by Reginald S. Sheehan, Rebecca D. Gill and Kirk A. Randazzo. Durham, N.C.: Carolina Academic Press, 2012. 216pp. Paper $30. ISBN 978-1-61163-207-1.
Reviewed by Peter Cane, Australian National University College of Law. Email: peter.cane [at] anu.edu.au.
The main value of this book probably lies in the illustrations it provides of pitfalls and challenges, for political scientists in particular, of studying legal institutions comparatively using quantitative social-science methodology. Indeed, so successful is the book in this respect that it is not possible, even in a review as long as this, properly to discuss all its shortcomings. I should say at the outset that I am not practised or expert in quantitative social-science methodology, but I am an avid consumer of empirical research, convinced of the value it adds, at its best, to our understanding of law and legal institutions. I am currently engaged in a large-scale comparative study of formal controls on public administration in England, the US and Australia using traditional socio-legal and legal-historical methods.
Sheehan, Gill and Randazzo do not present their project as primarily comparative. Their main subject is the High Court of Australia, and they do not (set out to) compare that court directly or systematically with any other. However, the study is comparative in two important ways. First, the theoretical framework of the analysis is derived chiefly from literature concerned with the US Supreme Court and, to a lesser extent, the Supreme Court of Canada. Secondly, (as far as I can tell) none of the authors is Australian, or lives and works in Australia, although one (Reginald Sheehan) ‘has taught study abroad at the University of New South Wales and Australia [sic] National University for 15 years’ (p.ix). Studying the legal institutions of a system other than the researcher’s own is necessarily an exercise in comparison because the researcher inevitably brings to the project the intellectual and cultural understandings and assumptions acquired by upbringing and education in their own country. Because law is a highly culturally-specific phenomenon, studying foreign law and legal institutions comparatively is rather like learning a foreign language. Conceptual fluency and the ability to think in new and unfamiliar ways are difficult and time-consuming achievements without which much will be lost in translation. These authors have so seriously misunderstood the Australian systems of law and government, and the nature and function of the High Court of Australia, that their book, while offering little or nothing to the Australian reader (except annoyance and frustration), will misinform and mislead those seeking knowledge of the High Court or robust insights into the comparative study of supreme courts.[*111]
To begin, let me get some minor irritants (‘clangers’, as Andrew Lynch (2014, p.467) calls them) out of the way. Australia has never had a Prime Minister by the name of ‘Frasier’ (p.47); nor a Prime Minister called ‘Douglas Menzies’ (pp.24, 41). Douglas Menzies was a Justice of the High Court from 1958 to 1974. The authors confuse him with Robert Menzies who was, indeed, Prime Minister of Australia from 1939 to 1941 and again from 1949 to 1966. Nobody by the name of ‘Stephens’ (p.47) has ever been a Justice of the High Court; and the Justice by the name of ‘Jacobs’ was known as ‘Kenneth’, not ‘Sydney’ (his second name) (p.45). William Deane was knighted by the Queen of Australia (see the Royal Style and Titles Act 1973 (Cth)), not by ‘the Queen of England’ (p.47). (Incidentally, Queen Elizabeth II is (also) Queen of the United Kingdom, not of England.) The ‘Judicial Council [sic] of the Privy Council’ is not a ‘division of the British House of Lords’ (p.15). The Judicial Committee of the Privy Council is a committee of the Privy Council, which is (and has been since medieval times) a body separate and distinct from the House of Lords. The High Court’s power of judicial review of legislation derives not from an Act of the Australian Parliament (p.14) but from the Australian Constitution. Were this not so, the power could be abolished by statute! The High Court does not have, and did not acquire during Sir Garfield Barwick’s tenure as Chief Justice, ‘administrative control over the affairs of the Australian judiciary’ (p.42), whatever that means. The High Court did not, in MABO V. QUEENSLAND, determine ‘that pastoral leases did not necessarily extinguish native title’ (p.58). England does not have ‘Courts of Appeals’ (p.93) but a (single) Court of Appeal.
Individually, none of these mistakes is consequential for the main arguments of the book. However, cumulatively they create a general impression of carelessness (at least) and engender a lack of confidence in the Australian reader that the authors know what they are talking about. To make matters worse, the book is littered with typographical errors and more-or-less meaningless sentences, and the list of references is incomplete (eg Flemming and Krutz 2002, cited at p.65, is not included).
