Coper, Michael --- "Law, History, and The Idea of the High Court[1]" [2008] ALRS 4

Last Updated: 7 May 2010

Australian Government Summer School For Teachers Of Australian History

Canberra, 14-23 January 2008

LAW, HISTORY, AND THE IDEA OF THE HIGH COURT[1]

Professor Michael Coper[2]

First of all, may I add my welcome to those of other speakers. Welcome to Canberra, welcome to the ANU, and welcome to this summer school. It is a wonderful program, and I just wish that I could sit in on all of it.

A legal perspective
I want to bring a slightly different perspective to those you have heard to this point: a legal perspective, with special reference to the High Court.

Reading through the program, what really struck me was how so many of the issues of history and historiography manifest themselves in the High Court, whether through the way they shape the issues that arise for decision, or in relation to how we see the role and impact of the Court itself as one of our institutions of national government. Just think of these themes in your program: colonialism, federation, national unity, democracy, environmental history, military history, indigenous history, gender issues. I could tell you the story of the High Court (and I must say that I think of history essentially as stories) from any or all of these perspectives: how these issues assume legal form and are pronounced upon by the Court, and how the currents of history themselves sweep through the Court and affect our assessment of it as an institution.

Moreover, the High Court’s own decision-making processes raise all of the familiar questions of historiography: questions of evidence and proof, of fact selection, of interpretation of texts, and so on. Former High Court Chief Justice Sir Anthony Mason will touch on that in the next session[3]—let me first go back a step and say a bit about the some of the differences between law and history.

Discovering the law and discovering history—similarities and differences
To put it very simply, lawyers resolve disputes (or assist in resolving disputes), and they do so by reference to an assumed body of knowledge, known as 'the law’. The law might comprise previous judicial decisions (articulating the 'common law'), legislation, judicial decisions interpreting that legislation, or a combination of those primary sources of law—all applied to a unique factual situation. If that situation is materially similar to previous ones on which the law has pronounced, the result will be the same (subject to overt and deliberate change, which I come to later); if the situation is different, the law may have to be adapted to it. But in either case, the legal adviser, or the judge, will draw upon sources external to his or her own whim, and draw a conclusion—in the case of the adviser, it will be exactly that, advice about what the law is, and thus be somewhat contingent; in the case of the judge, it will be a definitive statement of what the law is (subject to appeal, which again I come to in a moment).[4]

You can see at once the parallel with the role of the historian—the lawyer and the historian both trawl through raw material and endeavour to come to an objective conclusion—but in the case of the law, the outcome is binding on those affected by it. In that sense, the judge’s answer is authoritative, and people’s rights are affected.

But what if the judge gets it wrong?

If the historian gets it wrong—putting aside for the moment the crucial question of what we mean by wrong in this context—he or she is subject to correction by the opinion or re-interpretation of a later historian.[5] But how can the legally sanctioned, authoritative answer be wrong? Well, of course, it can, and that brings me to the High Court.

In the law, we provide for a system of appeals. The decision of a lower court may be overturned by the decision of a higher court. But we do not have an unlimited number of appeals, and that is so for at least two reasons. First, there is a certain social value in having a legal dispute settled, rather than continuing to debate it in an endless cycle of further opinion (another point of difference here, perhaps, with the historian). Secondly, in any event, you would only have appeal after appeal after appeal if there were truly some robust concept of a single, objective, right answer. But, shocking as it may seem, this is not really so (a point of similarity this time, perhaps, with the historian). Many decisions of the High Court, our highest court, are very closely divided. As an expedient, we accept the decision of the majority—not an unfamiliar concept, of course, in many other walks of life, including politics. But we accept it, not because it is necessarily right, but because it is the decision of the majority. As a former judge of the United States Supreme Court once said, ‘we are not final because we are infallible—we are infallible only because we are final’.[6]

Thinner air at the top of the mountain
The High Court is, as I said, the highest court in our hierarchy of courts. But only a very small number of cases get there. Most disputed legal issues are settled by the parties before they even get to court. Most of those that do get to court will be resolved by the lower courts, the State Supreme Courts, or the Federal Court of Australia. The losing litigant has no ‘right’ to go all the way to the High Court—there were some exceptions to this before 1984, but now the High Court must be persuaded that your case raises an issue of public importance: it must grant you 'special leave' to appeal.[7] To use the American terminology, the court now ‘controls its own docket’.

