Tucker, David --- "Litmus-Testing Judicial Authority: Comparing the Wik Peoples and Thayorre People v The State of Queensland and United Steelworkers of America v Weber" [1998] SydLawRw 11; (1998) 20 (2) Sydney Law Review 244
[*] Reader, Political Science, University of Melbourne. I wish to thank Geoffrey Lindell for drawing my attention to the strengths of Gummow J’s opinion in Wik and Associate Professor Patrick Parkinson and the anonymous referee for their useful criticisms.
[1] [1979] USSC 144; (1996) 141 ALR 129; (1979) 443 US 193.
[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.
[3] Taken from the summary of the High Court’s ruling provided by Mason CJ and McHugh J. See [1992] HCA 23; (1992) 107 ALR 1 at 7.
[4] A compelling argument for this view is presented by Reynolds, H, The Law of the Land (2nd edn, 1992).
[5] In Mabo, Deane, Toohey and Gaudron JJ accept that the extinguishment of native title may well give rise to a claim for compensatory damages [1992] HCA 23; (107 ALR 1, Deane and Gaudron JJ at 76, Toohey J at 150–3).
[6] Many pastoralists fear that various High Court justices will interpret their leases very narrowly (limiting the activities they may undertake to the depasturing of stock and the building of yards). As Mark Love notes: “Neither the 1910 nor the 1962 Queensland Land Acts say much about the actual rights conferred by “pastoral leases” .... This is the source of the uncertainty which farmers now face.” (“The Farmgate Effect” in Hiley, G (ed), The Wik Case: Issues and Implications (1997) at 43).
[7] A statement summarising the understanding of Toohey, Gaudron, Gummow and Kirby JJ about the significance of Wik is included as a Postscript at the end of Toohey J’s opinion, (1996) 141 ALR 129, 189–90. One paragraph (at 190) reassures pastoralists in the following terms: “To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it”.
[8] Kirby J seems to view the Australian High Court in this American way. He tells us that the new building standing impressively next to Lake Burley Griffin reminded the justices of the judiciary’s place in the “constitutional triangle”: “Once the Justices of the High Court could see, so visibly and physically, that their Court was inescapably part of the trinity of the governmental organs of the country, a new national vision of the Court was bound to follow” (Kirby, M, “A F Mason – From Trigwell to Teoh” (1996) http://www.hcourt.gov.au/mason.htm at 5). He makes the same point in Kirby, M, “Lionel Murphy – Ten Years On” (1997) http://www.hcourt.gov.au/ murphy1.htm at 5.
[9] Goldsworthy, J, “Originalism in Constitutional Interpretation” (1997) 25 Fed LR 1 describes the traditional Australian approach to statutory construction at 8–12. Dworkin and Eskridge each deny that “dynamic interpretation” is hostile to democratic norms and each views their own approach as “egalitarian” and “democratic”, but their different claims are unconvincing, as I will show. I have discussed Dworkin’s views more fully in Tucker, D, The Rehnquist Court and Civil Rights (1995) at 146–66.
[10] A number of Kirby J’s recent speeches and papers are available at the High Court of Australia Web site: http://www.hcourt.gov.au. In particular, see his address “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” Conference (1997) http://www.hcourt.gov.au/cooke.htm. In another speech also available at this site, Kirby J notes that the judicial method as taught by Julius Stone, recasting the “constraints of law” so as to acknowledge a broader discretion for judges, has been influential amongst “a new generation of Justices (many of them Stone’s pupils)”, see “Julius Stone and the High Court of Australia” (1997) http://www.hcourt.gov.au/ stone.htm at 3 and 5.
[11] See Peter Butt’s analysis of Wik, “Leases after Wik”, 71 Aust LJ 326; see also, Hiley, (ed), above n6.
[12] I place “legal reasoning” between inverted commas because it is a contested concept.
[13] Whether good causes can be effectively advanced through judicial initiatives that are in conflict with what most people want is doubtful. Of course, courts are effective when they have the backing of other branches of government or accurately anticipate majority support, but in this circumstance judicial leadership is unnecessary. On the problems faced by courts in securing good outcomes, see the summary of the political science literature that examines the effectiveness of the United States Supreme Court in Tucker, above n9, ch2; and Rosenberg, G, The Hollow Hope: Can Courts Bring About Social Change (1991).
