speeches sackvillej23 by 7ey3ae11







    Five Recent Decisions on Constitutional Law

1             This paper focuses attention primarily on five significant High Court cases, each of
    which has been the subject of analysis by commentators at the Constitutional Law Forum
    2007. In all five cases, the High Court held impugned legislation to be valid in the face of
    challenges on constitutional grounds.1 The five decisions are these:

                     The Work Choices Case,2 which upheld the validity of the Workplace
                      Relations Amendment (Work Choices) Act 2005 (Cth) as an exercise of the
                      Commonwealth Parliament’s corporations power.3

                     Thomas v Mowbray,4 which rejected a challenge to the validity of provisions5
                      conferring power on federal courts to make interim control orders for the
                      purpose of protecting the public from terrorist acts. The legislation was held
                      to be a valid exercise of the defence power,6 although some members of the
                      Court also relied on the external affairs power,7 the implied nationhood power
                      and the power to make laws on matters referred to the Commonwealth
                      Parliament by the Parliament of the State.8               The Court also rejected a
                      challenge to the legislation founded on what was said to be a conferral of non-
                      judicial power on federal courts, contrary to Chapter III of the Constitution.

                     XYZ v Commonwealth,9 which upheld legislation criminalising certain forms
                      of sexual activity involving children, if engaged in by an Australian citizen or
                      resident outside Australia.10 The legislation was held to be an exercise of the
                      Commonwealth Parliament’s external affairs power.

         In one case the challenge was based on the terms of s 50 of the Northern Territory (Self-Government) Act
         1978 (Cth), but this incorporates the language of s 51(xxxi) of the Constitution: see note 17 below.
         New South Wales v Commonwealth (2006) 231 ALR 1 (Gleeson CJ, Gummow, Hayne, Heydon and
         Crennan JJ; Kirby and Callinan JJ dissenting).
         Section 51(xx) of the Constitution provides that Parliament has power to make laws with respect to:
              ‘Foreign corporations, and trading or financial corporations formed within the limits of the
         (2007) 237 ALR 194 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Kirby and Hayne JJ
         Criminal Code (Cth), Div 104, subdiv B.
         Constitution, s 51(vi).
         Constitution, s 51(xxix).
         Constitution, s 51(xxxvii).
         (2006) 227 CLR 532 (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ; Callinan and Heydon JJ
         Crimes Act 1914 (Cth), s 50BA.

                      Attorney-General        (Vic)    v   Andrews,11       which     upheld     Commonwealth
                       legislation12 authorising a corporation to operate as a self-insurer under the
                       Commonwealth workers’ compensation scheme, instead of being subject to
                       Victoria’s compulsory workers’ compensation scheme.13 The majority held
                       that the Commonwealth provisions were not laws with respect to ‘State
                       insurance’ and thus were not ultra vires the Commonwealth by reason of the
                       proviso to s 51(xiv) of the Constitution.14

                      Attorney-General for the Northern Territory v Chaffey; Santos Ltd v
                       Chaffey,15 which rejected a challenge to the validity of retrospective
                       amendments, reducing statutory entitlements under the Northern Territory
                       workers’ compensation scheme.16 The unsuccessful challenge was on the
                       ground that the retrospective amendments effected an acquisition of workers’
                       property without the provision of just terms, in contravention of s 50 of the
                       Northern Territory (Self-Government) Act 1978 (Cth).17

2             Each of these cases gives rise to important constitutional questions. However, I wish
    to comment specifically on three matters which are illustrated, in various ways, by the five

                      the tendency in Australia for constitutional law to be seen as a specialised
                       subject, which is largely the province of the High Court;

                      the ways in which High Court judgments raise the barriers to better
                       community understanding of constitutional issues; and

         (2007) 233 ALR 389 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan
         Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), ss 104(1), 108(1), 108A(7).
         Established by the Accident Compensation Act 1985 (Vic).
         Section 51(xiv) confers power on the Commonwealth Parliament to make laws with respect to:
               ‘Banking, other than State banking; also State banking extending beyond the limits of the
               State concerned, the incorporation of banks …’ (Emphasis added.)
          [2007] 237 ALR 373 (a unanimous judgment).
          Work Health Act (NT), as amended by the Work Health Amendment Act 2004 (NT).
         Section 50 provides that the power of the Legislative Assembly does not extend to the making of laws with
         respect to the acquisition of property otherwise than on just terms. The joint judgment in Santos v Chaffey
         (at [3]) noted that the case called for the application of decisions which have construed s 51(xxxi) of the
         Constitution. Section 51(xxxi) empowers the Commonwealth Parliament to make laws with respect to:
               ‘The acquisition of property on just terms from any State or person for any purpose in respect of which
               the Parliament has power to make laws’.

                      the futility of attempting to characterise some judges as ‘judicial activists’, in
                       contradistinction to judges who are said to show fidelity to the law.

