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Faculty of Law, University of Sydney
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Tucker, David --- "Litmus-Testing Judicial Authority: Comparing the Wik Peoples and Thayorre People v The State of Queensland and United Steelworkers of America v Weber" [1998] SydLawRw 11; (1998) 20 (2) Sydney Law Review 244

Litmus-Testing Judicial Authority:Comparing the Wik Peoples and Thayorre People v The State of Queensland and United Steelworkers of America v Weber

DAVID TUCKER[*]

This paper will compare Wik Peoples and Thayorre People v The State of Queensland (Wik case) with United Steelworkers v Weber (Weber case),[1] the landmark American case in which the United States Supreme Court provided a controversial reading of the Civil Rights Act 1964. It will be argued that some of the reasons offered for abandoning the usual canons of statutory interpretation in both these cases are similar. Arguments used by various justices in the two cases exemplify what Americans refer to as “dynamic interpretation”, a practice defended by theorists such as Ronald Dworkin and William Eskridge (but also by others, including, the recently deceased United States Supreme Court Justice William Brennan Jr whose opinion in Weber will be analysed in this paper). This similarity between two important cases in different jurisdictions that impact on human and civil rights provides a basis for making some observations about American and Australian legal theory. The primary concern of the paper is to ask whether the dynamic approach to the interpretation of statutes ought to be imported into Australia. Should our judges be following the practice in Weber as at least one of them has done in Wik?

Wik is a landmark case of great importance in Australian history because it makes clear that that grants made by various State governments to pastoralists, for the purposes of grazing cattle on vast areas of land, did not necessarily extinguish all incidents of native title. Without this ruling, the promise held out by the dramatic declaration in Mabo v Queensland (No 2) (Mabo case) [2] that the common law in Australia,

recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands ...[3]

would have been of no great practical significance. Indeed, Mabo would have stood for the proposition that native title had been lawfully extinguished over most of Australia. This result would have been incredibly unjust. Dispossession is a fact of history. From a moral point of view, it matters very little whether British common law assumptions require us to concede that claims to native title in most areas of Australia will not succeed. The indigenous communities of Australia have been living on the land since time immemorial and where they still survive as a distinct people, pursuing a traditional way of life, they have a moral claim to the land on which they live and relate to.[4] If this land is put to some other use by governments, compensation must surely be paid.[5] Nor is there any practical reason in many parts of northern Australia why an acknowledgment of the fact that the land was occupied before the arrival of Europeans should not be made. The land in question often has little economic value except where mineral and other resources have been discovered. In some places it is even unsuitable for the grazing of cattle. Thus, the use pastoralists have made of the vast areas of land allocated by various leases is in some instances minimal.

Nor does the Wik result disadvantage or threaten the economic interests of pastoralists.[6] The High Court has made very clear that all the rights of pastoralists, listed under the various leases, will be honoured.[7] Unless they are pursuing activities that are not related to the running of cattle or the improvement of pasture, the managers or the various properties held under pastoral leases do not need to give way to make room for native title rights. They can go about their normal business untroubled by fear that the land they have put work into would be taken away or their activities restricted unreasonably. Even the issue of renewal seems to have been resolved in favour of pastoralists, so long as the terms of the leases are not revised (but this is more controversial). Thus, both pastoralists and indigenous Australians seem to have come out of the Wik conflict with a reassurance that their interests are recognised in law. Australians can be grateful to the High Court for affirming the solution of dual occupancy and distinct usage of the land; and for not allowing us to revert back to a situation in which the legitimate moral claims of indigenous Australians are not recognised in law. It was necessary for Mabo to move us forward in this direction, not to secure a status quo that was manifestly unjust.

Having said this, it is necessary also to observe that some of the arguments used in supporting Wik got us moving forward by embracing a quite novel approach to the reading of a statute. Indeed, I shall argue that at least one of the justices has embraced the approach of treating a statute as though it should be subjected to common law development. On this account of interpretation at law, the meaning of critical terms that are the basis of claims to statutory rights, such as “lease”, may evolve through judicial reconstruction from case to case depending on historical circumstances, regardless of whether the relevant legislators intended this or not.

This practice is well established in the United States, exemplified most clearly in Weber in which the Supreme Court reconstructed Title VII of the Civil Rights Act 1964 to allow for affirmative action. Many Americans believe that progress in civil rights in their country would not have been possible without the Supreme Court’s policy-making initiative in this case. Thus, they celebrate the dynamic approach to statutory construction adopted by the Supreme Court. We are told by theorists as different as Ronald Dworkin and William Eskridge that judges enjoy authority to amend statutes for policy reasons when new circumstances are confronted, or in the name of justice when the nation’s sense of what is fair or acceptable evolves.

In their view, American democracy is not majoritarian for although elections are held, there are also complex checks in the system to protect minority interests; and they claim it is appropriate for the Supreme Court to see itself as a co-equal branch of government that shares power to make policy decisions, even though its members are not elected by the people.[8] Rather than pointless condemnation of what is pejoratively referred to as “judicial activism”, they tell us that what judges need from legal theorists is guidance so that they can set about making policy in the constructive manner that is distinctive to law – arguing from analogy, by citing principles and by identifying policies endorsed within the law. What these writers wish to see is a partnership between commentators, legislators and judges to keep laws up-to-date, to avoid the perpetuation of injustice, and to prevent incoherence.

This paper will be critical of these recommendations. The main claims I develop are that,

1. The dynamic approach to statutory interpretation is necessarily hostile to traditional Australian democratic norms that require judges to defer to legislators; [9]

2. The arguments used by Kirby J supporting Wik are fundamentally similar to the dynamic approach adopted in William Brennan J’s opinion for the majority of the United States Supreme Court in Weber;

3. The various arguments offered by Dworkin, Eskridge or Brennan J to justify the Supreme Court’s ruling in Weber are unconvincing; and

4. “Dynamic interpretation” is not a practice that should be recommended in Australia.

I do not argue that Kirby J thought about Weber in dealing with the problems he faced in Wik. The influence of American legal theories within Australia is far less direct than this. Nevertheless, he wishes to advance a conception of fundamental rights, bringing Australia into line with aspirations that have received endorsement in international fora, conventions and declarations. It is because he is such a powerful advocate of the rights discourse now being imported from the United States that I focus on his work.

I am interested in Kirby J’s ways of thinking and reasoning in Wik, rather than in evaluating the actual outcome. Thus, I am not concerned with the policy issues the case raises. Rather, I concentrate exclusively on Kirby J’s opinion, trying to delineate how he approaches the task of interpreting the relevant statutes; an approach I claim resembles the arguments and strategies adopted by Brennan J in Weber. In this task I also go beyond the evidence in Wik itself for Kirby J has defended “dynamic interpretation” as an approach in a number of papers and addresses, [10] so that his adoption of a common law methodology in discovering the salience of northern Queensland pastoral leases in the late 1990s comes as no surprise. Kirby J is likely to have a major influence over the development of Australian jurisprudence so we need to try to understand his approach. Also, his opinion is brilliantly crafted and worthy of close analysis.

I should make clear that I do not aspire to provide a statement of the meaning of the Wik decision as a matter of law (a task that would require a detailed analysis of each of the four majority opinions).[11] What I am concerned about is a tendency that I argue is manifest in Kirby J’s opinion, in Wik, to interpret statutory law dynamically, bringing it up-to-date, so that its meaning is seen to depend on factors that change over time. According to this view, judges are responsible for the evolving nature of statutory laws and should amend them through interpretation when they are inappropriate to the times. “Dynamic interpretation” requires judges to ignore the common law understanding reflected in the traditional Australian approach that elected legislators are responsible for changing our laws; it also involves a blurring of differences between statutory law and common law. These are highly controversial implications, yet “dynamic interpretation” is defended with cogent and compelling arguments.

A. The Normative Argument

I present my material in two sections. In Section One, I identify “dynamic interpretation” in recent American practice and theory by looking at Weber, also attempting to illustrate some of the difficulties with the approach. Here, I consider the competing, quite distinct, applications of “dynamic interpretation” that Ronald Dworkin and William Eskridge each offer in discussing Weber. Contrary to both theorists, I argue that the justices who support the majority in Weber were guided by hostility to racism and not by “legal reasoning”.[12] Thus, I deny what each of them claims, namely that a good legal defence of the outcome in the case can be provided. Section Two is concerned with Kirby J’s opinion in Wik. By closely reviewing the arguments offered by him, I show that “dynamic interpretation” has been put to use in this important Australian case.

In both sections I present reasons for questioning whether “dynamic interpretation” is an appropriate approach for Australian judges to adopt. The common law is judge made and proceeds as key concepts and principles are applied from case to case. Of course, judges must defer to the rulings of earlier courts and they must also recognise rules of superiority between courts. Nevertheless, at common law, no particular past judgment is taken as, in itself, providing more than a guide as to how to proceed in the future. Although most of us are mystified by the process, everyone today accepts that the common law necessarily evolves dynamically through analogical reasoning and conceptual analysis. In common law, the controlling factors are the judges various understandings of the binding precedents, principles and policies. They are not governed by specification laid down by others. Text based law is quite different because the source of the authority is democratic rather than conceptual. What the Commonwealth Parliament does must count decisively in Australia because its members are elected by citizens and so can claim the necessary democratic authority. Similarly, state governments are elected by those who qualify to vote. By convention, the will expressed by each representative legislature in Australia (acting within power, of course) controls until it is amended by the will of a subsequent legislature. Courts are not supposed to intrude. Far from it. Judges are the guardians of this process, entrusted with the special task of ensuring that the will of those who are authorised to legislate on behalf of the people is honoured until new laws are made. In this connection, what is required are techniques of exegesis that are quite different from those that are used in applying common law principles.

A central point made in the paper is that both Wik and Weber illustrate circumstances when important values that are external to the law have proved decisive for some of the justices, causing them to question the traditional formalist approach to statutory interpretation and to offer an alternative. People who care about civil and human rights will applaud the outcomes in both of these cases and celebrate the strong statements in the name of justice that are made. No doubt Kirby J will be pleased to be compared to William Brennan J. No other judge has tried to do as much to recognise and advance the cause of justice, and there are few who have exhibited a greater skill in finding a way to advance progressive causes through law.[13] It is good that judges such as Kirby and Brennan are motivated strongly by their hostility to racism (in Australia this includes a concern for the well-being and moral claims of indigenous people). Indeed, we may all hope that had we been faced by the choices presented in the two cases presented for consideration in this paper, that we would also have taken the opportunity to challenge racism. In a conflict between hostility to racism and our duty to uphold the traditional legal norms that facilitate democracy, it is not clear that our commitment to democracy should triumph.[14] Of course, judges have a special obligation (required by conventions of the common law tradition) to uphold the authority of parliaments but this merely makes the dilemma they face, when other important values are in conflict, so much more difficult. In any event, individual judges will know that a democracy will not come crashing down just because one or two of them care more about advancing the circumstances of a severely disadvantaged section of the community than they do about working within legal norms that are associated with the ideal of representative government. The problems with policy leadership by judges only emerge when most judges begin to impose their values, disregarding the wishes of other citizens, most of the time; especially when this behaviour is no longer criticised by commentators and theorists but is accepted as the norm.

In this connection it is worth noting that it is one thing for judges to develop statutory law using common law techniques, when they have good reasons for ignoring the norms of liberal legalism that are usually respected in Australia, and quite another for legal theorists to describe this behaviour when it occurs as “legal reasoning”. Our task is to recognise that general policy making, that is not confined to the specific responsibility of judges to keep the common law up-to-date and coherent, involves a violation of the separation between legislative and judicial authority that is such an important part of our political system. A change of this significance needs to be supported by very strong arguments.

Of course, judges like William Brennan and Michael Kirby and theorists who support them will deny that “dynamic interpretation” involves any radical change. They claim that moral and policy considerations have an established place within the law and that a judge who reasons without considering issues of justice would be derelict.[15] The case for this kind of attitude is now also made by leading political and legal theorists in the United States, such as Ronald Dworkin and William Eskridge whose views relating to Weber are reviewed in this paper. Approaches that allow for a blurring between moral and legal reasoning have not, however, enjoyed as much support within Australia where it is still the case that “law” is viewed by most judges and commentators as something distinct from politics. As I have noted, this may be changing as the evidence presented in my analysis of Kirby J’s Wik opinion shows.