[14] Ronald Dworkin describes the United States as a “constitutional democracy”, distinguished by the fact that “rights are taken seriously”. See, Dworkin, R, A Bill of Rights for Britain (1990). Against Dworkin, I insist that citizens in a democracy must share in determining the particular conception of any right that is to be constitutionally protected. See Campbell, T, “Democracy, Human Rights, and Positive Law” [1994] SydLawRw 16; (1994) 16 Syd LR 195 and Waldron J, “ A Right-Based Critique of Constitutional Rights” (1993) 13 Oxf J Leg Stud 18. There is good authority for this view, see Dahl, A, Democracy and Its Critics (1989) at 190–2.
[15] William Brennan J defends the use he makes of “dynamic interpretation” in constitutional law. See “The Constitution of the United States: Contemporary Ratification” in Rakove, J (ed), Interpreting the Constitution: The Debate Over Original Intent (1990) at 23–40. Kirby J has expressed the view that judges should not substitute their opinion for that of elected representatives when this has been expressed in clear laws, see Builders Labourers’ Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 405 (hereinafter “BLF”). He does this once again in Wik (1996) 141 ALR 129 at 260. His reasons for accepting this subordination are “long standing political realities and loyalty to the desirable notion of elected democracy ....” (BLF at 406) But this firm statement is vitiated by a willingness to challenge the conventionally understood distinction between the common law and statutory law. In terms of his account, judges have a vast realm, their own domain or empire, in which they may legitimately develop policy initiatives even when reading statutes, see Kirby, “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10 at 6–13.
[16] Dworkin’s more important work on this topic include: “How to Read the Civil Rights Act” in A Matter of Principle (1986) at 316–31; Law’s Empire (1986) ch9; “Comment” in Scalia, A (ed), A Matter of Interpretation (1997) at 115–27. Eskridge’s contributions include: Dynamic Statutory Interpretation (1994); “Dynamic Interpretation” (1987) 135 U Pa LR 1479; (with Frickey, P) “Forward: Law as Equilibrium” (1994) 108 Harv LR 27; “The New Textualism” (1990) 37 UCLA LR 621. Also defending the “dynamic approach”, see Calabresi, G, A Common Law for the Age of Statutes (1982); and, recommending that an unclear statute be treated as a garbled command that leaves the judges with a broad discretion, see Posner, R, The Problems of Jurisprudence (1990) at 267–78. Rejecting the “dynamic interpretation” and defending a textualist approach, see Scalia J’s two Tanner Lectures, published in Scalia (ed), A Matter of Interpretation (1997). Scalia’s argument against dynamic interpretation reworks the case made by Frankfurter, F, “Some Reflections on the Reading of Statutes” (1947) in O’Brian, D (ed), Judges on Judging (1997). The American literature is comprehensively reviewed in Sunstein, C, “Interpreting Statutes in the Regulatory State” (1989) 103 Harv LR 405. The topic has been reviewed within Congress, see Statutory Interpretation and the Uses of Legislative History, Hearings before the Subcommittee on Courts, Intellectual Property and the Administration of Justice of the House Committee on the Judiciary, 101 Cong, 2 Sess (1990).
[17] A claim defended at length in Law’s Empire, id, ch9.
[18] In a recent address to the American Bar Association, “Attacks on Judges – A Universal Phenomenon” (1998) http://www.hcourt.gov.au/maui.html, Kirby J expresses concern about the exposure of contemporary judges in many jurisdictions to intemperate attacks, and criticises the tendency for governments to make political appointments. He canvasses reasons for the changes he disapproves but fails to note an important and simple explanation – many judges are now using common law techniques when reading statutes or a constitution.
[19] There are signs that this is occurring. Our Constitution says nothing about campaign financing, elections or defamation, yet our High Court has recently embraced a conception of representative government that leaves politicians and other public figures vulnerable to personal attacks; and that forbids fair-minded reforms that focus on limiting the influence of money in politics. See: Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 66 ALJR 214; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.
[20] Brown v Board of Education of Topeka [1954] USSC 42; [1954] 347 US 483 (hereinafter Brown).
[21] After Brown, the United States Supreme Court was without political allies, opposed by the President, Congress and various State governments that were forced to desegregate their schools.