    1.        The Inaccessible Constitution: Constitutional Law as a Specialty

3             I have commented elsewhere on what I have described as the ‘Inaccessible
    Constitution’.18 The thesis I have advanced is that:

              ‘The prosaic form of the Australian Constitution, the disparity between its
              terms and Australia’s current constitutional arrangements, the lack of a
              shared narrative in this country of events leading to Federation and national
              independence and the absence of a Bill of Rights create serious barriers to
              community understanding of the constitutional structure’.19

4             One additional factor contributing, albeit in a relatively minor way, to the
    inaccessibility of the Australian Constitution to the Australian community is that so many
    important constitutional cases by-pass federal and State courts. This phenomenon feeds a
    perception, even among practising lawyers and members of the judiciary, that constitutional
    law is a specialised field, to be regarded as largely the province of the High Court, with lower
    courts permitted to play only a limited role in constitutional adjudication.

5             The group of five cases I have identified illustrates the point. Of the five, only one,
    Santos v Chaffey, was heard by the High Court on appeal from an intermediate court of
    appeal. In that case, the High Court granted special leave to appeal from the majority
    decision of the Full Court of the Supreme Court of the Northern Territory20 holding that the
    legislation amending benefits under the Territory’s workers’ compensation scheme was
    invalid. In the result, the High Court unanimously allowed the appeal.21

6             A second case, Attorney-General v Andrews, was an appeal from a judgment of
    Selway J sitting at first instance in the Federal Court.22 His Honour had dismissed a claim by
    the Victorian WorkCover Authority for a declaration that provisions of the SRC Act enabling

         R Sackville, ‘The 2003 Term; The Inaccessible Constitution’ (2004) 27 UNSWLJ 66.
         Ibid, at 66.
         Chaffey v Santos [2006] NTSC 67 (Mildren and Southwood JJ; Angel J dissenting).
         Santos v Chaffey was not strictly a constitutional case but, as I have noted, the Court applied the principles
         governing the construction of s 51(xxxi) of the Constitution.
         Victorian WorkCover Authority v Andrews [2005] FCA 94.

    certain corporations to act as self-insurers under the federal workers’ compensation scheme
    were invalid. Selway J held that there was no basis for treating the words ‘State insurance’ in
    s 51(xiv) of the Constitution as extending to State laws requiring persons to insure with a
    State insurer, or conferring an economic monopoly on the State insurer.23 The appeal from
    Selway J was removed to the High Court upon the application of the Victorian Attorney-
    General, pursuant to s 40 of the Judiciary Act 1903 (Cth).24 The Full Federal Court therefore
    did not have the opportunity to contribute to the resolution of the constitutional question
    ultimately determined by the High Court.                In the event, the High Court, by majority,
    dismissed the appeal from Selway J.

7             The remaining three cases were all commenced in the original jurisdiction of the High
    Court. Lower courts, including intermediate appellate courts, accordingly played no role in
    any of these cases.25

8             It might be argued that the tendency in Australia for major constitutional cases to be
    heard by the High Court in its original jurisdiction, or after a cause has been removed from a
    lower court, is of little consequence to a better general understanding of the principles of
    constitutional law. After all, the Constitution specifically empowers Parliament to confer
    original jurisdiction on the High Court in any matter (among others) arising under the
    Constitution or involving its interpretation26 and Parliament has chosen to exercise that
    power. Furthermore, the judgments of the High Court are readily available on the internet to
    anyone who cares to read them.

