TECHNIQUES OF CONSTITUTIONAL ADJUDICATION: FIVE RECENT CASES BY JUSTICE RONALD SACKVILLE* *JUDGE, FEDERAL COURT OF AUSTRALIA -1- 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. ___________________________________________________________________________ 1 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. 2 New South Wales v Commonwealth (2006) 231 ALR 1 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting). 3 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 Commonwealth’. 4 (2007) 237 ALR 194 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Kirby and Hayne JJ dissenting). 5 Criminal Code (Cth), Div 104, subdiv B. 6 Constitution, s 51(vi). 7 Constitution, s 51(xxix). 8 Constitution, s 51(xxxvii). 9 (2006) 227 CLR 532 (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ; Callinan and Heydon JJ dissenting). 10 Crimes Act 1914 (Cth), s 50BA. -2- 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 cases: 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 ___________________________________________________________________________ 11 (2007) 233 ALR 389 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan dissenting). 12 Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), ss 104(1), 108(1), 108A(7). 13 Established by the Accident Compensation Act 1985 (Vic). 14 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.) 15  237 ALR 373 (a unanimous judgment). 16 Work Health Act (NT), as amended by the Work Health Amendment Act 2004 (NT). 17 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 ) 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’. -3- 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 ___________________________________________________________________________ 18 R Sackville, ‘The 2003 Term; The Inaccessible Constitution’ (2004) 27 UNSWLJ 66. 19 Ibid, at 66. 20 Chaffey v Santos  NTSC 67 (Mildren and Southwood JJ; Angel J dissenting). 21 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. 22 Victorian WorkCover Authority v Andrews  FCA 94. -4- 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 ___________________________________________________________________________ 23 Ibid at . See Attorney-General (Vic) v Andrews (2007) 233 ALR 389, at . 24 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. 25 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 . -5- 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 questions. 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 26 Constitution, s 76(i). 27 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, at , per McHugh, Gummow and Hayne JJ. 28 Judiciary Act 1903 (Cth), s 44(1). 29 D O’Brien, Special Leave to Appeal (2nd ed 2007), at 95ff. -6- 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 ___________________________________________________________________________ 30 D Jackson, ‘The Lawmaking Role of the High Court’ (1994) 11 Aust BR 197, at 210, n 86. 31 R Sackville, note 18 above, at 79-82. 32 Ibid, at 70. 33 Attorney-General v Andrews occupies 40 printed pages of the Australian Law Reports, while the print of Santos v Chaffey occupies only 15 pages. -7- 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 ___________________________________________________________________________ 34 Work Choices Case, at . 35 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’. -8- 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 business’. 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 reasoning. 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 ___________________________________________________________________________ 36 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 , . 37 Ibid, at , 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 . 38 (1909) 8 CLR 330. 39 The discussion of Huddart Parker continues for 10 pages (Work Choices Case, at -), while the discussion of the later authorities occupies 11 pages (-). 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’ (). -9- 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. ___________________________________________________________________________ 40 Work Choices Case, at -. 41 Gummow, Hayne, Heydon and Crennan JJ. 42 See note 12, above. 43 Gummow, Hayne, Heydon and Crennan JJ. 44 Attorney-General v Andrews, at . 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 ___________________________________________________________________________ 45 Ibid, at . 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. 46 Ibid, at , . 47 Gummow, Hayne and Crennan JJ. 48 XYZ v Commonwealth, at . 49 Principally Polyukhovich v Commonwealth (1991) 172 CLR 501. 50 Ibid, at 638, cited in XYZ v Commonwealth, at . 51 XYZ v Commonwealth, at . - 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 ___________________________________________________________________________ 52 Ibid, at . 53 Ibid, at . 54 Ibid, at . 55 Only Gummow and Crennan JJ delivered a joint judgment. 56 Thomas v Mowbray, at . 57 Ibid, at . 58 See, too, Gleeson CJ’s separate concurring judgment in Roach v Electoral Commissioner  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. ___________________________________________________________________________ 59 R Sackville, ‘Courts and Social Change’ (2005) 33 Fed LR 373, at 375-379. 60 P M Ruddock, ‘The System Protects Us From Judicial Rule’, The Australian, 17 July 2007. 61 M Gleeson, ‘Australia’s Contribution to the Common Law’ (20 September 2007, Address to the Singapore Academy of Law. 62 T Blackshield, M Coper and G Williams (eds), Oxford Companion to the High Court of Australia (2001) ‘Activism’. - 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. ___________________________________________________________________________ 63 Work Choices Case, at . 64 Ibid, at , . 65 Ibid, at . - 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 ___________________________________________________________________________ 66 Ibid, at . 67 Ibid, at . 68 Ibid, at . - 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 69 Ibid, at . 70 Ibid, at . 71 XYZ v Commonwealth, at , . 72 Ibid, at . 73 Ibid, at . 74 Respectively, Sir John Latham, Sir Hayden Starke and Sir Owen Dixon: ibid, at -. 75 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’. Conclusion 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 -, 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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