COURTS AND SOCIAL CHANGE
Justice Ronald Sackville *
INTRODUCTION
The relationship between courts and social change can be viewed from at least two
perspectives. The first, frequently explored in the literature, invites consideration of
how courts respond to social change, real or apparent. The second directs attention to
whether the courts themselves can bring about social change.
There is, of course, a vast literature on the role of law in society, some of which
examines the impact of legal reforms, including judicial law-making, on community
norms or values. 1 But in Australia legal commentators have devoted little attention to
the role of courts as instigators of social change. Perhaps this is because there is a
substantial body of opinion that seems to take it for granted that courts have no
business attempting to bring about social change. The Chief Justice of the High Court,
for example, has recently expressed the view that judges 'do not set out to influence
wider community values. They are neither followers nor leaders of public sentiment.' 2
This proposition, however, is not entirely self-evident, at least not to Mr Dooley
who famously observed that 'th' supreme coort follows th' iliction returns.' 3
The lack of attention in Australia to the role of the courts as instigators of social
change contrasts with the passion and intensity of the debate concerning the merits (or
drawbacks) of so-called 'judicial activism'. The contrast is striking because much of the
criticism of judicial activism seems to presuppose that judges, particularly of
constitutional courts, not only have the power to make new law on issues of
fundamental social, economic and political importance, but also the ability, by their
decisions, to shape community norms and values. Thus it has been said that, for
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*
Judge, Federal Court of Australia. A revised version of a paper delivered at the Australian
Lawyers and Social Change Conference, September 2004. I acknowledge the valuable
research assistance of May Miller-Dawkins in the preparation of this paper.
1
See, eg, Roger Cotterrell, The Sociology of Law: An Introduction (1984) ch 2; Gerald
N Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991) ch 1; Lawrence
Lessig, 'The Regulation of Social Meaning' (1995) 62 University Chicago Law Review 943.
2
Chief Justice Anthony Murray Gleeson, 'Out of Touch or Out of Reach?', (Speech delivered
at the Judicial Conference of Australia Colloquium, Adelaide, 2 October 2004).
3
Mr Dooley was the creation of Finley Peter Dunne, Mr Dooley's Opinions (1901), cited by
Rosenberg, above n 1, 13.
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example, judicial activists 'undermine values that should be central to progressive
politics' and participate in government in a 'profoundly anti-democratic' manner. 4
In this paper, I first address the debate about 'judicial activism' which reflects one
aspect of the relationship between courts and social change. I suggest that the intensity
of the passions unleashed by much of the debate is inversely proportionate to the true
significance of the issues at stake. I then make some observations on the ability of
courts to bring about social change. The discussion is informed by a recent reevaluation of the 1954 decision of the Supreme Court of the United States in Brown
v Board of Education, 5 which is often seen as having ended the era of officially
sanctioned social segregation in that country. I argue that the courts have but a limited
capacity to effect social change.
A DEFINITIONAL ISSUE
Any discussion of the relationship between law and social change immediately raises a
definitional issue. What is social change? Plainly the concept must mean something
more than developments in legal doctrine, even those of fundamental importance to
the legal system. Otherwise significant legal change, by hypothesis, would bring about
social change.
A well-known dictionary of sociology suggests that, at least to sociologists, social
change involves:
changes that affect norms, values, behaviour, cultural meanings and social relationships. 6
This definition takes a broad view of social change, but raises further definitional
questions. What, for example are 'norms' and 'values'? Eric Posner says that a norm
can be understood as a rule that distinguishes desirable and undesirable behaviour and
gives a third party the authority to punish a person who engages in the undesirable
behaviour. Thus, a norm constrains attempts by people to satisfy their preferences. 7
Although a norm can be described as a rule, it is not formally promulgated or
enforced. Rather, 'when people observe some behavior, they more or less
spontaneously approve or disapprove of it (or fail to react), and then reward, penalize,
or ignore the actor.' 8
The concept of 'community values' is even broader than a norm. Perhaps no more
specific definition of community values can be advanced than 'conceptions of the
desirable society … held in common by its members'. 9
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4
John Gava, 'The Rise of the Hero Judge' (2001) 24 University of New South Wales Law Journal
747, 747–8. See also Haig Patapan, Judging Democracy: The New Politics of the High Court of
Australia (2000) 6.
5
347 US 483 (1954).
6
Gordon E Marshall (ed), Dictionary of Sociology (1998) 65.
7
Eric A Posner, 'Law, Economics and Inefficient Norms' (1996) 144 University of Pennsylvania
Law Review 1697, 1699.
8
Ibid.
9
Cotterrell, above n 1, 86, citing Talcott Parsons, 'Durkheim's Contribution to the Theory of
Integration of Social Systems' in Kurt H Wolff (ed), Essays on Sociology and Philosophy by
Emile Durkheim et al (1964) 8.
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Theories of social change must accommodate the large ideas incorporated in the
concepts of societal norms and values. Haferkamp and Smelser, for example, argue
that any theory of social change must contain three elements: 10
1. Structural determinants of social change, such as population changes, the dislocations
occasioned by war, or strains and contradictions.
2. Processes and mechanisms of social change, including precipitating mechanisms,
social movements, political conflict and accommodation, and entrepreneurial activity.
3. Directions of social change, including structural changes, effects, and consequences.
If these are the elements of any theory of social change, it would seem that legal
reforms, at least of the kind characteristic of a functioning constitutional democracy,
have a minor role to play as instigators of social change. In particular, judicial lawmaking is unlikely to rank highly in a list of determinants of social change when
compared with events such as war, the diversification of the population through mass
migration, improvements in public health and life expectancy, the advent of
globalisation, the triumph of the market economy, and the post-industrial
technological revolution, all of which have been experienced within the living memory
of Australians. It is therefore perhaps not surprising that a book entitled 'Social Change
and Modernity', 11 which includes contributions by social scientists drawn from a
number of countries, contains no index reference to 'law'.
