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A Supreme Court for the United Kingdom? A view from the High Court of Australia

  • Tracey Stevens (a1) and George Williams (a2)
Extract

The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.

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1. See generally T Blackshield, M Coper and G Williams (eds) The Oxford Companion to the High Court of Australia (Melbourne: Oxford University Press, 2001).

2. Coper, M The seven habits of a highly effective High Court’ (2003) 28 Alternative Law Journal 59.

3. Commonwealth v Bank of NSW (1949) 79 CLR 497 at 639.

4. See, for example, M Coper Encounters with the Australian Constitution (Sydney: CCH Australia, 1987) ch 3; B Galligan Politics of the High Court: A Study of the Judicial Branch of Government in Australia (St Lucia: University of Queensland Press, 1987); G Sawer Australian Federalism in the Courts (Melbourne: Melbourne University Press, 1967); D Solomon The Political High Court: How the High Court Shapes Politics (Sydney: Allen and Unwin, 1999).

5. Compare the famous, but cryptic, statement of Dixon J in Melbourne Corpn v Commonwealth (1947) 74 CLR 31 at 82: ‘The Constitution is a political instrument. It deals with government and governmental powers … It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.’

6. This may be understood as the freedom of the Court from improper pressure from Parliament and the freedom of a judge from improper pressure to hear and decide cases in anything other than an impartial manner. See Sir Anthony Mason ‘The Appointment and Removal of Judges’ in H Cunningham (ed) Fragile Bastion: Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 1997) pp 1, 34–35. This formulation is also adopted by Kate Malleson in the United Kingdom context as ‘individual’ judicial independence or ‘party impartiality’: K Malleson The New Judiciary: the effects of expansion and activism (Aldershot: Ashgate/Dartmouth, 1999) ch 3.

7. As quoted in E Campbell and HP Lee The Australian Judiciary (Melbourne: Cambridge University Press, 2001) pp 6–7.

8. Department for Constitutional Affairs Constitutional reform: a Supreme Court for the United Kingdom CP11/03 (July 2003) p 11.

9. A Deakin Commonwealth Parliamentary Debates 8 (1902) 10,967.

10. See generally J A La Nauze The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1972).

11. The validity of this requirement was affirmed in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194.

12. High Court of Australia Annual Report 2002–2003, Annexure B: Tables of Judicial Workload, pp 97–100.

13. This head of jurisdiction was apparently invoked for the first time in Re East, ex p Nguyen (1998) 196 CLR 354.

14. See Pitfield v Franki (1970) 123 CLR 448; R v Cook, exp Twigg (1980) 147 CLR IS; Re Coldham, exp Brideson (1989) 166 CLR 338.

15. (2000) 204 CLR 82.

16. Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. See D Kerr and G Williams ‘Review of Executive Action and the Rule of Law under the Australian Constitution’ (2003) 14 PL Review 219.

17. This intention is also evident from the requirement in s 64 of the Constitution that ministers of State be members of the federal Parliament.

18. (1931) 46 CLR 73 at 98.

19. R v Kirby ex p Boilermakers' Society of Australia (1956) 94 CLR 254.

20. A-G (Commonwealth) v The Queen [1957] AC 288.

21. See A Lynch ‘The Gleeson Court in Constitutional Law: An Empirical Analysis’ (2003) 26 U New South Wales LJ 32 at 46. For example, in determining the powers that can be conferred upon a non-judicial tribunal, see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; A-G (Cth) v Breckler (1999) 197 CLR 83.

22. (1997) 189 CLR 51 at 116.

23. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 at 25.

24. La Nauze, n 10 above, pp 248–269. The House of Lords has also been important in the development of the common law in Australia. In Piro v Foster (1943) 68 CLR 313, Latham CJ stated that the High Court should defer to the House of Lords on matters of legal principle. This position changed in Parker v The Queen (1963) III CLR 610, when the High Court stated that it would follow its own decision over a conflicting decision of the House of Lords.

25. In A-G (Cth) v Colonial Sugar Refining Co Ltd [1914] AC 237.

26. See generally A R Blackshield The Abolition of privy Council Appeals Adelaide Law Review Research Papers no 1 (1978).

27. The 1968 Act was held valid (by the Privy Council) in Kitano v Commonwealth [1976] AC 99. The 1975 Act was held valid (by the High Court) in A-G (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161.

28. (1978) 141 CLR 88.

29. (1968) 122 CLR 556 at 563.

30. (1966) 117 CLR 118.

31. (1979) 145 CLR 246.

32. H Patapan Judging Democracy: The New Politics of the High Court of Australia (Victoria: Cambridge University Press, 2000) p 42. See ch 3 for discussion of the philosophical and political traditions of the framing of the Constitution and Australia's parliamentary structure.

33. Sir Robert Menzies Central Power in the Australian Commonwealth (London: Cassell, 1967) p 34.

34. See generally G Williams Human Rights under the Constitution (Melbourne: Oxford University Press, 1999).

35. See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 136, per Mason CJ.

36. See the watershed decision in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129. See generally M Coper and G Williams (eds) How Many Cheers for Engineers? (Sydney: Federation Press, 1997).