[22] The term “colour-blind society” is taken from John Harlan J’s dissenting judgment in Plessy v Ferguson [1896] USSC 151; [1896] 163 US 537. This case allowed racial segregation as long as the separate facilities provided to each racial group are equal. In Brown, Warren CJ was careful not to leave the impression that he meant to overrule Plessy by adopting a “colour-blind” approach. He argued that segregated schooling could never offer African-American children equality because it involved stigmatisation – that “separate but equal” was impossible in schooling. But the effect of Brown has been that segregation is now always viewed as an unacceptable harm. Subsequent cases have established the “colour-blind” rule. See Kull, A, The Colour-Blind Constitution (1992) at 182–224.
[23] Brown involved a novel legal innovation because it offered an interpretation of the Fourteenth Amendment to the United States Constitution that went against everyone’s understanding of the intentions of those who proposed and ratified the Amendment – nobody supposes that Americans in the mid-Nineteenth Century wished to abandon segregation. The Warren Court justices simply read the Amendment as though it had been drafted to deal with problems in the mid-Twentieth Century claiming authority to decide its meaning for the nation, without reference to history.
[24] For some efforts, see Dworkin, Law’s Empire, above n16 at 379–392; Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980) at 75–7.
[25] This is what happened to Justice William Rehnquist at the time of his nomination by President Richard Nixon. He had worked as a clerk for Justice Jackson at the time of Brown and a in memo stated “I think Plessy v Feguson was right and should be re-affirmed”. This statement was held against him, nearly preventing his confirmation. See Davis, S, Justice Rehnquist and the Constitution (1989) at 14. Brown and its companion case Bolling v Sharp [1954] USSC 41; [1954] 347 US 497 were also a very serious problem for Judge Robert Bork when he was nominated to the Supreme Court by President Ronald Reagan. Questioners tried to force him to denounce Brown because of his commitment to the doctrine of originalism as a theory of interpretation.
[26] New York Times Co v Sullivan, [1964] USSC 40; [1964] 376 US 254.
[27] Roe v Wade [1973] USSC 43; (1973) 410 US 113. Almost everyone now concedes that Blackmun J’s opinion in this case is indefensible. But this concession comes only after elaborate theories have been offered to reach the same result with more compelling arguments. See Dworkin, R, Life’s Dominion: An Argument about Abortion and Euthanasia (1995) chs 4, 5 and 6; and Tribe, L, Abortion: The Clash of Absolutes (1990) ch2.
[28] Kairys, D, With Liberty and Justice for Some: A Critique of the Conservative Supreme Court (1993) at 210.
[29] Id at 195.
[30] This point is made by Scalia J in his recent Tanner Lectures, above n16 at 10–12, 46–47.
[31] Ronald Dworkin discusses the case in “How to Read the Civil Rights Act”, above n16, and William Eskridge’s discussion is in “Dynamic Statutory Interpretation”, above n16.
[32] Dworkin calls this the “coherence theory” of legislation: “This supposes that a statute should be interpreted to advance the policies or principles that furnish the best political justification of the statute.” “How to Read the Civil Rights Act” above, n16 at 327. His argument is elaborated in more detail in Law’s Empire, above n16, ch9.
[33] The quotation is Dworkin’s summary, “How to Read the Civil Rights Act”, above n16 at 327. Brennan J’s actual words are: “Congress’ primary concern ‘was with the Negro in our economy’” ((1979) [1979] USSC 144; 443 US 193 at 202, citing Sen Humphrey (1964) 110 Cong Reg at 6548). Nevertheless, the summary accurately links the concerns that Brennan J lists, relating to the high level of unemployment amongst African Americans and the poor prospects they face without adequate training. At one point Brennan J writes: “Congress feared that the goals of the Civil Rights Act – the integration of blacks into the mainstream of American society – could not be achieved unless this trend [high unemployment] were reversed. And Congress recognised that that would not be possible unless blacks were able to secure jobs ‘which have a future’” ((1979) [1979] USSC 144; 443 US 193 at 202, citing Sen Clark 1964) 110 Cong Reg 6548 at 7204).
[34] In Section 703 (a) of Title VII.
[35] Public Law 92–261, 86 Statute 103 (1972); through the addition of Section 703 (j).