9             Yet the fact that a course is constitutionally permissible does not necessarily mean
    that it is desirable. An adverse consequence of the by-passing of federal and State courts in
    important constitutional cases is that it contributes to a widespread perception in this country,
    among both lawyers and non-lawyers, that constitutional law is a specialised discipline.
    Further, the High Court’s tendency to resolve major (and sometimes not so major)
    constitutional litigation without the assistance of lower courts suggests that those courts, in

         Ibid at [70]. See Attorney-General (Vic) v Andrews (2007) 233 ALR 389, at [28].
         Section 40 of the Judiciary Act 1903 (Cth) empowers the High Court to remove the whole or any part of a
         cause arising under the Constitution or involving its interpretation that is pending in a federal court.
         This does not mean that lower courts have not considered issues addressed by the High Court. For example,
         in Quickenden v O’Connor (2001) 109 FCR 243, the Full Federal Court upheld the validity of the certified
         agreement provisions in Pt VIB of the Workplace Relations Act 1996 (Cth), as an exercise of the
         corporations power. Quickenden v O’Connor was cited in the Work Choices Case, at [47].

     particular intermediate courts of appeal, have little to offer in this area of discourse. In an age
     of the internet, the judgments of federal and State courts are as accessible to the interested
     reader as judgments of the High Court.

10            In truth, constitutional law not only incorporates the basal principles (as Sir Owen
     Dixon might have said) of our legal system, but it also necessarily informs the everyday work
     of the courts. The High Court has had occasion from time to time to lament the fact that
     courts sometimes fail to appreciate the constitutional framework within which they must
     discharge their functions.27 One reason that fundamental constitutional concepts, such as
     federal jurisdiction, are relatively poorly understood within the legal profession and even
     among some judges, is that they are seen to be part of a sub-discipline that must be mastered
     only when the occasion arises. The difficulty often lies in identifying when the occasion has
     indeed arisen.

11            The High Court has a statutory power to remit any matter within its original
     jurisdiction to any State, federal or Territory court that has jurisdiction with respect to the
     subject-matter and the parties.28         In some cases commenced in the Court’s original
     jurisdiction, it will clearly be inappropriate for the High Court to exercise its power of
     remittal.    For example, a constitutional dispute may involve issues of urgent national
     importance and thus preclude any role for lower courts in the resolution of the constitutional

12            On the other hand, the fact that a case commenced in the original jurisdiction of the
     High Court raises important constitutional issues is not necessarily a sufficient reason, of
     itself, for the High Court to forego the assistance that lower courts might provide in analysing
     the issues. The High Court, in the exercise of its appellate jurisdiction, not infrequently
     remarks on the benefits it derives from the reasoning of lower courts and on the importance
     of having the assistance of intermediate appellate courts before granting special leave to
     appeal on a particular point.29 No doubt it is true that intermediate appellate courts have a
     particularly important role to play in non-constitutional cases, particularly those raising

          Constitution, s 76(i).
          British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, at [35], per McHugh,
          Gummow and Hayne JJ.
          Judiciary Act 1903 (Cth), s 44(1).
          D O’Brien, Special Leave to Appeal (2nd ed 2007), at 95ff.

     factual issues. Nonetheless, if given the opportunity, they might also have a great deal to
     contribute to a fuller appreciation of the difficult questions with which the High Court has to
     grapple in constitutional cases.

13             David Jackson has pointed out that there is an inconsistency between the High Court
     refusing special leave in a particular case because it does not have the advantage of the views
     of the intermediate appellate court on the relevant point and its practice of treating
     constitutional cases as appropriate for hearing in the Court’s original jurisdiction.30 If the
     High Court permitted trial and intermediate appellate courts to play a more substantial role in
     resolving the great constitutional controversies of the day, the result would be a more
     widespread acknowledgement that constitutional law permeates all other areas of law and that
     it should not be regarded as essentially another technical area of specialisation. Such an
     acknowledgement is likely to contribute, even if indirectly, to a better understanding of
     constitutional principles in this country, among lawyers and the general community.

