The High Court :
Usurper or Guardian?
Geoff Gallop, MLA
Paper presented to the Australasian Study
of Parliament Group, 16th Annual Conference,
Parliament House, Darwin.
6 October 1994.
.1.
When "the people" of the Australian colonies "agreed to unite in one indissoluble
Federal Commonwealth under the Crown of the United Kingdom of Great Britain and
Ireland, and under the Constitution hereby established" they grafted the American
system of federalism onto the Westminster system of responsible government thus
creating a set of contradictions at the very heart of our system of government. Our
system is neither British nor American in its definition, but both at the same time. (1)
Add to that general complication the system of proportional representation for the
Senate in 1949 and, thereafter, to the majority of state Upper Houses and we have a
real mixed bag for a system of government, with not just a separation of powers within
the nation but an attempt at "balance" within the legislative arm of government itself.
Although it reverses the order of things Tasmania fits the bill with its Hare-Clark
system of counting votes for the House of Assembly.
Where, then, do the courts - and in particular the High Court - fit into this system?
According to the pure theory as described by the Chief Justice of Western Australia
the functions of the courts are twofold:
... to interpret and apply the law enacted by parliament, and
... [to] make law in those areas where parliament either has
not spoken at all or has not covered the field. (2)
It is bound by statute and by precedent and "it is only where the authority of a statute
or previous case law is lacking that the creative power of the courts to make law is
called into play." (3)
If only the realities of the judicial function were so simple. It is not simply the case
that new circumstances emerge for which there is no precedent but that the statutes
themselves have to be interpreted. In Australia's case the most important statute is the
.2.
Constitution Act itself.
For that Constitution the founders built in two defence
mechanisms and they are to be found in Chapter III "The Judicature" and Chapter VIII
"Alteration of the Constitution". The first deals with the Federal Supreme Court and
the Second with the Referendum. Let me discuss the referendum first.
A good deal has been made of the difference between Australia's Constitution Act and
the Constitution of the United States of America because the latter starts out with a
clear declaration of the people :
We, the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for the
common defense, promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America. (4)
This apparent difference between an "Act of Parliament" and a "Declaration of the
People" led Sir Owen Dixon to conclude that in one important respect Australia's
Constitution was different from that of its American prototype :
It is not a supreme law purporting to obtain its force from the direct
expression of the people's inherent authority to constitute a government.
(5)
This, argued Dixon, had important consequences for the way we ought to interpret the
document.
In Australia, he said, "we treat our organs of government simply as
institutions established by law" whereas "American doctrine treats them as agents for
the people who are the source of power". (6)
.3.
I find all of this puzzling, not simply because of the renewed emphasis in historical
scholarship on the role popular pressure played in the federation movement but also
by reference to the Constitution Act itself. Was it not "the people" of the colonies who
united into "one indissoluble Federal Commonwealth" by way of referendum? Was
it not also the case that changes to that Constitution Act required a majority vote
overall and in a majority of states? Is Sir Owen Dixon referring to a fact about our
Constitution or is he building into his argument his own assumptions about how we
ought to conceive of our Constitution?
Whilst it is true that "the people" in the 1890s were white and male and that the
"politicians" and the "British" all played central roles in the process from which the
Australian Constitution emerged, it cannot be concluded that popular sovereignty has
no place in our system of constitutional law. After all the American Revolution, if not
its rhetoric, was itself limited and qualified in the same way.
This leads us, then, to the second of the Constitution's defence mechanisms - the High
Court. Of its role in the system Alfred Deakin had no doubts :
The Constitution is to be the supreme law, but it is the High Court which
is to determine how far and between what boundaries it is supreme. The
Federation is constituted by distribution of powers, and it is this Court
which decides the orbit and boundary of every power. Consequently,
when we say that there are three fundamental conditions involved in
federation, we really mean that there is one which is more essential than
the others - the competent tribunal which is able to protect the
Constitution, and to oversee its agencies. That body is the High COUlt.
It is properly termed the "keystone of the federal arch". (7)
.4.
