Having just returned from five weeks in Europe there were the obvious, hardly surprising highlights of hiking in the Scottish Highlands, speaking at a Thatcher Centre event in London with some of the top UK Tories (who are facing electoral annihilation in my view, and deservedly), and doing an event for the British Free Speech Union debating why it is folly to rely on courts and lawyers to deliver our desired free speech outcomes (available online now).  But there is one unexpected delight that comes with being busy overseas. And it is no small pleasure. You see over the last five weeks I have not had to read any High Court of Australia judgments, not a one. Almost all of these decisions now, and certainly any important ones, have seven or eight hundred footnotes or more – yes, that’s just the footnotes. They likewise contain hundreds and hundreds of paragraphs of the judges’ decision-making reasoning. Much of it looks to me, seriously, as though the invention of word-processing now results in big chunks of fluff being stuffed into judgments that could be – and five or six decades ago were – a lot shorter, sharper, and frankly better.  Having teams of young law clerks who have to be given something to do probably also doesn’t help.

At any rate, forcing oneself to plough through these cases is not yet on the same level as being waterboarded. But it’s getting depressingly close. So imagine my surprise recently to return and see that Justice Steward of our High Court had let rip on the highly implausible and judicially made up implied freedom of political communication.  (For background, recall that Steward was the last appointee by the former nine years of Liberal governments and a pick they finally took seriously after their earlier appointees had been responsible for the Love decision that rewrote our constitution to insert a judicially created exception against deportation for those claiming to be Aborigines based on those well-known constitutional law concepts of ‘otherness’, ‘deeper truths’ and ‘connections [to the land] that are spiritual and metaphysical’.  Such was the outcry that for once the Libs tried to pick an interpretively conservative top judge and settled on Steward.)

So back to this implied freedom. Non-lawyers need to know that it was ‘discovered’ (after nine decades of invisibility) in 1992, just four years after the failed s.128 constitutional referendum aimed at inserting a short, entrenched bill of rights (and by failed I mean slaughtered). Of course many of the top judges then – as with the 2023 Voice referendum – were all in favour of a constitutional change (that inevitably hands big social policymaking powers to the judges). As I said, the referendum lost and yet four years later – on reasoning I have long argued was pathetically weak – the judges ‘found’ (I say ‘made up out of thin air’) this implied freedom. Now it’s claimed to be an implication but as the vast preponderance of philosophers of language will tell you (all sorts of US constitutional law writers too), only purposive human beings can convey meaning. Marks on paper are mere curiosities without the background assumption some human intended to convey meaning using them. We do it either explicitly, in blunt terms, or we do it implicitly (because, say, we think it too obvious to be explicit).  Yet we know for certain the drafters and ratifiers of our constitution did not intend unelected judges to have any sort of bill of rights-type moralised power to strike down statutes. And no majority of latter-day Australian voters, me included, want to give it to them.

So it was ‘discovered’. And it has been twisted and shape-shifted and refined ever since. Arguments about how it applies also take up more and more of the top court’s time. And yet rarely do the top judges use this power, the one ‘discovered’ in the invisible entrails of our constitution that no legitimate law-maker intended them to have. That patent lack of legitimacy (which distinguishes Australia from the US and Canada where judges were explicitly given undemocratic powers) in my view limits the judges’ ability to use this thing they made up too often. So in over thirty years it’s been used to strike down or invalidate a statute under a dozen times. Yet it has to be argued in near on all constitutional cases now.  Oh, and few people (even lawyers) realise that since the case in which the implied freedom was ‘discovered’ it has almost always only been used to strike down Liberal governments’ legislation. Almost never Labor’s legislation. So it is hardly used. When used, it’s almost always against the Libs. And the basis for asserting it actually exists is laughably implausible.

And yet for decades barely a peep from any High Court Justice about this patent lack of legitimacy. Well, until I got back from Scotland and read a couple of recent cases.  The more recent of those was Ravbar and Justice Steward rightfully let rip. You see in the course of using this implied freedom the judges have to ask if some attacked statutory provision is reasonable, suitable, proportional, appropriate, legitimate, and more. The judges recently talked of ‘structured proportionality’ but look to have shied away from that bit of sophistry. Here’s the thing. All of these German-inspired (and note that the Germans have a bill of rights, so there too someone else gave the judges this awesome power) tests are plastic and subjective-on-steroids and not at all constraining. What’s reasonable or appropriate or necessary to him isn’t to her (just think about the Voice proposal). Judges decide!

Justice Steward called this out in plain terms in Ravbar last month. The doctrine rests ‘upon insufficiently defined concepts’.  It ‘lacks clarity’ (and so, I would add, undermines the rule of law). It throws into doubt anyone’s ability to know if a law is constitutionally valid. All tests of whether a law is sufficiently justified are made ‘only by reference to a standard measured by judges and no one else’.

Bravo to Justice Steward. He is in effect saying that the Emperor has no clothes. And the other top judges don’t like that one little bit. In the same case the Chief Justice, without mentioning him by name, takes a shot at Justice Steward’s impertinence. (I’d call it bravery.) He says judges have a duty to follow precedent (though he himself didn’t in the same case). He noted that neither party challenged, or sought leave to challenge, the three dozen or so cases in which this implied freedom has been jockeyed about by the top court. But the Chief Justice in my view is wrong here – and let me say that many of the best constitutional law thinkers and philosophers also think he’s wrong. As a judge is your ultimate loyalty to what you honestly believe the constitution means or is it to what past unelected judges have said it means (i.e. to stare decisis)? In private law or questions of statutory interpretation it can be the latter because the legislature can relatively easily pass new laws when it disagrees. Not so with constitutional interpretation. Your loyalty is to the constitution and to all of us Australians not before the Court, whatever the litigants argue. No one should expect a Labor government ever to call into question this implied freedom doctrine, nor the other party relying on it. It’s an incredibly undemocratic ‘discovery’ that enhances raw judicial power and thank God Justice Steward has called it for what it is.