Alternative Law Journal
by Haig Patapan; Cambridge University Press, 2000; 214 pp; $39.95 softcover.
edited by Adrienne Stone and George Williams, Federation Press, 2000; 242 pp; $90.00 hardback.
Judging Democracy was released in late 2000 as part of the 'Reshaping Australian Institutions' series overseen by the Research School of Social Sciences at the Australian National University. The series is aimed at rethinking Australia's key institutions in the context of 100 years of federation in this country. This work joins an impressive list of series publications by academic authors on subjects ranging across the disciplines of law, sociology, political science, business, media and education.
It is made clear in the introductory chapter of this book that the author intends to build on Brian Galligan's celebrated 1987 work The Politics of the High Court which examined the political nature of the High Court both as a branch of government and in respect of the political impact of its decisions. Ironically Galligan's work was published just prior to the induction of the Mason Court which, few would disagree, has been the most overtly political or policy-driven High Court to date. It was the Mason Court, of course, that exposed the fiction of the declaratory theory of law and openly announced that it in fact made law and had always done so. This exposition appears to pro vide both the motivation and the political thesis behind Patapan's book.
Patapan paints the new High Court as an essentially unchecked and powerful body capable of moulding society and the political doctrines and institutions that it is founded upon. He identifies a range of factors that have contributed to the High Court's increasing strength and importance within our political system. Certain external factors such as the removal of the Privy Council from our legal hierarchy simply coincide with the inception of the Mason Court. Other factors like the requirement of leave to appeal which has allowed the Court to assume control over its own docket, are initiatives of that Court. However, the 'new politics' of the High Court seems more than merely a reaction to practical exigencies. There has been a sea-change, not so much in the legal makeup of the Court but in the Court's willingness to assume a more governmental role. Patapan argues that the Court has:
... assumed the task of mediating international and domestic changes in constitutionalism - the uncharted waters of judging democracy-because of its perception that parliamentary government was no longer capable of checking executive power. [p.l79]
In his short and somewhat enigmatic foreword to this book, former Chief Justice Sir Anthony Mason expresses disagreement with some of the author's views. He cautions the reader in these terms:
The High Court is not a monolithic institution. It is at any time a group of seven justices who are obliged to hear and determine, according to their individual judgment, particular cases. The justices may have conflicting views on the role of the Court as well as on the principles of law which should govern the case in hand. It would therefore be a serious mistake to assume that, in deciding a case, the Court as an institution embarks upon any general policy with a view to achieving a particular goal, political or otherwise, external to the disposition of that case.
Clearly Mason finds Patapan's analysis of the Court's jurisprudence during his
reign as a little unforgiving. However, it is the
candid and rigorous treatment
of the subject matter that makes Judging Democracy a compelling read.
Patapan divides his book into seven thematic chapters, the substantive chapters dealing with issues of change in legal interpretation, constitutional implication of rights, native title, the doctrine of the separation of powers and democracy and citizenship. Each of these are areas in which the law, or the High Court's understanding of the law, has significantly advanced since the publication of Galligan's work in 1987. The 'new politics of the High Court' foreshadowed in the title, appears to have developed progressively over the course of the last decade. Each strand of the Court's jurisprudence has added some dimension to this 'new politics'. For instance, the cases of Mabo and Wik demonstrated the Court's willingness to take a more activist approach to considerations of citizenship, race and identity in Australia (p.144). The catena of implied rights cases indicated that the Court would step in where Parliament, or indeed the people, failed to act. Italso indicated that the Court was prepared to speak for the Framers by reading the protection of certain fundamental rights and doctrines into a Constitution which is otherwise quiet on the subject.
Chapter 6, which addresses the High Court's treatment of the doctrine of sep aration of powers is perhaps the most resolved of this work. This is an area in which Patapan has written extensively and the depth of scholarship is particu larly apparent. The Court's manipula tion of the doctrine demonstrates its unique capacity to redefine itself and its relationship with the other branches of government. It is m respect of attempt ing to maintain the application of the doctrine in the Australian system that the new politics of the High Court has met its greatest challenge. As Patapan contends, it is difficult to reconcile the concept of separation of powers with a law-making judiciary (p.150).
Whilst an examination of the High Court's recent jurisprudence is fascinating for its own sake, the author's dominant analytical purpose is to discover whether the High Court can be said to be 'judging democracy' or whether it is, through its decisions, conceiving of and implementing its own vision of democracy for Australia. Patapan observes that the High Court has 'openly and self-consciously redefined itself as more an arbitrator of the boundaries of federalism, a Court that is prepared to adjudicate constitutive questions - matters that go to the very make-up of the regime' (p.178). But does the High Court in fact possess the power to shape the country in this way and if so from where does it derive its legitimacy?
