Judges who think they know better

The doctrine of separation of powers is central to Australia's constitutional system. Parliament makes laws, the executive administers them, and the judiciary interprets and applies them.

This is true of all democratic systems: judges are expected to interpret the law rather than create it. They are deliberately unelected and independent so that they can decide disputes impartially.

Their legitimacy comes from applying statutes passed by elected parliaments within principles established by constitutions. When judges move beyond interpretation and begin effectively making policy, they risk undermining democracy and weakening public confidence in the courts.

Law-making belongs to parliament where elected representatives can be voted out if the public disagrees with them.

Supporters of judicial activism argue that judges must adapt the law to changing social values. However, judicial creativity undermines certainty. Both citizens and governments need to know that laws will be interpreted according to established principles rather than the personal philosophies of individual judges.

In 2026, the New South Wales Court of Appeal struck down anti-protest laws introduced after the Bondi Beach terror attack, the court holding that the legislation "impermissibly burdened" the implied constitutional freedom of political communication.

While the ruling was praised by civil liberties groups, the reality is that judges were intruding into inherently political matters involving public safety and protest regulation.

During protests surrounding the 2026 visit of Israeli President Isaac Herzog to Sydney, NSW courts initially upheld expanded police powers restricting demonstrations, accepting the government's argument that the measures were necessary for public safety. Later, however, broader anti-protest measures were declared unconstitutional. The judges were profoundly influencing political and social disputes.

The problem is, not a single word in the Australian Constitution provides for freedom of political communication. It is entirely, from beginning to end, an invention by the judges of the High Court.

Another example, by the High Court, is its decision in Love v Commonwealth (2020), where it ruled that Aboriginals who are not citizens cannot be considered "aliens" under the Constitution.

The Constitution contains no explicit exception of this kind; the court effectively created a new constitutional category.

There are other cases: for example, the High Court has decided that prisoners serving sentences of three years or less cannot be prevented from voting, while those serving longer sentences can be, despite the Constitution saying no such thing. In another case the High Court decided it, not Parliament, had the power to supervise when electoral rolls must close.