Thomas v Mowbray, the High Court’s decision yesterday to uphold the Howard government’s anti-terror laws, will be remembered by historians and legal scholars for two things: that this was one of the most conservative judgments in the Court’s 104-year history, and that Justice Michael Kirby’s full blooded dissent will be forever remembered as one of the great Australian cries for liberty.

Michael Kirby got it right when he said that yesterday’s ruling by the majority of the High Court to uphold the anti-terror laws:

… 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.

It is no exaggeration to say that if the current High Court had been around in 1951 then Bob Menzies might have got his way and had his attempt to ban the Communist Party upheld as constitutionally valid.

And if the current Court had been sitting in 1983 there is no guarantee that Tasmania’s World Heritage Franklin River would have been saved from the dam builders’ bulldozers.

And a decade on, in 1993, Eddie Mabo’s brave fight to assert his native title rights to his people’s land off far north Queensland might have ended in tears.

That this might be the case is evident from reading Justice Callinan’s judgment yesterday. In it he makes the extraordinary assertion that the majority decision in the Communist Party Dissolution Case, led by Australia’s greatest ever jurist, Owen Dixon, might have been wrong. Dixon he said wasn’t as much a man of the world as the Chief Justice of the time, John Latham, who wanted to ban the Communist Party.

Callinan pulls no punches in casting doubt on Dixon’s credentials:

(I) have commented on aspects of the judgment of Dixon J in the Communist Party Case which time, to say the least, as well as the facts proved here, make questionable: the drawing by his Honour of a distinction, as if there were a clear line between them for constitutional and all practical purposes, between times of peace and serious armed conflict, and internal and external threats. Perhaps it was the country’s recent emergence from a prolonged and costly declared war during which liberties had been curtailed and rights suspended, that influenced his Honour’s responses to the CPA.

But John Latham “was in a sense more perceptive and alive to the gravity of direct and indirect internal threats inspired externally, and the different manifestations of war and warfare in an unsettled and dangerous world,” because he was “well informed no doubt by his far reaching and diverse experience as head of Naval Intelligence during the First World War, member of the Australian delegation to the Versailles Peace Conference after it, busy counsel, parliamentarian, attorney-general, leader of the opposition, first minister to Japan, and Chief Justice.”

Callinan is wrong about Dixon being less perceptive about the Cold War world than Latham. Dixon was Australia’s Ambassador to Washington at the height of World War II and he was appointed mediator of the India-Pakistan Kashmir dispute in 1950. As former Menzies government minister and Governor-General Paul Hasluck said of Dixon, he had the “most distinguished mind I have been privileged to know among fellow Australians”.

Read the full decision here.