Sackville, Justice Ronald --- "Courts and social change" (FCA) [2004] FedJSchol 16

AUSTRALIAN LAWYERS AND SOCIAL CHANGE

(AUSTRALIAN NATIONAL UNIVERSITY)

COURTS AND SOCIAL CHANGE

by:

Justice Ronald Sackville*

National Museum of Australia, Canberra
23 September 2004

*Judge, Federal Court of Australia

Introduction[*]

The relationship between courts and social change can be viewed from at least two perspectives. The first, frequently explored in the literature, invites consideration of how courts respond to social change, real or apparent. The second directs attention to whether the courts themselves can bring about social change.

There is, of course, a vast literature on the role of law in society, some of which examines the impact of legal reforms, including judicial law-making, on community norms or values.[1] But in Australia legal commentators have devoted little attention to the role of courts as instigators of social change. Perhaps this is because there is a substantial body of opinion that seems to take it for granted that courts have no business attempting to bring about social change. The Chief Justice of the High Court, for example, has recently expressed the view that judges:

‘do not set out to influence wider community values. They are neither followers nor leaders of public sentiment.’[2]

This proposition, however, is not entirely self-evident, not least to Mr Dooley who famously observed that ‘th’ supreme coort follows th’ iliction returns.’[3]

The lack of attention in Australia to the role of the courts as instigators of social change contrasts with the passion and intensity of the debate concerning the merits (or drawbacks) of so-called ‘judicial activism’. The contrast is striking because much of the criticism of judicial activism seems to presuppose that judges, particularly of constitutional courts, not only have the power to make new law on issues of fundamental social, economic and political importance, but also the ability, by their decisions, to shape community norms and values. Thus it has been said that for example, judicial activists ‘undermine values that should be central to progressive politics’ and participate in government in a ‘profoundly anti-democratic’ manner.[4]

In this paper, I first address the debate about ‘judicial activism’ which reflects one aspect of the relationship between courts and social change. I suggest that the intensity of the passions unleashed by much of the debate is inversely proportionate to the true significance of the issues at stake. I then make some observations on the ability of courts to bring about social change. The discussion is informed by a recent re-evaluation of the 1954 decision of the Supreme Court of the United States in Brown v Board of Education,[5] which is often seen as having ended the era of officially sanctioned social segregation in that country. I argue that the courts have but a limited capacity to effect genuine social change.

A Definitional Issue

Any discussion of the relationship between law and social change immediately raises a definitional issue. What is social change? Plainly the concept must mean something more than developments in legal doctrine, even those of fundamental importance to the legal system. Otherwise significant legal change, by hypothesis, would bring about social change.

A well-known dictionary of sociology suggests that, at least to sociologists, social change involves:

‘changes that affect norms, values, behaviour, cultural meanings and social relationships’.[6]
This definition takes a broad view of social change, but raises further definitional questions. What, for example are ‘norms’ and ‘values’? Eric Posner says that a norm:

‘can be understood as a rule that distinguishes desirable and undesirable behaviour and gives a third party the authority to punish a person who engages in the undesirable behaviour. Thus, a norm constrains attempts by people to satisfy their preferences’.[7]

Although a norm can be described as a rule, it is not formally promulgated or enforced. Rather:

‘when people observe some behavior, they more or less spontaneously approve or disapprove of it (or fail to react), and then reward, penalize, or ignore the actor’.[8]

The concept of ‘community values’ is even broader than a norm. Perhaps no more specific definition of community values can be advanced than ‘conceptions of the desirable society ... held in common by its members’.[9]

Theories of social change must accommodate the large ideas incorporated in the concepts of societal norms and values. Haferkamp and Smelser, for example, argue that any theory of social change must contain three elements:[10]

‘1. Structural determinants of social change, such as population changes, the dislocations occasioned by war, or strains and contradictions.

2. Processes and mechanisms of social change, including precipitating mechanisms, social movements, political conflict and accommodation, and entrepreneurial activity.
3. Directions of social change, including structural changes, effects, and consequences.’
   

If these are the elements of any theory of social change, it would seem that legal reforms, at least of the kind characteristic of a functioning constitutional democracy, have a minor role to play as instigators of social change. In particular, judicial law-making is unlikely to rank highly in a list of determinants of social change when compared with events such as war, the diversification of the population through mass migration, improvements in public health and life expectancy, the advent of globalisation, the triumph of the market economy, and the post-industrial technological revolution, all of which have been experienced within the living memory of Australians. It is therefore perhaps not surprising that a book entitled ‘Social Change and Modernity,’ [11] which includes contributions by social scientists drawn from a number of countries, contains no index reference to ‘law’.

Of Heroes and Sterile Debates

Courts, like all institutions of government, have no option but to respond to social change. At a minimum, social change generates novel legal issues requiring resolution by the courts. An example is the technological revolution, which presents challenges not only for the law of intellectual property,[12] but for areas as diverse as constitutional law[13] and the law of defamation.[14] Changes in community values that accompany the diversification of a hitherto relatively homogenous population quickly permeate legal doctrine, spurred on by legislation intervention.[15] Social change also obliges courts to re-evaluate apparently entrenched principles. In De Sales v Ingrilli[16] a case concerning the assessment of damages recoverable by a young widow in respect of the death of her husband, three members of the High Court remarked[17] on the

[v]ery great changes [which] occurred during the last half of the twentieth century in the nature and durability of family relationships, in the labour market, and in the expectations that individual members of society have for themselves and about others – economically, socially, domestically, culturally, emotionally. Even if once it were the case, no longer can a court make any assumption about the role that an individual can be expected to play in the family or in the economy.’

