Patapan, Haig --- "Representative Democracy & the High Court" [2001] ALRCRefJl 7; (2001) 78 Australian Law Reform Commission Reform Journal 26

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Reform Issue 78 Autumn 2001

This article appeared on pages 26– 28 & 72 of the original journal.

Representative democracy and the High Court

By Dr Haig Patapan*

Acknowledging the importance of the rule of law and an impartial and independent judiciary for democratic government, the Australian founders entrenched the High Court in Chapter III of the Australian Constitution, which specifies the power, jurisdiction and independence of the Court.

The High Court interprets and applies the law of Australia, including Australian common law (the unwritten law derived from the traditional law of England as developed by judicial interpretation). It also decides cases of special federal significance including challenges to the constitutional validity of laws, and hears appeals, by special leave, from federal, state and territory courts. The Court is made up of seven judges who are appointed by federal Cabinet, upon the recommendation of the Attorney-General, who is required to consult the states. Once appointed, judges cannot be removed except for misbehaviour or incapacity; they have security of tenure but must retire at 70 years of age.

The framers of the Australian Constitution sought to establish an American-style judiciary that would exercise federal judicial review, determining whether laws passed by Commonwealth or state parliaments are in accordance with the demarcation of powers set down in the Constitution. It was considered essential in a federal system to have an impartial and disinterested umpire to negotiate the disputes that would inevitably arise between states and the Commonwealth. Since the Constitution was seen primarily as a legal document, the judiciary was the natural choice for such an interpretive and adjudicative role. Thus the founders envisaged the Court as a bulwark of the Constitution and an essential arbitrator of federalism.

The Court’s conception of democracy was fundamentally shaped by the English political and legal traditions that informed and continue to influence Australian constitutionalism. Far from representing a radical break from imperial authority, the colonies’ claims for independence and self-determination were articulated in terms of adopting local versions of English institutions, especially parliament and the rule of law. It is not surprising, therefore, that at federation the founders retained the parliamentary institutions of the colonies and adopted a representative parliamentarianism for the Commonwealth. Importantly, as we have noted, they entrenched an independent judiciary as an essential aspect of democracy in Australia. Consequently the Court’s conception of Australian democracy has at its core representative parliamentary democracy. An essential feature of this representative democracy, based on Westminster tradition, was responsible government. That Cabinet and Executive were responsible to parliament, which in turn was accountable to the people, was seen to be one of the most important means of securing individual liberty. Combined with the inheritance of the common law and the rule of law, representative and responsible government was regarded as a complete answer to the threat of an overreaching Executive. In addition to its role as a protector of liberty, representative parliamentary government was seen as a place for public deliberation, for debating and evaluating innovations and outcomes. Accordingly, the Court considered parliament the proper forum for all that was contentious and changeable, the essentially political institution far removed from the legal task of interpreting legislative enactments. A strict demarcation of politics from law was necessary for preserving the authority of both parliament and the judiciary.

It is true that this view of representative democracy, founded on parliamentary sovereignty, did not sit easily with the theory and practice of federalism, an innovation the founders appropriated from the United States. ‘Sovereign’ parliaments were now subject to the Constitution. Significantly, the boundaries of their sovereignty – primarily the relationship between state and Commonwealth parliaments – were now subject to the determination of the Court. Nevertheless, the Court continued to adapt and accommodate aspects of federalism within the prevailing parliamentary traditions. As far as possible the Court interpreted parliamentary authority broadly while construing narrowly specific limitations on parliamentary power. When exercising federal judicial review, the Court consistently denied that declaring unconstitutional parliamentary enactments was a political decision; it was no different from any other legal exercise of interpreting an enactment, in this case the Constitution as an Imperial Act.

The evolution of the High Court

The role of the High Court as an institution of governance in Australia has evolved since its founding. Though the majority of founders intended the High Court to be Australia’s supreme court of appeal, the Constitution retained appeals to the Imperial Privy Council in London as a result of compromises made when the Constitution was formally enacted at Westminster. The High Court was not the final court of appeal until 1986, when the avenue of appeal to the Privy Council was abolished. Moreover, it took some time for the High Court to become a national court. To free the High Court to decide constitutional issues and appeals of national importance, the Federal Court of Appeal was established in 1976. In 1979 Commonwealth legislation gave the High Court greater autonomy to manage its building, staff and finances. Its increasing importance was confirmed by the construction of a new High Court building in 1980, close to Parliament House in Canberra. The Court’s procedures also reflected its growing stature. By 1984 most non-constitutional appeals to the Court required special leave, which was granted only for cases raising important questions of law.

