Thawing the frozen continent - Page 10
From Griffith REVIEW Edition 19: Re-imagining Australia
© Copyright Griffith University & the author.
Written by George Williams
GIVEN THE PROBLEMS, why after more than a century has our system of government not ground to a halt? The answer often lies with judges. As the responsibility for initiating and leading change has been abdicated by elected representatives, it has been assumed by the High Court. By interpreting the Constitution and legislation, and developing the common law, the court's decisions have transformed how we are governed. Over a century, it has shifted law-making and financial power to the Commonwealth, discovered implied human rights like freedom of political discussion and recognised Aboriginal native title.
The high point of High Court activity came in the early to mid-1990s, when Sir Anthony Mason was chief justice. A series of decisions, including the Mabo native title case, opened up a debate that continues about the proper scope of judicial decision-making. This has included frequent use of the term ‘judicial activism' and the notion that judges have overstepped their role. Of course, the term is a pejorative one, as Janet Albrechtsen wrote under the heading ‘Death to Democracy' in The Australian on June 26, 2002:
A war on democracy is taking hold across the West. It's being launched by activist judges trying to overturn the will of the people ... At bottom, these activist judges think governments, politicians and the people who elect them cannot be trusted. The logical end point of this is elite rule. It might be a seemingly benign, well-educated, intelligent elite, but it's elite rule all the same. To date we've eschewed it as a poor alternative to democracy.
Her language is overblown, but Albrechtsen raises important questions: whether judges act undemocratically because they are not elected officials, whether they play an illegitimate role in making transformative decisions. There is some merit in this ‘democratic deficit' argument. If you were to pick an arm of government to be responsible for national reform, you would not chose the judiciary. It is highly unrepresentative – the first female justice was only appointed to the High Court in 1987 – and can only decide those matters brought before it. Put simply, you would be hard put to say the best shapers of the nation could be seven unelected lawyers. While the court has an important and necessary role in nation-building, it is not well equipped to play the lead.
My own thinking has changed significantly. It began when I walked into the High Court building in Canberra in early 1992. I had come straight from law school and was lucky to arrive at the beginning of the most interesting and active year in the court's history. That year the Mabo Case and early free speech cases marked the peak of the Mason court's impact on Australian law and government. It was a year when the court demonstrated it could play a major role in shaping Australian democracy. As a young graduate, it seemed to me that the court had all the answers and arguments for a leading judicial role.
I continue to believe the Mason court made the right decisions on key issues like native title, but have changed my mind about the appropriate role for the High Court. It is not the right leader, being institutionally incapable of achieving desired outcomes. While recognising native title was a momentous achievement, this has since foundered as new judges were appointed. The court alone could not forge a lasting political settlement.
Another point is that the court is unable to interpret the Constitution to provide symbolic recognition of Indigenous people. There are important limits to what the judiciary can achieve: many of the most important reforms are beyond them and others can be seen as illegitimate. The High Court could not, for example, insert a fully fledged Bill of Rights into the Constitution. In other areas, the court may have reached the workable limits of the text and the possibilities for easy adaptation. Other judges have reached the limit of their desire for reform. As a result, the aspirations and expectations of the Australian people are constrained by a century-old Constitution updated and interpreted in an ad hoc fashion.
The court is rarely capable of leading the debate to an effective conclusion. While it can bring about changes to federalism, there are also dangers it can lose touch with public opinion and political leadership. Ultimately, it depends on other institutions to make its decisions work, and for the selection of its judges. As Alexander Hamilton wrote in 1788 of the United States Supreme Court:
The judiciary ... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
The evidence of this convinced me that, while the High Court has a central role in our democracy, the reform agenda must by led by the community and its elected representatives. Such leadership is essential for successful reform. I now believe that the best way to improve human rights protection is new human rights laws. In this and other areas, it is often better to follow the difficult pathways of partisan politics to achieve lasting results.
While the High Court judges deserve credit for many changes that have updated and improved our system of government, there are dangers in leaving constitutional reform solely to them. Court-initiated change is often a second-best solution. It can distance Australians from their governance and legal structures, contribute to the sense of alienation that weakens our democratic system and undermine the vision of the founders for popular involvement in constitutional change.
There is a need for balance. While the High Court is rarely the best institution to reform the processes of government, it has frequently been the only forum for this, and its involvement has been inevitable. The High Court has a legal duty to hear the cases that come before it and, unlike political leaders, cannot duck obvious problems with the Constitution and system of government. It has never been realistic to suggest that the judges, in interpreting the ambiguous and uncertain words of the Constitution, could ignore the problems laid out before them. The point is not that judges ought to take the lead, but that even the more conservative judges will end up doing so if political leaders do not.
Over-reliance upon the High Court has, in recent times, made the community and political leaders unresponsive to the need for change. It is too easy to ignore good arguments for change, even when it is clear that a problem is beyond High Court interpretation and requires constitutional amendment or new legislation.
I am not suggesting that political leaders have totally neglected this aspect of political life. There are many examples of prime ministers striving for – and unfortunately too often failing to achieve – improvements. Even in these areas, the courts have had an impact, as the attempt by prime minister Paul Keating to cut the final symbolic ties with the British monarchy demonstrated. Keating was voted out of office in 1996 and his idea was carried to a referendum defeat by his successor John Howard. It is less widely known that, by virtue of a High Court decision, the United Kingdom is today regarded as a ‘foreign power'. In 1999, a majority of judges in Sue v Hill found that for the purposes of the Constitution this was indeed the case, despite the Queen remaining at the apex of our system. This highlights how a court, faced with the contemporary reality, could regard Australia as independent of the United Kingdom. While we have yet to see a successful referendum on the issue, the High Court judges have made it clear that when it comes to Australian law the last vestiges of monarchical power have been eradicated.
This illustrates a further point. Even if the courts were able to transform Australia into a republic through judicial interpretation, they could not achieve the real goal: a system of government that is legally effective and legitimate because it has the support and acceptance of the Australian people. Without legitimacy, legal change can be tokenistic because it lacks the democratic seal of approval needed for changes to be enduring and effective. Lasting reform can often only be won by democratic engagement and political leadership. Nation-building must transcend the judiciary.