The research reported in this book revolves mainly around two incidents in the recent history of the High Court: the statutory process of abolishing appeals as of right, which began in the 1970s and was completed in 1984; and the Court’s 1992 decision in MABO V. QUEENSLAND. Abolition of appeals as of right significantly increased the Court’s control over its list (‘docket’). In MABO the Court abandoned the long-accepted claim (or ‘assumption’, but not ‘policy’ (p.26)), based on English common law, that the colonisation of New South Wales in 1788 involved ‘peaceful settlement of an empty land [terra nullius] rather than … conquest or cession by the original occupiers’ (Kercher 1995, p.4), thus denying any property rights to the indigenous inhabitants. The authors’ hypothesis (as I understand it) is that these two events significantly contributed to the ‘judicialization of politics’ (or, more aptly, the ‘politicisation of judging’) in the High Court.
Abolition of rights of appeal, they argue, [*112] had this effect by – as it were – enabling the Court to take ‘political’ significance into account in choosing the cases it would hear. MABO, they say, enabled and encouraged the Justices to take an approach to legal reasoning that placed less backward-looking emphasis on ‘law’ (Constitutional and statutory text, and decisions in earlier cases) and instead placed more forward-looking emphasis on ‘policy’ and the outcomes of cases. (Incidentally, the authors do not always clearly distinguish between cases involving the common law on the one hand, and the Constitution and statute on the other (eg pp.26, 53) – a distinction less clearly drawn in US law but which importantly affects performance of the judicial function in Australia). MABO had this effect, they suggest (or imply), by virtue of the fact that in reaching and justifying its decision the Court (or, more precisely, the Justices) relied considerably on changes in cultural values between the time of colonisation and the late twentieth century. Put crudely, the Court brought the law up to date. MABO generated great controversy partly because of its outcome (the recognition of ‘native title’) and partly because of the reasoning of the Justices in support of that result. It is unlikely that the reasoning would have been as controversial if the outcome had not been so highly contested.
Looking in more detail at the abolition of appeals as of right, Sheehan, Gill and Randazzo claim that this development had an effect on both the number and the type of cases decided by the Court. Concerning the number of cases decided, they report ‘a general decline over the entire time span [covered by the project: 1970-2003], with a pronounced drop following the institutional shift to completely discretionary jurisdiction for the High Court’ (p.67). This statement is problematic for at least two reasons. The less important is that (contrary to the repeated assertions of the authors, only once suitably qualified (p.14, n.9)) the abolition of appeals as of right did not give the High Court complete control over its business. The High Court has both original and appellate jurisdiction. Certain heads of its original jurisdiction are constitutionally entrenched and others are statutory. For instance, cases to which the Commonwealth is a party and certain claims for judicial review of Commonwealth administrative action fall within the Court’s constitutionally-guaranteed original jurisdiction (the judicial review jurisdiction was provided for in the Constitution to prevent a repeat of MARBURY V MADISON in Australia). Leave of the Court is not needed to commence a claim in its original jurisdiction, whether constitutional or statutory. The Court can remit cases commenced in its original jurisdiction to other courts with federal jurisdiction – most notably, since 1977, the Federal Court (not ‘Courts’: p.65) of Australia. However, this is not always appropriate or, indeed, possible. For instance, in the late 1990s (ie within the period covered by the research), the High Court was flooded with immigration cases brought in its original jurisdiction because, as a result of statutory changes, they could no longer be brought in the Federal Court. Ironically, MABO itself was commenced in the original jurisdiction of the High Court in 1982, remitted to the Queensland Supreme Court for fact-finding in 1986, and returned to the High Court for hearing in 1991.
