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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

In the US, its highest court - the Supreme Court has become extremely politicised.

Judge appointments are watched like a spectator sport; and decisions like the overturning of Roe V Wade blur the lines between the judicial and the political.

In Australia, there’s concern an anti-court movement, against our High Court, is borrowing tactics from America.

Today, lawyer and author of ‘Courting Power’, Isabelle Reinecke, on the threat of the anti-court movement on Australia’s justice system, and why the High Court needs to be protected.

It’s Wednesday, October 18.

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ANGE:

So, Isabelle, you work in public interest litigation. And a fascinating case that you're working on right now is a climate change class action in the Torres Strait. Can you tell me about that case and why it's so significant?

ISABELLE:

So this is a groundbreaking case from Uncle Pabai Pabai and Uncle Paul Kabai, two Guatemala men and community leaders from the Torres Strait Islands.

Audio excerpt – Paul Kabai:

“Yeah. My name's Wadhuam Kabai, 83 years old. I’m from Saibai Islander.”

Audio excerpt – Pabai Pabai:

“My name is Pabai Pabai. I'm from Boigu Island.”

ISABELLE:

Basically, the uncles are suing the federal government, arguing that the government has a legal responsibility or a duty of care to stop causing climate harms in the Torres Strait.

Audio excerpt – Pabai Pabai:

“We're here suffering to call upon government saying that we need help. And we don’t want to be climate change refugees.”

Audio excerpt – Pabai Pabai:

“We are the people of the council. We do know from the sea to the sky, from the land. I'm looking at long term conditions. If this issue would be tackling, we don't want to lose our community under the water.”

ISABELLE:

In June, there was a hearing on country, which means that the court and the lawyers for both sides all go out to the places that the uncles are from. I run the Grata Fund, a strategic litigation funder and campaign organisation and where assisting with this case. And I was actually able to attend those hearings, which was a pretty incredible experience. Those hearings took place in Boigu, Badu and Saibai Islands, which is some of the northernmost islands in the Torres Strait, pretty close to PNG. You can actually see PNG across the water from Uncle Papi's home and it's a completely different environment to what a court is used to in Melbourne or Canberra or Sydney. And it meant that the uncles and other witnesses from their communities were able to give evidence and literally take the court around and show them what's actually happening because of climate change right now.

Audio excerpt – News Reporter (ABC):

“The court visited three key locations, including sacred sites at risk of being lost to the sea. Elders listened on and Uncle Pabai Pabai gave evidence of increasing king tides, breaching the seawall, damaging homes and gravesites.”

Audio excerpt – Pabai Pabai:

“The roads, the houses…”

Audio excerpt – Paul Kabai:

“We’ve got water coming in from, through the river between the swamp sap and water coming in through the drainage system. And we are living on this very narrow strip of land.”

ISABELLE:

It's a hugely ambitious case and campaign, and I'm really hopeful because the law tends to catch up with facts when the facts are so egregious.

And in the issue of climate change, the impacts of climate change are so wildly profound that the law is being forced to catch up.

ANGE:

And this case is clearly in the public interest. But bringing about a class action against the government isn't an easy thing to do. You know, everyday people, unless you're in The Castle, just don't go to the High Court on a whim, right? Why is that? What barriers are there in Australia from regular people like the uncles in the Torres Strait from holding the government to account?

ISABELLE:

That's right. The judicial system is set up partly by design so that you can just go along to the High Court on a whim and that's fair and quite useful to a point. But the reason that our system is so difficult to access, even if you've got free lawyers, is something called adverse costs. And adverse costs are essentially the fees payable when you take someone to court and you lose. So you have to pay the winning side's legal costs if you lose. And for everyday people, like communities in the Torres Strait, the prospect of having to pay the other side's legal costs, who is generally a government or a large corporation if they lose, is just the most enormous disincentive.

Other countries don't have the same problem, or at least not to the same degree. So places like the UK, Hungary, Germany, the US, Brazil and many more have created exceptions and carve outs to make it possible for public interest litigants and communities to actually bring cases against particular governments where they are otherwise unaccountable. And, you know, that's something that in Australia is really unfortunately quite behind on. And Ange aside from that, something else that really threatens public interest litigants is this anti-court movement, which I would argue has been slowly and relatively quietly undermining the courts in Australia for some time.

