The High Court
In the case of Capital Television vs. The Commonwealth the High Court has given its reasons for rejecting the Government's ban on political advertising during an election period. The Court found that the text of the Constitution implies that a freedom of communication is essential to the conduct of representative government, which is specifically provided for in the Constitution. Freedom of speech, dissemination of information, discourse and political discussion, were all seen to be implied by the Constitution as part of the process enabling voters to make informed judgements on the choices before them in an election. The Court, by majority decision, ruled that there was no compelling justification for parliamentary interference with political advertisements during the period leading up to an election.
The opinions of the Court, which were critical to the decision, appear to centre on subjective assessments of whether the effect of political advertising in the run-up to an election is harmful or otherwise, rather than questions of law. Mr. Justice Brennan clearly thought that TV advertising did not promote intelligent political discussion or assessment of political choices. In his view it would appear that such advertising had the major purpose of persuading voters by more subtle methods; appealing to the emotional rather than the rational side of voters' nature.
Accusations of scare tactics would tend to verify his opinion. TV advertisements in the October '92 Victorian election may have been more objective than some, but the Independents were certainly not amused by the Liberal 'smear' that a vote for an Independent was a vote for Labor.
Mr. Justice Dawson spelt out an important and far-reaching distinction in his dissenting judgement (The Age 1/10/92): 'In this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve its own shared values.' But shared values have become less than clear, and the undemocratic nature of our parliamentary system hinders the ability of society to protect its fundamental freedoms.
The 'Problem' of the 'Executive'
The judges have shown concern over the problem which has been central to the thesis of this book - the problem of the dominance of Parliament (and of course the people) by the 'executive' (the Cabinet formed from the majority party), especially where the government can control the Upper House - a situation bordering on dictatorship, even if temporary.
We have already discussed at some length the reasons why the party system has undermined and destroyed the ability of parliaments to rule with accountability in the democratic manner envisaged in the forming of the Federal Constitution in the 1890s - without parties occupying the dominant role that they rapidly acquired after Federation.
Concern with these matters came to light in a speech by Mr. Justice Toohey at a conference in Darwin on constitutional change. Referring to the traditional role of parliament as the defender of the people's liberties, he said: '... parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it.'
A New Role for the High Court?
Mr. Justice Toohey indicated a possibility of the courts taking up a new role in protecting the fundamental liberties of the people based on the common law. In the absence of a formal bill of rights he felt that the courts may find it necessary over time to construct an 'implied Bill of Rights', by interpretation of the actual text of the Constitution in the light of 'natural law'.
The Chief Justice's view in this matter was quoted by Margo Kingston 21 in an article entitled, 'Just Who is Judging Victoria'. Mr. Justice Mason, she said '...only gradually and reluctantly came to accept the idea of a wider involvement over a long period, as it seemed to him quite foreign to our democratic heritage of parliamentary safeguards'.
Decisions of the Court and the flurry of consequential public comment show a depth of concern with regard to the idea of a wider role for the courts. The judges seem to have been quite surprised at the public reaction.
Mr. Justice Toohey went on to suggest that in the absence of a constitutional bill of rights, a Court "... as a guardian of a written constitution ... might feel a responsibility to apply principles of 'natural law' ... to protect core liberal-democratic values". The Court would thus be departing from a traditional position of confining itself to a strict interpretation of the law; (a process, however, that aggravated many in the Barwick Court's interpretation of law in tax avoidance cases).
The Court now appears to be looking at the possible intentions of the people when they passed the Constitution in the 1890s.
Mr. Justice Toohey gave the opinion that: " It might be contended that the courts should ... conclude that where the people of Australia, in adopting a constitution, conferred power to legislate upon a Commonwealth Parliament, it is to be presumed they did not intend that those grants of power extend to invasion of fundamental common law liberties.
He noted that the judiciary is the 'weakest' of the three arms of government; that "judicial review can never amount to government", but it could: " ... frustrate ... the will ... of a current majority of members of a legislature, which does not necessarily coincide with the will of the majority of its citizens."
The court has shown that it can set limits to the legislative power of the executive. Mr. Justice Toohey reminds us that this capacity is restricted to the situation where laws are imprecise and conflict with 'natural law', but that parliament by precise legal construction has a final say, just as the people can overturn a decision of the courts by referendum. However precise legal construction to have that 'final say' would require legal genius of, perhaps, a clairvoyant order, to render legislation High Court proof. The Barwick decisions caused a vast increase in the size and complexity of tax legislation; and we still have tax avoidance. Only retrospective legislation could have halted that avalanche.
Mr. Justice Toohey argues that since it is open to the people to amend the Constitution by referendum (if instructed to!) the Court should be seen as democratic and not 'anti-majoritarian' in its interpretation of the Constitution. Rather he feels the Court "should be seen as representing the people, in giving protection to individual rights in advance of ratification by referendum". (There is, of course, no opening at present for the public to require a referendum to be held on any matter.) Worries about an executive president pale into insignificance by comparison.
The suggestion that a court might be more able than parliament to represent the views of the community, and that it might come to exercise a right to do so, created something of a furore. The Minister for Justice, Senator Tate, objected strongly, despite the efforts of the Attorney-General, Mr. Duffy, to quieten the matter and remove the whole discussion from the public domain. Senator Shacht was another to be 'up in arms' with the suggested diminishment of the role of parliament. In calling such a trend undemocratic he is in company with Aristotle. Democracy means government in the hands of 'the many' rather than 'the few'.
The Law Institute of Victoria has called for a legislative bill of rights to ease the burden of the High Court, a change which would eventually be embodied in the Constitution by referendum. But Canada, in separating from the United Kingdom, followed the American example of a bill of rights, and is finding a resultant politicisation of the judiciary. Is this really the way we want to go?
