Carne, Greg --- "Haig Patapan, 'Judging Democracy: The New Politics of the High Court of Australia'" [2002] MelbULawRw 11; (2002) 26(1) Melbourne University Law Review 224

Book Review

A Compelling Consideration Of Law And Politics In The High Court Of Australia?[*]

Judging Democracy: The New Politics of the High Court of Australia by Haig Patapan
(Cambridge: Cambridge University Press, 2000) pages i–xi, 1–214. Price A$99.00 (hardcover). ISBN 0 521 77345 8.

In the past decade, the public profile of the High Court of Australia has achieved greater prominence and its role as an institution of Australian government has attracted significant and recurrent controversy. Debate has largely focused upon changes in the Court’s interpretative methodology so as to engage issues previously considered political. Critics of the Court have questioned the legitimacy of the Court’s activities and the propriety of the Court in intruding upon legislative and executive functions.

Haig Patapan’s book engages these central themes under the title of ‘Judging Democracy’. In confronting the reality that the Court determines major political questions, the author ambitiously seeks an understanding of the dynamics of the Court’s political engagement. In charting this evolution of Australian constitutionalism, questions are raised as to whether the Court’s constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. This approach is pursued by the examination in individual chapters of several major areas, such as interpretative methodology, political rights, democracy and citizenship, native title, and the separation of powers. From each of these distinctive subjects the author seeks an understanding of the political role of the Court and the consequences of that role for Australian democracy. The final chapter draws together these findings and assesses the claim that the High Court is judging democracy. The content and methodology of the book accordingly focuses upon the judicial contribution to pressing issues of Australian democratic governance. The book’s exposition and analysis extends beyond a mere collation of existing, if divergent, democratic responses by the Court. Its original perspectives have the potential to provide new insights into the ongoing debate surrounding the Court’s democratic role.

Chapter 1, ‘The New Politics of the High Court’, identifies the political nature of adjudication by a court of final appeal, an issue considered by preceding academic study of the Court[1] and intimated in the revised assumption of the Mason Court that it no longer ‘declared’ the meaning of the law.[2] Patapan asks whether this new approach provides a coherent interpretative substitute to the methodology abandoned, or whether variables and limitations in adjudication ¾ such as differing compositions of the Bench and whether suitable issues are litigated before the Court within a suitable time frame ¾ frustrate the development of a consistent vision of democracy in constitutional issues. The answers to these questions highlight the influences and constraints upon the Court’s ability to impart democratic orientations to a variety of constitutional provisions. The focus of the book then squarely rests upon the adequacy and consistency of the Court’s democratic appraisal of constitutional and related questions.

This focus, however, highlights two recurrent difficulties inherent in the book’s overall analysis. Firstly, the proposition that the Court should be possessed of a ‘coherent and comprehensive democratic vision of the Australian polity’[3] is inherently problematic. Such a vision might confirm the contentions of the Court’s critics that the Mason Court and, to a lesser extent, the Brennan Court, had a calculated and improper political agenda. The question really becomes one of whether the Court might have a consistent and coherent understanding of concepts which can be seen as embedded in the Constitution, such as representative government.

Secondly, the prominence given to judicial engagement with democracy understates the volatile and changeable nature of the judicial role[4] and shifting judicial conceptions of democracy in a constitutional context. The chapters of the book proceed from the challengeable assumptions, firstly, that the new jurisprudence of the Mason Court was consolidated, and not abandoned, by the Brennan Court; and secondly, that ‘[t]he changes implemented during that time probably set the essential outlines of the jurisprudence that will be pursued by the current Gleeson Court, and beyond.’[5] A major concern in this respect is that, despite a late 2000 publication date, Patapan does not engage with or interpret the significance that the new membership and temperament of the Gleeson Court (from May 1998) represents to his thesis.[6] Similarly, an argument may be made that ‘consolidation’ of the implied freedom of political communication jurisprudence by the Brennan Court in the 1996 case of Langer v Commonwealth[7] and, more particularly, the 1997 cases of Lange v Australian Broadcasting Corporation,[8] Levy v Victoria[9] and Kruger v Commonwealth[10] has done more, in practical terms, through application of a restricted meaning of ‘political communication’ and an overriding test of proportionality, to atrophy rather than sustain a freedom of political communication sourced in representative and responsible government.[11] These and other critical developments in the Brennan and Gleeson Courts ¾ such as the perceived desirability by both major political parties of appointing judges to the Court of a conservative disposition and the unwillingness of the present Attorney-General, Daryl Williams, to defend the Court and its decisions from political attacks ¾ make it less likely that democratic concepts will animate High Court jurisprudence at the present time. The apparent depoliticisation of the Court’s constitutional jurisprudence by way of retreat from, rather than entertainment of, democratic notions as informing constitutional provisions, is itself a statement of the institutional proprieties of judging democracy. Such omissions qualify and therefore diminish the authority of the book’s appraisal of how the Court has judged the democratic import of key constitutional provisions.