[36] Prior to 1974, the Kaiser Aluminium Chemical Corporation had a bad record of discriminating on the basis of race – only 5 of the 273 skilled workers in one plant were black. See Affirmative Action Review; Report to the President (1997) at 3.
[37] Rehnquist J writes: “Reading the language of Title VII [against the background of its legislative history] one is led inescapably to the conclusion that Congress fully understood what it was saying and meant precisely what it said .... The plain language of the statute too clearly prohibited such racial discrimination to admit of any doubt.” [1979] USSC 144; (443 US 193 at 254, 1979).
[38] Dworkin criticises Rehnquist J for relying on controversial claims about Congress’s intentions (“How to Read the Civil Rights Act”, above n16 at 326). But this is a misreading of Rehnquist J’s argument. His opinion is based on a textualist analysis – the words used in Title VII allow no other construction. He draws attention to legislative history only to call into question what he takes to be the controversial and implausible claim that Brennan J makes about legislative purposes.
[39] Rehnquist J writes: “Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities over white persons. In the light of Title VII’s flat prohibition on discrimination ... such a contention would have been, in any event, too preposterous to warrant response.” [1979] USSC 144; (1979) 443 US 193 at 244–5.
[40] In Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (1991), Edsall, T, and Edsall, M, tell us: “In public opinion polls, whites are opposed to black preferences in hiring and job promotion by a margin of 82 to 11, and are against reserving openings for blacks at colleges by a margin of 69 to 22. Blacks favour these programs by, respectively, margins of 57 to 36 and 73 to 24” (at 186, citing the 1986 University of Michigan’s National Election Study survey). In a more recent publication, Sniderman and Piazza report that “The new raceconscious agenda has provoked broad outrage and resentment. Affirmative action is so intensely disliked that it has led some whites to dislike blacks – an ironic example of a policy meant to put the divide of race behind us in fact further widening it” (Sniderman, P M and Piazza, T L, The Scar of Race (1993) at 118).
[41] Brennan J writes: “Had Congress meant to prohibit all race-conscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts.” [1979] USSC 144; (1979) 443 US 193 at 205.
[42] Id at 204, citing remarks of Sen Humphrey, (1964) 110 Cong Rec 6552.
[43] Weber, id at 202.
[44] There is another basis for this conclusion. Brennan J argues that one underlying purpose behind the amendment of the Act (through the addition of Section (j) which forbids the imposition of affirmative action programs) is to protect "traditional management prerogatives". Yet this same purpose would also be served by allowing for voluntary programs. (See [1979] USSC 144; (1979) 443 US 193 at 207) Rehnquist J responds by claiming that the voluntary nature of the Kaiser Aluminium Chemical Corporation’s plan (that is in question in Weber) is a fiction. The company was responding to threats by the Office of Federal Contract Compliance because of the racial imbalance in its work force. [1979] USSC 144; (1979) 443 US 193 at 246.
[45] Dworkin tells us: “Against the background of centuries of malign racial discrimination, phrases like “discriminate against someone because of race” or “deprive someone of an opportunity because of race” may be used in a neutral (or as Brennan put it in his opinion, in a “literal”) sense, so that any racial classification whatsoever is included. Or they may be used (and I think typically are used) in an evaluative way, to mark off racial classifications that are invidious ...” See “How to Read the Civil Rights Act”, above n16 at 318.
[46] As Scalia J notes, “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated”. See Scalia J, above n16 at 17.
[47] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1491, n46.
[48] He allows that when a deal has been struck and a special clause inserted into a statute that reflects this – the example he gives is section 703 (h) of Title VII that “appears to protect good faith seniority arrangements against disruption pursuant to Title VII” – the agreement should be upheld. (See, “Dynamic Statutory Interpretation”, above n16 at 1495). But Eskridge never faces the fact that Title VII, in its totality, reflects deals done within the Congress. Why are some deals upheld whereas others are ignored?
[49] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1492. It is instructive to generalise this proposal. A national health insurance scheme or a work for the dole plan will inevitably rely on optimistic notions that are clearly wrong. But we do not expect courts to reconsider decisions made by elected representatives unless they have very strong reasons for doing this. The task assigned to judges is to uphold laws unless they are manifestly irrational.