In this connection, it is important to notice that legal theorists are never faced by a conflict between legal, political and moral values of the kind that Weber and Wik present to the judges who were required to decide these cases. We are not judges. It would be farcical to consider ourselves as part of a coequal branch of government who must exercise power. Our task is to review arguments, not to make decisions that will have an immediate impact on people’s lives. Of course, as legal theorists, we can appeal to expediency but we must do so in the context of developing a general theory, rather than to find a solution to a particular problem. Our responsibility is to articulate the underlying conception of democracy that should prevail in our society and we must also help to defend and define the normative standards within which judges should be expected to work.

Like Ronald Dworkin and William Eskridge we may decide that our system would be better if our judges are more inclined to secure good outcomes in the cases before them, disregarding formal constraints.[16] This vision of “democracy” is defended by Dworkin who claims that matters relating to justice and rights can often be delineated as falling within “law’s empire”, so that judges may legitimately take responsibility if they act in a principled way.[17] An alternative view is the more traditional Australian conception of democracy that relies on securing a separation between judicial and legislative authority. If legal theorists start to be influenced by American writers such as Dworkin, agreeing that judges may make many more policy decisions than they already do, amending clear statutes when they think the cause is good or because historical changes render them out-of-line with the sentiments they approve, we will quickly find that the judiciary is subjected to all the usual incentives and threats by means of which politicians are influenced. This has been the case in the United States and will happen in Australia if we choose to follow their trajectory.[18] Thus, the understandable tendency of judges, in circumstances where they face an abuse of power, to occasionally choose an outcome on its merits without proper regard for what has been mandated through the political process (as constitutional text or statute) should not usually be recommended by theorists in Australia as an example of what judges may normally be doing in our system, even conceding that judicial policy leadership may be desirable in special circumstances.

I argue that if “dynamic interpretation” comes to be accepted as the norm for legal reasoning in Australia, as it now is by so many judges in the United States, displacing our traditional legalism that require judges to be subordinate to elected representatives and to keep moral and legal considerations separate, our democracy will become more court-centred. In such a system, judges are regarded as just another group of politicians who must account for themselves accordingly.

B. Litmus-Testing in the United States

A comparison with theoretical development in the United States is relevant because the politicisation of the judiciary is far advanced in that country. We need to ask whether Australia should follow the United States in this direction.[19] In this connection, it is important to understand that “dynamic interpretation” as a practice came to be accepted in the United States precisely because it was first used for a very good purpose – to dismantle racial segregation. Thus, the victory over racism in the historical case Brown v Board of Education[20] proved to be a turning-point in American history because it challenged the racist South. Decent people throughout America supported the outcome in Brown even though the case represents a rejection of the claims to democratic autonomy of citizens in places like Alabama, Mississippi and Georgia. After Brown, citizens in these States were to be told what they may or may not do when this impacted on race relations. Guidance was to be provided by the United States Supreme Court acting in the name of an abstract right to “equal treatment” allegedly found in the Fourteenth Amendment. Thus, Brown epitomised circumstances in which idealistic judges on a constitutional court defied politicians.[21]

The role of the Supreme Court justices in this case seemed to most people to be unashamedly political because the Fourteenth Amendment to the United States Constitution had never been interpreted to mean what the justices now said it meant (a “colour-blind” society).[22] Everyone knew, for example, that at the time the Amendment was ratified schools in cities like New York and Washington had been segregated. Indeed, segregation was practiced throughout the British Empire during most of the Nineteenth Century.[23] Yet most decent Americans approved of the constitutional change initiated by the Supreme Court’s ruling in 1954. Faced by the dilemma of “good outcome but countermajoritarian process” presented by Brown, some legal intellectuals took the case as a benchmark of what good judging should be;[24] yet it was a case of good men placing other important values (their opposition to racism) above their democratic obligation to uphold the rule of law (as required by the norms of liberal legalism). By setting-up a case that displayed political leadership by the Supreme Court as a litmus test for constitutional theory rather than evaluating that practice against normative legal theory in the usual way, Brown impacted enormously on the legal culture in the United States. It was extremely difficult to oppose this tendency because anyone who criticised the reasoning in Brown was vulnerable to the charge of supporting racism.[25] Who wanted this? As a result, the leading legal intellectuals settled to the task of determining how best to expand the normative framework of liberal legalism so as to accommodate Brown.

Brown was only the beginning of the many dilemmas of “good outcome but countermajoritarian process” American intellectuals had to confront. After the triumph over racial segregation came new interpretations of the First Amendment’s Free Speech Clause (in New York Times v Sullivan)[26] also overruling long-standing precedent; then followed the development of privacy protection that culminated in the abortion case Roe v Wade.[27] All these judicially imposed changes became a litmus test, establishing further “good outcome but countermajoritarian process” dilemmas. Not surprisingly, we find today that “dynamic interpretation” is also applied in interpreting statutes, as I will show, exemplified in Weber.

We see from this history how the impetus of Brown set going a process of judicial politicisation and activism. Once it became fashionable and was thought to be legitimate for judges to take the lead in securing good consequences that politicians were having trouble delivering in America, the judges could hardly be expected to restrain themselves. Partly as a result of the theoretical legacy left in the wake of Brown, Americans have experienced nearly five decades of intense conflict over judicial activism.

Because of the inevitable majoritarian backlash, it is conservative justices who are accused of activism today. For example, David Kairys tells us,

Rehnquist, Scalia, and Bork, and Reagan, Bush, and Buchanan, will rail against the liberal decisions and judges as antidemocratic and proclaim dedication to empowerment of the people, but ...They have consistently opposed personal freedom, equality, and democracy, whenever and however implemented.[28]

But Kairys cannot appeal to the norms of liberal legalism to criticise the conservative justices. He has no criteria for illegitimacy – anything goes for him. Thus, he merely denounces their values. As he says, their behaviour “is not a perversion of the rule of law”. It cannot be. According to him,

Law is driven and determined by people rather than disinterested or neutral logic, reasoning, or methodology; and particularly in our system, the rule of law amounts to rule by lawyers.[29]

The status of the conservative Supreme Court justices, for Kairys, is the same as any of the conservative politicians elected to Congress or as President. Of course, he dislikes the values conservative justices impose, which he describes as racist and antidemocratic, but Kairys refuses to appeal to the view that judges should restrain themselves. He does not believe that they can restrain themselves. Liberal legalism as a normative framework is entirely missing for the likes of Kairys. He genuinely believes that all judging is entirely political and should be assessed only in terms of outcomes.

When theorists recommend “dynamic interpretation” as a normal practice, it is difficult for them to refute those who like Kairys simply assess judges in political terms. Thus, if judges are not restrained by a respect for textual considerations and history it will not take long for the traditional respect for the “separation of powers” to be questioned.[30] Judges will come to be seen as another group of politicians. Before we embark further along this path, however, Australians should stop and ask whether this kind of development is desirable. This is one reason why it is necessary to compare Wik with Weber. These are difficult cases precisely because so many liberals approve the outcomes. As theorists, however, we need to question whether it will be wise to follow Americans in citing our landmark civil rights case as a benchmark, establishing what it is appropriate for judges do in a democracy.

1. Section One: United Steelworkers of America v Weber

The two most influential advocates of “dynamic interpretation” in the United States are Ronald Dworkin and William Eskridge. Both writers take Brennan J’s 1977 reading of Title VII in the Civil Rights Act 1964 as a major challenge.[31] Indeed, they each explain why it is legally permissible for Brennan J to impose liberal values even when they concede that his interpretation of the Act in Weber is in conflict with the plain meaning of the text in Title VII and is unsupported by a plausible account of its legislative history. Thus, these two distinguished legal theorists both claim that the Supreme Court acted legitimately in resolving a major policy dilemma without guidance from Congress – indeed, acting contrary to its expressed wishes. My purpose in this section is to assess the different reasons each provides for reaching this conclusion.

Dworkin and Eskridge have a great deal to say about “law” and each offers a book-length argument in defence of his conception of “dynamic interpretation” that goes well beyond an analysis of Weber. Any full analysis of their different positions will have to take this wider discussion into account. In this paper, my purpose is more limited for I am concerned to compare Wik and Weber, rather than to analyse all of the arguments that can be made-out in support of “dynamic interpretation”. The most relevant focus for this purpose is to consider the extended discussion of the debate about Brennan J’s opinion in Weber that each of these important legal theorists provides. Of course, this more narrow focus will also serve as a very good test for “dynamic interpretation”. If it turns out that the two leading exponents of a dynamic approach fail to offer a plausible account of this important case, their recommendations about what judges should be doing will carry less authority. As I will show, their account of Weber is less convincing than the analysis of the dissenting (then) Rehnquist J who is highly critical of Brennan J’s opinion for the majority. This is not to say that this comparative analysis can be conclusive. There is no such thing as a decisive argument in this context because, in the end, it comes down to value choices. We have to chose between the various normative recommendations and this requires judgment. However, my analysis will show that many of the assumptions that Dworkin and Eskridge make are not plausible. Neither of them offers a convincing account of Weber.

Dworkin directs his attention at the use judges often make of legislative history when interpreting statutes. According to him, it is almost always a mistake to seek to identify the motives of a legislature because no coherent purpose is usually discernible. Legislators often embrace different ideals and the objectives they seek, in agreeing to place particular words in a statute, may even be in conflict. Large numbers of legislators also routinely vote for strategic reasons, to repay a debt or to secure allies. Faced by this kind of complexity that makes it virtually impossible to discern the intentions of legislators in difficult cases, a difficult characteristic of the legislative process in most instances, Dworkin suggests that judges attribute a purpose to the legislators that makes most sense of the text. For example, even though a judge may know that almost all the members of Congress are opposed to the use of racial quotas, it may still be possible to place a construction on their words that facilitates affirmative action. Such a reading of the text may even attribute a motive that is very different from what any of the legislators actually intended (the opposite of what they hand in mind when they endorsed them) but this is fine, according to Dworkin, so long as the construction the judges choose is plausible and does not conflict with unambiguous statements in a Preamble to the Act or with views expressed in a Committee Report. A judge’s task is to make sense of what legislators have done, not by finding their motives and implementing them, but by placing the best available construction on their work.[32]

Thus, reviewing Brennan J’s reading of the legislative history of Title VII, Dworkin does not claim that Brennan J understood what Congress intended to accomplish (for, given the intense political atmosphere in the House of Representatives and Senate at the time and the many conflicts and various deals entered into, this would be impossible); rather, Dworkin praises Brennan J for attributing a noble purpose to the legislators (that they sought “to advance racial equality in education, employment and other areas and to end an economic era in which blacks not wholly unemployed are largely restricted to lower paying and less interesting jobs”)[33] that provides the best possible reading of the words Congress gave him to work with.

Eskridge adopts a different approach, defending the outcome in Weber without supporting the arguments offered by Brennan J. Indeed, he is unhappy with Brennan J’s actual argument and the defence of it that Dworkin offers. Thus, he concedes that Brennan J misuses the historical record and accepts that it is unconvincing to attribute abstract purposes to the Congress that are in conflict with the actual intentions of most of the legislators. Nevertheless, Eskridge argues that the result Brennan J reaches in Weber can be defended because it was necessary in that case to: (a) disregard the strategies actually adopted by Congress for addressing racial discrimination and its legacy in the United States, and (b), ensure that the law is coherent and up-to-date.

A. United Steelworkers v Weber

Before we look at these different arguments more closely let me present the issues as they emerged in the case. The US Civil Rights Act 1964 (as amended by the Equal Employment Opportunity Act 1972) provides that it is unlawful for an employer:

1. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, colour, religion, sex, or national origin; or
2. to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, colour, religion, sex, or national origin.[34]

It was also amended in 1972 after much debate in Congress to make clear that the statute should not be interpreted to require any employer to grant preferential treatment to any group in order to reduce a racial imbalance in the work force.[35] It is significant that the plain meaning of the words in Title VII, forbidding an employer “to limit, segregate or classify his employees in any way” that is detrimental to the interests of any individual employee, would seem to make the adoption of voluntary affirmative action plans that use racial quotas illegal. Despite this, some companies (such as the Kaiser Aluminium Chemical Corporation whose practice is questioned in Weber) did make use of racial quotas.[36] Not surprisingly, white workers who lost-out because of these quotas were unhappy. Thus, Brian Weber complained that although he had applied for inclusion in a training scheme and was clearly eligible (on the basis of seniority), he had been excluded because of his race – he was white and the company wanted to train more blacks. The Supreme Court was asked whether a voluntary race conscious plan, involving a quota reserving 50 per cent of places in a training program for black workers violated Title VII.

