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Reinterpreting ‘the Mason Court Revolution’: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia

Published online by Cambridge University Press:  01 January 2025

Theunis Roux
Theunis Roux*
Affiliation:
University of New South Wales, Australia
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Abstract

There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized ‘Mason Court revolution’ – the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes – why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do.

Type
Article
Information
Federal Law Review , Volume 43 , Issue 1 , March 2015 , pp. 1 - 25
Copyright
Copyright © 2015 The Australian National University

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Footnotes

I am indebted to my colleagues, Rosalind Dixon, Arthur Glass, Martin Krygier and Andrew Lynch, for very helpful comments on an earlier draft of this article.

References

1 Galligan, Brian, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (University of Queensland Press, 1987).Google Scholar

2 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineers).

3 Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams).

4 Patapan, Haig, Judging Democracy: The New Politics of the High Court of Australia (Cambridge University Press, 2000)Google Scholar; Pierce, Jason L, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press, 2006).Google Scholar See also Solomon, David, The Political High Court: How the High Court Shapes Politics (Allen & Unwin, 1999).Google Scholar

5 See Sections II and III below.

6 The best general introduction to the field is Whittington, Keith E, Kelemen, R Daniel and Caldeira, Gregory A (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008).Google Scholar

7 Galligan, above n 1, 4, 26-30, 37, 72, 97, 119.

8 Ibid 24.

9 Ibid 23. Note that Gageler, Stephen (Beyond the Text: A Vision of the Structure and Function of the Constitution (2009) 32 Australian Bar Review 138, 145Google Scholar) argues just the opposite, that the Constitution was conceived … as a means of empowering self-government by the people of Australia'.

10 Galligan, above n 1, 48-65.

11 Ibid 26-30.

12 From 1941-1949, under the Curtin and Chifley governments.

13 Australian National Airways Pty Ltd v Commonwealth (No 1) (1945) 71 CLR 29; Bank of New South Wales v Commonwealth (1948) 76 CLR 1; Commonwealth v Bank of New South Wales (1949) 79 CLR 497, [1950] AC 235 (Bank Nationalisation).

14 Galligan, above n 1, 118-183, 252.

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

16 Galligan, above n 1, 184 (describing the Whitlam government of 1972-75 as a brief interregnum of … stormy politics).

17 Galligan, above n 1, 38-41.

18 Ibid 30-1.

19 Ibid 232.

20 Bank of NSW v Commonwealth (1948) 76 CLR 1; Commonwealth Bank v Bank of NSW (1949) 79 CLR 497, [1950] AC 235.

21 South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case) (discussed in Galligan, above n 1, 131-4).

22 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (Melbourne Corporation) (discussed in Galligan, above n 1, 163-9).

23 Patapan, above n 4, 3.

24 Galligan, above n 1, 1.

25 See Goldsworthy, Jeffrey, Realism about the High Court (1989) 18 Federal Law Review 27, 32-6.Google Scholar

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27 See Goldsworthy, Realism about the High Court', above n 25, 34. See also Saunders, Cheryl, Book Review (1988) 18 Publius 133, 134.Google Scholar

28 To be fair, Galligan does say that some of the judges might have opted for an English-style of statutory interpretation for legal-technical reasons (Galligan, above n 1, 102). But this alternative explanation thereafter disappears from his analysis.

29 Melbourne Corporation (1947) 74 CLR 31.

30 Galligan, above n 1, 168-9.

31 Goldsworthy, Realism about the High Court', above n 25, 34-5.

32 Galligan, above n 1, 2-3.

33 Strict and complete legalism was the term used by Sir Owen Dixon in the speech he gave at his swearing in as Chief Justice in 1952. The speech was reprinted in (1952) 85 CLR xi.

34 Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo).

35 See, eg, Wik Peoples v Queensland (1996) 187 CLR 1 (decided shortly after Sir Anthony retired as Chief Justice).

36 Murray Gleeson was appointed as Chief Justice in 1998. His reputation as an orthodox legalist is partly based on statements made in a paper presented at the Australian Bar Association Conference in New York in July 2000. See Gleeson, Murray, Judicial Legitimacy (2000) 20 Australian Bar Review 4, 9.Google Scholar

37 Patapan, above n 4.

38 Pierce, above n 4.

39 Contrast the critical reviews of Galligan's book discussed in Section II above with the largely appreciative response to Haig Patapan and Jason Pierce's books in Lynch, Andrew, The High Court Legitimacy and Change: Review Essay: Haig Patapan, Judging Democracy The New Politics of the High Court of Australia (2001) 29 Federal Law Review 295CrossRefGoogle Scholar; and Lynch, Andrew, The Once and Future Court? Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (2007) 35 Federal Law Review 145.CrossRefGoogle Scholar