The second problem with the claim of a [*113] decline in the volume of decided cases is much more significant. The source of the data provided about the number of cases decided per year is not stated. I was so taken aback by learning from Figure 4.1 (p.68) that the High Court decided only about 17 cases in 2003 that I decided to organise a quick count of cases reported in the Commonwealth Law Reports (CLRs), which are the official reports of decisions of the High Court. Because decisions of the Court are not automatically reported in the CLRs (only those considered to be of ongoing significance make the cut) and because some decisions appear in volumes of the CLRs other than those relating to the year in which they were decided, my figures may under-state the total number of cases decided in any one year. But this does not matter because in every instance, my figure is higher than that given in the book. Fifty-one cases are indexed in the relevant volumes of the CLRs as having been decided by the court in 2003. Taking other years at random, whereas Figure 4.1 indicates that the Court decided about 31 cases in 1998 and 25 in 1994, about 62 cases and 50 cases respectively are reported in the CLRs for those years. Looking at the years around 1984, which the authors identify as the date of the abolition of appeals as of right, Figure 4.1 indicates that the Court decided some 37 cases in 1981, 40 in 1982, 22 in 1983, 33 in 1984, 34 each in 1985 and 1986, and 29 in 1987; whereas in the CLRs, about 75 cases were reported in 1981, 78 in 1982, 47 in 1983, 69 each in 1984 and 1985, 66 in 1986 and 63 in 1987. To make matters worse, whereas Figure 4.1 indicates that in the years 2000-2003 the Court decided about ninety cases (as against 205 reported in the CLRs), Table 4.1 (p.68) indicates that it decided 142 cases in that period. On the basis of these figures, the statement that abolition of appeals as of right produced a ‘pronounced drop’ in cases decided by the court seems overstated at best. The discrepancies between the figures given in the book and the number of cases reported in the CLRs, coupled with internal inconsistency in reporting the figures, cast grave doubt on the reliability of any of the authors’ conclusions that depend on a count of the number of cases decided by the Court during the period covered by the research. Furthermore, they give the lie to the claim that ‘[t]he book provides the first comprehensive examination of the business of the High Court’ (p.7). The best that can be said is that a quantitative methodology is, in principle, appropriate to determining the amount of business before the Court.
Let us now turn to the claim that abolition of appeals as of right affected the type of cases decided by the Court and, in particular, that it enabled and encouraged the court to choose cases that provided ‘opportunities for the judges … to meaningfully engage in political discourse’ (p.65), ‘to exercise judicial power actively in the political arena in pursuit of the justices’ favored policy outcomes’ (p.168), and to insert themselves ‘into the arena of policymaking … usually reserved for majoritarian and elected branches of government (p.169). To test this claim, purely quantitative methodology is inadequate because before counting can begin, appropriate cases must be identified as providing such opportunities. Crudely put, cases must be coded according to the issues they raise, and a judgment must be made about which issues and cases provide the [*114] judges with ‘political’ opportunities. Sheehan, Gill and Randazzo define the relevant cases as those dealing with issues of ‘individual rights’ (p.65). However, the reader is not clearly told how such cases are to be (or were) identified.
Decided cases are classified in various ways in the course of the book. For example in Table 4.1 (p.68), the categories used are ‘criminal law’, ‘civil liberties’, ‘administrative law’, ‘economic and torts’, and ‘other’. In Figure 4.3 (p.70) another category of ‘government regulation’ is added. In Table 4.3 (p.73), ‘immigration and citizenship’ appears as a sub-category of government regulation, while later in the book ‘immigration cases’ appear to be treated as raising issues of ‘individual human rights’. In Figure 4.6, ‘motor vehicle tort cases’ appear as a sub-category of ‘private economic cases’ along, for instance, with ‘breach of contract’ and ‘corporate law’. In the Figure 4.7 (p.75), a category of ‘constitutional review’ is introduced, and in Figure 4.8 (p.76) yet another category of ‘national and state action review’. Table 4.5 (p.78), which reports the results of a regression analysis, uses the categories of ‘criminal cases’, ‘civil liberties cases’, ‘government regulation cases’ and ‘economic cases’. In Chapter 7, in the section dealing with the votes of individual Justices, a new category of ‘public law cases involving the federal government and the state government [sic]’ is introduced (p.138). In this context, too, it is apparently suggested that ‘tort cases’ should be classified as ‘individual rights cases’ because tort law can be used to protect civil liberties and other individual rights (pp.154-5). However, no attempt is made, either in the discussion or, apparently, in the quantitative analysis, to distinguish between such cases and, for instance, those arising out of accidental personal injury. As a result of lack of information and clarity about the coding and classification of cases (the codebook referred to at p.9, n.4 offers no additional help (see also pp.67-69); and, for technical reasons, I was unable to access the High Court Database referred to at p.8, n.2)), it is extremely difficult for the reader to have confidence in the conclusions of the quantitative analysis of cases decided by the court and to assess the validity of the claim of politicisation.