The debate about how courts should respond to social change gives rise to important questions of judicial methodology. But much of the debate in Australia has focussed on the merits or otherwise of ‘judicial activism’. A Judge of the Supreme Court of New South Wales has recently recorded his shock[18] upon learning that the expression ‘hero judge’ is not intended to be a compliment, but is a term of abuse adopted by one of the current batch of ‘legal fundamentalists’ (to use the Judge’s neutral description).[19] According to John Gava, the heroic style of judging is a ‘catastrophic’ and ‘perverse’ development and hero-judging is ‘arguably a sneaky way of changing the law for political or market-oriented reasons’.[20] For Professor Greg Craven the course taken by the High Court, at least until recently, has been ‘improper’ and ‘fundamentally illegitimate’, while some of the Judges of the Court have been guilty of ‘wilfully distorting the Constitution’.[21] A present member of the High Court, who may or may not be a legal fundamentalist, implied, shortly before his elevation, that judicial activists (as he defined them`) lack ‘probity’.[22]

This language is relatively modest compared with Professor Tom Campbell’s view that judicial activism amounts not merely to ‘unethical judicial conduct’, but is ‘treasonable’ and ‘treachery’.[23] Professor Campbell reassures judges who may fear the executioner’s axe on their perfidious necks that he is not imputing evil intent to those whose conduct undermines the democratic rule of positive law. Indeed, he does not even suggest that judicial activism should be deemed a form of judicial misconduct justifying a removal. But it is still treason and treachery.

The ferocity of the debate is matched only by the elasticity of the definitions of judicial activism. To Justice Heydon it is

‘using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case’.[24]

This is then immediately transmogrified into a very different proposition, namely that judicial activism means

‘serving some function other than what is necessary for the decision of the particular dispute between the parties’.[25]

To Professor Campbell, a proponent of ‘democratic positivism’, a judicial activist is essentially:

‘(1) a judge who does not apply all and only such relevant, existing, clear, positive law as is available, and (2) a judge who makes such decisions by drawing on his or her moral political or religious views as to what the content of the law should be.’[26]

The sterility of much of the debate about judicial activism stems from the now universally acknowledged proposition that judges, particularly those of an ultimate appellate or constitutional court, are required to make new law, not least because they are obliged to respond to sound change. Judges, in Julius Stone’s phrase, have ‘leeways of choice’.[27] The selection among those choices frequently requires recourse, whether explicit or otherwise, to arguments based on policy and, on occasions, political philosophy. The critical issue in such cases, then, is not whether a judge has to make a choice, but what choice should be made. If judicial activism means changing the law to accord with the judge’s assessment of relevant policy considerations, all appellate judges, regardless of their philosophical orientation, are sometimes judicial activists.

It is trite to observe that Sir Owen Dixon, usually held up as the exemplar of strict legalism, gave effect not merely to implications firmly rooted in the text of the Constitution, but to his own conceptions of Australian federalism. Thirty five years ago I argued that in spearheading the revival of constitutional implications, Dixon J was acting in conformity with a coherent theory of Australian federalism.[28] That theory underpinned his conception of constitutional law, notwithstanding his claim to be interpreting the Constitution in a legalistic manner. Commentators have pointed to Sir Owen Dixon’s ‘proactive constitutional jurisprudence’ in other areas, such as the laissez-faire ideology at the heart of his now-discarded interpretation of s 92 of the Constitution.[29]

Just as all appellate judges sometimes make law, so all judges employ a range of techniques in interpreting the Constitution, statutes and common law principles. For example, despite the robust debate between so-called originalists and progressivists, what is striking in recent High Court constitutional jurisprudence is the range of interpretative techniques used by judges of all (attributed) ideologies or philosophical orientations. Justice Susan Kenny, in her analysis of the High Court’s 2002 Term, points out that most of the Court during this period used the so-called ‘prudential-ethical’ mode of reasoning, which she describes as

‘a constitutional argument that relies on economic, social or political considerations attending the case’.[30] (Emphasis added.)

As Justice Kenny observes, it is difficult to avoid this method of interpretation where, for example, the issue is whether a common law defamation rule is reasonably appropriate and adapted to serve a legitimate end that is compatible with the constitutionally prescribed system of representative and responsible government.[31] Interestingly enough, Justice Kenny regards Callinan J, usually seen as part of the current High Court’s conservative majority, as the leading practitioner in 2002 of the prudential-ethical mode of interpretation.

Justice Keith Mason has argued that ‘top-down reasoning’ in the sense of an over-arching theory about an area of law being used to generate an outcome in a particular case, is a legitimate approach to judicial decision-making.[32] This is so, he contends, notwithstanding McHugh J’s assertion in McGinty v Western Australia[33] that top-down reasoning is not a legitimate method of constitutional interpretation in Australia. Justice Mason suggests that, on the contrary, top-down reasoning has always been part of constitutional discourse in Australia. He gives as the prime example a famous passage in the Communist Party Case in which Dixon J asserted that the rule of law forms an assumption upon which the Constitution is based.[34]

Despite the often heated debates about judicial methodology in the case law and academic literature there is in fact a good deal of common ground in the techniques employed by the High Court. No one appears to suggest that the subjective opinions of the framers of the Constitution as to the meaning of particular words are decisive on questions of construction, although the Convention debates may shed light on ‘the purpose and object of the provision’.[35] No one disputes the primacy of the text and its determinative character when it provides a tolerably clear answer to the question posed. No one denies that context and history may be important in the interpretation of ambiguous provisions. As the six separate judgments in Cattanach v Melchior[36] (a non-constitutional case) demonstrate, there is also no dispute that, at least in some circumstances, overt discussion of policy questions is inevitable. Heydon J’s dissent in that case, for example, rests heavily on his view that it

‘is wrong to attempt to place a value on human life or a value on the expense of human life because human life is invaluable – incapable of effective or useful valuation’.[37]

This may be sound policy, but it is certainly not the product of exclusively ‘legal’ values.