37. For example R v Burgess, ex p Henry (1936) 55 CLR 608; Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29.

38. S Gageler ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162 at 176. See also G Craven ‘The Crisis of Constitutional Literalism in Australia’ in H P Lee and G Winterton (eds) Australian Constitutional Perspectives (Sydney: Law Book Co, 1992) p 1.

39. ‘Swearing in of Sir Owen Dixon as Chief Justice’ (1952) 85 CLR xi at xiv.

40. Australian Communist Party v Commonwealth (1951) 83 CLR I.

41. G Winterton The Significance of the Communist Party Case (1992) 18 Melb ULR 630 at 653. See G Williams Reading the Judicial Mind: Appellate Argument in the Communist Party Case (1993) 15 Syd LR 3; G Williams ‘The Suppression of Communism by Force of Law: Australia in the Early 1950s’ (1996) 42 Australian Journal of Politics and History 220. Compare R Douglas A Smallish Blow for Liberty? The Significance of the Communist Party Case (2001) 27 Monash ULR 253.

42. L F Crisp Ben Chifley: a political biography (London: Angus & Robertson, 1977) p 390.

43. Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 187–188, per Dixon J: ‘History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend.’

44. See S Gageler ‘Legalism’ in Blackshield, Coper and Williams, n 1 above, p 429.

45. (1975) 133 CLR 369.

46. (1975) 133 CLR 369 at 388.

47. For example, Buck v Bavone (1976) 135 CLR 110 at 137.

48. Taylor v Taylor (1979) 143 CLR 1 at 20.

49. Sillery v The Queen (1981) 180 CLR 353 at 362.

50. (1986) 161 CLR 556 at 581–582.

51. (1986) 161 CLR 556 at 579. For further criticism, see P Bickovskii ‘No Deliberate Innovators: Mr Justice Murphy and the Australian Constitution’ (1977) 8 Federal Law Review 460; G Winterton ‘Extra-Constitutional Notions in Australian Constitutional Law’ (1986) 16 Federal Law Review 223.

52. (1992) 177 CLR 106.

53. See, on the influence or otherwise, of the decisions of Justice Murphy on the subsequent High Court, M Coper and G Williams (eds) Justice Lionel Murphy - Influential or Merely Prescient? (Sydney: Federation Press, 1997).

54. See, for example, C Saunders (ed) Courts of final jurisdiction: the Mason Court in Australia (Sydney: Federation Press, 1996).

55. Sir Anthony Mason ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience’ (1986) 16 Federal Law Review 1 at 5.

56. (1992) 75 CLR 1.

57. Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, where the Court derived an implied right to political communication from the Constitution.

58. (1992) 177 CLR 292. In this decision the Court set out the right to legal representation in a criminal trial.

59. (1995) 183 CLR 273. In this case the Court developed the concept of ‘legitimate expectation’ and expanded the role of international law in Australian domestic law.

60. M Dillon and J Doyle ‘Mason Court’ in Blackshield, Coper and Williams, n I above, p462.

61. G Gallop ‘The High Court; usurper or guardian?’ (1995) 9(2) Legislative Studies 62.

62. See, for example, O H Lane ‘The Changing Role of the High Court’ (1996) 70 Australian Law Journal 246.

63. See Sir Anthony Mason, n 55 above: ‘it is impossible to interpret any instrument, let alone a constitution, divorced from values. To the extent they are taken into account, they should be acknowledged and should be accepted community values rather than mere personal values.’ Compare A Lynch ‘The High Court - Legitimacy and Change: Review Essay’ (2001) 12 Federal Law Review 1 at 5.

64. (1997) 189 CLR 520.

65. (1997) 189 CLR 579.

66. A Stone ‘Freedom of Political Communication’ in Blackshield, Coper and Williams, n 1 above, pp 536–537.

67. See A Lynch ‘The Gleeson Court in Constitutional law: An Empirical Analysis’ (2003) 26 U New South Wales LJ 32 at 47.

68. See, in the context of native title, Brennan, S Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 PL Review 209.

69. Heydon, D Judicial Activism and the Death of the Rule of Law’ (2003) Quadrant 9 at 17 .

70. Chief Justice Gleeson The Rule of Law and the Constitution, Boyer Lectures 2000 (Sydney: ABC Books for the Australian Broadcasting Corporation, 2000) pp 1, 69.

71. (1996) 187 CLR 1.

72. Quoted in Justice Michael, Kirby Attacks on Judges - A Universal Phenomenon’ (1998) 72 Australian Law Journal 599 at 601.

73. Hands, T and Davies, D Defend Thyself!‘(2003) 28 Alternative Law Journal 65 at 66.

74. See G Williams ‘The High Court and the Media’ (1999) 1 UTS LR 136; J Waterford ‘Media and the Court’ in Blackshield, Coper and Williams, n 1 above, p 469.

75. Bank of NSW v Commonwealth (1948) 76 CLR 1.

76. Australian Communist Party v Commonwealth (1951) 83 CLR 1.

77. Commonwealth v Tasmania (1983) 158 CLR 1.

78. (1998) 195 CLR 337.

