Justice Michael McHugh retired on October 31, after 16 years on the High Court. Appointed by Prime Minister Bob Hawke, he was the last judge left from the court under Sir Anthony Mason that from 1987 to 1995 produced some of the most creative and significant decisions in its 102-year history.
McHugh leaves behind hundreds of judgments marked by his trademark clarity and rigour. This legacy will continue to have a profound effect on how government operates and on a range of social issues. As a judge, McHugh had to answer questions such as whether the law permits parents to have an intellectually disabled daughter sterilised and whether Australia was truly terra nullius (or no-man’s land) when the white settlers arrived in 1788. The Court’s answers to such questions define and limit the exercise of power across our society.
In such cases, McHugh was often at the forefront of the Court, and more often than not in the majority when the Court split. In some areas, he was even successful in turning the Court from one path to another. For example, in 1992 the Mason Court held that the Constitution contains an implied freedom of political communication, which in that case was applied to strike down a ban on political advertising. The decision was soon extended to create a special constitutional protection for newspapers and others who criticised politicians.
McHugh wrote a sharp dissent in the second decision and said that court had gone too far in reading new words into the spare language of the Constitution. He suggested that the Court had sought to interpret the Constitution by reference to political and not legal principles and that in doing so it had risked the confidence of the nation. In another case soon after, he also stated that the Court had got the area “fundamentally wrong” and that it had altered the Constitution “without the authority of the people”.
Two years later, after changes in the membership of the Court, McHugh along with new Chief Justice Gerard Brennan was successful in leading the Court to a different outcome. The constitutional protection was recast in a way that was consistent with the approach advocated by McHugh. This episode demonstrated how McHugh could be persistent, and forceful, in fighting for what he believed to be the correct approach to the law.
What was also distinctive about McHugh as a judge was how strongly be believed in the limits of his own power. He did not believe that the High Court should drive social and political change through new interpretations of the Constitution, such as by implying new words or principles. He thought instead that this was for our elected representatives and the Australian people. Indeed, the longer he stayed as a judge the more skeptical he became about the capacity of the Court to engineer change.
This outlook made McHugh a very different judge to Justices Lionel Murphy or Sir William Deane, who saw our 1901 Constitution as needing ongoing revision and more as a living force than as a text set in stone. In the case of Murphy, he was willing as a judge from 1975 to 1986 to see the Constitution in a new light and to discover new principles in order to realise his vision of a contemporary free society.
McHugh’s reluctance to depart too far from the century old text of the Constitution is at odds with his strong personal views about the need for reform. Before his appointment in 1989 he wrote an influential article about how the law could be changed to keep up with developments in society. To many this suggested he would be far more progressive in making new law and in applying the Constitution than he turned out to be. In proving a disappointment to some, McHugh adopted a principled and constrained approach to his work rarely found in others in public life.
McHugh has been more outspoken over the last year as he has approached the mandatory retirement age of 70. He said that a woman should replace him, now realised with swearing in on November 1 of Justice Susan Crennan, and that Australia needs a Bill of Rights. This shows how, as a citizen, McHugh is likely to speak freely about the need for legal change even though as a judge he refused to use his power to bring this about. For McHugh, whether such change occurs is a matter for the democratic process and not the judges of the High Court.
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