Chapter 2, ‘Politics of Interpretation’, focuses upon the consequences of the Mason Court’s abandonment of the declaratory theory, the advocacy of a dynamic, policy-laden approach to interpretation, and the use of ‘community values’[12] as a new guide to judicial law-making. This new interpretative methodology is rationalised as consistent with, and an enhancement of, representative and responsible government because it involves a judicial supplementation and modernisation of the law. A pointed criticism is made of the difficulties in determining the content and ranking of community values in the new interpretative methodology. Patapan rightly considers that the Court has failed to clearly identify and articulate the bases from which these democratic choices and emphases of community values must inevitably be made.[13] However, in highlighting the problems of ranking and choice of community values as factors in the democratic aspect of constitutional provisions, some consideration should have been given to the fact that the later jurisprudence of the Brennan and Gleeson Courts, in its disengagement from rigorously addressing these democratic questions in constitutional interpretation, leans towards an earlier interpretative methodology and a significantly more limited model of democratic governance.[14]

Chapter 3, ‘Politics of Rights’, considers the Court’s notion of representative democracy as conceived in the implied freedom of political communication cases and its derivation of human rights from international law. The author’s appraisal of the Court’s development of rights and freedoms is juxtaposed with discussion of both the association of parliamentary sovereignty and liberal constitutionalism with their natural rights foundations, and of political and civil rights proceeding from the will of the legislature and utilitarian foundations. A plausible argument is made that these contrasting foundations have variously informed the Court’s articulation of the democratic content of rights.[15] The author’s argument is compelling and illuminating in two respects. Firstly, the Court has not clearly articulated these tensions, and secondly, the process of adjudication which occurs when democratic considerations enter into constitutional interpretation inevitably touches upon and must ideally accommodate these foundations.

Patapan then provides an informative summary of the different conceptions of rights, citizenship, authority and legitimacy that each philosophical tradition represents. He observes that an emphasis upon liberal constitutionalism with a rights-based foundation will enhance both the democratic orientation of constitutional legal issues as well as the responsibility and influence the judiciary must then exercise over the questions of democracy in constitutional interpretation.[16] A sound framework of analysis and exposition of these democratic questions is subsequently provided. In particular, the jurisprudence of the Court’s attempts to allegedly implement an implied bill of rights and the Court’s engagement with international law treaties and norms in circumstances raising human rights issues are canvassed with appropriate depth. The author’s treatment of these topics displays a skilful exposition and analysis of the democratic import of the decisions through the prism of the competing philosophical traditions.

On occasion, however, this exposition could have been further refined through closer attention to the detail of some matters which directly influence the Court’s relationship with the legislature. For instance, there is a lack of adequate reference to the Human Rights Act 1998 (UK) c 42 as highlighting Australia as the last major common law jurisdiction without a bill of rights, and an insufficient appraisal of the influence upon the Lange judgment of the views respectively expressed by the minority in Theophanous v Herald & Weekly Times Ltd[17] and subsequently by the majority in McGinty v Western Australia.[18] In addition, the author continually adopts a value-laden use of the phrase ‘representative democracy’ that was deliberately replaced by the Court in Lange with the narrower democratic concept of ‘representative government’.[19] Further criticisms of the text include the need to appreciate that this change in constitutional terminology in Lange arose as part of a constitutionalised consolidation of the common law of defamation;[20] the omission of discussion of the 1999 Teoh Bill;[21] and minimal reference to Kirby J’s jurisprudence on the integration of international law norms in the development of Australian constitutional law,[22] of special importance in its potential impact upon perceptions of national parliamentary sovereignty, but also of relevance to common law development and statutory interpretation.

