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COMMENT AND BOOK REVIEW
In the last ten years, the position of the High Court of Australia has undergone a remarkable transformation. The course of its decisions handed down from the early 1990s and the innovative, yet often perplexing, methodology upon which those decisions rested have garnered for the Court unprecedented attention and sparked a reconsideration of its place in the Australian polity. On many occasions this has taken the form of harsh criticism of the Court and its judges from representatives of the other arms of government and the media.[1] In response to this barrage of criticism, and in light of the Commonwealth Attorney-General's sustained disinclination to fulfil his traditional role in representing and defending the judiciary,[2] the High Court has increasingly been forced to justify its role and method – to a much more pronounced extent than at any earlier time in its history.
The moves by the High Court to do this have taken a number of different forms. The letter written by Chief Justice Brennan to the Acting Prime Minister in 1997 at the height of the public onslaught against the Court is but one notable example.[3] Members of the Court have spoken out in numerous fora, seeking to explain the true nature of their role and illuminate the judicial method.[4] In the efforts to defend itself, the High Court has made it clear that it is not suggesting that it is to be free of all criticism – rather it asks for less political vitriol and for more 'informed criticism'.[5] It is in response to this invitation that Haig Patapan has produced Judging Democracy: The New Politics of the High Court of Australia.[6]
Judging Democracy is a remarkable book for several reasons. It is an intelligent evaluation of the High Court's signature work across the 1990s that never loses sight of the broader institutional framework in which the Court resides. As such, it represents a critique far removed from the outcome-obsessed sound-bites of politicians heard at the times when some of the Court's major decisions were handed down. Consequently, it is a more balanced and effective, and occasionally much more damning, assessment of the High Court across this period. Not the least of his many achievements in this book, is Patapan’s presentation of 'informed criticism' in accessible and elegant prose. The book may therefore receive a wider audience than the delegates at a legal conference or the readers of law journals.
Those seeking clarification of the case law establishing implied rights (chapter 3) and native title (chapter 5) – probably the two most contentious areas explored by the Court in the last decade – will be treated to a lucid and rigorous exposition of the relevant judgments which seeks to examine their theoretical bases. Of course, this exercise is an eminently valuable one in itself and one which, on the whole, Patapan achieves with considerable adroitness. But it is the book's more ambitious aim as indicated by its subtitle that will secure it a lasting and significant place in the literature devoted to understanding the High Court of Australia.
In his introductory chapter, Patapan considers the wider ramifications of the Court's recent forays into the areas of rights, citizenship, indigenous culture and government when he states:
[I]f the High Court is now willing to, in effect 'judge democracy', we are compelled to ask whether its constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. Or are its decisions ad hoc, determined by the litigation before it, subject to the contingencies and exigencies of the Court as an institution influenced and limited by the discretion of individual judges, and constrained by the very process of adversarial adjudication?[7]
It is a fascinating question and one that provides the ensuing exploration of particular topics with a thematic drive sustained across the span of the book. Thus, the book operates in these two senses – discrete coverage of particular aspects of the High Court's recent work and also as an analysis of the Court's guiding jurisprudence across the Mason and Brennan eras. As a concerted whole, Judging Democracy invites reflection upon the role of the High Court and the parameters of judicial legitimacy – topics which have not lost their importance since the arrival of Murray Gleeson as Chief Justice in 1998. That the controversy surrounding the outcome of some of the High Court's high-profile decisions in the last decade prompted fresh discourse about the Court's operations and place in the Australian political landscape is not so surprising. Now that conversation has begun to move on from the noisy clamour which reached its zenith in 1997, the time is ripe for a sophisticated yet accessible appraisal of the recent methodology of the High Court and suggestions as to where this is likely to take the Court as it enters its second century.
Patapan begins his evaluation of the High Court with an examination of the principles of interpretation which it has employed across its history (chapter 2). This is a logical starting point as the question of interpretation goes to the essence of how the Court perceives its role and also the nature of the Australian polity.[8] It also enables Patapan to preface some of the underlying issues which are to surface in the more specific chapters that follow. Finally, his observations on the diversity of interpretative method are an important early salvo on the core issue of the nature of the Court's democratic vision.
Inevitably, the discussion begins with the impact of the Engineers Case.[9] The Court's decision in that case to turn away from a practice of reading of the Constitution in light of the social and political circumstances of its origin is portrayed by Patapan as a return to the self-understanding of the declaratory theory that had dominated the operation of the common law and enabled a degree of discretion without seeming to contradict the sanctity of the rule of law.[10] The assertion of the Engineers Case that the ‘political’ and ‘legal’ were distinct and that the High Court's role as adjudicator was to be confined to the domain of the latter certainly secured the Court's legitimacy over the following decades.
There are two matters to note in respect of this. First, the decision in Engineers is itself a vital expression of the Court's politics. The point has been made elsewhere that the reasoning in Engineers relies, at least in part, upon an appreciation of the doctrine of responsible government and the common sovereignty of the British Empire.[11] As Patapan makes clear, the decision conveyed the Court's respect for parliamentary sovereignty as a guiding principle of the Australian regime – thus justifying a self-imposed restriction to matters characterised as legal.[12] This point is most starkly illustrated by the discussion of notions of citizenship in chapter 4. It is here that Patapan demonstrates the resilience of parliamentary sovereignty through his consideration of the decisions of McKinlay[13] and McGinty v Western Australia[14] wherein the majority of the Court is unwilling to read s.24 of the Commonwealth Constitution in such a way that would impose its own understanding of the requirements of representative democracy upon the Parliament. Instead, the adoption of a 'neutral and natural reading of the text assumes a political and theoretical conception of parliamentary and progressive democracy'.[15]
Second, while the method set forth in Engineers did indeed direct attention upon the legal in place of the political in order to secure the Court's legitimacy within the Australian system of governance, it is disappointing to see Patapan slip into a simplistic treatment of the interpretative legacy of Engineers. In particular, inadequate attention is given to the operation of implications within the legalistic method. This is illustrated particularly well by the following passage:
A 'natural' reading of the text distinguished and characterised the legal method and was the essence of legal reasoning. Therefore a literal reading of the text justified judicial authority in Australia. In contrast, the resort to 'implications' betrayed an attempt to augment a clear legal reading with personal preference or opinion – it marked a movement from the legal to the unbounded political.[16]
This is a regrettable statement for several reasons. First, it glosses over the fact that the objection to the original High Court's use of the reserved state powers doctrine[17] and the immunity of instrumentalities doctrine[18] was not simply that they were implied, but that they were implications drawn from political necessity. This distinction actually supports with greater clarity the point that Patapan is making about the change in interpretation represented by the Engineers decision. The use of implications arising from the text or structure of the Constitution itself was expressly left open in Engineers[19] and confirmed subsequently[20] - a point which Patapan assumes without comment in his subsequent handling of implied rights.[21]
Second, and more crucially to Patapan's overall purpose, the question of implications and their acceptability within legal method is important, given that much of the recent criticism of the High Court stemmed from a failure to appreciate this particular aspect of its work. A clear picture of the role of implications must be drawn if the reader is to appreciate the purported limitations, yet practical flexibility, of the legalist method - and thus to grasp the points which Patapan is seeking to make about a shift in interpretation. The ability of the High Court to justify implications within a method of interpretation that prides itself on exclusion of non-textual concerns owes much to the old declaratory theory of the common law[22] and was nicely typified by the claim of Windeyer J that the High Court's 'avowed task is simply the revealing or uncovering of implications that are already there'.[23]
While not wishing to dispute the emphasis which Patapan gives to the importance of the admissions of the High Court's law-making role which surfaced around the time of Sir Anthony Mason's elevation to Chief Justice, the abandonment of what has significantly been called the 'public rhetoric of technical legalism'[24] arguably occurred quite some time after that method had already betrayed itself.[25] Patapan acknowledges the sustained expansion of Commonwealth power that followed Engineers,[26] though he seemingly does not share Galligan's view that legalism was a device deliberately intended by the Court, especially Isaacs and Higgins JJ, to mask a policy in pursuit of this objective.[27] That may be understandable, but it is a shame that, in seeking to explain the ascendancy of legalism throughout much of the Court's history, more is not made by Patapan of those federal implications drawn after Engineers. In particular, the absence of any discussion concerning Dixon CJ's subtle reworking of the federal relationship through the use of implications is surprising.[28] The statement by Patapan that the making of implications was perceived as a movement from the legal field to improper involvement by the Court in the making of political and personal judgments would seem to invite at least fleeting consideration of how the Melbourne Corporation[29] principle was justified within such a methodology.[30] In his recent analysis of this topic, Jeremy Kirk has stressed that in order to understand the use and legitimacy of constitutional implications there are dangers in restricting the scope of one's inquiry:
[T]he process of ascertaining implications is a fundamental and frequent part of constitutional interpretation. One legacy of the Engineers Case has been a marked judicial reluctance to admit that this is the case. The clearest acceptance of the role of implications came only where it was hard to deny, with the federal immunities. Even then, some judges sought to sidestep the issue, as others did for the implied nationhood power...Legitimacy issues do arise whenever judicial choice is involved, and judicial choice is almost invariably inherent in recognising implications. A concern about these matters is reflected in the traditional restrictive 'necessary implication' test, although such a separate test for implications cannot ultimately be justified. Instead, the question of whether or not to recognise an implication depends on the general approach adopted to constitutional interpretation, combined with such other guides as a theory of stare decisis...An awareness of the different types of implication may also offer some insight and assistance.[31]
Of course, any actual shift in interpretative method has nothing to do with the use of implications per se and Patapan does not say as such. But his examination of the approach of the Court in recent times is slightly diminished by insufficient clarity about the legitimacy of implications made in the past. To take the example of the implied freedom of political communication, Mason CJ in his judgment in Australian Capital Television v Commonwealth[32] was at particular pains to refute the suggestion that the Engineers methodology was irreconcilable with the finding of an implied freedom of political communication, though not to the satisfaction of some of his colleagues.[33] The fact that the Court ultimately grounded the implied freedom squarely upon particular provisions of the Constitution in Lange v Australian Broadcasting Corporation[34] has been described as a conservative continuation of the 'commitment to textualism' endorsed in Engineers.[35] Indeed, it is clear that this was precisely what the Court was aiming for in order to secure the legitimacy of its recognition of the freedom.[36] However, the method in respect of implications derived from the separation of judicial power was clearly not so strictly rooted in the 'text and structure' as that in respect of the implied freedom. Certainly some of the minority judgments in this area indicate what Patapan calls the 'potential for unbounded judicial discretion'[37] in their interpretation of the Constitution. This difference is pertinent to both concerns about the legitimacy of those implications and also the view of the political regime which they reflect. Patapan's analysis in respect of these two matters is, as discussed below, particularly astute. However, the absence of any real critique of the varying acceptability of implications leaves something lacking in this chapter on the politics of interpretation.
The complaint about implications aside, Patapan's evaluation of the Court's attempts to settle upon an interpretative direction after the quite candid claims of judicial law-making is illuminating. The international and institutional changes that preface this era are succinctly canvassed and the influence of the sociological jurisprudence of Roscoe Pound and Julius Stone upon those sitting on the High Court by the late 1980s is appropriately documented. In supplanting a merely legalistic method, the 'dynamic and progressive' interpretation that emerges in the Mason Court represents a disenchantment with the notion of parliamentary sovereignty as a cornerstone of the Australian political regime. It is not so surprising, as we shall see in the next section of this article, that the result was to produce a rights-based jurisprudence where none of significance existed before. But upon what did the new High Court method rely for its legitimacy?
The point is made by Patapan in numerous places that in its admission of law-making, the High Court has sacrificed the security that legalism previously provided.[38] In the need for legitimacy the Court has increasingly resorted to 'community values' as a basis for its supervision of the common law and its guardianship of the Constitution. In doing so, it has been able to distance itself from the fallacy of legalism, though without having 'expressly undermined the Engineers Case'.[39] The tone of the Mason era was set by his rejection of legalism as a 'cloak for undisclosed and unidentified policy values' and call for 'policy-oriented interpretation'[40] or 'legal realism'.[41] Necessarily, a focus upon 'community values' entails less significance being accorded to the intentions of the framers of the Constitution. The tension between attempting to accommodate community values and the intentions of the drafters has been the cause of much academic discussion.[42] The fact that the Australian debate about originalism was only really ignited after the High Court admitted its law-making function and not before, demonstrates the firm grip of the legalist mythology. Some of the more popularly aired question marks over the legitimacy of the High Court's progressive interpretation based upon community values have stemmed from the persistent views put forward from the originalist camp. While there are very real concerns about the High Court ‘divining’ the values of the community,[43] it would seem mistaken to suggest that looking to the founder's intentions necessarily provides much direction or restraint[44] or even that there is much of worth to be found in the convention debates in respect of particular questions.[45] Possibly signalling an end to this debate (or at least taking it into a new phase), Graeme Hill has recently suggested that the divide between originalist and progressive interpretations is not often determinative of the outcome of cases in the High Court.[46]
Patapan's assessment of the 'community values' basis for the High Court's approach to the Constitution and the common law is the most interesting aspect of this chapter. The pertinence of such a discussion is reinforced by recent remarks of Gleeson CJ that continue to emphasise the role of values in the Court's work[47] - which shall be considered more fully towards the end of this essay. But while values continue to receive recognition for their role in judicial reasoning, Patapan's assessment is that they provide little restraint:
[T]he Court's recent decisions suggest that the notion of community values may not in fact provide the anticipated check on individual judicial discretion. Minority judgments regarding the common law, implied rights, separation of powers and sovereignty of the people reveal the extent to which these concepts are sufficiently supple and complex to harbour divergent and in some cases irreconcilable positions.[48]
This is a valuable, though unsurprising, observation. Although John Braithwaite has employed empirical research so as to attempt an identification of the values of the Australian community,[49] the uncertain guidance provided by use of values has been the subject of much discussion.[50] But even though the core criticism remains, as John Daley says, that '[t]here is little escape from the problem – be it epistemic or ontological – that it is difficult to provide sure answers to many controversial value choices',[51] it is just as inescapable that such value choices must occasionally be made in order to address some issues which are incapable of being resolved through the application of legal logic.[52]
The significance of community values as an interpretative tool has been heightened by the shift towards recognition of popular sovereignty underlying Australian constitutionalism. The passage of the Australia Acts on the eve of the Mason era was doubtless a contributing factor in the ability of this idea to take hold after earlier statements had met with a sceptical reception.[53] Popular sovereignty was advocated particularly strongly by Deane J,[54] though he was by no means alone in his support of the principle.[55] Most recently, Gleeson CJ has expressly rejected the operation of British parliamentary supremacy, saying that the ability of the Australian people to alter the Constitution means that 'the sovereignty of our nation lies with the people, both as a matter of legal principle and as a matter of practical reality'.[56]
Patapan is quick to highlight the implications of this shift and the consequences of any adoption of the social contract theory to the Australian constitutional story. It certainly bolsters the Court in the role of protector of the people after several decades of being the distant umpire in federal scuffles.[57] But, more importantly, this invites reflection upon the theoretical basis of the entire polity and the Court's aptitude to both devise, and function within, a new conception of it:
[T]he view of the Constitution as a type of social contract draws upon different political and theoretical traditions with major consequences for the character of the regime. It may well be that as an expression of Lockean liberal constitutionalism the Constitution secures natural rights, limited government and representative government. However, sovereignty of the people also opens up a world of fundamentally different aspects of sovereignty, from Hobbes' sovereign to Rousseau's general will, and different political visions, from communitarianism to republicianism. In these outer reaches the judicial task of interpreting and applying the law, of choosing the character of the political regime, becomes a delicate task more suited for the skills, abilities and discretion of a political philosopher and statesman.[58]
