Chapter Six — The Justices and their Work
From The High Court of Australia 1903-2003 by Crispin Hull
The High Court has been a stable institution in its 100-year history. This is due in the main to the fact that Justices were appointed for life until 1977 and until the age of 70 since then. In 1977, a referendum to amend the Constitution was approved by all States and 80 per cent of the popular vote to change the requirement that High Court judges be appointed for life (or voluntary retirement) to mandatory retirement at the age of 70 years. The provisions have meant a long average tenure in office of Justices. The average tenure over the century has been 16½ years. Even since the referendum the average tenure has been nearly 14 years.
Despite this, the Court’s outlook can change quite suddenly, particularly with a change in Chief Justice. It has led commentators to characterise periods in the Court’s history and its outlook with reference to the Chief Justice at the time, even though the Chief Justice is the first among equals and cannot influence puisne Justices, except indirectly through discussion or circulation of persuasive drafts of judgments. Nonetheless, it is convenient to view the Court’s work according to the tenure of the 10 Chief Justices (excluding the present one).
The Griffith Court 1903-1919
The first Court under the chief justiceship of Sir Samuel Griffith comprised three Justices: Chief Justice Griffith, Justice Sir Edmund Barton and Justice Richard O’Connor. Before coming to the Court, all had been active in the movement to Federation. All had participated in the drafting of the Constitution. Chief Justice Griffith took a major role in the early drafting. Justice Barton had been the first Prime Minister. Chief Justice Griffith had been Premier of Queensland twice.
Chief Justice Griffith’s extensive practice in Queensland before he entered politics and his reforms of legal procedure, among other things, as Attorney-General and Premier helped the new Court to gain respect and recognition from the legal profession. This was further enhanced as the Court exercised its appellate jurisdiction with some distinction. Chief Justice Griffith was noted for his ability to deliver ex tempore judgments. He lifted the standard of legal argument by intervening with questions to counsel – a practice followed (though on occasions overdone) in the ensuing 100 years.
In the face of early attempts by the Commonwealth to exercise its legislative powers more widely, the early Griffith Court interpreted the Commonwealth powers in the Constitution restrictively – especially the corporations, trade and commerce powers and the power with respect to industrial disputes. Added to this was the Court’s adoption of the United States doctrines of implied immunities and reserved State powers. This gave the Court’s constitutional work a States’ rights flavour.
In 1906 Isaac Isaacs and Henry Bournes Higgins joined the Court after the three original Justices successfully sought from the Government an increase in its size to cope with the increased workload. Justice Isaacs became Attorney-General under Prime Minister Deakin and Justice Higgins had been a Member of the first Parliament. Isaacs became noted for long discursive judgments, often following different lines of reasoning from his colleagues. The seeds for the erosion of the doctrine of implied immunities and reserved State powers were sown in some of the minority judgments of Justice Isaacs and Justice Higgins. And they had a broader view of the Commonwealth’s power with respect to industrial disputes.
Aside from constitutional law, the Griffith Court quickly established itself in the role as the final court of appeal in Australia. Before the establishment of the High Court, appeals from State courts to the Privy Council were rare because of the expense and delay, so the State courts lacked the corrective force of a readily accessible appeal court. The Griffith Court began the process of bringing greater consistency among the decisions of the State courts. In 1912 Justice O’Connor died and legislation was passed to increase the size of the Court to seven. In 1913 Frank Gavan Duffy, of the Victorian Bar, succeeded Justice O’Connor, and Charles Powers and Albert Piddington were appointed. The latter resigned before taking his place on the Bench and George Rich, of the Supreme Court of New South Wales, was appointed in substitution.
These changes saw a slow change of outlook to a less restrictive view of Commonwealth power. However, the States’ rights outlook of the Court held until after Chief Justice Griffth retired in 1919 and Justice Barton died in 1920 – the former was succeeded by Adrian Knox, of the New South Wales Bar, and the latter by Hayden Starke, of the Victorian Bar.
The Knox Court 1919-1930
Adrian Knox was an excellent advocate and well-known for his capacity for work. But as a Justice he did not leave a conspicuous mark. His judgments – and some of the judgments of the puisne Justices of his court — were often so brief as to be unhelpful in constitutional development. His senior puisne Justice, Isaacs, had the greatest influence, occasionally being the only judge to deliver a full judgment. Early in Chief Justice Knox’s term the Engineers Case (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129) was decided which marked a turning point in Australian constitutional law.
The next 10 years were marked by a lack of coherence in approach to section 92, immigration and the power with regard to industrial disputes. The Court had difficulty in developing a doctrinal base to determine questions of whether the “industrial” power extended to clerical and professional employment and the extent to which the power enabled the Commonwealth to legislate with respect to employees of State Governments.
The Court, however, made some headway in tort, widening the net of liability for negligence to suit prevailing conditions.
Chief Justice Knox had a great interest in horse racing to which he retired in 1930 after inheriting a stable from colliery owner John Brown whose interests he had represented at the Bar.
The year before Chief Justice Knox’s retirement, Australia’s greatest jurist, Owen Dixon, of the Victorian Bar, was appointed to the Court upon the death of Justice Higgins.
The Isaacs and Gavan Duffy Court 1930-1935
Isaac Isaacs was Chief Justice for only 42 weeks. His greatest influence had been in the early years of his 23-year tenure as puisne Justice. Justice Isaacs’ judgments reveal a tendency towards wider central power. He adopted an expansive view of the industrial relations power, but was often in the minority.
In late 1930, the Scullin Labor Government filled the vacancies caused by Justice Powers’ retirement in July 1929, and Chief Justice Isaacs’ elevation to the chief justiceship in April 1930. It appointed one Federal Labor Member of Parliament, Edward McTiernan, and a former Member of the New South Wales Parliament, Herbert Vere Evatt. Justice Evatt, at 36, was the youngest person appointed in the history of the Court. Justice McTiernan, aged 38 on appointment, was to become the Court’s longest-serving Justice on his retirement 46 years later. In 1940 Justice Evatt resigned to enter Federal politics.
