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24 July, 2007  
We're all activists now

The Australian’s “activist judges” campaign was a significant feat. It managed to combine a beat-up with a marked lack of rigour and more than a smidgen of hypocrisy

imageI feel as though I’ve just spent a long night with Stan Zemanek.

Stan, I know, tragically has slapped the cue in the rack, but the same jangling between the temples that he induced as a malignant shock jock can be achieved just as easily by reading The Australian, in particular its dire warning of a week or so ago about rampaging “activist” judges.

John Howard’s favourite opinion peddler, Janet Albrechtsen, led the assault with Inside judges’ secret world and Put meddling judges in their place. She was joined by other stellar shills: Chris D. Merritt with Nation’s activist judiciary revealed, Paul Kelly with At war over the law, David Smith with Mason is still misjudging the truth (a weird piece about how wrong Mason was to advise that the GG cannot attend functions in Australia when the Queen was present) and Fabulous Phil Ruddock with System protects us from judicial rule.

The ballyhoo was spurred by the belated discovery of a book by US academic Jason L. Pierce called Inside the Mason Court Revolution: The High Court of Australian Transformed. In fact, The Sydney Morning Herald mentioned this work back in February. The basis of the book comprised “more than 80 interviews” with anonymous judges conducted between 1997 and 2000.

A large proportion of the interviewees no longer are judges, the court whose composition they were complaining about no longer exists and the book was published more than a year ago.

imageNo matter – that’s not going to stop a good dollop of apoplexy from The Daily Rupert. There were, however, a few tiny shortcomings. Nowhere was there any quantification of the number of judges interviewed who were activists. Variously, the descriptions of those in this dangerous camp were, “plenty … many … a significant number … [and] some”.

Nor was there even the remotest effort to describe or define what is meant by “activism”. For instance, might it not be said that even maintaining a conservative or status quo approach is “activism” in reverse?

And what of Albrechtsen’s favourite judge, Dyson Heydon, who made a speech just before his appointment smearing the Mason court and declaring himself to be a good and pure literalist? In Cattanach v Melchior, the wrongful life case, Dyce was swayed by his own social policy prescriptions and in the process abandoned well established principles of negligence law.

This analytical black hole didn’t stop Fabulous Phil volunteering that the current system of appointing federal judges “protects” us from activists. These people calling for change in the way the bench is appointed are the very people who “attack the government for its steadfast protection of Australia’s borders and for its strong stance on terrorism”.

Albrechtsen’s pieces were classically over-pitched. One of my favourite angles was that the abortion case Roe v Wade, decided by a liberal Supreme Court, so outraged Christian conservatives that they “swept” George W. Bush into office.

imageActually, I thought that five, allegedly non-activist, members of the Supreme Court “swept” the hapless blockhead into power.

Anyway, Albrechtsen (pic) declared that judicial activism was “an open declaration of war against elected politicians”.

Yet, the only two cases cited as products of “rampant activism” were Mabo and the discovery of the implied constitutional power of freedom of political speech, most recently manifest in Lange v ABC, which actually was a unanimous decision of the Brennan court.

Even though Lange doesn’t work in practice and the number of cases where it has been successfully pleaded as a defence can be counted on one hand, Albrechtsen characterised it as “pilfering power from politicians [and] anarchy”.

Funny that. In defence of the defamation case brought against one of her columns by magistrate Pat O’Shane the implied constitutional right of free speech was pleaded on her behalf.

There was no complaint from her at that time about the “anarchic” consequences of the High Court’s “meandering”. Rupert’s organs plead this ghastly piece of anti-democratic activism on a regular basis.

There’s nothing quite like a beat-up fused with hypocrisy.


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