Stacking the High Court

Six of the nine justices on the US Supreme Court, which recently overturned the Roe v Wade decision, are current or former members of the Federalist Society. Founded in 1982, the Federalist Society has played a major role in “deliberately, diligently shifting the country’s judiciary to the right”. As well as training and socialising conservative law students, lawyers and professors, the society helps appoint young conservatives to prominent positions in government and to the bench. It has been very successful in this. It has been influential in weakening laws that limit how much can be spent on elections (more than $14 billion was spent during the 2020 US election). It has made gun control more difficult, almost led to the overthrow of Barack Obama’s signature healthcare law, and helped gut voting rights protections1.

Australia does not have a libertarian-conservative legal movement quite like the Federalist Society. However, that is not for want of trying. Probably the closest equivalent here is the Samuel Griffith Society. This societywas founded in 1992 by a group led by former Chief Justice of Australia Sir Harry Gibbs, former Senator John Stone (of ‘Joh for Canberra’ fame), businessman and climate change denier Hugh Morgan, and legal academic and former vice chancellor of the Australian Catholic University, Greg Craven. Named after Sir Samuel Griffith, one of the architects of the Australian Constitution, the society describes its aims as being: “to undertake and support research into [Australia’s] constitutional arrangements, to encourage and promote widespread debate about the benefits of federalism, and to defend the great virtues of the present Constitution.” It holds annual conferences, runs an annual national constitutional law essay competition and publishes an annual journal of conference proceedings entitled “Upholding the Australian Constitution”. It is one of a number of groups including the H.R. Nicholls Society, Bennelong Society and Lavoisier Group, that were promoted by Australian business leader and conservative political activist and climate change denier Ray Evans2.

The society is currently led by Ian Callinan2, a conservative appointed to the High Court by the Howard government, about which there were significant ructions at the time3.

The society holds regular conferences and, apart from those involved in its creation, you can get a feel for the type of people that mostly show up for these. There are occasional Labor politicians, such as former South Australian premier John Bannon; former premier of Victoria, John Brumby; former speaker of the Victorian Legislative assembly Ken Coghill; former Tasmanian premier Michael Field; former Queensland treasurer David Hamill; former federal government minister Gary Johns; former member in the South Australia house of assembly, Len King; federal MP Rob Mitchell; former deputy premier of Tasmania, Peter Patmore; former federal minister Peter Walsh; and former federal minister John Wheeldon4.

Most of the people involved are conservative politicians and advisors. These include: Former Liberal PM Tony Abbott; former Liberal senator Eric Abetz (that felt good); former WA Liberal premier Colin Barnett; former Menzies Liberal government minister and former chief justice Garfield Barwick; former Queensland National Party premier Rob Borbidge, former federal Liberal attorney general George Brandis; former Liberal premier of South Australia Dean Brown; former Country Liberal Party chief minister of he Northern Territory, Denis Burke; former Queensland Liberal politician Peter Connolly; former Liberal premier of Western Australia, Richard Court; former Abbott advisor Murray Cranston; former Family First Party senator Bob Day; former Liberal federal attorney general Peter Durack; current federal Liberal opposition leader Peter Dutton; former Liberal attorney general Bob Ellicott; former federal minister Paul Hasluck; former leader of the Liberal opposition in Western Australia Bill Hassell; former Liberal PM John Howard; former Liberal attorney general Tom Hughes; former federal Liberal member David Jull; former Liberal minister Rod Kemp; former Victorian Liberal premier Jeff Kennett; current Liberal federal member Julian Leeser; former Liberal Democratic Party senator David Leyonhjelm; federal National Party minister Bridget McKenzie; former Liberal attorney general for Western Australia Ian Medcalf; former federal Liberal minister Nick Minchin; former Liberal attorney general for Western Australia Michael Mischin; former leader of the Western Australian Liberal opposition Mike Nahan; former Liberal National Party premier of Queensland Campbell Newman; current Liberal senator James Paterson; former federal attorney general Christian Porter; former federal minister Peter Reith; former federal minister Philip Ruddock; former Liberal National Party senator Amanda Stoker; and former Victorian attorney general Jan Wade4.

On top of this, there are IPA mouthpieces: Simon Breheny and John Roskam (Rod Kemp was also from the IPA) and Centre for Independent Studies author Michael Warby, current or former Murdoch media hacks: Piers Akerman, Janet Albrechtsen, Nick Cater, Frank Devine, Miranda Devine, Alan Jones, Chris Kenny, Padraic McGuinness, Brendan O’Neill and Judith Sloan. Then there are numerous oddballs who do not fit into any of the categories above: David Flint, of Australians for a Constitutional Monarchy; Gerard Henderson of the Sydney Institute; Dyson Heydon, former high court judge; Ken Minogue, prominent British conservative political scientist; Liberal Party donor and Janet Albrechtsen’s ex-husband John O’Sullivan; former National Party member and officeholder Bryan Pape; Quadrant author Geoffrey Partington; climate change denier Peter Ridd; former convenor for Australians for a Constitutional Monarchy, Lloyd Waddy; and one of the authors of the white blindfold version of Australian history, Keith Windschuttle4

So, you can see what sort of political slant the Samuel Griffiths Society has. It is ironic that it states that its purpose is to uphold the Constitution, while the conservatives it largely represents are those most inclined to ignore the Constitution, especially the provisions regarding citizenship of elected members, and the separation of church and state. So, can the High Court be stacked like the US Supreme Court? Quite likely, and it is the Samuel Griffiths Society who are at the forefront of trying to do so.

In 2020, a majority of the High Court of Australia held that Aboriginal Australians are not “aliens” under the Constitution – even if they were not born in Australia and are not citizens. In the Love; Thoms decision, the Court explained that Aboriginal and Torres Strait Islander peoples’ longstanding and deep connection to Country means they cannot be considered as not belonging to the Australian community – even if they don’t hold citizenship. In reaching this decision, the court extended the land-ownership principles of the famous Mabo decision to determine who is a member of an Aboriginal group5.

Given that few Aboriginal Australians are non-citizens facing deportation, the decision has limited practical consequences. However, it infuriated many conservatives in and outside government. Peter Dutton claimed the decision was a stunning example of judicial activism, while Institute of Public Affairs mouthpiece Morgan Begg called it the most radical judgement in Australian history. Former LNP senator John Stone even exclaimed that parliament should impeach the four judges in the majority5. However, former Senator Amanda Stoker was the most rabidly opposed. In her paper presented to the Samuel Griffith Society, she praised the work of the US Federalist Society and argued that High Court judges should be selected on the basis of ideology with the aim of overturning the Love; Thoms decision5.

Two of the justices in the majority in the Love; Thoms decision, (Geoffrey Nettle and Virginia Bell) have retired, and were duly replaced by Morrison government appointees Simon Steward and Jacqueline Gleeson. Several months later, the federal government did indeed petition the High Court to overturn the Love; Thoms decision6.

Steward’s name had been bandied about frequently, perhaps bolstered by his conservative credentials as a so-called “black letter” lawyer, who has a more literal interpretation of the law. Gleeson is not a huge surprise either, given her wide-ranging background with expertise in administrative law, competition and consumer law, professional liability and tax law7.

How they will affect the high court remains to be seen, but the Love; Thoms case will be the acid test.



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