The fact that Weber had been excluded from the training scheme because of his race is not disputed. What is contested is whether the Kaiser Aluminium Chemical Corporation’s use of a racial quota to select employees for a training opportunity that would advance their prospects is a form of discrimination forbidden under Title VII.

B. The Leading Opinions

For the dissenting justices, this was an easy case. The text of the statute is not ambiguous at all (as my quotations show) and the legislative history offers no reason for reading any of its phrases or terms in a special way, for example, by supposing that the legislators meant to exclude a white worker like Brian Weber from the protection that the anti-discrimination provisions in Title VII provide.

The inclusion of general terms of references such as “any individual” and “employees” to define the protected class and the absence of any qualification indicating that only blacks are to enjoy the protection make it difficult to assert that Brian Weber had no standing. Thus, Rehnquist J (supported by Burger CJ) holds that the language of the statute is so precise as to allow no argument about the fact that it embodies a conception of equality that prohibits any distinctions based on race whatsoever.[37] As far as he is concerned, the case is easy to resolve because the text of the statute in question clearly supports Brian Weber’s claim.[38] Rehnquist J also thinks that analysis of the debates in Congress makes it difficult to support any other construction of Title VII. As he shows, the use of racial quotas as a part of affirmative action plans had been well canvassed both before the original Bill was passed into law and at the time that the Act was amended so as to further clarify the intentions of the legislators (by the inclusion of Section 703 (j), that told judges how to interpret the Act).[39] In Rehnquist J’s view, any objective assessment of this history shows that Congress deliberately chose not to amend the Act in 1972 to allow for voluntary affirmative action programs (like those adopted by the Kaiser Aluminium Chemical Corporation). Such a course was contemplated in the debates but the statute was never qualified to allow for this development.

Rehnquist J’s interpretation of Title VII carries the force that appeals to the rule of law have. Any departures from clear text in a statute that has no support in legislative history renders the law arbitrary and necessarily substitutes judicial values for the values endorsed by legislators. Yet Rehnquist J was a dissenting justice in the case. William Brennan J, writing for a majority of the United States Supreme Court, held that voluntary affirmative action plans that made use of racial quotas were not forbidden. Not surprisingly, this ruling has been controversial bringing into play a discourse about how statutes should be read. Of course it is easy to see how Brennan J’s ruling can be supported as a matter of politics. Those who advocate affirmative action as a solution to America’s racial problems must view the decision as a victory – it saved the racial quotas embodied in programs that they regarded as vitally necessary for the advancement of African Americans. Advocates of affirmative action knew very well that there was very strong opposition within the general public to the use of racial quotas (opinion polls showed intense dislike of the practice).[40] Nevertheless, many liberal Americans believe that generosity towards black Americans in the form of a helping hand towards their economic advancement needs to be promoted even if the vast majority of whites are disinclined to offer this. But the argument in Weber needs to proceed within law. A reading of the law cannot rely on moral arguments about what is desirable, good or just to be convincing. How can a judicial opinion that ignores both textual analysis and legislative intentions in interpreting a statute be defended?

C. Justice Brennan’s Opinion

As I have already noted, the argument of William Brennan J who wrote the opinion for the Court in Weber’s case confronts Rehnquist J’s account of the legislative history. Brennan J’s strategy, which Ronald Dworkin so cogently supports, is to establish a broad discretion for the Supreme Court by specifying the controlling legislative purposes in a very abstract manner. Thus, he is of the opinion that unless the Congress had specifically prohibited voluntary affirmative action plans, the Supreme Court is free to read the Act as though Congress intended to tolerate them – establishing that there is no negative is said to entail the positive. In terms of this account, the fact that the legislators amended the act by inserting the phrase “should not be required” rather than the more inclusive phrase “should not be required or permitted to”, when considering the propriety of affirmative action plans, is highly significant because it allows a quite different understanding of Congressional motives.[41] For Brennan J this choice of quite specific terminology indicates that the legislators simply failed to reach any collective judgment on the merits of voluntary affirmative action programs, although he concedes that the legislators were agreed about the impropriety of governmentally imposed programs. He tells us,

It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long” constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.[42]

But Brennan J is faced by the problem that the Act forbids all discrimination on the basis of race. Thus, there was no need for Congress to include the words “or permitted to” when it amended the Act because it is already clear under Section 703 (a) that the use of racial categories is forbidden. Instead of accepting that he is bound by this plain meaning, suggesting a “colour-blind” approach, Brennan J claims that the use of the word “discriminate” by Congress should not be taken to mean that the legislators had reached a consensus about whether to proscribe voluntary efforts to achieve greater representation of African Americans within the work force. In his view, Congress may not have intended to prohibit benign discrimination. Because Congress had not expressed itself on the issue, Brennan J supposes that the Supreme Court had to assume the responsibility for giving the term “discriminate” a specific meaning; by seeking out the most plausible (best) interpretation of the goals which Congress hoped to realise by means of Title VII. The goal that makes most sense of the Act, he claims, is to advance employment opportunities for African Americans so as to eliminate the unfortunate consequences of a history of past discrimination and deprivation.[43] Once seen against this background, however, voluntary affirmative programs cannot be regarded as a menace. Therefore, Brennan J argues, it is not necessary to read the statute as forbidding the Kaiser Aluminium Chemical Corporation’s program even though it plainly states that discrimination on the basis of race is forbidden.[44]

The problems Brennan J faces (and these difficulties must also be faced by Dworkin) are,

1. What members of Congress may have intended to bring about and what they actually accomplished are two quite different things – words used in a statute matter precisely because they have been enacted into law. Thus, even supposing that the members of Congress had a noble dream of greater social equality in enacting Title VII, conceding Dworkin and Brennan J’s point that the term “discriminate” is ambiguous,[45] what they actually accomplished was the enactment of a set of requirements that made the use of racial quotas unlawful (an employer may not “limit, segregate or classify” using a racial category). These provisions clearly protected Brian Weber because Congress had not taken trouble to make clear that it did not intend to protect whites. This omission or silence is important and should not have been ignored by judges precisely because we know very well that, had the members of Congress qualified Title VII to exclude whites like Brian Weber from the protection it afforded, very few of the members who voted for such an amendment would have been re-elected at the next election. To put the point another way, if the original Civil Rights Bill had included words that made clear that whites were not to be protected it would not have been enacted into law. The actual words matter. Thus, the best response to Brennan J’s (and Dworkin’s) claim that judges should attribute an abstract purpose to make sense of a law is that the various deals that were actually struck are reflected in the text – the abstract purpose attributed is not.[46]

2. Even allowing that the meaning of Title VII is so unclear that it is necessary to consider its legislative history in making sense of it, Brennan J’s historical analysis is implausible (this is the point that Rehnquist J makes so convincingly).

D. Challenge to Rehnquist by Eskridge

The strongest challenge to Rehnquist J’s view proceeds without having to resort to implausible historical analysis or even sleight-of-hand manipulation of legal resources. This is what William Eskridge tries to accomplish in his 1987 article. Thus, he begins by conceding Rehnquist J’s claim that the underlying purpose of Title VII in the statute is to establish a “colour-blind” society. After noting that the enactment of the Civil Rights Act relied heavily on the support of Southerners, such as Senator Dirksen and other conservatives, he writes:

It is inconceivable to me that that these Senators, as well as some of the Democrats voting to invoke cloture, would have favoured a bill that permitted, and even encouraged, voluntary affirmative action plans. With regard to the legislative purpose, the theme that dominated the debates was equality of opportunity and the creation of a colour-blind society.[47]

Eskridge then goes on to argue that neither the text nor the established legislative purposes should be viewed as controlling in 1977 when Brian Weber asked the Supreme Court to recognise the protection that Title VII seemed to afford him. To the contrary, he argues that judges have a responsibility to rule in a manner that is consistent with their best understanding of what is good for the nation. What Eskridge wants to challenge, in effect (apart from one minor concession),[48] is the view that judges ought to defer to the wishes of legislators. Thus, his view of best practice for judging looks forward rather than backwards. He wants judges to tell us what conceptual changes are needed for the future not to look back to determine what various legislators in the past may have thought.

One argument Eskridge provides to support his startling conclusion that a backward looking jurisprudence is unhelpful in reading the Civil Rights Act 1964 (challenging both the dissenting and majority opinion in Weber) is that the assumption made by many members of Congress in 1964 that a “colour-blind” society would in due time yield equality of results in employment turned out to be wrong. He claims that the legislators in 1964 had passed a law without understanding the enormity of the problem they were addressing. In 1964 they simply had no idea that affirmative action would be needed to secure equality. He tells us that difficulties with the “colour-blind” approach favoured by Congress emerged later when administrators and courts began to apply the law. At this point, it was possible to see that the Civil Rights Act 1964 that was widely celebrated by all progressive Americans was likely to secure only very modest results in helping African Americans. Because the legislators acted on a false premise (that nondiscrimination would be enough to advance African Americans), Eskridge suggests their views should be ignored once,

American society came to understand that the invidious effects of discrimination might last long after the discrimination itself ceased and that more affirmative measures were needed... .[49]

For Eskridge, then, “dynamic interpretation” requires judges to take responsibility for bringing laws enacted in the past up-to-date so that they reflect prevailing attitudes and moral sensibilities and address the actual circumstances we face, especially when these could not have been anticipated. Thus, he claims that judges should not proceed as though the past binds the present. Eskridge tells us that the legal situation had changed so dramatically by 1977 when the Supreme Court considered Brian Weber’s complaint that it was necessary to bring the Civil Rights Act 1964 up-to-date. The new circumstances Eskridge lists to illustrate this point include:

1. The Equal Employment Opportunity Commission (EEOC) put pressure on employers and unions to undertake voluntary efforts to re-evaluate their employment practices and to embrace affirmative action plans that involved the imposition of racial quotas.[50]

2. After the landmark Supreme Court decision Griggs v Duke Power Co in 1971 American companies faced “potential Title VII liability if the numbers of blacks and other minorities in their workforce remained too low”.[51]

Thus, some of the “changed legal circumstances” that Eskridge is concerned about and which he refers to in his efforts to persuade us that that there was a need for new developments in the law by 1977 are actually the result of earlier activism on the part of the EEOC and the Supreme Court. The argument is clearly circular: activism requires further activism to counteract the anomalous legal circumstances that have arisen because of the early activism, and so on. But in this circumstance, the Supreme Court could have amended the Griggs rule that Eskridge cites so as to offer companies an opportunity to defend themselves against any claims that they had been discriminating on the basis of race.[52] The Supreme Court should also have ensured that the EEOC worked within the guidelines of the Civil Rights Act 1964 as Congress intended it to.

In asserting his views about what “American society came to understand”, Eskridge appears to be appealing to democratic authority. How can anyone object if the Supreme Court is merely doing what everyone wants? But this manoeuvre, appealing to prevailing attitudes, is unconvincing because Eskridge offers no evidence to support his claim. Also, he overlooks the fact that the primary function of the legislative branch of government is to represent the American people – this task is not delegated to the Supreme Court. Thus, Congress and not the Court should revise laws so that the people of America are not bound by the past. Significantly also, Eskridge conveniently overlooks the fact that Congress had reexamined the Civil Rights Act in 1972 just four years before Weber. None of the legislators had suggested at that time that the new goal in advancing equality should be to encourage the implementation of voluntary plans that used racial quotas. Far from it. The legislators wished to instruct the justices and administrators on the Equal Opportunity Commission on how to read the Civil Rights Act 1964 precisely because many members of Congress were dissatisfied. They did not wish to discriminate or to prevent the advancement of any section of the community but they made very clear that they did not like affirmative action plans that made use of racial quotas. Nor is it true, as Eskridge suggests, that this position lacks a credible rationale. If the purpose of the Civil Rights Act 1964 is to secure better race relations in America (rather than the advancement of African Americans), insistence on the well-articulated “colour-blind” approach is a reasonably strategy.[53] Also, Eskridge cannot deny that the congressional debates support a different conclusions about the thoughts prevailing in “American Society”. The members of Congress may have known that anti-discrimination measures would be ineffectual, as Eskridge claims, but none of the legislators proposed that anything should be done about this.

