On May 26 The Institute of Public Affairs’ John Storey discusses with Fred Pawle on ADH TV how the separation of powers is the bedrock of our liberal democracy and that New South Wales Supreme Court Justice Ian Harrison’s intervention into the Voice to Parliament campaign should be of concern to every Australian.
Below is a transcript of the interview.
Fred Pawle:
John, firstly, let’s talk about the separation of powers as a principle. This is the idea that judges and politicians exercise their powers in different ways and neither should influence the other. How old is this principle and how crucial is it to our democracy?
John Storey:
Well, the idea of separate arms of government goes back to the ancient Greeks, that the concept of the separate legislature, judiciary, and executive was formed around the 18th century by the French Jurist de Montesquieu, and that was adopted in the United States Constitution, which was then a role model for the Australian constitution of having separate legislature, judiciary, and executive arms of government.
Fred Pawle:
How crucial is this for our democracy? I mean, are we living in a free and prosperous country because those powers were separated from the start?
John Storey:
It is an absolute bedrock of liberal democracy, in particular the separation and an independent judiciary. That works both ways, that is that the judiciary should be free from influence by the government of the day, and we do that in certain ways, such as tenure, so that they can’t be removed by the whims of a government, but that comes with a quid pro quo that they’re expected to be independent and neutral. And if you think about it, Fred, if you think of a tin pot dictatorship, one of the most common things you’ll hear about is that the dictator will sack the judges and replace them with his mates, sort of thing. It really is a cornerstone of liberal democracy and served us well for hundreds of years.
Fred Pawle:
So how serious is this example? Is this an example today of the separation of powers being compromised, and if so, how serious should we take it?
John Storey:
The thing about the separation of powers is there’s the formal rules in the constitution about what you can and can’t do, but really, like a lot of constitutional law, it’s the conventions, it’s the etiquette, it’s the actual behavior of people that are the framework on which this is built, and there is certain etiquette and understanding that judges do not comment on political matters, active judges who are currently sitting at the bench do not comment on political matters. And in turn there’s an etiquette that the government of the day will tread lightly when criticizing judges and won’t get involved in active court matters. So this is a big deviation from that understanding that judges should be neutral and be seen to be neutral.
Fred Pawle:
Well, I think it’s that last comment that is the most important, seen to be neutral, from the perspective of people like you and I, just ordinary citizens, the biggest concern is should we ever find ourselves in the dock, we want to be confident that the person, the judge ruling over the court, is doing so impartially. And appearances matter, don’t they, John?
John Storey:
Yeah, well maybe a more pertinent example, rather than an individual in the dock, would be if Justice Harrison should find himself on the high court and would be interpreting the power’s, roles, and scope of the voice, which will almost certainly come to the high court in the future at some stage, what confidence would the community have that a justice like Justice Harrison, who’s expressed such overt support for the concept that he seems disgusted by the very idea that someone could be opposed to it, if a judge like that was to rule in respect to some aspect of the constitutional role of the voice, what comfort would the community have that it was a fair decision?
Fred Pawle:
It’s also a little troubling that someone so high in our legal system seems to be disparaging our ability to civilize this country, if you know what I mean. This is meant to be a cornerstone of the civilization that colonized this continent and has brought freedom and prosperity, and yet here he is seeming to side with opinions that undermine that.
John Storey:
One of the great ironies of modern Western culture is that the more privileged people tend to be, the more down they are on their country. The Institute of Public Affairs has actually done polling that asks the question of, is Australia a racist country? And the only underlying trend we could discern is that the higher your degree of education, the more racist you think Australia is. So these are the corporate high-flyers, the legal high-flyers, people in the media and academia are ones that benefit the most from a free prosperous society with rule of law and a great education system, they’re the ones that are most down on our system. It’s a very bizarre conundrum we find ourselves in.
Fred Pawle:
Yeah, I wish I knew, conundrums a good word, I wish I knew why it was happening. Now, can we extrapolate from this that the judiciary is becoming bolder about expressing political opinions?
