Tim Blair


New Criterion



Sunday, June 20, 2004
STRAIGHT THINKING IS VERY HARD WORK, best left to those who are paid large sums to do it.

Personally, I prefer to jump from conclusion to conclusion by the usual zig-zag path. Most of us, whether we're princes or frogs, look more elegant in motion than we do squatting on our positions. And, with a bit of luck the observer will not notice the randomness of our tracks.

Sir William Deane is one of us who has been paid, as a judge of the High Court of Australia, very large sums indeed to think, and do, "right, in accordance with law".

But for Sir William it wasn't enough. He wanted to be a holy Willie, flitting from higher moral ground to higher moral ground, rarely visiting the dreary lily-pad of the law with more than a disdainful splash of his passing.

Dennis Rose was one of those drudges whose task it is to construct the legal lily-pads that justify the salaries of our High Court judges. He was formerly the Chief General Counsel in the Commonwealth Attorney-General's Department in Canberra, just a stone's throw from the bullet-proof glass of the High Court building, and the even more bullet-proof vanity of its occupants.

And what a missile Dennis Rose has hurled at those activist judges, including Sir William Deane, who have in recent decades thought it their job to do justice according to their moral and political insights, rather than doing right according to law. You will find it in the latest issue of Quadrant. Read it and be alarmed. You'll have to buy the June issue, because Rose's dynamite is not available on-line.

Rose was set off by the grumpy and incoherent defence of judicial adventurism provided to an earlier edition of Quadrant by Justice Michael Kirby (which is on-line), but it's his analysis of the legal leapings of ex-Justice Deane, in company with fellow-activists Gaudron and Toohey, that generates the explosive force.

In a word, Rose has done to Deane and Co. what the gentle Keith Windschuttle did to those fabricators of Tasmanian history, Reynolds, Ryan and Co., in his book The Fabrication of Aboriginal History.

What those naughty historians did to the historical record, Deane etc have done to legal precedent.

Rose's devastating dissection of Dean's reasoning in the cases of Polyukhovich (in which the Commonwealth Government was prevented from acting retrospectively against the offences of a mass-murderer of Jews in World War II), and Leeth (in which a majority of judges declined to give themselves power "to strike down any Commonwealth legislation, that, in the view of a majority, made distinctons that could not be justified on 'rational and relevant grounds'. ... The effects could well have extended to state legislation. ... The implications of Leeth for parliamentary democracy were therefore enormous and extremely disturbing."

Not that this would have disturbed any of our activist judges, who believe that overturning vast bodies of established law is a small thing when they find an attractive political goal.

The errors in the reasoning of our judicial adventurists attracts little interest from our academic lawyers, according to Rose. An interesting parallel with the refusal of academic historians to act against historical fabrication, or even to acknowledge its existence.

Before Sir William Deane's self-bestowed license to legislate could play its part in the Court's dealings with the 'stolen generation' claim of Kruger v the Commonwealth, Deane had passed on to broader pastures.

As Rose suggestively puts it:
Justice Deane had ceased to be a member of the High Court in 1995 when he did not refuse a timely offer of appointment as Governor-General
leaving only Justice Toohey to defend this wide-reaching grab for power.

Who said vice-regal appointments are a waste of money? As GG, Deane's defects of argument became more visible, and open to criticism by laymen as well as lawyers. Just think of that egregious mistake about the Mistake Creek 'massacre', exposed by Rod Moran.

In the end, Deane did much less damage by politicising the office of Governor-General than he might have done by continuing on the High Court.