Friday, November 03, 2023

High court wokery

James Allan

Our top court is as weak as it’s ever been. You won’t hear that stated publicly by many barristers but that’s because barristers make their livings in front of the judges. Every monetary and professional incentive aligns to incline them to be sycophantic to the people who might one day be hearing one of their future cases. Think Uriah Heep, sometimes on steroids. The same sycophantic behaviour goes for top litigation partners/solicitors. That said, the same lawyers who cannot genuflect quickly enough before the altar of any judge who happens to be in the same room with them can be scathingly critical of the judges in private and off the record. Make the conversation in a bar over drinks and the criticisms of our top judges can be brutal.

Yet my point is that judges will virtually never hear any sort of public or face-to-face criticism from the lawyerly caste. Hence one danger is that our cocooned judiciary starts to believe its own publicity – all that praise they hear in public from the rest of the lawyerly caste. The temptation, then, to become a sort of ‘hero judge’ can become very hard to resist as you don Superman tights and cape to ‘do justice’ (or worse, ‘social justice’) from the bench. Of course law professors have a freedom to let rip at the judges. It’s just that most do not. Today’s legal academia has a profound distrust of democratic decision-making and that makes the preponderance of legal academics the natural allies of juristocracy and kritarchy (ie. rule by judges, variously disguised according to taste) and what one Canadian academic has dubbed ‘the Judges’ party’.

So I will say it again. Today’s High Court of Australia is a very weak bench. It may be the weakest High Court in this country’s history. And I’m willing to bet that near on all senior lawyers in this country would privately agree with me – leave aside the heads of bar councils and law societies with a vested interest in proclaiming otherwise.

Here’s an example. The current Chief Justice Susan Kiefel will very soon retire. So a fortnight or so ago they had the ceremonial sitting to mark the occasion. It was all polite compliments on steroids as the occasion demands. But let me be blunt. Kiefel may well have been the first female chief justice but she’s been ordinary, at best. She was part of the unanimous court that sold Peter Ridd down the river with some empty virtue-signalling about academic freedom before making sure his ability to speak out and keep his job lost to the university code of conduct and a bogus misdirection about confidentiality. Then there is Kiefel’s fascination with proportionality analysis. Go and read any of the implied freedom judgments she’s issued while remembering that Australia has no national bill of rights. This focus smacks of the worst sort of self-indulgence. Such proportionality analyses by the unelected judges increase uncertainty massively while concurrently increasing judicial power nearly as much. All the judicial mental gymnastics surrounding the task of deciding what is, and what is not, a reasonable, appropriate limit on rights, also known as proportionality analysis, is simply not a constrained activity. Worse, no one asked the top judges to do this. In the absence of a bill of rights the judges simply gave this job to themselves – the task of telling the elected branches what the judges think is, and is not, justifiable and reasonable as regards some statute’s limits on rights. Frankly, who cares what the judges think on that score. Yet Kiefel has revelled in that task. I agree with the British legal academic Thomas Poole who has argued that all such proportionality analyses are plastic; you can reach either conclusion, for whichever side you want, depending on the sentiments you bring to the table. You tell me the answer you want and I can write a wholly orthodox proportionality analysis giving you that answer. Because there are no mind-independent constraints on reaching the answer you happen to want when it comes to proportionality analyses.

Meanwhile, Kiefel as chief justice has pushed for more joint judgments in the name of reducing uncertainty. But call me sceptical about the overall benefits of top judges aiming to manufacture group judgments, which inevitably means trade-offs and in-house horse-trading. If that delivers a net benefit, it’s a very marginal one indeed.

And then there are the last twenty-odd years of appointments to the High Court. Make no mistake. The Libs have been worse than Labor on appointments (and not just with top judges, think ABC appointments, Human Rights Commission appointments, basically the Libs seem wholly incapable of appointing any real conservatives to anything, ever). Indeed, so torn were they by the desire to look friendly to women and identity politics concerns when it came to the High Court, yet stymied by the difficulty (you’re not supposed to say this out loud) of finding top female lawyers who are interpretively conservative, that the Coalition did a world first and appointed to our top court the wife of the retiring High Court judge she was replacing – yep, it’s so unbelievable that I still get overseas lawyers calling me to ask if this could really be true. And then a few years later, possibly to try to outdo themselves, the Libs appointed the daughter of a former High Court judge.