Chief Justice Isaacs retired from the Bench at the age of 75 when his name was put to the King by Prime Minister James Scullin to be appointed Governor-General. There was great resistance by the King to an Australian taking the post, but Scullin stood firm and Sir Isaac Isaacs was appointed. He was the first Australian to be appointed Governor-General. Later two senior puisne Justices of the Court were appointed Governor-General, Sir Ninian Stephen in 1982 and Sir William Deane in 1995.
Scullin then appointed the senior puisne Justice, Sir Frank Gavan Duffy, as Chief Justice, and the resulting vacancy was left unfilled as an economy measure. Justice Gavan Duffy had originally been appointed Justice by a Labor Government in 1913. He was in his late 70s when appointed Chief Justice.
In the period of the Gavan Duffy Court, Justice Dixon shouldered a great burden of the workload with other Justices frequently joining his judgments. In constitutional law, the major cases of the period were the Garnishee Cases (New South Wales v Commonwealth (No 1) (1932) 46 CLR 155; New South Wales v Commonwealth (No 2) (1932) 46 CLR 235; New South Wales v Commonwealth (No 3) (1932) 46 CLR 246) in which the Court held valid Commonwealth legislation to garnishee New South Wales funds held in banks to repay public debts after the Lang Government defaulted in the payment of certain debts.
In Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 the Court held that approval by referendum must be obtained before the Upper House of the New South Wales Parliament could be abolished. The Court held against the proposition that the New South Wales Parliament could first legislate to repeal the provisions requiring the referendum and then legislate to abolish the Upper House. The Court held that a provision of the Constitution Act 1902 (NSW) required approval by referendum before the referendum provision itself could be repealed.
Chief Justice Gavan Duffy was 83 when he retired – not without some urging from the puisne Justices, particularly Justice Starke his nephew by marriage and Justice Dixon who was concerned that possible public comment on Chief Justice Gavan Duffy’s age and capacity would reflect on the Court.
The Latham Court 1935-1952
Sir John Latham had a distinguished political career before his appointment as Chief Justice (though he had retired from politics and returned to the Bar in the year before his appointment). He held various Ministries and was Commonwealth Attorney-General. As a Minister he had a continuing battle with militant unions. Chief Justice Latham came to the Court at a difficult time. Since the retirement of Chief Justice Griffith 16 years earlier, the Court had Chief Justices of little distinction or short tenure. Chief Justice Latham had to deal with personality clashes among some of the Justices. For more than half his stewardship there were only six Justices. The Court was marked by judicial individualism. Justice Starke rarely joined in judgments with others.
The Latham Court was stretched during the Second World War. Chief Justice Latham took leave of absence to become Australian Minister to Japan in 1940-1941 before Japan entered the war and Justice Rich was Acting Chief Justice. Justice Dixon was Minister in Washington for two years and Justice McTiernan headed an inquiry under the National Security Regulations for much of the first part of 1943.
The Latham Court had to deal with a greater legislative intrusion by the Commonwealth generated by the war and the social and economic changes in its aftermath. It struck a reasonable balance between the exigencies of the war and the rights of individuals. Justice Starke frequently dissented against decisions upholding extensive use of the defence power, particularly in the first Uniform Tax Case (South Australia v Commonwealth (1942) 65 CLR 373). His objections to “irritating orders and restrictions upon freedom of action which is arbitrary and capricious, serves no useful purpose, and has no connection whatever with defence” (de Mestre v Chisholm (1944) 69 CLR 51) probably influenced some of the other Justices to look at the balance between individual rights and the war effort more carefully.
Chief Justice Latham’s judgments show him to have favoured an expansive view of Commonwealth legislative power – irrespective of the political complexion of the Government that had brought in the legislation. He interpreted the defence power widely, even to the extent of dissenting in the Communist Party Case (Australian Communist Party v Commonwealth (1951) 83 CLR 1). He thought section 92 would not defeat the nationalisation of the banks. Chief Justice Latham thought that the requirement of just terms for the acquisition of the business and properties did not defeat the nationalisation measures. But a majority of the Court found several constitutional reasons for holding major nationalisations to be invalid in the first Airlines Case (ANA Pty Ltd v Commonwealth (1945) 71 CLR 29) and the Bank Nationalisation Case (Bank of New South Wales v Commonwealth (1948) 76 CLR 1). In these and the two Pharmaceutical Benefits Cases (Attorney-General (Vic) v Commonwealth (1946) 71 CLR 237; British Medical Association v Commonwealth (1949) 79 CLR 201) the Court put a brake on the post-war Labor Government’s nationalisation and interventionist plans.
In 1940 Justice Evatt resigned to enter federal politics and was succeeded by Dudley Williams, of the Supreme Court of New South Wales. And in 1946 Sir William Webb, Chief Justice of the Supreme Court of Queensland, was appointed to the seventh position left vacant since 1931. In 1950 Justices Starke and Rich retired and were succeeded by Wilfred Fullagar, of the Supreme Court of Victoria, and Frank Kitto of the New South Wales Bar. The vacancy caused by Chief Justice Latham’s retirement and Justice Dixon’s elevation was filled by Alan Taylor, of the Supreme Court of New South Wales.
The Dixon Court 1952-1964
Sir Owen Dixon had been on the Court 23 years when he was appointed Chief Justice. He is regarded as the finest jurist Australia has produced. Because of his presence both as puisne Justice and Chief Justice, the Court enjoyed a reputation as one of the pre-eminent courts in the common law world. Lord Denning said it “established a reputation which overtopped even that of the House of Lords”. Yet Dixon initially had a distaste for judicial work. He wrote that judicial work was “the most difficult I have had to attempt” and that it was “hard and unrewarding work”. As the composition of the Court changed he found the work more rewarding. During the term of Chief Justice Latham, Justice Dixon had a critical influence on all the other judges except Justice Starke. Frequently Justices Evatt and McTiernan joined or concurred in his judgments. He was frequently the first to get his judgment out and it often persuaded the other Justices.