40 Lynch, The Once and Future Court', above n 39, 147 calls it a remarkable contribution'. Twomey, in her review, was less flattering, but not opposed to Pierce's project in principle. See Twomey, Anne, Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L Pierce (2007) 31 Melbourne University Law Review 1174.Google Scholar

41 Pierce, above n 4, chs 3-5.

42 Pierce, above n 4, 6-9. As pointed out in Section III below, Pierce does not explicitly locate his study within historical institutionalism, although he does mention this school later on in his introduction (see Pierce, above n 4, 20-1).

43 Patapan, above n 4, 18.

44 Ibid 19.

45 Ibid 20-4.

46 Ibid ch 3.

47 Ibid ch 6.

48 Ibid ch 5.

49 Patapan does discuss the beginnings of the reaction in McGinty v Western Australia (1996) 186 CLR 140 (ibid 86-105), but his book came too early to be able to consider the full extent of the reaction. As to that, see Pierce, above n 4, ch 7. Zines, Leslie (Legalism, Realism and Judicial Rhetoric in Constitutional Law (2002) 5 Constitutional Law and Policy Review 21Google Scholar) disputes that there is any general pattern or direction discernible in the Court's reasoning methods.

50 There is just one passing reference to Galligan's study (Patapan, above n 4, 3).

51 See Patapan, above n 4, 13-14.

52 See Lynch, The High Court Legitimacy and Change, above n 39, 299-300.

53 See Pierce, above n 4, ch 6.

54 Ibid chs 3-6.

55 Ibid 245-84.

56 Ibid 247.

57 Ibid.

58 Pierce refers to Galligan's book in his introduction (ibid 16-18), and says that he will draw from both Galligan's and Patapan's work in later chapters, but there are no further citations referring to either Galligan's or Patapan's work after this point.

59 Pierce, above n 4, ch 3.

60 See Tamanaha, Brian Z, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2009) 11-15.CrossRefGoogle Scholar

61 This is true, for example, at Yale, University of Pennsylvania and Washington University Law Schools.

62 See, eg, Sunstein, Cass R et al, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Brookings Institution Press, 2006).Google Scholar

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64 Friedman, Barry, Taking Law Seriously (2006) 4 Perspectives on Politics 261.CrossRefGoogle Scholar

65 Tamanaha, above n 60, 111-31.

66 The rise of rational-choice institutionalism is told in Epstein, Lee and Knight, Jack, Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead (2000) 53 Political Research Quarterly 625.CrossRefGoogle Scholar See also Whittington, Keith E, Once More unto the Breach: Post-Behavioralist Approaches to Judicial Politics (2000) 25 Law & Social Inquiry 601.CrossRefGoogle Scholar

67 See, eg, Murphy, Walter F, Elements of Judicial Strategy (University of Chicago Press, 1964).Google Scholar

68 See Sanders, Elizabeth, Historical Institutionalism in Rhodes, R A W et al (eds), The Oxford Handbook of Political Institutions (Oxford University Press, 2008) 39.Google Scholar

69 See Kennedy, Duncan, A Critique of Adjudication (Fin de Sicle) (Harvard University Press, 1997).Google Scholar

70 Pierce, above n 4, 20-1.

71 For a general discussion, see Mahoney, James, Path Dependence in Historical Sociology (2000) 29 Theory and Society 507CrossRefGoogle Scholar; Pierson, Paul, Increasing Returns, Path Dependence, and the Study of Politics (2000) 94 American Political Science Review 251.CrossRefGoogle Scholar For criticism of this approach, see Schwartz, Herman, Down the Wrong Path? Path Dependence, Increasing Returns, and Historical Institutionalism, University of Virginia <http://people.virginia.edu/~hms2f/Path.pdf> (unpublished paper).+(unpublished+paper).>Google Scholar

72 Mahoney, above n 71, 521.

73 Capoccia, Giovanni and Kelemen, R Daniel, The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism (2007) 59 World Politics 341, 348.CrossRefGoogle Scholar

74 The fact that efficiency does not come into it is important because market dominance would otherwise be explicable on those grounds.