And how has that weird variant of nepotism worked out for them? Well, in the woeful Love case in 2020 Justice Gordon (the wife from above) wrote one of the most woke, identity politics-infused judgments ever seen. And it was on the majority side of that 4-3 decision (along with two other George Brandis appointees also in the majority, staggeringly). And in the very recent 4-3 case of Vanderstock Justice Gleeson (the daughter from above) sided with the uber-centralist Gageler and with (wait for it) Kiefel in delivering yet another nail into the coffin of any sort of working federalism arrangements in this country – to the extent that I would say we now have federalism really in name only in this country. The High Court over the last century has shown itself to be the most centralising top court in the federalist world, sometimes with laughable decisions such as WorkChoices and the Tasmanian Dam Case, thereby totally gutting the intended federalist arrangements and leaving us with all the costs and none of the benefits. Their one core job was to police the federal division of powers and they shunned that to instead deliver the feds virtually everything they ever wanted.

And don’t get me started on some of the retired judges’ and many of the lawyerly caste’s jejune legal analyses during the Voice debate. They were embarrassing. An undergraduate law student could see that what was on offer amounted to a special right, without even reading any Hohfeld. Only on criminal law cases has the High Court stood out as first-rate.

So all up a very weak top court at the moment. And given the state of our law schools don’t bet on things getting better any time soon. Still, at least you can hear such frank views about our judges in the pages of the Speccie, or late at night in any bar frequented by top lawyers.


Canberra’s heavy ‘helping’ hand to whip up clean-energy fervour

At midterm, the elements of Albonomics are falling into place.

Anthony Albanese’s governing mission is to build economic self-sufficiency at home, “resilience” as he puts it, while trying to set the nation up for opportunities as a “renewable energy superpower”.

In the Prime Minister’s schema, the market alone can’t be trusted to deliver the transition to clean energy and secure the net-zero emissions target by 2050, Labor’s top-shelf priority in its pitch to voters for a second term.

So, spend big, and multiply, with Canberra’s guiding hand.

Albanese’s government is laying the foundations for a green new deal, with a honey pot of subsidies for investors who meet more rigid tests and a group of chosen industries that are seemingly born ready for this almighty industry policy heave-ho.

Business is on board, for two reasons, other than the national interest: one, there will be an immense amount of public money up for grabs, and two, Joe Biden has forced the rest of the rich world to respond. The US Democrat’s game-changing and limitless green-dream Inflation Reduction Act could eventually be worth $US1 trillion.

In terms we can all understand, that’s the Australian dollar equivalent of all the goods and services we produce in eight months.

We can’t get under the IRA, we can’t go over it, but we have to do something about it.

Albanese fuses a global emissions reduction obligation with abundant natural advantages staring us in the face, but no economy-wide pricing of carbon pollution to direct investment to its best uses.

We’re in the world of “second-best” policy and yet we must stay the course.

Coming off a big personal and psychological loss on the voice, with a community cranky with the nation’s establishment powers, Albanese faces a fatigued electorate; it can only absorb so many big bets, where the outcome is not assured but the journey will involve “value destruction” as well as “value creation”, as economist Pradeep Philip described it.

The key message out of Thursday’s The Australian-Melbourne Institute outlook conference is that a public battered by rising living costs, falling real wages and housing stress must deal with even more disruption in what Jim Chalmers has branded the “defining decade”, these “turbulent ’20s”.

We need more economic dynamism, as it is called, which involves risk-taking and failing, to fashion a high-performance economy to be able to nail the energy transformation and fund the kind of welfare state that is our entitled destiny with a rapidly ageing society.

But to get rich, and hit the nirvana of full employment and low inflation, we’re going to have to get out of the comfort zone, not simply rely on governments to do the heavy lifting, as Westpac’s chief economist Lucy Ellis declared.

Labor’s new growth model is not yet settled, but the moving parts are steadily locking in, as the Treasurer acknowledges.

We’ll need to be smart, as well as lucky, and adaptable to change and, as Michele Bullock put it the other day, “shock after shock after shock”.

Albanese is playing to the conditions, hoping the times will suit him and his government long enough to at least snag a second term.


Airservices abandons plan for ‘inclusive’ changerooms after employees express concern

Airservices Australia has halted the rollout of “inclusive” changerooms in its workplaces after a survey of employees revealed most were uncomfortable with the all-gender facilities.