     2.       The Inaccessible Constitution: The Audience

14             The accessibility of the Australian Constitution to the general community has been
     profoundly affected by the absence of a Bill of Rights and the tradition of legalism in the
     High Court’s constitutional adjudication. The absence of a Bill of Rights ensures that, unlike
     the United States or, more recently Canada, constitutional law in Australia for the most part
     appears to have little relevance to daily life.31 The legalistic tradition has:

               ‘the consequence … that even cases of fundamental constitutional importance
               are presented as raising issues that are best analysed in terms of technical
               doctrine, often accompanied by an elaborate analysis of precedent’.32

15             One of the barriers to the widespread dissemination of the principles discussed in
     constitutional cases is the sheer length of judgments                  Of the five judgments under
     consideration two are of moderate length,33 but three are, by any measure, substantial. The
     report of XYZ v Commonwealth is 81 pages in length, while the three separate judgments in
     the Work Choices Case total no less than 276 printed pages. The report of Thomas v
          D Jackson, ‘The Lawmaking Role of the High Court’ (1994) 11 Aust BR 197, at 210, n 86.
          R Sackville, note 18 above, at 79-82.
          Ibid, at 70.
          Attorney-General v Andrews occupies 40 printed pages of the Australian Law Reports, while the print of
          Santos v Chaffey occupies only 15 pages.

     Mowbray occupies 178 pages of the Australian Law Reports. For a non-specialist, let alone a
     non-lawyer, to read and comprehend all this material is a formidable task.

16             Inevitably, many cases, including some constitutional cases, require the High Court to
     consider complex legal concepts and analyse technical doctrines that have their roots in
     common law or equitable principles. It may be difficult, if not impossible, for any court or
     any judge, no matter how eloquent, to present such material in terms that non-specialists can
     follow readily. Similarly, statutory interpretation, a task which occupies a greater proportion
     of the time of appellate courts than ever before, must be undertaken within an often elaborate
     and complex framework created by the legislation itself.

17             Even so, it is important that in discharging its paramount function as the ultimate
     constitutional arbiter, the High Court should endeavour to produce judgments that are capable
     of being read and understood by an informed lay audience. Doubtless, this aspiration must
     assume a certain standard of education, general knowledge and political sophistication on the
     part of the potential audience, as well as a good faith commitment to reading judgments
     reasonably carefully. But if the general community is to gain a better appreciation of the role
     of the High Court as the guardian of the Constitution and of the rule of law, its judgments
     should be directed, so far as feasible, towards a non-specialist readership. To rely on the
     media as the intermediary to explain the work of the Court is not a satisfactory substitute,
     especially in a country where the media’s reporting of constitutional decisions is sporadic and
     rarely carried out in depth (although, to some extent, this is a product of the style in which
     judgments tend to be written).

18             The Work Choices Case provides an illustration of the difficulties facing the
     hypothetical lay reader wishing to go to the primary source of constitutional adjudication.
     The essential issue in this very important case can be stated very shortly, as Kirby J did:34

               ‘To what extent [is] the ambit of the corporations power … qualified (if at all)
               by the existence of the power to make laws with respect to industrial disputes,
               which is expressed as subject to identified restrictions[?]’.35

          Work Choices Case, at [485].
          Section 51(xxxv) of the Constitution confers on the Commonwealth Parliament power to make laws with
          respect to:
               ‘Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond
               the limits of any one State’.

19             It is true that the case was seen as a critical test of Commonwealth legislative power.
     It is also true that the argument occupied nine days, reflecting the number of parties and
     intervenors,36 as well as the perceived significance of the issues in the case and the
     complexity of the legislation under scrutiny. Not surprisingly, the plaintiffs and intervenors
     advanced a variety of contentions denying the Commonwealth legislative power to regulate
     the terms and conditions of employment for employees of ‘constitutional corporations’.
     Nonetheless, the conclusion finally reached by the majority was stated almost as briefly as
     the key question:37

               ‘The power conferred by s 51(xx) of the Constitution extends to the regulation
               of the activities, functions, relationships and the business of a corporation
               described in that sub-section, the creation of rights, and privileges belonging
               to such a corporation, the imposition of obligations on it and, in respect of
               those matters, to the regulation of the conduct of those through whom it acts,
               its employees and shareholders and, also, the regulation of those whose
               conduct is or is capable of affecting its activities, functions, relationships of

20             In reaching this conclusion, the majority were obliged to explain why they rejected
     the various challenges made to the validity of the legislation. The Court therefore had no
     option but to examine the state of the authorities and canvass the historical and other
     materials bearing on the construction of s 51(xx) of the Constitution. Clearly the Court
     cannot be expected to perform such an onerous task within the confines of just a few pages of

21             Even so, it is striking that the joint judgment found it necessary to undertake a
     detailed analysis of the course of High Court authority on the corporations power, stretching
     back to Huddart Parker & Co Pty Ltd v Moorehead, decided in 1909.38 The majority’s
     analysis of Huddart Parker is very lengthy, while the majority judgment also recounts in
     considerable detail more recent judicial decisions on the scope of the corporations power.39