Indeed, the one judge may adopt apparently contradictory positions in different cases. In Re Wakim,[38] for example, McHugh J observed that the fact that inconvenient consequences that may flow from a particular interpretation of the Constitution ‘says nothing’ from a constitutional point of view.[39] Much the same approach was taken by Gleeson CJ.[40] Yet in Abebe v Commonwealth,[41] in upholding the validity of legislation conferring jurisdiction on the Federal Court to determine only part of a controversy Gleeson CJ and McHugh J took into account, the ‘immense practical problems for the administration of federal law’ which the alternative construction would produce. These and other examples suggest judging is a more subtle and complex task than applying a set of rigid pre-determined attitudes and techniques to particular fact situations.[42]

This is not to deny that there are significant differences in approach among judges to the resolution of novel issues and that those differences may be important to the outcome of cases. Some judges, for example, tend to be more acutely conscious than others of the constraints that flow from the counter-majoritarian effect of a holding that State or Commonwealth legislation is unconstitutional. Some may place more emphasis than others on the legal usages and understanding of constitutional terms at the time of Federation.[43] Some may be more willing than others to acknowledge expressly the competing policy considerations that bear on the interpretation of an ambiguous or incomplete constitutional or statutory text. Some are less willing than others to take account of ‘social facts’ derived from the literature or their own experience. But the differences cannot be explained simply by attaching the label ‘judicial activist’ to a particular judge and another label to his or her colleagues.[44]

Courts as Instigators of Social Change

The Constraints

Given the great forces at work that determine social change, it seems inherently unlikely that judicial decisions, of themselves, can change social norms and values. To this general observation must be added the well-known institutional constraints that limit the ability of courts to bring about social change. The constraints are familiar enough.

Courts can deal only with cases presented to them for decision. While a court can give hints as to the likely approach it will take to a particular issue, as the High Court did in the lead up to its reinterpretation of s 92 of the Constitution in Cole v Whitfield,[45] in the end it must wait for litigants to present an appropriate question for determination. Courts can formulate or reformulate principles of law, but ultimately their job is to decide disputes. Their reasoning must be directed to the resolution of a particular dispute. The orders of a court, generally speaking, bind only the parties to the proceedings.

Legal reasoning heavily emphasises precedent, reflecting the perceived need for certainty and stability in the law. Precedents may be overruled in some circumstances, but ordinarily the progress of the law is incremental. Despite the darkest suspicions of some critics, even constitutional courts cannot simply invent new principles when there is no warrant in the text of the constitution for doing so. Courts lack the information-gathering and policy assessment capacities of legislatures or law reform agencies. Particularly is this so in Australia, where the High Court has done relatively little to encourage non-parties to contribute to argument on important questions,[46] much less to inform the Court of pertinent non-legal materials. And, above all, courts, in contrast to elected governments and Parliaments, lack the democratic credentials to attempt to initiate or bring about significant social change.

The constraints upon the exercise of judicial power sit comfortably with perhaps the most quoted of all commentaries on the role of a constitutional court. Alexander Hamilton famously observed that:

‘the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them’.[47]

Hamilton reasoned that the judiciary has no influence over either the sword or the purse. It therefore has neither force nor will but merely judgment and ultimately depends on the executive arm for the enforcement of its orders. Hamilton would not have seen the courts as instigators of social change.

Justice Michael McHugh has recently taken issue with Hamilton’s assessment of the power of the judiciary in a federation like Australia or the United States.[48] Justice McHugh argues that Hamilton underrated, or did not foresee, three matters that have falsified his assessment of the strengths (or weaknesses) of the judiciary:

‘The first is the frequency with which the judiciary has been called on to exercise the power of judicial review and declare legislative and executive acts void and of no effect. The second is the importance of the social, economic and political issues that courts – particularly federal courts – must decide. The third is the underpinning of the judiciary’s strength by public confidence in its integrity, impartiality and capacity’.

Justice McHugh is not specifically concerned about the role of the courts as instigators of social change and he does not suggest that courts perform that role. Nonetheless, the argument that courts have greater strength than Hamilton predicted might suggest that judicial decisions can bring about social change. It is undeniable for example, that modern constitutional courts are likely to be called upon to decide cases of great political or social moment. Certainly the High Court is no stranger to politically charged decisions and fierce controversy concerning them. Cases such as the Bank Nationalisation Case,[49] the Communist Party Case,[50] Mabo[51] and Wik[52] come to mind. There is no doubt that court decisions can frustrate the will of governments and of Parliament on issues of fundamental political importance (as in the Bank Nationalisation Case and the Communist Party Case). They can also force governments to confront issues that otherwise might have remained quiescent (as in Mabo and Wik). But that is not necessarily the same as bringing about social change.