Leaving Congress’s authority to speak for “American society” to one side, it is also inconceivable that large numbers of Americans in 1964 thought that “a colourblind society would in time yield equality of result”, as Eskridge also claims. Even today, many people in the United States think that the inequalities between racial groups in their country result from a failure on the part of some to apply themselves effectively. Racial stereotyping that alleges that some communities simply fail to instruct their children in ways that enable them to become reliable and diligent abound. As for affirmative action, hardly anyone in America has a good word to say for the practice of advancing individuals because of their race. The evidence is stunning and overwhelming.[54]

Not surprisingly Eskridge shifts ground in later paragraphs. Instead of appealing to our democratic sentiments by referring grandly to claims about the wishes of “American society” as a source of authority, we are told that the disadvantages of a “colour-blind” approach came to be understood only within the legal culture. Eskridge here claims that the Supreme Court may interpret the Title VII dynamically because,

the legal culture’s rethinking of the concept of discrimination has entailed a more positive vision, in which voluntary affirmative action plays a critical role.[55]

This is a more convincing claim but it is also vulnerable for, once again, Eskridge offers no empirical support to substantiate his assertion. A first problem in assessing his shift in terminology from “American society” to “legal culture” is that he needs to tell us how the “legal culture” is constituted. Which sections of the American public participate in shaping the “legal culture”, as he uses the term, and what evidence is there about what they believe? In an earlier sentence Eskridge suggests “legislators, judges, administrators and commentators” are the representative group. But this specification is a sleight-of-hand move because we know that very few legislators in the United States, whether in State parliaments or in Congress, have ever been prepared to support Eskridge’s view that the imposition of racial quotas will have beneficial effects. Thus, Eskridge’s case turns out to be no stronger than an appeal to elitism – “we know better”. His problem is that “[some] judges, [some] administrators and [some] commentators” have no authority to make law for the sovereign people in the United States. In that democracy, people like Brian Weber who are threatened by the imposition of racial quotas are supposed to be able to secure their interests through the ballot. (That they do vote according to their perception of these interests is precisely why Eskridge cannot be allowed to cite legislators as part of the authoritative group that, he claims, supports the widespread use of racial quotas.) Indeed, this is a case where the representative process offers more protection to individuals than the judicial process. Brian Weber needs protection because many of the legal elite, that Eskridge cites as authority, are quite happy to have people like him pay the price for the nation’s past racism.[56]

Elitism of the kind proposed by Eskridge may be necessary in the United States as the nation confronts racism but it is hardly a good reason why those of us whose democratic traditions are somewhat healthier should concede that progressive lawyers, administrators and commentators should make our laws.

E. Eskridge’s Descriptive Argument

In his book written in 1994, Eskridge again discusses Weber. Rather than reconsidering his judgment that the outcome in the case was a good thing, however, he now uses the confrontation between Rehnquist CJ and Brennan J to illustrate the inconclusive nature of appeals to legislative understandings, intentions or underlying purposes.[57] His point is that “dynamic interpretation” is inevitable, whether judges choose to admit this or not. What interests him in 1994 is the fact that the conservative Rehnquist Supreme Court upheld Weber in 1987, ruling that a voluntary affirmative action plan to advance women did not involve invidious discrimination, so was not in conflict with Title VII of the Civil Rights Act 1964. The case where this unexpected ruling occurred is Johnson v Santa Clara Transportation[58] (Johnson). By comparing these two similar decisions, looking once again at the arguments offered by Rehnquist and Brennan JJ in Weber, Eskridge tries to show that by 1987 circumstances had changed significantly (primarily because of the Supreme Court’s Weber ruling) so that the justices were now free to ignore legislative intentions and the debates in Congress about discrimination and the use of racial or gender quotas. Thus, he claims the justices ignored legislative history in reconsidering Title VII in Johnson, arguing that this was justifiable in the circumstances.[59]

The argument Eskridge makes in this context is that no matter how unusual the initial decision (that is, Weber), subsequent decisions interpreting the statute may rely on it – but the story must go on evolving from where the last creative author left it to take into account new circumstances and problems. Thus, he tells us, dynamic development inevitably occurs.[60]

On this account of statutory interpretation, the circumstances faced by a Court in reading a major statute like the Civil Rights Act 1964 necessarily evolve over time as the Court moves on from one decision to the next. This claim is obvious and can hardly be challenged. However, Eskridge’s conclusion that the original understanding of a major statute’s text becomes increasingly less relevant until, eventually, it will no longer be in focus is provocative and contentious. As we have seen, it is precisely this kind of evolving interpretation of text that Eskridge recommends in reading the Civil Rights Act 1964.

In establishing his case, Eskridge shows that the circumstances the justices faced in Johnson were unusual because the issue of sexual discrimination had not been properly addressed in Congress during 1964. Indeed, most legislators in both the Senate and in the House of Representatives had not expressed any views on the subject and probably had not thought about the problem of sexual discrimination. This is because they were preoccupied almost exclusively with the issue of racial discrimination in 1964. Thus, Eskridge argues that it is implausible to suppose that the benign purposes that Brennan J identifies in Weber (of advancing the employment opportunities of African Americans) are relevant in thinking about the affirmative action in Johnson, because the Congress had expressed no views about whether the advancement of women into areas such as road construction is desirable. Yet, Johnson was seen by a majority of the justices as analogous to Weber.

Eskridge’s case, claiming dynamic change had occurred in the shift from Weber to Johnson and that Weber should not have served under conventional rules of stare decisis as an authority for Johnson, is not convincing. Once again, his argument ignores the force of textual analysis. The benign purposes that Brennan J identifies in Weber allowed the majority to make a claim about the meaning of a critical term in the statute – they had held that “discriminate” should not be construed so as to forbid a racial preference when an employer can show that it has a good reason for wanting to advance members of a racial group. In this connection, the Court had also accepted that discriminatory action that is part of an affirmative action plan directed at assisting a disadvantaged racial group is often benign. Once this argument was accepted (and, as we have seen, it required a great deal of “activism” on the part of the Supreme Court to get to this point), the justices were surely entitled to suppose that “discriminate” was used consistently throughout the Act. There is no evidence to show that this was not the case and traditional rules of construction require judges to assume consistency. Thus, once the Supreme Court had agreed to interpret “discriminate” in a manner that allowed for benign cases of racial classification, it ensured that all complainants who sought protection under the Act would need to show either: (a) a hostile motivation on the part of the discriminating employer; or, (b) that the benign purposes for the discrimination that the employer asserted were not important enough to constitute a good enough reason to warrant the discrimination. Thus, Paul Johnson and Brian Weber were in the same situation because neither of them had demonstrated any malice and the Court had already accepted that employers may address the effects of their past discrimination against a group.[61] Not surprisingly, the majority of the Court ruled that the gender-based discrimination Johnson had suffered was also benign and therefore permitted under Title VII. What we see here is that the text of the civil rights statute is the focus of attention in Johnson – there is no evolution of the meaning of its terms over time (apart from the original “dynamic interpretation” in Weber). If Johnson had been considered in 1977 the justices would have still have had to decide on the meaning of “discriminate” and there is no reason to suppose that Brennan J would not have been successful in establishing his preferred interpretation of this crucial term.

Despite all these problems, Eskridge’s analysis of the two cases and his careful review of the debates in Congress during 1964 does show that statutes rarely have any determinate purpose. The passage of the Civil Rights Act in 1964 involved a very large number of compromises and backroom deals so that the record, as Eskridge presents it, is so contradictory and incoherent that it is difficult to makeout an unchallengeable case for any one view of the statute’s underlying purpose. As he shows, good faith interpreters were able to read the record in different ways.[62] One problem Eskridge identifies is that some of the legislators acted strategically, saying things they did not mean or remaining silent so that ambiguities that favoured their own view of what the law should secure remained in place. For example, he speculates that some liberals may have remained silent about their understanding of the misleading meaning of “discriminate”, hoping that the Supreme Court and the Equal Opportunity Commission would require that an invidious motive be shown before disallowing affirmative action plans that involved racial preferences. More controversially, he takes the concerns of conservative legislators who demanded tougher language to ensure that the Equal Opportunity Commission would not require the use of racial quotas as evidence that they believed that the term “discriminate” was being used only to apply to vicious forms of targeting or exclusion. He also suggests that Senator Humphrey, who sponsored the Bill, may have been lying when he reassured the Senate that the statute as written was fool-proof against the future use of racial quotas.[63]

Although I am not prepared to concede that this complexity allows judges to choose just any interpretation, for they are bound by legal conventions that require them to choose one way rather than another, Eskridge’s analysis of the Congressional debate about civil rights in 1964 does a reasonably successful job in supporting the postmodern claim that meanings are a construction of the reader rather than objectively in a text; going over ground already thoroughly worked by writers such as Stanley Fish, even by Ronald Dworkin in his earlier discussion of Weber in the paper I discussed above.

What we should conclude from this kind of analysis is, however, highly contentious. Does the fact that meanings are constructed by readers mean that one interpretation is as good as another and that anything goes? Does it mean, as Eskridge supposes, that judges need pay little attention to the processes by which laws are enacted or to the understandings shared by legislators? We also need to consider relationships of authority. Eskridge is unhappy about rules that designate whose interpretation should be the authoritative one. He thinks such rules cannot be binding because every time a text is read the situation is different and the past is, more often than not, too complex to be binding. Indeed, he thinks the construction of meaning by readers means that judges are free to read-into the opinions of other judges – the texts they have provided – whatever they find most helpful and relevant in the new circumstances they face. But this leaves a subordinate court free to construe the ruling of a higher court so that it is virtually without binding force.

Fortunately for the ideal of the rule of law, Eskridge fails to make a compelling case for these anarchical normative views. He thinks interpretative freedom (the undermining of rules of authority) is fine because what should count in most cases is whether or not the outcome in a case is helpful in dealing with current problems, not whether the judges need to defer to the judgments and assumptions of people who had reached their conclusions in quite different circumstances. Coherence in law means very little to him so long as we are able to move forward in a constructive manner. Thus, it makes little difference who advances the law; legislators, administrators, judges and citizens all have the same standing to do good when they can. Rather than try to follow indeterminate rules (which is impossible because their meaning depends on our construction) he recommends we do what is most pragmatic.[64] The questions that he finds relevant and that he thinks judges should address sequentially and more openly are:

The problems with this list of normative recommendations are: first, very few judges (not even Brennan J) are prepared to disregard a relevant statute’s text in order to make policy judgments more openly; second, the social and legal practices of liberal democracies all involve the recognition of rules of authority that delineate which institution is responsible for making various policy choices, so any decision to ignore authority will inevitably disturb well-functioning social and legal practices; finally, third, Eskridge’s normative framework is totally incompatible with what most of us believe about the importance of democratic accountability and the “rule of law”. As we have seen, reviewing Eskridge’s account of Weber, the normative guidelines of “dynamic interpretation” that he lists simply set-up judges as guardians who may ignore the normal conventions, in a democracy, that require deference to those who are elected to be the legislators. One suspects that Eskridge’s agenda in recommending “dynamic interpretation” is to undermine the authority of the current Supreme Court because it is now dominated by conservatives. If lower courts are free to read statutes dynamically and may ignore the attempts of the Supreme Court to establish guidelines, as Eskridge recommends, the Rehnquist conservatives will lose some of the potency they now enjoy.