[50] Eskridge also thinks it relevant that the Supreme Court failed to force the EEOC to work with the guidelines of Title VII; rather, it encouraged the Commission’s efforts to advance African Americans through affirmative action that relied on racial quotas.
[51] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1493.
[52] The rule in Griggs v Duke Power Co, [1971] USSC 46; (1971) 401 US 424, was changed in Wards Cove Packing Co v Antonio, [1989] USSC 104; (1989) 490 US 642. In amending the Civil Rights Act in 1991, Congress set-out its own statement of the proof that needed to be met in establishing that a company is guilty of discrimination, rejecting the rule established in Wards Cove without fully endorsing the former Grigg’s standard.
[53] See Kull, above n22, ch11 at 182–227.
[54] See the evidence cited above, n40.
[55] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1493–4.
[56] This is the weakness of the approach to affirmative action taken by John Ely, above n24 at 151– 3. It would be fine if a white male like Brian Weber could defend himself through the political process but in most circumstances this is not a convincing assumption. Affirmative action is usually imposed by administrators and managers who are not accountable to the individuals who must necessarily lose-out to make room for those who are selected on the basis of their race or gender.
[57] The discussion is in Eskridge, Dynamic Statutory Interpretation, above n16 at 13–47.
[58] [1987] USSC 43; (1987) 480 US 616.
[59] Eskridge, Dynamic Statutory Interpretation, above n16 at 31.
[60] The metaphor of sequential story-telling is also used by Dworkin, describing “dynamic interpretation” as a chain novel. See Law’s Empire above n16, ch7, especially at 228–32.
[61] In Johnson the justices are seriously divided over what constitutes an acceptable reason for a company using a suspect category of the kind listed under Title VII. Scalia J requires a compelling purpose; O’Connor J requires such a severe statistical imbalance that it is clear there was discrimination against a particular group in the past; Brennan J thinks affirmative action to help minorities is acceptable in most circumstances.
[62] Eskridge, Dynamic Statutory Interpretation, above n16 at 17–25.
[63] Id at 19; see generally at 17–25, and 28.
[64] “For if law’s legitimacy is not mechanically established by a rule’s pedigree or its process of formulation, the interpreter has a grave responsibility to reestablish the productivity of law every time she construes a statute.” Id at 201; see generally at 199–204.
[65] Id at 302. The economic analysis is explained in Epstein, R, Forbidden Grounds: The Case Against Employment Discrimination Laws (1992) ch2; and in Posner, R, “The Efficacy and the Efficiency of Title VII” (1987) 136 U Pa LR 513.
[66] Eskridge, Dynamic Statutory Interpretation, above n16 at 302. Interestingly, in the light of this understanding of what judges ought to be doing, Eskridge should be highly critical of O’Connor J’s opinion in Johnson. In 1987 O’Connor J felt bound by the requirements of stare decisis to uphold Brennan J’s view of how Title VII should be read. Yet it is clear from what she has since revealed in her opinions (see, City of Richmond v Croson, [1989] USSC 15; (1989) 488 US 469 and dissenting in Metro Broadcasting v FCC, [1990] USSC 131; (1990) 497 US 547) that she holds very strong views about the harmful effects of racial preferences. Thus, her decision to follow Weber must fail Eskridge’s test of integrity.
[67] Scalia J has textualist grounds for claiming that the “colour-blind” view he advocates is required by both Title VII of the Civil Rights Act 1964 and by the Equal Protection Clause of the Fourteenth Amendment; so he would be justified in objecting to Eskridge’s charge that he attempts to impose his own values.
[68] Eskridge, Dynamic Statutory Interpretation, above n16 at 199.
[69] Fish, S, There’s No Such Thing as Free Speech and it’s a Good Thing, Too, (1994) at 190–1.
[70] As Fish states, “... hearkening to me will lead to nothing. Hearkening to me, from my point of view, is supposed to lead to nothing. As I say in Doing What Comes Naturally in answer to the question "What is the point?" the point is that there is no point, no yield of a positive programmatic kind to be carried away from these analyses” (id at 307).
[71] Fish, There’s No Such Thing as Free Speech above n69 at 56–7.