It is also important to bear in mind that the third matter identified by McHugh J (public confidence in the judiciary) frequently operates as a constraint on the scope of judicial law making. The perceived need to promote or preserve public confidence in the judiciary has been said to justify constitutional doctrines designed to insulate the federal judiciary, including State courts exercising federal jurisdiction, from responsibilities thought to be incompatible with the judicial function.[53] As the High Court has now recognised,[54] the concept of ‘public confidence in the judiciary’ presents considerable difficulties as a standard for constitutional adjudication, not least its lack of precision.[55] Nonetheless, the notion that courts should not be required to act in a manner that undermines public confidence in their independence and integrity has formed an important element in constitutional discourse.

The same notion has been invoked as a normative proposition in public discussion about the role of the courts in a constitutional democracy. The Chief Justice of the High Court, for example, has argued extra-judicially that the general acceptance of judicial decisions by citizens and governments rests not upon coercion, but upon public confidence.[56] He distinguishes between public opinion, which reflects merely short-term responses to events and issues, and confidence in the institutional integrity of the system.[57] As he points out, acceptance of judicial decisions is most necessary in cases of decisions that are controversial and unpopular. What is required

‘is a satisfaction that the justice system is based upon values of independence, impartiality, integrity, and professionalism, and that, within the limits of ordinary human frailty, the system pursues these values faithfully’.

The emphasis, in judgments and extra-judicial commentary, on the dangers of impairing public confidence in the judiciary, conveys more than a hint that courts should be wary, when performing law-making functions, of attempting to move too far ahead of community standards. If they do, so the argument seems to run, the risk disturbing the consensus on which ultimately the strength of the least dangerous branch of government rests. In the 2000 Boyer Lectures, the Chief Justice observed that laws are not made by computers and that judges have:

‘ample scope for exercising qualities of wisdom and understanding without compromising their integrity or their impartiality’.[58]

But, he warned, there comes a point beyond which discretion cannot travel. At this point the judge, if unable to implement the law in good conscience, may have to resign. This warning perhaps implies that if courts move too far ahead of contemporary community standards, they put in jeopardy the legitimacy of judicial decisions.[59]

If it is true that courts place themselves at risk of illegitimacy by moving ahead of community standards, the High Court seems to have avoided the difficulty. There seems never to have been a serious suggestion by a public official that orders made by the High Court or, for that matter, any other Australian court should be defied no matter how controversial the decision. Brian Galligan observes that the ‘truly astonishing political aspect’ of the great constitutional battle surrounding the nationalisation of the banks was that:

‘despite the Court’s earlier unfavourable decisions, the anti-Labor sympathies of the majority of judges, and finally the adverse ruling in this key case, the Labor government kept up all the proper formalities of the respectful suitor at law.’[60]

There may be many factors contributing to the willingness of Australians to accept court decisions. In particular, political and social conditions in Australia, have created a climate conducive to accepting the exercise of judicial power. The Australian federation, after all, came about not as the result of a revolution, but as an orderly process, characterised by strict adherence to legal principles. Since Federation, the legitimacy of judicial review of legislation in Australia has never been seriously disputed, even by non-lawyers. Despite occasional rumblings, no State has purported to secede from the Commonwealth. Fortunately, the Australian nation, despite its fair share of racism, has known neither slavery nor civil war. Even so, the apparent willingness of the Australian community to accept the legitimacy and binding force of even controversial judicial decisions tends to reinforce the view that the High Court has been well aware of the need to preserve ‘public confidence in the judiciary’. That awareness has doubtless contributed to a sense of caution in pushing the boundaries of judicial law-making too far.

Courts as Agents of Social Change

In the face of these constraints on the courts as instigators of social change, it might be thought, at best, highly optimistic to see the courts as agents not only for legal reforms but for genuine social change. Yet the constraints have not deterred lawyers from looking to judicial decisions as a means of changing social norms and values. At the time of the first Lawyers and Social Change conference in 1974, there was a substantial body of opinion, to which I confess I subscribed, that saw judicial law-making in this way. In the 1975 report on Law and Poverty in Australia for example, I argued that:

‘[n]ot only is reform of the law often essential to overcome obvious inequalities and injustices in society, but the reforms can markedly influence community attitudes and behaviour. Illustrations include the effect of Supreme Court decisions in the USA on patterns of racial discrimination in that country ...’[61]

I had in mind the bringing of test cases that could change the substantive law to the benefit of disadvantaged groups, or at the very least bring to the attention of legislators the need for legislative reform of unfair or oppressive laws. Although the strategy was not spelled out in detail, it envisaged that test cases and judicial
law-making could go beyond remedying specific injustices. Judicial decisions could contribute to inducing the Australian community, or at least influential segments of it, to support (if not demand) more vigorous governmental action to address the consequences of entrenched poverty and discrimination in an otherwise affluent society. This implied that community values could be influenced by judicial decisions to reject the more extreme manifestations of inequality in Australia and to embrace a more egalitarian conception of the ‘desirable society’.

This body of opinion took its inspiration from the experience in the United States, the paradigm of which was Brown v Board of Education.[62] Commentators understood that the role of the Supreme Court of the United States was not identical to that of the High Court, if only because the Australian Constitution lacked a bill of rights. But Brown was taken by many not merely to have ended the era of state-sanctioned segregation in the United States, but to have brought about a sea-change in community values and attitudes. If the Supreme Court could virtually single-handedly alter entrenched patterns of institutionalised segregation over diehard opposition, why could Australian courts not challenge inappropriate social practices and attitudes and thereby influence social change, albeit on a more modest scale?

