Judicial Activism and the High Court: Augusto Zimmermann By Ian Wilson LL.B

Professor Augusto Zimmermann in a recent edition of Spectator.com.au, comments on the judicial activism of Australia’s High Court, by means of agreeing with constitutional law Professor James Allan. Professor Allan has previously argued in a law journal that the High Court of Australia since its inception has been centralist and eroding of state’s rights. But it began a path of political correctness, or woke, as it is now called, probably around the time of the Mabo decision, and has never looked back.

The article by Professor Zimmermann gives some recent examples of the High Court’s judicial activism, which is basically the idea that courts should be engaged in a process of not just making law, but reforming it, primarily in lines with Left wing values. The article does not discuss the most recent case of High Court adventurism, involving indefinite detention and deportation, this being too recent, but it is an even more instructive case than those discussed below.

The idea was that illegals who were being held in detention, some of them having committed terrible crimes such as murder, had to be released, as they could not be deported being stateless. The reasons for this decision have yet to appear, but the government and opposition are attempting a legal patch-up of the law to deal with this. Yet, this is yet another flawed decision, seemingly based upon the Leftist ideal of “letting the refugees be free.” There does not seem to be any consideration that there could be a state open to taking them, for a price, perhaps somewhere in Africa. There are many options other than merely releasing these people back into the community. I think this shows very clearly woke values in action.

These considerations certainly challenge the glazed-eyed view that many conservatives have of the courts.     

https://www.spectator.com.au/2023/11/judicial-activism-and-the-high-court/

“In the latest volume of The Western Australian Jurist law journal, James Allan, the Garrick Professor of Law at the University of Queensland, writes an article that is both enlightening and polemical, and is properly entitled Wokery and High Court Otherness. There Allan, one of the nation’s leading constitutional law professors, illustrates what he colourfully describes as ‘the Woke credentials of our High Court of Australia’. Professor Allan strongly believes that this is the ‘Wokest’ Court we have ever had, generating, in his own words, ‘stunning examples of raw judicial activism’ and, indeed, ‘Wokeness on steroids’.

Before I refer to any particular case explaining why the present Court, according to Professor Allan, is ‘one of the best examples of what is often characterised as judicial activism that you will ever come across’, it might be important first to define what judicial activism actually means. According to Professor Brian Galligan, judicial activism may be described as ‘the control or influence by the judiciary over political or administrative institutions’. At the heart of judicial activism, wrote Sir Harry Gibbs, one of our past Chief Justices, ‘…is the notion that in deciding a case the judges … must reform the law if the existing rules or principles appear defective.’

In this context, the relatively recent case of Love v Commonwealth (2020) represents a clear instance of judicial activism by the High Court. In an extraordinary way, the Court effectively elevated judge-made law above the Australian Constitution by creatively introducing a race-based limit on the Parliament’s power to legislate. Remarkably, in the Love case, the Court even decided to abandon its own established methods of constitutional interpretation, which are traditionally used to invariably deliver the most centralist federalism case law in the world. It did so in a case where no Australian state benefited from the abandonment of these established methods of constitutional interpretation.

The Love case can be summarised as follows. ‘Even when born overseas and holding the citizenship of another country, foreign criminals with Aboriginal ancestry can no longer be treated as aliens for the purposes of migration law.’ Love involved two plaintiffs, Daniel Love and Brendan Thoms, who were born overseas and each had one Aboriginal Australian parent. Love was born in Papua New Guinea and Thoms in New Zealand. However, they identified themselves as Aboriginal during the proceedings opposing their deportation. Although they recognised themselves as Aboriginal, neither man sought to actually become Australian citizens.

Furthermore, these plaintiffs were serving a term of imprisonment of 12 months or more. Love was given a 12-month jail sentence for assault occasioning bodily harm. Thoms was convicted of a serious domestic violence assault for which he received an 18-month sentence. The Australian government sought to deport these individuals pursuant to s 501(3A) of the Migration Act 1958 (Cth). The rationale for such decision is founded upon the citizenship status, or the lack thereof. The government argued that the plaintiffs were not Australian citizens and, therefore, it was within its discretionary power to deport them pursuant to s 51(xix) of the Australian Constitution.

By a majority of 4–3, the Court decided that, although born overseas and not Australian citizens, these individuals who are not citizens, but identify themselves as ‘Aborigines’, cannot be considered ‘aliens’ and, as such, deported on character grounds. Accordingly, they should be given the same protection of an Australian citizen even when a deportable offence under the Migration Act 1958 (Cth) is committed. Therefore, the judgment in the Love case effectively subjects Australia’s migration law to the proclamation of Aboriginality.