OF HEROES AND STERILE DEBATES
Courts, like all institutions of government, have no option but to respond to social
change. At a minimum, social change generates novel legal issues requiring resolution
by the courts. An example is the technological revolution, which presents challenges
not only for the law of intellectual property, 12 but for areas as diverse as constitutional
law 13 and the law of defamation. 14 Changes in community values that accompany the
diversification of a hitherto relatively homogenous population quickly permeate legal
doctrine, spurred on by legislative intervention. 15 Social change also obliges courts to
re-evaluate apparently entrenched principles. In De Sales v Ingrilli, 16 a case concerning
the assessment of damages recoverable by a young widow in respect of the death of
her husband, three members of the High Court remarked on the: 17
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10
Hans Haferkamp and Neil J Smelser (eds), Social Change and Modernity (1992) 2.
11
Ibid.
12
For illustrations see Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1
(copyright in computer software); Kabushiki Kaisha Sony Computer Entertainment v Stevens
(2003) 132 FCR 31 (circumvention of technological protection measures); Genetics Institute
Inc v Kirin —Amgen Inc (No 3) (1998) 156 ALR 30 (patentability of invention using DNA
techniques to produce polypeptide proteins).
13
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 (upholding the
constitutional validity of the Plant Breeder's Rights Act 1994 (Cth).
14
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 (internet defamation).
15
Such as the values implicit in the Racial Discrimination Act 1975 (Cth); cf Mabo v Queensland
(No 2) (1992) 175 CLR 1, 41–2 (Brennan J). For a study of the circumstances in which
normative changes cause decisions to lose force as precedents, see William N Eskridge Jr,
'Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity
Politics' (2004) 88 Minnesota Law Review 1021.
16
(2002) 212 CLR 338.
17
Ibid 363 (Gaudron, Gummow and Hayne JJ).
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[v]ery great changes [which] occurred during the last half of the twentieth century in the
nature and durability of family relationships, in the labour market, and in the
expectations that individual members of society have for themselves and about others –
economically, socially, domestically, culturally, emotionally. Even if once it were the case,
no longer can a court make any assumption about the role that an individual can be
expected to play in the family or in the economy.
The debate about how courts should respond to social change gives rise to
important questions of judicial methodology. But much of the debate in Australia has
focused on the merits or otherwise of 'judicial activism'. A Judge of the Supreme Court
of New South Wales has recently recorded his shock 18 upon learning that the
expression 'hero judge' is not intended to be a compliment, but is a term of abuse
adopted by one of the current batch of 'legal fundamentalists' (to use the Judge's
neutral description). 19 According to John Gava, the heroic style of judging is a
'catastrophic' and 'perverse' development and hero-judging is 'arguably a sneaky way
of changing the law for political or market-oriented reasons'. 20 For Professor Greg
Craven the course taken by the High Court, at least until recently, has been 'improper'
and 'fundamentally illegitimate', while some of the Judges of the Court have been
guilty of 'wilfully distorting the Constitution'. 21 A present member of the High Court,
who may or may not be a legal fundamentalist, implied, shortly before his elevation,
that judicial activists (as he defined them) lack 'probity'. 22
This language is relatively modest compared with Professor Tom Campbell's view
that judicial activism amounts not merely to 'unethical judicial conduct', but is
'treasonable' and 'treachery'. 23 Professor Campbell reassures judges who may fear the
executioner's axe on their perfidious necks that he is not imputing evil intent to those
whose conduct undermines the democratic rule of positive law. Indeed, he does not
even suggest that judicial activism should be deemed a form of judicial misconduct
justifying a removal. But it is still treason and treachery.
The ferocity of the debate is matched only by the elasticity of the definitions of
judicial activism. To Justice Heydon it is 'using judicial power for a purpose other than
that for which it was granted, namely doing justice according to law in the particular
case.' 24
This is then immediately transmogrified into a very different proposition, namely
that judicial activism means 'serving some function other than what is necessary for
the decision of the particular dispute between the parties.' 25
To Professor Campbell, a proponent of 'democratic positivism', a judicial activist is
essentially:
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18
Justice Michael Adams, 'Heroes and Heresy: Myth Meets Legal Fundamentalism' (2004) 78
Australian Law Journal 587.
19
Ibid 588, referring to Gava, above n 4.
20
Gava, above n 4, 747, 749, 752.
21
Greg Craven, 'The High Court of Australia: A Study in the Abuse of Power' (1999) 22
University of New South Wales Law Journal 216, 217.
22
Justice John Dyson Heydon, 'Judicial Activism and the Death of the Rule of Law' (2003) 47
Quadrant 9, 14.
23
Tom Campbell, 'Judicial Activism — Justice or Treason?' (2003) 10 Otago Law Review 307,
311–13.
24
Heydon, above n 22, 10.
25
Ibid.
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(1) a judge who does not apply all and only such relevant, existing, clear, positive law as
is available, and (2) a judge who makes such decisions by drawing on his or her moral,
political or religious views as to what the content of the law should be. 26
The sterility of much of the debate about judicial activism stems from the now
universally acknowledged proposition that judges, particularly those of an ultimate
appellate or constitutional court, are required to make new law, not least because they
are obliged to respond to sound change. Judges, in Julius Stone's phrase, have 'leeways
of choice'. 27 The selection among those choices frequently requires recourse, whether
explicit or otherwise, to arguments based on policy and, on occasions, political
philosophy. The critical issue in such cases, then, is not whether a judge has to make a
choice, but what choice should be made. If judicial activism means changing the law to
accord with the judge's assessment of relevant policy considerations, all appellate
judges, regardless of their philosophical orientation, are sometimes judicial activists.
