Despite the best efforts of legislators and police, ordinary Australians are being held to ransom by activist groups that, in my opinion, do not represent mainstream Australian interests.
Our executive and legislative branches of government are accountable to citizens through elections, but when they try to do the jobs they were elected to do, our systemically progressive and activist judicial branch seems to defy common sense.
For example, activists are calling for a Palestinian state while Gaza is still in the hands of a proscribed terrorist organisation (and not all Israeli hostages have been returned). The NSW Supreme Court has ruled that the pro-Palestine group can march across Sydney Harbour Bridge despite NSW Police warning of a potential ‘powder keg’.
The situation is not simply a case of protecting freedom of speech, but it points to a grey zone conflict that will play out on the Sydney Harbour Bridge on Sunday.
The day after the Hamas terrorist attacks against Israel occurred, the Sydney Opera House became the site of some of the ugliest events I’ve seen in Australia. If the Sydney Harbour Bridge gets the same treatment, then no Australian cultural icon will be immune to disgraceful propaganda.
The Palestinian Action Group’s win in the Supreme Court of NSW is not a victory for freedom of speech. It demonstrates that unelected judges are able to stymy the ability of NSW Police to put a stop to a protest that endangers peace and public order.
It begs the question: Who holds judges to account?
One way to hold judges accountable to the people they are meant to serve is to elect them.
There are several arguments against electing the judiciary. Electing judges may compromise judicial independence. Ideally, judges are apolitical and interpret the law in a fair manner. The judiciary is key to the separation of powers and the independence of judges keeps their focus on the law and not on politics. However, if elected, there is a risk of political bias and partisanship. This has the potential to put at risk the rule of law if judges bend to donors or popular opinion.
Voter knowledge is another issue, as judicial roles a nuanced understanding of legal principles, not just name recognition or party affiliation.
Elected judges might also prioritise short-term public approval over long-term justice, especially in controversial cases.
On the positive side, elections make judges democratically accountable. Elections also make the selection process transparent and force judges to articulate their judicial philosophies publicly, potentially demystifying the judiciary and engaging citizens in the process.
Elected judges would better reflect ordinary Australians, whereas the current appointment system, it could be said, typically favours established legal professionals from privileged backgrounds.
Further, elected judges might prioritise public interest in their rulings, rather than activism or abstract principles. In the era of Woke there have been many questionable decisions that baffle common sense. Judicial elections have the potential to make the judiciary more relevant to changing times.
However, when the courts can prevent the executive (in this case, the police) from doing what they believe to be their jobs, then the question of accountability is of legitimate concern.
What if Sunday goes pear-shaped? Will the Supreme Court be held accountable? Certainly, if it were comprised of elected judges.
Many arguments against an elected judiciary raise concerns about politicising courts, eroding the rule of law, and leading to populist decisions as seen in the US.
Today’s decision to allow the Palestine Action Group, the same group that organised the October 9, 2023, rally that got out of hand at the Sydney Opera House, to march across the Harbour Bridge tomorrow makes no sense at all. Perhaps an elected judge might have thought twice before putting the police and the NSW government in such a bizarre position.
Dr Michael de Percy @FlaneurPolitiq is the Spectator Australia’s Canberra Press Gallery Correspondent. If you would like to support his writing, or read more of Michael, please visit his website.