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.

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