[72] Women and minorities comprise less than 25 percent of federal judges in the United States, see Patterson, T E, We the People: A Concise Introduction to American Politics (1995) at 468.
[73] Shetreet, S, “Who will judge: Reflections on the process and standards of judicial selection” (1987) 61 ALJ at 766 citing evidence (at 776) provided by Neumann, E, The High Court of Australia: A Collective Portrait 1903 to 1972, (2nd edn, 1973) at 105–106. The generalisation that Australian judges are drawn from a narrow rather privileged, background remains true today. See also, Pannick, D, “Our judiciary still exists almost exclusively of middle-aged to elderly men who worked as barristers for twenty years or more prior to their appointment” The Judges (1987) at 50.
[74] The materials from this course have been collected and are published with an Introduction by Eskridge, W, Frickey, P, Legal Process: Basic Problems in the Making and Application of Law (1994).
[75] Jeffrey Goldsworthy makes this point, above n9 at 8–12. See also Pearce, D C and Geddes, R S, Statutory Interpretation in Australia (4th edn, 1996) at 22–33.
[76] This distinction has been challenged by John Toohey J who argues that statutes should not be construed, in the absence of compelling evidence, as disturbing fundamental common law principles, “ Government of Laws and Not of Men” (1993) 4 PLR 158 at 170. What Toohey J suggests is that principles of common law he and other contemporary judges approve, and selectively apply, should serve as an implied Bill of Rights. The idea is also promoted by Trevor Allan, “The Common Law as Constitution: Fundamental Rights and First Principles” in Saunders, C, ed, Courts of Final Jurisdiction: The Mason Court in Australia (1996) at 146–67. But this view has been forcefully criticised by Jeffrey Goldsworthy who observes, “Probably the most fundamental principle recognised by common law courts throughout the 19th century was that of the sovereignty of the Imperial Parliament”; See, “Implications in Language, Law and the Constitution”, Lindell, G, ed, Future Directions in Australian Constitutional Law (1994) at 174ff.
[77] [1920] HCA 54; (1920) 28 CLR 129 at 161–2.
[78] Goldsworthy’s list of the more important British authorities (provided above n9, see his n44 at 8) includes: Maxwell, P P, On the Interpretation of Statutes (1875), n40 at 1; Hailsbury’s Laws of England (4th ed) Vol 44, Para 522; Bennion, F, The Interpretation of Statutes (2nd edn 1992) 345–7; P Langan, Maxwell on the Interpretation of Statutes (12th ed 1969) 28; Black, H, Handbook on the Construction and Interpretation of the Laws (1896) 35ff; Singer, N J, Sutherland Statutory Construction (5th edn 1992) Vol 2A at 22–3; Driedger, E, Construction of Statutes (2nd edn, 1983) at 105–6.
[79] Goldsworthy, above n9 at 9, citing Hurst, D J, “The Problem of the Elderly Statute” (1983) Leg Studies 21.
[80] In explaining this point with regard to constitutional law, Goldsworthy draws a distinction between “enactment intentions” and “application intentions”. He writes: “[O]nly the founders’ ‘enactment intentions’ are relevant to the meaning of the Constitution, and not their “application intentions”. The object is to clarify the meaning of the provisions which they enacted, and not to discover their beliefs about how those provisions ought to be applied”. (See above, n9 at 20).
[81] See Pearce and Geddes above, n75 at 24–6.
[82] See Winterton G, “Separation of Judicial Power as an Implied Bill of Rights” in Lindell (ed), above n76 at 198 and n90.
[83] (1996) 141 ALR 129 at 283.
[84] Id.
[85] “Statutory Interpretation, Law Reform and Samford’s Theory of the Disorder of Law”, Part One is published in (1994) 22 Fed LR 116–70 and Part Two in [1974] VicRp 52; (1995) 23 Fed LR 77–132.
[86] Zines, L, The High Court and the Constitution (3rd edn, 1992) at 14.
[87] See Kirby, M, “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, above n10, quoted at 1.
[88] Id at 6.
[89] Hart, H L A, writes: “Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology”, in Preface, The Concept of Law (1961).
