Separation of powers? Is that a trick question?

The High Court in particular, is now deeply conservative. It is not reflective of the diversity of views that exist in the Australian community. It no longer has among its members, those judges who believe that it is the role of the courts to lead the parliament and the government when justice demands that this be the case.

For example, the decision by the High Court in the Mabo case in 1992 to decide that native title exists in addition to European forms of land title was a prime example of the separation of powers doctrine at work. The High Court was according long overdue justice to Indigenous Australians, and it was for the government and the parliament to figure out a way to ensure that native title became part of Australian law.

It is hard to imagine the current High Court deciding the Mabo case the same way today, which of course is exactly as Mr Howard likes it.

It is not being suggested that Australian democracy is collapsing as a result of the weakening of the separation of powers doctrine. But it is true to say that our democratic tradition is being undermined by the Howard Government’s assaults on the parliament and the courts.