Chief Justice Gleeson's recent Boyer Lectures were suffused with the idea that individuals are protected by the rule of law as upheld in the courts - in this sense, he agrees with the view of both Patapan and Justice Kirby that the High Court can operate to shield individuals from the excesses of institutional power.[59] However, he made no direct comment about how an appreciation of popular sovereignty may affect constitutional interpretation and the nature of the Australian political arrangement. Indeed, it can only be presumed that far from throwing open the sort of questions raised by Patapan, the Chief Justice considered that the derivation of constitutional authority from a base of popular sovereignty only goes further to justifying his trenchant faith in 'strict and complete legalism'.[60] Recognition of the sovereign place of the people does not generate competing visions of governance but rather demands careful adherence to the terms of what was agreed:
[u]ltimately, however, all Australians are controlled, not only by what the founders said in their written document, but also, and perhaps even more comprehensively, by what they did not say. In a sense, a good deal of argument about the scope for interpretation is relatively marginal. Silence, whether deliberate or not, binds us conclusively.[61]
The topic of popular sovereignty brings us to one final point in discussing the new High Court's interpretative method. It is quite clear that a simplistic portrayal of the federation process as an exercise in popular sovereignty involves a degree of historical revisionism. This has been meticulously noted by Helen Irving, who surmises that 'the historical error (if that is what it is) committed by the High Court, is not to identify a 'popular' or national purpose in the Constitution, but to see this as the principal or overriding historical imperative'.[62] Additionally, members of the Court have also expressed concern at its ability to pinpoint the evolution of the Australian polity with any reliable historical accuracy.[63]
In fact, the fidelity of the High Court to matters of historical record – including its own past – receives detailed attention by Patapan in his discussion of the Wik Peoples v Queensland[64] decision in chapter 5. The topic of native title involves history at several levels. First, and most obviously, the ability to demonstrate connection to and use of land is crucial to success in establishing the existence of native title in respect of that land.[65] Second, and more controversially, the majority decision in Wik demonstrates a perverse view of legislative history. The suggestion that the Queensland Parliament in enacting legislation granting pastoral leases in 1910 and 1962 did so without intending to extinguish native title is highly problematic as a matter of legal history, as the minority was keen to point out.[66] Patapan likens the majority's ability to revise historical fact to the declaratory theory of the common law[67] – a view affirmed by Gummow J's admission that the difficulties in establishing the 'independent truth' of the past are best sacrificed to the declaratory theory's ability to adjust principle in order to provide justice on the facts of an individual case.[68] Although the operation of the declaratory tradition is not exclusive to the majority, having been so obviously employed in Mabo itself by Brennan and McHugh JJ (who are joined by Dawson J in the minority in Wik), the importance of certainty of principle and historical accuracy are clearly accorded different weight by members of the court in Wik. Leslie Zines has commented that 'the reasoning of all the judges in Wik was quite orthodox'[69] and Patapan would seem to agree with this conclusion when he says 'the difference between the majority and minority in Wik turns not on formal rules of statutory interpretation, but on the more philosophical question of the way the past is to be interpreted – the way the Court deals with 'history''.[70] The ability of the judges in Wik to operate within the legalist tradition yet divide on the extent to which they were prepared to sacrifice an understanding of the past to 'their perceived duty to be just',[71] should be salutary to those persons looking to history, perhaps in preference to community values, to act as some kind of constraint upon the judicial method.
The third instance of the Court's historical approach arising from the native title cases concerns the value it places on its own history. This is a significant theme running throughout Judging Democracy, and Patapan demonstrates it particularly well in his examination of the Wik majority's rejection of the tenor of the Mabo decision in respect of pastoral leases. The casualness with which Brennan J's reversion principle (whereby the interest in land subject to a lease reverted wholly to the Crown upon its expiry, thus extinguishing native title) from the earlier case is discarded by the Wik majority is a strong reminder that the High Court's own history, and the views of its individual members, are very much subject to the demands of those judging in the immediate present. Of course, with the removal of ties to the Privy Council, this is more true now than it has been for much of the Court's existence, but it has long been recognised in the context of the Court's control over the development of constitutional law.[72] But it is rare to see this perpetual uncertainty so vividly conveyed as when Patapan writes:
Thus the Court's decisions are protean and slippery, each in a sense consuming and rewriting all that went before.[73]
Patapan's analysis of the native title cases clearly demonstrates how disagreement amongst the High Court is the product of the varying lengths to which its members perceive they are entitled to go in order to provide justice. For example, Dawson J's earlier dissent in Mabo should not be seen as a denial of the plight of indigenous Australians and their dispossession of land at the hands of European settlers — rather it is a rejection of the common law's culpability for this state of affairs and an insistence that it is not within the proper bounds of judicial power for the High Court to amend it.[74] The dissent of Brennan CJ in Wik rests, not on such a stark demarcation of the 'legal' and the 'political', but rather on the extent to which he is willing to reassess past events and to allow recognition of native title to alter accepted tenets of the common law of property. The majority in Wik is prepared to pay this price in order to deliver a result which it believes is just. The difficulties which flow from a judge playing (her or his perception of) justice as a trump card are readily discernible.[75]
The rights particularly focussed upon by Patapan in Judging Democracy are those which were developed by means of constitutional implication in the 1990s. The implied nature of the freedom of political communication and some of the rights suggested in respect of Chapter III of the Australian Constitution meant not only that this new jurisprudence was vulnerable to external criticism – it was also particularly subject to the vagaries of individual Justices' perception of what was necessarily just. That the implications purportedly derived from the separation of judicial power are constitutionally less secure than the freedom of political communication reflects the Court's failure (at least so far) to ground the former more clearly in the text of the Constitution.[76] Conversely, the ability of the High Court to reach consensus on the recognition and basis of an implied freedom of political communication between 1992 and 1997 displays remarkable commitment to ensuring the legitimacy of that freedom – especially when one considers the very disparate opinions given voice along the way.[77] The Court's settlement upon constitutional text of ss 7 and 24 of the Commonwealth Constitution to ground this implied freedom 'is consistent with the common law notion of freedom as residual or negative, the area left uncontrolled by the law. It is also consistent with a constitutionalism that considered representative and responsible government as essential for human development and progress'.[78] Therefore the unanimous judgment in Lange[79] represents a consolidation, which is neither radical nor novel, but which accords with orthodox Australian constitutionalism.
This point is well made by Patapan, but a seeming lack of clarity in respect of the Court's discussion regarding the difference between 'representative government' and 'representative democracy' confuses the issue in parts. For example, while it is quite true that 'the Court subsequently moved away from the notion of representative democracy as the conceptual basis for interpreting rights, preferring to rely on specific constitutional provision regarding the election of members of the House of Representatives and the Senate',[80] we are later told that: '[i]nitially, the favoured institution is representative democracy. Lange augments this notion, with responsible government'.[81] Most of chapter 4, dealing with the High Court's involvement in defining representative democracy is predicated on the basis that the concept of representative democracy is entrenched by ss 7 and 24.[82]
In fact, Lange sees the triumph of an insistence by some in earlier cases,[83] that the freedom is to be implied from the system of representative and responsible government established by ss 7 and 24, rather than any notion of representative democracy which may be thought to underlie those sections. Far from augmentation, Lange sees a withdrawal from what it clearly perceives as the expanse – and consequent uncertainty – of 'representative democracy'. As with the earlier comments about the role of implications and shifts in interpretation, it is not suggested that Patapan's central argument and observations are consequently flawed, nor seriously undermined, by this feature of his treatment of the topic. The complaint is that his thesis would, in fact, be strengthened by an acknowledgment of this aspect of the Court's debate about the basis of its rights jurisprudence.[84] It is also made with appreciation of the fact that there is a school of thought that the distinction between 'representative democracy' and 'representative government' is largely meaningless.[85] Presumably Patapan is similarly inclined.[86] The difficulty in arguing that those two phrases are interchangeable in describing the one concept, is that the High Court has clearly signalled that it does not take this view. In particular, the unanimous judgment in Lange, unlike those featured in the earlier political speech cases, contains no reference to 'representative democracy'. The fact that the Court cited with approval those very sources which McHugh J gave in Theophanous v Herald & Weekly Times to support a distinction would also seem to indicate that it now shares his view.[87] Perhaps those sources are open to challenge, perhaps the Court has been misguided – but whilst arguments may be made on those grounds, the fact remains that the Lange judgment draws a distinction which, until such time as the Court changes its mind, should not be ignored or glossed over.