The survey by Elizabeth Broderick and Co was commissioned by Airservices as a follow-up to an initial assessment of workplace culture undertaken in 2019.

A report released in 2020 revealed a toxic culture, with significant problems around trust, leadership, bullying and harassment – which Airservices vowed to address.

After implementing a strategy to address those issues, a progress review was undertaken which showed that according to respondents, there was still much work to be done.

Of the 1441 employees who responded, representing 44 per cent of staff, 27 per cent said they had experienced bullying in the past 12 months That figure was up from 23 per cent in 2020.

The proportion of workers who said they had been sexually harassed was relatively unchanged at 9 per cent compared with 11 per cent three years ago.

Less than 20 per cent of air traffic controllers, and airport fire and rescue officers felt they belonged or were valued by their employers, and about 30 per cent did not feel safe in the workplace.

“The review noted a major reduction in overall statistics relating to employees enjoying Airservices as a place to work and being able to promote it to others as a place to work,” said the air traffic controllers’ union, Civil Air.

“There was a bleak quote included in the review which said that after the release of the first Broderick report ‘there was a lot of hope for change – this was short lived’.”

Employees also delivered a blunt message about the rollout of “inclusive facilities” telling the survey they were not wanted.

“We are told that inclusive facilities will go ahead at every station, joint male and female toilets and change rooms,” one respondent told the survey.

“This is concerning to the majority of airport rescue and firefighting service crew. This is not increasing safety.”

In his response to the review, Airservices chief executive Jason Harfield said he was “concerned, disappointed and sorry to see that harmful behaviours continue to be experienced by some of our people”.

“This experience is unacceptable and as such we are renewing and extending our efforts to tackle this as an immediate priority, to ensure a safe and inclusive workplace for all our people, every single day, without exception,” Mr Harfield said.

In the first instance, Airservices had compiled a “response plan” to the progress report in an effort to address the ongoing issues.

The plan included a “pause” on inclusive changerooms and prioritising effective consultation with users of facilities.

“As a priority, separate male, female and a changing/bathroom facility that is inclusive for people of diverse genders be established across all worksites,” the plan said.

Airservices also undertook to embed “zero tolerance for harmful behaviour in leaders’ KPIs” (key performance indicators) and provide ongoing training and education to all employees about the nature and prevalence of sexual harassment, bullying and discrimination.


Australia must teach young people technology skills, says WiseTech’s Richard White

Richard White, one of Australia’s most successful tech entrepreneurs, told the Economic and Social Outlook Conference on Thursday it was “incredibly wasteful” for Australian companies to be forced to use overseas talent to fill their need for technology skills.

Mr White, founder and CEO of $20bn logistics software company WiseTech Global, said Australia needed to “break the mould” and use “non-traditional thinking” to succeed in giving more young people tech skills.

He told the conference technology companies were Australia’s economic future, and they were driven by education. But the lack of trained technology talent meant our companies were at war with each other to secure skills.

“If you haven’t got the talent in the economy, you have to fight for the last person standing … you are fighting over scraps,” Mr White said. The other option was to import talent “but as a continuous solution, particularly for the long term, it doesn’t work”.

Mr White said efforts to boost STEM (science, technology, engineering and maths) education had failed. “We have talked about STEM voraciously for 10 years, and yet our engagement with mathematics, science and engineering has fallen,” he said.

“Something’s wrong, and it’s not about more money because we put a lot more money in and didn’t get better results.”

Mr White, who began his career as guitarist in a rock band, then turned to repairing electric guitars and developing computer-controlled stage lighting before entering the logistics software business, said tech jobs were “very secure and extremely well paid”.

“They’re very diverse. They’ll hire anybody that has the requisite skills. And yet, only 4.7 per cent of students undertake tertiary studies in that computing area,” he said, adding reform in education needed to start when children were young.

Melbourne Institute of Applied Economic and Social Research director Abigail Payne said Australia had a higher youth unemployment rate than many comparable countries, even now, when demand for labour was high.

Professor Payne said too few young Australians were going on to tertiary education and the system was too rigid, forcing school leavers to make early career choices. “Why do we keep thinking you know at 16 what you want to do in life? Why aren’t we creating greater flexibility?” she asked.

Federal opposition education spokeswoman Sarah Henderson told the conference that Australia’s school standards were a “national embarrassment”.




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