          Seven actions were commenced in the High Court, five by States and two by unions. The sixth State
          (Tasmania) and the two Territories intervened in support of the plaintiffs: Work Choices Case, at [4], [6].
          Ibid, at [178], adopting the formulation of Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction,
          Forestry, Mining and Energy Union (2000) 203 CLR 346, at [83].
          (1909) 8 CLR 330.
          The discussion of Huddart Parker continues for 10 pages (Work Choices Case, at [68]-[95]), while the
          discussion of the later authorities occupies 11 pages ([136]-[178]). The judgment explains that Huddart
          Parker is particularly important because of what it reveals about the framers’ intentions and because of the
          significance of Isaacs J’s dissenting judgment for ‘one of the principal strands of the plaintiffs’ arguments’

     No doubt the majority’s detailed analysis of the authorities was made in response to the
     arguments put to the Court by the plaintiffs and intervenors. But such an emphasis on the
     course of authority tends to push into the background the more fundamental (and more
     readily understood) analysis of the ‘federal balance’ that lay at the heart of the debate before
     the Court.40

22             It might be argued that the approach I advocate is a counsel of perfection and
     therefore unachievable. Curiously enough, the Court’s recent experience suggests otherwise.
     Although Gleeson CJ joined in the majority judgment in the Work Choices Case, he has
     regularly delivered separate judgments in constitutional and non-constitutional cases which
     reach the same conclusion as the majority of the Court, frequently for very similar reasons.
     However, the Chief Justice’s separate judgments tend to be comparatively brief (in part
     because a concurring judgment need not duplicate a recital of the facts and arguments). But
     they also display both a willingness to reason from general principle and an uncommon
     ability (at least among Judges) to explain and apply difficult concepts and principles in
     straightforward language. Perhaps surprisingly, at any rate to those who seek to classify
     judges into ideological camps, the Chief Justice’s reasoning is often supported by explicit
     policy analysis.

23             To some extent, Gleeson CJ’s judicial technique is evident in several of the cases to
     which I have referred. In Attorney-General v Andrews, he agreed with the joint judgment41
     that the impugned Commonwealth legislation42 was valid insofar as it authorised Comcare to
     license an eligible corporation to act as a self-insurer under the Commonwealth workers’
     compensation scheme. Gleeson CJ’s reasoning on this occasion diverged somewhat from the
     majority. Whereas the joint judgment43 relied on the interaction between Commonwealth and
     State legislation and the operation of s 109 of the Constitution in denying the Victorian
     legislation any ‘subject-matter for its operation’,44 Gleeson CJ’s approach was more direct.

          Work Choices Case, at [183]-[196].
          Gummow, Hayne, Heydon and Crennan JJ.
          See note 12, above.
          Gummow, Hayne, Heydon and Crennan JJ.
          Attorney-General v Andrews, at [90]. The joint judgment held that:
              ‘[a] law does not touch and concern … state insurance merely because state legislation is so drawn that
              the invalidation of one state law by the operation of s 109 produces a consequence that in some
              circumstances a state law of … insurance lacks subject-matter for its operation’.
                                                          - 10 -

     In his view, the Commonwealth laws were supported by the corporations power.45 They
     were not laws with respect to ‘State insurance’ because that expression meant the business
     conducted by an insurer owned or controlled by a State. It did not mean the market for
     insurance in a State. It followed that s 51(xiv) of the Constitution did not confer upon the
     States exclusive power to enact any law relating to State insurance. Since the impugned
     provisions did not seek to regulate transactions entered into by the State insurer and did not
     substantially impair Victoria’s capacity to conduct State insurance, the laws did not ‘invade
     the area of protection given by the proviso to para (xiv)’.46

24             In XYZ v Commonwealth, the joint judgment47 held that a law prohibiting certain
     conduct, if engaged in outside Australia, is supported by the external affairs power regardless
     of whether the perpetrator is an Australian citizen or resident.48 The judgment relied on
     conventional principles of constitutional interpretation to reaffirm the correctness of the
     authorities establishing that proposition.49            Their Honours endorsed the observation of
     Dawson J in Polyukhovich that any limitation on the power of the Commonwealth to legislate
     with respect to matters outside the country:

               ‘would leave a gap in the totality of legislative power which the Constitution
               bestows upon the Commonwealth and the States’.50

25             In a separate judgment, Gleeson CJ reasoned slightly differently, giving greater
     emphasis to policy and historical considerations. His Honour:

                       noted that by confining the operation of the extra-territorial legislation to the
                        conduct of Australian citizens and residents, Parliament had conformed to
                        what was acceptable according to the comity of nations;51

                       pointed out that the development of Australia’s nationhood, which included
                        the shedding of inhibitions on its capacity to legislate extra-territorially:
                                ‘inevitably had consequences for the practical content of the

          Ibid, at [4]. His Honour also referred to other powers as possibly supporting the legislation, specifically
          s 51(vi) (postal, telegraphic, telephone, and other like services) and s 51(xiv) itself.
          Ibid, at [17], [18].
          Gummow, Hayne and Crennan JJ.
          XYZ v Commonwealth, at [49].
          Principally Polyukhovich v Commonwealth (1991) 172 CLR 501.
          Ibid, at 638, cited in XYZ v Commonwealth, at [40].
          XYZ v Commonwealth, at [7].
                                                         - 11 -

                                constitutional concept of external affairs’;52

                      stressed that to invalidate the legislation:
                                ‘would expose a substantial weakness in Australia’s capacity
                                to exercise to the full the powers associated with
                                sovereignty’;53 and

                      criticised the attack on Polyukhovich because it failed to do justice to the
                       reasoning, which was:
                                ‘based on a consideration of the constitutional consequences of
                                Australia’s emergence as a nation’.54

26             In Thomas v Mowbray, the five members of the majority delivered four separate
     judgments.55       Gleeson CJ agreed with Gummow and Crennan JJ that the legislation
     authorising interim control orders was supported by the defence and external affairs power.56
     His Honour’s rejection of the argument that the legislation conferred non-judicial powers on
     federal courts, in breach of Chapter III of the Constitution, is notable for his frank
     acknowledgement of the benefits of courts exercising such unusual powers:

               ‘The advantages, in terms of protecting human rights, of [the conclusion that
               the power to make control orders cannot be given to judges] are not self-
               evident … [T]he exercise of powers, independently, impartially and judicially,
               especially when such powers affect the liberty of the individual, would
               ordinarily be regarded as a good thing, not something to be avoided’.57

27             Each of the three separate judgments by Gleeson CJ, it is fair to say, is capable of
     being read and understood by an informed and interested non-lawyer. The hypothetical
     reader would come away with an appreciation not only of the nature of the constitutional
     issues in dispute, but of the competing policy considerations that necessarily inform the
     approach of the decision-maker.58 Whatever the merits of the particular conclusions reached
     in the three cases, Gleeson CJ’s reasoning is reasonably accessible to a wider audience than
     the specialist constitutional lawyer.          Like judicial oversight of the exercise of powers

          Ibid, at [12].
          Ibid, at [17].
          Ibid, at [19].
          Only Gummow and Crennan JJ delivered a joint judgment.
          Thomas v Mowbray, at [6].
          Ibid, at [17].
          See, too, Gleeson CJ’s separate concurring judgment in Roach v Electoral Commissioner [2007] HCA 43.
                                                       - 12 -

     affecting the liberty of the individual, this should be regarded as a good thing.

     3.       The Canard of Labels

28            No sub-set of a few High Court cases, whether dealing with constitutional or other
     issues, can be truly representative of the work of the Court. But this particular group of five
     constitutional cases, like almost any randomly selected group, demonstrates the sterility of
     much of the discussion concerning the alleged virtues or vices (mostly the latter) of so-called
     judicial activism.59

29            In a recent newspaper article, the Commonwealth Attorney-General suggested that
     ‘[t]he debate about judicial activism is over’.60 As he explained:

               ‘Australian law has had its experiment with judges trying to apply
               “contemporary values”, “the contemporary needs and aspirations of society
               “the relatively permanent values of the Australian community and all the
               other attempts to substitute subjective preferences for the rule of law.

               People see judicial activism for what it is: an attempt to undermine
               democratic institutions by legislating from the bench.’