It is however important to note that “dynamic interpretation” is not biased in favour of the progressive side of politics. Eskridge allows that conservatives may also use the authority enjoyed by courts as a means to secure their preferred outcomes, without paying any regard for process values. With regard to affirmative action, for example, he tells us that a judge who accepted the economic view defended by Richard Epstein and Richard Posner that Title VII is unnecessary, extremely costly and also inefficient would be acting with integrity if he or she offered a very broad interpretation of Title VII, so as to deliberately undermine the regulative capacity of the Equal Opportunity Commission. This is what he claims the Rehnquist Court has actually been doing (rather than following procedural rules that require deference to Congress and the Constitution, as the justices claim); but he suggests that if the justices who support this result actually believe the economic and social predictions that are made from the economic modelling, they are justified in this action.[65] If they think that affirmative action causes more racism, for example (by antagonising whites who feel they have been disadvantaged, by creating stereotypes and by encouraging politicians to play the race card to get elected), then Eskridge thinks the judges should act on this belief.

Apart from consequential arguments that evaluate outcomes in the light of some conception of the general good, Eskridge also recommends that judges should be motivated by a concern to secure just or fair outcomes. Of course, conservatives and liberal-progressives will disagree about what “justice” and “fairness” require in particular circumstances; however, as a consistent sceptic about our capacity to discourse about values in a rational manner, Eskridge does not suppose that these disagreements can be resolved through rational discussion. Thus he does not object if conservatives act on their beliefs when these are deeply felt and conscientiously held. In this connection, Eskridge illustrates his point by noticing that Scalia J is a thoughtful individualist who has expressed strong sympathy for the many blue-collar white males (like Brian Weber and Paul Johnson) who must necessarily lose-out when minorities or women are advanced under affirmative action plans. This concern with fairness as a value is what Eskridge thinks motivates Scalia J’s legal judgments in affirmative action cases. Eskridge has no quarrel with this behaviour. As he puts it, “The Rehnquist Court’s rupture in civil rights law is defensible if it can be justified by a robust critical appraisal of law’s practice”.[66]

If we accept Eskridge’s conclusion about what actually motivates the practice of judging (that judges like Scalia J do not usually do what they say they are doing),[67] it is still not clear how this helps him make-out a case on behalf of his normative recommendation that judges should act pragmatically by developing public policy in a dynamic way. He has no way of showing that his advocacy of pragmatism is a better approach than Scalia J’s textualism. As the philosopher David Hume has shown, it is illegitimate to deduce statements about what should or ought to be the case from statements about what is the case. But this is what Eskridge tries to do in his book (by examining the dynamic advance from Weber to Johnson that he alleges took place, and by compiling an extensive number of other case studies that, he claims, show how judicial policy making is often undisciplined by statutory text). No matter how many examples he finds (and the shift in textual meaning from Weber to Johnson that he claims to observe is merely one of many purported examples that are documented in his book), his point about judicial motivations and behaviour remains descriptive. Echoing legal realists, he insists that legal judgments reflect who the judges that support them are, more than any beliefs they may espouse about legal methodologies and norms. Thus, although Scalia J claims to be textualist because of a belief in some idealistic conception of law, Eskridge tells us that this is a delusion. Like every other judge, Scalia J adopts the methodology that is most likely to secure the result he prefers. But very few, if any, plausible normative implications follow from this kind of descriptive analysis – Brennan, Rehnquist, Scalia, and O’Connor JJ are each free to do what he or she thinks is right. Thus, Eskridge’s analysis does not help us decide what they ought to have been doing when interpreting Title VII.

At times Eskridge seems to admit this, presenting “dynamic interpretation” as merely a descriptive claim. Thus he tells us,

Perhaps the only implications of postmodernism for statutory interpretation are descriptive ones ... statutory interpretations cannot rest on the modernist conception that a subject retrieves a plain meaning or an intent or a purpose from the object; interpretation is dynamic, in the sense that the meaning of a statute will change as social context changes, as new interpreters grapple with the statute, and as the political context changes; the story of a statute becomes a small part of the larger web of institutions and practices in a society.[68]

Even this claim is stated in a highly implausible way. The fact that the meaning of a statute will change as the social context changes does not provide any reason at all for supposing that we are not constrained as readers. As Stanley Fish whom Eskridge follows makes clear, we are highly constrained in constructing the meaning of texts by the prevailing conventions of the communities within which we participate. Fish tells us that what comes naturally – causing us to think meanings are “plain” and beyond contention – are the interpretations that we have been taught to look for.[69]

But this concession brings normative arguments back into play for we are all bound by the norms that constrain our choices. Thus, O’Connor J followed Weber as a precedent in joining the majority in Johnson because this is what she thought a good judge should do. Eskridge can neither condemn nor praise this practice for he cannot say why some legal considerations should count more than others. His postmodern descriptive conclusion (that we all follow norms in reading texts) adds nothing to the debate about what factors in a particular case a judges ought to take into account and how much weight he or she needs to place on various competing values – like O’Connor J in Johnson, we all go on acting as before, “doing what comes naturally”, making the normative arguments that we have been taught to take seriously.[70]

An implication of the postmodern reduction of normative legal philosophy to socio-legal description is profoundly conservative, at least in Australia: Fish claims, judges are shaped by the social context that they find themselves arguing within and by the values that they have come to take for granted through their socialisation within the legal profession. If this is true, it is unclear how external critical standards that can allow for radical departures from the prevailing normative conventions will ever come to have any purchase. Equally it is unclear why critical reasoning should ever make a difference.

Both Fish and Eskridge contest my claim that this conservative conclusion necessarily follows from their postmodern premise. Of course they cannot claim that change will occur because of a rational debate. Nevertheless, they each think that changes occur when new interpreters with conflicting values and expectations come forward (thus, for Fish, university culture, especially in the Humanities, has been changed dramatically in the United States because women and minorities have recently been included in the academic community).[71] If the entry of newcomers is what secures normative change in any community, radical changes are highly unlikely in communities that are very difficult for outsiders to penetrate. This is a serious problem for Eskridge because the inclusion of recruits from diverse backgrounds occurs very slowly in most judicial communities. Indeed, few members of the groups that Fish and Eskridge regard as “outsiders” have been appointed as judges in the United States,[72] and those who have been approved (like O’Connor, Ginsberg and Thomas JJ on the Rehnquist Court or the Jewish Frankfurter and Brandeis JJ before them) have been so shaped by the experience of getting there that they can hardly be regarded as “outsiders”. In Australia, the judiciary is selected mostly from the Bar so that most of the judges are very wealthy males that have been educated in private schools and in the older universities.[73] To get to be a judge on a significant court in either Australia or the United States a person must undergo a considerable period of socialisation within a very closed, hierarchical and self-conscious profession. Indeed, as Eskridge himself notices, most members of the Rehnquist Court were trained at Harvard University (Scalia, Kennedy, Souter, Ginsberg, Breyer JJ) where they were all greatly influenced by the famous Henry M Hart and Albert M Sacks course “Legal Process”.[74] And if they did not suffer this indoctrination at Harvard Law School, they more than likely received a similar training somewhere else (Rehnquist CJ served as a Clerk for Robert Jackson J who was an exponent of the Hart and Sacks approach and Stevens J was a protege of Edward Levi another exponent of legal process theory). Of course, the next generation of judges in the United States may well have been taught by Dworkin and Eskridge but, for a change in the culture to occur, we must first suppose that these writers are able to persuade their students to follow their recommendation with regard to method.

This is not to say that there is not a legitimation crisis within the legal culture in the United States that has come about because of the successful advocacy of “dynamic interpretation” in reading the Constitution and statutes. At the present time the profession is divided between liberal-progressives and conservatives and it is clear that writers like Dworkin who advocate “dynamic interpretation” are now dominant in the academies. Whether those who advocate “dynamic interpretation” will be able to bring about a permanent shift in the legal culture will depend on how successful they are in influencing future legislators to appoint judges who embrace their views and in defending their normative recommendations about how judicial interpretation should proceed. Certainly the Warren-Burger Court practiced “dynamic interpretation” in a highly visible manner (as the Weber ruling shows). Indeed, the success that advocates of “dynamic interpretation” have had in the United States is a legacy of this practice because defending what the Supreme Court did in the 1960s and 1970s is seen as a very urgent political undertaking. For many of those who oppose racism in the United States, the outcomes in the landmark Warren-Burger Court cases dealing with voting rights, affirmative action and criminal justice are still a litmus test – only those constitutional and interpretative theories that can accommodate these outcomes are regarded as acceptable; those that fail this test are described as manifesting a hostility to civil rights and even as racist in their inspiration. This situation is unlikely to be sustained in the United States because: (a) there is consistent opposition to “dynamic interpretation” from within the judiciary led by the more conservative Rehnquist Court (whatever other differences may divide them, Rehnquist CJ, Kennedy, Scalia, O’Connor, Souter, Thomas, Breyer and Ginsberg JJ are each strongly committed to judicial deference and hierarchy); (b) most lawyers are ambitious and, to get ahead in the United States, one needs to be appointed or employed by conservative politicians who continue to demand that courts be deferential; (c) “dynamic interpretation” by judges was used primarily to confront the extreme racial hostility that characterised southern American culture in the 1950s and 1960s, but racism has become more covert and the ethnic composition of the nation has also changed; finally, (d) there is less need for judicial leadership in securing civil rights because African Americans, other minority groups, and women, are now well-organised and constitute a powerful political force to be reckoned with.

2. Section Two: Dynamic Interpretation in Australia

Thus far, I have offered an analysis of Weber to illustrate the dynamic approach to statutory interpretation at work in the United States and to disclose how it is in conflict with democratic norms. I have tried to show that some of the arguments offered by Dworkin and Eskridge in defending their recommendations are not convincing. In this section I intend to show that “dynamic interpretation” is now at work in Australia.

A. The Traditional Australian Approach

Dynamic interpretation has not received much support in Australia.[75] Our tradition has required judges to draw a sharp distinction between the common law (that judges are responsible for keeping up-to-date) and statutory law.[76] This is why legislating is a task that is generally left to those who are elected by the people. When Australian judges do make-up the law (other than the common law), they tend to do this in circumstances when it is clear that a decision must be made and the legal materials are clearly exhausted or ambiguous. Even then, deference to legislative leadership is evidenced by a willingness on the part of most judges to implement the legislators’ intentions if these can be identified. In most circumstances, however, Australian judges usually choose to confine their examination to the language used in the instruments they are interpreting, taking each statute as a whole (a method articulated by Higgins J in the landmark constitutional case Amalgamated Society of Engineers v Adelaide Steamship).[77]

This focus on the textual origins of statutory law does not mean that our judges think they can discern the legal meaning of any contested words without considering the underlying purposes of a statute. It is accepted that controversial words and phrases must be considered in the context in which they are used, and that judges may also need to consider each statute in the light of its history. Australian judges do not usually ignore these complexities indiscerning meaning, although there has been a tendency to adopt a literal approach because a great deal of reliance is placed on the actual words chosen. In this orientation, Australian judges follow British authorities, seeking the meanings of the contested terms in a statute at the time of their first use, having regard to context.[78] Put bluntly, the British-Australian approach requires judges to assume that “statutory provisions mean what they meant when they were enacted”.[79]

Of course, there have been and are differences of opinion about how much weight to place on the actual words used and whether parliamentary debates and committee reports may also be taken into account in resolving disputes. Australian judges have tended to be careful in discerning any underlying legislative purposes, distinguishing the hopes and beliefs individual legislators might have expressed from any understandings that they shared collectively when they agreed to a statute’s precise terms.[80] Thus, Australian judges have tended to distinguish what leading legislators may have hoped to accomplish in passing a law from what was in fact legislated – only what is finally agreed to is recognised as law.

Recent attempts have been made by the Commonwealth and by most of the state governments to guide courts so that the hopes and beliefs of legislators are taken more into account, requiring judges to prefer a construction that would promote general legislative purposes.[81] Of course, legislators are free to state their own beliefs and values and may declare any view they like about how they think judges should proceed, but they may not attempt to direct the courts.[82] In so far as these various statutes attempt to instruct judges about how to do their work, they necessarily involve a violation of the doctrine of the separation of powers. In any event, as Eskridge has shown in his analysis of debates in the United States Congress relating to the Civil Rights Act 1964 that I reviewed in the last section, it is usually impossible to discern a single unambiguous legislative purpose when reviewing the work of a legislature. Thus, an instruction that judges should be guided by such a purpose merely encourages judges to selectively emphasise the opinions of those legislators whose opinions most closely reflect their own point of view. Or they will conjecture that the relevant purpose is the one that “makes most sense” of the legislation; or suppose that legislators would have confronted unforeseen problems in a rational and principled manner. This kind of speculation will inevitable make the processes of adjudication more dependent on the personal values that the judges bring to their work. Indeed, as we have seen reviewing William Brennan J’s work in Weber, when the legislative history is unclear or if problems have arisen that could not have been foreseen by legislators, judges are sometimes tempted to attribute a noble purpose to them that cannot be supported with historical evidence.