It is trite to observe that Sir Owen Dixon, usually held up as the exemplar of strict
legalism, gave effect not merely to implications firmly rooted in the text of the
Constitution, but to his own conceptions of Australian federalism. Thirty five years ago
I argued that in spearheading the revival of constitutional implications, Dixon J was
acting in conformity with a coherent theory of Australian federalism. 28 That theory
underpinned his conception of constitutional law, notwithstanding his claim to be
interpreting the Constitution in a legalistic manner. Commentators have pointed to Sir
Owen Dixon's 'proactive constitutional jurisprudence' in other areas, such as the
laissez-faire ideology at the heart of his now-discarded interpretation of s 92 of the
Constitution. 29
Just as all appellate judges sometimes make law, so all judges employ a range of
techniques in interpreting the Constitution, statutes and common law principles. For
example, despite the robust debate between so-called originalists and progressivists,
what is striking in recent High Court constitutional jurisprudence is the range of
interpretative techniques used by judges of all (attributed) ideologies or philosophical
orientations. Justice Susan Kenny, in her analysis of the High Court's 2002 Term, points
out that most of the Court during this period used the so-called 'prudential-ethical'
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26
Campbell, above n 23, 312. Oddly enough, Professor Campbell regards the Mabo decision
(Mabo v Queensland (No 2) (1992) 175 CLR 1) as compatible with 'democratic positivism'. He
accepts that the decision was certainly not incremental, since it threatened the very basis of
Australian property law. Yet he says that it was in order for the High Court to consider the
'relevant law of occupation in the light of an improved knowledge of historical facts': ibid
324. But why? Was Mabo consistent with 'such existing, clear, positive law as (was then)
available'?
27
Julius Stone, Precedent and Law: Dynamics of Common Law Growth (1985) 271, cited by
Frank Carrigan, 'A Blast from the Past: The Resurgence of Legal Formalism' (2003) 27
Melbourne University Law Review 163, 165.
28
Ronald Sackville, 'The Doctrine of Immunity of Instrumentalities in the United States and
Australia: A Comparative Analysis' (1969) 7 Melbourne University Law Review 15, 53–7.
29
See Carrigan, above n 27, 172–4. Sir Owen Dixon's approach to s 92 was discarded by a
unanimous High Court in Cole v Whitfield (1988) 165 CLR 360.
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mode of reasoning, which she describes as 'a constitutional argument that relies on
economic, social or political considerations attending the case'. 30 (Emphasis added)
As Justice Kenny observes, it is difficult to avoid this method of interpretation
where, for example, the issue is whether a common law defamation rule is reasonably
appropriate and adapted to serve a legitimate end that is compatible with the
constitutionally prescribed system of representative and responsible government. 31
Interestingly enough, Justice Kenny regards Callinan J, usually seen as part of the
current High Court's conservative majority, as the leading practitioner in 2002 of the
prudential-ethical mode of interpretation.
Justice Keith Mason has argued that 'top-down reasoning' in the sense of an overarching theory about an area of law being used to generate an outcome in a particular
case, is a legitimate approach to judicial decision-making. 32 This is so, he contends,
notwithstanding McHugh J's assertion in McGinty v Western Australia 33 that top-down
reasoning is not a legitimate method of constitutional interpretation in Australia.
Justice Mason suggests that, on the contrary, top-down reasoning has always been part
of constitutional discourse in Australia. He gives as the prime example a famous
passage in the Communist Party Case in which Dixon J asserted that the rule of law
forms an assumption upon which the Constitution is based. 34
Despite the often heated debates about judicial methodology in the case law and
academic literature there is in fact a good deal of common ground in the techniques
employed by the High Court. No one appears to suggest that the subjective opinions of
the framers of the Constitution as to the meaning of particular words are decisive on
questions of construction, although the Convention debates may shed light on 'the
purpose and object of the provision'. 35 No one disputes the primacy of the text and its
determinative character when it provides a tolerably clear answer to the question
posed. No one denies that context and history may be important in the interpretation
of ambiguous provisions. As the six separate judgments in Cattanach v Melchior 36 (a
non-constitutional case) demonstrate, there is also no dispute that, at least in some
circumstances, overt discussion of policy questions is inevitable. Heydon J's dissent in
that case, for example, rests heavily on his view that it 'is wrong to attempt to place a
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30
Justice Susan Kenny, 'The High Court on Constitutional Law: the 2002 Term' (2003) 26
University of New South Wales Law Journal 210, 219, citing Philip Bobbitt, Constitutional Fate:
Theory of the Constitution (1982) 61.
31
Ibid 220, referring to Roberts v Bass (2002) 212 CLR 1, 40 (Gaudron, McHugh and Gummow
JJ).
32
Justice Keith Mason, 'What is Wrong with Top-Down Legal Reasoning?' (2004) 78
Australian Law Journal 574.
33
(1996) 186 CLR 140, 231–2.
34
Communist Party of Australia v Commonwealth (1951) 83 CLR 1, 193.
35
Singh v Commonwealth (2004) 209 ALR 355, 364 (Gleeson CJ) discussing Cheng v The Queen
(2000) 203 CLR 248 (which construed s 80 of the Constitution as to require unanimous
verdicts in trials on indictment for offences against the Commonwealth). Compare the
comments of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2002) 208 CLR 199, 336–7.
36
(2003) 215 CLR 1. The issue was whether a couple who had become parents of an
unplanned child as a consequence of medical negligence could recover as damages the cost
of raising and maintaining the child.
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value on human life or a value on the expense of human life because human life is
invaluable – incapable of effective or useful valuation.' 37
This may be sound policy, but it is certainly not the product of exclusively 'legal'
values.
Indeed, the one judge may adopt apparently contradictory positions in different
cases. In Re Wakim, 38 for example, McHugh J observed that the fact that inconvenient
consequences may flow from a particular interpretation of the Constitution 'says
nothing' from a constitutional point of view. 39 Much the same approach was taken by
Gleeson CJ. 40 Yet in Abebe v Commonwealth, 41 in upholding the validity of legislation
conferring jurisdiction on the Federal Court to determine only part of a controversy,
Gleeson CJ and McHugh J took into account, the 'immense practical problems for the
administration of federal law' which the alternative construction would produce.
These and other examples suggest judging is a more subtle and complex task than
applying a set of rigid pre-determined attitudes and techniques to particular fact
situations. 42
This is not to deny that there are significant differences in approach among judges
to the resolution of novel issues and that those differences may be important to the
outcome of cases. Some judges, for example, tend to be more acutely conscious than
others of the constraints that flow from the counter-majoritarian effect of a holding that
State or Commonwealth legislation is unconstitutional. Some may place more
emphasis than others on the legal usages and understanding of constitutional terms at
the time of Federation. 43 Some may be more willing than others to acknowledge
expressly the competing policy considerations that bear on the interpretation of an
ambiguous or incomplete constitutional or statutory text. Some are less willing than
others to take account of 'social facts' derived from the literature or their own
experience. But the differences cannot be explained simply by attaching the label
'judicial activist' to a particular judge and another label to his or her colleagues. 44
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37
Ibid 128.