30            There is a difficulty with this analysis. As the Chief Justice has recently observed
     extra-judicially, opposing camps of critics of the judiciary often:

               ‘adopt slogans designed, like medieval battle colours, for easy recognition of
               friends and enemies’.61

     ‘Judicial activism’ is one of these slogans. Like all political slogans, 62 it has many different
     meanings, depending on the perspective of the observer. Frequently, however, those using
     the expression as a criticism of judicial reasoning assume that the High Court, or indeed any
     ultimate court of appeal, can undertake constitutional adjudication by simply applying an
     objective entity known as ‘the law’. It is assumed that this can be done independently of
     policy preferences or the exercise of judicial choice. The assumption cannot be supported.

          R Sackville, ‘Courts and Social Change’ (2005) 33 Fed LR 373, at 375-379.
          P M Ruddock, ‘The System Protects Us From Judicial Rule’, The Australian, 17 July 2007.
          M Gleeson, ‘Australia’s Contribution to the Common Law’ (20 September 2007, Address to the Singapore
          Academy of Law.
          T Blackshield, M Coper and G Williams (eds), Oxford Companion to the High Court of Australia (2001)
                                                    - 13 -

31             It is doubtful, for example, whether many commentators would be prepared to label
     Gleeson CJ as a judicial activist.      Yet in Thomas v Mowbray his Honour’s expressed
     preference for the protection of human rights inherent in the judicial process plainly
     influenced his decision to uphold the validity of legislation providing for interim control
     orders against the challenge on Chapter III grounds. In XYZ v Commonwealth, Gleeson CJ
     specifically took into account, as did the joint judgment, the undesirability of any weakness in
     Australia’s capacity to exercise the full power associated with sovereignty when accepting
     the ‘geographic externality’ view of the external affairs power.

32             Judicial activism is often contrasted with judicial restraint, a key virtue of which is
     said to be fidelity to the original intention of the framers of the Constitution. In the Work
     Choices Case, five members of the Court rejected an attempt to ascertain the framers’
     intention in relation to the corporations power because, more often than not, this ‘is to pursue
     a mirage’. As their Honours explained in the joint judgment:

               ‘the inquiry assumes that it is both possible and useful to attempt to work out
               a single collective view about what now is a disputed question of power, but
               then was not present to the minds of those who contributed to the debates’.63

33             The joint judgment went further and discounted the significance of the few statements
     made in the course of the Convention Debates about the scope of the power. One reason for
     doing so was that in the late nineteenth century corporations law was still developing and the
     framers could not have foreseen the subsequent legal, economic and social developments
     demanding new legislative solutions.64 Another reason was that:

               ‘the place of corporations in the economic life of Australia today is radically
               different from the place they occupied when the framers were considering
               what legislative powers should be given to the Federal Parliament.’65

     If ascertainment of and adherence to the original intentions of the framers are necessary to
     avoid a judge being labelled as a judicial activist, it would seem that the five members of the
     majority in the Work Choices Case cannot escape that fate.

          Work Choices Case, at [120].
          Ibid, at [121], [123].
          Ibid, at [121].
                                                     - 14 -

34             Callinan J, like the Chief Justice, might be thought an unlikely candidate for
     designation as a judicial activist. His Honour dissented in three of the five cases under
     consideration: Work Choices Case, Attorney-General v Andrews and XYZ v Commonwealth.
     In each case he rejected the expansive view of Commonwealth legislative power adopted by
     the majority. His reasoning in the Work Choices Case, in particular, demonstrates the danger
     of ideological labels.

35             A section of Callinan J’s judgment in the Work Choices Case is entitled
     ‘Constitutional imperative of the federal balance’. In that section, his Honour argued for a
     narrower view of the corporations power than commended itself to the majority.               It is
     impossible to read his Honour’s judgment without inferring that his conclusions were
     informed by notions of policy, specifically the desirability within the Australian federation of
     the States continuing to exercise significant legislative powers. Callinan J expressly relied on
     what he perceived as the absence of any suggestion in the Constitution that:

                ‘the Parliament of each State is progressively reduced until it becomes no
                more than an impotent debating society’.66

36             His Honour’s insistence on maintaining the functions and powers of the States is
     illustrated by many observations in his judgment, among which are these:

                ‘The Court should ensure that the functions of the States are not reduced to
                trivial or subservient ones by a judicial process that makes them little more
                than facades of power’.67

                ‘The potential reach of the corporations power, if it is as extensive as the
                majority would have it, is enormous … The reach of the corporations power,
                as validated by the majority has the capacity to obliterate powers of the State
                hitherto unquestioned. This Act is an Act of unconstitutional spoliation’.68

