• Specific Year
    Any

Lynch, Andrew --- "The Once and Future Court? Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed" [2007] FedLawRw 6; (2007) 35(1) Federal Law Review 145

[*] Senior Lecturer, Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW. I would like to thank Alexander Reilly for his comments on an earlier draft of this review.

[1] A N Wilson, The Victorians (2002) 1.

[2] For a contemporary assessment, see John D Weaver, Warren: The Man, The Court, The Era (1968). Latterly the most famous surveys of the Warren era have been provided by Schwartz: Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court — A Judicial Biography (1983); Bernard Schwartz and Stephan Lesher, Inside the Warren Court (1983); and Bernard Schwartz (ed), The Warren Court: A Retrospective (1996).

[3] See Vincent Blasi (ed), The Burger Court: The Counter-Revolution That Wasn't (1983).

[4] Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (2006) ('Inside the Mason Court Revolution').

[5] An entire listing of those interviewed is provided in Appendix A (ibid 293–5). Comments quoted in the text are not attributed to individuals, though occasionally the status of the speaker is given.

[6] Pierce, above n 4, 121, 188.

[7] See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 331 (Callinan J); Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 102 (Callinan J).

[8] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').

[9] See Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. See also Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.

[10] The work singled out as exemplifying this breed is Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model (1993), in which the authors conclude that the outcome of United States Supreme Court cases is determined by the 'ideological attitudes and values of the justices': at 65. This explains the context for the book — its author and publisher being both American, it is primarily a contribution to political science debates in that country while also being of interest to the legal community here. In Pierce, above n 4, 14–7, Pierce recognises, with some surprise, the very limited interest in the judiciary taken by Australian political scientists with the exception of Galligan and Patapan (though we may now add Katharine Gelber; see Katharine Gelber, 'High Court Review 2004: Limits on the Judicial Protection of Rights' (2005) 40 Australian Journal of Political Science 307; Katharine Gelber, 'High Court Review 2005: The Manifestation of Separation of Powers in Australia' (2006) 41 Australian Journal of Political Science 437).

[11] The seminal works of this nature on the High Court were produced in the late 1960s by Glendon Schubert: Glendon Schubert, 'Political Ideology on the High Court' (1968) 3 Politics 21; and Glendon Schubert, 'Judicial Attitudes and Policy-Making in the Dixon Court' (1969) 7 Osgoode Hall Law Journal 1. Tony Blackshield built on those papers with A R Blackshield, 'Quantitative Analysis: The High Court of Australia, 1964–1969' (1972) 3 Lawasia 1; and A R Blackshield, 'X/Y/Z/N Scales: The High Court of Australia, 1972–1976' in Roman Tomasic (ed), Understanding Lawyers: Perspectives on the Legal Profession in Australia (1978) 133.

[12] Karl Llewellyn, 'Some Realism About Realism: Responding to Dean Pound' (1931) 44 Harvard Law Review 1222, 1241.

[13] Thus effectively responding to Pound's very early call when he wrote, 'the element of most enduring effect in legal development is professional and judicial ideals of the social and legal order … We need to study these ideals scientifically instead of ignoring them. We need to learn whence they are derived, how they take form, and how they are used': Roscoe Pound, 'The Theory of Judicial Decision' (1923) 36 Harvard Law Review 641, 661.

[14] Pierce, above n 4, 19–22. Pierce cites Segal and Spaeth, above n 10 as the definitive example.

[15] Pierce, above n 4, 291.

[16] Ibid 292.

[17] Ibid 49.

[18] (1992) 175 CLR 1 ('Mabo').

[19] [1994] HCA 46; (1994) 182 CLR 104.

[20] [1988] HCA 44; (1988) 165 CLR 107. Pierce makes the very salient point that his colleagues often overlook the importance of developments in private law when commenting on courts: 'Bloody revolutions may be underway in contract or estoppel law and too often political scientists are glued to saber rattling in constitutional matters': Pierce, above n 4, 291.

[21] Pierce, above n 4, 95–101.

[22] Ibid 105.

[23] [1992] HCA 57; (1992) 177 CLR 292.

[24] Pierce, above n 4, 53.

[25] Matthew Groves and Russell Smyth, 'A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001' (2004) 32 Federal Law Review 255.

[26] Ibid 258. The decision of last year New South Wales v Commonwealth [2006] HCA 52; (2006) 231 ALR 1 ('WorkChoices Case') is, at approximately 160 000 words, probably the longest decision ever delivered by the High Court. It easily exceeds the decisions in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 ('Tasmanian Dam Case') (approximately 119 000 words) and Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 ('Bank Nationalisation Case') (approximately 117 000 words). I am grateful to Paul Kildea for these figures.

[27] Pierce, above n 4, 92.

[28] Ibid.

[29] Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) 190 ('Judging Democracy').

[30] Daryl Williams, 'Judges Must Conduct Their Own Defence', The Australian Financial Review (Sydney), 27 April 2001, 57.

[31] Typified by their frequent exclamation, 'But we don't make the law, we interpret it!': Pierce, above n 4, 110.

[32] Ibid 65.

[33] [1951] HCA 5; (1951) 83 CLR 1 ('Communist Party Case').

[34] Pierce, above n 4, 114–5.

[35] Ibid 117.

[36] Ibid.

[37] Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) 36–8.

[38] Pierce, above n 4, 126–7 (emphasis omitted).