38
Re Wakim; Ex parte McNally (1999) 198 CLR 511, which invalidated the cross-vesting scheme
purporting to invest federal courts with jurisdiction in State matters.
39
Ibid 548.
40
Ibid 540.
41
(1999) 197 CLR 510, 531.
42
See, eg, the analysis of Grollo v Palmer (1995) 184 CLR 348 (upholding the grant of power to
federal judges to issue warrants for listening devices) and Wilson v Minister for Aboriginal
and Torres Strait Islander Affairs (1996) 189 CLR 1 (invalidating the nomination of a federal
judge to prepare a report for a Minister) in Elizabeth Handsley, 'Public Confidence in the
Judiciary: A Red Herring for the Separation of Judicial Power' (1998) 20 Sydney Law Review
183, especially 199–200.
43
See Singh v Commonwealth (2004) 209 ALR 355, 359 (Gleeson CJ).
44
For a similar view see Justice Frank H Easterbrook, 'Do Liberals and Conservatives Differ
in Judicial Activism?' (2002) 73 University of Colorado Law Review 1403.
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COURTS AS INSTIGATORS OF SOCIAL CHANGE
The constraints
Given the great forces at work that determine social change, it seems inherently
unlikely that judicial decisions, of themselves, can change social norms and values. To
this general observation must be added the well-known institutional constraints that
limit the ability of courts to bring about social change. The constraints are familiar
enough.
Courts can deal only with cases presented to them for decision. While a court can
give hints as to the likely approach it will take to a particular issue, as the High Court
did in the lead up to its reinterpretation of s 92 of the Constitution in Cole v Whitfield, 45
in the end it must wait for litigants to present an appropriate question for
determination. Courts can formulate or reformulate principles of law, but ultimately
their job is to decide disputes. Their reasoning must be directed to the resolution of a
particular dispute. The orders of a court, generally speaking, bind only the parties to
the proceedings.
Legal reasoning heavily emphasises precedent, reflecting the perceived need for
certainty and stability in the law. Precedents may be overruled in some circumstances,
but ordinarily the progress of the law is incremental. Despite the darkest suspicions of
some critics, even constitutional courts cannot simply invent new principles when
there is no warrant in the text of the constitution for doing so. Courts lack the
information-gathering and policy assessment capacities of legislatures or law reform
agencies. Particularly is this so in Australia, where the High Court has done relatively
little to encourage non-parties to contribute to arguments on important questions, 46
much less to inform the Court of pertinent non-legal materials. And, above all, courts,
in contrast to elected governments and parliaments, lack the democratic credentials to
attempt to initiate or bring about significant social change.
The constraints upon the exercise of judicial power sit comfortably with perhaps the
most quoted of all commentaries on the role of a constitutional court. Alexander
Hamilton famously observed that
the judiciary, from the nature of its functions, will always be the least dangerous to the
political rights of the Constitution; because it will be least in a capacity to annoy or injure
them. 47
Hamilton reasoned that the judiciary has no influence over either the sword or the
purse. It therefore has neither force nor will but merely judgment and ultimately
depends on the executive arm for the enforcement of its orders. Hamilton would not
have seen the courts as instigators of social change.
Justice Michael McHugh has recently taken issue with Hamilton's assessment of the
power of the judiciary in a federation like Australia or the United States. 48 Justice
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45
(1988) 165 CLR 360. See Miller v TCN Channel 9 Pty Ltd (1986) 161 CLR 556, 570–2.
46
The Attorneys-General of the Commonwealth and the States have a statutory right to
intervene in constitutional matters before the High Court: Judiciary Act 1903 (Cth) s 78A.
47
The Federalist (No 78) (Eastern Press ed, 1979) 520.
48
Justice Michael McHugh, 'The Strengths of the Weakest Arm' (2004) 25 Australian Bar
Review 181.
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381
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McHugh argues that Hamilton underrated, or did not foresee, three matters that have
falsified his assessment of the strengths (or weaknesses) of the judiciary:
The first is the frequency with which the judiciary has been called on to exercise the
power of judicial review and declare legislative and executive acts void and of no effect.
The second is the importance of the social, economic and political issues that courts –
particularly federal courts – must decide. The third is the underpinning of the judiciary's
strength by public confidence in its integrity, impartiality and capacity. 49
Justice McHugh is not specifically concerned about the role of the courts as
instigators of social change and he does not suggest that courts perform that role.
Nonetheless, the argument that courts have greater strength than Hamilton predicted
might suggest that judicial decisions can bring about social change. It is undeniable for
example, that modern constitutional courts are likely to be called upon to decide cases
of great political or social moment. Certainly the High Court is no stranger to
politically charged decisions and fierce controversy concerning them. Cases such as the
Bank Nationalisation Case, 50 the Communist Party Case, 51 Mabo 52 and Wik 53 come to
mind. There is no doubt that court decisions can frustrate the will of governments and
of Parliament on issues of fundamental political importance (as in the Bank
Nationalisation Case and the Communist Party Case). They can also force governments to
confront issues that otherwise might have remained quiescent (as in Mabo and Wik).
But that is not necessarily the same as bringing about social change.
It is also important to bear in mind that the third matter identified by McHugh J
(public confidence in the judiciary) frequently operates as a constraint on the scope of
judicial law-making. The perceived need to promote or preserve public confidence in
the judiciary has been said to justify constitutional doctrines designed to insulate the
federal judiciary, including State courts exercising federal jurisdiction, from
responsibilities thought to be incompatible with the judicial function. 54 As the High
Court has now recognised, 55 the concept of 'public confidence in the judiciary' presents
considerable difficulties as a standard for constitutional adjudication, not least its lack
of precision. 56 Nonetheless, the notion that courts should not be required to act in a
manner that undermines public confidence in their independence and integrity has
formed an important element in constitutional discourse.