This kind of development has occurred in Australia. In Wik, for example, Kirby J suggests that,

Although the legislators in 1910 and 1962 did not know of the existence of native title, it should be presumed that, had they known, parliament would have acted to protect such rights against uncompensated expropriation.[83]

In this connection he also cites with approval a Canadian principle,

that courts should attribute to parliament the objective of achieving desired results with as little disruption as possible of the rights and interests of indigenous peoples and affecting their rights and status no more than is necessary.[84]

We see, here, how moral principles are brought-forward to guide judicial discretion. In this way the search for elusive legislative purposes increases judicial discretion as the principles identified may be in conflict with the values that motivated the actual legislators and enjoy very little public support. Thus, it is not surprising that Jeffrey Barnes has been able to demonstrate that this has indeed been the case in Australia.[85]

The problem of the indeterminacy of legislative purposes is, however, easy to exaggerate and it has to be acknowledged that Australian judges have tended to be more disciplined than judges in most other jurisdictions. In general they have not been inclined to postulate abstract purposes that cannot be supported with evidence in the historical record; nor have they generally used common law principles as a guide. Indeed, with very few exceptions and qualifications, Australian judges have resisted legal arguments that rely on the attribution of a conjectured legislative purpose, accepting that their task is to implement only those wishes that have been enacted into law. Thus, they generally still prefer to take the words used by draftsman as the most important guide in discerning what legislators may have intended; and, of course, the distinction between what some legislators may have hoped to achieve, in a general way, and what was actually accomplished collectively remains relevant.

All this is not to say that external values have not also informed the work of our judges. As Leslie Zines points out, reflecting on Higgins and Isaacs JJ’s opinions in the Engineers’ case,

Questions of utility, of proper ordering of political arrangements and a desirable division of power are evident in parts of Higgins J’s judgment in the Engineers’ case as they were in his judgments in other cases, such as the Union Label case and Huddart, Parker & Co Pty Ltd v Moorehead. So far as Isaacs J was concerned, it is almost impossible to believe that he was not motivated by a view of Australian nationalism which involved the strengthening and growth of central power.[86]

We see here that judges who embrace the Australian “legalism” that Sir Owen Dixon defended so proudly, do so partly for reasons that are external to the legal materials before them. This is inevitable. Indeed, the best reason why a judge should embrace conventions that restrict his-or-her discretion and agree to implement the wishes of legislators when these are enacted into law is a belief that this discipline is required to enhance democracy, making the overall political system more efficient and fair. To suppose that our judges have embraced legalism simply out of habit and without reflecting on the underlying political theory that make this approach sensible is simply to insult them. If they had believed (as Eskridge does) that better consequences would follow if all judges considered cases without regard for the constraints imposed by authoritative texts such as the Constitution or relevant statutes, this would have been recognised by them as a strong reason for challenging legalism. Until recently, however, very few of our judges have found this kind of proposition at all plausible.

In this connection, it is worth noting that the common law rule requiring deference to the Imperial Parliament is a product of the judicial mind – and, what has been constructed by our judges may well be amended in the same way. Thus, our judges may some day choose to recognise considerations of principle and policy that require them to place less weight on the authority of texts than they have tended to do in the past.

Whether they should do this is the question that Kirby J discusses in his important New Zealand speech discussing Lord Cooke of Thorndon’s views on the topic, expressing his own conclusion that: “the search is on for a new fundamental basis of the legitimacy of Australian laws”.[87] The reason why Kirby J thinks there is a need for a new foundational rule, and that we should be looking more broadly at underlying principles and policies, is that he believes that the British-inspired conventions that Australian judges presently follow are largely arbitrary,

In the good old days of legal positivism, the answer as to why courts obey an Act of Parliament, if anyone stayed to ask the question, would have involved either an historical excursus to Westminster or the positivist excuse that this was simply so because of the legal paradigm in which we are operating.[88]

Of course, Kirby J is right in suggesting that by the end of Nineteenth Century, when the Australian Constitution was agreed to, and in the early part of this century, arguments for relying more on accountable officials were largely taken for granted. Indeed, by the time H. L. A. Hart’s wrote his Concept of Law that was published in 1961 (specifically to reformulate the Bentham-Austin theory of law as a sovereign’s command by emphasising the importance of rules) he assumed that the accepted distinction between statutory law and the common law was so well entrenched in British legal culture that he presented his new version of legal positivism as a descriptive theory, claiming that judges follow the grundnorm (rule of recognition) that traces all statutory “law” to Westminster as matter of fact.[89]

But Kirby J is wrong to suppose that arguments cannot be provided to support the positivist ideals that the rule reflects (such as: professionalism, achieved through the separation of legal reasoning, the establishment of the practice of law as a profession, and by sharply distinguishing legislative and judicial roles and career paths; certainty and coherence, achieved through hierarchical rules, careful drafting and judicial leadership; democracy, achieved through a widespread recognition that deference to the authority of elected officials in the making of policy is a good thing). Of course, people make very different assessments about the historical role judges have played in Australia and some view the utilitarian account of democracy and the “black letter”, textualist, conception of law and technical characterisation of the legal profession that it encourages as uninspiring.

Also, experience varies, and democratic institutions evolve and perform differently in various historical circumstances. At the present time, in most contemporary democracies, people are very disillusioned with the role that legislators have been playing and many intellectuals in Australia, like Kirby J, are hoping (on the basis of very little evidence) that judges will do a better job in making policy choices.

Like the late Lionel Murphy J and others, Kirby J has been influenced in challenging the hegemony of positivism by Professor Julius Stone.[90] According to Stone, legal rules are so frequently ambiguous that considerations of policy and principle must necessarily be resorted to by a conscientious judge. Instead of referring ambiguities back to legislators for further legislative refinement through amendment, he prefers to encourage judges to take-on a more open legislative role in shaping policy to bring the law up-to-date or into line with principles of justice and other human rights standards. As we shall see, this desire to blur legislative and adjudicative roles and to infuse the law with a sense of justice is the disposition that Kirby J brings to the his task when advancing his opinion in Wik.

B. The Wik People v The State of Queensland

In Wik we see Kirby J claiming a broad discretion to secure important human rights when a flexible interpretation of legal materials will allow for this. In advancing this view of the judicial role, there are similarities with William Brennan J’s leadership role in Weber.

Both cases involve important issues that are highly controversial because they impact upon the vital interests of sections of the community. Brian Weber complained that in seeking to remedy its past discriminatory practices the Kaiser Aluminium Chemical Corporation was making him pay the price. Weber is not alone, many white Americans fear the imposition of racial quotas to advance minority groups. Affirmative action is a divisive and highly contested policy in the United States. In Australia, notwithstanding that no pastoralist has actually lost anything because of the Wik ruling (and the High Court has explained that their rights will have priority where there is any conflict with native title),[91] many perceive a threat to their interests, complaining that elites who need to make no sacrifices are forcing them to pay the price for the nation’s past mistreatment of indigenous people.[92] In both cases, also, the dissenting justices are convinced that the legal arguments presented to them afford only one plausible answer; they view the legal issues in the case before them as relatively simple. Yet both Kirby J in Wik and William Brennan J in Weber, view the legal problem as highly complex, involving difficult and obscure matters. Both justices also take the absence of a specific statement by legislators accomplishing what they take to be a morally indefensible line of action (forbidding voluntary affirmative action/extinguishing native title) as leeway for placing a construction on the words in a statute that is highly unusual (that “discriminate” will be taken to mean “discriminate against a minority”/ that “a lease” will be taken to mean something unique to Australia, more like “a license” than a common law “lease”). But in both cases the legislators actually proceeded on assumptions that make such a declaration redundant. In the United States, Congress thought that the voluntary use of quotas was already forbidden under the anti-discrimination provisions of Title VII. In Australia there was no notion before Mabo (No 2) that indigenous Australians enjoyed property rights recognised at common law. Indeed, far from reflecting a noble purpose, the silence of the Queensland Parliament in 1910 and again in 1962 is a very sinister reminder of the deeply racists attitudes that prevailed only a few decades ago. Until Wik, the way of life enjoyed by the Thayorre and Wik peoples was left in the hands of the pastoralists.[93]

C. The Various Opinions

In Wik, the dissenting judges (Dawson and McHugh JJ joining an opinion written by Brennan CJ) adopt a position that is similar to the argument defended by Rehnquist J in Weber. Like Rehnquist J, these justices feel constrained by norms that are associated with the rule of law. They claim that, as judges, they have an obligation to declare the law as they find it, rather than make policy resolutions that satisfy any moral outrage they feel about the casual manner in which fundamental interests of indigenous people have been disregarded in Australia. Most significantly, the dissenting justices in Wik recognise an obligation to abide by the recent Mabo (No 2) ruling.[94] (As the author of the leading opinion in this case, Gerard Brennan CJ carefully explains his understanding of what was established in Mabo as a matter of law and this view is accepted by both Dawson and McHugh JJ[95] ). For the three Wik dissenters, the legal aspects of the case are straightforward. They simply follow the traditional method of statutory construction[96] and, in the light of the principles regarding the extinguishment of native title established in Mabo (No 2), following the rule of stare decisis, the conclusion they had to reach as a matter of legal deduction seemed overwhelming.

The most difficult issue for all the justices concerns the issue of extinguishment. In Mabo (No 2) six of the justices (Mason, McHugh, Brennan, Deane, Gaudron and Dawson JJ) had signalled that they regarded native title as extinguished by the grant of an unqualified lease because this entailed exclusive possession of the designated land. A problem occurs, however, when a lease contains reservation clauses that protect some of the interests of indigenous people. One legal scholar tells us that, after Mabo (No 2),

if the lease itself said that it reserved to Aboriginal inhabitants free access to the land and to the trees and water thereon as well as access to enable them to procure birds, fish and other foods, then the situation would be different, and native title may not be extinguished completely.[97]

Of this kind of situation, however, Gerard Brennan (then) J expressed the view, in Mabo (No 2), that extinguishment had inevitably taken place.[98] On his understanding, all the rights in question would be allocated in the light of the governing statute and the specific terms of the lease in question. Thus, the limited rights of access enjoyed by indigenous peoples for usufructuary purposes (such as hunting, gathering, fishing etc.) are effective because of the lease – no residual common law entitlements or native title claims would remain.[99] This view was not determined authoritatively in Mabo (No 2); although McHugh J and Mason CJ endorse Brennan J view, as does Dawson J who offers other reasons for thinking that extinguishment has taken place.[100] But the issue of whether unqualified leases extinguished native title was thought to have been settled.[101]

Because of the consensus in Mabo (No 2) that inconsistent statutory entitlements normally displace common law claims, the fact that the leases in question (in Wik) were issued under Queensland legislation (the Land Act 1910 and the Land Act 1962) that include no provisions protecting the interests of the Wik and Thayorre peoples makes it difficult to understand how the majority of the High Court reached the conclusions that native title rights were not extinguished. As Brennan CJ explains in his dissenting opinion, the very use of “lease” in the grants that were made carries the implication that native title is extinguished. Moreover, the fact that there are reservations protecting rights of entry and inspection indicates that, in the absence of such reservations, the pastoral leases in question would have granted rights of exclusion.[102]

The four justices in the majority in Wik offer very complex justifications for supposing that the grant of a pastoral lease does not necessarily vest “in the grantee an interest in the land which is inconsistent with the continued right to enjoy native title”.[103] They also attempt to establish that Mabo (No 2) does not secure any clear authoritative guidance because the pastoral leases in question cannot be construed in the normal way, as conferring a right to exclusive possession. In their view, the historical evidence and circumstances in Australia make this unreasonable. Having established the necessary leeway, setting aside the guidelines suggested by Brennan J about the legal implications of leasehold title, each of the majority justices proceeds to find grounds for holding that native title survives the creation of the two particular pastoral leases in question.