In constitutional law, the Dixon Court developed a body of coherent principle on section 92 which provided that trade, commerce and intercourse among the States shall be absolutely free. The section had troubled the Latham Court to the extent that Chief Justice Latham said on his retirement, “When I die, Section 92 will be found written on my heart.”
The Court eventually settled on what had initially been a minority view of Chief Justice Dixon’s expressed while he was a puisne Justice in R v Vizzard; Ex parte Hill (1933) 50 CLR 30, O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 and McCarter v Brodie (1950) 80 CLR 432. This view was that the section bound both the Commonwealth and the States and it guaranteed each individual a constitutional right to engage in interstate trade, but that right could be subjected to reasonable regulation. It did not extend to protect activity before the interstate trade began or after it had finished. Half a dozen cases involving challenges to State and Commonwealth compulsory marketing schemes for agriculture and challenges to State transport regulations and taxes came before the Court. In Hughes and Vale Pty Ltd v New South Wales (No 1) (1952) 87 CLR 49, Chief Justice Dixon felt bound by the precedent of the position of the Latham Court which generally allowed more government intervention without running foul of section 92. Hughes and Vale appealed successfully to the Privy Council, which quoted extensively Justice Dixon’s judgment in McCarter v Brodie. When the next transport section 92 case arose — Hughes and Vale Pty Ltd v New South Wales (No 2) (1953) 93 CLR 127 — the whole Court was freed of the precedents of the 1930s and could and did adopt Chief Justice Dixon’s original position.
The Barwick Court later attempted to widen the application of section 92 by expanding both the concept of interstate trade and the nature of the freedom to engage in it. And in 1988, the Mason Court took an entirely different approach.
The Dixon Court strengthened the doctrine of the separation of powers. Earlier the Court had held that only Chapter III courts could exercise the judicial power of the Commonwealth. So the Inter-State Commission – which was not composed of judges with secure tenure – could not do judicial acts such as grant injunctions. In the R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 the Dixon Court added to this a second requirement. It held that the Commonwealth Parliament could not invest Chapter III courts with legislative or executive functions. The legislation empowering the Court of Conciliation and Arbitration to both make industrial awards (a legislative function) and to make orders to enforce those awards (a judicial function) was held to be invalid. There had to be one non-court body to create the awards and a court composed of judges to enforce them. After nearly 30 years of operation, the Court of Conciliation and Arbitration was no more. The Parliament then legislated to establish the Arbitration Commission and the Industrial Court.
A joint majority judgment written by Chief Justice Dixon espoused the fundamental nature of the doctrine:
“If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chapters I, II and III and the form and content of Sections 1, 61 and 71. It would be difficult to treat as a mere draftsman’s arrangement. Section 1 positively vests the legislative power of the Commonwealth in the Parliament of the Commonwealth. Then Section 61, in exactly the same form, vests the executive power of the Commonwealth in the Crown. They are the counterparts of Section 71 which in the same way vests the judicial power of the Commonwealth in this Court, the federal courts the Parliament may create and the State courts it may invest with Federal jurisdiction. It cannot all be treated as meaningless and of no legal consequence.” (at 275).
Chief Justice Dixon had a strong belief that the separation was crucial in a federal system because judges who would be required to decide on the limits of the powers of Parliaments had to be completely independent. Chief Justice Dixon thought it improper for Justices of the High Court to sit on Royal Commissions or inquiries involving controversial issues, and he refused requests to head the Banking Royal Commission in the 1930s and the Petrov Royal Commission in the 1950s.
However, he chaired several war-related administrative committees and took leave of absence to serve as Minister (Plenipotentiary and Envoy Extraordinary) in Washington in 1942 and 1943 and in 1950 he was the United Nations representative to mediate between India and Pakistan on Kashmir.
The Dixon Court did not get the same opportunity to expound on the limits of Commonwealth power as later Courts because the Menzies Government was mostly content not to push the boundaries of its power. It was content to legislate most of the time within previously understood ambit of the powers listed in section 51, with perhaps the exception of its reliance on the defence power with the Communist Party Dissolution Act 1950 which the Court held to be invalid before Dixon became Chief Justice. However, the Menzies Government made extensive use of section 96 to make tied grants to the States – as permitted by the two Uniform Tax Cases (South Australia v Commonwealth (1942) 65 CLR 373; Victoria v Commonwealth (1957) 99 CLR 575) – to move into areas of State legislative power.
In general law, Chief Justice Dixon showed his capacity to develop the law to meet modern conditions, using precedent, analogy, and logical deduction and induction, without unnecessary forays into policy. An example can be found in a judgment in patent law in 1959 (National Research Development Corporation v Commissioner of Patents (1959) 192 CLR 252). To obtain a patent you must show an invention or new method of manufacture, under the Patents Act 1952 (Cth) which mirrored section 6 of the 1623 English Statute of Monopolies. The National Research Development Corporation had been refused a patent for a herbicide made by combining known materials. The herbicide controlled the weeds without damaging the crops. In allowing the patent, Chief Justice Dixon said:
“The point is that a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art – that its value to the country is in the field of economic endeavour.” (at 253).
The case was followed elsewhere and enabled patentability of a wide range of agricultural processes that had previously been thought to be unpatentable.
In tort, he removed a legal artifice that underpinned occupiers’ liability to child trespassers. The artifice required the plaintiff to show there was an implied licence by the occupier for the trespasser to be on the land. In Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274 Dixon used earlier cases to find a new approach. Cardy, a 14-year-old, was injured on railway property. His feet broke through a hard crust of earth on to ashes beneath, burning him.