Or, as Sir Edmund Barton, put it : "It is in controlling transgressions beyond the
Constitution, either by this Parliament or by the Parliaments of the States, that the work
of the High Court will in large measure lie ... In the heat of debate, and in the turmoil
of party, excesses of power will inevitably be committed, as they have been committed
in the United States. We want a tribunal composed of men who understand the people,
who live amongst them, who understand the history of and the reasons for our
constitution, and who are not dependent for their knowledge upon casual reading." (8)
In recent times that High Court has entered the centre stage of politics and been subject
to a good deal of criticism on the grounds that it has mistakenly and improperly:
•
taken over the legislative function (as in the Mabo case),
•
impinged upon executive power and accountability (as in the Dietrich
case on the right to legal defence),
•
drawn implications from the Constitution that are not there (as in the
Freedom of Political Expression cases), and
•
used the External Affairs Power to justify an erosion of States' Rights (as
in the Koowarta and Dams cases).
As a result of this new direction, described as a move away from a "strict and
complete legalism" and a move towards "judicial activism" a number of subsidiary
debates have been sparked over the real meaning and purpose of the Constitution, the
role of international standards and conventions in interpreting our Constitution, the
proper methods of judicial interpretation itself, and the power and accountability of the
Judges themselves.
In making sense of all this discourse and discontent about the High Court I believe it
to be very important to provide some historical context to the debate. Look, for
.5.
example, to relations between the State and Federal Governments. Today we talk of
"co-operative federalism" as opposed to "co-ordinate federalism" as a model for a
relationship that has been altered by nearby a century of financial and constitutional
change, mostly to the advantage of the Commonwealth.
It has not always been seen that way.
The original Justices, Griffith, Barton and
O'Connor developed the twin doctrines of "reserved powers" and "implied immunity
of instrumentalities" in recognition of their belief that "co-ordinate federalism" was
implicit in the Constitution. It was not until the Engineers case in 1920 that such a
view was overturned and a literalist approach adopted. Commonwealth powers came
to be interpreted broadly without regard to the effect they may have on the powers of
the States.
For the supporters of the shift that has occurred the growth in Commonwealth power
reflected the proper development of the nation. Indeed one cannot help but read in the
various judgements that this broad interpretation of Commonwealth power represented
for the Judges a proper recognition of our developing nationhood, rather than simply
a non-controversial reading of the words. Just how neutral were the Judges in applying
their narrowly technical method to the words of the Constitution? Just when and how
do you separate "fact" from "value"?
We seek to separate the two, of course, because the notion of judicial partiality and
activism worries us. It seems to contradict the required separation between law-making
and law-adjudication so essential to the rule of law itself. I would submit, however,
that such a distinction needs to be understood differently in the Australian context of
a written and federal constitution than in the British context of an unwritten and unitary
constitution. As Brian Galligan so succinctly put it :
.6.
It is surprising that anyone should doubt that the High Court makes
constitutional law. The design of the Australian Constitution and the
stated intention of the founders are quite clear to anyone who care to
read the Federation debates. (9)
Galligan quotes the words of John Downer, a member of the Constitution drafting
committee, who noted that the High Court Judges would have a great part in "forming
this Commonwealth; because honourable members must not forget that, although we
form it in form, they form it, to a large extent in substance." (10)
In Australia, then, the Federal and State Parliaments are not supreme, they all operate
under the intellectual umbrella provided by the Constitution and its protector - the High
Court.
Rather than being simply involved in the adjudication of laws laid down by the
Parliament (or by previous decisions in the case of common law) the High Court does,
in fact, lay down the terms and conditions of constitutional and common law
interpretation. It is an active and dynamic element in the set of checks and balances
that characterises our political system. Its methodology may change and the content
of its decisions may change but not its essential role.
The current High Court is characterized by two interesting features:
firstly, its
increasing self-consciousness as a guardian of the lights and interests of the people for
whom the Constitution was established and, secondly, its disinclination to mask its
substantial role by reference to literalism and legalism.
