Book Review: The High Court – Legitimacy and Change: Review Essay: Haig Patapan, Judging Democracy – the New Politics of the High Court of Australia
| Author | Andrew Lynch |
| DOI | 10.22145/flr.29.2.7 |
| Published date | 01 June 2001 |
| Date | 01 June 2001 |
| Subject Matter | Comment and Book Review |
THE HIGH COURT – LEGITIMACY AND CHANGE:
REVIEW ESSAY: HAIG PATAPAN, JUDGING DEMOCRACY –
THE NEW POLITICS OF THE HIGH COURT OF AUSTRALIA.
Andrew Lynch*
INTRODUCTION
In the last ten years, the position of the High Court of Australia has undergone a
remarkable transformation. The course of its decisions handed down from the early
1990s and the innovative, yet often perplexing, methodology upon which those
decisions rested have garnered for the Court unprecedented attention and sparked a
reconsideration of its place in the Australian polity. On many occasions this has taken
the form of harsh criticism of the Court and its judges from representatives of the other
arms of government and the media.1 In response to this barrage of criticism, and in
light of the Commonwealth Attorney-General's sustained disinclination to fulfil his
traditional role in representing and defending the judiciary,2 the High Court has
increasingly been forced to justify its role and method – to a much more pronounced
extent than at any earlier time in its history.
The moves by the High Court to do this have taken a number of different forms.
The letter written by Chief Justice Brennan to the Acting Prime Minister in 1997 at the
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*
Lecturer, Faculty of Law, University of Technology, Sydney. I wish to thank Mr Lawrence
McNamara and Professor George Williams for their very helpful comments and
suggestions on earlier drafts of this article. In respect of the comments made concerning
Chief Justice Gleeson's support for 'strict and complete legalism' I also wish to
acknowledge the role of discussions held with the Jurisprudence students at UTS in Spring
semester, 2000 in stimulating some of the ideas contained herein. I alone am responsible for
any flaws in this article.
1
Examples of such criticism are summarised in Michael Kirby, Through the World's Eye,
(2000) 157-160.
2
Most recently given voice in Daryl Williams, 'Judges must conduct their own defence' The
Australian Financial Review (Sydney), 27 April 2001, 57.
296
Federal Law Review
Volume 29
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height of the public onslaught against the Court is but one notable example.3 Members
of the Court have spoken out in numerous fora, seeking to explain the true nature of
their role and illuminate the judicial method.4 In the efforts to defend itself, the High
Court has made it clear that it is not suggesting that it is to be free of all criticism –
rather it asks for less political vitriol and for more 'informed criticism'.5 It is in response
to this invitation that Haig Patapan has produced Judging Democracy: The New Politics of
the High Court of Australia.6
Judging Democracy is a remarkable book for several reasons. It is an intelligent
evaluation of the High Court's signature work across the 1990s that never loses sight of
the broader institutional framework in which the Court resides. As such, it represents a
critique far removed from the outcome-obsessed sound-bites of politicians heard at the
times when some of the Court's major decisions were handed down. Consequently, it
is a more balanced and effective, and occasionally much more damning, assessment of
the High Court across this period. Not the least of his many achievements in this book,
is Patapan’s presentation of 'informed criticism' in accessible and elegant prose. The
book may therefore receive a wider audience than the delegates at a legal conference or
the readers of law journals.
Those seeking clarification of the case law establishing implied rights (chapter 3)
and native title (chapter 5) – probably the two most contentious areas explored by the
Court in the last decade – will be treated to a lucid and rigorous exposition of the
relevant judgments which seeks to examine their theoretical bases. Of course, this
exercise is an eminently valuable one in itself and one which, on the whole, Patapan
achieves with considerable adroitness. But it is the book's more ambitious aim as
indicated by its subtitle that will secure it a lasting and significant place in the
literature devoted to understanding the High Court of Australia.
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3
See Kirby, above n 1, 159-60.