In retrospect, this assessment might indeed be seen as overly optimistic. But it was by no means an isolated view. In his 1991 study of courts and social change,[63] Gerald N Rosenberg pointed out that Brown had long been seen in the United States both as a revolutionary statement of race relations law and a symbol of the courts’ ability to produce significant social reform.[64] It is perhaps not surprising that observers both inside and outside the United States saw the case as the benchmark of what courts could achieve as instigators of social change in the service of the ideals of a just society.

A Re-Evaluation

The significance of the decision in Brown as an instigator of social change in the United States has undergone a re-evaluation over the past decade and a half. Gerald Rosenberg’s controversial analysis[65] of Brown and other significant cases concluded that the ‘Constrained Court view’ of the ability of courts to achieve social change is accurate. That is[66]:

‘US courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of other branches of government. Problems that are unsolvable in the political context can rarely be solved by courts.’

Recent scholarship tends to confirm the view that the significance of Brown as a progenitor of social change in the United States may have been substantially overstated.[67] In what has been described as an ‘exhaustive and magisterial volume,’[68] Professor Michael J Klarman examines the role of the Supreme Court in the struggle for social equality in the United States.[69] In particular, he considers the significance of the 1896 decision Plessy v Ferguson,[70] which upheld a Louisiana law requiring railroads to provide ‘separate and equal’ accommodation for black and white passengers, and the unanimous decision in 1954 in Brown.

Professor Klarman’s thesis is that both Plessy v Fergusson and Brown reflected influential public opinion of their respective times. Indeed, in the case of Plessy v Ferguson he goes further and argues that the decision was consistent with the literal text of the Equal Protection clause of the Fourteenth Amendment and with the contemporary understanding of its effect. Moreover, it was in conformity with legal precedents.[71] He also argues that the decision in Plessy v Ferguson did little, of itself, to encourage the spread of segregation, as distinct from judicially endorsing practices that were already well established in the United States.[72]

The evaluation of Brown is more difficult. According to Professor Klarman, about one half of Americans agreed with the ruling.[73] By 1954, a variety of economic, social, demographic, ideological and international factors had contributed to a fundamental change in race relations in the United States. These included the desegregation of the military after World War II; better education for blacks as a result of urbanisation; population movements from the south to the north; the pressures exerted by the NAACP (National Association for the Advancement of Coloured People); the exposure of the south to novel social attitudes and practices; a decrease of white on black violence in the south; and the Cold War imperative for the United States to improve relations between backs and whites.[74] By the time Brown was decided, desegregation was already well under way in some parts of the north and in some border areas.

Professor Klarman accepts that the Justices of the Supreme Court (or at least some of them) might have held ‘culturally elite values’. While those values may have made the decision easier for them, he thinks it likely that even ten years earlier ‘the justices would probably have lacked the inclination to invalidate school segregation’ since the vast majority of white Americans then believed in white supremacy.[75] He points to the ‘hesitancy’ of the Court in its race rulings of the 1940s and early 1950s as support for this hypothesis.

It is particularly important to an understanding of the significance of Brown to the desegregation of public facilities to consider the relief that the Court granted to the successful parties. After the decision in Brown on 17 May 1954, the Court deferred argument on the appropriate remedy. Brown II was not decided until May 1955.[76] Despite the NAACP pressing for immediate desegregation, the Court opted for gradualism. In the event, the Court famously ordered desegregation of the schools involved in the litigation ‘with all deliberate speed’.[77]

Perhaps the most intriguing aspect of the saga is what happened to segregated schools in the south after Brown II authorised a ‘relaxed transition’ to school desegregation. Professor Klarman summarises events this way:[78]

‘Gradualism appealed to the justices because its enabled them maintain the unanimity, avoid issuing unenforceable orders, assuage their consciences, and appeal to southern moderates. White northerners generally endorsed gradualism, while many white southerners interpreted the Court’s willingness to be accommodating as a sign of weakness. Southern politics moved far to the right as the region made a concerted effort at massive resistance ... Aside from their condemnation of outright defiance in the Little Rock case,[79] the justices withdrew almost entirely from the school desegregation arena for nearly a decade. When they reentered in 1963-1964, they were following, not leading, national opinion. The Civil Rights Movement had overtaken the school desegregation process, and the political branches of the National Government were now playing the vanguard role.’

The conclusion to be drawn is not that Brown I was not important in contributing to the desegregation of public facilities in the United States, particularly the south. It was. But it seems that Brown I was not nearly as instrumental in changing social attitudes and practices as many American and foreign observers may have believed. Larger forces were at work in the transformation of American society.

Courts and Social Change in Australia

Nothing in Australian history is remotely comparable to the struggle leading to the desegregation of public schools and other public facilities in the United States. We have no equivalent to Plessy v Ferguson or to Brown. But there have been decisions that have resolved great political conflicts in favour of one party over another and some that have reshaped our legal system. Do these cases support the view that the High Court has used the strength attributed to it by McHugh J to effect significant social change? Has the Court’s authority, as extensive as it may seem to a reincarnated antipodean Hamilton, gone beyond influencing change merely at the periphery of Australian society?

These are difficult questions, to which no ready answer can be given, at least without monumental studies of the kind undertaken by Professor Klarman. Even then, no definitive answer may emerge. Perhaps none can ever be given. My suspicion, for what it is worth, is that the High Court, whether consciously or otherwise, is rarely if ever in clear conflict with prevailing community norms and values. Particular decisions may arouse strong criticism, although benign communal indifference is likely to be the more usual response. But the most momentous decisions, no matter how controversial, seem to have had the support of some powerful segments of community opinion, including at least one side of politics.

