpreting legal text according to its plain meaning is literalism. This, put crudely, is the attitude that the Constitution is what it says it is. This approach has the benefit of simplicity but is susceptible to misuse. Literalism was the method Justice Isaacs used in the case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54, commonly known as the Engineers’ Case, to finally rid Australia of reserved State powers. The majority judgement declared that the Constitution ought to be interpreted so as to give it its ‘natural’ and ‘ordinary’ meaning, and that the constitutional text is paramount. One consequence was that case law regarding Australian federalism became entirely divorced from American case law to which much consideration was given while Australia’s federal system was being devised.
Literalism is based on the dubious premise that words can be understood without any bias or subjectivity. But what it really offers is a more polite version of ‘living tree’ constitutionalism, something that all conservatives should reject. This was highlighted in recent years during the so-called citizenship saga, where the High Court disqualified five federal parliamentarians on the basis that they met the constitutional definition under section 44(1) of being a “subject or a citizen of a foreign power” and thus were incapable of sitting in either house of parliament.
The High Court found that this imposed a strict requirement on all MPs to be clear of any potential hint of foreign allegiance, including an MP who was not even aware of their supposed foreign citizenship. Perhaps most absurdly, Barnaby Joyce, the member for New England, was deemed to have a foreign allegiance (in this case to New Zealand). This was despite him being born in Australia, and despite his New Zealand-born father moving to Australia prior to New Zealand even legislating its own citizenship. By adopting a literalist approach, the High Court followed the precedent in the case of Sykes v Cleary [1992] HCA 60, the effect of which is that citizenship is interpreted according to its present understanding. It completely disregarded the fact that the constitutional provision was drafted at a time when concepts such as Australian citizenship and dual citizenship were not yet imagined. Further, it disregarded documented evidence that the constitutional drafters contemplated section 44 containing a requirement that a person exercise an active allegiance to a foreign power and not be merely a passive recipient of it.
What this case highlighted was how literalism enables judges to read words ‘as they are’, so that the meaning of the words changes over time. In other words, it is the imposition of ‘living tree’ constitutionalism.
LEGALISM
Another values-neutral approach is legalism or ‘black-letter law’. Sir Owen Dixon is rightly regarded as one of Australia’s most eminent jurists and his assertion that the common law was the ultimate constitutional foundation ought to be taken seriously. But it is also not the whole solution. The evidence would show now that legalism did not turn the tide on judicial activism; nor has it inspired legal conservatism. One of the key elements of legalism, that of strict deference to precedent, clearly runs into trouble if the precedent you are deferring to has no merit.
Even Sir Owen reinforced judgements such as the Engineers’ Case, as well as another Isaacs’ innovation to supercharge section 109 of the Australian Constitution by making fully authoritative the ‘cover the field’ test. What this means is that section 109, which provides that Commonwealth laws prevail over State laws to the extent of the inconsistency, would apply even in cases of mere indirect inconsistency. So, as long as the Commonwealth intended to have exclusive control over a particular policy area, the States would be excluded even if State and federal laws were capable of operating concurrently.
Legal conservatives need to adopt a values-based framework.
Legalism also imposes qualities of restraint on judges. Judicial restraint is a fine idea for those who prefer laws to be made by parliaments, but the reality is not so simple. A status quo approach merely allows prior activism to persist and become entrenched. A reliance on precedent is—in theory—a good premise, but only if the precedent is worth abiding by. Over a century’s worth of decisions that depart from the founding principles of Australia have become like legal tumours which must be cut out to restore the body to health. In other words, legal conservatives need to reject any insinuation that overturning precedent is conservative judicial activism. It is restoration, and it is necessary.
Rather than a values-free framework, legal conservatives need to adopt a values-based framework. And fortunately, conservative values are fully compatible with common law traditions and Australia’s constitutional founding. This approach should contain four principles that are consistent with rule-of-law principles which limit the centralisation of power and protect the individual against the power of the state.
ORIGINALISM
The first principle is originalism. If we are to resurrect the legal traditions of Australia’s founding, then the first step is to bring back to life what those responsible for Australia’s founding believed. This encompasses the intentions of those who drafted the Constitution as revealed through the records of the constitutional conventions and other supporting material, as well as the public understanding of the terms used in the Constitution. After all, it was the people of the colonies who endorsed the Constitution at colonial referendums.
Non-originalism is in essence blatant judicial supremacy because it presumes that a law or the Constitution actually has no meaning until a judge gives it meaning, which he or she is free to do, as Professor Jeffrey Goldsworthy has noted, according to “contemporary values and governmental needs”. This way of thinking undermines the rule of law by conferring broad discretion on judges to reshape the law and is, therefore, undemocratic. The Australian Constitution is clear that the only valid method of constitutional change is by a section 128 referendum—not by judicial elites through the back door.
Originalism is very important, but it is not comprehensive. Originalism would not have accomplished much during Covid lockdowns; nor is it able to constrain regulators who are given a broad grant of power by the legislature.
PRESUMPTION AGAINST EXECUTIVE POWER
Another principle that legal conservatives should embrace is a presumption against executive power. The executive branch of the government is responsible for administering the King’s laws, but it is intrinsic to the rule of law that the executive does not have free rein to exercise arbitrary power.
It has been said that Australian courts have not adopted a formal doctrine of deference to the executive, unlike the US Supreme Court’s adoption of the Chevron doctrine, which means a court will defer to a regulatory agency’s ‘reasonable interpretation’ of an ambiguous regulation.
Arguably, however, Australia’s Hickman doctrine is directed towards a similar purpose, although the extent of its application is somewhat unclear.