The same notion has been invoked as a normative proposition in public discussion
about the role of the courts in a constitutional democracy. The Chief Justice of the High
Court, for example, has argued extra-judicially that the general acceptance of judicial
decisions by citizens and governments rests not upon coercion, but upon public
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49
Ibid 182.
50
Bank of New South Wales v Commonwealth (1948) 76 CLR 1. The proceedings were ultimately
determined by the Privy Council: (1949) 79 CLR 497.
51
Australian Communist Party v Commonwealth (1951) 83 CLR 1.
52
Mabo v Queensland (No 2) (1992) 175 CLR 1.
53
Wik Peoples v Queensland (1996) 187 CLR 1.
54
See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Kable v
DPP (NSW) (1996) 189 CLR 51.
55
Fardon v A-G (Qld) (2004) 210 ALR 50, 58 [23] (Gleeson CJ); 78 [102] (Gummow J); 88–9 [144]
(Kirby J).
56
See generally Handsley, above n 42.
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confidence. 57 He distinguishes between public opinion, which reflects merely shortterm responses to events and issues, and confidence in the institutional integrity of the
system. 58 As he points out, acceptance of judicial decisions is most necessary in cases
of decisions that are controversial and unpopular. What is required
is a satisfaction that the justice system is based upon values of independence,
impartiality, integrity, and professionalism, and that, within the limits of ordinary human
frailty, the system pursues these values faithfully. 59
The emphasis, in judgments and extra-judicial commentary, on the dangers of
impairing public confidence in the judiciary, conveys more than a hint that courts
should be wary, when performing law-making functions, of attempting to move too
far ahead of community standards. If they do, so the argument seems to run, they risk
disturbing the consensus on which ultimately the strength of the least dangerous
branch of government rests. In the 2000 Boyer Lectures, the Chief Justice observed that
laws are not made by computers and that judges have 'ample scope for exercising
qualities of wisdom and understanding without compromising their integrity or their
impartiality.' 60
But, he warned, there comes a point beyond which discretion cannot travel. At this
point the judge, if unable to implement the law in good conscience, may have to resign.
This warning perhaps implies that if courts move too far ahead of contemporary
community standards, they put in jeopardy the legitimacy of judicial decisions. 61
If it is true that courts place themselves at risk of illegitimacy by moving ahead of
community standards, the High Court seems to have avoided the difficulty. There
seems never to have been a serious suggestion by a public official that orders made by
the High Court or, for that matter, any other Australian court should be defied no
matter how controversial the decision. Brian Galligan observes that the 'truly
astonishing political aspect' of the great constitutional battle surrounding the
nationalisation of the banks was that
despite the Court's earlier unfavourable decisions, the anti-Labor sympathies of the
majority of the judges, and finally the adverse ruling in this key case, the Labor
government kept up all the proper formalities of the respectful suitor at law. 62
The closest any Australian government has come to defying a court order seems to
have been in colonial times. Not surprisingly, the tensions between the judiciary and
the Executive occurred in the context of overt community hostility to Chinese
immigration. In a series of cases, the Supreme Court of New South Wales granted writs
of habeas corpus on the application of Chinese citizens who had arrived on a steamship
_____________________________________________________________________________________
57
Chief Justice Anthony Murray Gleeson, 'Public Confidence in the Judiciary' (2002) 76
Australian Law Journal 558.
58
Compare the distinction between community attitudes and community values advanced
by John Braithwaite, 'Community Values and Australian Jurisprudence' (1995) 17 Sydney
Law Review 351.
59
Gleeson, above n 57, 561.
60
Chief Justice Anthony Murray Gleeson, The Rule of Law and the Constitution (2000) 127.
61
Indeed legislative reforms which are at odds with community norms are likely to fail, as
illustrated by the extent of non-compliance with copyright laws: Christopher Jensen, 'Note:
The More Things Change, The More They Stay the Same: Copyright, Digital Technology,
and Social Norms' (2003) 56 Stanford Law Review 531.
62
Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in
Australia (1987) 176.
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known as the Afghan in Sydney harbour. The applicant in each case either held a
certificate of exemption under the Influx of Chinese Restriction Act 1881 (NSW) 63 or had
tendered the poll tax provided for in the legislation. 64
It appears that the particular orders made by the Court in relation to each of the
applicants were obeyed. However, the authorities continued to refuse admission to
Chinese citizens on board the Afghan even though they had complied with the
requirements of the legislation. This recalcitrance prompted Darley CJ to express his
displeasure in no uncertain terms: 65
This is now the third time that the power of this Court has been invoked to grant writs of
habeas corpus to release persons who, coming within the provisions of the Chinese Influx
Restriction Act, have had tendered for them the poll-tax which is required by that Act.
Upon the second application we pointed out that we had already declared what the law
of the colony upon this subject is and further, that everyone in this colony, no matter how
high his position, or how low, was bound by that declaration, and bound to
scrupulously obey the law as declared. Now, we find that the law so enunciated by us, is
for the second time knowingly and of purpose disregarded and set at nought, and this
too by those who … are … bound to see that the law of their country as pronounced by
the properly constituted authorities (the Judges of the land), is duly and faithfully carried
into execution. 66
Putting the Chinese immigration cases to one side, Australians have been willing to
accept the legitimacy of court decisions, even in circumstances of intense controversy.
A number of factors contribute to this willingness. Perhaps the most important is that
political and social conditions in Australia have created a climate conducive to
accepting the exercise of judicial power. The Australian federation, after all, came
about not as the result of a revolution, but as an orderly process, characterised by strict
adherence to legal principles. Since Federation, the legitimacy of judicial review of
legislation in Australia has never been seriously disputed, even by non-lawyers.
Despite occasional rumblings, no State has purported to secede from the
Commonwealth. Fortunately, the Australian nation, despite its fair share of racism, has
known neither slavery nor civil war. Moreover, in the absence of a bill of rights, the
High Court has had fewer opportunities than, for example, United States courts, to
overturn the will of elected legislatures. For the most part, decisions that appear to
alter (or confirm) the law in a manner contrary to prevailing community sentiment can
be 'rectified' by the competent Parliament, as occurred in the Chinese immigration
cases. 67
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63
Ex Parte Lo Pak (1888) 9 NSWLR(L) 221.