The Court’s adjudication of democracy in the context of political participation is of course not restricted to a constitutional freedom of political communication and the influence of international law. Patapan acknowledges this point in the discussion within chapter 4, ‘Democracy and Citizenship’, of parliamentary representation and electoral distribution.[23] These topics are important indicators of the Court’s assessment of the constitutional status of the citizen as an elector and representative in a system of representative parliamentary democracy. The strengths of this chapter are found in the detailed exposition of the constitutional requirements of representative government in the decision in Attorney-General (Cth) ex rel McKinlay v Commonwealth[24] and the comparison proffered with the later case of McGinty.[25] The significance of the majority decision in McGinty is accurately propounded as a reversion by the Court to a narrower interpretative methodology in determining the relative value of the franchise and in a reappraisal of the Court’s relationship with Parliament in assessing the minimum electoral requirement of free choice inherent in a constitutional system of representative government. The pivotal role of the Court in endorsing a narrow form of representative government, centred upon the requirements of choice, is highlighted and said to emerge from the practical difficulties of adopting a more expansive view.[26]

A more rounded appraisal of the Court’s critical role in judging democracy by conceptualising the constitutional requirements of citizen participation in the structures and processes of representative government also demands comprehensive appraisal of the jurisprudence of the constitutional provisions concerning the right of representation, and constitutional protection of the franchise. Section 44 of the Constitution is given fairly peremptory treatment through a brief consideration of Sue v Hill,[27] but important litigation concerning parliamentarians Cleary,[28] Wood,[29] and Kelly[30] is not examined, nor is the 1996 post-election controversy that arose in relation to South Australian Senator-elect Ferris.[31] Similarly, discussion of s 41 of the Constitution is omitted, although the Court in R v Pearson; Ex parte Sipka[32] and Snowdon v Dondas [No 2][33] has clearly indicated the Court’s devaluation of the section such that it is now a spent provision. A discussion of these aspects would have added a further dimension to the author’s thesis that the decision in McGinty represents a retreat from the continuing exposition of the fundamentals of constitutional citizenship.

The content of chapter 5, ‘Native Title and the High Court’, allows the author to consider the Court’s role in the judgment and construction of democracy from the contrasting perspective of common law assumptions about indigenous rights and the reception of common law in Australia. It also supports a candid analysis of the political response of the Parliament and the Executive to such judgments. The discussion of Mabo[34] is usefully interpolated with themes of civilisation and culture, the rule of law, contrition and restitution, and the distinction proffered between legal and political questions. The discussion affirms that foundational issues of Australian constitutionalism were involved in that case and acknowledges that judicial responses were grafted onto essentially political problems. The consequent influence upon the Parliament and the Executive of the politicised legal issue of native title and sovereignty, and the response, is then raised in a succinct discussion of the Native Title Act 1993 (Cth) and Western Australia v Commonwealth.[35] A lively treatment of these issues as they unfolded in Wik[36] and the Ten Point Plan[37] is also included.[38] The influence of the Court over the opportunities for legislative resolution of native title issues is highlighted in the discussion of Kartinyeri v Commonwealth.[39] If the Court had decided that the legislative ‘race power’[40] was able to be utilised only for the benefit of Aboriginal peoples, the Court would have created for itself a contentious supervisory role over legislative policy. Similarly, the unpredictability of adjudicative resolution of political issues is exemplified in the failure of the Aboriginal litigants in Kruger v Commonwealth[41] to gain broad judicial recognition of breaches of various implied freedoms, immunities and rights.

The significance of the Court entering the realm of major indigenous political issues is confirmed by passing reference to the adverse reactions of State and federal politicians to the High Court’s native title jurisprudence. A further evaluation of this political response is, however, immediately warranted, especially in its influence upon later perceptions by the Court of its relationship with Parliament and consequent changes in interpretative methodology. Instead, the political reaction to the High Court’s Mabo and Wik decisions is held over for discussion in the ensuing chapter dealing with the separation of powers. Detailed treatment of this issue in chapter 5 would have exposed the weaknesses in the politicians’ complaints. One weakness is the fact that the legislature largely left the Court to resolve difficult questions of indigenous land rights on its own. A second weakness is that the development of the indigenous title jurisprudence within the constitutional framework of an extant but evolving system of common law and parliamentary sovereignty permits Parliament to legislate inconsistently with that common law development. A final weakness is some disturbing and fundamental misconceptions by prominent State and federal politicians of the nature and limits of legislative and executive law-making in a federal system with a written constitution.