On the basis of the quantitative analysis, it is claimed that abolition of rights to appeal resulted in an increase of 12.6% in the proportion of criminal cases and an ‘increase in civil liberties cases’ of less than 1% (p.77). Sheehan, Gill and Randazzo further claim that these results ‘support our contention that [abolition of rights of appeal] lead [sic] to an increase in the number of individual rights cases appearing on the agenda of the High Court of Australia’ (p.77). Assuming robust coding, it might be accepted that cases coded as involving ‘civil liberties’ qualify as ‘individual rights’ cases. On the other hand, the significance of an increase of 1% in the proportion of such cases may be contestable even if it is accepted that such cases provide judges with the opportunity to engage in political discourse. It is much harder to accept categorisation of criminal cases generally as individual rights cases. Without a much closer analysis of the issues involved in criminal cases, it is impossible to know how many of them raise issues of individual rights in any sense that would be commonly [*115] recognised as political. Many criminal cases raise issues of evidence, sentencing and the definition of offences that would not normally be thought of as providing opportunities for engaging in political discourse. Indeed, the authors note a ‘decline in cases involving … political crimes’ over the period covered by the research (p.71). It should also be borne in mind that criminal procedure is much less constitutionalised in Australia than in US and, therefore, perhaps less politicised.
This last observation leads to a more general worry about the way cases were coded for the purposes of this research. For instance, the category of ‘government regulation’ is salient in the US context because regulation is the dominant form of government involvement in social and economic affairs, and administrative law is largely conceived and understood in terms of regulation. By contrast, in Australia the role of government as provider of services is at least as prominent as its role as regulator in both legal and wider cultural images and understandings. The impact of US ways of thinking may also explain the choice of the incidence of individual rights cases as a proxy for politicisation. As the authors note at various points, Australia has no Bill of Rights and the Australian Constitution contains very few rights-related provisions. As also noted, in the early 1990s the High Court did find rights related to voting and political communication implicit in the structure of the Constitution, but this development appears to have run its course. We may, therefore, be sceptical of the authors’ claim to have uncovered a significant increase in individual rights cases before the High Court and the further claim that this shows High Court Justices grasping opportunities presented by the abolition of appeals as of right to engage more, and more actively, in political discourse and the political arena.
Before leaving this issue, the authors’ apparent claim, that they have found a causal relationship between abolition of appeals as of right and an increase in individual rights cases in the High Court’s list, deserves some comment. It is certainly intuitively plausible that the introduction of a requirement of leave to appeal would have some effect on the business of the Court. However, there are various other factors that may also have had an impact – most notably, perhaps, the abolition of all appeals from the High Court to the Privy Council by 1975, the establishment of the Federal Court of Australia in 1977 and the enactment of the Australia Acts in 1986. The design of this study does not enable the impact of the abolition of appeals as of right to be isolated from the possible impact of these other factors. Moreover, it is by no means clear that the impact of the introduction of the leave requirement on the Court’s business can be properly understood without studying the leave process itself. Suppose, for the sake of argument, that there was a significant increase in individual rights cases in the High Court’s list after 1984. In order to determine whether the relationship between such an increase and the introduction of the leave requirement was causal or merely associational, it would be necessary to examine the criteria for the granting of leave and the way those criteria were applied (as does Flemming 2004, for instance; that the authors have not done this is shown by an extraordinary speculation (p.75) combined with an empirical observation [*116] (p.79) and an unanswered question (p.85)). It might also be useful to analyse the content of relevant decided cases for any indications of the influence of the leave requirement on the way the Justices perform their judicial functions.
Let us now move to the claim that the decision in MABO led to an increase in political discourse in judgments of Justices of the Court. This is a very different sort of claim from that about the abolition of appeals as of right. Sheehan, Gill and Randazzo describe the abolition of appeal rights as an ‘institutional’ event, but the decision in MABO as a ‘doctrinal’ or ‘philosophical’ change (p.7). One would expect that the methodology and evidence appropriate for testing this claim would be different from that used for testing the claim about the volume and nature of the High Court’s business because the former claim concerns the reasoning of Justices in their judgments in individual cases, not the number of decisions of the Court in total and in various ‘subject’ categories.
