The Australian founders were quite clear that the High Court was to be the lynchpin of the whole constitutional system. Alfred Deakin called it 'the keystone of the federal arch' which would decide 'the orbit and boundary of every power'; the 'competent tribunal' which would 'protect the Constitution' and 'oversee its agencies'.
- Galligan, B, 'The Power of Seven' Smith, M Legal Process, 6th ed. Sydney, LBC, 1994, 619.
Chapter 3, s 71-80, of the Australian Constitution establishes and governs the High Court. The fact that it is the only court specifically discussed in that most important of documents is testament to the High Court's importance. It is the only court in Australia that must exist, and its size and powers are protected. A minimum of three judges must reside over the court, and its jurisdiction may not be diminished. In fact, the Constitution provides for an increase in the stature of the court, but not the opposite.
The High Court has many powers that are unique within the Australian judicial system:
One of the High Court's principal functions is to decide disputes about the meaning of the Constitution... The power which the High Court has to interpret the Constitution means that it is a very important body. The High Court is also the final court of appeal within Australia in all other types of cases, even those dealing with purely state matters...
- Australia. Australia's Constitution. Canberra: Attorney General's Dept, 1995, xvi.
Although the High Court does not often have to exercise its Constitutional power, when it does so the impact is significant. The High Court tells the people of Australia what rights they have - or don't have. Its power to hold statutes illegal is intended to protect the people from unjust laws, but critics suggest it allows the High Court to take on a legislative role.
Ever since Griffith, Barton and O'Connor sat in 1903, the High Court has been criticised for the decisions it has made. Although people agree with its role as guardian of the Constitution, they question how well it has carried this out over the years. This criticism is inevitable because the High Court is the sole authority on Constitutional interpretation.
There have been several distinct periods in the High Court's practice of judicial review, each with distinct advantages and disadvantages that have led to criticism.
When Australia's founding fathers sat on the High Court's bench, in the early years after Federation, the Constitution was very loosely interpreted. Having been involved with the drafting of the document, the early judges believed that they knew its intent, and ruled accordingly. In doing so, they changed the written document by reading into it rights and restrictions that were not expressly provided for. Although this was essentially de facto1 Constitutional change, originalism is validated to some degree by its proximity to Federation.
With the passing of time and hence a decline in the number of sitting judges who helped draft the document, the High Court began to treat the Constitution as it would any other legal document. They applied ordinary methods of statutory interpretation, for, as Sir Owen Dixon explained:
It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.
- Walker, T, 'Sir Harry Gibbs Reflects' (1987) 61 Law Institute Journal 417
This broad category of judicial review includes many different methods of interpretation, from strict literalism to purposive interpretation, but is essentially conservative in character. If judges do nothing out of the ordinary, it is more difficult to criticise them.
Difficulty, though, has not stopped the opponents of legalism. The decisions of the court in this period have had a significant centralist bias2, expanding the power of the Commonwealth over the States, arguably against the intention of the Constitution. Other critics, such as Sir Anthony Mason, believe that the Constitution is not an ordinary statute, and should not be treated as such:
Legalism is unachievable and so illusory; it conceals the true basis of decision-making. Values are important to legal reasoning; the values should be stated explicitly; they should be current community values. A Constitution above all cannot be interpreted legalistically.
- Galligan, B, 'The Power of Seven' Smith, M Legal Process, 6th ed Sydney, LBC, 1994, 619.
This view reflects the current trend within the High Court's bench. Realists try to consider the law in the presence of a wider social context. This departure from tradition has led to the use of the phrase 'judicial activism' to describe the proponents of this movement, usually by its opponents. Realism is intended to make the High Court's decisions more transparent and honest by rejecting purely legalistic interpretations and considering the views of the community at large.
The High Court's method, its personnel and public profile have all changed in ways that make a significant difference to the court's decision making and public profile. As well, the court is deciding high-profile cases concerning political rights, such as the implied constitutional right to free speech in the political advertising case, and social injustices, as in Mabo, which reversed terra nullius and recognised the dispossession of Aboriginal people. These are all ingredients for a heady judicial brew... But the High Court's basic role as final arbiter of the Australian Constitution and common law has not changed. Rather, the court has quietly shed its traditional mask of 'strict and complete legalism' and been exposed to political controversy in some of its recent gamer decisions.'