The point can be illustrated by the Bank Nationalisation Case. It is true that the majority decision of the High Court invalidated a key element of the Labor Government’s legislative program. But as Galligan recounts,[80] the decision to nationalise the banks outraged business, gave the Opposition leader, Robert Menzies, the opportunity to champion the values of Australian liberal democracy and provoked into action those who perceived that the legislation posed a threat to capitalism. Before the hearing in the High Court commenced in February 1948, the Cain Labor Government had fallen in Victoria, in an election largely fought on the issue of bank nationalisation. When the High Court’s decision, couched in the language of legalism, was handed down in August 1948, it ignited jubilation in the press and among Labor’s political foes. The Chifley Government fell in November 1949, soon after the Privy Council delivered its reasons for judgment dismissing the Government’s appeal. Whatever partisan passions were aroused by the Bank Nationalisation Case, it can hardly be said that the High Court’s decision flew in the face of prevailing community sentiment.

It might be argued that the Bank Nationalisation Case was not truly about the core values of society and that the decision, in any event, effectively maintained the status quo. The Communist Party Case, however, seems to fall into a different category. In one sense it is a counterpart to the Bank Nationalisation Case, since a majority of the High Court invalidated the Communist Party Dissolution Act 1950, a key element in the legislative program of the newly elected Menzies Government. The Act had been reluctantly passed by the Labor Party in the Senate, but it was nonetheless strongly opposed by Chifley and most of his colleagues.

On the other hand, the legislative attempts to ban the Communist Party was presented as a measure necessary for the defence and safety of Australia. In other words, although a novel legislative measure, it represented an attempt to preserve and reinforce fundamental values against subversion. The invalidation of the legislation, although again largely couched in legalistic language, could be understood as promoting libertarian values to an extent hitherto unprecedented in Australia. In this sense, the decision might be seen as an attempt to change community values.

There is no doubt that, as Galligan notes,[81] the High Court’s decision, handed down on 9 March 1951, had a major political impact. Menzies secured a double dissolution and succeeded in obtaining majorities in both Houses at the 1951 election. But his attempt to override the Court’s decision by constitutional amendment narrowly failed at a referendum held in September 1951. Of course, the rejection of the referendum proposal by the Australian electorate undoubtedly was influenced by many factors other than approval of the High Court’s decision as an endorsement of civil libertarian values. Even so, given the short lapse of time between the decision and the referendum, it is difficult to suggest that the decision was at odds with prevailing community opinion, let alone the core values of Australian society.

It is particularly problematic to assess the impact of the decisions Mabo and Wik in bringing about significant social as well as legal change, given how little time has passed. It is, however, clear that by the time Mabo was decided in 1992 the Australian community had become much more aware of the historic injustices inflicted on indigenous people in Australia and much more sympathetic to their aspirations, at least in general terms. The Constitution had been amended in 1967 to remove discriminatory references to indigenous people. Land rights legislation had been enacted by the Commonwealth for the Northern Territory (by a conservative Government) and had been in force for a decade and a half.[82] Moreover, as dramatic as the High Court’s decision may have been, a legislative response was virtually inevitable.[83] Within a short time, Parliament enacted the Native Title Act 1993 (Cth) which explicitly provided for the recognition and protection of native title in terms similar to those adopted by the High Court, albeit with some modifications. The fact that Parliament endorsed the concept of native title suggests that the decision in Mabo, if anything, was in keeping with mainstream views of the time and did not threaten established norms or values.

The Wik decision, which held that native title could co-exist with some forms of pastoral lease, notwithstanding the outrage it provoked in some quarters, did not go to the heart of the concept of native title. In any event, the decision was liable to be overturned by Parliament. After a period of intense political controversy, the Native Title Amendment Act 1998 (Cth) largely settled the pastoral lease question and, in some respects, overturned the decision in Wik. As events have turned out, a differently constituted High Court has given a broad interpretation to the extinguishment provisions of the Native Title Act insofar as they relate to pastoral leases.[84] Future historians may see Wik as a colourful but relatively minor episode in the High Court’s long experience with judicial law-making.

Conclusion

Since lawyers, like other mortals, tend to place themselves at the centre of the universe, they are prone to overestimate the significance of judicial decisions as drivers of social change. Particular decisions may be of great moment, both legally and politically. The courts are much more likely to be responsive to social change than to instigate it.

That is not to diminish the role of the court as law makers or the importance of the continuing debate about judicial methodology and the merits of various approaches to constitutional adjudication. But that debate needs to avoid the danger that labeling will substitute for reasoned analysis. Sterile debates can be amusing, but they are still incapable of bearing fruit.

The relationship between law, particularly judge-made law, and social change is by means simple. A full examination of the relationship must consider both the responses of courts to social change and the ability and inclination of courts to instigate social change.

Discussions of the responses of courts to social change have often been bedevilled by a pre-occupation with the virtues and vices of so-called ‘judicial activism’. This pre-occupation is largely founded on false assumptions and tends to divert attention from issues of judicial methodology and constitutional adjudication that are worth close exploration. The best thing that could happen to the debate about ‘judicial activism’ in Australia is to discard the expression. Sterile debates can be amusing, but they are still incapable of bearing fruit.

The ability of courts to instigate social change is a question that has received relatively little attention in Australia. One body of opinion denies that courts have any business attempting to influence community norms and values. Others have looked to the courts to develop the law in a manner that brings about genuine social change.