In rejecting the English approach of requiring an imputed licence, Chief Justice Dixon said:
“Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle? . . . . The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him. But it recognises that nevertheless a duty exists where, to the knowledge of the occupier, premises are frequented by strangers or are openly used by other people and the occupier actively creates a specific peril seriously menacing their safety or continues it in existence.” (at 285).
In criminal law, the Dixon Court moved to modify the 19th century M’Naghten rules that laid down the test for insanity.
The Dixon Court was strengthened by the contribution of Justice Fullagar and Justice Kitto, with whom Chief Justice Dixon shared a love of the classics, and Justice Windeyer who was a noted legal historian and who had a distinguished career as a citizen soldier. Chief Justice Dixon and his Court earned widespread respect from lawyers in the common law world. Chief Justice Dixon retired in 1964, just before his 78th birthday. He died in 1972.
Chief Justice Dixon was succeeded by Sir Garfield Barwick, who until a year before had been Commonwealth Attorney-General. In 1958 Justices Williams and Webb retired and were succeeded by Victor Windeyer, of the New South Wales Bar, and Douglas Menzies, of the Victorian Bar. Justice Fullagar died in July 1961 and was succeeded by William Owen, of the Supreme Court of New South Wales. In 1954-1955, Justice Owen chaired the Petrov Royal Commission.
The Barwick Court 1964-1981
Sir Garfield Barwick was the longest-serving Chief Justice of the High Court. In the 1940s and 1950s he became the pre-eminent in constitutional lawyer at the Bar, mostly appearing for parties challenging the validity of Commonwealth and State legislation. Many of the challenges he presented concerned section 92 of the Constitution.
In 1958 he was elected to Parliament and was Attorney-General and Minister for External Affairs in the Menzies Government. As Attorney-General he steered through the Matrimonial Causes Act 1959 (Cth) giving wider grounds for divorce and laid the groundwork for trade practices legislation.
He was appointed Chief Justice in 1964. As Chief Justice he attempted to lead the Court to adopt his espousal of competitive free enterprise, by widening the ambit of section 92 as a personal right to engage in interstate trade and bringing acts in preparation for interstate trade within its ambit, thereby undoing much of the greater certainty in the interpretation of the section brought about by the Dixon Court. In constitutional interpretation Barwick took a very literal and textual approach.
His Court was also marked by its literalist approach to taxation law, and was strongly criticised for it. Chief Justice Barwick’s judgments upheld elaborate taxation schemes against challenges under anti-avoidance measures. Chief Justice Barwick argued that people were allowed to order their affairs as they saw fit to minimise taxation and it was up to the legislature to define with precision the nature of transactions to be taxed.
Chief Justice Barwick brought to the Bench something of the style he had adopted as an advocate – encouraging dialogue between counsel and Justices. He was noted for aggressive questioning and argument with counsel, and was occasionally criticised for overdoing it. Over the course of time, however, Chief Justice Barwick’s influence over other Justices diminished.
Chief Justice Barwick played a leading role in obtaining for the Court its own building and moving its permanent seat to Canberra. He was also instrumental in persuading the Government to give the Court control of its own administration under the High Court Act 1979 (Cth), though not under the sole control of the Chief Justice as he had hoped.
On two occasions he gave extra-judicial advice to the Governor-General – in 1967 on the death of Prime Minister Harold Holt, and, controversially in 1975, when he confirmed in advice to Sir John Kerr that the Governor-General had the power to dismiss Prime Minister Gough Whitlam on the ground that he could not secure Supply.
During the period of the Barwick Court, there were many changes to the Bench. Justice Taylor died in office in 1969 and was succeeded by Cyril Walsh, of the New South Wales Court of Appeal, who died in office in 1973. His vacancy was filled by Kenneth Jacobs, of the New South Wales Court of Appeal in 1974. Justice Jacobs retired in 1979. His vacancy was filed by Ronald Wilson, Solicitor-General for Western Australia and the first Justice from that State. In 1970 Justice Kitto retired to chair the new Australian Press Council and was succeeded by Harry Gibbs. Justice Owen died in office in 1972 and was succeeded by Ninian Stephen. Justice Windeyer retired in 1972 and was succeeded by Anthony Mason, of the New South Wales Court of Appeal, who had previously been the Commonwealth Solicitor-General. Justice Menzies died in office in 1974. His vacancy was filled in 1975 by Lionel Murphy, Commonwealth Attorney-General. Justice McTiernan retired in 1976 and was succeeded by Keith Aickin, of the Victorian Bar. Chief Justice Barwick was succeeded as Chief Justice by Sir Harry Gibbs and the resulting vacancy was filled by Gerard Brennan, of the Federal Court of Australia.
The Gibbs Court 1981-1987
Sir Harry Gibbs was appointed to the Queensland Supreme Court in 1961. In 1967 he was appointed judge of the Federal Court of Bankruptcy in the expectation that he would become the first Chief Justice of a new superior federal court which would have wide jurisdiction. It was more than a decade before that court was established. In 1970 he was appointed to the High Court.
On succeeding Sir Garfield Barwick as Chief Justice in 1981, his good humour and courtesy to counsel ensured that exchanges between counsel and the Justices were less combative.
The Gibbs Court was noted for its fairly regular 4-3 division on constitutional matters, with Chief Justice Gibbs often in the minority with Justices Wilson and Aickin (and after the latter’s death Justice Dawson). The majority, Justices Mason, Murphy, Brennan and Deane tended to interpret the Constitution in a way that gave the Commonwealth wider power. The prime example was their interpretation of the external affairs power in the Tasmanian Dam Case (Commonwealth v Tasmania (1983) 158 CLR 1).
The High Court had a higher public profile than usual at this time because of allegations against Justice Murphy of perverting the course of justice. The allegations were the subject of two jury trials, several appeals and several parliamentary inquiries as to his fitness for office. Though acquitted, Murphy died before the parliamentary inquiries could run their course. Chief Justice Gibbs handled a difficult situation with great skill in a manner which minimised the impact on the Court as a whole.