75 Arthur, W Brian, Increasing Returns and Path Dependence in the Economy (University of Michigan Press, 1994) 6-7.CrossRefGoogle Scholar

76 Mahoney, above n 71, 523-4.

77 Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge University Press, 1991).Google Scholar Other specifically legal applications of path-dependency theory include its use in the study of constitutional moments and the relatively peaceful transition to democracy in South Africa. See Burnham, Walter Dean, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People (1999) 108 Yale Law Journal 2237CrossRefGoogle Scholar; Meierhenrich, Jens, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 16522000 (Cambridge University Press, 2008).CrossRefGoogle Scholar

78 See, eg, Llewellyn, Karl N, The Common Law Tradition: Deciding Appeals (Little, Brown & Co, 1960).Google Scholar Brian Leiter has argued that the legal realists were fundamentally legal positivist in orientation. See Leiter, Brian, Positivism, Formalism, Realism (1999) 99 Columbia Law Review 1138.CrossRefGoogle Scholar While that may be true as a general proposition, it does not accurately capture Llewellyn's later work.

79 See, eg, Dworkin, Ronald, Law's Empire (Harvard University Press, 1986).Google Scholar

80 See Tamanaha, above n 60.

81 Raz, Joseph, Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment (1998) 4 Legal Theory 1, 5.CrossRefGoogle Scholar

82 Tamanaha, above n 60, 119.

83 Ibid 6.

84 Llewellyn, above n 78. The closest Australian equivalent of this idea can be found in Krygier, Martin, Thinking like a Lawyer in Sadurski, Wojciech (ed), Ethical Dimensions of Legal Theory (Rodopi, 1991) 67.CrossRefGoogle Scholar

85 See Goldsworthy, Realism about the High Court', above n 25, 28-32.

86 See Krygier, above n 84; Krygier, Martin and Glass, Arthur, Shaky Premises: Values, Attitudes and the Law (1995) 17 Sydney Law Review 385.Google Scholar

87 Goldsworthy, Realism about the High Court', above n 25.

88 This is the way in which Sir Owen's public endorsement of legalism at his swearing-in ceremony (see Dixon, above n 33) can be reconciled with his efforts to broaden the Engineers understanding of legitimate interpretive methods.

89 (1610) 8 Co Rep 107; 77 ER 638.

90 The best-known treatment of this issue is Thompson, Elaine, The Washminster Mutation in Weller, Patrick and Jaensch, Dean (eds), Responsible Government in Australia (1980) 32.Google Scholar

91 See Irving, Helen, Five Things to Know about the Australian Constitution (Cambridge University Press, 2004).CrossRefGoogle Scholar

92 For a reconstruction of the Griffith Court's method, see Aroney, Nicholas, Constitutional Choice in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine? (2008) 32 Melbourne University Law Review 1.Google Scholar

93 (1920) 28 CLR 129.

94 There is a large literature on whether the decision in Engineers was legally preferable to the approach that had been taken to the interpretation of the Constitution before then. See, eg, Aroney, above n 92 (arguing that the pre-Engineers approach was both defensible and legally preferable) and Goldsworthy, Jeffrey, Justice Windeyer on the Engineers Case (2009) 37 Federal Law Review 363CrossRefGoogle Scholar (arguing that the approach in Engineers to the derivation of implied constitutional terms was preferable to what had gone before). My own view is that neither approach was doctrinally pre-ordained.

95 This was, of course, one of the devices used by the Engineers majority to de-legitimate the Griffith Court's reading of the Constitution. See Engineers (1920) 28 CLR 129, 146.

96 Commonwealth of Australia Constitution Act 1900 (Imp) s 5.

97 Galligan, above n 1, 102.

98 Goldsworthy, Justice Windeyer on the Engineers Case', above n 94, 364-5.

99 The classic analyses of this issue are Latham, R T E, The Law and the Commonwealth in Hancock, W K, Survey of British Commonwealth Affairs: Volume I, Problems of Nationality 1918-1936 (Oxford University Press, 1937) 510Google Scholar (arguing that the real ground of the Engineers decision was the majority's view that the Constitution had been intended to create a nation) and Victoria v Commonwealth (1971) 122 CLR 353, 395-7 (Windeyer J, arguing that the Engineers approach was driven by the majority's desire to give constitutional expression to an emerging sense of Australian nationhood).

100 See Latham, above n 99; Victoria v Commonwealth (1971) 122 CLR 353, 395-7.

101 Galligan, above n 1, 26-30.

102 As is well known, there are a few express rights in the Australian Constitution (eg ss 80 and 116), but nothing like a full statement of civil and political rights.