This has opened up new
possibilities for litigation as a means of promoting rather than preventing social change.
Mabo, of course, was a classic example of judge-made common law where the claim
of the Murray Islanders to own land by tradition and customary right was accepted by
.7.
the Court.
A whole range of arguments about sovereignty, conquest, land use,
possession and property, as had been applied to our indigenous people, were
overthrown in the process. (11) Not to have done so, however, would have left the
Court endorsing the view that the Islanders were merely trespassers on crown land
who, at any time, could be legitimately driven into the sea - a strange principle of law,
indeed, for a nation with liberal and humanitarian aspirations.
The Freedom of Expression Cases which involved the Federal Parliament's ban on
political advertising and its prohibition of public criticism of the Commonwealth
Industrial Relations Commission were, on the other hand, constitutional cases. The
majority determined that we could imply from the fact that Australia was constituted
as a representative democracy that its citizens possessed a right to freedom of
communication about government and political affairs. It is not an absolute right and
it can be qualified in appropriate cases, but not in those that had been brought before
the Court.
The High Court has now indicated to the other arms and the three levels of government
that any qualifications of the right to freedom of expression need to be "compelling"
or arise from "reasonable regulation". Like all matters of judgement the High Court's
interpretation and application of the law is contestable and debatable (indeed one need
go no further than the minority judgements of Brennan and Dawson). However, I
cannot help but note the irony in the fact that the High Court is subject to such severe
criticism by prominent Liberal politicians at the very time that it has embraced
genuinely liberal values associated with the rights to freedom and property. In a sense
the Court has exposed the emptiness of the liberal core below the crust of much of
Australian conservatism.
I also find it difficult to conclude, as some academic
commentators have, that the Court's decision sets a "profoundly disturbing" precedent
which "is totally incompatible with our system of representative democracy". (12)
.8.
In the first place I hope I have been able to show that the current role of the High
Court is in no way consistent with or inappropriate for the system of government
Australia developed when reflecting on the strengths and weaknesses of both the
American and British systems in the l890s. Indeed it involves a maturing of the
system just as the contemporary Senate and some of the State Upper Houses have as
Houses of Review within the legislative arm of government.
In the second place we cannot conclude that the doctrine of an implied bill of rights
in the Australian Constitution will necessarily emerge, as a matter of logic and
consistency, from the current High Court. So far they have only considered particular
cases and we will need to see the results of more before we can safely conclude that
we have an American-style Bill of Rights. What is a more likely scenario in respect
of rights, is in fact, Commonwealth legislative action based on international covenants
and backed up by the External Affairs Power.
In making this point I am not downplaying the significance of the right to freedom of
political expression that the High Court has embraced. I am simply pointing to the fact
that we are yet to know the precise extent to which the logic of representative
democracy can be applied in other situations. For example do the implied guarantees
of representative democracy require the establishment of electoral districts with equal
numbers of electors? The Western Australian Labor Party is testing that argument in
a current case before the High Court. (13)
Thirdly, what has been more obvious and indeed more disturbing about the Australian
system of democracy has been the slowness with which it has embraced the lights and
freedoms associated with liberal and egalitarian ideals. Even today the principle of
equal voting rights is not universally accepted. Indeed it is heavily contested from the
two remaining bastions of deliberate malapportionment, the Western Australian and
.9.
Tasmanian Upper Houses. To change either has proved very difficult because they
have exercised the power of veto, even when clearly defined electoral majorities and
indeed a Royal Commission in the case of Western Australia have mandated changed.
(14)
It is true that as a result of the High Court's broadening of the terms of debate there
is bound to be greater potentiality for litigation and a period of uncertainty in respect
of the breadth and width of the constitutional principles it has espoused. To say,
however, that our system of government worked well - and indeed better - without a
High Court willing to contemplate wider rights and freedoms as it has in the Mabo and
Freedom of Political Expression Cases, is to adopt a particularly blinkered view of our
past and a particularly naITOW and pessimistic view of political purpose and political
possibility.