Despite concerns about the long-term inability of textualism to sustain the development of the standards by which the implied freedom of political speech is to be applied,[88] the acceptance of this development, which the High Court has managed to achieve through a concerted clarification of its method, is undeniable. It also raises an interesting comparison with the implications arising from the separation of judicial power, which have not received similar attention. That a consideration of the nature of judicial power necessarily involves measurement using standards of what is just and fair was highlighted most notably, but not exclusively, by the judgments delivered by Deane, Toohey and Gaudron JJ in cases across this period.[89] The variety of opinion with respect to individual rights potentially derived from Chapter III of the Commonwealth Constitution illustrates Patapan's argument concerning the indeterminacy of community values and justice as a means of interpretation. In turn, it also explains why those opinions have 'failed to coalesce into a persuasive and stable jurisprudence'.[90]
The rights discourse which began in earnest on the High Court during the Mason era is hugely significant in consideration of Patapan's central questions about the Court's vision of the Australian legal and political regime and its place within it. The very limited number and nature of the express rights contained in the Constitution reflect the commitment of the drafters to the traditions of English constitutionalism and their faith in the wisdom of parliament.[91] The republicanism of Andrew Inglis Clark found little favour with most of his contemporaries at the Constitutional Conventions of the 1890s.[92] The original High Court, comprised of persons intimately familiar with the mood of the debates, may have drawn implications to support their conception of Australian federalism without hesitation. However, they had no impetus to do the same in respect of protecting human rights. The methodology laid down by the Court in Engineers and the insistence upon legalism certainly continued the Court's acceptance of parliamentary sovereignty as the theoretical core of the Australian polity. The Court's more recent change in interpretative method and its willingness to explore rights protection indicates an appreciation of its position and accountability as the final court of appeal in a member of the international legal community.[93] But Patapan is keen to assert that, more fundamental than the influence of internationalism,[94] is the Court’s growing awareness of the limitations of majoritarian rule which parliamentary sovereignty supports.[95] This has necessarily affected how it conceives its role of judicial review.[96]
Over the last decade, the ire of politicians has been aroused not just by the result of matters before the Court, but also by the clear willingness of many of its members for the Court to act as a 'buffer between [arbitrary] governmental power and the people'.[97] Though, as always, the degree to which they will insist upon this role is a source of contention. Clearly, Dawson J took a very restrained view of the Court's ability to intervene in righting the perceived wrongs of the people's representatives.[98] At the other end of the spectrum, Patapan describes Deane, Toohey and Gaudron JJ's judgments in Mabo as revealing a 'fundamental distrust of Parliament and the people'.[99] That these three justices tended to present the more progressive readings of the Constitution is not surprising – their clear preference for natural rights in the Kantian mould rather than a recognition of rights merely through a negativing of parliamentary power produced opinions that other members of the Bench considered wholly irreconcilable with Australia's constitutional traditions. The reining in of these views from Theophanous[100] to an adoption of the textualist basis for the implied freedom of political communication in Lange, and the McGinty majority's clear rejection of Toohey and Gaudron JJ's attempts to impose limits upon parliamentary control of the electoral system, represent a significant curtailment of the influence of republican theory in the High Court, at least for now. The legacy of judgments reliant upon popular sovereignty and republicanism in the field of implications arising from separation of judicial power remains to be seen.[101]
Judging Democracy is concerned with analysing the High Court's recent case law to determine how it conceives the polity within which it functions. The point has been made above, in respect of both interpretation and rights, that the founders were more heavily influenced by Westminster constitutionalism than the federalist and republican vision of the Americans. The faith in parliamentary sovereignty and responsible government explains the length of time for which the Court was held in the thrall of legalism. Although always demanding a strict separation of judicial power, the Court has acknowledged the influence of responsible government upon the greater mingling between the legislature and the executive powers.[102]
The admission of a law-making role for the courts introduces difficult notions into this setup. It directly challenges parliamentary power, it asks questions about accountability in a democratic society and, in so doing, it invites consideration upon the judiciary's claim to be separate from the other arms of government. The fierceness with which judicial separation continues to be guarded by the High Court was demonstrated particularly by the decisions in Brandy v HREOC[103] and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs.[104] On what basis does the Court's continued claim for judicial independence rest?
Patapan explores the mixed heritage of the United States' Federalist papers and Blackstone's Commentaries on the Laws of England and concludes that the separation of judicial power rests upon an amalgam of both, excessive reliance upon the former necessarily being precluded by the practical reality of responsible government in the Australian constitutional system. The Court's stated emphasis upon the protection of freedom of the individual in recent times, should not itself be seen as indicating a greater embrace of the American tradition of separation of powers. Though the federal structure of the Australian state provides a significant rationale justifying the separation of judicial power, Patapan says that 'the theoretical justifications for the Federalist conception of separation of powers never seriously engage the Court'.[105] Instead, the recent focus upon liberty has been developed within Blackstone's conception of the role of separation of powers and the protection of ancient common law rights. That said, the failure of the Court to reconcile reliance upon English notions of separate judicial power with its stated abandonment of Blackstone's declaratory theory has inevitably led to a perceptible lean towards the American constitutional concept of 'checks and balances'. The hostility with which the Court is now treated by the other arms of government, including the Attorney-General's refusal to speak for the courts, is strongly indicative of this changing constitutionalism.[106]
The Court's transition, from the legalist method and sovereignty of parliament toward a system of judicial review that more openly applies institutional restraints in light of community values, has not occurred smoothly nor without objections and difficulties – indeed it is almost certainly going too far to say that such a transition has actually occurred. Nevertheless, Patapan is able to describe the direction in which much of the Court's recent work seems to point:
The regime is founded upon republican ideals, though popular sovereignty expresses its will through representative institutions such as parliament that are subject to liberal-democratic ideals. Therefore certain core or fundamental principles are entrenched expressly or implicitly in the Constitution. These fundamental rights, which include freedom of speech and movement, of equality and non-discrimination, are jealously guarded by the judiciary which will supervise with suspicion – check and balance – other institutions such as Parliament and the executive who continually seek to augment their power and authority. The regime provides the greatest room for the play of human innovation and endeavour, assuring progress and prosperity. On the whole the polity is outward-looking, taking its cues and direction from international developments.[107]
Thus Patapan answers his initial question of the nature of the Court's democratic vision. The extent to which Australian constitutionalism is embracive of republican theory is a matter lying at the core of the present Bill of Rights debate. Yet, as George Williams argues, until such time that republicanism forms part of Australia's constitutional orthodoxy, its use by the High Court presents a 'danger for the integrity of the process of constitutional interpretation'.[108] This would explain the controversial reception which met the Court's decisions handed down in the era under review by Patapan. The obvious breaking down of the division between law and politics that is caused by consideration of republican ideals within our existing constitutional tradition is clearly a development upon the Court's earlier practice and one which, like most periods of change, caused consternation and confusion.