64
Ex Parte Leong Kum (1888) 9 NSWLR(L) 250; Ex parte Woo Tin (1888) 9 NSWLR(L) 493.
65
Ex Parte Woo Tin (1888) 9 NSWLR(L) 493, 493–4.
66
Interestingly enough, the 'political crisis', as Isaacs J described it, was addressed by
convening an Inter-Colonial Conference to discuss the enactment of uniform legislation to
restrict Chinese immigration. The conference led the five mainland Colonies to legislate so
as to prohibit the entry of Chinese into the colonies except in very limited circumstances.
The conflict between the judiciary and the Executive was therefore resolved in favour of
the latter, but only by the intervention of the legislatures. The sequence of events is
described by Isaacs J in R v McFarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518,
558–61. I am grateful to Justice Paul Finn for drawing these cases to my attention.
67
When the High Court recently reaffirmed the immunity of advocates for forensic conduct,
the hostile media response was tempered somewhat by calls for legislation to reverse the
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Even so, the apparent willingness of the Australian community to accept the
legitimacy and binding force of even controversial judicial decisions tends to reinforce
the view that the High Court has been well aware of the need to preserve 'public
confidence in the judiciary'. That awareness has doubtless contributed to a sense of
caution in pushing the boundaries of judicial law-making too far.
Courts as agents of social change
In the face of these constraints on the courts as instigators of social change, it might be
thought, at best, highly optimistic to see the courts as agents not only for legal reforms
but for social change. Yet the constraints have not deterred lawyers from looking to
judicial decisions as a means of changing social norms and values. At the time of the
first Lawyers and Social Change conference in 1974, 68 there was a substantial body of
opinion, to which I confess I subscribed, that saw judicial law-making in this way. In
the 1975 report on Law and Poverty in Australia for example, I argued that:
[n]ot only is reform of the law often essential to overcome obvious inequalities and
injustices in society, but the reforms can markedly influence community attitudes and
behaviour. Illustrations include the effect of Supreme Court decisions in the USA on
patterns of racial discrimination in that country … 69
I had in mind the bringing of test cases that could change the substantive law to the
benefit of disadvantaged groups, or at the very least bring to the attention of legislators
the need for legislative reform of unfair or oppressive laws. Although the strategy was
not spelled out in detail, it envisaged that test cases and judicial law-making could go
beyond remedying specific injustices. Judicial decisions could contribute to inducing
the Australian community, or at least influential segments of it, to support (if not
demand) more vigorous governmental action to address the consequences of
entrenched poverty and discrimination in an otherwise affluent society. This implied
that community values could be influenced by judicial decisions to reject the more
extreme manifestations of inequality in Australia and to embrace a more egalitarian
conception of the 'desirable society'.
This body of opinion took its inspiration from the experience in the United States,
the paradigm of which was Brown v Board of Education. 70 Commentators understood
that the role of the Supreme Court of the United States was not identical to that of the
High Court, if only because the Australian Constitution lacked a bill of rights. But Brown
was taken by many not merely to have ended the era of state-sanctioned segregation in
the United States, but to have brought about a sea-change in community values and
attitudes. If the Supreme Court could virtually single-handedly alter entrenched
patterns of institutionalised segregation over diehard opposition, why could
Australian courts not challenge inappropriate social practices and attitudes and
thereby influence social change, albeit on a more modest scale?
_____________________________________________________________________________________
decision: see, for example, Sydney Morning Herald (Sydney), 14 March 2005, 12. The case is
D'Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92.
68
See David Hambly and John L Goldring (eds), Australian Lawyers and Social Change (1974).
69
Commission of Inquiry into Poverty, Law and Poverty in Australia (Second Main Report,
1975) (Professor R Sackville, Commissioner) 2.
70
347 US 583 (1954).
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In retrospect, this assessment might indeed be seen as overly optimistic. But it was
by no means an isolated view. In his 1991 study of courts and social change, 71
Gerald N Rosenberg pointed out that Brown had long been seen in the United States
both as a revolutionary statement of race relations law and a symbol of the courts'
ability to produce significant social reform. 72 It is perhaps not surprising that
observers both inside and outside the United States saw the case as the benchmark of
what courts could achieve as instigators of social change in the service of the ideals of a
just society.
A Re-Evaluation
The significance of the decision in Brown as an instigator of social change in the United
States has undergone a re-evaluation over the past decade and a half. Gerald
Rosenberg's controversial analysis 73 of Brown and other significant cases concluded
that the 'Constrained Court view' of the ability of courts to achieve social change is
accurate. That is,
US courts can almost never be effective producers of significant social reform. At best, they
can second the social reform acts of the other branches of government. Problems that are
unsolvable in the political context can rarely be solved by courts. 74
Recent scholarship tends to confirm the view that the significance of Brown as a
progenitor of social change in the United States may have been substantially
overstated. 75 In what has been described as an 'exhaustive and magisterial volume', 76
Professor Michael J Klarman examines the role of the Supreme Court in the struggle
for social equality in the United States. 77 In particular, he considers the significance of
the 1896 decision Plessy v Ferguson, 78 which upheld a Louisiana law requiring railroads
to provide 'separate and equal' accommodation for black and white passengers, and
the unanimous 1954 decision in Brown.
Professor Klarman's thesis is that both Plessy v Ferguson and Brown reflected
influential public opinion of their respective times. Indeed, in the case of Plessy v
Ferguson he goes further and argues that the decision was consistent with the literal
text of the Equal Protection clause of the Fourteenth Amendment and with the
contemporary understanding of its effect. Moreover, it was in conformity with legal
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71
Rosenberg, above n 1. The book analyses the 'mostly disappointing' results of efforts to use
the courts to promote social reform in a number of areas including civil rights, abortion,
women's rights, the environment and reapportionment of electorates: 336.
72
Ibid 39–40, citing, inter alia, Robert L Carter, 'The Warren Court and Desegregation' (1968)
67 Michigan Law Review 237, 237; Aryeh Neier, Only Judgment: The Limits of Litigation in
Social Change (1982) 57; Harvie J Wilkinson, From Brown to Bakke: The Supreme Court and
School Integration, 1954–1978 (1979) 6.
