Hard cases make bad laws. Bad judges make them worse

Another day, another disastrous and anti-democratic decision from the High Court. The Court has already disqualified a large proportion (perhaps a majority) of Australians from standing for Parliament. It has now excluded a huge group from any participation in our democracy, beyond the bare right to vote.

The case in question concerned a public servant, employed in the Immigration Department, who criticised the department under a pseudonym (which proved inadequate to conceal her identity). This was obviously problematic: anyone who directly criticises the policies they are paid to implement creates concern about their ability to do their job properly.

So, the Court could easily have found against the employee in a narrowly drawn judgement that simply applied standard principles of employment. Instead, as in the s44 cases, they brought down a judgement with massive implications. The decision supports a code of conduct that, on its face, prohibits public servants from making any political comment, even on topics unrelated to their job. Given past behavior, it seems highly likely that the Court will take the broadest possible interpretation of this decision.

The only remedy in this case is for the Parliament to restrict the application of the code to allow public servants the same rights as other Australians, to discuss and debate public issues, except where it impinges on their capacity to do their jobs. That’s unlikely, but at least more feasible than a referendum to fix s44.

But if I could have the entire Court sacked and replaced by seven Australians selected by lot, I would certainly do so.

41 thoughts on “Hard cases make bad laws. Bad judges make them worse

  1. As someone who as a public servant depended on the very thin anonymity of a nom-de-blog for years (anyone keen to can quickly find my real name) what I always found most objectionable about the APS Code of Conduct was its very selective and hypocritical enforcement. I could make the most vituperative and scornful criticism of Teh Left with no risk, but even a well reasoned and balanced criticism of current government policy was putting my job at risk. Had Ms Bannerji called for the banning of all Muslim migration in her twitter account she’d still be working for Immigration.

    But that hypocrisy is not the High Court’s fault. As with S44 I think the High Court is just accurately interpreting some very bad law, rather than straining to make it even worse.

    The idea that professional public servants cannot carry out policies they disagree with, and therefore should not be allowed to say they disagree, is anyway daft. I spent a career mostly in tax and welfare policy vigorously while disagreeing with the whole policy direction we have gone in there – but I like to think I did my best to improve that policy and its execution in detail.

  2. Just a tiny correction DD, technically it’s not the law it’s the constitution.

    The constitution was supposed to be safe from the meddling of opportunistic lawmakers. But it was the lawmakers that formed the constitution so the bias is enshrined.

    In this instance and the instance of s44 the concept of checks and balances has been sorely tested.

  3. Rog, the point is that the law can whatever it likes, what matters is who gets prosecuted. One of the founding principles of Australian law is that everybody breaks the law all the time but the legal system has discretion to only prosecute cases that the government wants prosecuted. For example, exceeding the speed limit on the road is an offence, but very few road users are given tickets and even fewer prosecuted for doing so (even when their speeding meets the threshold for criminality). And don’t even start on littering, rape, water theft and other “minor” offences where the rate of “discretionary non-intervention” gets close to 100%.
    This pattern is utterly required for our whole legal system to work at all. Changing it would require major reworking of the whole system, from the constitution down to the lowliest school crossing volunteer.

  4. Let’s leave law out of the equation, I don’t think it’s helpful 🙂

    The Constitution is a set of rules on how to run the country and the High Court’s sole function is to rule on interpretations of the Constitution.

    Laws are tested in other courts.

  5. ‘… the High Court’s sole function is to rule on interpretations of the Constitution’

    You reckon so? I reckon not.

  6. Who cares what the function or principal function of the HC is when…

    Just imagine the High Court in 2030 ruling ( in black ) on the ‘New and Improved’ industrial relations bill 2020, complements of a cpac powered amanda stoker. 

    Don’t worry about judges, we have a biased neural net in Amanda, powered by cpac, here and now. Amanda’s deplorable “not the right fit” workers, shows she is in dire need of new data and representative learning set. 

    But – Amanda Stoker began her career as a clerk and solicitor in Brisbane with MinterEllison. All is well then, in the land of “The Right Fit”.

    She has testosterone too… “accusing the Coalition of being “tentative” after John Howard lost” is a brave, as in take no prisoners”, call.

    And this would fit into any number of JQ’s recent posts…

    “Liberal senator … sack workers who are not ‘the right fit’

    …”Liberal senator for employers to be able to sack workers if they are not “the right fit”, arguing the Coalition is preparing to gut unfair dismissal laws.”

    “Amanda Stoker – who made the remarks at the Conservative Political Action Conference on Friday – renewed the call on Monday arguing it was “untenable” to ignore industrial relations’ impact on productivity and accusing the Coalition of being “tentative” after John Howard lost the 2007 election in part due to its Work Choices reforms.”
    https://www.theguardian.com/australia-news/2019/aug/12/liberal-senator-says-employers-must-be-able-to-sack-workers-who-are-not-the-right-fit

    And in better news in Evonomics today…  see the interesting to me, figure 3  “How productivity differences between workers doing the same task compare to income inequality within countries. Source: The Trouble With Human Capital Theory”

    “Neoclassical economists resort to slight of hand to measure productivity differences, and so endlessly confirm their theory. But what happens if we try to measure productivity differences objectively?