79. See, for example, Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

80. See Justice Michael McHugh ‘Tensions Between the Executive and the Judiciary’ (2002) 76 Australian Law Journal 567.

81. High Court of Australia ‘Media Releases’ (2002), availableatwww.hcourt.gov.au/ publications_04.html as at 16 November 2003.

82. See Justice P W Young ‘Current Issues’ (2002) 76 Australian Law Journal 277.

83. Statement by the Judicial Conference of Australia extracted in Young, n 82 above n, at 278–281.

85. The current practice of the Court is that all seven judges sit on cases of constitutional or other importance.

86. J Popple ‘Number of Justices’ in Blackshield, Coper and Williams, n 1 above, p505.

87. Constitution, s 72(i).

88. Constitution, s 72(ii).

89. High Court judges appointed before 1977 held office for life, whereas those appointed after that, as a result of a successful referendum in that year to change s 72 the Constitution, hold office until the age of 70.

90. High Court of Australia Act 1979, s 7.

91. S Evans ‘Appointment of Justices’ in Blackshield, Coper and Williams, n 1 above, p 21.

92. Evans, n 91 above.

93. D Williams ‘High Court Appointment’ Transcript of Interview with John Mangos, Sky News, 17 December 2002, available at http://www.ag.gov.au as at 16 November 2003.

94. D Williams ‘Judicial Independence and the High Court’ (1998) 27 Western Australian LR 140 at 149.

95. F Dominello and E Neumann ‘Background of Justices’ in Blackshield, Coper and Williams, n 1 above, p 48.

96. Sir Anthony Mason, n 6 above, p 7.

97. High Court of Australia Act 1979 (Cth), s 11 and Schedule.

98. Commonwealth Senate Standing Committee on Legal and Constitutional Affairs Gender Bias and the Judiciary (Canberra: The Committee, 1994) p 91.

99. Women accounted for 20.9% of the judiciary overall as at 30 May 2002: R Davis and G Williams ‘A Century of Appointments but Only One Woman’ (2003) 28 Alternative Law Journal 54.

100. Women accounted for 14.6% of all superior federal (High Court, Federal and Family Court) and superior State and Territory court (Supreme Court and Court of Appeal) judges as at 27 March 2003: Davis and Williams, n 99 above.

101. T Simpson ‘Appointments that Might Have Been’ in Blackshield, Coper and Williams, n 1 above, p 23.

102. Simpson, n 101 above, p 27.

103. Sir Harry Gibbs ‘The Appointment of Judges’ (1987) 61 Australian Law Journal 7 at 9.

104. Sir Garfield Barwick, quoted in M Spry ‘Executive and High Court Appointments’ in G Lindell and R Bennett Parliament: The Vision in Hindsight (Sydney: Federation Press, 2001) pp 419, 447.

105. Bruce, Justice Pherson, Mc Response from the JCA’ (July, 1999) 25 Law Institute Journal 23 at.

106. Davis, R and Williams, G Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27 Melb ULR 819.

107. Sir Garfield Barwick ‘The State of the Australian Judicature’ (1977) 51 Australian Law Journal 480 at 494.

108. Commonwealth Senate Standing Committee on Legal and Constitutional Affairs, n 98 above.

109. Australian Law Reform Commission Equality Before the Law: Women's Equality Report no 69, Part II (Canberra: Australian Law Reform Commission, 1994) p 202. See also S Tongue ‘The Courts as Interpreters of Community Values’ (1995) 9(2) Legislative Studies 45 at 49–50.

110. Commonwealth Attorney-General's Department Judicial Appointments - Procedure and Criteria (1993). See also J Basten ‘Judicial Accountability: A Proposal for a Judicial Commission’ (1980) 52(4) Australian Quarterly 477; A Rose ‘The Model Judiciary - Fitting in with Modem Government’ (1994) 4 Judicial Review 323; G Winterton ‘Appointment of Federal Judges in Australia’ (1987) 16 Melb ULR 185 at 209–211.

111. The Consultation Paper suggests that members of the Supreme Court should not be able to sit and vote in the House of Lords while members of the Court: Department for Constitutional Affairs, n 8 above, p 27.

112. See Question 8, Department for Constitutional Affairs, n 8 above, p 28.

113. See Question 9, Department for Constitutional Affairs, n 8 above, p 28.

114. See Question 7, Department for Constitutional Affairs, n 8 above, p 28.

115. Department for Constitutional Affairs Constitutional Reform: A New Way of Appointing Judges CP 10/03 (July 2003).

116. Department for Constitutional Affairs, n 115 above, pp 3–4.

117. Department for Constitutional Affairs, n 8 above, p 30.

118. Department for Constitutional Affairs, n 115 above, p 18.

119. Department for Constitutional Affairs, n 8 above, p 11.

* Parts of this paper have been developed with the assistance of T Blackshield and G Williams Australian Constitutional Law and Theory: Commentary and Materials (Sydney: Federation Press, 3rd edn, 2002); and R Davis and G Williams ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27 Melbourne ULR 819.

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