Several sorts of evidence are offered in support of the claim about the effect of MABO. First, we are told that following the decision in MABO ‘the justices increased the proportion of criminal cases on the docket by 1%’ and ‘the High Court’s civil liberties agenda increase [sic] by 1.6%’ (p.77). Secondly, as a result of an analysis of the characteristics of successful parties before the Court, it is claimed that the success rate of ‘individuals’ (by which the authors appear to mean natural persons as opposed to artificial persons) who are represented by barristers who have a track record of experience and success before the Court ‘increases tremendously’ (p.106). From this, it is concluded that ‘the High Court’s use of policy-oriented activism in MABO significantly and positively affected the ability of barristers representing individuals to craft new legal arguments in favour of their clients’ (p.107). Thirdly, on the basis of an analysis of various personal characteristics of individual Justices and of their voting patterns, the authors claim that after the decision in MABO, Justices appointed by a Labor government ‘are more than twice as likely to vote to overturn government action as compared to their … colleagues’ appointed by a Liberal (i.e. conservative) government, while judges ‘from New South Wales are more than three times as likely to overturn the government’s policies’ as judges from other States (p.160). Furthermore, in tort cases (‘which tend to be important vehicles for individual rights claims’ (p.160)), judges appointed by a Labor government and New South Wales judges are six-and-a-half times more likely to cast ‘an activist [or ‘liberal’ or ‘progressive’] vote’ (p.160), by which is meant a vote in favour of an individual.
Let us examine each of these types of evidence in turn. As for the increases in the proportion of criminal and civil liberties cases in the Court’s list, even leaving aside the doubts earlier expressed about such evidence, there is nothing in the methodology used that would justify the conclusion that the increase was caused by the decision in MABO rather than merely associated with it. Nor, indeed, is the research design apt to resolve the question of whether MABO is better understood as a cause rather than symptom or consequence of ‘politicisation’ (or neither). Secondly, the evidence provided is incapable of [*117] supporting the assertion that the increased rate of success of individuals before the High Court after MABO was significantly attributable to the effect of that case on the ability of barristers to craft new and successful types of (policy-based) arguments in individual rights cases. Analysis of the content of transcripts of argument before, and judgements of, the Court would be needed to test this hypothesis. No such evidence is provided.
The evidence relating to the personal characteristics of Justices raises a host of issues that cannot be addressed here. However, even leaving aside general questions about the relative value of legal materials on the one hand and judicial characteristics on the other in explaining the outcomes of cases (a topic inconclusively discussed at pp.131-138), it is highly doubtful that ‘political affiliation’ (understood as a function of the appointing government) and geographical association have the salience in Australia that they appear to have in the US. The authors note that the judicial appointments process in Australia is very different from that in the US but they do not discuss what impact this might have on the explanatory value of political affiliation as they define it. Although appointments to the High Court are in the discretion of the government, the fundamental criterion for appointment is ‘merit’, and formally taking account of a candidate’s supposed political affilation is generally considered an inappropriate and improper use of the appointment power. Moreover, in identifying any such affiliation, whether or not a Justice has been active in party politics is generally considered much more relevant than whether they were appointed by a Labor or Liberal government. In this respect, Sheehan, Gill and Randazzo record, in Chapter 3 (Tables 3.1-3.5), whether or not, before appointment, a particular Justice had served either as an Attorney-General or a Solicitor-General; but no other form of political activity is tracked. Furthermore, it is a mistake to treat the offices of Attorney-General and Solicitor-General similarly because Solicitors-General (ie government barristers), unlike Attorneys-General (see p.44 n.18), are appointed rather than elected, and politics probably plays even less part in their appointment than in the appointment of Justices of the Court. Solicitors-General and Justices are meant to keep their politics to themselves!
