On the morning of Wednesday 9 May I walked down to the High Court expecting to hear yet another bad decision from the judges of that esteemed body. So it turned out to be. Labor Senator Katy Gallagher (ACT) became the 11th senator in this parliamentary term to have her seat confiscated by the Court. This is the Court’s latest bad decision and has driven me finally to write something I have been saying for quite some time during the terms of Robert French (2008-17) and Susan Kiefel (since 2017) as Chief Justice. The judges of Australia’s High Court are a bunch of modern-day Pharisees.

Let me explain. The Pharisees were the religious establishment in Palestine some two thousand years ago. High Court judges are the legal establishment in Australia today. Readers will know of the critique given by Jesus Christ of those elite figures of his day. In the Gospel According to Saint Matthew, Chapter 23, Verse 24, he refers to the Pharisees as “blind guides” who “strain at a gnat, and swallow a camel”. So taken am I with that phrase I decided to look up “The Pillar New Testament Commentary” and here is the opinion. 

“Again these guides are castigated as blind; for all their zeal they cannot perceive the right ways of God. With a humorous illustration Jesus pictures them as straining out the gnat, the point being that this little organism was ‘unclean’ and therefore should not be consumed. But these same people gulped down the camel, the largest of the beasts normally found in Palestine and, in addition, also ceremoniously unclean. They were pernickety in complying with the regulations about the smallest matters but were capable of neglecting much more important matters, things like Jesus had just mentioned. In their eagerness to avoid a tiny defilement the Pharisees are polluted by a huge one.”

When modern Australian commentators say things like “the Constitution commands this” or “the Constitution forbids that” they always neglect to tell us that really we have two constitutions, the people’s Constitution and the High Court’s Constitution. The judges are fanatical in their enforcement of the High Court’s version of that document but they often swallow a camel when they, in effect, repeal words actually to be found in the people’s Constitution. In legal language that practice is known as “reading down” the words in question. 

The eleven confiscations of the seats of popularly-elected senators illustrate the fanatical nature of the High Court’s enforcement of its own Constitution. I challenge anyone to find in the people’s Constitution any statement to the effect that the United Kingdom, Canada, New Zealand, Papua New Guinea, Solomon Islands, Barbados or Jamaica can be classified as foreign powers.

Indeed the United Kingdom is the country whose legislature gave us our Constitution. The above-named countries have in common with Australia the fact of their having the same Sovereign, Queen Elizabeth II. The absurd idea that these are foreign powers is a concoction of the High Court in an infamous decision in June 1999 when Heather Hill, elected for Queensland in October 1998 with a quota in her own right, was not allowed to sit for even one day of her six-year term because she was born in London. She did not realise the judges would deem her to owe allegiance to a foreign power. That she was an Australian citizen did her no good in the eyes of the Court.

Even as the High Court engaged in the fanaticism of its straining out of gnats like Gallagher (who topped the poll in the ACT in July 2016) it swallowed a camel in May 2016 when it upheld the constitutional validity of this outlandish Senate voting system the politicians foisted upon us. It is patently a violation of the commandment of section 7 which asserts that “The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting as one electorate.”

That commands the system be candidate-based but in reality it is party-based. Senators are not directly chosen by the people, they are appointed by party machines. As a result of the negligence of the High Court in its duty to uphold the people’s Constitution the words “directly chosen by the people” are not operative. They can be made to operate if the politicians so decided - but there is little chance of that. The machines of the big parties run the show. They would be very reluctant to transfer power from party machines to those who actually vote for the party.

Consequently, the negligence of the High Court in this matter means the people are “educated” to understand that the purpose of their Senate vote is not the direct election of senators. Its purpose is to distribute numbers of party machine appointments between parties according to a formula of proportional representation between parties.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University. malcolm.mackerras@acu.edu.au)