Australian citizenship should never be granted on the basis of race or another subjective identification, especially when a person has no intention to become a citizen. On the face of it, that decision effectively creates a new category of persons — neither a citizen under the Australian Citizenship Act, nor a non-citizen. Chris Merritt highlights the consequences: ‘The High Court’s ruling means Aboriginal elders and community leaders can stymie moves to deport foreign criminals if they determine they have Aboriginal ancestry.’

Above all, in the Love case the Court constitutionalised identity politics by introducing ‘a race-based limit on the parliament’s power’. To explain her decision, Justice Gordon used highly abstract concepts such as ‘otherness’, ‘deeper truths’, and a ‘connection [that] is spiritual and metaphysical’. In the same fashion, Justice Edelman, in his judgement, referred to ‘essential meaning[s]’, ‘metaphysical construct[s]’ and ‘powerful attachment[s] to land’.

Of course, none of these political rumblings have anything to do with judges’ assigned task of interpreting the Constitution. Unfortunately, however, it is not the first time a decision of this nature is surrounded by deep controversy.

On June 8, 2022, in Alexander v Minister of Home Affairs, the High Court ruled in favour of a Turkish citizen whose Australian citizenship was cancelled in 2021 due to the national security agency’s assessment that he had joined Islamic State and had engaged in foreign incursions and recruitment. By majority, the Court ordered his citizenship to be restored with the Australian government to pay costs.

In June 2021, ASIO – Australia’s national security agency responsible for the protection of the country from espionage and terrorism – communicated to then Home Affairs Minister Karen Andrews that Mr Delil Alexander was part of a group of Islamic extremists whose trip to Syria had been arranged by terrorist facilitator Hamdi al-Qudis. In April 2013, he travelled to Turkey and on to Syria where he voluntarily joined the Islamic State by August 2013.

The capture of Alexander in Deir az-Zour province, in November 2017, coincided with a major Syrian military operation backed by Russian forces and pro-government militias, to reconquer the province from Islamic State control. He was arrested and found guilty of offences by a Syrian court, in January 2019.

In July 2021, the Home Affairs Minister stripped Alexander’s second (Australian) citizenship. She used her discretionary powers in the Citizenship Act to strip him of citizenship for having repudiated his allegiance to Australia. Alexander’s lawyers appealed to the High Court partly on grounds that he needed to recover the citizenship due to a perceived ‘danger of serious human rights violations’. That decision was challenged on grounds including that it would have a ‘punitive character’ with significant consequences for the individual. By contrast, government lawyers argued that the Minister had faithfully complied with all the three required conditions in the decision: a person has engaged in the requisite conduct; the conduct demonstrates the person has repudiated their allegiance to Australia; and it would be contrary to the public interest for this person to remain an Australian citizen.

On June 8, 2022, the High Court held that the relevant Minister could not strip individuals of citizenship for suspected acts of terrorism. In a joint decision, Chief Justice Kiefel and Justices Keane and Gleeson contended that the Australian citizenship is ‘an assurance’ that a person is ‘entitled to be at liberty in this country and to return to it as a safe haven…’ In their judgment summary, the Full Court, or all its joint members, stated:

‘Some members of the majority held that … the substantive effect of the Minister’s determination … was to deprive the plaintiff of his entitlement to enter and live at liberty in Australia. This purpose and effect of the law was punitive in character … Two Justices reached the same conclusion that [the provision] was punitive in character; it conferred power on the Minister to cease citizenship as a sanction for past conduct, akin to historical forms of punishment, with significant consequences for the individual.’

Justice Steward was the only one to dissent from the majority. He reminded his colleagues that the law actually allows the cancellation of citizenship for ‘conduct which is so incompatible with the shared values of the Australian community that it constitutes a severance of the bond between citizens and a repudiation of allegiance’. He also communicated in his persuasive dissent that ‘the capacity to impose a penalty of some kind is not necessarily a power exclusively reposed in the judicial branch of government’.

These two court rulings lead legal academics like James Allan to conclude that, in his opinion, today’s High Court is arguably, ‘the weakest Court in this country’s history’. Curiously, as Professor Allan also reminds us, of the four members of the Court deciding for the majority in the Love case, three were appointed by the former Liberal Attorney-General George Brandis. These three judges were therefore appointed by an allegedly ‘conservative’ government in Australia. And yet, reminds us Professor Allan, they were all in ‘the Woke, judicial activist majority’, which goes on to reinforce his opinion that the ‘conservative’ Liberals appear to be worse than Labor when it comes to appointments of top judges. Of course, I am inclined to agree with him.”