                ‘The Act here seeks to distort [the] federal balance by intruding into
                industrial and commercial affairs of the States’.69

37             It is perhaps no surprise that Callinan J’s fellow dissenter in the Work Choices Case,
     Kirby J, also invoked policy considerations in support of his view that the conciliation and
     arbitration power (s 51(xxxv)) should be read as limiting the scope of the corporations power

          Ibid, at [779].
          Ibid, at [787].
          Ibid, at [794].
                                                     - 15 -

     (s 51(xx)). Kirby J emphasised, for example, that the element of ‘interstateness’ s 51(xxxv)
     of the Constitution;

              ‘has contributed to diversity and experimentation in lawmaking, inter-
              governmental co-operation within the Commonwealth and the protection of
              individual rights’.70

     It is difficult to contend on the basis of a reading of the two dissenting judgments in the Work
     Choices Case that one of the dissenters is a judicial activist but the other is not.

38            Callinan J was joined in dissent in XYZ v Commonwealth by Heydon J. Their joint
     judgment asserted, more than once, that questions of inconvenience, even grave
     inconvenience, have little place in constitutional analysis.71 They rejected strongly the notion
     that constitutional language should be construed ‘so as to achieve the result most desired by
     the analyst’.72 They argued that ascertaining the meaning of an expression like ‘external
     affairs’ is aided by identifying:

              ‘the meanings which skilled lawyers and other informed observers of the
              federation period would have attributed to it, and … the meanings which these
              observers would reasonably have considered it might bear in the future.’73

     For this reason, their Honours gave particular emphasis to views expressed by ‘skilled
     lawyers and other informed observers’ during the federation period.                These observers
     included some who were studying law when the Constitution was enacted, some who were in
     practice at the time and some whose education and early professional life ‘commenced only a
     short time later’.74 The views of such observers, in their Honours’ opinion, told against the
     ‘geographic externality’ construction of the external affairs power.

39            What is important for present purposes is that Callinan and Heydon JJ deemed this
     analysis sufficient to justify overruling a principle formulated in Polyukhovich and
     subsequently accepted, even by the two members of the Court who did not initially
     wholeheartedly embrace it,75 as having been authoritatively settled by the decision in that

          Ibid, at [797].
          Ibid, at [446].
          XYZ v Commonwealth, at [186], [202].
          Ibid, at [186].
          Ibid, at [153].
          Respectively, Sir John Latham, Sir Hayden Starke and Sir Owen Dixon: ibid, at [166]-[168].
          Polyukhovich v Commonwealth (1991) 172 CLR 501, at 550-551, per Brennan J; at 654, per Toohey J.
                                                         - 16 -

     case. Callinan and Heydon JJ did not regard the doctrine of stare decisis as a good reason for
     refraining from re-opening an apparently authoritatively established principle. If judicial
     activism involves departing from settled precedent to invalidate the expressed will of the
     democratically elected Parliament, the dissent in XYZ v Commonwealth would seem to
     answer the description precisely.

40           The point is not whether particular aspects of the reasoning in the cases to which I
     have referred are or are not unsound. It is that the judgments demonstrate yet again that
     nothing of value is to be gained by characterising a particular style of judicial analysis as
     ‘judicial activism’.


41           The High Court has an important contribution to make if the fundamental concepts
     underlying Australian constitutional law are to be better understood both by the legal
     profession and the wider Australian community. One such contribution would be to give
     lower courts, particularly intermediate appellate courts, a greater role in constitutional
     adjudication, including cases of high national significance. A second would be to present
     judgments in constitutional cases in a manner designed to enable informed non-lawyers to
     read and understand them more readily than hitherto.                        A better understanding of
     constitutional principles would be further assisted if commentators abandoned the futile
     attempt to categorise judges by reference to the entirely unhelpful concept of judicial
     activism once and for all.

        Brennan and Toohey JJ, in Victoria v Commonwealth (1996) 187 CLR 416, at 485, said that the majority’s
        statements in Polyukhovich must be taken to represent the view of the Court. As Callinan and Heydon JJ
        recognised at [197]-[200], at least two other decisions of the High Court applied the geographic externality
        principle. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; Horta v
        Commonwealth (1994) 181 CLR 183.

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