ANGE:

Yeah, right. Can you explain what you mean by that? The anti-court movement, What is that and where is it coming from?

ISABELLE:

So the anti-court movement in Australia isn't really spoken about or noticed particularly much, but it's something that's been working in the background really since the historic Mabo decision.

Audio excerpt – ABC Anchor:

“For the first time, Australia has recognised the legal existence of Aborigines prior to white settlement.”

ISABELLE:

Now, what happened after that decision was a series of ferocious political and media commentary attacks.

Audio excerpt – John Hewson:

“This is a day of shame for Australia. A day of shame for Australia.”

Audio excerpt – Laws:

“Can you understand the white population of Australia finding it difficult to come to terms with the fact the Aboriginal people will be compensated, that they will receive more money?”

Audio excerpt – Caller 1:

“The whites have been held back.”

Audio excerpt – Jeff Kennett:

“It’s not every lease, it’s every property in Australia that could be at risk.”

Audio excerpt – Caller 2:

“I have to buy my land, why can’t they buy theirs?”

Audio excerpt – Paul Keating:

“I’m not here basically to soak up all your prejudices, I’m here to answer a few questions about Mabo.“

ISABELLE:

And what they started to do which suggested that actually the way the judges had gone about their work was inappropriate and they adopted this American term judicial activism.

And what that does at a most basic level is undermines the sense of courts being independent and something that can make impartial decisions that are unaffected and untainted by the hyper partisan political system that we otherwise exist in. But it hasn't ended there. It's sort of grown and transmuted and taken other forms. And I do have concerns that that movement is borrowing quite explicitly from the American playbook where their justice system has become extraordinarily politicised.

ANGE:

Coming up – how talking points from the US are being used to sew doubt about our courts.

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ANGE:

So, Isabelle, the anti-court movement you're talking about sounds like it threatens the confidence people have in the courts and in the idea of seeking justice. As you've said, it's similar to what is happening in the US. But how is the anti-court movement playing out in Australia?

ISABELLE:

Really, if you think about it in terms of the idea of judicial activism, we really see it being used as the term all the time by conservative commentators.

Audio excerpt – Peta Credlin:

“For me tonight, it's the issue and the growing instance of judicial activism that's most concerning.”

Audio excerpt – Rowan Dean:

“What you are seeing increasingly in Australia and particularly in Victoria is what's called activist judges.”

Audio excerpt – Some Senator:

“But we've got to get real here. Labor always appoint hard left activists into these types of roles because they think judicial activism is a good thing.”

ISABELLE:

Other terms that have been used from time to time is lawfare, which is also borrowed from the US.

Audio excerpt – Andrew Hastie:

“Using our legal system as a form of statecraft, we call it lawfare. I'm wondering if…”

ISABELLE:

And one really recent example of how that anti-court campaign is playing out has been in some of the materials from the referendum “No” campaign which have really sought to weaponise fear of the courts and the courts making a decision.

Audio excerpt – Barnaby Joyce:

“And the Cabinet, listeners, selects High Court judges, which interprets the powers of the Constitution, which is how the powers of the Voice will be determined. So they’re determining their own powers.”

ISABELLE:

But there's also the issue of High Court appointments, which is really important. You've only got seven judges in the High Court and they're making some of the most foundational decisions about who we are as a country and what is lawful for governments to do or not. And two High Court vacancies came up in Australia in 2020 because two judges were retiring and that meant that the Morrison Government had the ability to choose the two justices that they wanted and the difference with one of these appointments recently is that unlike previous appointments that some conservatives had claimed as a political victory, this judge has been making some indications in his judgements that he is prepared to unpick longstanding judicial precedent about some pretty fundamental issues, including the implied freedom of political communication, which is one of our rare rights in the Australian Constitution that really goes to things like media freedom, for example. That’s a little bit of a concern for anyone watching really closely. It's not saying that the whole system is going to come undone any quickly, but it is something to be kind of aware of.