Having indicated the nature of the polity reflected in the High Court's recent decisions, Patapan turns his direct attention on the crucial question that has burned throughout the book – is this democratic vision the result of concerted group decision-making, or does it represent no more than the output of so much judicial discretion, indulgence and individualism? Interestingly, in his foreword to Judging Democracy, Sir Anthony Mason offers this 'caution to the reader':
The High Court is not a monolithic institution. It is at any time a group of seven justices who are obliged to hear and determine, according to their individual judgment, particular cases. The justices may have conflicting views on the role of the Court as well as on the principles of law which should govern the case in hand. It would therefore be a serious mistake to assume that, in deciding a case, the Court as an institution embarks upon any general policy with a view to achieving a particular goal, political or otherwise, external to the disposition of that case.[109]
Patapan admits that perhaps he was 'too ambitious in looking for a comprehensive and consistent depiction of Australian democracy in the Court's judgments'.[110] The judges of the High Court speak, as Mason has reminded us, primarily with their own voices. While unanimity may occur – and indeed did so comparatively frequently in the Mason and Brennan eras – it remains very much the exception to the usual practice. The difficulties posed by dissenting judgments and our lack of any conceptual framework so as to appreciate their significance in respect of a study of this sort is something which Patapan is keenly attuned to:
[T]he very possibility of many judgments, of minority and majority views, entertains the promise of dissent and thereby legitimates the possibility of overruling. That the Court may reject its previous decision, albeit rarely and reluctantly, presents the awkward possibility of many Courts, even a right and a wrong Court, a better or worse Court, a Court that is more or less legitimate.[111]
This diversity of opinion plays a crucial role in the incremental development of the Court's jurisprudence: minority judgments often act as scouts of a possible future path, advancing the jurisprudence. At other times they are the corrective, rejecting such advances'.[112] Thus, in spite of the restraints urged by precedent and the nature of litigation before it, Patapan maintains his rejection of any assertion that:
[T]he Court has little or no discretion, that its decisions are simply ad hoc or dictated by the practical exigencies of each case, that what looks like judging democracy is in fact an accidental collage of thoughts and observations rather than a complete picture of the regime. The new politics of the High Court refutes this proposition: the disjunction and in some cases break from the Court's previous decisions, and the extra-curial claims of the justices themselves, indicated and promised a more ambitious plan.[113]
The last part of this passage is a strong response to the caveat applied by Sir Anthony Mason in his foreword – undeniably the Court shifted its outlook under his Chief Justiceship. The normally 'individualistic spirit of its members'[114] makes it difficult to dismiss the developments and achievements of the High Court's work during this period as so little more than a coincidence of cases and personalities. Recent empirical work seems to indicate that Mason CJ was at the intellectual core of the Court over which he presided.[115] Thus, ironically, his influence appears to have been pivotal in establishing whatever degree of institutional coherence can be discerned.
It is clear to all observers that the Court over which Gleeson CJ presides is markedly different from that of the Mason era.[116] Thus Judging Democracy seems more a reflection on the heady days of the recent past than an analysis which encompasses much of the present Court's work. That said, Patapan's final recommendation still holds relevance in light of the lessons to be learnt from the 1990s. He urges the Court to better explain itself to its 'shadow court' – practitioners, academics, commentators and students. He is particularly concerned that the last group are not seduced by the easy appeal of a judicial method which is prepared to displace law in order to achieve what is perceived as just. Rather pointedly he identifies the 'example and ambitions of the 'Great Dissenter' on the Bench'[117] as the source of this harm. This seems unfair in light of the analysis he has offered in earlier chapters of the excesses of the Theophanous and Wik majorities, to take just two examples.
Interestingly, this is a topic which Gleeson CJ has also addressed. In his Boyer Lectures, the Chief Justice also stressed the importance of the 'shadow court' when he said:
It is not sufficient for the Court to have the respect of lawyers; but it is absolutely necessary. Without that, the Court could never hope to sustain the respect of the public. Judges of final appeal primarily needs the confidence of the judges from whom they hear appeals, and of the legal profession as a whole. If the judiciary and the legal profession lacked confidence in the technical legal ability of the members of Australia's highest court, then it is impossible to expect that public confidence could be maintained.[118]
The Chief Justice has also eerily echoed Patapan's concern about hero worship of iconoclastic judicial officers by saying that '[o]nly someone given to mock heroics, or lacking a sense of the ridiculous, could characterise differences of judicial opinion in terms of bravery'.[119] In fact, the Chief Justice's portrayal of judicial work as 'uniquely secure' and without 'risk of any personal, financial, professional, or social penalty'[120] is difficult to reconcile with much of the venomous commentary upon the Court and its individual judges in recent years. Instead of simply communicating the strength of judicial independence, such sentiments seem more like a wistful attempt to revive the decades when the Court glowed in the respect of the other arms of government and was shrouded in mystery in the public mind.
It is when one considers the recent statements on methodology that the difference between the present and the period under review in Judging Democracy seems most apparent. Through analysis of significant cases of the Gleeson period to date, Zines has been able to say that 'it cannot be said that there has been any sharp break with the recent past in judicial method so far as the majority of judges are concerned'.[121] However, extra-judicial pronouncements by Gleeson CJ are in stark contrast to those which we have become accustomed to seeing emanate from the Court since the mid-1980s. The Chief Justice has stated that 'the members of the Court are expected to approach their task by the application of what Sir Owen Dixon described as 'a strict and complete legalism".[122] Even in spite of the strong criticism of the Court since it acknowledged its law-making role and the distinct change in the Court's personnel in recent years, this is a surprising development. Are the new politics of the newest High Court, simply that it has no politics?
Can it only be four years earlier that Doyle CJ confidently stated that 'the previously prevailing strict legalism has been abandoned. There is an open acknowledgment of the role of what I have called policy"?[123] How are we to reconcile Gleeson CJ's apparent revival of legalism (or at least the rhetoric thereof) with the clear departure from it signaled by Mason J in 1986?[124] It seems far too late in the day for a retreat to the safe haven of legalism without greater explanation - quite bluntly, values are out of the bag.[125] Mason J argued that policy-oriented interpretation would expose the values underlying legal reasoning. Gleeson CJ tends to eschew the more common phrase 'community values' in preference to what he calls 'values inherent in the law'.[126] Without wishing to enter a semantic debate about the similarities or distinction between values which 'inhere' and those which are 'underlying'– it seems clear that Sir Anthony Mason's recognition of values included those which are not necessarily purely legal in nature but which may rest upon a broader base of acceptance by the community.[127] In accordance with the sociological jurisprudence which Patapan has identified as an influence upon members of the Mason Court,[128] the resort to these values does not automatically taint legal reasoning nor render it illegitimate.
What are these 'values inherent in the law' and what is their relation to what other members of the court have called 'community values'? Other than saying that '[r]espect for precedent is itself one legal value, although there are times when it is outweighed by other legal values'[129] the Chief Justice does not expand upon what these might be (though his choice of precedent as an example of the kind of values he has in mind is revealing in its conservatism), nor how they might operate, nor precisely where the line will be drawn between such values and those which are not to be properly classed as 'legal'. Thus, despite the apparently narrower range of 'values' that Gleeson CJ is prepared to recognise, he does not allay Patapan's concerns about their malleability in the hands of judges. In fact, passages from a speech delivered by the Chief Justice to the Australian Bar Association in New York last year highlight the tensions that lurk behind the cloak of the legalist tradition:
If the High Court is not to resolve federal conflicts by a legalistic method, what other method is it to employ? Different lawyers have different ideas as to the techniques that are appropriate to strict and complete legalism, but who would care to suggest an alternative to legalism? A complaint that a judgment is literalistic is one that I can understand, and with which, on occasions, I may agree. But what exactly is the meaning of a complaint that a judgment is legalistic? Judges are appointed to interpret and apply the values inherent in the law. Within the limits of the legal method, they may disagree about those values. But they have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions as to the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy.[130]
From this it is clear that room exists within 'strict and complete legalism' for diverse opinions as to methodology – in which case some discussion of these would be welcome.[131] There is also scope for disagreement about legal values – thus giving them one of the significant defects already identified in respect of community values. Additionally, there would seem legitimate concern that application only of 'values which inhere in the law' involves the judiciary projecting on to the wider community values which the latter does not entirely share.[132]
The New York speech makes it very difficult to discern Gleeson CJ's position on values as his Honour used that occasion expressly to endorse the work of McHugh J on the judicial method.[133] Whilst it is true that McHugh J's writings on the technique of judging have much in common with the views expressed with more generality by the Chief Justice, there are important inconsistencies. In particular, how are we to reconcile Gleeson CJ's insistence that judicial legitimacy depends upon a legalist method using only those values which inhere in the law, with these two statements from McHugh J in 1999:
Extrinsic values and practical experience derived from democracy, economics, science, social and political forces, public morality and contemporary conceptions of justice are often relevant factors in shaping the development of the law.
