Federalism takes another hit

Amidst all the usual praising and genuflecting when a new person is appointed to our High Court, let’s stop for a second and consider a couple of obvious questions as regards our most recent appointee, Stephen Gageler SC.

First off, given the incompetence and generally radical nature of this present government, could the pick have been worse?

That’s a no-brainer. It could have been way, way worse. With about five minutes thought I can think of a dozen or more people who would have been considerably worse appointees and whom this government could quite easily have appointed. If you worry about judges being fast and loose in how they interpret our Constitution, and especially about the recent trend our High Court has displayed to make up mumbo jumbo implied freedoms based on nothing much more than the supposed mysterious entrails of our Constitution – and certainly nothing as tawdry as the actual words it contains – then Gageler is close to a least-bad outcome, given the likely alternatives.

A second query is almost as serious though, and is not as easily shrugged off. I don’t refer to Mr. Gageler, formerly the Commonwealth’s Solicitor-General, and his less than spectacular success rate at arguing cases before the High Court – think the Migration Act case or the closing of the Electoral Rolls case for instance. The main problem in those cases was the astounding judicial activism of the High Court, not Mr. Gageler. (Having said that, in the Electoral Rolls case Mr. Gageler was far too timid, in my view, in arguing that the High Court had gotten way out of line and in his refusing to argue that the earlier Roach decision decision was palpably in need of over-ruling.)

 No, my second concern relates to federalism. I know an awful lot of federalists, and I can say this (based on Mr. Gageler’s writings). Stephen Gageler is no federalist. In fact it’s hard to imagine a lawyer/judge with more centralist bearings and preferences. If your hope is for our High Court to go some ways towards fixing the federalist aspects of our Constitution – the aspects that these top judges have themselves largely ruined in cases over the last nine decades by adopting a ridiculously pro-Canberra interpretive approach that means the centre virtually always wins – well don’t expect Mr. Gageler to lead that charge. He may well be the most pro-centre judge on our High Court, which believe me is saying an awful lot.

So if you’re a federalist like me that’s not so good. Of course, given the sorry state of our federalist arrangements, you may well, like me, despair so much about federalism anyway that you are inclined to worry far more about the first danger, the “make up new rights as we go along based on our judicial moral antennae” danger. And that’s probably right, in terms of priorities.

So, as I said, it could have been worse. Now that still leaves the question of why Mr. Brandis, our shadow Attorney-General, said that Mr. Gageler was one of five people he (on behalf of the Coalition) recommended to Nicola Roxon. I ask because since arriving here 8 years ago I have been amazed at the lack of national-level politicians in Australia who appear actually to believe in federalism.

In the Labor Party there is basically no one. They are a lost cause. The Coalition used to have the odd adherent, but truth be told John Howard was as much the centralist as anyone, and Mr. Abbott is too. In fact it’s hard to think of a good federalist in the Coalition ranks, though Western Australia’s Christian Porter will be once he makes the transition from Perth to Canberra.

So was the Coalition’s support for Mr. Gageler a sort of least-bad, pick-your-poison, counsel-of-despair sort of thing? Or has the Coalition today really got no concern at all about appointing a judge who will interpret our Constitution’s federalist aspects in the way they were intended, meaning that he or she will be prepared to cut back on the Commonwealth’s High Court wins against the States. (And to lay my cards on the table, I’ve long been on the record as saying the Workchoices case was a terrible decision, to say nothing of the equally egregious Tasmanian Dams one.)

I can totally understand things if it’s the former. Forestalling a far worse and quite possible outcome in life is important, very important. But it would be nice to think, okay to imagine, that in the odd Coalition MP there beats a heart that has at least some scintilla of federalist inclinations.

James Allan is Garrick Professor of Law at the University of Queensland