In 1984, an amendment to the Judiciary Act 1903 (Cth) changed the mix of the Court’s work so that it could concentrate on more important matters. Previously, the right to appeal to the High Court from State Supreme Courts was based on whether more than $20,000 was at stake in a matter. Henceforth, the right to appeal was abolished. An appeal to the High Court could only proceed if the Court itself granted special leave to appeal based on the importance of the matter or whether there were conflicts among the State courts on the issues. The Court was freed from routine work and could concentrate on constitutional cases and the development of the law.
The Gibbs Court widened the application of the principles of natural justice, reversed the literalism of the Barwick Court on taxation and resolved the long-standing uncertainty on the industrial relations power from the days of the Knox Court. It held that the power with respect to industrial disputes extended to embrace disputes between any employer and employee, not just those in “industry” and held that the power covered State employees.
Chief Justice Gibbs had a high respect for precedent. He was in the minority in the first Territory Senators Case (Western Australia v Commonwealth (1975) 134 CLR 201), arguing that the Constitution did not permit them. The matter was raised again in the second Territory Senators Case (Queensland v Commonwealth (1977) 139 CLR 585) after those opposing Territory senators thought a change in the composition of the Court would favour them. However, Chief Justice Gibbs felt bound by the majority in the first case even though he thought it wrong.
Sir Harry Gibbs was the first Chief Justice to be subject to compulsory retirement at the age of 70 as required by amendments to the Constitution in 1977. He was active after leaving the Bench. He chaired a committee to review Commonwealth criminal law and chaired several inquiries and legal bodies. He was succeeded as Chief Justice by Sir Anthony Mason. The resulting vacancy was filled by Mary Gaudron, Solicitor-General for New South Wales, and the first woman to be appointed Justice of the High Court. Justice Stephen was appointed Governor-General in 1982. His vacancy was filled by William Deane of the Federal Court of Australia. Justice Aickin died in 1982. His vacancy was filled by Daryl Dawson, Solicitor-General for Victoria. Justice Murphy died in 1986. The vacancy was filled by John Toohey of the Federal Court.
The Mason and Brennan Courts 1987-1998
The Mason and Brennan courts have been described as activist, adventurist and creative, in both constitutional and common law matters. They have been both praised and criticised for it.
In 1988, a unanimous joint judgment in Cole v Whitfield (1988) 165 CLR 360 swept aside earlier tests used to determine the scope of section 92. The Court focused on whether a State law discriminated against interstate trade rather than whether the challenged law was an impermissible restriction on interstate trade or whether it was a reasonable or unreasonable regulation of it.
The Court’s 6-1 decision in Mabo in 1992 (Mabo v Queensland (No 2) (1992) 175 CLR 1), which affirmed native title to unalienated land, sparked widespread praise and condemnation. Some supporters favoured native title in any event, irrespective of its legal foundation. Legal academic supporters maintained it was squarely based on common law. Critics maintained native title should have been a matter for legislation or at least that the Justices in Mabo should have confined their decision to the Torres Strait islands which had a system of land-holding in an agricultural society. The extension of Mabo in Wik in 1996 (Wik Peoples v Queensland (1996) 187 CLR 1), when Sir Gerard Brennan was Chief Justice, drew a similarly mixed response. Wik permitted native title rights to co-exist with a pastoral lease where they were not inconsistent with the lease. Chief Justice Brennan, who wrote what is considered the principal judgment in Mabo, dissented in Wik and Justices Dawson, who had been in the minority in Mabo, and McHugh, who had also been in the majority in Mabo, concurred with him. However, Justices Toohey, Gaudron, Gummow and Kirby for varying reasons held that native title was not extinguished.
The Court was again praised and condemned for its creativeness when it held that the terms of the Constitution implied certain rights – particularly an implied freedom of political communication.
In Teoh (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273), the Court held that Australian ratification of a treaty gave rise to a legitimate expectation that administrators would exercise any statutory discretion in conformity with the treaty, even though it has not been given effect in legislation. The Commonwealth Parliament legislated specifically to overturn this doctrine.
Chief Justice Mason gave a number of media interviews to explain his views on the role of the Court and its role in Australian society. He argued that the courts did have a law-making role which involved policy decisions and it should be acknowledged.
After retiring at the age of 70 in 1995, he became Chancellor of the University of New South Wales. Sir Gerard Brennan was appointed Chief Justice. Three early retirements in the ensuing three years and the brevity of his term meant that his chief justiceship could be seen more as transitional as opposed to having its own mark.
During the Mason and Brennan chief justiceships, there were six changes to the Bench. Some of the changes were a sign of an emerging trend for Justices to take up other roles after leaving the Bench. Some left the Bench before the constitutional retirement age of 70.
Justice Wilson left the Bench in 1989. He was President of the Assembly of the Uniting Church in Australia from 1988 to 1991. He was appointed President of the Human Rights and Equal Opportunity Commission in 1990 and headed the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. He was succeeded by Michael McHugh, of the New South Wales Court of Appeal. Sir William Deane was appointed Governor-General in 1995 and succeeded by William Gummow, of the Federal Court of Australia. Justice Dawson resigned in 1997. He later was chair of an inquiry into certain aspects of the Trade Practices Act. He was succeeded by Kenneth Hayne, of the Victorian Court of Appeal. Justice Toohey resigned in 1998 and was succeeded by Ian Callinan, of the Queensland Bar. On Chief Justice Brennan’s retirement, Murray Gleeson, the Chief Justice of New South Wales, was appointed Chief Justice of the High Court.
The present Court
The present Chief Justice, Murray Gleeson, was appointed in 1998. The other Justices are: Michael McHugh (appointed 1989), William Gummow (1995), Michael Kirby (1996), Kenneth Hayne (1997), Ian Callinan (1998), and Dyson Heydon (2003).