Although it is wrong to suppose that all of the justices who supported the majority in Wik see themselves as embracing an approach to the interpretation of statutes that was new in Australia, claiming more scope for judicial policy making than is usual, what we see at work in Wik is a strategy much favoured by dynamic interpreters: The judge will declare the relevant section of a statute, or the rule established by precedent, to be inapplicable because of new circumstances or understandings, unforeseen and appreciated by the legislators or not considered by the judges in the controlling case. Having established this (not usually a difficult task as circumstances change very rapidly), he or she proceeds to impose a policy that was never contemplated by the legislators, citing very abstract or general legislative purposes; or, will justify his-or-her policy making by using the silence of the legislators as evidence that they are not opposed to the court’s taking responsibility for preventing unjust, undemocratic or unreasonable outcomes.

D. “Dynamic interpretation” in Australia: Justice Kirby’s Use of History

It is not necessary for the purposes of this paper to establish that all of the justices who joined the majority in Wik were self-consciously adopting “dynamic interpretation” as a new approach. This would be impossible to show because it is clear that Gummow J sees himself as a textualist, adopting the more traditional techniques associated with Australian legalism. For Gummow J, the central issue is whether, according to understandings shared in 1910 and 1962, the relevant statutes that define the leases in question contain clear and plain provisions necessarily inconsistent with the continuation of native title. He tells us that the problem cannot be disposed of by assuming, as Brennan CJ does, that the term “lease” used in this context has its common law sense, conferring exclusive possession. For him, the circumstances in northern Australia and understandings about land use at the time make it implausible to assume this technical meaning. After careful analysis of other terms used in the two statutes, terms such as “any person” and “unlawful” that are critical in those sections of the statutes that provide the various methods for the orderly ejection trespassers, he concludes that the term “lease” in this context cannot be construed as establishing exclusive possession. His case rests on an analysis of the provisions that provide procedures for ejecting trespasses. According to him, the presence of indigenous peoples on the land was never regarded as “unlawful” so that the term “any person” (used in the statutes to refer to those unlawfully on the land) did not apply to them. Thus, Gummow J concludes that “pastoral leases” never established exclusive possession.[104]

According to Gummow J, then, an examination of the forms of tenure created by the 1910 Land Act shows that the term “lease” is not used in a manner that is “coincident with the characteristics of “leases” and “licenses” as understood at common law”.[105] Indeed, he claims that the rights afforded to pastoralists under both the Queensland grants are no more extensive than would have been the case if the term “license” had been substituted for “lease”. In taking this conceptual approach, seeking-out the contemporaneous meanings of key terms used in the two statutes, Gummow J stays close to the traditional textual approach adopted by most Australian judges when interpreting statutes. As he sees the judicial task, his problem is to establish what the term “pastoral lease” meant for the parties at the time that they were defined in the statutes. Thus, whether or not one accepts Gummow J’s analysis as a more plausible account than the analysis of the key terms offered by Brennan CJ, he cannot be accused of embracing “dynamic interpretation” as recommended by William Eskridge and other American theorists.

In contrast, Kirby J has adopted an approach that challenges the constraints that textualists would impose. This is what I illustrate by considering his Wik opinion in detail, comparing it to Brennan J’s approach in Weber.

I

Kirby J begins by stressing what he takes to be the overwhelming importance of Mabo (No 2) which he tells us upset the “settled and certain world of legal theory” in which land interests in Australia were enjoyed “except by, or under a Crown grant made out of the royal prerogative of the Sovereign in the earliest days and thereafter pursuant to enabling legislation”. [106] After Mabo (No 2), however,

Settled principles and assumptions must be re-examined to accord with the decision of the court in that case. Where there is no precise holding on the point (and no valid legislation resolving any doubt) the court must reach its decision upon the competing legal contentions of the parties: finding the applicable rule by the use of normal techniques of judicial decision-making, viz reasoning by analogy from established legal authority illuminated by relevant legal history and informed by applicable consideration of legal principle and legal policy.[107]

This statement echoes an examination of the problem of judicial method that Kirby J has provided in considering support for the recognition of fundamental natural rights expressed by Lord Cooke of Thorndon, President of the New Zealand Court of Appeal.[108] In this paper he makes clear in the strongest terms why he thinks it improper for judges to recognise natural law, displacing democratically elected legislators even in cases where fundamental human rights are at issue.[109] But his point is not that judges should not frustrate legislators if they violate rights but that it is unnecessary, and a bad strategy, to rely on claims about natural law. He writes,

... there are more than adequate means at hand to avoid the most serious affronts to human rights. They are available even in countries, like Australia and New Zealand, which do not have elaborated, constitutionally entrenched and judicially enforceable Bills of Rights.[110]

Because of the many “leeways for choice” available, Kirby J claims that conventional law is itself full of opportunities that a resourceful judge can make use of in defending liberties or to advance justice.[111] Conceding the authority of those who are elected to office (but only if they express themselves clearly), Kirby J argues that because statutes are very rarely clear judges also enjoy many avenues for advancing human rights. He goes on to list what he regards as the “armoury available to judges”.[112] Kirby J suggests:

1. the common law can be developed in the light of international human rights standards;[113]
2. ambiguous constitutional phrases (and the implications that flow from various foundation documents, read as a whole) leave judges with a virtually unbridled interpretative leeway; and[114]
3. even the ambiguity of most statutes, when applied in particular circumstances, offers vast opportunities for judicial policy makers to advance the cause of human rights.[115]

Judicial power and authority comes, according to Kirby J, because the interpretive task is highly complex, allowing room to manoeuvre and advance fundamental values. When justice is at stake, according to Kirby J, judges are responsible for determining the competing rights of the parties before them and are only bound to defer to legislators when the meaning of a statute abridging rights is absolutely clear. Even in this circumstance, however, “Parliament and the people accept that courts have the right to go through statutes with a fine tooth comb”.[116] In accomplishing this kind of review, Kirby J is committed to the view that:

4. ambiguous laws should be construed to advance the protection of fundamental rights when this is possible; 5. “rights may only be abolished or diminished by legislative language expressed in the clearest terms”;and [117] 6. the doctrine of the separation of powers allows judges to protect the integrity of the judicial process to ensure that “the law, as enacted, did not itself become an instrument of oppression and injustice in the circumstances of the particular case”.[118]

Not surprisingly in the light of these views, Kirby J views the task facing the justices in Wik as an extremely difficult one. According to him, it calls for a broad range of legal skills. As he points out, that,

There is an inescapable element of artificiality, in looking back over Australian legal history, which developed upon a particular hypothesis about Aboriginal legal rights, and endeavouring to reinterpret that history with the knowledge afforded by Mabo (No 2).[119]

But he is not deterred by this daunting prospect. Indeed, as we have seen, the complexity of the task is empowering (according to Kirby J’s conception of the High Court’s role) for the justices must provide an interpretation that brings the law up-to-date (so that the change brought-about by Mabo is accommodated) and offers coherence for its future development. Nor can the justices avoid their responsibility as the final interpreters of Australian law, even though this means that they must fill in the silences left by legislators. For Kirby J, under the guiding hand of High Court justices, “the present must revisit the past to produce a result, wholly unexpected at the time, which will not cause undue collision and strife in the future”.[120]

These quotations show that, like William Eskridge, Kirby J thinks that when the assumptions of legislators are overtaken by events – even when this state of affairs is brought about because of judicial interventions – judges must necessarily step forward to make good the deficit. Like William Brennan J he also places great weight on legislative silence. For those who wish to assert that native title had been extinguished by the leases granted under valid Queensland legislation, Kirby J requires that they show a “clear and plain intention” on the part of the Parliament to accomplish this. Unambiguous authoritative statements that demonstrate this intention must be cited; otherwise common law claims will be presumed to prevail. It is not sufficient for the Queensland Parliament to have used a technical legal concept that is usually understood as conferring rights of exclusive possession (incompatible with the continuous enjoyment of native title); we must review history to see whether there is evidence of a self-conscious land grab. Nor is it sufficient to show that extinguishment could not have been intended because Queenslanders in 1910 and 1962 believed there were no native title rights to extinguish. Nor may we take silence on the part of the legislators – their failure to specify that “lease” was to be used in a highly unusual manner – as evidence that they were using the term “lease” in the usual way. Far from it, the silence about how “lease” is to be construed is taken by Kirby J as leeway to reconceptualise “lease” in the highly unusual way he prefers, unique to Australia and unknown to the law before 1997, so as to avoid the consequence of extinguishment.

This line of argument is similar to the case Ronald Dworkin makes for judges choosing a benign conception of “discrimination” so as to read Title VII of the Civil Rights Act 1964 as allowing for the voluntary use of racial quotas. But, just as in the American example of “dynamic interpretation”, the reading of significance into silence is somewhat unrealistic because the Queensland Parliament in elaborating and adopting various pastoral leases, proceeded on the assumption that indigenous Australians enjoyed no legal claim to the land in question. Thus, they would never have manifest any “clear and plain” intention to dispossess indigenous peoples (just as in Weber, Congress proceeded on the assumption that voluntary racial quota plans were already forbidden by Title VII). Also, the Queenslanders were reluctant to qualify pastoral leases to allow indigenous people to gather and to hunt. Where the leases were unqualified (as in the two leases in question in Wik), the indigenous peoples seemed to have been left without any enforceable title to be on their traditional lands now placed under the control of the pastoralists.[121]

II

Kirby J draws attention to important historical facts which he claims have some bearing on how to construe pastoral leases. For example, he tells us that although legislation in 1846 made it lawful for the Governor in New South Wales to “demise for any Term of years not exceeding Fourteen, to any Person or Persons, any Waste Lands of the Crown in the Colonies ...”[122] there was no evidence of any intention at that time to exclude Aboriginal subjects of the Crown from making use of their traditional land. Indeed, Kirby J provides evidence that some imperial officials embraced a “dual-use” conception of Australian pastoral leases of the kind that he recommends.[123] In this connection, Kirby J cites communications from the Secretary of State for the Colonies, Earl Grey, to the Governor of New South Wales, Sir Charles Fitzroy, making clear that pastoral leases were to be granted only for the grazing of cattle and should not be construed so as to,

deprive the natives of their former right to hunt over these districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed ...[124]

It is unclear what Kirby J takes to be the significance of this historical evidence. Normally in interpreting statutes it is the understanding of the relevant legislators that must be examined. But Kirby J offers little evidence about what Queenslanders in 1910 or 1962 thought about the leases in question. We can concede that some officials in the colonial office in the mid-Nineteenth Century were concerned about the plight of indigenous peoples in Australia. As the historian Henry Reynolds shows, some British imperial authorities would have liked to see land policy in Australia proceed by recognising native title through a process that involved compensation for extinguishment, the establishment of reserves and the recognition and protection of usufructuary rights;[125] but it does not follow that sufficient steps were taken by the Imperial Parliament to secure these objectives. Indeed, the fact that no compensation was paid by the British despite dispossession and deprivation of access to land during the Nineteenth Century shows that their anxiety and remorse for the genocide that had taken place under British administration in Tasmania was not sufficient to ensure that they took proper care to protect indigenous Australians. As Kirby J’s own quotation from the relevant imperial legislation shows, the authority of the Governor to make grants of land was not restricted.