The transformation of the Court into a final court of appeal, along with the increasing international influence of human rights, presented new challenges to the Court’s role as guardian of the Constitution and ‘umpire’ of the rules and procedures of representative democracy. In its recent jurisprudence the Court has questioned this ‘representation-reinforcing’ role – whether it is simply an interpreter of the legal terms of the Constitution. Claims by some Justices that the Court does not simply declare the law, but also makes it, have raised questions about the role of the judiciary in a representative democracy. In addition, the Court has augmented its traditional federal judicial review with a new politics that engages fundamental democratic issues such as rights and freedoms. The Court’s ‘implied rights’ jurisprudence, based on the idea that there is implicit in the Constitution a right of political communication that limits the laws parliament could make (for example, in enacting legislation regulating political advertising), was seen by some as the first step towards a more ambitious implied bill of rights. Perhaps the most contentious aspect of the new politics of the High Court has been its decisions on native title. Its decisions in Mabo and Wik,¹ acknowledging the common law of Australia recognised native title under certain stringent conditions and rejecting the claim that Australia was terra nullius (literally ‘empty land’) on settlement by the British, have been criticised as unjustified ‘judicial activism’. The major objection is that in a democracy, laws should be made only by the people or their representatives and that judges, who are unelected, should not usurp this legislative power.

The ‘new politics’ of the Court

The ‘new politics’ of the High Court and its place in Australian democracy have been defended on a number of grounds. Judicial lawmaking that requires judges to take into account community values in interpreting legislation is said to acknowledge those values that were previously only implicit in the Court’s judgments, exposing them to general debate and thereby making judicial decisions more open and accountable. The Court has a proper and legitimate role in repairing the law and keeping it up-to-date with changing community values, thereby justifying judicial lawmaking as an aspect of representative governance.

Others have claimed that in a liberal democracy the Court has an essential role as a protector of rights and freedoms. They argue that a limited role for the judiciary was premised on the expectation that responsible government and parliamentary democracy were sufficient to protect fundamental rights. But the reality of party discipline, executive dominance over parliament, and the increasing power of the administrative state appear to represent an unchecked and unaccountable power in Australian politics. Thus the Court’s recognition and protection of individual rights and freedoms is said to be based on a view of the Constitution as not just a legal and federal document, but also a ‘constitutive’ enactment.

These concerns regarding the Court’s place within Australian democracy are not unique to Australia – similar debates concerning activism by courts of final jurisdiction are taking place in other countries, such as Canada, the US and England. What is clear, however, is that although the High Court is a political as well as legal institution, there are significant limits to its ‘politics’. Though the Court has taken an active part in policy formulation, it is constrained by theoretical and institutional considerations. It is limited by the doctrines of precedent, rule of law and separation of powers. In addition, the incremental nature of the Court’s decisions, the retrospective effect of its judgments, the changing membership of the Court and the character of the specific issues under dispute in each case all limit the range and scope of the Court’s influence. It is also important to recall that the public nature of judicial proceedings, and the requirement to deliver reasons for judgment, subject judges to considerable scrutiny. The judiciary may not be electorally accountable like politicians – that would undermine the separation of powers, which assures the Court’s independence and integrity – but it is still accountable for its decisions.

Although there is general agreement that a hallmark of a healthy democracy is the rule of law and an independent judiciary, there is increasing debate regarding the precise role the courts are expected to fulfil in modern liberal democracies. In this light, discussions about judicial activism articulate larger concerns regarding the character of Australian democracy. Questions about rights and freedoms, citizenship and representation, political activism and judicial accountability, while open to dissent and division, also allow us to discuss and deliberate the reforms we seek, revealing the true strengths of representative democracy.

*Dr Haig Patapan is a Research Fellow at the Key Centre for Ethics, Law, Justice and Governance at Griffith University in Queensland.

His recent book, Judging Democracy (Cambridge University Press, 2000) examines the new politics of the High Court.

Endnotes

1. Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v State of Queensland (1996) 141 ALR 129.