[39] As to the latter, see, Greg Craven, 'The High Court of Australia: A Study in the Abuse of Power' [1999] UNSWLawJl 47; (1999) 22 University of New South Wales Law Journal 216; John Gava, 'The Rise of the Hero Judge' [2001] UNSWLawJl 60; (2000) 24 University of New South Wales Law Journal 747; Jeffrey Goldsworthy, 'Interpreting the Constitution in its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677.

[40] Patapan, above n 29, 32. See my discussion of Patapan on this point, with further materials considered in Andrew Lynch, 'The High Court—Legitimacy and Change: Review Essay: Haig Patapan, Judging Democracy—The New Politics of the High Court of Australia' (2001) 29 Federal Law Review 295, 302–4.

[41] Pierce, above n 4, 151.

[42] Ibid 153.

[43] Ibid 155.

[44] Ibid 156. I have considered at length whether Pierce has erred in including these views which are so obviously idiosyncratic (if not downright eccentric). One difficulty is that he does not sufficiently indicate how much store he puts in them. While I suspect the individual judge was not being ironic exactly, it is likely that he is one of those (increasingly rare) judicial personalities who delights in a provocative generalisation. Inclusion of excerpts from the interview with this judge (denoted as Interviewee #3—similar remarks are elsewhere attributed to this individual) without a proper perspective on his mischievous tendencies risks distorting the actual division of opinion on these issues. On the other hand, it is such good 'copy' that anyone in Pierce's position would be tempted to use it. Ultimately, I think he was correct to include the statement as one made by a senior Australian judicial officer and worthy of dissemination — if only to expose it as nonsense.

[45] Ibid 155.

[46] Ibid 154.

[47] Ibid 156.

[48] Ibid 169–70 (emphasis omitted).

[49] Ibid 162–4.

[50] See, eg, Lange (1997) 182 CLR 520, 524.

[51] Pierce, above n 4, 65.

[52] Ibid 168–70.

[53] Ibid 183.

[54] Recent commentary includes Gian Boeddu and Richard Haigh, 'Terms of Convenience: Examining Constitutional Overrulings by the High Court' [2003] FedLawRw 5; (2003) 31 Federal Law Review 167; J D Heydon, 'Limits to the Powers of Ultimate Appellate Courts' (2006) 122 Law Quarterly Review 399; Bryan Horrigan, 'Towards a Jurisprudence of High Court Overruling' (1992) 66 Australian Law Journal 199; and Andrew Lynch, 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' [2003] MelbULawRw 29; (2003) 27 Melbourne University Law Review 724, 759–67.

[55] Sir Owen Dixon, 'The Common Law as an Ultimate Constitutional Foundation' in Justice Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 203.

[56] Australia Act 1986 (Imp); Australia Act 1986 (Cth).

[57] Patapan, above n 29, 31. But see Lynch, above n 40. In that book review I suggested that such consequences need not follow from a recognition of popular sovereignty — something which the Court post-Mason has demonstrated.

[58] Pierce, above n 4, 187.

[59] Ibid 191.

[60] Ibid 193–4.

[61] Ibid 202–3.

[62] Ibid 207.

[63] Sir Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' [1986] FedLawRw 1; (1986) 16 Federal Law Review 1, 5.

[64] Patapan, above n 29; Justice Michael Kirby, 'Sir Anthony Mason Lecture 1996: A F Mason — From Trigwell to Teoh' [1996] MelbULawRw 20; (1996) 20 Melbourne University Law Review 1087; Kristen Walker, 'Mason, Anthony Frank' in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (2001) 459, 459–60.

[65] Pierce, above n 4, 206.

[66] Ibid 208.

[67] Groves and Smyth, above n 25, 267, Figure 2; Andrew Lynch, 'Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981–2003' (2005) 33 Federal Law Review 485, 497–500.

[68] See Pierce, above n 4, 211–4.

[69] See ibid 214–24.

[70] See ibid 224–37.

[71] Russell Smyth, 'What Explains Variations in Dissent Rates? Time Series Evidence from the High Court' [2004] SydLawRw 10; (2004) 26 Sydney Law Review 221, 225–6, 239.

[72] See Patapan, above n 29.

[73] Pierce, above n 4, 231–7. This research is, for those interested in understanding the impact of the Privy Council's involvement in the Australian court hierarchy, completely fascinating and, to my knowledge, entirely original. Perhaps the most interesting thing is that statistically decisions of the Queensland Supreme Court were markedly less likely to be overturned by the Privy Council than matters coming to it from any other jurisdiction —both throughout the Commonwealth and across Australia.

[74] Ibid 237.

[75] Groves and Smyth, above n 25, 262.

[76] Sir Anthony Mason, '39th Annual Dinner Speech: Reflections on the High Court of Australia' [1995] MelbULawRw 21; (1995) 20 Melbourne University Law Review 273, 280.

[77] Pierce, above n 4, 237.

[78] [1954] USSC 42; 347 US 483 (1954).

[79] (1999) 198 CLR 511 ('Wakim').

[80] Most memorably in Denis Rose's pithily titled 'The Bizarre Destruction of Cross-Vesting' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 186.

[81] Pierce, above n 4, 260.

[82] Ibid 270.

[83] Ibid 269.

[84] Ibid 288.

[85] Ibid 43.

[86] [2004] HCA 37; (2004) 219 CLR 562.

[87] Pierce, above n 4, 120.

Download

No downloadable files available