The New Right and Aboriginal Rights in the High Court of Australia
| Author | Harry Hobbs |
| DOI | http://doi.org/10.1177/0067205X221146333 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(1) 129–154
© The Author(s) 2023
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DOI: 10.1177/0067205X221146333
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The New Right and Aboriginal Rights
in the High Court of Australia
Harry Hobbs*
Abstract
In resolving disputes, the High Court of Australia sometimes has cause to expound upon the rela-
tionship 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 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 the Australian people do not share their same suspicions.
Received 27 September 2021
I Introduction
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’.
1
The majority had produced ‘the most legally indefensible’,
2
and ‘most radical
* Associate Professor at theFaculty of Law, University of Technology Sydney. Thanks to LynseyBlayden and Stephen Young
for reading and providing detailed comments on an earlier draft. Thanks also to Karen Lee, Joellen Riley Munton and
colleagues at the UTS Faculty of Law for questions and suggestions at an Internal Research Seminar. One final thanks to the
anonymous reviewers and student editors for generous engagement with the manuscript.
1. James Woodford, ‘Borbidge Steps Up Attack on High Court’,Sydney Morning Herald (1 March 1997) 7; Innes Willox,
‘Deputy PM Maintains Court Attack’,The Age (28 April 1997) 4; Matt Coughlan, ‘Dutton Furious with High Court
Decision’,Canberra Times (online, 20 February 2020) <https://www.canberratimes.com.au/story/6640195/dutton-
furious-with-high-court-decision/>. For a longer history of the charge of ‘judicial activism’, see Tanya Josev, The
Campaign Against the Courts: A History of the Judicial Activism Debate (Federation Press, 2017).
2. John Stone, ‘Fifty Years of Unremitting Failure: Aboriginal Policy since the 1967 Referendum’(November 2017)
Quadrant 64; James Woodford, ‘Fischer Lashes High Court on Wik’,Sydney Morning Herald (11 January 1997) 1.
judgment in Australian history’.
3
Concerns were raised about how the judgment suggested the Court
conceived of its role. If High Court justices sought to engage in the political sphere and ‘invent …
new law[s]’,
4
it was clear they misunderstood their function. It was no wonder ‘large parts of
Australia’held the court ‘in absolute and utter contempt’.
5
The stakes were high. There was a real danger that the rule of law and democracy in Australia
could be under threat.
6
Two solutions presented themselves; both extreme but apparently necessary.
If the judges did not voluntarily resign their commission, Parliament should launch impeachment
proceedings,
7
with the view of their removal from the bench on the ground of proved misbehaviour.
They should be replaced by ‘capital-C conservative’judges.
8
Alternatively, a referendum should be
held to allow the people to have their say and overrule the politicians in robes.
9
If neither outcome
was forthcoming, perhaps the country itself might breakup.
10
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’?
11
Together they lamented that the Court had ‘abandoned the doctrine of strict
constructionalism [sic] …in the dubious search for contemporary political relevance’.
12
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 30 years apart —that
bore the brunt of New Right opprobrium. Those decisions were Mabo v Queensland (No 2)
(‘Mabo (No 2)’),
13
Wik Peoples v Queensland (‘Wik’),
14
and, most recently, Love v Com-
monwealth (‘Love’).
15
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
3. Morgan Begg, ‘Left’s Control of Higher Courts Under Threat’,The Australian (10 March 2020); Morgan Begg, ‘Activist
Judges Misrepresent Mabo to Create Privileged Class’,The Australian (13 February 2020).
4. Roderick Me agher, ‘Address Launching Upholding the Australian Constitution,Volume1’in Upholding the
Australian Constitution: Proceedings of the Inaugural Conference of The Samuel Griffith Society (1994) Appendix 1.
5. Woodford (n 1).
6. Ben Mitchell, Paul Chamberlin and Greg Roberts, ‘Taxpayers Must Fund Wik: Nats’,The Age (8 February 1997) 7;
Morgan Begg, ‘Courting Calamity’, (Winter, 2020) IPA Review <https://ipa.org.au/ipa-review-articles/courting-
calamity>.
7. Chris Merritt, ‘Judging the Justices’,The Australian (19 February 2020) 11.
8. Nikki Savva, ‘Fischer Seeks A More Conservative Court’,The Age (5 March 1997) 6; Amanda Stoker, ‘All’s Fair in Love
and War: The High Court’sDecision in Love & Thoms’(Samuel Griffith Society, Online Speaker Series, 2020); James
Allan, ‘High Court of Wokeness’,TheSpectator Australia (21 February 2020) <https://www.spectator.com.au/2020/02/
high-court-of-wokeness/>.
9. Richard Court, ‘Referendum on Mabo Decision Sought’(Media Statement, 10 July 1993). Peter Reith, a Liberal MP in
the Commonwealth Parliament publicly supported Court’s proposal: Tim Rowse, ‘How We Got a Native Title Act’
(1993) 65(4) The Australian Quarterly 110, 122; Stoker, ‘All’sFair in Love and War’(n 8) 9; Maurice Newman, ‘Masks
Slip to Reveal the Ugly Face of the Future’,The Australian (21 June 2017) 14.
10. Murray Goot, ‘The Wild West? Yes,No and Maybe’(1993) 65(4) The Australian Quarterly 194, 194; Mark Coultan and
Mike Seccombe, ‘Fischer’s Mabo Outburst’,The Sydney Morning Herald (1 June 1993) 1.
11. SEK Hulme, ‘The Wik Judgment’(1997) 8 Upholding the Australian Constitution: Proceedings of the Eighth Con-
ference of The Samuel Griffith Society 130, 141. See further SEK Hulme, ‘The Racial Discrimination Act 1975’(1997) 9
Upholding the Australian Constitution: Proceedings of the Ninth Conference of The Samuel Griffith Society 17, 17.
12. Commonwealth, Parliamentary Debates, House of Representatives, 11 April 1986, 2128 (Allan Rocher).
15. (2020) 94 ALJR 198 (‘Love’).
130 Federal Law Review 51(1)
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