73
See, for example, Peter H Schuck, 'Book Review: Public Law Litigation and Social Reform'
(1993) 102 Yale Law Journal 1763.
74
Rosenberg, above n 1, 338. By 'Constrained Court', Rosenberg means a Hamiltonian view
of courts as 'weak, ineffective and powerless': 3.
75
The literature is discussed in an article by Kathleen O’Sullivan, 'What Happened to
''Brown''?' New York Review of Books, 23 September 2004, 47.
76
Ibid 49.
77
Michael J Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for
Racial Equality (2004).
78
163 US 537 (1896).
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precedents. 79 He also argues that the decision in Plessy v Ferguson did little, of itself, to
encourage the spread of segregation, as distinct from judicially endorsing practices that
were already well established in the United States. 80
The evaluation of Brown is more difficult. According to Professor Klarman, about
one half of Americans agreed with the ruling. 81 By 1954, a variety of economic, social,
demographic, ideological and international factors had contributed to a fundamental
change in race relations in the United States. These included the desegregation of the
military after World War II; better education for blacks as a result of urbanisation;
population movements from the south to the north; the pressures exerted by the
NAACP (National Association for the Advancement of Colored People); the exposure
of the south to novel social attitudes and practices; a decrease of white on black
violence in the south; and the Cold War imperative for the United States to improve
relations between blacks and whites. 82 By the time Brown was decided, desegregation
was already well under way in some parts of the north and in some border areas.
Professor Klarman accepts that the Justices of the Supreme Court (or at least some
of them) might have held 'culturally elite values'. While those values may have made
the decision easier for them, he thinks it likely that even ten years earlier 'the justices
would probably have lacked the inclination to invalidate school segregation' since the
vast majority of white Americans then believed in white supremacy. 83 He points to the
'hesitancy' of the Court in its race rulings of the 1940s and early 1950s as support for
this hypothesis.
It is particularly important to an understanding of the significance of Brown to the
desegregation of public facilities to consider the relief that the Court granted to the
successful parties. After the decision in Brown on 17 May 1954, the Court deferred
argument on the appropriate remedy. Brown II was not decided until May 1955. 84
Despite the NAACP pressing for immediate desegregation, the Court opted for
gradualism. In the event, the Court famously ordered desegregation of the schools
involved in the litigation 'with all deliberate speed'. 85
Perhaps the most intriguing aspect of the saga is what happened to segregated
schools in the south after Brown II authorised a 'relaxed transition' to school
desegregation. Professor Klarman summarises events this way: 86
Gradualism appealed to the justices because it's enabled them maintain the unanimity,
avoid issuing unenforceable orders, assuage their consciences, and appeal to southern
moderates. White northerners generally endorsed gradualism, while many white
southerners interpreted the Court's willingness to be accommodating as a sign of
weakness. Southern politics moved far to the right as the region made a concerted effort
at massive resistance … Aside from their condemnation of outright defiance in the Little
Rock case, 87 the justices withdrew almost entirely from the school desegregation arena
for nearly a decade. When they reentered in 1963–1964, they were following, not leading,
_____________________________________________________________________________________
79
Klarman, above n 77, 19–21.
80
Ibid 48–52.
81
Ibid 443.
82
Ibid 444–6.
83
Ibid 452.
84
Brown v Board of Education, 349 US 294 (1955).
85
Klarman, above n 77, 312–20.
86
Ibid 343.
87
Cooper v Aaron, 358 US 1 (1958).
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national opinion. The Civil Rights Movement had overtaken the school desegregation
process, and the political branches of the National Government were now playing the
vanguard role.
The conclusion to be drawn is not that Brown was not important in contributing to
the desegregation of public facilities in the United States, particularly the south. It was.
But it seems that Brown was not nearly as instrumental in changing social attitudes and
practices as many American and foreign observers may have believed. Larger forces
were at work in the transformation of American society. It was those forces that made
the decision in Brown possible.
Courts and Social Change in Australia
Nothing in Australian history is remotely comparable to the struggle leading to the
desegregation of public schools and other public facilities in the United States. We
have no equivalent to Plessy v Ferguson or to Brown. But there have been decisions that
have resolved great political conflicts in favour of one party over another and some
that have reshaped our legal system. Do these cases support the view that the High
Court has used the strength attributed to it by McHugh J to effect social change? Has
the Court's authority, as extensive as it may seem to a reincarnated antipodean
Hamilton, gone beyond influencing change merely at the periphery of Australian
society?
These are difficult questions, to which no ready answer can be given, at least
without monumental studies of the kind undertaken by Professor Klarman. Even then,
no definitive answer may emerge. Perhaps none can ever be given. My suspicion, for
what it is worth, is that the High Court, whether consciously or otherwise, is rarely if
ever in clear conflict with prevailing community norms and values. Particular
decisions may arouse strong criticism, although benign communal indifference is likely
to be the more usual response. But the most momentous decisions, no matter how
controversial, seem to have had the support of some powerful segments of community
opinion, including at least one side of politics. To the extent that social change requires
the overturning of prevailing community norms and values, the decisions did not
effect social change.
The point can be illustrated by the Bank Nationalisation Case. It is true that the
majority decision of the High Court invalidated a key element of the Labor
Government's legislative program. But as Galligan recounts, 88 the decision to
nationalise the banks outraged business interests, gave the Opposition leader, Robert
Menzies, the opportunity to champion the values of Australian liberal democracy and
provoked into action those who perceived that the legislation posed a threat to
capitalism. Before the hearing in the High Court commenced in February 1948, the
Cain Labor Government had fallen in Victoria, in an election largely fought on the
issue of bank nationalisation. When the High Court's decision, couched in the language
of legalism, was handed down in August 1948, it ignited jubilation in the press and
among Labor's political foes. The Chifley Government fell in November 1949, soon
after the Privy Council delivered its reasons for judgment dismissing the Government's
appeal. Whatever partisan passions were aroused by the Bank Nationalisation Case, it
can hardly be said that the High Court's decision flew in the face of prevailing
community sentiment.
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88
Galligan, above n 62, 169 ff.