103 See SirMason, Anthony, The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience (1986) 16 Federal Law Review 1, 4.CrossRefGoogle Scholar

104 See, eg, the various essays collected in Coper, Michael and Williams, George (eds), How Many Cheers for Engineers? (Federation Press, 1997).Google Scholar

105 At the same time, by supporting an individual rights reading, legalism did increase the likelihood of invalidation of Commonwealth legislation under s 92 (freedom of interstate trade and commerce). As noted, this provision was behind the striking down of the ALP's banking and airline industries nationalization legislation.

106 See Schauer, Frederick, Easy Cases (1985) 58 Southern California Law Review 399.Google Scholar

107 That was, of course, both the strength and the weakness of the decision.

108 Today, the states are at least consulted before appointments to the High Court are made.

109 See, eg, Kirk, Jeremy, Constitutional Implications (I): Nature, Legitimacy, Classification, Examples (2000) 24 Melbourne University Law Review 645, 675-6Google Scholar; Meagher, R P and Gummow, W M C, Sir Owen Dixon's Heresy (1980) 54 Australian Law Journal 25, 29.Google Scholar

110 See Lynch, The High Court - Legitimacy and Change', above n 39, 299-300.

111 (1937) 56 CLR 657, 681.

112 See also Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 85.

113 The other classic exposition of this issue is the dictum in Victoria v The Commonwealth (1971) 122 CLR 353, 402 that the High Court's avowed task is simply the revealing or uncovering of implications that are already there (Windeyer J).

114 Melbourne Corporation (1947) 74 CLR 31.

115 Galligan, above n 1, 168-9.

116 For more on the idea of politico-legal equilibria, see Roux, Theunis, American Ideas Abroad: Comparative Implications of US Supreme Court Decision-Making Models (2015) 13 International Journal of Constitutional Law (forthcoming).CrossRefGoogle Scholar

117 See Section II above.

118 Although this was certainly part of what was going on. See Mason, The Role of a Constitutional Court in a Federation', above n 103, 13.

119 The various failed attempts to adopt a bill of rights in Australia are explained in Byrnes, Andrew, Charlesworth, Hilary and McKinnon, Gabrielle, Bills of Rights in Australia: History, Politics and Law (NewSouth Publishing, 2008).Google Scholar

120 Mason, The Role of a Constitutional Court in a Federation', above n 103, 5.

121 Kirby, Michael, Julius Stone and the High Court of Australia (1997) 20 University of New South Wales Law Journal 239.Google Scholar

122 Murray Gleeson was also taught by Stone, for example, but was impervious to his influence. See Pelly, Michael, Murray Gleeson: The Smiler (Federation Press, 2014) 26.Google Scholar

123 In addition to the chapter in Pierce's study already mentioned, see Gleeson, above n 36, 9 (expressly recommitting the Court to strict and complete legalism); SirMason, Anthony, The Centenary of the High Court of Australia (2003) 5(3) Constitutional Law and Policy Review 41, 45Google Scholar (expressing regret about the Gleeson Court's return to legalism); and Kirby, Michael, Judicial Activism: Authority, Principle and Policy in the Judicial Method (Sweet & Maxwell, 2004)Google Scholar (acknowledging that the innovations of the Mason Court era have given rise to a counter-reformation).

124 For an astute appreciation of this, see Mason, The Role of a Constitutional Court in a Federation', above n 103, 2 (arguing that [t]he method of interpretation a court pursues has a close inter-relationship with the court's perception of its role).

125 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

126 See the Privy Council (Limitation of Appeals) Act 1968 (Cth).

127 Mason, above n 103, 11 (referring to ongoing Australian attachment to the notion of parliamentary supremacy).

128 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 133-5.

129 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 69-73.

130 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

131 See, eg, Stone, Adrienne, The Limits of Constitutional Text and Structure (1999) 23 Melbourne University Law Review 668.Google Scholar

132 Mason, above n 103, 2.

133 McGinty v Western Australia (1996) 186 CLR 140.

134 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

135 McGinty v Western Australia (1996) 186 CLR 140, 232.

136 Stone, above n 131.

137 See, eg, Wotton v Queensland (2012) 246 CLR 1; A-G (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Monis v The Queen (2013) 249 CLR 92.

138 Roach v Electoral Commissioner (2007) 233 CLR 162. See also Rowe v Electoral Commissioner (2010) 243 CLR 1.

139 Cole v Whitfield (1988) 165 CLR 360.

140 Gageler, above n 9, 151-2 (citing Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980)Google Scholar).

141 Arthur, above n 75.