This filtering process ensures that the High Court typically—not exceptionally, but typically—hears difficult and contentious cases, in which different views are possible and divided opinions likely. So, what the majority says goes—until, at least, a different view is taken in a later case. (For clarity, I should add here that the particular dispute between the parties is resolved once and for all—it is the general principles of law divined by the court, and applicable more widely, that are the real bone of contention.)

So, you have an ultimate court in a legal system to decide finally what the law is, but its caseload is necessarily selective. Our federal system might have made it even more selective. The United States Supreme Court hears only federal or constitutional matters; the State Supreme Courts there have the final say on local issues of private law. In Australia, the High Court can hear appeals from State Supreme Courts on any matters. This has had a significant unifying effect on Australian law,[8] and was a deliberate part of the constitutional design—but it was a matter of choice, not of necessity.

There is so much more I could say about the history of the development of the idea of the High Court—especially the fascinating story of the abolition of appeals to the Privy Council, that colonial relic in London, which did not finally occur until as late as 1986;[9] issues of how the court should be composed, and who should make the appointments;[10] and many more. But in the short time I have, I just want to say a little more about the nature of the Court’s decision-making process—in other words, not so much the history of the High Court, but rather the lawyer’s equivalent of historiography, if only there were a word for it—perhaps the 'jurisprudence' of the Court is as close as I can get to it. This may serve as a useful introduction and background to Sir Anthony Mason's talk on the use of history in legal reasoning.[11]

Interpreting the Constitution
First can I mention, because this is the area I want to focus on, that, in addition to being the final court of appeal in Australia on all matters of general law, the High Court’s other major role is interpretation of the Australian Constitution (these cases may also come as appeals, but are often heard in the High Court’s so-called ‘original jurisdiction’, that is, they go straight to the High Court).

Now, interpreting the text of the Constitution takes us directly back to those parallels with the work of historians. What is the meaning of the text? What evidence is relevant to that question? Is it a matter of the intention of those who wrote the text, or, in the hands of the interpreters, does the text take on a life of its own?[12] If it is a matter of intention, at what level of generality should we think of that intention? Could the intention embrace, paradoxically, the anticipation that what was envisaged originally might give way to a different outcome in changed circumstances?[13]

The Franklin Dam Case
I know you have been looking at the celebrated Franklin Dam Case,[14] decided a quarter of a century ago this year, so let me very briefly use that to illustrate some of these issues. The Commonwealth—on the election of the Hawke Labor government in 1983—passed legislation prohibiting construction of a dam on the Gordon River below the Franklin. Tasmania challenged the validity of the legislation in the High Court. The Commonwealth can pass legislation only in those areas specifically given to it by the Constitution.[15] Those areas do not include 'protection of the environment', which will not surprise you for a document drawn up in the 1890s.

They do, however, include 'external affairs',[16] which again will not surprise you, as it is quintessentially the function of the national government to conduct our relations with other nations. Conducting international relations is largely an executive function, but legislation might be necessary to, for example, provide local mechanisms for the extradition of fugitive offenders, or for the implementation of postal treaties. In the 1890s, though, foreign relations were conducted in a much more limited field than they are today, when bilateral and multilateral agreements can cover anything from the elimination of racial discrimination to the limitation of greenhouse gas emissions to the stockpiling of nuclear weapons.[17]

In the Franklin Dam Case, the Commonwealth relied primarily on the fact that it was a signatory to the World Heritage Convention. This, so it was argued, made it an 'external affair' to implement that Convention in aid of protecting the Tasmanian wilderness.