During the period of the Gleeson court, Mary Gaudron (appointed 1987) resigned in 2003 and was succeeded by Dyson Heydon, of the New South Wales Court of Appeal.
Both the process of appointing High Court Justices and some of the appointments themselves have drawn criticism. The great majority of appointments, however, have enjoyed widespread support from the legal profession, legal academics and both sides of politics. Comment from the wider public has been infrequent with those appointments, mainly because the wider public is not usually well acquainted with appointees or possible alternatives.
Appointments that have drawn criticism have usually been on the ground that the Government of the day is trying to get Justices sympathetic to its political viewpoint appointed. The appointment process has been criticised most frequently for its failure to deliver a Court which is “representative” and because it is not an “open” process. Those who think the process should remain unchanged say it has by-and-large produced excellent appointments and that any opening of the process might result in good candidates not making themselves available for appointment.
On the question of representativeness, criticism has been based on several grounds: that too many of its judges come from New South Wales, Victoria and Queensland; that there has been only one woman on the High Court Bench in its 100-year history; and that the Justices do not reflect the diverse backgrounds of Australian society as a whole. The last two criticisms have only been recent.
The high number of appointments from New South Wales has been widely remarked upon. The Federal Attorney-General Daryl Williams, in an address to Monash University Law School on 1 May 1997, said:
“Although the High Court is a federal court, it could not be said that its membership has been representative of the federation.”
He mentioned that 22 of the 40 appointments to that date had been residents of New South Wales. There had been none from South Australia or Tasmania and only two from Western Australia. Since then, there have been three appointments, one each from Victoria (bringing its total to 12), Queensland (to six) and New South Wales. Political leaders in the smaller States have long complained that they have been under-represented on the Court, despite the enactment in 1979 of the High Court of Australia Act which provided:
“Where there is a vacancy in an office of Justice, the Attorney-General shall, before an appointment is made to the vacant office, consult with the Attorneys-General of the States in relation to the appointment.”
After the consultation, the appointment is made by the Governor-General in Council. A prospective appointment is first considered by Cabinet. After Cabinet agrees, the Prime Minister then formally recommends the appointment to the Governor-General. Consultation is widespread among the profession, the judiciary – including existing members of the Court, and State and federal politicians.
Williams, in reference to a recent appointment, explained the extent of consultation:
“Already I have written to my State and Territory counterparts formally advising them of the impending vacancy on the High Court and inviting them to consult widely within their own jurisdictions. . . . They may wish to consult within their jurisdictions the judiciary, the leaders of the legal profession and ministerial colleagues.
I have indicated that I propose, as early as possible, to provide to each State and Territory Attorney a list of candidates under consideration. The basis of the list will be the nominations received from each State and Territory together with any names the Commonwealth might wish to add to the list. I expect, in the ordinary course of events, that the source of the nomination would not be identified. . . .
I may also engage in consultations within [State and Territory] jurisdictions. . . . I intend to consult members of the Federal courts — the High Court, the Federal Court and the Family Court. There will undoubtedly be consultations with others, including former judges, leaders of the legal profession and my ministerial and other parliamentary colleagues. If the Leader of the Opposition, a Shadow Minister or any other non-government parliamentarian is minded to offer comment, I will be pleased to receive it. My purpose is to ensure that there will be wide consultations across Australia so that it could not be suggested at the end of the process either that a suitable candidate has been overlooked or that all reasonable steps to identify the best candidate were not taken.
On the basis of any comment offered by States and Territories on the circulated list of nominees and on the basis of my own consultations, I expect to provide advice to the Cabinet as to filling the vacancy.”
In the first half century or so of the Court’s existence, all or most of those who should have been considered were known personally by senior lawyers within the Government. In more recent times, the number of judges and practitioners has grown so that is no longer the case and consultation has become wider and more structured. Some commentators have called for parliamentary scrutiny, along the lines of the United States where a Senate Committee questions the proposed appointee. This view has been rejected by politicians and judges. Their views were summarised by Williams:
“The wide-ranging inquisition [of a parliamentary scrutiny] is likely to deter qualified candidates from allowing themselves to be nominated. Apart from the politicisation, the process is otherwise flawed. In order to ascertain a candidate’s approach to significant issues, the candidate would be expected to give answers, in the abstract, to the very questions which might arise for consideration on the bench in a factual context. That is likely to undermine in advance public confidence in an independent and impartial judiciary.”
In its 100 years, the High Court has had 44 Justices – nearly all of them have been at some time senior members of the Bar. Of them, 11 have been Chief Justices. Of the Chief Justices, six have been appointed from the High Court Bench and five from elsewhere. Of those appointed from elsewhere, three had been conservative politicians: Sir Adrian Knox, Sir John Latham and Sir Garfield Barwick, and two — the first Chief Justice Sir Samuel Griffith and the present Chief Justice, Murray Gleeson — were appointed from State Supreme Courts (where both were Chief Justice). Before appointment as Chief Justice of Queensland, Griffith was Attorney-General and Premier of Queensland.
In the Court’s first 40 years, appointments were made predominantly straight from the Bar. Only three out of 15 came via the Bench. Since then, appointments from State Supreme Courts and later the Federal Court have been more common. There has been no full-time academic appointed, though quite a number of Justices had taught at universities or written legal textbooks before appointment. Only one woman has been appointed.
Most of the Justices have been Protestant, nominally Protestant or from Protestant backgrounds. About a dozen have been Catholic or of Catholic background. Only one Justice, Sir Isaac Isaacs, has been Jewish. And there have been none from other faiths. It is more likely that the religious background of the Justices reflects the religious composition of the Bar from which they have been drawn, rather than having any role in appointments of itself.
The family and social background of the Justices is mostly professional, public service or business. But some were sons of craftsmen. Six Justices had been children and one unborn when their fathers died. Most went to private schools or selective State schools. All but four had university degrees. Of the 44 Justices, many more could be described of socially and politically conservative disposition than of a radical or reformist disposition.