Any change in the rights and powers under the Constitution should certainly be submitted to the people by way of referendum not by legal decision. Mark Snedden, senior law lecturer, Monash University, made this point quite forcibly 22 . He questions the right of judges, who are not elected and for whom there is no review, to 'veto the will of the majority expressed through Parliament', an elected body.
Others too are objecting to a widened role for the High Court, taking issue with the notion that judges, whose appointment comes under extremely little public notice or examination, let alone control, should be able to overrule the laws made by an elected body in a democracy. Once again democracy (and therefore freedom) is enhanced by reducing powers, wherever they have become excessive, not in increasing sectional power.
Attention has been drawn to the American manner of appointment of their Supreme Court judges and the practice of conducting a wide-ranging public enquiry into the suitability of the proposed appointee; a process made necessary by the greater powers vesting in their Supreme Court. While this has its validity, it simply results in legitimising an enhanced role for the Courts. The more powerful is each source of power, the more serious are the conflicts.
The growing necessity felt by the High Court to act on behalf of the 'fundamental freedoms', is perhaps understandable when the corrupted nature of the operation of our parliaments is considered. This is where the problem lies; where the failure of democracy is to be found. Compared with the public imvolvement of the previous century Australian democracy is in a state of decay.
A Failing System
In her article summarising the various backgrounds and approaches of the present High Court Justices , Margo Kingston 15 records the view expressed by Justices Mason and Brennan that parliaments are tending to avoid the hardest political decisions in the hope that the courts may resolve the issues and save them political 'flack'!
As to the question of the adoption of a Bill of Rights by constitutional amendment, it would appear that party governments, through the past failures of referenda, have lost the desire and the necessary will to put such questions to the people. This points again to the unsatisfactory weakness (and possibly also the impurity of motive) of party governments when seeking to implement the changes they deem necessary . They are simply not trusted.
Other 'Freedoms'?
The question of whose freedoms might be guaranteed by some fresh implications to be found in the Constitution could be a worry. As mentioned earlier, one fellow's freedom can be a threat to another's. Public discussion subsequent to Mr. Justice Toohey's speech in Darwin has raised a range of other matters which some have thought might come up for review as a result of the new trend apparent in the thinking of the Court. The Court's decision has been greeted with some enthusiasm by the media which probably sees some possibility of relief from defamation litigation. Up front also is the tobacco industry, which scents hope for elimination of the bans on advertisement of their products, although some comfort may be taken by the report, quoted by Margo Kingston, of a 'friend of some judges': "... if people think they'll overturn the ban on cigarette advertising, they're dead wrong.".
Cynicism
It has been said that the adverse effect of the Court's overrulling the political advertising ban, in raising the level of community cynicism, could be as bad or worse than the effect of the protection given to tax avoiders some time ago. The depressing effect of cynicism diminishes the morale and well being of the whole people. Fine principles must carry through to benefit all equally. Our parliaments must be able to provide ways for fast-tracking solutions to the problems of anyone suffering injustice. There is much to be done by way of reform to redeem our political situation from its present malaise. Real freedom requires real democracy.
In the end it must be the people's judgement which determines the issues. No matter how responsible any Court or Executive may be, the power to make decisions is no more than a trust from the people. Nothing is, nor can be, final in politics. That is why political decisions must be decided politically. It is clearly desirable that the separation of powers should not work in an antagonistic way, but that each function should be free to pursue its recognised historical function. The decision in the Capital Television case, the speech in Darwin by Mr. Justice Toohey and the subsequent airing of views by politicians and others against an expanded role for the High Court are quite significant political developments. They each point to where our major problem lies - the hijack of our parliaments by the party system.
The High Court and the Common Law
The responsibility, newly perceived by the High Court, to invoke principles of the Common Law in its 'creative' interpretation of the Constitution, will, quite clearly, not be abandoned at the wish of politicians. This is not to say that the High Court is necessarily 'right' in its (majority) judgements. What is 'right' must reflect considered public opinion in a democracy, including public opinion changing and maturing in its viewpoint. But one High Court Justice has suggested that, if the Court has the 'wave-length' of the public, its decisions might be regarded as more democratic than those of Parliament.)
The concern of parliamentarians is understandable. The first 'blow' is often decisive. It becomes difficult for Parliament to undo a Court decision which has already granted 'rights'. New law has always been the responsibility of parliament and this invasion of their domain is a rank departure from the Westminster principle of the separation of powers; between the three arms of government - Legislature, Executive and the Court. However the separation of powers between legislatures and executives collapsed long ago, because of party discipline and executive cornering of excessive power. Executives have become, in these critical times, combative, dilatory and rough instruments of democratic justice. So, in a sense, Parliament has 'asked for it'. It has lost the initiative.
The wheels of our 'democratic' process are creaking. It does not encourage and facilitate an intelligent, objective involvement by the public. An example of better involvement is the Swiss practice of the popular initiative. This process tends to urge the people to more constructive thinking - which is badly needed, since the national task of decision-making is becoming more complex rather than less, as the future rushes upon us.
If politicians are reluctant to allow the public more involvement in the decisions which affect us all, then perhaps the running battle with the High Court will continue. An English Judge of some renown, Lord Denning by name, was written up in a Herald editorial some years ago under the title of 'More Lordly Thinking'. This judge, it appeared, often upset lawyers by applying the law with discretion based on reason and justice, rather than a blind following of intricate legal reasoning and inappropriate precedent.
Peter Ellingsen 23, likens his old newspaper colleague, Murray Smith, to 'former US Supreme Court chief justice, Earl Warren, who was known to whisper to advocates, "Yes, yes, I know the legal arguments. But is it fair?" '
What a delight! And what an example to explode the humbug of the politically (or legally) correct!