The contrary argument put by Tasmania was that it was not enough simply to have an international agreement on the subject. Given the potential to have international agreements on any subject at all, this could totally subvert the Constitution's careful limitation of the powers of the Commonwealth to the finite list drawn up in the 1890s. Clearly, some international agreements could be validly implemented, but their subject matter had to be intrinsically international in character, independently of the mere fact that they were the subject of an international agreement. Matters like human rights and environmental protection, so it was said, were inherently matters of domestic concern, and therefore for the States to regulate.

The Commonwealth's argument prevailed by a majority of four to three (and, in my view, rightly so[18]—though I have to say that, don't I, with Sir Anthony Mason, a leading member of the majority, in the audience?!). In the majority's view, the expression 'external affairs' was broad and general, and what had changed over the years was not the core meaning of the expression but the factual circumstances in which the Constitution now operated.

Historical enquiry only one of many factors in legal interpretation
In truth, the issue is only superficially an historical one, because there are other, competing criteria for interpreting the Constitution: the plain meaning of the words, the structural design of the document, opinions expressed in earlier judicial decisions, and so on. But even if it were an historical question, the historians would have to grapple with the same questions as the lawyers, especially the problem of attributing a collective intent to the fragmentary statements of individuals that are all part of the historical record, and the further problem of ascertaining whether what was intended was a set of specific and anticipated outcomes or rather, as the generality of the constitutional language suggests, a range of outcomes that might change with changing circumstances.[19] These are conceptual rather than merely factual issues, and pervade both constitutional interpretation and historical enquiry.

I am sure that Sir Anthony Mason will have more to say about this in his talk, so I would add only that, given that there are multiple criteria for interpreting the Constitution, the High Court has been somewhat ambivalent, even inconsistent, in its reliance on history to bolster a favoured interpretation.[20] In 1988, in a case called Cole v Whitfield, the Court narrowed the interpretation of the constitutional guarantee of free trade between the States by relying heavily on the original constitutional design, as evidenced by the historical record.[21] By contrast, in 1992, it found an implication in the Constitution of freedom of political communication that operated to invalidate a Commonwealth law restricting political advertising;[22] the implication was drawn from the Constitution's embodiment of representative government, and may or may not—probably the latter—have been something that the framers of the Constitution either intended or foresaw.

Although it is to some, this ambivalence, or, as I said, even inconsistency, is not, to my mind, either surprising or alarming. Constitutional interpretation is rich with diverse touchstones of interpretation, plausible yet competing arguments, individual differences of opinion (resolved only by taking the majority view as authoritative), and shifts in opinion over time. Again, there are interesting, though incomplete, parallels with historical enquiry.

The High Court and democracy 'under law'
I have made passing reference to the High Court 'invalidating' laws passed by a properly constituted, democratically elected Parliament. Given today's theme of Australian democracy, it is worth asking how the High Court fits into this picture.

The judges are not elected. Neither are they subject to recall, and can be dismissed only in extraordinary, and thankfully rare, circumstances.[23] They are independent of government, and stand apart from politics. Yet they can strike down laws that have passed through the democratic political process. To give only a few prominent examples with which you may be familiar, in 1948 the Court thwarted the Chifley Labor government's attempted nationalisation of the banks.[24] Three years later, in 1951, in a nice display of political even-handedness, it struck down the Menzies government's attempted banning of the Communist Party.[25]

How can this be so? How can this be part of what we understand by democracy?

I could give you the answer in a book or a paragraph—in today's context, I shall go for the latter! In essence,[26] democracy is a more sophisticated notion than merely majority rule, free and fair elections, a universal franchise, an informed electorate, accountability mechanisms, and other associated political elements—important, subtle and elusive as those elements are, as I am sure you heard this morning from Marian Sawer.[27]

You need to think only of our federal complication to realise that democracy is also typically about the sharing, and thus diffusing, of power between different levels of government. Power is also shared between different institutions within those levels of government. This is what is often referred to as the 'separation of powers': notably between legislature, executive and judiciary.[28] Power is not concentrated in the hands of any one government or any one institution.