[90] Kirby J himself notices the importance of Professor Stone’s influence on younger Australian judges. He writes: “[I]f an explanation for the fundamental changes of approach in the High Court of Australia between the days of Dixon and Stone and the days closer at hand is sought, the explanations are complex. But they include the advent to the Court of Justices who had actually been taught by Julius Stone; ...” (from “Julius Stone and the High Court of Australia”, http://www.hcourt.gov.au/stone.htm at 3).
[91] See, the Postscript appended to Toohey J’s opinion, above n7.
[92] On the specific fears of pastoralists see, above, n6.
[93] As Brennan CJ points out, the presence of indigenous communities would have been anticipated. They were not normally regarded as trespassers: “Unless the lessees took some action to eject them, their presence on the land would have been impliedly consented to .... Nevertheless, ... inhabitants of the land demised became liable to exclusion by the lessee once the lease issued.” (1996) 141 ALR 129 at 154.
[94] Thus, Dawson J writes, “In the Native Title Act case I indicated that I intended to follow the decisions of this Court in Mabo v Queensland (No 1) and Mabo v Queensland (No 2). Following that course, I am able to express my agreement with the judgment of the Chief Justice in these matters.” (1996) 141 ALR 129 at 164. McHugh J simply writes: “I agree with the judgment of Brennan CJ in these matters and with the orders which he proposes.” (1996) 141 ALR 129 at 219.
[95] Their authority on this point is supported by the advice offered by the Attorneys in every state as well as the Commonwealth. It is also supported by the Federal Court of Australia in North Ganalanja Aboriginal Corporation v State of Queensland (1996) 61 FCR 1. It is the understanding expressed by Prime Minister Paul Keating in the House of Representatives. (Keating reassured pastoralists that it is “the government’s view that under common law past valid freehold and leasehold grants extinguish native title”; in his Second Reading Speech on the Native Title Bill, 16 November 1993). M A Stephenson tells us, writing soon after Mabo: “If a lease is granted then native title is extinguished. This would be the case for most pastoral leases in Queensland which are grants of exclusive possession to the tenant, with no qualifications regarding Aboriginal rights of user.” In Stephenson, M A, and Ratnapala, S, (eds) Mabo: A Judicial Revolution (1993) at 111.
[96] Brennan CJ writes: “... the ordinary rules of interpretation require that, in the absence of any contrary indication, the use in a statute of a term that has acquired a technical legal meaning is taken prima facie to bear that meaning” (1996) 141 ALR 129 at 145.
[97] Stephenson, “A New Dimension to Land Tenure” in Stephenson and Ratnapala (eds), above n95 at 111.
[98] As he puts it: “... the limited reservations in the special conditions are not sufficient to avoid the consequence that the traditional rights and interests of the Meriam people were extinguished. By granting the lease, the Crown purported to confer possessory rights on the lessee and to acquire for itself the reversion expectant on the termination of the lease. The sum of these rights would have left no room for the continued existence of rights and interests derived from Meriam laws and customs.” Mabo [1992] HCA 23; (1992) 107 ALR 1 at 53.
[99] This is how I understand Brennan J’s complex statement about “reversion expectant on the termination of a lease” (see full quotation, above n98). By granting a lease, the Crown necessarily takes control of the land and uses it for its own purposes. These purposes are declared in the instrument and radical title is transformed. No common law claims can be sustained on the expiree of the lease, the Crown is now the owner. The leases are not issued on the property of some other owner. (The point is explained by Stephenson, in Stephenson and Ratnapala (eds), above n95 at 111). However, if reservations are contained in the enabling legislation, in terms of which the grant is made, the statutory reservation may be read as indicating that “the Crown’s interest was not intended to be expanded to give absolute and beneficial ownership at the expiree of the lease” (Stephenson, in Stephenson and Ratnapala (eds), above n95 at 111).
[100] I reach this conclusion on the basis of the comment made by Mason CJ and McHugh J summarising the implications of the decision in Mabo [1992] HCA 23; (1992) 107 ALR 1 at 7. Dawson J’s view is expressed at 123. Here, they each declare their agreement with Brennan J’s reasoning in the case.
[101] This was the view of the majority of the Full Federal Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 61 FCR 1, which held that a Queensland pastoral lease gave the lessee the right of exclusive possession. Richard Bartlett offers a different reading of Mabo, suggesting that, “The issue is unsettled because although the majority seem to clearly favour the conclusion that pastoral leases extinguished native title, the reasoning is unconvincing”. (The Mabo Decision (1993) Commentary at xxii.