Former Chief Justice Sir Anthony Mason, in an essay in Fragile Bastions (1997), suggested that what should be sought is not so much the ideal of a High Court Justice so much as a Court with a balanced composition. This is desirable, he wrote, because of the continuing division of opinion on the major issues of federation.
Others reject concepts like “balanced composition” or a “representative Bench” as undermining both the public confidence in the judiciary and the rule of law. Certainly any idea that Justices should be “representative” in terms of advocating the interests of the group to which they belong has been rejected. Among those rejecting this view are even those who advocate more women and academics and appointees from a more diverse ethnic background. Those rejecting the advocacy idea say that Justices should not be representative in this way because it undermines the independence and impartiality of the judiciary. That form of representation is a role for Parliament. Others also reject the concept that the judiciary should reflect society. For example, Victorian Labor Senator Barney Cooney rather graphically illustrated the point in Parliament on 30 May 1994:
“I think it would be wrong to appoint judges on the basis that they reflect society. If we do that . . . five per cent of judges ought to be convicted criminals. . . . What we want is a judiciary that understands the various sections of the community. We want a judiciary that is quite outstanding but, nevertheless, has an ability to understand the pressures and difficulties that people from all walks of life may have. It is the understanding that ought to be emphasised, rather than the reflected principles.”
Former Chief Justice Sir Harry Gibbs said:
“There are a number of reasons why appointments to judicial office, particularly to the High Court, should be made on merit — on learning and proved ability in the working of the courts — and, subject of course to character, on no other consideration. The High Court decides questions of great moment, and not infrequently does so by a majority of one, so that there is no room on the Court for any except those who are best qualified.”
Many consider that over time the High Court will become more reflective of society as a whole without compromising the merit-alone principle as more women and people of more diverse ethnic backgrounds work their way up the legal profession.
Another ground of criticism has concerned judicial activism. It perhaps reached its height in the months leading up to the High Court’s decision in Wik in December 1996 and immediately afterwards. In that case the court held that pastoral leases did not necessarily extinguish native title.
Justice Heydon in an article in Quadrant in April 2003 before his elevation from the New South Wales Court of Appeal to the High Court said:
“Courts are not supposed to decide questions which are merely moot, theoretical, abstract or hypothetical. They are not supposed to offer opinions which are merely advisory. The duty of a judge is to decide the case. It entails a duty to say what is necessary to explain why it was decided as it was, and a duty to say no more than what is necessary. To breach the latter duty is a form of activism capable of causing insidious harm to the rule of law.”
For example, some critics of what they saw as the adventurism in the majority judgments in the Mabo case contend that the Justices went beyond what was necessary to decide the case before them – that they held that native title could exist throughout mainland Australia when the case before them was dealing with islands in the Torres Strait with a long history of settlement, agriculture and land tenure. The critics of adventurism say that that was tantamount to legislative action which was inappropriate for the judiciary.
Colin Howard, former professor of law at the University of Melbourne, said:
“I do not think that the now notorious intervention by the present or very nearly present High Court into matters of great political and social moment has been a success at all. . . . It has weakened the influence of the judiciary quite seriously.” (quoted by Philip Ayres in Owen Dixon (Miegunyah Press), p 294.)
However, former Chief Justice Sir Anthony Mason has said that the widening of the Commonwealth’s legislative scope under the external affairs power was more a result of more matters coming within the concern of the international community than of any activism on the part of the Court. However, others have criticised the “matters of international concern” test. The Chief Justice Sir Harry Gibbs — in an article in Quadrant in 1990 — rejected the suggestion that judges’ decisions
“are to be explained by the beliefs or prejudices of the judges on social, political and economic questions. . . . There is no reason to believe that, of the Justices who decided the Dams case, the four who formed the majority thought that the building of the dam would be more harmful than beneficial or that the three in the minority held the converse view or that the four were, and the three were not, sensitive to contemporary political opinion. The difference of opinion manifested in the various judgments in that case was differences regarding legal principle, not political policy.”
The question of to what extent the courts make law, rather than merely declare it, is especially pertinent to the High Court. This is because the High Court is the highest court for matters of general law and therefore inevitably hears the most difficult cases where the law is least certain. Also, it interprets the Constitution which requires decisions on the limits of Federal and State power with profound import on national affairs.
The Mabo and Wik cases and cases involving implied freedoms in the Constitution led to caustic attacks on the Court by politicians:
In November 1996 Deputy Prime Minister Tim Fischer said, “I am frustrated and angered by the delay in handing down of the decision by the High Court of Australia with regard to the Wik decision.” On 4 March 1997, Fischer said about the search for a replacement for the retiring Chief Justice Brennan, “I’m looking, as one involved, for a capital ‘C’ conservative person.” The Premier of Queensland, Rob Borbidge, said, “The current High Court, across large parts of Australia, is increasingly being held in absolute and utter contempt.” The Prime Minister, John Howard, said:
“I can understand why people are saying more about this than they used to because we have had a few emanations from the judicial area to the effect that really the role of the courts is to give the Parliament a hurry on and to fill the gaps that the politicians don’t fill by their actions.”
The Member for Wide Bay, Warren Truss, told Parliament on 18 November 1993:
“The High Court is moving to extend its powers and influence and to usurp the law-making functions of this Parliament . . . . The High Court is therefore threatening the democratic balances and processes of government in Australia when it pursues an activist role in public policy areas.”
The attack by Fischer resulted in Chief Justice Sir Gerard Brennan writing to Fischer rejecting the criticism on 3 January 1997. Brennan wrote:
“You will appreciate that public confidence in the constitutional institutions of government is critical to our society. . . . I ask you to bear this in mind and to consider whether the making of attacks on the performance of the court of its constitutional functions is conducive to good government, even if an attack can gain some temporary political advantage.”
