The current High Court is capital C conservative, which is of course what you would expect after a decade of Howard government judicial appointments. And so it should come as no surprise that the Court would this morning uphold the constitutional validity of a preventative detention order placed on Jihad Jack Thomas.

But what should frighten Australians about today’s decision is that the High Court appears to have lined up with the Executive Government and the Parliament in their attempts to severely curtail liberty and adjudge the innocent guilty through preventative detention.

What the High Court has said today is that governments can use the Defence Power in the Constitution to legislate not just in respect of external threats to Australia’s security, but internal threats as well. And in doing so, the High Court has decided that the Communist Party case of the 1950s, when the Court, led by one of the greatest jurists of all time, Owen Dixon, stymied the Menzies government’s attempt to ban the Communist Party, was probably wrong.

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As Justice Michael Kirby put it this morning in his valiant dissent:

I did not expect that, during my service, I would see the Communist Party Case sidelined minimized, doubted and even criticized and denigrated in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing.

That the High Court has failed up uphold civil liberties today points yet again to the need for a Bill of Rights in this country.

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Peter Fray
Peter Fray
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