Proponents of the latter view assume that court decisions are capable of changing community norms and values. The assumption is, however, dubious. The experience in the United States and Australia rather suggests that courts rarely, if ever, act in a manner at odds with the established values and norms of the community. In particular, the recent re-evaluation of Brown v Board of Education indicates that the seminal case was much less influential in shaping social attitudes towards the integration of public facilities than many commentators have suggested.

This is not to deny that judicial law making can have important legal and political consequences and can hasten social changes that are already under way. But the role of the courts as instigators of social change is much more limited than the optimists hope or the opponents of ‘judicial activism’ fear.

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[*] I acknowledge the valuable research assistance of May Miller-Dawkins in the preparation of this paper.

[1] See, for example, R Cotterrell, The Sociology of Law: An Introduction (1984), Ch 2; GN Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Uni Chicago Press, (1991), Ch 1; L Lessig, ‘The Regulation of Social Meaning’ (1995) 62 U Chi L Rev 943.

[2] AM Gleeson, ‘Out of Touch or Out of Reach?’, Keynote Address to the Judicial Conference of Australia Colloquium, 2 October 2004.

[3] Mr Dooley was the creation of Finley Peter Dunne, Mr Dooley’s Opinions (RH Russell, New York, 1901), cited by GN Rosenberg, note 1 above, 13.

[4] J Gava, ‘The Rise of the Hero Judge’ [2001] UNSWLawJl 60; (2001) 24 UNSWLJ 747, 747-748. See, too, H Patapan, Judging Democracy: The New Politics of the High Court of Australia (Cambridge University Press, 2000), 6.
[5]. [1954] USSC 42; 347 US 483 (1954)

[6] G E Marshall (ed), Dictionary of Sociology (Oxford University Press, 1998), 65.

[7] Eric A Posner, ‘Law, Economics and Inefficient Norms’ (1996) 144 U Pa L Rev 1697, 1699.
[8] Ibid

[9] R Cotterrell, note 1 above, 86, citing T Parsons, ‘Durkheim’s Contribution to the Theory of Integration of Social Systems’ in K H Wolff (ed), Essays on Sociology and Philosophy by Emile Durkheim et al (Harper Torchbook ed, 1964), 8.

[10] H Haferkamp and N J Smelser (eds), Social Change and Modernity (University of California Press, 1992), 2.
[11] Ibid.

[12] For illustrations see Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; (1999) 202 CLR 1 (copyright in computer software); Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157; (2003) 132 FCR 31 (circumvention of technological protection measures); Genetics Insitute Inc v Kirin – Amgen Inc (No 3) (1998) 156 ALR 30 (patentability of invention using DNA techniques to produce polypeptide proteins).

[13] Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 (upholding the constitutional validity of the Plant Breeder’s Rights Act 1994 (Cth).
[14] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 (internet defamation).

[15] Such as the values implicit in the Racial Discrimination Act 1975 (Cth); cf Mabo v Queensland (No 2) (1992) 175 CLR1, 41-42, per Brennan J. For a study of the circumstances in which normative changes cause decisions to lose force as precedents, see WN Eskridge Jr, ‘Lawrence’s Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics’ 88 Minn L Rev 1021 (2004).
[16] [2002] HCA 52; (2002) 212 CLR 338.
[17] Id, 363, per Gaudron, Gummow and Hayne JJ.

[18] M Adams ‘Heroes and Heresy: Myth Meets Legal Fundamentalism’ (2004) 78 ALJ 587.

[19] Id, 588, referring to J Gava, note 4 above.

[20] J Gava, note 4 above, 747, 749, 752.

[21] G Craven, ‘The High Court of Australia: A Study in the Abuse of Power’ [1999] UNSWLawJl 47; (1999) 22 UNSWLJ 216, 217.

[22] J D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ Quadrant (Jan-Feb 2003) 9, 14.

[23] T Campbell, ‘Judicial Activism – Justice or Treason?’ [2003] OtaLawRw 2; (2003) 10 Otago L Rev 307, 311-313.

[24] J D Heydon, note 22 above, 10.

[25] Ibid.

[26] T Campbell, note 23 above, 312. Oddly enough, Professor Campbell regards the Mabo decision (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1) as compatible with ‘democratic positivism’. He accepts that the decision was certainly not incremental, since it threatened the very basis of Australian property law. Yet he says that it was in order for the High Court to consider the ‘relevant law of occupation in the light of an improved knowledge of historical facts’: id, 324. But why? Was Mabo consistent with ‘such existing, clear, positive law as [was then] available?’

[27] J Stone, Precedent and Law: Dynamics of Common Law Growth (1985), 271, cited by F Carrigan, ‘A Blast from the Past: The Resurgence of Legal Formalism’ (2003) 27 Melb ULR 163, 165.

[28] R Sackville, ‘The Doctrine of Immunity of Instrumentalities in the United States and Australia: A Comparative Analysis’ (1969) 7 Melb ULR 15, 53-57.

[29] See F Carrigan, note 27 above, 172-174. Sir Owen Dixon’s approach to s 92 was discarded by a unanimous High Court in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.

[30] S Kenny, ‘The High Court on Constitutional Law: the 2002 Term’ [2003] UNSWLawJl 10; (2003) 26 UNSWLJ 210, 219, citing P Bobbitt, Constitutional Fate: Theory of the Constitution (1982), 61.

[31] Id, 220, referring to Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, at 40, per Gaudron, McHugh and Gummow JJ.

[32] K Mason, ‘What is Wrong with Top-Down Legal Reasoning?’ (2004) 78 ALJ 574.

