A gathering in Melbourne at the weekend gave tribute to Sir Anthony Mason’s eight years as Chief Justice of the High Court.
Mason and the majority of judges who have sided with him have come under a lot of public criticism, mainly from conservatives. They have accused the court of “”radical”, “”dangerously activist” things … like imply into the Constitution rights to freedom of speech; extract a principle of native title seemingly from thin air; require a right to legal representation; abolish centuries-old principles of property law; wipe out nine decade of Australian jurisprudence on free trade; and allow foreign treaties to govern Australian life. Tut, tut.
The detail may be new, but the broad approach is not. It is what much of the judiciary has done for a lot of the time. The approach has a long pedigree.
The High Court has two main roles: to interpret the Constitution and to be the final court of appeal on all matters of general law in Australia.
The approach of Mason’s two immediate predecessors, Sir Harry Gibbs and Sir Garfield Barwick, and those judges who supported them was that the Constitution was a law passed by the English Parliament and should be interpreted according to its words, allowing only a little to its role as a blueprint of nation. Their approach on general law was to apply new facts to existing law which could be discovered by looking at the words of the Act of Parliament and the precedents of earlier cases. This has the advantage of certainty, but there is very little adaptation to new circumstances, unless Parliament does something about it.
If Parliament does nothing to bring the law into general accord with the bulk of opinion or if it becomes oppressive to generally accepted freedoms, too bad. The judges do nothing.
This approach has no greater pedigree than the Mason approach. Indeed, there is an argument for saying it is a recent development … one that came about in the latter half of last century with the rise of democratically elected Parliament. The view was that if the law was bad, Parliament could fix it; there was no longer much of a role for judges to change, repair or develop the law according to new circumstances now Parliament could do it.
The activist approach has a longer pedigree.
In the early 17th century, Edward Coke among other judges were in a brawl with the Stuart kings. They asserted that the king could not decide cases and rights on his own personal motion. More assertively, Coke said in Bonham’s case in 1610, “When an act of Parliament is against common right or reason or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void.”
That doctrine never took hold in England, but a form of it took hold in America. The Declaration of Independence with its statement of inalienable rights was saying that Parliament itself could not take away certain rights. The Bill of Rights, incorporated into the US Constitution later, was another statement of the doctrine.
The Mason court is part of this doctrine’s stream. The doctrine, broadly put, says there are some things that Parliament, the Crown and the Executive cannot take away: the people are sovereign; they have rights of political communication and due process of law; and the judicial power which protects these things can only be exercised by independent judges who are not subject to political masters for reappointment.
The Australian political system has always been a hybrid of English and American ideas. The English legal inheritance is from God down: God, the divine right of kings, and the sovereignty of Parliament which is paramount because way back in history the divinely anointed king gave it sovereignty.
The American legal inheritance is from the people up. The people approve a Constitution which creates a Parliament, Executive and Judiciary and reserves as a no-go area a range of inalienable rights.
The Mason court has taken that Coke-American tradition up. If Parliament or the Executive … exercising the tyranny of the majority … breach the reserved rights, it has been more prepared do something about it.