John Storey:
I think we can. I mean, we should always be careful talking about a single case, but this was a judge who felt… One of the things the media saying is, oh, it was private communication. I almost think that’s worse. And this is a judge who, because of his position, felt entitled to personally contact a member of parliament and chastise him because of his political views. It really is one of the most egregious affronts to the separation of power we’ve had in recent years, but it comes on top of some concerning decisions. There have been a number of court cases recently where judges have inserted blatant political opinions, in particular on the issue of climate change, where they’ve said things such as, “Well, a climate protestor, we’ve got to let them off because they’re experiencing the trauma of climate change.” Or another case where a minister was told he was breaching his duty of care if he approved a coal mine because he owed a duty of care to children to prevent climate change.
I mean, this is the insertion of partisan political opinions into the judicial process, and it is a real concern, and I actually feel that, I mean, this voice is emblematic of it. Look, I went to law school over 20 years ago, and at that time the highest virtue that was instilled to us was our independence and neutrality. A client shouldn’t know what your political views are or what you vote for. Compare that to this voice debate where the bar associations and legal societies are all one by one coming out saying, “We’re for the voice, we’re for the voice.” Where’s the independence? Where’s the neutrality? No wonder judges are feeling empowered to express political opinions from the bench.
Fred Pawle:
Yeah, yeah, well said, these are all very disturbing developments. Do you think we’re heading towards a more active judiciary? We spoke about it earlier, you said we are heading in the direction towards the United States, where judges are chosen for their political persuasions, especially on the Supreme Court. Do you think that’s where we’re heading?
John Storey:
Yes, this has been a trend for several decades now, it can really go back to a line of high court cases where they started implying rights into the Constitution and effectively giving themselves the power to determine whether those rights have been crossed or not. The problem with that is that it really does then come down to the political persuasions of the judge as to which way they’ll go, and this has just been a toxic aspect of the American political system. They’ve got a Bill of Rights with a long list of rights that require interpretation by the courts, and it’s become, there is effectively conservative and liberal judges, and who gets to appoint them has a huge impact on the outcome of constitutional cases. It’s a really ugly aspect of United States politics, I think it’s part of the reason that faith in institutions in the United States is becoming undermined, because their highest, most neutral, what should be the most neutral institution, the Supreme Court, is so partisan.
Now Australia, for most of our history we’ve avoided that, but I think this voice will make it much worse. The interpretation of the voice, it’s very vaguely worded, its exact powers are very unclear. The wording, it’s explicit that parliament, any laws parliament make will be subject to the Constitution, so it will be judges that determine how this thing works in practice in the years and decades ahead. That means the political persuasion of those judges will be crucial, and that means there is a huge incentive by parliament to pick people that they think will be on their side. It’s an ugly, ugly toxic development and we would be wise to avoid it in Australia.
Fred Pawle:
I’d like to get your comment on another way that judicial bodies are becoming political, possibly through the back door, and that is judicial bodies like, for example, the Human Rights Commission, which there’s one in every state and there’s one federal, and other bodies like, for example, the Australian Health Practitioner’s Regulation Agency. Now John, these organizations have the power, and they use the power, I’ve got to add, to ruin lives and careers, but they’re not governed by the separation of powers. Is this an equally disturbing development?
John Storey:
Yes, yes it is. I mean, these bodies, they’ve got something in common. They start off trying to address a community problem, some specific need that is generally accepted. They then get infiltrated with activists and they’re subject to the legal community group think, which inevitably pushes them down a certain path. That’s why all these institutions and law firms, and the lawyers that run these government bodies, they all get on board with the climate change, they all get on board with diversity, equity, inclusion, they all say yes to the voice, and that’s why they end up being, effectively, tools for one side of politics and used against those that disagree.
Fred Pawle:
Yeah, it’s a toxic mix of bureaucratic power and group think. John Storey, thanks so much for your time.
This transcript with John Storey talking on Fred Pawle from 26 May 2023 has been edited for clarity.
