Culture catcher: 3

Janet Albrechtsen, "Inside judges’ secret world” in the Weekend Australian, 14 July, 2007

A  new book [Inside the Mason Court Revolution] reads like a transcript of bugged conversations from a sweaty judicial locker room. Stripped of their genteel judicial garb, Australia’s most senior judges speak freely and at times savagely about their fellow judges, the judicial role in general, the role of the High Court in particular and their relationship with politicians and politics. Their candour is unprecedented.

The book opens with a sample of how some of our senior appellate judges describe this most activist era of the High Court.

The High Court was ‘hyperactive’, ‘adventurous’, ‘incomparably activist’, ‘composed of judicial legislators’ and ‘controlled by Jacobins’. The judges were ‘under the influence of left-wing theorists’, ‘deciding cases as Marx or Freud would have’, ‘defying common sense’, ‘moving the goal posts instead of just deciding if a goal had been scored’ and ‘overcome with delusions of grandeur’.

Jason L. Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed. Carolina Academic Press, Durham, North Carolina, 2006

[In this book, by an American academic, the more than 80 senior appellate judges he interviewed between 1997 and 2000 were granted anonymity.]

A Western Australian Supreme Court judge: The [High] Court [in Mabo] decided the issue for mainland Australia when mainland Australia was not an issue before it. Some of the members made factual findings about historical material which was not an issue before the trial court. Should the High Court deal with cases where the facts are not fully ventilated, their decisions are suspect. That’s what all judges believe.

“Another judge” believed that on Mabo the Court went “terribly wrong”:So, it’s perfectly true that on the Torres Strait Islands there is no sensible doctrine of terra nullius. But how the High Court managed to extrapolate that fact to a general body of principles and applied it to Australia I simply can’t imagine.

“One judge” on the Mason Court:It was common in the 1990s among intermediate court judges to speak of the High Court as politicians … ‘those politicians from Canberra’. Their Mabo decision is the best example. That opening paragraph from Deane and Gaudron shocked the profession. It was over the top – way over. That wasn’t logical thinking. It was anger, emotion. Judges don’t write that way!

An appellate judge:The Murray Islanders] had a totally different structure than most mainland Aboriginals … all facts found [in Mabo] were about the islanders not about the mainlanders.

Another judge: Murray Islanders are not Aboriginal … the High Court made a vast generalization about Aboriginal people.

A High Court judge: If you take the view that the political process is increasingly, in a sense, an elected dictatorship softened by spin doctors and alienated from the people, then there may be a case for the expansion of the judicial role …

A Queensland judge:From the mid-1980s to the mid 1990s, the High Court played a pivotal role in assisting Australia’s progress as a nation, perhaps in part because of substantial deficiencies in our political process and constitutional arrangements … When the Mason Court was at its most active, there became an awareness that the political process couldn’t really solve some of the social problems because they were politically too difficult.

A Victorian appellate judge:I think there is room for the Court to be more adventurous … I don’t think the country can move forward, having regard to the structures that we’ve got, unless the High Court is prepared to take risks … I think it’s better in the long run for the country. It takes parliaments a hell of a long time to make laws reflecting community feelings. The parliaments of Australia tend to follow the lead given to them by the High Court.

A Mason Court judge:In my youth, I opposed a bill of rights on the basis that it would be too narrowly construed by the High Court and at the same time absolve politicians of responsibility … One thing I have long since come to respect is the sheer cowardice of politicians. For all the time sit-on-your-hands do nothing cowardice they cannot be faulted … I think ultimately it is the party political system that we borrowed from [the US] … I have no expectations of politicians. I have no expectations that there are any rules of the game [with regard to their interactions with the courts] or that they will observe them. Ultimately in this country, and I suspect it’s the same in yours [the US] there is clear research indicating that … people have got a lot more respect and faith in the courts than they have in the political process.” 

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