4
Sir Gerard Brennan, 'The State of the Judicature' (Paper presented at the 30th Australian
Legal Convention, Melbourne, 19 September 1997)(copy on file with author); Michael
Kirby, 'Attacks on Judges: A Universal Phenomenon' (Paper presented at the American Bar
Association, Maui, Hawaii, 5 January 1998)(copy on file with author); Michael Kirby,
'Judicial Activism' (1997) 27 Western Australian Law Review 1; Murray Gleeson, 'Legal Oil
and Political Vinegar' (Paper presented at the Sydney Institute, Sydney, 16 March 1999)
(copy on file with author); Murray Gleeson, 'Judicial Legitimacy' (Paper presented at the
Australian Bar Association Conference, New York, 2 July, 2000) (copy on file with author);
Murray Gleeson, Boyer Lectures 2000 – The Rule of Law and the Constitution (2000); Murray
Gleeson, 'Occasional Address' (Paper presented at Griffith University, Brisbane, 20 April
2001) (copy on file with author); Michael McHugh, 'The Judicial Method', (1999) 73
Australian Law Journal 37; Kenneth Hayne, 'Letting Justice be Done Without the Heavens
Falling' (Paper presented as the Fourth Fiat Justitia Lecture, Monash University,
Melbourne, 21 March 2001) (copy on file with author); John Toohey, ''Without Fear or
Favour, Affection or Ill-Will': The Role of Courts in the Community' (1999) 28 Western
Australian Law Review 1. Perhaps the most memorable and publicly accessible attempt by
the Court to present itself and its work for scrutiny was the participation of Chief Justice
Brennan and Justices Toohey, Gaudron, Gummow and Hayne in a television documentary:
The Highest Court, ABC, nationally broadcast 9.30pm, 26 May 1998.
5
Michael Kirby, 'Shocking level of civics ignorance', The Sydney Morning Herald (Sydney), 16
August 1997, 5.
6 Haig
Patapan,
Judging Democracy: The New Politics of the High Court of Australia (2000) xi.
2001
The High Court – Legitimacy and Change
297
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In his introductory chapter, Patapan considers the wider ramifications of the
Court's recent forays into the areas of rights, citizenship, indigenous culture and
government when he states:
[I]f the High Court is now willing to, in effect 'judge democracy', we are compelled to ask
whether its constitutional interpretations and common law decisions evince a coherent
and comprehensive democratic vision of the Australian polity. Or are its decisions ad hoc,
determined by the litigation before it, subject to the contingencies and exigencies of the
Court as an institution influenced and limited by the discretion of individual judges, and
constrained by the very process of adversarial adjudication?7
It is a fascinating question and one that provides the ensuing exploration of
particular topics with a thematic drive sustained across the span of the book. Thus, the
book operates in these two senses – discrete coverage of particular aspects of the High
Court's recent work and also as an analysis of the Court's guiding jurisprudence across
the Mason and Brennan eras. As a concerted whole, Judging Democracy invites
reflection upon the role of the High Court and the parameters of judicial legitimacy –
topics which have not lost their importance since the arrival of Murray Gleeson as
Chief Justice in 1998. That the controversy surrounding the outcome of some of the
High Court's high-profile decisions in the last decade prompted fresh discourse about
the Court's operations and place in the Australian political landscape is not so
surprising. Now that conversation has begun to move on from the noisy clamour
which reached its zenith in 1997, the time is ripe for a sophisticated yet accessible
appraisal of the recent methodology of the High Court and suggestions as to where
this is likely to take the Court as it enters its second century.
METHODS OF INTERPRETATION
Patapan begins his evaluation of the High Court with an examination of the principles
of interpretation which it has employed across its history (chapter 2). This is a logical
starting point as the question of interpretation goes to the essence of how the Court
perceives its role and also the nature of the Australian polity.8 It also enables Patapan
to preface some of the underlying issues which are to surface in the more specific
chapters that follow. Finally, his observations on the diversity of interpretative method
are an important early salvo on the core issue of the nature of the Court's democratic
vision.
The Engineers Case, Legalism and Implications
Inevitably, the discussion begins with the impact of the Engineers Case.9 The Court's
decision in that case to turn away from a practice of reading of the Constitution in light
of the social and political circumstances of its origin is portrayed by Patapan as a
return to the self-understanding of the declaratory theory that had dominated the
operation of the common law and enabled a degree of discretion without seeming to
contradict the sanctity of the rule of law.10 The assertion of the Engineers Case that the
‘political’ and ‘legal’ were distinct...
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