Chapter 6, ‘Separation of Powers’, opens with a substantial examination of the different conceptions of separation of powers within the English model of representative and responsible government and the American system of limited republican government. The chapter traces the influence these traditions had upon both the structure and text of the Constitution and subsequently upon the Court’s interpretation of it. Patapan identifies the critical issue in this debate as the Court’s failure to develop a reasoned reconciliation between the maintenance of an English conception of separation of judicial power with a rejection of a declaratory theory of law-making, and the embrace of a policy-orientated interpretative methodology.[42] A plausible hypothesis is then made that the Court’s failure to come to terms with this theoretical question has left it vulnerable to political attack.[43] This hypothesis does, however, credit political critics with a sound grasp of basic constitutional theory, which is a more doubtful proposition.

A more pertinent observation is found in the author’s argument that the Court’s decisions, primarily in the native title area — but also in civil liberties cases concerning the right to procedural fairness, rights of legal representation, prohibition of Bills of Attainder and substantive rights of due process — are perceived as an institutional challenge to the legislative and executive authority of government.[44] This argument represents a stark example of the author’s thesis regarding the Court’s judgment of, and contributions to, the construction of democracy. The vehemence of the political reaction to the High Court’s jurisprudence might be better understood by considering the enhancement of the individual rights of the citizen at the expense of the scope or exercise of legislative power which the decisions represent, and the shift they effect to a more participatory, as distinct from representative, form of democracy.

This enlargement of the status of the citizen by the Court under a revised system of representative government is perceived by Patapan as exposing the Court to overt political attack and as rescinding the Commonwealth Attorney-General’s role in defending and explaining the Court’s decisions.[45] Patapan elicits some of this material, but surprisingly omits a series of 1998 and 1999 judicial power cases, namely Nicholas v The Queen,[46] Abebe v Commonwealth,[47] Attorney-General (Cth) v Breckler,[48] Re Governor, Goulburn Correctional Cen-tre, Goulburn; Ex parte Eastman[49] and Re Wakim; Ex parte McNally.[50] These cases are important indicators of the nature of judicial power and signal a particular reaction in interpretative method by the Court following a period of sustained political criticism.[51] In particular, the majority decision in Re Wakim that the cross-vesting scheme was constitutionally invalid communicates seemingly contradictory features: a more literal interpretative method informed by a robust notion of judicial independence was used to strike down a hitherto satisfactory legislative scheme and, in so doing, created substantial forum problems in litigation.[52] This shift to a more conservative interpretative methodology attracted further opprobrium for the Court. This example could have been developed as fresh evidence of the incoherence and inconsistency in the Court’s manoeuvrings and interactions with democracy, similar to the earlier criticisms made of liberal, policy-orientated interpretative methods. Furthermore, the issue of whether there has been a change in the Court’s preference towards the use of Chapter III judicial power[53] as a more credible and legitimate constitutional foundation for individual rights-orientated outcomes is not canvassed. Such a change might well be inspired by the conjunction of judicial independence with familiarity in the practical exercise of judicial power. Discussion of these matters would have provided further profitable insights into the Court’s judgment of democracy.

The concluding chapter, ‘Judging Democracy’, is the most impressive of the book. The author communicates a clear purpose of consolidating the ideas, arguments and themes explored in previous chapters. He assesses both the extent to which the Court’s adjudication represents and articulates an integrated and comprehensive change of direction in Australian constitutionalism and the practical and theoretical limits on the Court in achieving such change. The variegated response of the Court in its interpretative approach according to the different subject-matters discussed in the previous chapters is comfortably acknowledged and the author’s analysis is sophisticated and nuanced.

The acknowledgment that the High Court’s interpretative methodology has produced different responses to democratic questions is inspired by a preference that the Court should more clearly articulate the theoretical foundations of constitutional interpretation and common law development. The author considers that such a development would produce both greater coherence in the Court’s jurisprudence and make the Court’s contributions to democratic governance more defensible.[54] However, an alternative perspective would be that these different responses by the Court in interpretative methodology evidence a modest, incremental methodology evolving from, rather than being at odds with, the hybrid sources of the authority of the Constitution and the evolution in its sovereign basis since Federation.[55] Any suggested grand strategy of improper constitutional aggrandisement by the Court in the determination of democratic issues is accordingly diminished from such a perspective.