As for geographical association, the fact that such a high proportion of High Court Justices come from New South Wales is certainly a common cause of disquiet and controversy in Australia. However, the arguments of critics are typically based on federalism concerns rather than (as the authors strongly imply) on a fear that Justices associated with Sydney, the capital of New South Wales and Australia’s largest city, are likely (simply by virtue of that association) to be more ‘liberal’ than Justices from any other state or from non-urban areas. Australia is one of the most highly urbanised societies in the world, and the suggestion that inhabitants of large cities are more likely than other Australians to be ‘liberals’ is questionable, to say the least. Once again, the Australian reader of this book gets the strong impression that the authors have brought their US assumptions to bear on their analysis of the High Court judiciary. Perhaps this explains why the biographical sketches [*118] of Justices in Chapter 3 contain so many apparently random and inconsequential details. It might also explain why the religious affiliation of the Justices is recorded even though its significance, and the basis on which it was compiled, are not discussed, and it is not used in the quantitative analysis.
At all events, the conclusions about judicial characteristics are seriously undermined by the admission (eg pp.12, 61) that the period between 1987 and 1995, when Sir Anthony Mason was Chief Justice, represented a relatively short heyday of judicial politicisation and that for politicisation to occur, there must be ‘in place … judicial actors … inclined to … engage in judicial activism’ (p.169) and to continue ‘to engage in activism in the future’ (p.170). Furthermore, the conclusions about the effects on judicial reasoning of the abolition of appeals as of right and the decision in MABO are further undermined by failure to identify any institutional or doctrinal changes that might explain a reversion, which is acknowledged to have taken place (pp.27-28) amongst High Court Justices post-MABO, to a more legalistic and less ‘political’ style of reasoning. They are also called into question by the qualification attached to the analysis of individual voting behaviour that ‘there are unobserved case facts that affect the likelihood that a judge will cast a vote in a particular case [sic]. In other words, this is confirmation that controlling for these case-level effects is necessary in order to have a properly-functioning model of the variables we are able to measure’ (p.157). I take this (admittedly-obscure) observation to mean that without knowing more about the facts and legal issues that arose in particular cases, it is not possible to reach robust conclusions about why individual Justices voted in the ways they did in those cases.
This last observation brings us back to the basic methodological flaw, as I see it, in the book’s approach to testing the hypothesis about the use of political discourse by High Court Justices. The analysis of the voting behaviour of individual Justices focuses entirely on the outcomes of cases and not at all on the reasons given for those outcomes. This sort of evidence is inadequate, at the very least, for testing a hypothesis about styles of judicial reasoning and, in particular, about the extent to which Justices explain and justify their decisions politically rather than legalistically. There is no necessary relationship between the outcomes of cases and the reasoning that individual judges use to justify those outcomes (as the authors impliedly admit in their discussion of the ENGINEERS case (pp.24, 36-7; see also pp. 33-5)). The only robust way of testing a hypothesis about styles of judicial reasoning is some form of analysis of the content of such reasoning and the judgments in which it is contained. For example, the fact that Justices with particular characteristics are more inclined than Justices who lack those characteristics to find in favour of individuals in tort cases and criminal cases (for instance) tells us nothing about whether those Justices are more likely to reason politically or legalistically. In fact, the evidence provided about Justices’ individual voting patterns is simply irrelevant to either of the hypotheses the book sets out to test, whether that concerned with the volume and nature of the High Court’s business or that concerned with a shift from legalistic to political styles [*119] of reasoning. Curiously, in relation to the latter hypothesis the authors implicitly acknowledge this when they observe that contrary to common belief, the ‘Mason Court’, which they identify as highly political, was ‘not particularly “liberal” or progressive’ (pp.129-30).
Finally, I want to say something about a largely unspoken assumption (but see pp. 22-23) that seems to underlie the design of this research project and the interpretation of the evidence, namely that the US Supreme Court and the Australian High Court are ‘political institutions’ in the same sense, if not to the same degree. Of course, the validity of such an assumption depends on what is meant by the term ‘political institution’. If politics is defined as being concerned with the distribution of power and resources in society, all courts – certainly high courts – in common law systems, at least, are political because their decisions may affect that distribution. However, if being political is defined, as these authors apparently define it, in terms of being (seen as) actively involved in a particular arena of public discourse and decision-making, I would argue that determination of whether any particular court is a political actor depends on understanding the legal and governmental system more broadly and the role and place of the court in that system. The authors themselves note several relevant differences between the US and Australian systems: for instance, that Australia has no Bill of Rights, that the High Court, unlike the Supreme Court, is a general court of appeal on matters of state law as well as federal law, and (but see p.124) that Justices of the Court speak and vote seriatim as individuals, not per curiam, even when the result is unanimous and only one judgment is delivered. Such differences are highly relevant to testing the authors’ hypotheses in ways that they seem not to appreciate and certainly do not explore. For instance, framing the history of the High Court in terms of ‘the Court’ during the tenure of various Chief Justices (eg ‘the Mason Court’) is at best contestable and at worst highly misleading, as is the distinction between unanimous and non-unanimous decisions deployed in Chapters 6 and 7.