Monolithic majority rule is also often tempered by what is generally accepted as an equally important countervailing principle: the recognition and protection of minorities. This is why most democratic nations have Bills of Rights—often judicially enforced, but not necessarily so. That is another subject altogether,[29] but the movement for express statements of rights in Australia, which has been much criticised for lagging behind in this respect, is gathering pace at the State and Territory level.

In these power sharing arrangements, the courts exercise 'judicial power'. Much ink has been spilt on what that means, but part of it goes back to what I said earlier about the role of the courts in settling disputes by stating definitively and authoritatively what the law is and applying that law to the particular case. Moreover, this is done in open court, by judges independent of the executive, and justified by written reasons that are open to public scrutiny. This is all part of what we understand by the 'rule of law',[30] which is often said to be an integral part of, or underpinning for, democracy.

When the High Court exercises its so-called power of 'judicial review' to invalidate legislation or executive action,[31] it is doing no more than applying the law of the Constitution and enforcing the limits that the Constitution imposes on legislative and executive power.[32] That is the true source of its democratic legitimacy. It is not following the dictate of any particular constituency, nor imposing any personal whim. It is attempting to resolve disputed questions by reference to an objective body of knowledge that stands apart from any subjective bias or personal policy preference. This objective body of knowledge we call 'the law'.

Judicial creativity
If only we could stop there! But this is only the beginning. This is where it gets really tricky. Just as historians know that our knowledge of the past is contingent and subject to interpretation and re-interpretation, so the law is dependent for its articulation on its human actors, whose chronic disagreement alone is testament to the elusiveness of an objective body of legal knowledge.

This dilemma becomes even more acute when the High Court, or a majority of the High Court, decides to change an earlier understanding of the law, whether of private law or the law of the Constitution, rather than leave that deliberate change to the legislative process, or, in the case of the Constitution, to the electorate voting at a referendum under section 128 of the Constitution.

This is far too big a debate to embark upon here.[33] The phenomenon is frequently characterised—unhelpfully—as 'judicial activism',[34] and the period from the mid-1980s to the mid-1990s, when Sir Anthony Mason was Chief Justice, is frequently regarded as one of the High Court's most activist periods.[35] But the tag is unhelpful, for many reasons. Whenever the Court is applying old law to new facts, it is making new law, and there is no bright line between that activity and many decisions that are thought to introduce more radical change or to overturn earlier understandings—it really is a continuum rather than a case of distinct phenomena.

Moreover, reasons must be given and, as I said, are open to public scrutiny and criticism; this is a significant element, perhaps the most significant, though often under-acknowledged, in providing an accountability mechanism for an institution that is not answerable to electors.[36]

And there is a safety-valve: at the end of the day, judicial law-making thought to be inappropriate can itself be overturned by the legislature, or, in the case of constitutional law-making, the Constitution amended by the people (difficult as history has proven that to be). Here again we see the interplay and tension between different institutions, whose power-sharing goes to make up a key part of any sophisticated understanding of our system of democracy.

The human element in law and history
So, at the end of the day, judges, like historians, are human beings, who weigh up the evidence, select which facts are salient, choose between competing legal principles, and generally apply their personal and subjective judgment in the application of objective principles and standards. In the case of the law, and, I suspect, of history, it is not so much a matter of what is correct, as it is of what is persuasive. Judge-made law has that added element of 'deemed' correctness, that is, of authority and bindingness, but whether it is also persuasive, and thus sustainable, is a matter for a never-ending conversation between the courts and their critics. We should be grateful that, in Australia, we have the freedom to have that conversation.

Law and history in the classroom
Can I finish by commenting briefly on how, as primary and secondary school history teachers, your teaching might be informed by any or all of the themes I have touched upon. This is a challenging question, because the issues I have raised are, I think, complex and subtle. Even in the academy, there is not a great deal of interdisciplinary work on the nature of judicial decision-making, despite its historical, philosophical, psychological, sociological and political dimensions; the never-ending conversation I referred to has been mainly amongst the lawyers, with the odd salvo from the media, whose criticism—like that of politicians with a particular agenda—is often very result-oriented, with little sensitivity to the imperatives and limitations of legal processes.