[I]f the extra-legal values of the community are clear and the issues are "relatively discrete and manageable", there is no reason to disregard them as legitimate sources of the judicial law-making function.[134]
Gleeson CJ's reticence about the substance of the values he considers relevant is also an interesting feature of his writing. If we are to confine ourselves to 'legal values', and if the 'expertise which the members of the [High] Court are required to bring to bear...is their expertise as lawyers',[135] then surely we can expect more precision about the content of those values? It may be that McHugh J provides the way forward when he says that he suspects that 'what has been called community values has usually been a reference to values such as freedom, equality before the law, good faith and reasonableness which already inhere in the legal system'.[136] Perhaps then it is possible for the Gleeson Court to connect itself to the jurisprudence which immediately precedes it but then to develop and apply its own distinctive methodology which may take it in different directions.[137]
What is very clear is that assertions of a legalist methodology will not have the desired effects of making the Court's work any easier, nor guaranteeing greater public understanding and acceptance of the outcomes. Both Williams[138] and Zines[139] have pointed out that the methodology in Wik was amongst the most legally orthodox in the last decade yet the High Court managed to attract a 'torrent of abuse' for that decision.[140] Decisions from the last few years illustrate a high degree of flexibility, selectivity and inconsistency in judicial method amongst the Court – and indeed, in respect of individual justices from case to case.[141] Apart from anything else it achieves, Patapan's Judging Democracy, by canvassing the strides in methodology and transparency made by the High Court since the mid-1980s, plays an important part in explaining why any retreat to 'strict and complete legalism' is unsustainable and unhelpful.[142]
It is apparent from the foregoing that the arrival of Judging Democracy is particularly timely. The developments in the practice and outlook of the High Court since the appointment of Sir Anthony Mason as Chief Justice has long needed just such a general yet concise study. While the many changes in the law over recent years have received specific attention in published articles, it is refreshing to read an account which seeks to relate many of those developments to each other and to the core issues of judicial method. It is probably inevitable that in attempting such a task, the author is bound to dissatisfy some readers in respect of the depth or handling of particular matters. It is just as certain, that a book of this sort generates more points of debate than it answers – indeed, given the complexity of the material under discussion, it would be an indication of deficiency if this were otherwise.
In providing a broad examination of the High Court's recent jurisprudence, Judging Democracy succeeds admirably. The selection and erudite treatment of topics by Patapan and the connections which he makes between them offers and invites reflections about many aspects of the Court's role and operations. This book will play a prominent part in our understanding of the High Court in the 1990s and our discussions about it in its second century. As such, it is ensured a welcome reception and a lasting importance.
[*] Lecturer, Faculty of Law, University of Technology, Sydney. I wish to thank Mr Lawrence McNamara and Professor George Williams for their very helpful comments and suggestions on earlier drafts of this article. In respect of the comments made concerning Chief Justice Gleeson's support for 'strict and complete legalism' I also wish to acknowledge the role of discussions held with the Jurisprudence students at UTS in Spring semester, 2000 in stimulating some of the ideas contained herein. I alone am responsible for any flaws in this article.
[1] Examples of such criticism are summarised in Michael Kirby, Through the World's Eye, (2000) 157-160.
[2] Most recently given voice in Daryl Williams, 'Judges must conduct their own defence' The Australian Financial Review (Sydney), 27 April 2001, 57.
[3] See Kirby, above n 1, 159-60.
[4] Sir Gerard Brennan, 'The State of the Judicature' (Paper presented at the 30th Australian Legal Convention, Melbourne, 19 September 1997)(copy on file with author); Michael Kirby, 'Attacks on Judges: A Universal Phenomenon' (Paper presented at the American Bar Association, Maui, Hawaii, 5 January 1998)(copy on file with author); Michael Kirby, 'Judicial Activism' (1997) 27 Western Australian Law Review 1; Murray Gleeson, 'Legal Oil and Political Vinegar' (Paper presented at the Sydney Institute, Sydney, 16 March 1999) (copy on file with author); Murray Gleeson, 'Judicial Legitimacy' (Paper presented at the Australian Bar Association Conference, New York, 2 July, 2000) (copy on file with author); Murray Gleeson, Boyer Lectures 2000 – The Rule of Law and the Constitution (2000); Murray Gleeson, 'Occasional Address' (Paper presented at Griffith University, Brisbane, 20 April 2001) (copy on file with author); Michael McHugh, 'The Judicial Method', (1999) 73 Australian Law Journal 37; Kenneth Hayne, 'Letting Justice be Done Without the Heavens Falling' (Paper presented as the Fourth Fiat Justitia Lecture, Monash University, Melbourne, 21 March 2001) (copy on file with author); John Toohey, ''Without Fear or Favour, Affection or Ill-Will': The Role of Courts in the Community' (1999) 28 Western Australian Law Review 1. Perhaps the most memorable and publicly accessible attempt by the Court to present itself and its work for scrutiny was the participation of Chief Justice Brennan and Justices Toohey, Gaudron, Gummow and Hayne in a television documentary: The Highest Court, ABC, nationally broadcast 9.30pm, 26 May 1998.
[5] Michael Kirby, 'Shocking level of civics ignorance', The Sydney Morning Herald (Sydney), 16 August 1997, 5.
[6] Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) xi.
[7] Ibid 6.
[8] Ibid 10.
[9] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[10] Patapan, above n 6, 13-14.
[11] George Williams, Human Rights under the Australian Constitution (1999) 76; RTE Latham, 'The Law and the Commonwealth' quoted in Tony Blackshield and George Williams, Australian Constitutional Law & Theory – Commentary & Materials (2nd ed, 1998) 243.
[12] Patapan, above n 6, 17.
[13] Attorney-General (Cth); Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1.
[14] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140.
[15] Patapan, above n 6, 96.
[16] Ibid 16.
[17] R v Barger [1908] HCA 22; (1908) 6 CLR 1.
[18] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.
[19] Above n 9, 155, (Knox CJ, Isaacs, Rich and Starke JJ).
[20] West v Commissioner for Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657. In Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 69, Deane and Toohey JJ stated that 'it has long been recognized that the 'notion' or 'dogma' which gained currency for a period after the decision in the Engineers' Case to the effect that the rejection of the doctrine of "immunity of instrumentalities" meant that no implications can be made in construing the Constitution was mistaken'.
[21] Patapan, above n 6, 29 and Chapter 3 generally.
[22] The significance of the declaratory mind-set of the common lawyer and its pervasive influence over the High Court for much of its life is noted by Patapan in numerous places: ibid 15; 27; 123-4; 140-1; 182-3.
[23] Victoria v The Commonwealth (Payroll Tax Case) [1971] HCA 16; (1971) 122 CLR 353, 402. An example where Patapan does expose the claims of legalism very effectively is in his handling of Barwick CJ's judgment in Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) which takes place in Chapter 4: see Patapan, above n 6, 77-80.
[24] Brian Galligan, 'The Australian High Court's Role in Institutional Maintenance and Development' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions – Theories, Principles and Institutions (1996) 200.
[25] As Doyle CJ has said, 'It is not that previously the High Court did not make law but now it does. It is simply that during his [Mason's] time as Chief Justice that role was more openly avowed and, I believe, more frequently exercised.': John Doyle, 'Implications in Judicial Law-Making' in Cheryl Saunders (ed), Courts of Final Jurisdiction – The Mason Court in Australia (1996) 84.
[26] Patapan, above n 6, 16-17.
[27] See Galligan, above n 24, 200-201 and Patapan, above n 6, 15 (text accompanying n 24).
[28] Specifically, Dixon J's role in the establishment of the Melbourne Corporation principle and the Cigamatic doctrine. The latter poses such an interesting challenge to the orthodoxy established by the Engineers Case it has been referred to as 'Dixon's heresy': see RP Meagher and WMC Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25, 29.
[29] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31.
[30] For example, consider the brief but necessary comments of George Williams in respect of federal implications as a preface to his consideration of implied freedoms. George Williams, 'Judicial Activism and Judicial Review in the High Court of Australia' in Tom Campbell and Jeffrey Goldsworthy, Judicial Power, Democracy and Legal Positivism (2000) 418. In contrast, Patapan's only mention of this case occurs in n 29 of Chapter 2 as reviving the principle of intergovernmental immunities – which actually invites much more speculation from the novice reader than no reference at all!
