The Voice referendum smashed narratives of a fair Australia wide open and showed the gaping truth: the democratic system Australia is built on is fundamentally unfair. First Nations people, dispossessed by a colonial power, were forced to rely on the inheritors of that colonial power to correct our national record. We failed them.

The “No” campaign manipulated this unfairness, and tapped into the worst, smallest, meanest instincts of non-Indigenous Australians by, as Peter Lewis writes, “dumbing down complexity and turning people against the very institutions whose health should be an expression of our collective cohesion”.

The “No” campaign weaponised a now familiar, deeply hypocritical epithet: “they” (anyone who poses a real or perceived threat to the status quo, in this case First Nations people advocating for a Voice, and the civil society and legal institutions that supported them) are the elites, don’t trust them. It is this “us versus the elites” narrative, adopted by John Howard in the 1990s, that also extended to Australia’s court system, which had faced up to the unspeakably cruel facts of colonisation in the Mabo decision.

It was in the post-Mabo period that a group of little known but powerful anti-court lobbyists began working in Australia to limit the power of the court in our democracy. This rag-tag band of conservative activists, politicians and commentators began taking aim at Australian judges, public interest lawyers, community legal services, and people seeking justice and accountability through the courts system. Their preferred weapon was to loudly label anyone who failed to implement their ideology with a description that would better fit themselves: unaccountable elites.

We have seen their formulaic anti-accountability tactics play out in recent months, seeding misinformation into the public conversation on a Voice to Parliament that the constitutional amendments could undermine democracy. Despite overwhelming backing for the wording of the referendum from eminent constitutional law experts, the anti-court brigade attempted to stoke fear among unknowing or undecided voters that the Voice would lead to a barrage of High Court litigation. Of course, High Court litigation – where the court impartially applies facts and law, and filters out hyperbole and spin – is the worst nightmare for elites who would rather do what they want, when they want, without the hassle of an oversight body that can hold them accountable to the rule of law.

These latest tactics are entirely consistent with past performance. History has shown us they rear their heads most prominently when First Nations rights are at stake.

Going back a few years, after the High Court’s Love & Thoms v Australia decision in 2020, which found that Aboriginal people have inalienable citizenship rights, the personal attack on judges re-reared its head. It culminated in the very public call for “capital-C conservative appointments” to the High Court by the conservative think tank the Institute of Public Affairs and its conservative commentariat bedfellows. They gleefully celebrated what they considered a win – the appointment of Simon Steward to the High Court by then attorney-general Christian Porter in 2020. Only time will tell if they were right to celebrate, but the red flag should be raised, with his first decision considering the implied freedom of political communication inviting those watching closely to provide him with a pathway to “reopen” the well settled constitutional principle.

The anti-court brigade is philosophically aligned with the ultra-conservative legal movement in the United States that has successfully overturned abortion rights (among others) in recent years, and secured an ultra-conservative majority on the bench of the Supreme Court. Indeed, respected constitutional scholar Professor Adrienne Stone has drawn a comparison with the multi-decade campaign to overturn Roe v Wade, and its similarly innocuous beginnings. Its rhetoric and tactics are directly imported from the United States – taking aim at judges who make decisions with outcomes it disagrees with, and at the community legal system that supports the public to hold politicians accountable in court. 

The political neutrality of our judicial system, when compared to the hyper-partisan mess in the US, is something to be closely guarded. We must actively resist that US style of politics here.

So how do we guard it? It doesn’t help our system to launch a counter-campaign to appoint “capital-P progressives”, nor does it help to overstate the risks. But it is a timely reminder that if we do not seek to protect the court system that is so fundamental to our democracy, and provide a cultural bulwark to enable it to fulfil its role as an accountability mechanism, its future impartiality cannot be taken for granted. Without it, the fight for First Nations justice will be only harder.

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