Democracy Digest of the day
Why did Justice Ian Jackson of the Federal Court set the cat among the pigeons with his revelations at the Rule of Law dinner of overly long delays in judgements? The point has to be reiterated, says Rule of Law Vice President Chris Merritt:
“When 190 of our supporters gathered in Sydney for last week’s annual dinner very few had an inkling about the chain of events that was about to unfold.
The repercussions of that night are still emerging but it’s already clear that our guest speaker, Justice Ian Jackman, has done a great service for the rule of law.
Much of the media coverage of his address has focussed, quite naturally, on his decision to name six fellow judges of his own court who have delayed handing down judgements for up to three and a half years.
Far less attention has been given to the reason why he chose to break ranks and expose himself to a criticism from other judges – some of which has already started. [And the court expunged his speech from its website. Ed]
Justice Jackman must have foreseen this development because his address contains a complete answer to those who believe he should have remained silent in the face of such outrageous delays.
The full text of his address – and a video – is available on the website of the Rule of Law Education Centre. It’s worth a look.
In a nutshell, his reasoning comes down to this: We still do not have a federal judicial commission to deal with complaints about federal judges. That means it’s up to judges themselves to expose the problem and encourage public scrutiny.”
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While on the subject of the Rule of Law Institute … Merritt has outlined its submission to the Royal Commission into Antisemitism and Social Cohesion:
“The way in which the implied freedom is being applied by the courts makes it difficult for elected governments to respond effectively to one of the greatest challenges this country has faced – a propaganda campaign of Jew hatred that is sweeping the world.
But there is a way forward. It requires a new mindset by politicians, new legislative drafting and new courtroom tactics.
The proposed new approach is outlined in a 150-page submission ….the result of months of work by solicitor Peter Speed of Sydney law firm Speed & Stracey.
The starting point of the new approach is to recognise that the purpose of the implied freedom is to protect debate because this is essential to representative democracy.
The next step is to accept that debate requires at least two opposing voices.
That means representative democracy is not served by laws that just protect those who scream loudest and threaten others.”
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Merritt pulls no punches.
Whether we like it or not, this country and much of the Western world is at a turning point. We face challenges that will be familiar to those with a grasp of what happened in Germany in the 1920s: the fracturing of society and a growing hatred of Jews. That hatred was once confined to the underbelly of society. But it has wormed its way into some of this country’s most fashionable but intellectually bankrupt salons.
Australia is at risk of changing, and not for the better. If we are to arrest the decline and emerge from this dark time, we need to learn from our mistakes – as well as those of the Weimar Republic that ruled Germany during that country’s slow decline. The Weimar constitution, like our own, ostensibly was based on the idea of civic equality for all, including Jews. But weak enforcement and hostile institutions allowed antisemitic thugs to control the streets and silence their opponents. In his superb account of the Nazi legal system, Ingo Muller relates how lawyers, academics and bureaucrats were willing participants in the corruption of German justice. Just one judge, Lother Kreyssig, spoke out. Consider the similarities. In this country, and throughout the West, equal treatment is a fundamental principle of the rule of law. But in case after case, here and elsewhere, Jews have been excluded from the public square and intimidated into silence. No charges have been brought after some of the most notorious and well publicised incidents.
When the government of NSW took decisive action to take back control of the streets, its laws were repeatedly struck down. The common factor behind those defeats was the same judge-made doctrine that was criticised last week by Federal Court judge Ian Jackman: the implied freedom of political communication. Jackman was right.
The implied freedom is “an enormous issue”. The High Court has “seized the initiative and said ‘well we sit above parliament and this is an area where you simply can’t go’, even though one might think that parliament is in a much better position to balance the competing interests at stake”.
So what is to be done? The way in which the implied freedom is being applied by the courts makes it difficult for elected governments to respond effectively to one of the greatest challenges this country has faced – a propaganda campaign of Jew hatred that is sweeping the world.
But there is a way forward. It requires a new mindset by politicians, new legislative drafting and new courtroom tactics. The proposed new approach is outlined in a 150-page submission that my organisation has just filed with Virginia Bell’s royal commission into antisemitism and social cohesion. That submission, which is on the Rule of Law Institute’s website, is the result of months of work by solicitor Peter Speed of Sydney law firm Speed & Stracey.
The submission to the royal commission says one way of fighting cancel culture and achieving greater participation in public debate would be to impose new requirements on those seeking to conduct street protests. Police should be able to reject protests if the organiser does not have a proven track record or capacity to engage in reasoned debate with those who might disagree with their views.
Before protests are authorised, police and the courts could also be required to take account of the number of protests that had been conducted, the location of those assemblies and whether they had monopolised public debate by targeting opposing groups. The submission argues that when laws are challenged using the implied freedom courts should adopt a rebuttable presumption that democratically elected parliaments had a legitimate purpose for enacting those laws.
“It is not the role of our courts, and is outside their areas of general expertise, to determine whether social cohesion has sufficiently frayed that it is necessary, and for a proper purpose, to introduce new laws to address that decline,” the submission says. “Our constitutionally prescribed system of representative government ultimately provides for democratically elected parliaments to make the laws and not our courts.
“It is somewhat incongruous with this constitutionally prescribed system of representative government for our courts to strike down laws made by our democratically elected parliaments on the ground that in doing so they are protecting that constitutionally prescribed system of representative government.”