[31] Jeremy Kirk, 'Constitutional Implications (I): Nature, Legitimacy, Classification, Examples' [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645, 675-6.
[32] [1992] HCA 45; (1992) 177 CLR 106, 133-5.
[33] In particular McHugh J whose dissent in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 197-8, 202 indicates that he remained unconvinced that the freedom as conceptualised by some members of the Court at that time was consistent with the Engineers methodology.
[34] [1997] HCA 25; (1997) 189 CLR 520.
[35] Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 706. In this article, Stone argues forcefully that the insistence by the Court in limiting its understanding of that implied freedom by reference solely to the 'text and structure' of the Constitution presents real problems for its future application. Jeremy Kirk has also observed that the 'text cannot provide the requisite content of the constitutional requirement, nor determine the relevant boundaries': Jeremy Kirk, 'Constitutional Implications (II): Doctrines of Equality and Democracy' [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24, 52.
[36] See Patapan, above n 6, 29; Stone, above n 35, 675; Williams, above n 11, 190; Andrew Lynch, 'Unanimity in a Time of Uncertainty: The High Court Settles its Differences in Lange v Australian Broadcasting Corporation' [1997] GriffLawRw 9; (1997) 6 Griffith Law Review 211.
[37] Patapan, above n 6, 29.
[38] Ibid 24, 150, 161, and 171 amongst others.
[39] Williams, above n 11, 76.
[40] Sir Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience' [1986] FedLawRw 1; (1986) 16 Federal Law Review 1, 5.
[41] Sir Anthony Mason, 'The Role of the Courts at the Turn of the Century' (1993) 3 Journal of Judicial Administration 156, 164.
[42] See Greg Craven, 'Original Intent and the Australian Constitution: Coming to a Court Near You' (1990) 1 Public Law Review 166; Michael Stokes, 'Constitutional Commitments not Original Intentions: Interpretation in the Freedom of Speech Cases' [1994] SydLawRw 19; (1994) 16 Sydney Law Review 250; Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Michael Kirby, 'Constitutional Interpretation and Original Intent: A Form of Ancestor Worship' [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1; Jeffrey Goldsworthy, 'Interpreting the Constitution in its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677.
[43] See discussion below accompanying nn 47-52.
[44] Patapan, above n 6, 27-8; Haig Patapan, 'The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia' (1997) 25 Federal Law Review 232-234; Kirk above n 35, 26-31. While Patapan contends that originalism will tend to restrain judicial activism, he does also suggest that 'by adopting a different perspective on the founders' understanding of progress and liberalism, it may be possible for originalism in Australia to accommodate a more activist judiciary': (1997) 233.
[45] Williams, n 11, 25-45; 79-84 for a concise view of the unhelpfulness of the convention debates in respect of constitutionalising human rights. Williams writes, '[i]t is a mistake to overestimate the level or quality of debate at the Conventions, just as it is a mistake to believe that the records of the debates present the whole picture. Debate on fundamental constitutional concepts was unsophisticated and showed a lack of understanding by many speakers.' Williams, n 11, 34.
[46] Graeme Hill, '"Originalist" vs "Progressive" Interpretations of the Constitution – Does it Matter?' (2000) 11 Public Law Review 159. This is supported by Patapan's statement that 'far from being the "dead hand" of the past, originalism in fact allows the greatest scope for political experimentation and innovation' : Patapan, above n 44 (1997) 233.
[47] Gleeson, The Boyer Lectures, above n 4, 98, 134.
[48] Patapan, above n 6, 32.
[49] John Braithwaite, 'Community Values and Australian Jurisprudence' [1995] SydLawRw 21; (1995) 17 Sydney Law Review 351, 355-60.
[50] In addition to Patapan, see Jeremy Kirk, 'Constitutional Implications from Representative Democracy' [1995] FedLawRw 2; (1995) 23 Federal Law Review 37, 71-3; Klaus A Ziegert, 'Judicial Decision-Making, Community and Consented Values: Some Remarks on Braithwaite's Republican Model' [1995] SydLawRw 22; (1995) 17 Sydney Law Review 373; Martin Krygier and Arthur Glass, 'Shaky Premises: Values, Attitudes and the Law' [1995] SydLawRw 23; (1995) 17 Sydney Law Review 385.
[51] John Daley, 'Defining Judicial Restraint' in Campbell and Goldsworthy (eds), above n 30, 300.
[52] Ibid.
[53] In particular, see Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351, 383, (Murphy J); though Deane J also discussed this, ibid 410.
[54] For example, see Stevens v Head [1993] HCA 19; (1992) 176 CLR 433, 461; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 180.
[55] Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 138, (Mason CJ); and McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 230, (McHugh J).
[56] Gleeson, The Boyer Lectures, above n 4, 6.
[57] Patapan, above n 6, 31 and Kirby, above n 1, 149-154.
[58] Patapan, above n 6, 31.
[59] Gleeson, The Boyer Lectures, above n 4, 3, 74-5. See also, Kirby, above n 1.
[60] Ibid 85.
[61] Ibid 55-6.
[62] Helen Irving, 'The Australian Constitution and the Federal Compact', forthcoming paper delivered at Faculty of Law research seminar, University of Technology, Sydney, 2000, 12 (copy on file with author).
[63] See McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 230 (McHugh J), and more forcefully, Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 571-2 (Callinan J).
[64] Wik Peoples v Queensland (1996) 187 CLR 1.
[65] Patapan, above n 6, 119.
[66] Above n 64, 70-84 (Brennan CJ).
[67] Patapan, above n 6, 140.
[68] Above n 64, 179-84 (Gummow J).
[69] Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Campbell and Goldsworthy (eds), above n 30, 408.
[70] Patapan, above n 6, 140. The division that can be caused over the act of balancing historical certainty with the declaratory theory is identified by Alder as an example of the type of incommensurable disagreement which leads to dissents in final courts. His discussion of the House of Lords' split over this faultline in Kleinwort Benson v Lincoln City Council [1998] UKHL 38; [1998] 4 All ER 513 indicates that this problem is not peculiar to the High Court of Australia. See John Alder, 'Dissents in Courts of Last Resort: Tragic Choices?' (2000) 20 Oxford Journal of Legal Studies 221, 230-1.
[71] Patapan, above n 6, 141.
[72] Australian Agricultural Co v Federated Engine-Drivers & Firemen's Association [1913] HCA 41; (1913) 17 CLR 261, 278 (Isaacs J). See also JW Harris, 'Overruling Constitutional Interpretations' in Sampford and Preston (eds), above n 24, 231-247; Bryan Horrigan, 'Towards a Jurisprudence of High Court Overruling' (1992) 66 Australian Law Journal 199; Patrick Keyzer, 'When is an issue of 'vital constitutional importance'? Principles which guide the reconsideration of constitutional decisions in the High Court of Australia' (1999) 2 Constitutional Law and Policy Review 13.
[73] Patapan, above n 6, 139.
[74] Mabo v Queensland (No 2) (1992) 175 CLR 1, 145; Patapan, above n 6, 128-31.
[75] Another good example, in an area quite removed from those covered in Judging Democracy, is the High Court's development and application of the doctrine of unconscionable transactions in equity. From a perfectly acceptable doctrinal genesis and a clearly legitimate modern application in Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447, the High Court has managed (through two decisions in particular - Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 and Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457) to create uncertainty and debate about the legitimate circumstances for the application of such relief – a point which has been noted in vigorous dissents in those cases. See the judgment of Toohey J in Louth; and the joint judgment of Gleeson CJ and Callinan J in Bridgewater.
[76] Williams, above n 30, 420-3.
[77] See n 36 and Leslie Zines, 'The Present State of Constitutional Interpretation' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads – Essays in Constitutional Law (2000), 227.
[78] Patapan, above n 6, 60.
[79] [1997] HCA 25; (1997) 189 CLR 520.
[80] Patapan, above n 6, 29.
[81] Ibid 60.
[82] Ibid 70, 74, 86 and 88.
[83] Theophanous v Herald & Weekly Times, [1994] HCA 46; (1994) 182 CLR 104, 199-200 (McHugh J); McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 169 (Brennan CJ).
