A hero of Australian liberty: Justice Starke

During World War II, there was one heroic dissenter on the High Court who – unlike the other lapdog justices – thought that government should obey the law even during wartime. Hayden Starke is described in these terms by Brian Galligan in his book Politics of the High Court (p. 127):

Many of the regulations that the court allowed as valid exercises of the defence power were only very indirectly linked to defence. For instance, the Court upheld a national marketing scheme for apples and pears on the basis that the export part of the crop was now subject to war restraint on shipping. Starke, a fairly regular and quite sarcastic dissenter in many of the defence cases concerning economic regulation, claimed that the apple and pear marketing regulations had no relation whatever to the “economic front”, but merely propped up one sector of the economy that had been affected by war. Starke accused the court of accepting arguments that led to the conclusion that “in time of war the Commonwealth had complete power to legislate in respect of the social and economic conditions of Australia”. He reminded his fellow judges that “after all, the government of Australia is dual system based upon a separation of powers”.

The court even went as far as declaring constitutional the restriction of drinking hours in the name of national defence. Starke again disagreed and called this regulation “one of those irritating orders and restrictions upon freedom of action which is arbitrary and capricious, serves no useful purpose, and has no connection whatever with defence”.

Thank goodness for Justice Starke. Because of the dissenting arguments which he placed on the legal record we now have a hope, however slight, of reversing the warfare state in the future. There are many such heroes of Australian liberty willing to stand against the government’s lies and power grabs during times of war.