It affects things beneath the High Court as well though. If you look at the Administrative Appeals Tribunal, the AAT, that's the tribunal where people settle kind of administrative government disputes. So you might end up there if you're contesting a decision for Centrelink, for example, and the tribunal appointments there became so politicised under the Coalition government that in 2022 the New Labor Government decided actually it was going to have to abolish the AAT a 50 year old body and replace it with a new body.

Audio excerpt – News Reporter (Sky):

“The Albanese Government is abolishing the Administrative Appeals Tribunal because it is concerned the body has been stacked with too many Liberal Party figures.”

ISABELLE:

A review, for example, had found that people applying for protection visas were twice as likely to be knocked back by a tribunal member who had been appointed by the Coalition government. So that politicisation of the courts isn't a theoretical thing anymore. It's already starting to happen.

ANGE:

And attacks on the High Court that you've mentioned, like the Mabo decision, have focussed on cases involving First Nations peoples. How important is the neutrality of the High Court when it comes to the lives of Indigenous Australians?

ISABELLE:

Yeah, look, political attacks on the High Court are always sharpest when First Nations people's rights are at stake and we've seen that obviously in Mabo, in Wik, and I think it speaks to a deep racism that it's when Indigenous people's rights are supported by courts, that there is the most ferocious sort of response. And the reason often First Nations people's rights have been upheld so successfully in the High Court is because the Court is to a degree insulated from that political process of spin and PR and is really actually interested in facts.

So, for example, recently a community in the Northern Territory brought a case against the Northern Territory Government, and that's because the Northern Territory Government is the landlord in that community, that people rent homes from the government. And the water that was being pumped into people's homes or is being pumped into people's homes is toxic. And this community said to the government, Look, we need you to to fix this water problem. We can't be drinking uranium. It's causing really terrible health impacts. But the government said, no, no, it's not our responsibility to make sure that the water quality is good at this other government agency over there. And it has taken the court system to actually say to the Northern Territory Government, actually, no, you are responsible and you do have a responsibility to provide safe drinking water into the homes of people in remote communities, and that has potential application for people in remote communities in the entire country. That's not to say courts are safe places necessarily for First Nations people. However, when you're talking about government accountability for First Nations people, it's a really, really important mechanism.

ANGE:

And Isabelle, if Australia's courts are under threat, if they are at risk of becoming politicised in a way that is similar to the US, what can be done about it and what happens if we do nothing?

ISABELLE:

I don't want to overstate the risk and cause a kind of anti anti-court campaign because I think that just ends you inevitably in the rabbit hole down to the US where you have this hyperpartisan left versus right judicial system, which is kind of a mess. However, we do need to be aware of the court's role in democracy, aware and proud of, and celebrating the role of courts in holding governments accountable to the law. People often think of courts as a place that sends people to jail or settles divorces, but actually the starting point for the court, the reason for its existence really in the first place in our Constitution is to make sure that the government, so the legislatures and the Parliament actually obey the law in the way that anyone walking down the street obeys the law.

Of course, that doesn't mean there shouldn't be any scrutiny. You need scrutiny of High Court decisions, but it can't just be when one side of politics doesn't agree with a decision.

And what we can do to help that system thrive is help make sure the ecosystem that exists around litigation that gets to the court is really, really healthy. By opening up access to courts, what we are actually doing is strengthening democracy. If we have a whole bunch of cases that can't get to court simply for reasons like money, that could be actually there to hold governments accountable to the law, that's a real problem. We need to be able to help people get to court so that they can hold governments accountable on the issues that affect them. I think that this is a really achievable goal. And I'm really hopeful that this sort of a cultural shift in attitudes will actually help the court more fully embody its role as a really essential part of our democracy.

ANGE:

Isabelle, thanks so much for your time.

ISABELLE:

Thank you.

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ANGE:

Also in the news today…

Clive Palmer’s $40 million dollar super yacht is safe, after it ran aground and was stranded in shallow water near the port of Singapore.

It is unknown whether Palmer was onboard the yacht at the time.

And…

A 56-year-old man has died in fires near Kempsey in New South Wales, as fires across the state continue to burn out of control.

On Tuesday, there were 77 active fires in New South Wales, with at one point almost 30 remaining uncontained.

I’m Ange McCormack, this is 7am. We’ll be back again tomorrow.

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