Silence from the country’s highest court can be as revealing as one of its loquacious judgments. Take, for example, the High Court’s recent decision to say nothing about a damaging speech by one of its judges.

A few weeks ago, Robert Beech-Jones, the court’s most junior judge, delivered a long address attacking US Supreme Court judges as “supine”, and taking swipes at a small, legally conservative group called the Samuel Griffith Society, which is a vigorous critic of judicial activism.

Beech-Jones went further – he issued what many saw as veiled threats to law students that they should steer clear of the Society, and, later, besmirched the reputation of judges who have attended the Society’s many conferences since it was established more than 30 years ago.

It wasn’t just nutty. It was so inappropriate that many lawyers said it raised the issue of why there is no federal Judicial Commission to hold Beech-Jones to account for his behaviour.

In the absence of such a body, the next best thing is the Chief Justice of the High Court. My questions to Stephen Gageler as to what he made of Beech-Jones’s attacks went unanswered. That silence raises questions about the court under his watch, none of them flattering, many of them troubling. The Chief Justice’s silence may make sceptics think that he saw the speech prior to its delivery – and did nothing. And if Gageler did not see the speech, what does he think of it now? Perhaps it suited the Chief Justice to have Beech-Jones offer his stout defence of one of the court’s more controversial inventions, the implied freedom of political communication, during his address to the North Queensland Law Association, even if he also lobbed a few foolish grenades at those who, like the Society, criticise that implied right? Was this an attempt by some High Court judges, in their different ways, to circle the wagons around the court’s invention of a right that has given judges a wildly vague power to strike down laws they don’t like? This invention was, and remains, controversial because the central question in a democracy is: Who should decide the limits on our freedoms? Parliament or the courts? When the government legislates, we can either lobby for the government to change the laws or get rid of the government to signal our views.

When the court legislates from the bench, by claiming to have found a new implied freedom in the Constitution, we, the people, cannot do a thing about it.

Indeed, because of the doctrine of stare decisis (which usually requires courts to observe precedents), even the judges can’t do much about their new-found laws.

Once judges invent some new right, we’re all stuck with it, even if – as has become clear with the implied freedom of political communication – the new law turns out to be a dog’s breakfast. It becomes a permanent and virtually irreversible part of our law.

The starting point for the implied freedom is the founding fathers.

After many years of debates, they decided against putting an explicit US-style free speech right in the Constitution.

Then, in 1992, the High Court, led by Sir Anthony Mason, said it had found in the text of the Constitution an implied freedom to political communication. The court decided it was up to seven unelected, and unaccountable, judges to decide on the limits of political communication.

What started out, in the first case of Nationwide News Pty Ltd v Wills, as a relatively limited implied freedom to criticise a member of the then Industrial Relations Commission has now reached into many other areas.

Even if you thought the invention of this implied freedom by seven judges made sense in 1992, when the nation was not awash with antisemitism, you might have a different view today when protests challenge our social cohesion and our safety.

Beech-Jones’s attack on the Samuel Griffith Society did not happen in a vacuum. A year ago, the Society criticised the Chief Justice for dressing down fellow judge Simon Steward in a case called Ravbar v Commonwealth of Australia. In that case, Steward agreed with the rest of the court, upholding the implied freedom in a case concerning legislation putting one division of the CFMEU into administration. Steward acknowledged that neither party had called for the implied freedom to be overturned by the court, and therefore, he was not doing so. But he did, as judges before him have done, express doubts as to “whether the Constitution supports such an implication”.

Gageler slapped him down, saying it was the duty of each judge to apply the implied freedom, rather than “to be convinced by it”.

While the media largely missed this telling exchange, the Samuel Griffith Society did not, pointing out that, over many years of jurisprudence, other High Court judges have raised many questions about the genesis of the implied right, and how its application had become an unseemly, uncertain, and therefore unknowable mess.

The question for their Honours is this: If we can’t possibly understand the High Court’s invention and when it will apply, what does that say about the court’s commitment to the rule of law? That dilemma came to the fore when the Minns government in NSW enacted laws trying to crack down on hate speech after antisemitic attacks and protests.

Those laws were thrown out by the NSW Court of Appeal on the basis of the implied freedom. Still, NSW Premier Chris Minns did us a favour by exposing the central issue. Who is better equipped to ensure the safety of citizens: an elected government or unelected judges?

Gageler and Beech-Jones reckon they and their fellow judges are.

Plenty of people, including lawyers and judges who have spoken at the Samuel Griffith Society, believe the implied freedom has gone off the rails, and that governments are better equipped to judge how to keep people safe from the scourge of antisemitism and hate speech.

It is entirely consistent to defend free speech and simultaneously defend parliament as the most democratic body to protect free speech.

This year’s Samuel Griffith Society conference, in Sydney in August, will feature a debate about this between Professor of Constitutional Law at Queensland University James Allan and former barrister Louise Clegg. Allan is a critic of the implied right; Clegg is a supporter. These debates are healthy. Separately, Federal Court of Australia judge Ian Jackman will deliver an address on the implied freedom. We will have to wait until he speaks to learn his views.

Which brings us back to the Chief Justice of the High Court, who is one of the grand pooh-bahs of the implied freedom. By remaining silent about Beech- Jones’ ill-conceived speech, Gageler appears to be condoning attacks on critics of the implied freedom in order to defend his legacy.

By going on the offensive so aggressively, are judges telling us that the implied right cannot stand on its own intellectual merits, that its survival requires judges to squash its critics – on and off the bench – in public? The High Court’s most senior and most junior judges have revealed how indefensible the implied right has become in 2026.

They would be well advised to find more convincing ways to defend the implied freedom.

No one will have missed the irony of a High Court judge defending the court’s invention of a freedom to speak about matters central to representative government by trying to shut down views they don’t agree with.