What the Australian Public Knows About the High Court

AuthorRussell Smyth,Ingrid Nielsen
Published date01 March 2019
Date01 March 2019
DOIhttp://doi.org/10.1177/0067205X18816238
Subject MatterArticles
Article
What the Australian Public
Knows About the High Court
Ingrid Nielsen* and Russell Smyth*
Abstract
Existing studies for the United States examine the extent to which the public is knowledgeable
about US courts, arguing that knowledge of the courts is linked to public support for their role. We
know little, though, about the Australian public’s awareness of the High Court of Australia. We
report the results of a survey of a representative sample of the Australian adult population,
administered in November 2017. We find that few Australians know the names of the Justices, the
number of Justices on the Court, how the Justices are appointed or for how long they serve.
Awareness of recent cases decided by the Court is mixed. We find that age and education are
better predictors of awareness levels than is gender. Our findings are important because in the
absence of awareness of the High Court, the potential exists for the public to see the Court as
having a more overt political role than it has, which may lower esteem for the Court. The potential
for this to occur is exacerbated if, and when, politicians attempt to drag the High Court into the
political fray, by attributing political motives to it that it does not have.
Introduction
The work of the courts today is shrouded in general public ignorance.
1
[F]ew Australians outside the law schools are likely to be able to name the Chief Justice, let alone the
puisne Justices of the High Court.
2
In this article, we seek to answer the question: What is the level of awareness among the general
public about the High Court of Australia (hereafter the High Court) and to what extent are
Australians aware of the identities of the Justices who sit on the Court? To do so, we draw on
the findings from a survey that was designed by the authors and administered to a representative
sample of the adult Australian population over a 2-week period in November 2017. The survey
* Alfred Deakin Professor Ingrid Nielsen, Pro Vice-Chancellor Research Performance, Deakin University. The author may
be contacted at ingrid.nielsen@deakin.edu.au; Professor Russell Smyth, Deputy Dean (Academic Resourcing), Monash
Business School, Monash University. The author may be contacted at russell.smyth@monash.edu. Acknowledgements to
Erwin Gutierrez from Qualtrics for patiently answering many questions about the administration of the survey reported in
this article, and Matthew Groves, Shiri Krebs, Carolyn Sutherland and two anonymous reviewers for several helpful
suggestions on earlier versions. We alone remain responsible for the views expressed and any remaining errors. This
research was approved by Monash University Human Ethics Committee (Project 11582) and Deakin University Human
Ethics Committee (Reference 2017-323).
Federal Law Review
2019, Vol. 47(1) 31–63
ªThe Author(s) 2019
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DOI: 10.1177/0067205X18816238
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asked participants if they could identify the Justices of the High Court, together with several
political and public identities, as well as asking multiple choice questions about institutional
features of the Court and questions designed to test awareness of recent High Court cases that
have been publicised in the media. We also draw on the findings of the survey to examine the
extent to which variation in the general public’s awareness of the High Court can be attributed to
differences in participants’ age, education and gender.
We focus on public awareness of the High Court for two reasons. The first is that
decisions of the High Court, as the final court of appeal in Australia, carry enormous
practical significance for everyday Australians. Of all the courts in the judicial hierarchy
in Australia, the High Court makes decisions that have the most far-reaching consequences
for how people live their lives, how they work and are paid and many other issues about
which people care.
3
This influence stems, in part, from the role of the High Court as a check
on the Executive and Parliament, vested in Chapter III of the Constitution. The manner in
which the High Court has exercised its role in shaping power sharing between the Federal
and state and territory governments has also had an important influence on central features
of how people live and work.
4
Second, unlike the United States for which there are studies of this sort for courts at most levels
of the judicial hierarchy, there are no studies of this sort for Australia. Given the enormous power
of the High Court over issues that people care about, knowledge of the Court represents a natural
place to start. This is not to say that lower level courts are not worth studying in this context. We
need studies for a range of courts to provide points of comparison and for robustness. However, the
advantage of beginning with a study for the High Court is that awareness levels of the High Court
can serve as a benchmark for future such studies.
There are important reasons why we should care about the level of public awareness of the High
Court and its institutions. Several studies have found that public awa reness of high courts is
positively correlated with esteem for the judiciary.