    We find that productivity differences cannot possibly explain income inequality.”

    “The lesson here is that differences in workers’ productivity are tiny compared to differences in income. So it’s inconceivable that productivity differences (as measured here) can explain income inequality.”
    http://evonomics.com/no-productivity-does-not-explain-income/

  7. Stories are important.

    This may be the heads up for a book written about Australia in 2030 after Amanda Stoker has moved from streamlining industrial relations law to exclude those considered by her to be “not the right fit”, to the evvironment portfolio – including minister for water – to ‘streamline’ environmental laws.

    Rule of Capture

    “2017, science fiction author Christopher Brown burst on the scene with Tropic of Kansas, an apocalyptic pageturner about martial law in climate-wracked America; now, with his second novel, Rule of Capture, Brown turns everything up to 11 in a militarized, oil-saturated, uninhabitable Texas where private mercs, good ole boys, and climate looters have plans to deliver a stolen election to a hyper-authoritarian president.”

    “Brown is a Texas lawyer whose attention to legal verisimilitude pays of in spades, a kind of legal-realism that feels terrifyingly plausible as he lays out the way that a nasty, smart Attorney General could conspire with an authoritarian president to create the kind of martial law that even Federal judges will permit.”

    “And shot through it all, a serious, philosophical meditation on the nature of private land, conquest, and justice, ”
    https://boingboing.net/2019/08/12/free-xelina-rocafuerte.html

    See A C Grayling:
    “Or to take A.C. Grayling’s view: “The [US] electoral college was set up to ensure that no idiot, no tweeter, sexual harasser, ignoramus, could get into the White House … you see it works perfectly in the US.”
    https://www.smh.com.au/entertainment/tv-and-radio/examining-president-trump-q-and-a-ponders-the-biggest-question-20190813-p52gfp.html

    Seems like eternal vigilance will be eternal.

  8. There seems to a number of interpretations of the functions of the High Court

    The Dept of Environment; “to hear and determine appeals from the highest State Courts; and to interpret the Constitution.”

    The High Court; “to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.”

    Parliamentary education office; “the principal function of the High Court of Australia to interpret the Constitution and to settle disputes about its meaning.”

    I think you will find that all are in agreement.

    https://www.environment.gov.au/heritage/places/national/high-court-former

    http://www.hcourt.gov.au/about/role-of-the-high-court

    https://www.peo.gov.au/learning/closer-look/the-australian-constitution/the-constitution-and-the-high-court.html

  9. Moz above – “This pattern is utterly required for our whole legal system to work at all.” –
    https://johnquiggin.com/2019/08/08/hard-cases-make-bad-laws-bad-judges-make-them-worse/comment-page-2/#comment-213210

    And parliament. Witness the latest sneaky eve of election grubby liblab deal changing the rules of the Reps and Senate to not only by mutual liblab backscratching avoid referrals to the High Court, but even so to give any perps a trick 28 day window to ammend particulars and scrub the offence to get around the AEC, other players, and the public who may have wished to pick over the bones of the pollie perps.

    Though they pay some handsomely, the current legal system, government, parliament, and constitution aint worth spit.

  10. ‘I think you will find that all are in agreement.’

    Then you think wrong. I do not find that they are all in agreement: I find that they have made different statements which are not equivalent or interchangeable. The statement quoted from the website of the High Court itself seems (unsurprisingly) to be correct; the statement quoted from the Parliamentary Education Office (slightly surprisingly), not.

  11. The existence of the High Court, it’s structure, scope, function and limitations are all described in the constitution.

    Therefore the statement “to interpret the Constitution” is absolutely correct.

  12. The following two statements are not equivalent or interchangeable:

    1. The existence, structure, scope, function, and limitations of X are described in the Constitution
    2. The principal function of X is to interpret the Constitution

    Just because statement 1 is true, that would not be enough to make statement 2 true.

    There are multiple things of which statement 1 is true; that doesn’t make statement 2 true of all of them, or any of them.

    In particular, if you read what it says about the High Court in the Constitution, you will not find the statement ‘The principal function of the High Court is to interpret the Constitution’, or any statement equivalent to that one.

  13. AFAIK interpretation in the legal context is known as Judicial interpretation and is how Courts work. The High Court’s decisions are made on the basis of and with reference to a judicial interpretation of the constitution.

    There are a number of legal dissertations (on AustLii) on the HCs judicial interpretation of the constitution.

  14. The following two statements are not equivalent or interchangeable:

    3. The decisions of X are made on the basis of and with reference to a judicial interpretation of the Constitution.
    4. The principal function of X is to interpret the Constitution.

    Just because statement 3 is true, that would not be enough to make statement 4 true.

    There are multiple things of which statement 3 is true; that doesn’t make statement 4 true of any of them, or all of them.

    If you said ‘The functions of the High Court include interpreting the Constitution’, that would be true.

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