Judicial life is perhaps one of the most individual – and lonely – of professional callings. On appointment, a judge takes an oath to ‘do right to all manner of people according to law without fear or favour, affection or ill-will.’1 At that moment, she shoulders an individual responsibility to meet the highest expectations of the law.2 This expectation, and concomitant scrutiny, will continue throughout the judge’s career. Legal, political and public commentary may welcome her on appointment, examining the appropriateness of her credentials, experience and political neutrality. There may be ongoing critique of the quality of her judicial conduct in court, her decisions and reasoning, all of which must, subject to few exceptions, be performed in the public eye. Even upon her retirement, her conduct and any transgressions it reveals, may be the subject of critical public comment. In performing her institutional role, the judge is afforded no personal anonymity.

Two High Court chief justices may be considered candidates for the title of 'Australia’s Towering Justice’: Sir Owen Dixon and Sir Anthony Mason. Dixon’s claim to the title lies in his articulation of a formalistic doctrinal methodology – ‘Dixonian legalism’ – which held firm for decades. Mason’s claim lies in his unshackling of the Court from legalism, and his reconceptualising of the Court’s role within the Australian system of government. This heralded a form of realism that led to the development of doctrines, some first propounded by Dixon himself, that would progress individual liberties and democratic participation in a constitutional system lacking comprehensive rights protections. This chapter claims that Mason’s legacy is the most important today. His Court’s methodological realism and explicit acknowledgement of values and policy in judicial decision-making, and the doctrinal development that gave the Australian ‘people’ constitutional status and protections, all continue to shape modern constitutional law and debates over the judicial role and method. It is against Mason and the jurisprudence of his Court that modern legalists must now define – and defend – themselves.

This chapter re-evaluates the idea of the “electoral fallacy” – idea that academics and policy makers mistake elections for democracy, and in so doing exaggerate the importance of the polls. We agree that there has long been a tendency to place unrealistic expectations on the electoral process, but reject the argument that elections are unimportant when they don’t lead to political change. The great weakness of some critiques of elections that have emerged over the last twenty years – the fallacy of the fallacy – is that they have underestimated the impact of elections by misleadingly narrowing this down to the question of whether the polls result in a transfer of power. Elections have multiple, sometimes contrary effects. By creating space for politicians and voters to make reciprocal claims to patrimonial virtue they may encourage people to think of themselves primarily as members of more local communities, demanding a very personal and local accountability. But the rhetoric of campaigns and elaborate technology of elections may also encourage voters to think and behave as national citizens. In this way, electoral processes perpetuate existing forms of power at the same time as they highlight problems with, and impose constraints on, that power. Consequently, elections matter – even when they don’t change the government.

This chapter lays the foundation for what comes next by providing a summary discussion of the electoral history of each country. Intended partly to introduce names, events, dates and institutions that will be reappear in subsequent chapters, it also sets out a central element of our argument: that the history of elections has been shaped by a chronic tension between two alternative registers of virtue: a patrimonial register that revolves around reciprocity and personal relations; and a civic register that exalts bureaucratic order and emphasises the moral claims of national citizenship. The electoral histories shaped by that tension in the three countries may seem to follow different trajectories, yet they share significant features. In all three, electoral politics has continued to revolve around securing access to the resources controlled by ‘the government’; in all three, the same chronic tension persists – between elections as manifestations of civic order, and as sites for an intense local politics of clientelism and redistribution. Finally, all three continue to see high levels of electoral participation that shape political subjectivity. Widely understood as a site for moral claims-making as well as political competition, elections underwrite – albeit in a contingent way - the legitimacy of the state.