However, the overarching message I would like to leave you with is that, when discussion in your classroom turns to the law or courts or judges, I hope you will do your best to avoid the stereotypes with which these subjects are afflicted. Because of the inescapable complexity of our lives and affairs, the law is not a simple set of easily knowable or static rules, whose application is boringly mechanical. It is a dynamic and contested process, which lies at the heart of how we organise ourselves as a civil society. If that is, in part at least, how you think about history—with all of its uncertainty, contingency, different perspectives, and need for interpretation—that mindset might also assist in thinking about the law.[37]

Professor Michael Coper
Dean of Law and Robert Garran Professor of Law
ANU College of Law, Australian National University

18 January 2008

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[1] Edited and footnoted version of a twenty-minute talk given to the Australian Government Summer School for Teachers of Australian History, Canberra, 18 January 2008, with references added mainly as suggestions for further reading.

[2] Dean of Law and Robert Garran Professor of Law, ANU College of Law, Australian National University, Canberra.
[3] Sir Anthony Mason, 'Judges as Historians?: The Use of History in Legal Reasoning', paper presented to Australian Government Summer School for Teachers of Australian History, Canberra, 18 January 2008.
[4] For a good introduction to these basic issues, I recommend Patrick Parkinson, Tradition and Change in Australian Law (LBC Information Services, 2nd edition 2001).
[5] As illustrated vividly in this session by Terry Irving's challenge to conventional accounts of the origins of democracy in colonial Australia: Terry Irving, 'The Southern Tree of Liberty', Australian Government Summer School for Teachers of Australian History, Canberra, 18 January 2008.
[6] Justice Robert H Jackson in Brown v Allen (1953) 344 US (United States Supreme Court Reports) 443, 540.
[7] See Judiciary Act 1903 (Commonwealth) sections 35,35A. Before the Judiciary Act was amended in 1984, litigants had a right to appeal in a range of disputes involving a monetary amount over a certain threshold.
[8] See Michael Coper, 'National unity' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 492.
[9] See Tony Blackshield, Michael Coper and John Goldring, 'Privy Council' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 560.
[10] See Simon Evans, 'Appointment of Justices' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 19.
[11] Above n3.
[12] There are some nice parallels here with debates in literary criticism.
[13] For an introduction to these pervasive issues of constitutional interpretation, see Adrienne Stone, 'Constitutional interpretation' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 137; Michael Coper, Encounters with the Australian Constitution (CCH, 1987).
[14] Commonwealth v Tasmania (1983) 158 CLR (Commonwealth Law Reports) 1; [1983] HCA 21; http://www.austlii.edu.au/au/cases/cth/HCA/1983/21.html.
[15] These are to be found mainly in section 51 of the Constitution.
[16] Constitution section 51 (xxix).
[17] See http://www.info.dfat.gov.au/treaties/.
[18] See Michael Coper, Encounters with the Australian Constitution (CCH, 1987) ch 1; Michael Coper, 'The Role of the Courts in the Preservation of Federalism' (1989) 63 Australian Law Journal 463; Michael Coper, 'The Proper Scope of the External Affairs Power' in Upholding the Constitution, Volume 5, Proceedings of the Fifth Conference of The Samuel Griffith Society (The Samuel Griffith Society, 1995) 47.
[19] See Michael Coper, 'The Place of History in Constitutional Interpretation' in Gregory Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (Legal Books, 1986) 5.
[20] See Michael Coper, 'Constitutional Law' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 139, 142.
[21] Cole v Whitfield (1988) 165 CLR (Commonwealth Law Reports) 360; [1988] HCA 18; http://www.austlii.edu.au/au/cases/cth/HCA/1988/18.html. In his summer school paper (above n3), Sir Anthony Mason draws a useful distinction between different kinds of historical questions, especially between 'what was intended' by, for example, the framers of the Constitution, and 'why' certain things may have happened. The former remains a legal question, on which answers to the latter may nevertheless shed some light. There is a brief, though far from definitive, discussion in Cole v Whitfield of the relevance of the historical material to the legal issue.