Under the subheading ‘Competing Views of Australian Democracy’, the concluding chapter conveniently summarises and sharpens the author’s conclusions about the Court’s influence over Australian democracy based upon earlier discussion surrounding principles of interpretation, rights and freedoms, citizenship, native title and the separation of powers. This summary is included for the general purpose of highlighting the tensions and differences within the Court’s democratic vision. It also enables a more detailed consideration to be made of the Court’s understanding and definition of the common law and its function in judging common law within the Australian polity. That consideration is both perceptive and illuminating, confirming in substance the Court’s enlarged political role. The Court’s abandonment of a declaratory theory of common law means it has acquired the roles of an umpire, of a renovator (in bringing laws up to date with community values and expectations), of a facilitator and supporter of Parliament (by engaging with specialist legal questions), and also of a guardian of vulnerable minorities.[56]

Subsequent consideration of the limits of the judicial function compels the conclusion that the Court does not possess a comprehensive, overarching vision of Australian democracy. The author is thereupon obliged to provide more rounded insights and perceptions into the apparent inconsistencies in the approach by the Court to the various subject matters dealt with in the preceding chapters. This discussion covers the dynamics of majority and minority judgments, the norms of judicial deliberation and judgment writing, the dependence of the Court on the submission of particular issues to it and the relative rarity of an intersection between two or more of the major areas of the Court’s engagement with democratic issues, such as common law native title and the implied freedoms jurisprudence.

Of special interest is the discussion of limitations upon the judicial ability to shape the nature and practice of democracy, as the Court’s jurisprudence must interact with normative concepts such as the rule of law, equality before the law, parliamentary sovereignty, federalism, separation of powers and individual rights and freedoms. A change in interpretative assumptions, in order to be reconciled with an enhanced role in judging democratic institutions and practices, demands a reworking by the Court of these and other concepts in the reasoning and policy of its decisions. This is an interesting hypothesis and one that might have been expanded further by linking it with the author’s other claims that the Court may not have been aware of the full scope and reach of its decisions, and that increasingly the Court has been concerned with the reception of its decisions in informed sections of the community.[57] In consequence, the Court’s initial engagement with the shaping of democracy was an unappreciated and unconsciously complex task with subtle practical and theoretical political dimensions. In turn, the jurisprudence of the Brennan and Gleeson Courts can be seen in a new light in their various levels of contraction and disengagement from a curial role in the construction of democracy. These new approaches are a subsequent realisation of the demands and dimensions of the issues raised, a consciousness of the jurisprudential and institutional pressures created for the Court, and the making of methodological choices which instinctively recoil from those same demands.

The author also revisits the earlier, more general, theme of the Court’s development of Australian constitutionalism towards a more republican-informed model of judging democracy. Republicanism, as informing the Court’s judgments of democracy, is considered as part of a global trend amongst courts of final jurisdiction. This appraisal of the Court’s judgment of democracy is achieved by the author broadening his earlier theme so that a ‘more subtle evaluation of the Court’s intentions’ is called for.[58] The task is ‘not to paint a sharp picture but to trace trends and tendencies, to look at transformations, evolutions and transitions in the Court’s jurisprudence.’[59] This is a more realistic appraisal of the judicial engagement with democratic institutions and practices. It accommodates the insights already gained concerning apparent inconsistencies in the Court’s approach to the subject matter of each of the chapters. It is a timely corrective to some extravagant public claims and criticisms of the Court’s engagement with democratic questions. It is also an important factor in refocusing debate amongst legal commentators, including practitioners and academics, which will ultimately influence general community opinion of the Court’s activities. The author is led to a pertinent concluding insight: the Court’s engagement with questions of democracy has placed novel demands and responsibilities upon it.[60] Equally, however, any engagement with the Court’s jurisprudence also demands of other institutions and individuals in that democracy significant enhancements in judgment, deliberation and choice of language and analysis.

Judging Democracy is a sophisticated and insightful appraisal of a fascinating and complex topic. Haig Patapan’s analysis and assessment of that topic is both original and provocative. The book’s assessment of High Court jurisprudence engaging democratic questions is ambitious in both the claims made by the author and the scope of the subject-matter examined. That ambition is subsequently tempered by the author’s consolidation of the arguments advanced and a rounded appraisal of a complex range of factors affecting the coherence of both the Court’s response to democratic issues and the need for institutions and critics to respond to that jurisprudence in a more sophisticated manner. Whenever the reader might consider the author’s claims concerning the Court’s methodology to be excessive or contestable, another instance will arise that provides fresh insights into the Court’s construction of democracy.

