Rights Review in the High Court and the Cultural Limits of Judicial Power
| Date | 01 September 2013 |
| Published date | 01 September 2013 |
| Author | Robert Woods |
| DOI | 10.1177/0067205X1304100308 |
| Subject Matter | Article |
RIGHTS REVIEW IN THE HIGH COURT AND THE
CULTURAL LIMITS OF JUDICIAL POWER
Robert Woods*
ABSTRACT
How are we to explain the High Court's reluctance to move into stronger forms of
rights protection, as evinced by the disparity between its federalism and rights -based
judicial review practices? It has been suggested that the federal and 'rights' provisions
of the Constitution are equally indeterminate, calling into ques tion the notion that the
legal materials themselves compel a preference for one or another type of review. And
the Court's record of rendering po litically conseque ntial decisions in its federalism
jurisdiction suggests t hat political-institutional constraints may not preclude it from
expanding its rights review powers. This article contends t hat the disparity in the
Court's review practices can be explained only by way of a theory of judicial politics
that is sensitive to notions of cultura l as well as political constraint. It traces the
historical emergence of an Australian politico-legal culture, before examining its role in
restraining the further protection of constitutional rights.
I INTRODUCTION
The High Court of Australia has generally been relu ctant to constrain the power of
government on the basis of individual rights. The Constitution co ntains only a few
'express guarantees' roughly analogous to traditional civil and political rights to begin
with, and f or the most part the Court has construed them narrowly.
1
When it was
called on to deter mine the practical scope of the s 80 requirement that trials for federal
offences 'on indictment' be by jury, the Court preferred a strictly literal construction
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* BEcSocSc (Hons) (Syd), JD (Hons) (UNSW); PhD Candidate, Faculty of Law, University of
New South Wales. My sincere thanks go to Theunis Roux, as well as to the anonymous
referees and the editors of the Federal Law Review.
1
This tendency has attracted a great deal of criticism: see, eg, George Williams, Human
Rights under the Australian Constitution (Oxford University Press, 2002) 96–128; Leslie Zines,
The High Court and the Constitution (Federation Press, 5th ed, 2008) 569–78; Hilary
Charlesworth, 'The High Court and Human Rights' in Peter Ca ne (ed), Centenary Essays for
the High Court of Australia (LexisNexis Butterworths, 2004) 356, 358–61. For a defence of the
Court's record in relation to these provisions, see, eg, Keven Booker and Arthur Glass, 'The
Express Rights Provisions: Form and Substance (or Opportunities Taken and Not Taken?)'
in H P Lee and Peter Gerangelos, Constitutional Advancement in a Frozen Continent: Essays in
Honour of George Winterton (Federation Press, 2009) 155.
586 Federal Law Review Volume 41
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that ceded unfettered discretion to Parliament as to whether a particular offence would
or would not be deemed indictable.
2
Elsewhere it cast s 41 — which seemed on its face
to protect the entitlement of those eligible to vote in state elections to also v ote in
federal ones — as a transitional provision and dead letter, on the ba sis of a contested
evaluation of the framers' intent.
3
It wasn't until 1989, with the Court 's relatively
expansive treatment of s 117 in Street v Queensland Bar Association,
4
that an express
constitutional guarantee was successfully invoked to limit the po wer of government
for the first time. In other words, where two or more plausible readings of a given
guarantee have been available, the Court has tended to endorse whichever was most
deferential to the political branches.
Exceptions to this trend have emerged from time to time, but they have been
limited in scope. Foremost among these was the brief flowering of implied rights
under the Mason Court during the 1980s and 1990s. Its break with settled modes of
judicial reasoning seemed to signal a decisive shi ft in Australian jurisprudence (i n line
with similar jurisprudential developments initiated by constitutional courts
throughout the common law world), and a move into stronger and more elevated
forms of rights protection.
5
But even this proved temporary: the Mason Court
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2
R v Archdall and Roskruge; Ex parte Carrigan (1928) 41 CLR 128, 136 (Knox CJ, Isaacs, Gavan
Duffy a nd Powers JJ), 139–40 (Higgins J); Kingswell v The Queen (1985) 159 CLR 264 , 276
(Gibbs CJ, Wilson a nd Dawson JJ), 282 (Mason J). Section 80 has consequently been
described as a 'mere procedural provision': Spratt v Hermes (1965) 114 CLR 226, 244
(Barwick CJ). An alternative interpretation is that the words 'on indictment' connote the
relative seriousness of the offence, and thereby establish an independent standard for the
enlivenment of the provision that substantively burdens the legislative power of the federal
government. Justices Dixon and Evatt advocated forcefully for this approach to s 80 in their
joint dissent in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 580–4,
as did Deane J in Kingswell v The Queen (1985) 159 CLR 264, 298–310. More recently, James
Stellios has offered a third reading of s 80 as a mechanism for facilitating the exercise of
Commonwealth judicial power throughout the feder al system: James Stellios, 'The
Constitutional Jury — "A Bulwark of Liberty"?' (2005) 27 Sydney Law Review 113, 133–9.
Convincing as this account may be, its significance for an historical analysis of judicial
choice is limited by the fact that it was not directly contemplated by the Court.
3
R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 276–80 (Brennan, Deane and Dawson JJ).
Their Honours argued that s 41 was only meant to protect the federal voting rights of those
so entitled at Federation on the statutory establishment of federal franchise. Keven Booker
and Arthur Glass have defended this restrictive approach as a necessary concession to the
practical need to ensure uniform federal franchise: Booker and Glass, above n 1, 159–60.
However, as Anne Twomey has pointed out, n on-uniformity was a logical consequence of
the initial operation of s 41, as only South Australia and Western Australia had extended
the vote to women by 1901 (a fact specifically discussed in the Convention debates): Anne
Twomey, 'The Federal Constitutional Right to Vote in Australia' (2000) 28 Federal Law
Review 125, 138–41. Twomey also argues that this narrow interpretation destroys a vital
link between state and federal franchises created thr ough the interaction of s 41 with ss 24
and 25: at 141–3.
4
(1989) 168 CLR 461.
5
See Haig Patapan, Judging Democracy: Th e New Politics of the High Court of Australia
(Cambridge University Press, 2000).
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