The baddies sometimes lose

Rob Corr has an excellent post on yesterday’s decision by the High Court upholding the applicability of Australian industrial awards (and the jurisdiction of the AIRC) in relation to foreign-crewed and owned vessels operating in Australian coastal shipping. Here’s an Age article briefly discussing the decision.

Interestingly for High Court majority watchers, this was a rare 7-0 decision where all Justices delivered a single joint judgment. The Bench included the newest appointee Justice Heydon. It seems you just can’t trust even ultra-conservatives to do the Right thing once they get their tenured backsides on those plush judicial armchairs.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Robert
2021 years ago

Thanks for the compliment, Ken.

I think the real story is not that CSL behaved badly (that’s their corporate responsibility), nor that the High Court agreed with the MUA, but that the Government is deliberately undermining the Australian shipping industry and border security in order to attack a union.

Ron Mead
Ron Mead
2021 years ago

This appears to be a pretty straight-forward jurisdictional decision by the High Court. The Government may well wish the law to be different and if it had a majority in the Senate it would perhaps be open to it to amend the law to suit its agenda. Fat chance of this happening. Reading the judgement, it was difficult to see why either CSL or the Government could have been advised they had a chance of winning – I guess lawyers can always see an opening it it gets them business!

I suppose your swipe at Justice Heyden was your tongue-in-cheek way of indulging your prejudice against him, but it seems to me that black-letter law won in this case – just what I would have expected from a properly conservative judge.

Ken Parish
Ken Parish
2021 years ago

Ron,

Pleased to see you’re still around. I wasn’t swiping at Justice Heydon, who I’m sure is a man of the utmost integrity. My swipe was at the Coalition politicians who seem to have believed that they could stack the Bench and always get case outcomes to their liking in “political” cases.

Although there will fairly frequently be cases where the legitimate “leeways of choice” allow judges to follow their personal ideological bent, there are many situation where, as you say, precedent and sound legal reasoning dictate a result that the government (and perhaps even the judge) may find personally uncongenial. There is no contradiction between stressing that judges act with integrity and in acordance with precedent and sound legal reasoning, while simultaneously arguing that their ideological orientations are also relevant. All lawyers engaged in High Court litigation attempt to predict and second-guess the predilections of the Justices, so they can address their concerns and engage in effective advocacy. “Legal realism” (as this recognition of the humanness of judges is called) is not inconsistent with judicial integrity or fidelity to precedent etc.

My criticisms of Heydon at the time of his appointment were essentially because of his fairly overt lobbying for the job, which looked a bit crass, and also because some of his statements about the nature of precedent and judicial activism were a tad over-simplified (perhaps for a lay audience).

Ron Mead
Ron Mead
2021 years ago

Although the coalition is labelled “conservative” by all and sundry so repetitively that “it must therefore be so”, this government is quite an activist, change-agent one. John Howard is conservative in some social attitudes such as those affecting “morals” before the Left changed the meaning of that word to reflect its own brand of “political correctness”, but this is not the essence of the Coalition’s programme. If they were going to stack the HC bench with judges who would promote its programmes they would hardly have appointed someone who is a champion of black-letter law.

Its all very well swiping at Coalition politicians for this fault but the appointments of Gaudron and Kirby by the previous ALP government, and of Murphy in pre-historical times were far more blatant than the Howard appointments, however much you and Chris may dislike Callinan.

Ken Parish
Ken Parish
2021 years ago

Ron,

You’re certainly in a typecasting mood today, aren’t you? I’m too tired to rise to the bait right now.

mark
2021 years ago

Gaudron and Kirby have been beaut Justices, as far as I can tell. Maybe not from a “those damnable hero judges!” standpoint (though I’d be wary allying myself with Liar Albrechtson), but they’re obviously very intelligent, knowledgeable, and professional.

Sure, they aren’t legalists. But give me those two over SCOTUS’ Scalia any day of the week: at least they’re not ignorant nutcases.

matt
2021 years ago

I’m just glad for the unanimous decision. *Especially* after Cattanach v Melchior, eh Ken? :)