I defer to no one in terms of my disdain of and scorn for this Albanese government. Bankruptingly stupid net zero and renewables policies giving us electricity costs that are three times those of some US States. Disgraceful abandonment of Israel. Productivity-killing labour relations changes. Work-from-home concessions to our bloated bureaucratic sector that are the polar opposite to the Trump administration’s unwinding of work-from-home the minute Mr Trump is sworn in. And don’t even mention our woeful military. Or Mr Albanese’s year-long failed flirtation with a race-based change to our constitution. The sooner Team Albo is history the better.

All that happily conceded, however, it is just wrong to do what the Sky TV after-dark crowd are doing and mostly blaming Labor for the chaos around the previously indefinitely detained people recently released. Be clear. Our constitution has not changed one whit since 2004. So recall that back in 2004 one of the best set of High Court of Australia judges in this country’s history decided the Al-Kateb case. That case allowed the indefinite detention of these people if they were unwilling or unable to go back to where they’d come from. I wrote about that decision over two decades ago in a peer-reviewed law journal arguing the majority High Court judges had it right. So fast forward to last year. A new High Court overturns that Al-Kateb case in NZYQ, opening up all the predictable consequences we’re seeing now.  Our constitution hadn’t changed, not by a jot or a tittle. Only the composition of our top court had changed. And it was the Coalition that had appointed the majority of the judges that overturned Al-Kateb. It was their judicial picks during their nine years in office that also gave us the 2020 Love decision, creating out of thin air some sort of ineffable special status for non-citizen people claiming to be Aborigines. Do you want to put the bulk of the blame on some group for what’s happening right now with the recent decision striking down the need for these sometimes dangerous people to continue to have to wear ankle bracelets and abide by curfews? Put it on the Coalition. They picked three of the five judges who were in the majority in that just-decided YBFZ case. (Here’s one note of optimism – just before losing office, the Libs did pick Justice Steward who, alone, argued in that YBFZ case that the constitution left these matters to the elected parliament. Steward’s right. Maybe, just maybe, that’s a sign we’ll get better picks moving forward.)

All of which brings me to the recently released Faruqi v. Hanson, s.18C hate speech decision in the Federal Court. I’m tempted to steal Shakespeare’s line and say that the case ‘beggars all description’. But I’ll resist that temptation and give you the gist of this woeful decision. To start, recall that this provision was weaponised against Andrew Bolt in 2011 and that Tony Abbott campaigned with a promise to repeal s.18C – which basically makes it unlawful to do a public act that is ‘reasonably likely to offend, insult, humiliate or intimidate another person or group… because of the race, colour or national or ethnic origin of the other person’. Then s.18D exempts acts done reasonably and in good faith on various grounds including in the course of any ‘genuine purpose in the public interest’. When former PM Abbott ran into strong opposition from the ABC and in his own party room he folded, broke his promise, and never even put the change to the Senate to get it rejected there. (And, boy, did that put offside some of Abbott’s biggest supporters.) A bit later the Turnbull government put some enervated amendments to the Senate. These failed. And as many of us predicted at the time, this free speech-inhibiting law has come back to stifle open and needed debate on controversial issues.

Here is the factual background to this case. Greens Senator Mehreen Faruqi, just 12 hours after Queen Elizabeth II died, tweeted of her as ‘the leader of a racist empire’ and the like. Senator Pauline Hanson responded that Senator Faruqi’s attitude ‘disgusts her’ and that if she’s ‘not happy’ [she should] ‘pack her bags and piss off back to Pakistan’.  In what world should we have an unelected judge picking through the minutiae of a highly charged political back-and-forth between two sitting senators’ tweets? And making the thin-skinned taking of offence a potent political weapon? And then finding that Faruqi’s feelings of offence and humiliation meant that he, the unelected judge, could order that Hanson’s tweet be taken down and that she had to pay Faruqi’s huge legal costs.  (Remind me, please, are the applicant’s costs still fully covered by the taxpayer when one brings these speech-inhibiting s.18C cases?) Well, that’s what happened. Talk about putting your thumb on the scale for one side in a political stoush.

Now in one sense a judge has to interpret the law that’s on the statute books. But this judgment is riddled with the sort of claims you’d find in the aforementioned Love case.  The judge implicitly supports the ‘underlying factual premises’ of Faruqi’s claims about the British empire being racist and built on the wealth of colonised peoples (see paragraph [245]). Maybe for some balance the judge should read Nigel Biggar’s book or Niall Ferguson’s? He accepts (or labels as ‘orthodox’) a professor’s view that whites can more easily be racists to blacks than vice versa because one’s ‘membership of a powerful group is qualitatively different [from slurs at] members of marginalised or oppressed groups’ (paragraph [255]). This is straight out identity politics mired in groupthink, couched in left-wing gobbledygook. And as the Voice referendum taught us, when 90-plus per cent of academics are left-leaning what is and isn’t academically ‘orthodox’ tells us nothing remotely of relevance to public opinion or to any court today. The judge said not just that a hypothetical member of the victim group (all such groups necessarily being arbitrarily chosen in my view), but even an average Australian, would be offended by Hanson’s tweet (paragraph [234]). I disagree, and not just because that would make everyone subject to the thinness of the complainer’s skin. It’s also because I’ve had way, way more brutal, attacking, nasty emails sent to me than what Hanson directed to Faruqi. Of course I’m a stale, pale male. So maybe that doesn’t count. The judge talks of ‘othering’ ([221]) and ‘intersectionality’ ([280]). (Barf.) He says the Hanson tweet was ‘because of’ Faruqi’s race, not her same-day-as-the-monarch-dies tweet that initiated and provoked the exchange. Maybe worst of all, this judge decides that Muslims are a protected group under s.18C. Well, sometimes they are. He transmogrifies religious status into race-based status. Are we bringing back some sort of status-based blasphemy laws?

I could go on. Readers will see that I think this is just a terrible decision, even admitting that the judge was stuck with a terrible law to apply. But we now have unelected judges policing political debate. Recall that the lawyerly caste last year were massively pro-Yes. As were those judges and ex-judges who voiced public views. I would not want to trust my fate to the judicial caste in this country on any issue that required the judge to take positions on political matters or appropriate worldviews.

Oh, and did I mention that the judge in the Hanson case was appointed by the Coalition? You probably guessed that already.