- Galligan, B, 'The Power of Seven' Ibid
Indeed, the political advertising and Mabo3 cases are prime examples of the way a realist approach has led to criticism of the High Court, with claims that it breaches the separation of powers by blurring the lines between judiciary and legislature.
The rejection of terra nullius4 in Mabo is clearly a realist decision: change on the basis of social necessity. The court overturned a long-standing and fundamental common-law principle by accepting the existence of a legal system prior to the arrival of white settlers. Critics say that such a decision should be left to Parliament, while proponents argue that the judges had a right and a duty to create new law based on new anthropological evidence. As J Brennan enunciated in his decision on the case:
If this were any ordinary case, the Court would not be justified in reopening the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as a basis of the... law of the country for more than 150 years... Far from being ordinary, however, the circumstances of the present case make it unique... In these circumstances, the Court is under a clear duty to re-examine the... propositions.
- Mabo v Queensland (1992) 175 CLR 1
In essence, the High Court has accepted that such activism should not occur regularly, rather only on matters of great importance.
The implied Constitutional right to freedom of political communication is another example of the High Court's controversial nature. A series of cases led to the development of this right, and its creation was defended on the grounds of social policy. The court concluded that the Constitution necessarily requires free political speech in order to function properly, although this was not made explicit in the express provisions of the document.
Again, support for this decision is not unanimous. Although many people believe that the Constitution would be nonsense without the right to free political speech, others argue that the judiciary has altered it. They claim that because the right was not set out, it does not exist, and furthermore that this decision clears the way for other unwritten clauses to be added to the Constitution.
The biggest criticism of judicial activism is its undemocratic nature. It is, Prof Cappelletti describes it, 'judicial operations in advance of the consensus'5. The question, as the opponents of a creative judiciary see it, is whether appointed judges should make law on our behalf, when there is a democratically elected legislature for that purpose.
But the judiciary cannot be dismissed by a simple slur of democratic rights. The role of judges has always been to create or clarify the law, and principles have always been changed or even rejected. The truth is that the judiciary is appointed by those democratically elected representatives that are in the legislature - hence at least the public has some say in who is appointed, albeit indirectly. And ultimately the judiciary derives its legitimacy from other safeguards:
I think there is a basic error in applying the same criteria that legitimise legislation to the two other main forms of governmental action: administration and adjudication... As for adjudication, its legitimacy depends on the form of this type of decision making, primarily: (a) its emanation from a (relatively) independent and impartial body ('insulation'), and (b) the requirement... [that] the judge shall only act on the parties' demand ('concreteness') ... (c) adjudication must be 'enabled by law'... ie, the 'rule of law'.
- Cappelletti, M, 'The Law Making Power of the Judge and its Limits: A Comparative Analysis', (1981) 8 Monash University Law Review 15
Suggestions that judicial activists somehow go over the top of Parliament are therefore incorrect. The Constitution clearly outlines the role of the High Court in parallel to, or even as overseer of, the legislative function of government. Sir Anthony Mason thinks such suggestions are farcical:
... the court is not undertaking a legislative role. Sometimes when it formulates a new principle or qualifies an existing principle, the judicial decision may wear that appearance - because that means the decision has changed what was thought to be the law on that point... But there is no way in which the court can usurp the role of Parliament... All the courts do is respond to their obligations in the particular cases that are brought before them.
- Virtue, B, 'High Court is Planning New Rules' (1993) 28 Australian Lawyer 27
Criticism of the High Court over its judicial review is inevitable. It has been criticised in all phases of its life as Constitutional guardian. At every stage it was claimed that the court precipitated de facto change, be it the unwritten rights of originalism, the centralist bias of legalism or now the policy decisions of realism. But of the three phases, the current trend seems safest. Judges who consider the social context of their decisions will tend to make more relevant and appropriate decisions than those who lose themselves in a world of statutory interpretation do. Here, as in most instances, debate is healthy, and will help bring the High Court to the next stage of its development.