[33] [1996] HCA 48; (1996) 186 CLR 140, 231-232.

[34] Communist Party of Australia v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193.

[35] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 364 per Gleeson CJ, discussing Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 (which construed s 80 of the Constitution as to require unanimous verdicts in trials on indictment for offences against the Commonwealth). Compare the comments of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199, 336-337.

[36] [2003] HCA 38; (2003) 215 CLR 1. The issue was whether a couple who had become parents of an unplanned child as a consequence of medical negligence could recover as damages the cost of raising and maintaining the child.

[37] Id, 128.

[38] Re Wakim, Ex parte McNally (1999) 198 CLR 511, which invalidated the cross-vesting scheme purporting to invested federal courts with jurisdiction in State matters.

[39] Id, 548.

[40] Id, 540.

[41] [1999] HCA 14; (1999) 197 CLR 510, 531.

[42] See, for example, the analysis of Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 (upholding the grant of power to federal judges to issue warrants for listening devices) and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 (invalidating the nomination of a federal judge to prepare a report for a Minister) in E Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ [1998] SydLawRw 9; (1998) 20 Syd LR 183, esp 199-200.

[43] See Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 359 per Gleeson CJ.

[44] For a similar view see FH Easterbrook, ‘Do Liberals and Conservatives Differ in Judicial Activism?’ (2002) 73 U Col L Rev 1401.

[45] [1988] HCA 18; (1988) 165 CLR 360. See Miller v TCN Channel 9 Pty Ltd [1986] HCA 60; (1986) 161 CLR 556, 570-572.

[46] The Attorneys-General of the Commonwealth and the States have a statutory right to intervene in constitutional matters before the High Court: Judiciary Act 1903 (Cth) s 78A.

[47] The Federalist (No 78) (Eastern Press ed, 1979), 520

[48] M McHugh, ‘The Strengths of the Weakest Arm’ (Keynote address, Australian Bar Association Conference, Florence, 2 July 2004).

[49] Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1. The proceedings were ultimately determined by the Privy Council: [1949] HCA 47; (1949) 79 CLR 497.

[50] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

[51] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[52] Wik Peoples v Queensland (1996) 187 CLR 1.

[53] See Wilson v Minister for Aboriginals and Torres Strait Islands [1996] HCA 18; (1996) 189 CLR 1; Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51.

[54] Fardon v Attorney-General (Qld) [2004] HCA 46, [23], per Gleeson CJ; [102], per Gummow J; [144], per Kirby J.

[55] See generally E Handsley, note 42 above

[56] AM Gleeson, ‘Public Confidence in the Judiciary’ (2002) 76 ALJ 558.

[57] Compare the distinction between community attitudes and community values advanced by John Braithwaite, ‘Community Values and Australian Jurisprudence’ [1995] SydLawRw 21; (1995) 17 Syd LR 351.

[58] AM Gleeson, The Role of Law and the Constitution (ABC Books, 2000), 127.

[59] Indeed legislative reforms which are at odds with community norms are likely to fail, as illustrated by the extent of non-compliance with copyright laws: C Jensen, ‘Note: The More Things Change, The More They Stay the Same: Copyright, Digital Technology, and Social Norms’ (2003) 56 Stan L Rev 531.

[60] B Galligan, Politics of the High Court (Uni Qld Press, 1987), 176.

[61] Commission of Inquiry into Poverty, Law and Poverty in Australia (Second Main Report, 1975) (Professor R Sackville, Commissioner), 2.
[62] 347 US 583 (1954)

[63] G N Rosenberg, note 1 above. The book analyses the ‘mostly disappointing’ results of efforts to use the courts to promote social reform in a number of areas including civil rights, abortion, women’s rights, the environment and reapportionment of electorates: ibid, 336.

[64] Ibid, 39-40, citing, inter alia, R L Carter, ‘The Warren Court and Desegregation’ (1968) 67 Mich L Rev 237, 237; A Neier, Only Judgment: The Limits of Litigation in Social Change (Wesleyan Uni Press, 1982), 57; H J Wilkinson, From Brown to Alexander: The Supreme Court and School Integration (Oxford University Press, 1979), 6

[65] See, for example, P H Schuck, ‘Book Review: Public Law Litigation and Social Reform’ 102 Yale LJ 1763 (1993).

[66] G N Rosenberg, note 1 above 338. By “Constrained Court’, Rosenberg means a Hamiltonian view of courts as ‘weak, ineffective and powerless’: ibid, 3.

[67] The literature is discussed in an article by Kathleen O’Sullivan, ‘What Happened to “Brown”?’ New York Review of Books, 23 September 2004, 47.

[68] Id, 49.

[69] M J Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford University Press, 2004).

[70] [1896] USSC 151; 163 US 537 (1896).

[71] Klarman, note 69 above, 19-21.

[72] Id, 48-52.

[73] Id, 443.

[74] Id, 444-446.

[75] Id, 452.
[76] Brown v Board of Education [1955] USSC 59; 349 US 294 (1955)

[77] Klarman, note 69 above, 312-320.

[78] Id, 343.

[79] Cooper v Aaron [1958] USSC 160; 358 US 1 (1958).

[80] B Galligan, note 60 above, 169ff.

[81] Id, 203-207.
[82] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

[83] R Sackville, ‘The Emerging Australian Law of Native Title: Some North American Comparisons’ (2000) 74 ALJ 820, 831.

[84] Wilson v Anderson (2002) 213 CLR 401.