Wik: whither the separation of powers?

Opinion Article

1997 January, 2

It is unseemly for politicians to be sticking the boot into the High Court post-Wik. Our legal system is in danger of being devalued

Of all the miserable cargo that ever left the shores of England, I have long cherished at least three items of colonial baggage: Earl Grey's tea, that sublime game cricket and the common law of England.

Afflicted with every young lawyer's fascination with the common law, it is probably political heresy to confess my enthusiasm for this colonial institution.

Indeed, in the tense lead-up to the delivery of judgment in the Wik people's case by the High Court of Australia, I confess to asking myself: Will our enthusiasm survive a negative decision, because clearly not all of the development of the common law of native title in the future will give our side joy?

There is no doubt that the former suburban solicitor, John Howard, shares an enthusiasm for the legal heritage of mother England.

In his address to the Australian National University on reshaping Australian institutions last year, he said: "The Parliament and the High Court represent the two other institutional pillars that have roles independent of government. The High Court is not beholden to the Federal Government and it is charged with upholding the Constitution."

The failure of politicians to appreciate that they are not beyond the law and that the courts are and must be independent of government was obvious in the Wik aftermath.

Northern Territory Chief Minister Shane Stone and Queensland Premier Rob Borbidge led the uncouth charge against the High Court. Aiming to arouse national hysteria to justify legislative extinguishment of native title in pastoral leases, Borbidge said the High Court had done "a great disservice" to Australians and made the astounding statement to the effect that "Parliament is the highest court in the land". From the time Deputy Prime Minister Tim Fischer criticised the High Court for not bringing the decision down sooner to the chorus of criticisms by politicians after it came down, the conduct of elected representatives reveals a basic failure to understand and respect the doctrine of the separation of powers.

This doctrine is fundamental to our constitutional democracy. If the notion of separation of powers escaped Queensland in earlier times, it clearly still eludes its present leadership.

Since Mabo, it has become quite acceptable to treat the High Court as if it were a political institution, and to take to it boots and all, even though the court is quite unable to respond in kind. How many local members have we heard during the past week sprouting about how "disgraceful" the court has been and how "out of touch with ordinary Australians" the judges are? As if the court should be subject to mob rule.

It might be said that all people, including elected politicians, have a right to express their views on the court and its decisions. Indeed, robust debate about legal issues should not be denied. However, while freedom of opinion might be conceded in relation to obscure backbenchers seeking to play the race card in the regions, different considerations surely must apply to our national leadership.

It is most unseemly for the national Government to be seen in any way to impugn the role and integrity of our highest judicial institution.

A critical responsibility that falls on our national leadership is the maintenance of confidence in our national institutions. For political pressure to be brought to bear, or to be seen to be brought to bear (as when the Deputy Prime Minister had a go at the High Court), is to devalue our system of law and government. Furthermore, there is an unwritten convention that the executive should not criticise the judicial arm, as Howard's expression of disappointment tended to do. Imagine what outrage there would be if the High Court judges started to express their disappointment in the Prime Minister or his Government. Our system would soon fall into disrepute. The Prime Minister must show leadership to ensure the courts are not dragged into political controversy and must help maintain public confidence in our judicial system.

I suspect that, like many lawyers of his generation, Howard, follower of the common law, believes in the declaratory theory of the role of the court.

That is, the court's role is to declare the law and to interpret legislation, and not to "make law". He would therefore have been alarmed at the frank words of the former chief justice, Sir Anthony Mason, who said that it is "a fairytale" to believe the role of the court is simply to declare law. We have never picked our legal rules full-blossomed from the trees.

The legal criticism in the wake of Mabo concerned this very question of the court's methodology. The Wik decision no doubt adds further fuel to the criticism. The "activist" label has now become a popular characterisation of the court and it is clear from reading the judgments in Wik that the judges are acutely aware of these questions about their role and methodology.

While Howard insists he has never repudiated Mabo (neither has he celebrated it), he clearly has reservations about the decision and its implications.

His reservations are founded on his views of the judicial methodology employed and the role of the court. The Prime Minister essentially still believes in the fairytale theory rather than understanding that it is the "timehonoured methodology of the common law" that has produced Mabo and Wik.

Native title has an impeccable pedigree in the English common law traditions of Britain, New Zealand and North America. It is that part of the colonial heritage that the indigenous peoples of Australia will be loath to repudiate.

Wik: whither the separation of powers?