At the very least, Australian courts have adopted a position of quasi-formal deference to the executive. In Athavle v New South Wales [2021] FCA 1075, the Federal Court said that in matters of public policy, “those choices require a balance between competing interests … it is a matter for the executive and not the Court to strike that balance”. This reasoning was affirmed during the Covid period by the Supreme Court of Western Australia rejecting a challenge to the exercise of public health emergency powers.
Presumption should favour the individual.
A conservative approach should actively and forthrightly apply tests of strict scrutiny on the exercise of executive power and require the government to justify that the rule being enforced is validly legislated and conferred.
FAVOUR THE INDIVIDUAL
The next principle of legal conservatism is the presumption in favour of the individual. Where a dispute involves individuals and public bodies, a court should always prefer an interpretation that benefits the individual. This is consistent with common law presumptions and the principle of legality, that provides that legislation drafted in ambiguous or general terms is not intended to deprive a person of their common law rights and liberties. But while courts have often quoted the principle of legality, its application has been found wanting. As former chief justice Murray Gleeson noted, “modern legislatures regularly enact laws that take away or modify common law rights” and that the utility of the principle “will vary with the context in which it is applied”. A legal conservative should adopt a more assertive view of common law rights.
One can observe the decline in consideration of the individual in High Court decisions over the years. The Constitution’s mandate that trade and intercourse between the States be “absolutely free” under section 92 was once regarded as an individual rights provision laying down a general rule of economic freedom. But this section has been hollowed out to such an extent that a Western Australian law that fully closed the State border to all other Australians was deemed valid.
This principle could also be demonstrated in other areas of the law. The dismissal of Dr Peter Ridd by James Cook University for questioning the quality of the science that asserts climate change was killing the Great Barrier Reef was a case in which Dr Ridd’s contractual right to intellectual freedom was said to be in conflict with the university’s code of conduct, which requires university staff not to harm the reputation of the university (among other things).
On appeal, the High Court unanimously held that JCU’s initial disciplinary proceedings brought against Dr Ridd were unlawful, but the university’s order for Dr Ridd to keep confidential the unlawful proceedings brought against him were valid and so was his dismissal. This, in itself, was absurd. Doubly absurd was the ambiguity regarding whether the confidentiality provisions in the employment contract could even apply in Dr Ridd’s situation. As I write in the book Peter Ridd and the Case for Academic Freedom (IPA, 2023), the content and structure of Dr Ridd’s employment, which contained rights of natural justice, should have led the court to decide that the confidentiality provisions were for the benefit of individuals who were subject to disciplinary proceedings, not for the benefit of the university in targeting a staff member.
Prior to the October referendum on the Indigenous Voice to Parliament, a challenge was raised against the Australian Electoral Commission’s intention to count ticks on ballot papers as valid ‘Yes’ votes, but crosses as invalid votes. The AEC’s position, outlined in Babet v Electoral Commissioner [2023] FCA 1126, defied logic. Its position, intentionally or unintentionally, would have favoured the ‘Yes’ case at the referendum. Instead of endorsing the AEC’s view, the Federal Court might have instead considered that it is the role of voters to decide electoral outcomes. As Sir Samuel Griffith said in a 1904 case, if a court is called upon “to use the extremist technicality in construction, I think we ought to use it in favour of the franchise rather than against it”.
FAVOUR THE STATES
Any conservative approach to constitutional law must incorporate a preference in favour of the States in cases where the powers of the Commonwealth and the States are in conflict. The framers of the Constitution did not adopt a federal model for the sake of it. The framers were men of deep thought who gave serious consideration to the question of how the new Commonwealth should be constituted. We know that on the table at every constitutional convention was a copy of James Bryce’s The American Commonwealth (1888), which was studied extensively by the delegates. This is important because Bryce’s work lays out the benefits of the American federal model that the framers ultimately adopted, including the concepts of states as laboratories of democracy and competitive federalism.
Legal conservatives must reject any insinuation that the major assumptions underlying Australia’s centralism should be accepted. Sections 90 – Exclusive power over customs, excise, and bounties; 96 – Financial assistance to States; and 109 – Inconsistency of laws, were the big three provisions that have arguably enabled the most dramatic centralisation of power in the federal government.
Today, courts could restore Samuel Griffith’s (pictured below) original formulation of the section 90 duty of excise, which the Commonwealth has an exclusive power to impose, as “a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced or manufactured, and not in the sense of a direct or personal tax” (Griffith CJ in Peterswald v Bartley (1904) 1 CLR 497, 509). This would restore a considerable revenue-raising capacity of the States and go some way to addressing Australia’s vertical fiscal imbalance.
Courts could wind back the reach of section 96 by referring to the constitutional debates at federation and the assertion that the power to make grants to the States was intended only as an emergency provision, not a means of achieving the Commonwealth’s day-to-day governmental objectives. At the very least, the scope of section 96-tied grants should be constrained to only policy matters connected to Commonwealth powers as defined under section 51.
The legal profession must not shy away from this debate.
Jurists could even take on section 109, which is rightly despised by federalists for giving the court a licence to invalidate State laws which are deemed to be inconsistent with Commonwealth laws. Scrapping the ‘cover the field’ test, so that section 109 cannot be used to operate with respect to indirect inconsistencies, would dramatically constrain its reach. With a broader curtailment of the heads of powers and provisions such as sections 90 and 96 of the Constitution, this could revitalise a federalist jurisprudence.
What I have outlined here is but one framework for legal conservatism. It is my hope that the legal profession will not shy away from this debate. Only by putting forward a manifesto for legal conservatism can we begin to turn the tide of judicial radicalism and restore the traditions on which Australia was founded.
This article was adapted from an address by IPA Research Director Morgan Begg at the 34th national conference of the Samuel Griffith Society in May 2024.
This article from the Summer 2024 edition of the IPA Review is written by IPA Research Director Morgan Begg.