[84] For example, the use of textualism as an indicia of judicial restraint was recently discussed in Daley, above n 51, 305. Whether or not there is a meaningful distinction to be drawn between the two concepts, my argument is that the Court's treatment of this issue is reflective of Zines' comment that it 'was the tone rather than the substance of the [Lange] judgment that seemed to presage a new more legalistic attitude': Zines, above n 77.
[85] Kirk, above n 35, 45.
[86] As, it seems, is Chief Justice Gleeson who has asserted that the 'establishment of representative parliamentary democracy as the method of government for our Federation has been held to carry implications for freedom of political debate and comment': Gleeson, The Boyer Lectures, above n 4, 60-1.
[87] Essentially, Anthony Birch, Representative and Responsible Government: An Essay on the British Constitution, (1964) 17.
[88] Stone, above n 35; Kirk, above n 35.
[89] Specifically, Polyukhovich v Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 (Deane J and Gaudron J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 (Deane J and Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455 (Deane and Toohey JJ, Gaudron J).
[90] Williams, above n 11, 249.
[91] Patapan, above n 6, 41-5; see also Williams, above n 11, 82-4.
[92] Helen Irving, To Constitute a Nation (1998) 69-72; Williams, n 11, 30-45; George Williams, 'A Republican Tradition for Australia?' [1995] FedLawRw 4; (1995) 23 Federal Law Review 133, 144.
[93] Patapan, above n 6, 17-20; 47-9.
[94] Though on this topic, see Amelia Simpson and George Williams, 'International Law and Constitutional Interpretation' (2000) 11 Public Law Review 205.
[95] Patapan, above n 6, 49-50.
[96] In addition to the supporting extra-curial remarks cited by Patapan, see also John Toohey, 'A Government of Laws, and not of Men?' quoted in Galligan, n 24, 186; and Gleeson, The Boyer Lectures, above n 4, 68-71.
[97] Williams, above n 11, 230.
[98] See text accompanying n 73.
[99] Patapan, above n 6, 132.
[100] Where Toohey and Gaudron JJ were joined in a joint judgment by Mason CJ.
[101] See Williams, above n 11, 241-3, 249.
[102] Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73.
[103] [1995] HCA 10; (1995) 183 CLR 245.
[104] [1996] HCA 18; (1996) 189 CLR 1.
[105] Patapan, above n 6, 165.
[106] Williams, above n 2.
[107] Patapan, above n 6, 190.
[108] George Williams, 'A Republican Tradition for Australia?' [1995] FedLawRw 4; (1995) 23 Federal Law Review 133, 143.
[109] Mason, 'Foreword' in Patapan, n 6, viii-ix.
[110] Patapan, above n 6, 184.
[111] Ibid 185.
[112] Ibid 186–187.
[113] Ibid 189.
[114] Gleeson, The Boyer Lectures, above n 4, 89.
[115] Russell Smyth, '"Some Are More Equal Than Others" – An Empirical Investigation into the Voting Behaviour of the Mason Court' (1999) 6 Canberra Law Review 193.
[116] This is most attributable to the pronounced change in the Court's composition since 1995 rather than the arrival of any one particular Justice.
[117] Patapan, above n 6, 192.
[118] Gleeson, The Boyer Lectures, above n 4, 82.
[119] Murray Gleeson, 'Judicial Legitimacy' Australian Bar Association Conference, New York, 2 July, 2000, reprinted in Gleeson, The Boyer Lectures, above n 4, 124-138 (this quote from 136).
[120] Ibid.
[121] Zines, above n 77, 231.
[122] Gleeson, The Boyer Lectures, above n 4, 85. The original statement by Dixon CJ is found at (1952) 85 CLR xiv.
[123] Doyle, above n 25, 95.
[124] Mason, above n 40. I am conscious here of the arguments made by Bryan Horrigan that 'the proper meaning of strict legalism does not preclude reference to non-rule-based standards', Bryan Horrigan, 'Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning' in Sampford and Preston (eds), above n 24, 42. Horrigan's view is predicated on the basis that there is a 'narrow' and 'wide' sense of 'strict legalism'. The original use of 'strict legalism' by Dixon CJ was in the latter sense and is not to be seen as irreconcilable with subsequent admissions of the role of policy. Horrigan's argument that 'Mason CJ's call for a change in judicial approach is not a complete renunciation of Dixonian strict legalism' (ibid, 64) is hard to square with the words of Sir Anthony Mason himself when he stated, 'As the High Court moves away from "strict and complete legalism" and toward a more policy oriented constitutional interpretation, it is a natural parallel that the Court place greater emphasis on the purposive construction of statutes.' Mason, above n 40, 5. This is not necessarily to resist the construction which Horrigan places upon the sense in which Dixon CJ employed the phrase 'strict legalism', but it would seem either that Mason CJ did not unquestioningly share that perception of what the phrase evoked or, more likely, that the slide from the 'wide' meaning to the 'narrow' which had crept into Australian law by 1986 simply rendered any use of 'strict legalism' no longer helpful as an attempt to explain judicial methodology.
[125] In acknowledging inescapable policy considerations, Justice Sackville had this to say of the High Court's recent work, 'It is tempting to see recent developments as signalling a departure from the policy-oriented jurisprudence of the Mason Court. The inconvenient results flowing from cases like Re Wakim and Abebe and the emphasis on the primacy of the text of the Constitution suggest a retreat towards a "strict and complete legalism" in constitutional adjudication. But...this is too simplistic a view': Ronald Sackville, 'Foreword' in Stone and Williams, above n 77, vi.
[126] Gleeson, above n 119, 134.
[127] Although the difficulties involved in the use of 'community values' were referred to earlier in this essay, two points need to be borne in mind before rejecting such a methodology, unpredictable as it may be, for 'strict and complete legalism'. First, it was also acknowledged that some disputes may only be resolved through use of non-legal considerations such as moral or political values. Second, the problems of uncertain identification and application are not substantially lessened by resort only to 'legal values' – especially when one considers Justice McHugh's opinion that 'what has been called community values has usually been a reference to values...which already inhere in the legal system': McHugh, above n 4, 46.
[128] Patapan, above n 6, 20-22.
[129] Gleeson, The Boyer Lectures, above n 4, 98.
[130] Gleeson, above n 119, 134.
[131] This would also seem to invite consideration of whether legalism can really be said to be 'strict' when it seems to offer such selectivity.
[132] Daley has said that 'judges tend to have an homogeneous background which emphasizes some values – particularly fair process and individual liberty – in ways which are not entirely rational': Daley, above n 51, 300.
[133] Gleeson, above n 119, 129.
[134] McHugh, above n 4, 46-7.
[135] Gleeson, above n 119, 6 of original transcript of speech. Oddly, these words from the original version of the New York speech do not appear in the version found at the end of the Boyer Lectures book. The passage from which they originally came is found in The Boyer Lectures, above n 4, 134-5.
[136] McHugh, above n 4, 46-7.
[137] As another example of Justice McHugh's involvement in such a process, in his 1999 article he in fact forecast a diminished role for extra-legal values in the Court's future work: McHugh, above n 4, 46.
[138] Williams, above n 30, 427-8
[139] Zines, above n 68, 408.
[140] Ibid.
[141] See generally the various analyses of the Court's recent work contained in Stone and Williams, above n 77. In the concluding chapter of that work, Zines finds no trend in the Court's constitutional interpretation: 'There is not, in my view, any general pattern or direction at this stage. The cases are a motley collection in which the Court and individual judges take varying approaches depending on the issue': Zines, above n 77, 238.
[142] Horrigan, after arguing for the 'proper' understanding of 'strict legalism' in its 'wide' sense to be acknowledged, says, 'Australian constitutional reasoning, therefore, needs a conceptual framework for accommodating judicial reference to such 'deeper...conceptions of justice' as 'principles' (in something like their Dworkinian sense) or values underlying Australian constitutional law and for distinguishing impermissible from permissible references to 'policy' considerations, community values and other non-rule-based standards.' Above n 124, 61. In spite of his arguments about its true wider sense, the use of 'strict and complete legalism' seems ill-equipped to rise to this challenge.
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