The unexplained omission of an appraisal of the early Gleeson Court’s jurisprudence, methodologies, temperament and socio-legal outlook is disappointing in that the perspectives and explanations developed by the author warrant contemporary evaluation. The apparent disinclination of this Court to engage with the practical and philosophical difficulties raised by the Mason Court in judging democratic institutions and practices itself constitutes a political judgment by the Court of its status and capacity in a democratic polity. However, these matters in their own way underline the strengths of the book in provoking awareness, prompting debate and highlighting recurrent issues from the Court’s democratically-focused jurisprudence. The author succeeds in ample measure in responding to his original, central question of whether the Court’s constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. The detailed responses to that question ensure the book is a welcome addition to existing works offering a critique of the political role of the High Court of Australia.[61]

GREG CARNE [*]

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[*] As Dixon J observed in Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31, 82:

it has often been said that political rather than legal considerations provide the ground of which the restraint [of government] is the consequence. The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.

[1] See, eg, Brian Galligan, The Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987); David Solomon, The Political High Court: How the High Court Shapes Politics (1999).

[2] See, eg, the discussion in a number of articles by Sir Anthony Mason, including ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ [1986] FedLawRw 1; (1986) 16 Federal Law Review 1; ‘Future Directions in Australian Law’ [1987] MonashULawRw 6; (1987) 13 Monash University Law Review 149; ‘Trends in Constitutional Interpretation’ [1995] UNSWLawJl 13; (1995) 18 University of New South Wales Law Journal 237; ‘The Judge as Law-Maker’ (1996) 3 James Cook University Law Review 1; ‘The Interpretation of a Constitution in a Modern Liberal Democracy: Theories, Principles and Institutions’ in Charles Sampford and Kim Preston (eds), Interpreting Constitutions (1996) 13.

[3] Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) 6.

[4] For competing views about how High Court judges might go about the business of constitutional adjudication, see, eg, Sir Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’, above n 2; Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ [1998] AdelLawRw 5; (1998) 20 Adelaide Law Review 49; Justice Michael McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37; Justice Michael Kirby, ‘Judicial Activism’ [1997] UWALawRw 1; (1997) 27 University of Western Australia Law Review 1.

[5] Patapan, above n 3, 5.

[6] See, eg, Chief Justice Murray Gleeson, ‘Swearing in of Chief Justice Gleeson’ (1998) 193 CLR xi; Chief Justice Murray Gleeson, ‘Legal Oil and Political Vinegar’ (1999) 73 Law Institute Journal 50; Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 76, 93, 110, 124; 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) 224.

[7] [1996] HCA 43; (1996) 186 CLR 302.

[8] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).

[9] [1997] HCA 31; (1997) 189 CLR 579.

[10] [1997] HCA 27; (1997) 190 CLR 1.

[11] See, eg, the High Court’s refusal of special leave to appeal in Transcript of Proceedings, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (High Court of Australia, Gleeson CJ and Gummow J, 11 December 1998) and Transcript of Proceedings, Australian Broadcasting Corporation v Hanson (High Court of Australia, Gleeson CJ and McHugh J, 24 June 1999).

[12] See, eg, John Braithwaite, ‘Community Values and Australian Jurisprudence’ [1995] SydLawRw 21; (1995) 17 Sydney Law Review 351; McHugh, above n 4; Kirby, ‘Judicial Activism’, above n 4.

[13] Patapan, above n 3, 25–7.

[14] See, eg, 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; Geoffrey Kennett, ‘The Freedom Ride: Where to Now?’ (1998) 9 Public Law Review 111; Geoffrey Lindell, ‘Expansion or Contraction? Some Reflections about the Recent Judicial Developments on Representative Democracy’ [1998] AdelLawRw 11; (1998) 20 Adelaide Law Review 111.

[15] Patapan, above n 3, 41–3.

[16] Ibid 47.

[17] [1994] HCA 46; (1994) 182 CLR 104 (Brennan, Dawson and McHugh JJ).

[18] [1996] HCA 48; (1996) 186 CLR 140 (Brennan CJ, Dawson, McHugh and Gummow JJ) (‘McGinty’).

[19] See, eg, Patapan, above n 3, 55, 56, 60.

[20] Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

[21] Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth). The Bill subsequently lapsed but remains the subject of potential legislative action.