This question is one which has, particularly in the aftermath of the High Court's decision in Wik, occupied the minds of many commentators. Indeed the debate about the role of the High Court in the governmental process has moved beyond the traditional boundaries of legal academia to more public and political forums. If there were one criticism to make of this book it would be that the author fails to address the substance of this external debate to establish how non-judicial forums view the role of the High Court and how these views have shaped the Court's own understanding of its role. It may be that an examination of this nature is beyond the scope of this thesis but, as a book which professes to deal with the Court as a public and political institution, the omission is notable.
Judging Democracy is cogent, concise and persuasive. Patapan's writing style and the thematic chapter arrangement enhance the book's accessibility to a non-expert audience without subtracting from the importance of its underlying scholarship.
In The High Court at the Cross roads, editors Adrienne Stone and George Williams collect together a series of papers and commentaries presented at the 1999 Public Law Week end, a two-day conference addressing constitutional issues. Whilst Judging Democracy focuses primarily on decisions of the Mason Court, The High Court at the Crossroads looks at how the Brennan Court and, more particularly, the current Gleeson Court have developed this jurisprudence.
The collection features essays on the freedom of political communication, cross-vesting of jurisdiction and the evolution of Australian sovereignty and independence. Two chapters look at recent decisions where the High Court has employed Chapter III of the Commonwealth Constitution to delineate the boundaries of federal judicial power as it relates to Chapter III courts and other institutions.
Linda Kirk's essay on this last subject makes for most interesting reading. In this chapter Kirk uses the case of Abebe v Commonwealth (1999) 162 ALR 1 to illustrate the central role of judicial review of administrative action in upholding the rule of law. She argues that 'the protection of the law as a bulwark between the government and the governed is destroyed if the citizen is deprived recourse to the courts' (p.120). To maintain this protection, Kirk calls on the High Court to reassess the principles it applies in considering the legality of privative clauses which seek to exclude or limit judicial review of administrative action. Essentially, she is asking the Court to take a stronger stance in respect of legislative interference with the judicial process. The decision of the High Court in Nicholas v The Queen  HCA 9; (1998) 193 CLR 173 further demonstrates the Court's recent deferential approach to such legislative interference. In that case the Court decided that the legislature may validly alter rules of evidence and procedure thereby directing the exercise of judicial power (p.l39). In Kirk's view, such interference effectively usurps judicial power and threatens fundamental rights and liberties guaranteed by the rule of law and protected by the judicial process. This is challenged by Henry Burmester in his commentary on this paper as a 'dangerous and misconceived view' (p.142). Burmester makes the point that there is no evidence to suggest that 'unconstrained ... judicial review provides the best safeguard for individual liberty' (p.142). This is particularly so where the exercise of executive power is not arbitrary but is conceived by balancing the aims of social justice in a broader context.
Another contribution of note is Dennis Rose's chapter on the demise of cross-vesting following the High Court's decision in Re Wakim; Ex parte McNally  VSC 227; (1999) 163 ALR 270. Rose dissects the reasoning by dealing with each judge in tum, revealing disturbing contradictions and disregard for both argument and precedent. In his informative commentary to this chapter, Brian Opeskin places both the decision in Re Wakim and Rose's observations in historical context. He concludes that whilst the decision in Re Wakim undoubtedly removed a co-operative scheme that was 'highly prized by governments, lawyers and litigants,' it has left in its stead the 'opportunity to pursue new avenues of constitutional change' that may result in a fairer, more democratic and inclusive system (p.222).
The final, and in my opinion, most valuable chapter addresses the present state of constitutional interpretation. This chapter, authored by Leslie Zines, begins by providing an excellent but brief overview of methods of constitutional interpretation employed by High Court benches in the past quarter century. In his inimitable and critical style Zines identifies the important trends and defining decisions of this period. He then proceeds to analyse the decisions of the current Court in more depth, providing comment on each area of jurisprudence addressed in the essays which make up the chapters of this book. Essentially, this analysis updates Zines' seminal text, The High Court and the Constitution and should be compulsory reading for any student of constitutional law.
Like many collections of conference papers the text of The High Court at the Crossroads tends at times towards dry analysis, however the book is effectively redeemed by the often challenging critical commentaries following each chapter. The fact that the book features authors who are not exclusively from academic institutions is also worthy of note. If your knowledge of Australian constitutional interpretation needs updating this book will do the trick.
Tatum Hands is a PhD candidate in the Department of Political Science at the University of Western Australia.
©2001 Tatum Hands