Even more fundamentally, the role and position of the two courts in their respective governmental systems are fundamentally affected by the structure and nature of those systems. This is a very large topic that cannot be fully explored here. It must suffice to point out that public power is much more highly diffused amongst quasi-autonomous institutions and agencies in the US system of government than in the Australian system. In Australia, legislative power, executive power and bureaucratic power are highly concentrated in the Government (the elected executive), which is able to exercise a great deal of effective control over both Parliament and the civil service. By contrast, in the US each type of power is divided and shared between Congress, the President, executive and independent agencies and the federal courts, all of which are, to a greater or lesser extent, in competition amongst themselves to exercise, and control the exercise of, public power. Put differently, courts in the US are, in an important sense, coordinate with institutions in the other branches of government. Because of this division and sharing of power, the characteristic mode of controlling the exercise of public power in the US system is [*120] classically described in terms of ‘checks-and-balances’ – a phrase that well captures the idea, of a set of institutions in tension or equilibrium with one another, which underpins the common perception that all these institutions, including the courts, are ‘political’.
In Australia, on the other hand, because of the concentration of governmental power in the elected executive, the role of courts is understood as being to provide a counterweight to, or to restrain, the exercise of ‘political’ power in the name of ‘the rule of law’. The role of the courts in controlling the exercise of public power is understood not in terms of checks-and-balances but in terms of a more bipolar or hierarchical concept of ‘accountability’. In Australian constitutional thinking (contrary to what the authors appear to believe (p.164)), the concepts of judicial independence and the separation of judicial power from executive power are ‘stricter’ than their equivalents in US constitutional thinking. In Australian legal discourse (of which the High Court is an important arbiter), ‘policy’ is sharply distinguished from ‘law’, and ‘legal policy’ is sharply distinguished from ‘political’ considerations or values. In US legal and constitutional usage, by contrast, ‘policy’ and ‘law’ are closely related to one another, and the terms ‘policy-making’ and ‘law-making’ are often used more-or-less interchangeably. In the Australian way of thinking, there is an important sense in which courts stand outside government whereas in the US way of thinking, courts are an integral part of government. The role of Australian courts cannot be properly appreciated without understanding the Australian constitutional, legal and governmental systems more generally. More particularly, the sense in which the High Court might be described as ‘political’ cannot be understood without also appreciating that relative to the US Supreme Court, at least, there is an important sense in which the High Court is understood by its Justices and society more generally, and is expected, to be ‘apolitical’. For instance, it does not ring true to the Australian ear to define the role of a Justice in terms of filling ‘policy gaps left open by a legislature that was unwilling or unable to fill’ [sic] (p.27), or ‘undo[ing] the work of the political branches’ (p.66), or ‘policy augmentation as opposed to error correction’ (p.116), or ‘remedy[ing] failures of the political branches to secure protections for individual rights and liberties’ (p.162).
It gives me no pleasure to assess this book so negatively. In fact, I seriously considered not writing this review lest it cause offence. In the end, I decided to go ahead because the High Court and its Justices past, present and future, deserve better. Nor would I want Australian legal scholars to judge quantitative political-science research into law and legal institutions on the basis of this example of the genre; or non-Australian scholars to rely on it for accurate information and well-grounded insights about the High Court and the Australian system of government. Its publication reflects very badly on the publisher and raises serious questions about their quality-control mechanisms.
Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver: UBC Press. [*121]
Kercher, Bruce. 1995. AN UNRULY CHILD: A HISTORY OF LAW IN AUSTRALIA. St Leonards: Allen and Unwin.
Lynch, Andrew. 2014. BOOK REVIEW 34 ADELAIDE LAW REVIEW 465-471
MABO V. QUEENSLAND (No. 2) (1992) 175 CLR 1
Copyright 2014 by the Author, Peter Cane.