[22] See Kirby J’s judgments in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 637 and Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 386. See also the following articles by Justice Michael Kirby: ‘Domestic Implementation of International Human Rights Norms’ [1999] AUJlHRights 27; (1999) 5(2) Australian Journal of Human Rights 109; ‘The Bangalore Principles: The Growing Use by the Commonwealth Courts of International Human Rights Norms’ (1997) 78 Parliamentarian 326; ‘Human Rights — The International Dimension’ (1995) 21 Commonwealth Law Bulletin 651.

[23] Patapan, above n 3, 70.

[24] [1975] HCA 53; (1975) 135 CLR 1.

[25] [1996] HCA 48; (1996) 186 CLR 140.

[26] Patapan, above n 3, 101–2.

[27] [1999] HCA 30; (1999) 199 CLR 462; Patapan, above n 3, 100–1.

[28] Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77.

[29] Re Wood [1988] HCA 22; (1988) 167 CLR 145.

[30] Free v Kelly [1996] HCA 42; (1996) 185 CLR 296.

[31] See, eg, Leonore Taylor, ‘Minchin Vows to Defend Validity of Senator-Elect’, The Australian (Sydney), 27 May 1996, 4; Laura Tingle, ‘Senate May Ask High Court to Referee Factional Fight’, The Australian (Sydney), 28 May 1996, 4; Laura Tingle, ‘High Court May Rule on Senator-Elect’, The Australian (Sydney), 29 May 1996, 4; ‘Adjudication Sought on Ferris’, The Australian (Sydney), 30 May 1996, 4. Extensive examination of the issues arising from s 44(i), (iv) of the Constitution is found in House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Aspects of Section 44 of the Australian Constitution — Subsections 44(i) and (iv) (1997). See also Kristen Walker, ‘Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?’ [1997] UNSWLawJl 26; (1997) 20 University of New South Wales Law Journal 257.

[32] [1983] HCA 6; (1983) 152 CLR 254.

[33] [1996] HCA 27; (1996) 188 CLR 48.

[34] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[35] [1995] HCA 47; (1995) 183 CLR 373.

[36] Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’).

[37] See Native Title Act 1993 (Cth) as amended by Native Title Amendment Act 1998 (Cth).

[38] Patapan, above n 3, 139–44.

[39] [1998] HCA 22; (1998) 195 CLR 337.

[40] Constitution s 51(xxvi).

[41] [1997] HCA 27; (1997) 190 CLR 1.

[42] Patapan, above n 3, 150, 161–5, 171.

[43] Ibid 165.

[44] Ibid 165–8.

[45] Ibid 165–70.

[46] [1998] HCA 9; (1998) 193 CLR 173.

[47] [1999] HCA 14; (1999) 197 CLR 510.

[48] (1999) 197 CLR 83.

[49] (1999) 200 CLR 322.

[50] (1999) 198 CLR 511 (‘Re Wakim’).

[51] Indeed, as Justice Sackville of the Federal Court has remarked, ‘[t]he Court’s recent Chapter III jurisprudence is inexplicable, except as a consequence of policy judgments on issues as fundamental as the rule of law itself’: Justice Ronald Sackville, ‘Foreword’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) v, vii.

[52] For a discussion of these problems see Michael Whincop, ‘Trading Places: Thoughts on Federal and State Jurisdiction in Corporate Law after Re Wakim’ (1999) 17 Company and Securities Law Journal 489; Cheryl Saunders, ‘In the Shadow of Re Wakim’ (1999) 17 Company and Securities Law Journal 507; Robert Baxt, ‘The Wakim Decision: What Should Be Done to Overcome Its Impact’ (1999) 17 Company and Securities Law Journal 518.

[53] Constitution ch III.

[54] Patapan, above n 3, 178–80.

[55] A further example of an alternative perspective is provided by Sir Anthony Mason in his Foreword to Patapan’s book, ibid viii–ix. Sir Anthony observes:

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. ... 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.

[56] Patapan, above n 3, 183.

[57] Ibid 187, 192.

[58] Ibid 189.

[59] Ibid.

[60] Ibid 193.

[61] See, eg, Galligan, above n 1; Solomon, above n 1. Reference should also be made to various entries in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001), which was published subsequent to the Patapan text.

[*] BA, LLB (Hons) (Monash), Dip Ed (Melb), PhD (ANU); Barrister and Solicitor of the Supreme Court of Victoria; Faculty of Law, University of Tasmania. The author would like to thank the anonymous referee for their comments on this essay.