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It might be argued that the Bank Nationalisation Case was not truly about the core
values of society and that the decision, in any event, effectively maintained the status
quo. The Communist Party Case, however, seems to fall into a different category. In one
sense it is a counterpart to the Bank Nationalisation Case, since a majority of the High
Court invalidated the Communist Party Dissolution Act 1950, a key element in the
legislative program of the newly elected Menzies Government. The Act had been
reluctantly passed by the Labor Party in the Senate, but it was nonetheless strongly
opposed by Chifley and most of his colleagues.
On the other hand, the legislative attempt to ban the Communist Party was
presented as a measure necessary for the defence and safety of Australia. In other
words, although a novel legislative measure, it represented an attempt to preserve and
reinforce fundamental values against subversion. The invalidation of the legislation,
although again largely couched in legalistic language, could be understood as
promoting libertarian values to an extent hitherto unprecedented in Australia. In this
sense, particularly having regard to the strength of anti-Communist feeling, the
decision might be seen as an attempt to change community values.
There is no doubt that, as Galligan notes, 89 the High Court's decision, handed
down on 9 March 1951, had a major political impact. Menzies secured a double
dissolution and succeeded in obtaining majorities in both Houses at the 1951 election.
But his attempt to override the Court's decision by constitutional amendment narrowly
failed at a referendum held in September 1951. Of course, the rejection of the
referendum proposal by the Australian electorate undoubtedly was influenced by
many factors other than approval of the High Court's decision as an endorsement of
civil libertarian values. Even so, given the short period between the decision and the
referendum, it is difficult to suggest that the decision was at odds with prevailing
community opinion, let alone the core values of Australian society.
It is particularly problematic to assess the impact of the decisions of Mabo and Wik
in bringing about significant social as well as legal change, given how little time has
passed since the cases were decided. It is, however, clear that by the time Mabo was
decided in 1992 the Australian community had become much more aware of the
historic injustices inflicted on indigenous people in Australia and much more
sympathetic to their aspirations, at least in general terms. The Constitution had been
amended in 1967 to remove discriminatory references to indigenous people. Land
rights legislation had been enacted by the Commonwealth for the Northern Territory
(by a conservative Government) and had been in force for a decade and a half. 90 Mabo
therefore was decided in a climate of opinion much more favourable than that
prevailing before 1967 to the idea that the Australian legal system should attempt to
remedy some of the historic wrongs visited upon the indigenous people of Australia.
After all, Brennan J was able to assert that the earlier decisions denying native title,
when '[j]udged by any civilized standard [were] unjust' and thus were ripe for
overturning. 91
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89
Ibid 203–7.
90
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
91
Mabo v Queensland (No 2) (1992) 175 CLR 1, 29.
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Moreover, as dramatic as the High Court's decision may seem to have been, a
legislative response was virtually inevitable. 92 Within a short time, Parliament enacted
the Native Title Act 1993 (Cth) which explicitly provided for the recognition and
protection of native title in terms similar to those adopted by the High Court, albeit
with some modifications. The fact that Parliament endorsed the concept of native title
suggests that the decision in Mabo, if anything, was in keeping with mainstream views
of the time and did not threaten established norms or values.
It perhaps could be argued that the decision in Mabo itself changed community
norms and values and this change prevented Parliament from overturning the
decision. This argument overlooks, however, the extent to which the Mabo decision
itself reflected changes in community norms and values and the short period that
elapsed between the decision and the legislation. It also overlooks the fact that, as the
1998 amendments to the Native Title Act demonstrate, 93 it was open to Parliament in
1993 to restrict the circumstances in which native title could be recognised or protected
by the courts. The Government of the day, sympathetic to the concept of native title,
chose not to adopt such a course.
The Wik decision, which held that native title could co-exist with some forms of
pastoral lease, notwithstanding the outrage it provoked in some quarters, did not go to
the heart of the concept of native title. In any event, the decision was liable to be
overturned by Parliament. After a period of intense political controversy, the 1998
amendments to the Native Title Act largely settled the pastoral lease question and, in
some respects, overturned the decision in Wik. As events have turned out, a differently
constituted High Court has given a broad interpretation to the extinguishment
provisions of the Native Title Act insofar as they relate to pastoral leases. 94 Future
historians may see Wik as a colourful but relatively minor episode in the High Court's
long experience with judicial law-making.
CONCLUSION
The relationship between law, particularly judge-made law, and social change is by no
means simple. A full examination of the relationship must consider both the responses
of courts to social change and the ability and inclination of courts to instigate social
change.
Discussions of the responses of courts to social change have often been bedevilled
by a pre-occupation with the virtues and vices of so-called 'judicial activism'. This preoccupation is largely founded on false assumptions and tends to divert attention from
issues of judicial methodology and constitutional adjudication that are worth close
exploration. The best thing that could happen to the debate about 'judicial activism' in
Australia is to discard the expression. Sterile debates can be amusing, but they are still
incapable of bearing fruit.
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92
Ronald Sackville, 'The Emerging Australian Law of Native Title: Some North American
Comparisons' (2000) 74 Australian Law Journal 820, 831.
93
See particularly Div 2B of Part 2 of the Native Title Act, inserted by the Native Title
Amendment Act 1998 (Cth), which confirms past extinguishment of native title by 'certain
valid or validated acts'.
94
Wilson v Anderson (2002) 213 CLR 401.
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By contrast, the ability of courts to instigate social change is a question that has
received relatively little attention in Australia. One body of opinion denies that courts
have any business attempting to influence community norms and values. Others have
looked to the courts to develop the law in a manner that brings about social change.
Proponents of the latter view assume that court decisions are capable of changing
community norms and values. The assumption is, however, dubious. The experience
in the United States and Australia rather suggests that courts rarely, if ever, act in a
manner at odds with the established values and norms of the community. In
particular, the recent re-evaluation of Brown v Board of Education indicates that the
seminal case was much less influential in shaping social attitudes towards the
integration of public facilities than many commentators have suggested.
This is not to deny that judicial law-making can have important legal and political
consequences and can hasten social changes that are already under way. But the role of
the courts as instigators of social change is much more limited than optimists hope or
opponents of 'judicial activism' fear.