[102] (1996) 141 ALR 129 at 143. This argument is noted by Kirby J who goes on to provide reasons for rejecting it at 277.
[103] The compelling argument is actually a practical one – that the huge areas of land in question made it unnecessary and very difficult for pastoralist to exclude the Wik and Thayorre peoples.
[104] Gummow J claims that the pastoral leases granted by the Queensland Government were never intended to secure or to allow for the removal of indigenous people from the land as no provision was made for the issuing of warrants to secure this. (1996) 141 ALR 129 at 238–40.
[105] Id at 240.
[106] Id at 250.
[107] Id at 260.
[108] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10.
[109] Id at 8–9. Here, he also refers to the argument he developed in BLF (above n15), quoting extensively from his opinion.
[110] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, id at 9.
[111] Id at 9–13; “Julius Stone and the High Court of Australia” above n90.
[112] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10 at 9–13.
[113] Id at 10–11. This development has been traced in detail by Kirby J, see: “The Impact of International Human Rights Norms: A Law Undergoing Evolution” (1995) 25 West Aust LR, 1.
[114] Apart from his comments on Julius Stone’s work, above n90, Kirby J cites with approval a decision of the Indian Supreme Court which held that the power to amend the Constitution did not include the power to dispense with any of the fundamental human rights stated in it. See “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, above n10 at 12.
[115] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” id at 10.
[116] Ibid.
[117] Ibid.
[118] Id at 13.
[119] (1996) 141 ALR 129 at 269.
[120] Ibid.
[121] This is the opinion of Brennan CJ, above n99. However, he qualifies with the following explanation: “That does not mean that the holders of native title became trespassers. Their continued presence on the land would have been expected and probably known by the lessees. Unless the lessees took some action to eject them, their presence on the land would have been impliedly consented to.” Above n1 at 154.
[122] The Sale of Waste Lands Act Amendment Act 1846. My quotation from this legislation is taken from Kirby J above n1 who provides this phrase at 266.
[123] Id at 266ff.
[124] Despatch No 24, Earl Grey to Sir Charles Fitzroy, 11 February 1848. Quoted by Kirby J, id at 267.
[125] Reynolds, H, The Law of the Land (1992) at 160; see also 128–31. For criticism of Reynolds’ research see, Fulcher, J, “Sui Generis History? The Uses of History in Wik” in Hiley (ed), above n6 at 51–6. Fulcher tries to demonstrate that Grey was a typical Englishman of his time. According to him, Grey thought indigenous peoples had no claim to land on which they had not established a settlement, nor over land which they did not cultivate.
[126] Above n1 at 271.
[127] Id at 275.
[128] Id at 279.
[129] It is interesting to speculate about whether, on Kirby J’s analysis, native title is extinguished in circumstances where rights of access to indigenous people have been included in pastoral leases for specified purposes. In this case, there would be no silence that provides a “leeway” to work in. See, McIntyre, G, “How Wik Applies to Western Australia” in Hiley (ed), above n6 at 27–9.
[130] Above n1 at 281–2.
[131] Id at 284.
[132] Id at 283.
[133] Above n1 at 283, citing Delgamuukw v The Queen in Right of British Colombia (1993) 104 DLR (4th) 470 at 529.
[134] See Harlan Stone J’s famous statement of this position in the US case United States v Carolene Products, Co[1938] USSC 104; , (1938) 304 US 144 at 153.
[135] Scalia J makes these points in his recent Tanner Lectures, above n16; see also Bork, R, The Tempting of America: The Political Seduction of the Law (1990) and Rehnquist, W, “The Notion of a Living Constitution” (1976) 54 Tex LR 693.
[136] Edsall and Edsall, above n40, tell us, “In the 1980 contest, 22 percent of all Democrats defected from their party to vote for Ronald Reagan. This defection rate shot up to 34 percent among those Democrats who believed civil rights leaders were pushing “too fast”....” at 164; on the motivation of the “Reagan Democrats” see ch8. Candidate Clinton was able to persuade many of these “Reagan Democrats” to vote for him in 1992 but only by promising not to question the death penalty, not to be soft on crime, and not to support racial quotas.