[22] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR (Commonwealth Law Reports) 106; [1992] HCA 1; http://www.austlii.edu.au/au/cases/cth/HCA/1992/1.html.
[23] See Constitution section 72.
[24] Bank of New South Wales v Commonwealth (1948) 76 CLR (Commonwealth Law Reports) 1; [1948] HCA 7; http://www.austlii.edu.au/au/cases/cth/HCA/1948/7.html. Upheld on appeal to the Privy Council in Commonwealth v Bank of New South Wales (1949) 79 CLR (Commonwealth Law Reports) 497; [1949] HCA 47; http://www.austlii.edu.au/au/cases/cth/HCA/1949/47.html.
[25] Australian Communist Party v Commonwealth (1951) 83 CLR (Commonwealth Law Reports) 1; [1951] HCA 5; http://www.austlii.edu.au/au/cases/cth/HCA/1949/47.html.
[26] See Michael Coper, 'Democracy, Court's role in' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 203.
[27] Marian Sawer, 'Democratic Audit of Australia', paper presented to Australian Government Summer School for Teachers of Australian History, Canberra, 18 January 2008.
[28] See Fiona Wheeler, 'Separation of powers' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 618.
[29] See Sir Anthony Mason, 'A Bill of Rights for Australia' in Geoffrey Lindell (ed), The Mason Papers (The Federation Press, 2007) 207.
[30] See Leighton McDonald, 'Rule of law' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 610.
[31] See George Williams, 'Judicial review' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 376.
[32] See Michael Coper, 'Marbury v Madison' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 453.
[33] See Sir Anthony Mason, 'Legislative and judicial law-making: Can we locate an identifiable boundary?' in Geoffrey Lindell (ed), The Mason Papers (The Federation Press, 2007) 59.
[34] See Ronald Sackville, 'Activism' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 6; Michael Kirby, Judicial Activism: Authority, Principle and Policy in the Judicial Method (Sweet & Maxwell, 2004); Michael Coper, 'Concern about Judicial Method' [2006] MelbULawRw 17; (2006) 30 Melbourne University Law Review 554.
[35] See Michelle Dillon and John Doyle, 'Mason Court' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 461; Cheryl Saunders (ed), Courts of Final Jurisdiction—The Mason Court in Australia (The Federation Press, 1996).
[36] See Michael Coper, 'Accountability' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 3.
[37] I have not dealt with two matters that were foreshadowed in the Summer School Program and Course Guide. The first is whether, and in what sense, the High Court might be fairly described as a 'political' institution; as to this, see Michael Coper, 'Political institution, Court as' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP, 2001) 539, and Michael Coper, 'High Court' in Brian Galligan and Winsome Roberts (eds), The Oxford Companion to Australian Politics (OUP, 2007) 249. The second is my passing observation that the story of the High Court might be told by outsiders looking in or by insiders looking out. To assist the latter concept, I am engaged with two colleagues, Professors Fiona Wheeler and John Williams, in creating an 'oral history' of the Court, in which we conduct and record extensive interviews with the judges, and others closely associated with the workings of the Court, and then deposit the audiotapes and transcripts with the National Library of Australia. Some of the material may be subject to embargo, but it will, over time, establish a wonderful repository of material for future historians. The material will not only be interesting and important in its own right, both for the stories it will tell and the unique perspectives it will provide on the history of the High Court as an institution, but will also be significant in an instrumental sense, for lawyers and historians, in assisting our understanding of the nature of the judicial process, and in formulating more nuanced and sophisticated answers to some of the difficult questions posed in this paper about the tension between subjectivity and objectivity in judicial law-making.