5
Positivity theory postulates that if people have
low awareness of the High Court and its institutions, they will be unable to identify the differences
between the Court, on one hand, and Parliament and the Executive on the other. Lacking such
knowledge, the public will imply to the Court a more overt political role and, in so doing, will hold
the Court, and its Justices, in less esteem than if the Court were regarded as less political.
6
This
reflects the relatively low esteem in which the Australian public holds its politicia ns.
7
James
Gibson, Gregory Caldeira and Vanessa Baird state:
Research from the United States strongly suggests that greater awareness of the Supreme Court directly
translates into greater support for it. This is not necessarily because the people who become aware of the
Court invariably discover that it is making desirable public policy. Instead ...greater awareness means
greater exposure to the legitimizing symbols associated with high courts.
8
James Gibson and Gregory Caldeira expand on this argument in the US context, articulating the
causal chain between knowledge and judicial legitimacy as follows:
People acquire knowledge of the Court by paying attention to it;
But paying attention imparts more than information; attentive citizens are simultaneously exposed to
powerful symbols of judicial legitimacy, such as robes, privileged forms of address (‘your honor’), etc.
The lessons these symbols teach is that courts are different; they are not ordinary political institutions in
the American political scheme;
32 Federal Law Review 47(1)
Thus, events that increase the salience of the Supreme Court increase citizen knowledge and institutional
support.
9
Following this line of argument, Gibson and Caldeira have suggested, ‘low knowledge of courts
is politically significant since it threatens the legitimacy of judicial institutions’.
10
Public under-
standing of the High Court and its institutions is, relatedly, very much linked to public confidence
in the Court and its decisions. Justice Margaret McMurdo writes:
Most of us now accept that it is for the judiciary to foster public confidence in the courts by ensuring the
public understand the role of judges to administer justice a ccording to the law. This is necessary to
maintain public confidence, understanding and support for the courts, even when they make unpopular
decisions ...
11
Former Chief Justices of the High CourtSir Anthony Mason,
12
Sir Gerard Brennan
13
and Murray
Gleeson
14
have also stated thatpromoting understanding of the HighCourt and its role is essential to
ensuring public confidence in the Court. Consistent with the tenets of positivity theory, these senior
judges havetended to emphasise that the Courtis not a partisan politicalinstitution; hence, seekingto
separate the Court, in the minds of the public, from the Parliament and Executive.
The High Court has instigated various initiatives to increase awareness of its role. The judges
have made themselves more accessible on various occasions in an attempt to reduce the mystique
associated with being a judge.
15
The High Court has been releasing media statements about
important cases dating back to The Tasmanian Dam Case.
16
The High Court’s website contains
summaries of recent judgments, the profiles of current and past Justices and links on which people
can click to learn more about the Court or find out how to visit.
17
In 2016–17, there were 78 000
visitors to the High Court, including 34 000 school students.
18
While the High Court is not yet
using Twitter,
19
several of the lower courts are now using social media to disclose information
about decisions.
20
There has also been discussion about televising proceedings of the Court.
21
The
Court now publishes audiovisual recordings of Full Court hearings heard in Canberra on its
website.
22
The media has recently contained news stories about important cases before the Court
and the Justices who are hearing the cases. For example, in late 2017, in the lead-up to the High
Court (sitting as the Court of Disputed Returns) decision on the citizenship of the seven members
of parliament pursuant to section 44(i) of the Constitution,
23
there were several feature articles
profiling the Justices of the Court.
24
There was even a quiz in which readers were asked to see
whether they could identify the High Court judge from one of three photos, with the other two
photos being of well-known celebrities or sports stars.
25
One might conjecture that asking participants about basic facts s uch as the identity of the
Justices or the composition of the Court does not address whether people understand the role of
the Court in democratic governance.
26
It might be argued that the latter is really what we want to
know, together with what determines such understanding. Yet, our reason for asking basic ques-
tions about the Court, its Justices and recent decisions relates to the mechanism through which
positivity theory, as outlined above, acts. Positivity theory suggests that people acquire knowledge
of the Court by paying attention to the Court and that, by paying attention to the Court, people are
exposed to powerful symbols of judicial legitimacy that increase knowled ge and support. As
Gibson, Caldeira and Baird state: ‘Simply put, to know courts is to love them, because to know
them is to be exposed to a series of legitimizing messages focused on the symbols of justice,
judicial objectivity, and impartiality’.
27
Detailed questions about the role of the Court in
Nielsen and Smyth 33

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