The Court enjoyed great confidence in the time of the chief justiceship of Sir Owen Dixon. When elevated to Chief Justice in 1952, Dixon said that, “strict adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. . . . There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.”
That legalism, however, would not freeze the law. Novel issues require answers which can be found by the application of recognised legal techniques, so the law would develop by extending an existing principle to new circumstances not foreseen when the earlier principle was developed. Dixon’s legalism – adherence to legal principle and processes of legal reasoning — contrasted with later approaches that suggested that values and policy could be taken into account in dealing with constitutional matters.
Others contend the Court should go beyond legalism. For example, Justice Mason (later Chief Justice) said in 1986:
“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. . . . Constitutions are documents framed in general terms to accommodate the changing course of events, so that courts interpreting them must take account of community values.”
Opinions about how the High Court goes about its task will inevitably vary. The Court is faced with the task of applying a Constitution written in the 19th century to conditions in Australia in the 21st century. More generally, it has to deal with new circumstances and that may require new principles. On the other hand, the rule of law requires certainty and the exclusion of arbitrariness.
Who should defend the judges
Criticisms of the High Court have led to the question of who, if anyone, is the most appropriate person to defend it.
In England, the Lord Chancellor has long held that function. In Australia, many have assumed that the first law officer of the land, the Commonwealth Attorney-General, would do the task, rather than having individual Justices of the High Court engage in debate about decisions. However, that can cause a conflict in a federal system where the Court decides on the limits of Commonwealth power. Sometimes the critics are political colleagues of the Attorney-General.
In 1997 the Attorney-General, Daryl Williams, cited the separation of powers as a reason for declining the role as defender of the courts and the judiciary:
“Courts are often required to determine matters between Government and individuals. For that reason it is important that the judiciary is not only independent of the Government, but perceived to be so. . . . Any intervention by one branch of government in the functions of another is capable of undermining public confidence in that other branch. . . . . I encourage judges to take more responsibility for defending themselves and their courts against criticism. . . . Where criticism is based on a misunderstanding of the law or on inaccurate reporting of a case, there may well be a role for judges or court-based media officers to correct public misunderstanding.”
At the time, the High Court did not have a media officer. The 1997-1998 High Court of Australia annual report to Parliament said:
“Public attention continues to be paid to the Court, its decisions and its role as the final Court of Appeal. Regrettably, some comments seemed to reflect a lack of understanding of the functions of the court, and its public role in the Australian community. In the past, Attorneys-General have explained this role and had dealt with under-reasoned or uninformed criticism of the court. Recently, the Attorney-General has expressed the view that the courts generally, including the High Court, would in future have to develop their own means to respond to criticism and comment. . . . If funds permit the justices would be minded to engage a public information officer to undertake a generally educative role regarding the functions of the court, and to respond appropriately from time to time to comment and criticism, to ensure that the role of the court is properly understood.”
In the following two years the Annual Report said that the Government had not provided funds for the position. However, the 200-2002 Annual Report noted that the Court would advertise for a public information officer which was filled in the Court’s 100th year.
In the meantime, The Australian newspaper reported on 25 June 2001, that Chief Justice Gleeson had stated his willingness, where appropriate, to defend the Court. It quoted him as saying:
“I think it’s necessary from time to time for Chief Justices to respond to criticism of judgments or judges, in circumstances where it’s necessary for someone to do that and the Attorney-General doesn’t do it. . . . I think that at the moment, as a general rule, the Court’s relationship with the public and with parliamentarians is decent and respectful, and while from time to time there will be particular instances of departures from that general rule, it’s something that is to be expected in a robust democracy. . . . Judges are not entitled to expect that all the comments made on their judgments will be polite or intelligent or understanding of the difficulties that judges had to deal with. But . . . they are entitled to expect that people who comment on the judgments take the trouble to read them.”
The workload of the High Court is prodigious. The way the Justices have coped with it over the past century has received high praise. The volume of work of the High Court can be seen in the Commonwealth Law Reports, the calendar of sitting days, and in the Justices’ work in the community with speeches, articles and academic contributions. In the century, the Court has produced more than 10,000 reported judgments and an unquantified number of unreported ones.
The High Court Act requires annual reporting to Parliament, so figures are based on the financial year. In 2002-2003, the Court heard 309 applications for special leave to appeal. Of these, 62 were granted and scheduled for full hearing, three were granted but the appeal itself dismissed instanter and one was granted and the appeal allowed instanter. Often the full hearing of an appeal will not occur until the following financial year. In 2002-2003, the Court heard 54 civil appeals and 10 criminal appeals following earlier grants of special leave to appeal. Taking out immigration matters, the court heard about 30 other cases, mainly constitutional matters.
Immigration matters have swollen the Court’s case list in the past two years. In a normal year, the Court would deal with between 20 and 30 applications for constitutional writs. That rose to 300 in 200-2002 (287 of them immigration matters) and 2131 in 2002-2003 (2105 of them on immigration). The sudden increase in immigration applications directly to the High Court was caused by changes to the Migration Act 1958 (Cth) which restricted access by aggrieved people to the Federal Court and restricted the capacity of the High Court to remit immigration matters to the Federal Court or the Federal Magistrates Court. It has meant that many aggrieved people in migration matters have recourse only to the High Court. The High Court has held that the Constitution prohibits Parliament from removing jurisdiction vested in the High Court by the Constitution to hear applications for writs and injunctions against officers of the Commonwealth, such as the people who administer migration law.
The sudden huge increase in immigration applications remains an unresolved issue. It is apparent that the Court cannot possibly deal with them all, yet there is no sign that the Government or Federal Parliament will change the Migration Act to allow the matters to be remitted to lower courts. On this issue, as the Court ends its first century, it finds itself in a stand-off against the Executive and Legislature which have attempted to restrict the jurisdiction of the courts in migration matters while the High Court has upheld its constitutional duty to ensure that officers of the Commonwealth act within the law.