'The New Right and Aboriginal Rights in the High Court of Australia' by Harry Hobbs in (2022) Federal Law Review (Forthcoming) comments
In resolving disputes, the High Court of Australia sometimes has cause to expound upon the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. This article examines overblown and disingenuous New Right criticism directed towards the High Court in the aftermath of judgments deemed favourable to Indigenous Australians. It finds two themes recur in these attacks: that the High Court’s decision is undemocratic, or that that the High Court has acted illegitimately. This article demonstrates that such claims are legally baseless. Drawing on quotes from major players in this debate, the article argues further that beneath this criticism lies a deeper angst over the sovereign foundations of Australia; an anxiety that reappears in arguments against contemporary calls for constitutional reform. As Australia nonetheless inches closer towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, the ferocity of New Right censure suggests that the movement may fear that the Australian people do not share their same suspicions.
Hobbs argues
In the days, weeks and months immediately following the decision, New Right political and legal commentators attacked the High Court on several grounds. The decision was a stunning example of ‘judicial activism’. The majority had produced the ‘the most legally indefensible’, and ‘most radical judgment in Australian history’. Concerns were raised about how the judgment suggested the Court conceived of its role. If High Court justices misunderstood their function and sought to engage in the political sphere, there would be a real danger that the rule of law and democracy in Australia could be under threat. Two solutions presented themselves; both extreme but apparently necessary. If the judges did not voluntarily resign their commission, Parliament should launch impeachment proceedings, with the view of their removal from the bench on the ground of proved misbehaviour. They should be replaced by ‘capital-C conservative’ judges. Alternatively, a referendum should be held to allow the people to have their say and overrule the politicians in robes. If neither outcome was forthcoming, perhaps the country itself might breakup.
New Right commentators were almost in unison. More in sorrow than in anger they wondered how the High Court could have fallen so far from the days of Chief Justice Sir Owen Dixon, when it was widely regarded as ‘far and away the greatest appellate court in the English-speaking world’? Together they lamented that the Court had ‘abandoned the doctrine of strict constructionalism [sic] ... in the dubious search for contemporary political relevance’. The Court—and Australia itself—was at a crisis point. But what decision had motivated such strenuous criticism?
In fact, it was three decisions—with the first and third being almost thirty years apart—that bore the brunt of New Right opprobrium. Those decisions were Mabo v Queensland (No 2), Wik Peoples v Queensland, and, most recently, Love v Commonwealth; Thoms v Commonwealth. Although each of these cases raised distinct legal issues, all were fundamentally concerned with the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. The High Court’s role in articulating that relationship in a way that recognised and respected the rights of Aboriginal and Torres Strait Islander peoples underlay the criticism that the Court received. Of course, these cases are not the only High Court decisions recognising and protecting the rights of Indigenous Australians that have attracted censure by the New Right. That list is far longer. Nonetheless, these three cases are central to understanding—and disarming—that opposition.
The New Right is a label attached to the conservative political movement that first emerged in the United States in the post-WWII period. Influenced by Austrian political economist and philosopher Friedrich Hayek and United States economist Milton Friedman, the New Right sought to dislodge the post-war consensus and wind back former President Franklin D. Roosevelt’s New Deal. Distinguishing itself from the ‘Old Right’ by a commitment to economic liberalism and a robust defence of the free- market, and from social democratic parties by an emphasis on traditional conservative policies of law and order and support for the family unit, the New Right advocated for a ‘muscular conservativism’. After several decades of growing strength, the movement burst to global prominence with the election of Margaret Thatcher as Prime Minister of the United Kingdom in 1979 and Ronald Reagan as President of the United States in 1980.
In Australia, the New Right surfaced in the late 1970s and solidified during the 1980s. Drawing support from the right-wing of the Liberal and National parties, as well as mining and farming interests outside parliament, the movement rejected the Australian orthodoxy that had supported state intervention in the economy in favour of widespread deregulation. In opposition at the Commonwealth level for much of this early period, the Australian New Right imported the language and tactics of the American movement. Proponents claimed that a cadre of ‘self-interested educated elites’ were supporting the ‘unreasonable gains’ of economically and socially marginalised groups made at the expense of ‘mainstream’ Australians. Multiculturalism and the notion of reconciliation with Indigenous Australians were seen as particularly ‘troubling’, ‘not only because of the threats they posed to social cohesion but because of their expense (as “rent seekers”) in an economy that suffered from a lack of competitiveness and was hit by the end of the decade with recession’. Under the prime ministership of John Howard, the New Right became the dominant force within modern Australian conservativism.
The New Right is generally distinct from but may overlap with ‘constitutional conservatives’. In debate over whether and how to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, a group of legal scholars calling themselves constitutional conservatives have argued against reform that would empower the judiciary, such as through the insertion of a clause prohibiting racial discrimination. For constitutional conservatives, such a clause would undermine parliamentary supremacy and invite inappropriate judicial activism. The New Right also opposes a racial non- discrimination clause, but its concerns are broader. Rather than worried about judicial activism per se, the focus of New Right criticism is outcome oriented. New Right critics may frame their censure as complaints over the most appropriate approach to constitutional interpretation, but as we will see, their real concern appears to be the fact that the High Court has ruled in a way that protects the rights of Indigenous Australians at the expense of ‘mainstream’ Australians.
The paper is divided into three substantive sections. Part II outlines the three cases that form the background to this study. In Part III, I discuss the criticism directed towards the court in the aftermath of each judgment. This is organised thematically to illustrate that the same arguments reappear in repackaged form. As this study reveals, two key themes recur in New Right commentary. First, that the High Court’s decision is somehow undemocratic, either because it has prioritised the interests of Indigenous Australians over non-Indigenous Australians or because the judges have acted as politicians. Second, that the High Court has acted illegitimately by rewriting Australia’s history or by seeking to impute moral responsibility on contemporary Australians for the ‘supposed’ sins of our ancestors. In either case, New Right criticism fixed on the Court misrepresents the law in rhetorically inflammatory ways that help to fuel their larger political narrative.
In Part IV, I demonstrate that these same themes are often used to dismiss contemporary calls for broader constitutional reform. Drawing on quotes from major players in the debate, I argue that these attacks appear to be motivated by an anxiety over Australia’s claim to sovereignty. At root in the New Right’s opposition to Aboriginal rights in the High Court is a recognition (unconscious or otherwise) that the sovereign pillars of Australia are both ‘morally suspect’ and ‘legally shaky’. As Australia inches closer towards constitutional reform, the legal baselessness and political ferocity of New Right criticism suggests that perhaps the movement understands that the Australian people do not share their same anxieties.
