Andrew L. Urban.
“Justice Jackman has emerged as a voice of reform and accountability in the legal world, particularly after he issued an extraordinary rebuke in June of six fellow judges for their “egregious” delays in handing down judgments,” writes Elizabeth Pike in The Australian (24/8/2026). Now he challenges the High Court to “foil the antisemites”. We concur.
The trigger for Pike’s observation was Justice Jackman’s weekend address to the legal fraternity at the Samuel Griffith Society National Conference where he criticised the failures of university leadership over the antisemitism encampments of the recent past and urged the High Court to show integrity following the Bondi Beach terror attack.
Expanding on an earlier speech that argued parliament has been hindered by the High Court’s “expansive view” of its own power, Justice Jackman (pictured above) suggested the judiciary hindered efforts by parliament to protect the Jewish community and broader public cohesion by taking an inflexible position on the implied freedom of political communication.
He pointed specifically to the NSW Court of Appeal’s decision to rule against temporary anti-protest laws in the weeks after the country’s worst terror attack. The country’s attempt to restore and preserve social cohesion in the wake of the tragedy was the “new battleground” for the issue of free speech, Justice Jackman said, which had not been tested until now by a “real crisis” in Australia’s social and political life.
Even though the High Court is yet to look at the issue of anti-Israel protests, Justice Jackman pointed out that its decisions were the authority and underpinned the NSW ruling. He noted the issue of implied freedom gained recognition in the 1990s but the High Court had not updated its position since then.
He argued Chief Justice Stephen Gageler had demanded “unquestioning submission to precedent” unless the original ruling that set the current precedent on the implied right to political communication was directly challenged, after Justice Simon Steward concluded the principle was wrong last year but he was bound to apply it.
“The reality is that Australia now is a severely fractured and divided society. In particular, the virus of antisemitism is rife, and much of our social and political culture seems to have a suppressed immunity to its virulence,” Justice Jackman said.
“It would not have occurred to Australians in the 1990s that other Australians would abuse their freedom of political communication to publicly intimidate and vilify Jews.
“moral disarmament of the West”
“To be fair to the High Court in the 1990s, the justices could not be expected at that time to have contemplated the widespread evil of antisemitism in Australia, or for the propensity for political hostility to the policies of the state of Israel to degenerate into expressions of hatred for Jews in general.”
Judges of the High Court are perceived to be the pinnacle of our legal system. And the foundation stone of the law is morality. All laws have a moral basis or background – but not all individuals and/or institutions within the legal system do. In the words of philosopher and statesman Edmund Burke, “Morality is more important than laws, because law depends on morality.” Moral considerations ought to inform legal considerations. Perhaps Justice Jackman’s concern comes from a fear that the High Court may be a collective victim of what British writer and commentator Brendan O’Neill calls “the moral disarmament of the West”. In short …woke….
The context for his remarks was a speech he gave in Sydney as a guest of the Centre for Independent Studies in February 2022. “I think there is a tendency to see wokeness as a joke, and you know, we tend to think of it as the ideological exuberance of young kids on campuses. blue haired kids, are a bunch of idiots who grow out of it eventually.
“But I think it’s becoming increasingly clear that weakness is an incredibly serious threat to our societies. It is fundamentally the process, as I say, a moral disarmament where we are stripping away the values and the virtues that wants to define who we are as a society and as a people and in the process of laying ourselves open to the threats that we should actually be talking about encountering.”
CONTEXT
The speeches by High Court Justice Robert Beech-Jones and Federal Court Justice Ian Jackman in mid-2026 became one of the most remarkable public exchanges between serving Australian judges in decades. Although neither judge named the other directly in every instance, the speeches presented sharply contrasting visions of the Australian judiciary, constitutional interpretation and the proper role of judges.
Justice Robert Beech-Jones: Defence of the contemporary High Court
Justice Beech-Jones delivered a strongly worded address in May 2026 criticising what he regarded as organised ideological attacks on Australia’s judiciary. He singled out the influence of the conservative legal movement, particularly the Samuel Griffith Society, arguing that it sought to reshape Australian constitutional law by importing American conservative jurisprudence that was incompatible with Australia’s constitutional tradition. (Australian Financial Review)
His principal themes included:
- Judicial independence. He warned against attempts to politicise judicial appointments or portray judges as members of ideological camps.
- Australian constitutional exceptionalism. Australia’s Constitution, he argued, should continue to be interpreted according to Australian history and legal tradition rather than American originalism or textualism.
- Respect for precedent. Stable constitutional doctrine was presented as an essential safeguard against politicisation.
- Criticism of organised legal activism. He suggested some critics wished to “stack” Australian courts with judges holding predetermined conservative philosophies rather than appointing judges committed to impartial adjudication. (Australian Financial Review)
The speech was unusual because serving High Court judges rarely engage publicly with contemporary political or jurisprudential debates in such direct terms.
Justice Ian Jackman: A call for judicial self-examination
Justice Jackman responded only weeks later with what many regarded as an even more extraordinary address.
His speech had two distinct components.
First, he launched an unprecedented criticism of judicial administration by publicly identifying judges who had taken years to deliver reserved judgments. He argued that excessive delay was itself a denial of justice and that the judiciary should not shield itself from legitimate criticism. His remarks prompted Australia’s chief justices to remind judges that concerns about colleagues should ordinarily be dealt with internally rather than through public speeches. (Capital Brief)
Secondly—and more fundamentally—he criticised aspects of modern High Court constitutional doctrine.
His major arguments included:
- Judicial overreach. He argued that the High Court had expanded constitutional implications beyond what the Constitution itself justified.
- Implied freedom of political communication. Jackman questioned whether the doctrine, developed in the 1990s, had become too rigid and now impeded Parliament’s ability to respond to contemporary threats such as antisemitic intimidation and social fragmentation.
- Parliamentary supremacy within constitutional limits. He suggested courts should show greater restraint where elected legislatures are responding to genuine public safety and social cohesion concerns.
- Common law methodology. Throughout several speeches in 2026, Jackman emphasised empiricism, ordinary language and practical reasoning over abstract legal theory, arguing that judges should remain closely connected to common-law traditions and common sense. (Federal Court of Australia)
Why the speeches were so significant
The exchange was remarkable for several reasons:
- Serving judges almost never publicly criticise one another’s constitutional philosophy.
- Criticism of the High Court by another serving superior court judge is exceptionally rare.
- Public naming of fellow judges over delayed judgments was virtually unprecedented in modern Australia.
- The speeches exposed deep philosophical divisions over constitutional interpretation, judicial restraint and the relationship between courts and Parliament. (Australian Financial Review)
Broader significance
Together, the speeches highlighted an increasingly visible debate within Australian legal circles about the future direction of constitutional law. They raised questions about:
- whether the implied freedom of political communication should be recalibrated;
- the appropriate balance between Parliament and the courts;
- judicial accountability for administrative performance;
- the extent to which Australian courts should revisit constitutional doctrines developed over the past three decades.
The speeches did not produce any immediate change in doctrine, but they sparked one of the most vigorous public debates among members of the Australian judiciary in recent memory, drawing widespread attention from legal academics, practitioners and commentators. (Australian Financial Review)