Australia would have been a better society had the Imperial Parliament legislated in a different way, protecting the interests of indigenous peoples; but it did not do so. Nor do the opinions of the Secretary of State in 1846 shed much light on how the members of the Queensland Parliament, acting some sixty years after, came to understand “pastoral leases”. In any event, even if we accept that it is relevant in understanding the work of the Queensland Parliament to take notice of Earl Grey’s concern that indigenous peoples should be allowed access to the land allocated for pastoral purposes, the fact that it was recommended that pastoral leases be qualified to protect usufructuary rights can be offered as evidence that the leases would otherwise provide exclusive possession. Also, it does not show that the Queensland Parliament did not decide that usufructuary rights should be provided at the discretion of the pastoralists and not afforded as a matter of legal right. Giving pastoralists control over who may have access to use the land was a policy that reflected sentiments of racial superiority, exhibiting a callous disregard for the welfare of indigenous peoples. Some British officials may have thought this was unwise, to be sure, for hostility to racism is not a sentiment that is exclusive to the Twentieth Century; but racist sentiments were more respectable in the Nineteen Century than they are today and the dissenting voices were insufficient to raise the issue of land rights as a political issue needing to be addressed by the Imperial Parliament. Nor does Kirby J’s historical evidence show that the Queensland Parliament opposed the idea of allowing pastoralists an exclusive control over the land they had leased. The Imperial Parliament had conceded authority to the settler community in Queensland well before it endorsed the Commonwealth of Australia Constitution Act, so by 1910 the Queensland Government had full authority over land policy and over the welfare of indigenous people (until the amendment of section 52 xxvi of the Commonwealth of Australia Constitution Act in 1967). Apart from securing some land as reserved for indigenous use, no legislation was passed to protect the usufructuary interests of indigenous peoples (except for the reservation clauses attached to some pastoral leases). However strongly we may wish that this historical relationship of conflict, neglect and dispossession was a different one, it is difficult to see how we can interpret Australian history so as to make the claim that settler communities in any of the States were concerned to protect significant interests of the various indigenous peoples whose land they were taking.

The burden of proof surely lies with those who claim historical grounds for adopting an unusual conception of a technical term in law, not those who take it to have its normal meaning. They must show that the meaning they ascribe to the term was familiar at the time that it was used in the parliament, and that the special meaning that they attribute was understood by those who were responsible for drafting the law. But it is unclear whether the Queensland Parliament was ever aware that pastoral leases were sui generis and had a very specific Australian meaning, providing no more to the future graziers than a “a license to run cattle” on someone else’s property. Indeed, we must suspect that no legal protection for the usufructuary use of the land was included in the particular Queensland leases that are in question in Wik because of the political power of pastoralists who disliked these kinds of restraints and who thought that pastoral leases gave them exclusive control over who could access the land in question. Even today, and after Wik, there is no shared understanding that land will revert back into the hands of traditional owners when the pastoral leases/licenses expire.

If the term “lease” was used in a special way that protected the interests of indigenous Australians, there surely would have been some discussion of what was meant by “pastoral purposes”. But there is no evidence of any opposition within the Queensland Parliament by pastoralists demanding more clarification of their rights from their representatives. Certainly they wanted freehold title but they were never angry, as they are today, because the leases that were granted afforded no more than a license “for pastoral purposes only”. Yet we know that the issue of land is highly controversial and intensely felt. This is a fact of Australian political life, as it is in most countries. But until Mabo (No 2) there was no demand that the Queensland Parliament clarify the meaning of the term “pastoral lease”. This shows that almost everyone understood that there was exclusive possession and that the term “lease” was used in its usual way, unless expressly qualified.

E. Kirby J’s “What Happened in Practice?” Test

An issue in Wik is whether the Queensland government had extinguished native title when it issued the pastoral leases which included rights to use land that the Wik and Thayorre peoples had lived off and related to since time immemorial. In dispute are competing interpretations of what was accomplished when the grants were made. Kirby J wishes to maintain that “actual or practical inconsistency” is relevant to the resolution of the issue. He thinks that an examination of the use of the land shows,

how Aboriginal law and tradition could readily survive in such an environment because of the very limited contact which was inherent in these pastoral leases, between Aboriginals and those connected with the lessee.[126]

He does not mean to suggest that that the answer to a legal problem can be resolved by looking at the manner in which the rights in question had been exercised. Thus he agrees with Brennan CJ that it is wrong to conclude from the mere fact that the grazing of cattle in northern Queensland had in some circumstances been a practice that did not actually make it impossible for indigenous people to continue to pursue their traditional way of life on the land, so that they are still there today living in a traditional way, that the native title rights that had been recognised in Mabo (No 2) must be held to have survived. If the “What happened in practice?” test is taken as a general instruction about how to assess competing legal claims, it would indeed be a novel and highly controversial idea. As Kirby J notes,

To suggest that the actual conduct of a pastoralist, under a pastoral lease, could alter the rights which the pastoralist and others enjoyed under the lease would be tantamount to conferring on the pastoralists a kind of unenacted delegated power to alter rights granted under the Land Acts. This cannot be.[127]

But Kirby J still thinks “What happened in practice?” is relevant in establishing the legal rights of the parties. This is because the likely practical effects of the leases may have been anticipated by the legislators. Thus, Kirby J is interested in how the parties and the Queensland Parliament understood the rights conveyed by the issuance of a “pastoral lease” and suggests we can learn something about this by looking at the behaviour of the parties. We deduce something about what was intended from the evidence about what happened. If the Queensland Parliament thought that indigenous people would be able to continue living on the land in their traditional way, despite the pastoral leases, then this is relevant to the issue of how we ought to construe the legal significance of these leases. The assumptions of the legislators must inform the legal interpretation of the effect of the leases.

Kirby J also tells us his point of departure is the fact that pastoral leases are creatures of statutory law. We are not dealing here with common law rights. Rather, pastoral leases are sui generis for “their character and incidents must be derived from the statute”. [128] In pursuing this approach to the legal resolution of the problem, however, Kirby J does not confine himself to the well-understood meaning of the phrases in the various land acts and other legal instruments. The problem, here, is that the lease documents are silent about any interests the Wik and Thayorre peoples. There is no mention at all of any use they may make of the land, even though rights of access for others are specifically noted in various reservation clauses.[129]

This silence is ominous given that the Queensland Parliament set out to regulate the use of the land and to provide certainty. Indeed, as already noted, the failure of the Queensland Parliament to insist on reservation clauses being added to the leases so as to specify how traditional owners could use the land may be read as signalling complete indifference – racism of an extreme kind. The legislators may have thought the Wik and Thayorre peoples would drift into the cities, or that they would work for pastoralists, or that pastoralists would tolerate them on the land. We do not know what they intended or assumed. We do know, however, that their failure to protect the interests of indigenous peoples is a callous omission that is evidence of incredible negligence. Kirby J is untroubled by speculations of this kind. For him, the fact that the Queensland legislators are silent about the future of the Wik and Thayorre peoples offers a window of opportunity. What matters according to his reading of the leases is whether the “pastoral purposes” allowed for (the only claim pastoralists have to use the land, according to his reading) is actually incompatible with the continued use of the land for traditional purposes.[130] Because no provision is made for the exclusion of indigenous people on the land, Kirby J concludes that co-use of the land for different purposes was contemplated, and clearly possible on the designated properties in the two leases considered by the Court. In other cases it may not be, as the use made by farmers of pastoral leases varies enormously. With reference to this issue he writes,

The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. [On the two properties considered in Wik] This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilise the land in accordance with their native title, as they did. In that sense, the nature of the interest conferred by a pastoral lease granted under the successive Land Acts was not, of its legal character, inconsistent with native title rights. Whether, in particular cases, and in particular places, native title rights, in their operation, were inconsistent with the rights enjoyable under the pastoral lease is a matter for evidence .... If inconsistency is demonstrated in the particular case, the rights under the pastoral lease will prevail over native title.[131]

Thus, sometimes a pastoral lease will involve extinguishment because there will be too many roads, dams and fences constructed all of which make traditional practices difficult to sustain. In other circumstances, for example where the land in question is inhospitable and remote, it may not. This is why Kirby J thinks it relevant to look at the practices employed by pastoralists on the vast and varied areas of land in question.

Kirby J denies that we may deduce the nature of legal rights from evidence about what happened. But on his analysis, the rights of the parties do seem to depend on the actual use pastoralists have made of their legal privileges. In this sense the nature of the leases does seem to depend on conduct and contact. Thus, in the light of historical evidence about the practice of grazing cattle on the two leases considered by the Court, Kirby J concludes that this use of this land by the lessees is not necessarily incompatible with the enjoyment of traditional practices, such as fishing, gathering and hunting. But it might be in other cases. It is an issue of fact, not of law. When grazing cattle is pursued without detriment to the way of life of indigenous communities, according to Kirby J, the native title rights survive because it was always known that there were, and would continue to be, substantial numbers of Aboriginals using the land in Queensland. In the absence of evidence that the Parliament meant to change this situation when it conferred pastoral leases, Kirby J is reluctant to rule that native title has been extinguished.

We see in Kirby J’s analysis of legislative motives and assumptions a parallel with the reasoning of William Brennan J in Weber. The argument proposes that there is no need to suppose that a parliament means “to extinguish native title”/ “to forbid the use racial quotas” even though its “failure to add reservations to the lease”/”silence about affirmative discrimination” seems to indicate this intention. The reason why the omission of relevant qualifications protecting indigenous use and access is not thought to count decisively in these instances is that another more noble construction of legislative purposes is available. Thus, in attributing “noble purpose” (of securing the well-being of indigenous people on their traditional land)[132] to the Queensland Parliament, Kirby J uses the device William Brennan J also used in Weber of taking a parliament’s failure to specify that the word “lease”/ “discriminate” should be understood in the normal way as a signal that it intends its words to be construed in a very unusual manner – taking guidance from moral concerns prevalent amongst elites today that would never have motivated a majority of legislators in 1962 or earlier.

3. Conclusion

Through my comparison of the two civil rights cases, I have demonstrated that there is evidence in the Wik judgment of “dynamic interpretation” at work in Australia. I have also provided some reasons for questioning whether this kind of approach is defensible. I have by no means addressed the broader literature on statutory construction but have confined my analysis to the two cases in different jurisdictions, looking at arguments that have been given to defend the results. My analysis of Wik is also limited. I do not conclude, and have not shown, that it is impossible to reach the result in the case without resorting to the techniques of “dynamic interpretation”. As I have noted, Gummow J has gone out of his way to try and provide an interpretation of the relevant Queensland statutes that is true to their text and historically accurate.

It is not my point to argue that this approach fails.

What I have demonstrated is that Kirby J’s interpretation of the two statutes in question in Wik are not compatible with an approach that is committed to taking their text and the understandings of legislators as its point of departure. Of course, we may still find Kirby J’s arguments compelling. He offers an interpretation of our past that is far more acceptable than the view reflected in the dissenting opinions. Our society will also be better if we recognise native title claims as enjoying more than merely a moral status. But the historical, moral and political arguments that carry such force in Kirby J’s rhetoric take us beyond the conventions relating to statutory construction that have usually been followed in Australia. My purpose has been to suggest that if we do allow these kinds of consideration to count (for example, an appeal to a principle of justice or to a conception of human rights), we will be shifting Australia’s legal culture in an American direction. As was the case in the United States following Brown and other civil rights cases, political and legal theorists will be required to find the arguments that allow this kind of development. When this happens, “dynamic interpretation”, because of Kirby J’s resourceful use of its techniques in such an important case, will be established as a norm.

In this connection it is worth noting that Wik presents a genuinely difficult dilemma because there is a need to rely on the judiciary to protect the interests of indigenous people in Australia. As members of severely disadvantaged minority communities that enjoy no effective capacity to pursue their interests through the normal democratic processes, indigenous Australians must necessarily rely on our High Court. Thus, the Canadian principle that Kirby J cites (that requires courts to presume that legislators do not intend to harm the interests of indigenous peoples more than is necessary)[133] must carry a lot of moral force. The indigenous peoples of Australia clearly have a very strong moral case in claiming land rights – they were living on the land before the rest of us. This is undeniable, whether or not their claim to any particular designated section of land is recognised within Australian law. Thus, compensation for dispossession is due whether this can be established as a legal claim or not; so is protection and restitution of traditional land use, in those circumstances where this is still possible. Thus, I have no quarrel with Kirby J for attributing a benign motive to the Queensland Parliament, resolving the case in the way he did. The outcome in Wik is sensible and fair and there is a strong case to be made for our judges taking the lead in this area of policy making, even if this means that they must rely on a fiction and act more politically than they would like to, or ought to do under our democratic norms. As in the United States following Brown v Board of Education decent people will celebrate this leadership.

It may be said, then, that I am trying to have things both ways – I have praised Kirby J for finding in favour of the native title claimants in Wik, yet I criticise him for his legal reasoning. This is so. I do not claim that judges should never assume leadership or claim authority to resolve an important policy issue – indeed, the circumstances in Wik where a disadvantaged minority have little capacity to protect its interests through the political process are precisely those in which judicial political leadership is most appropriate.[134]

Mabo (No 2) was an earlier case of this kind. It is clear that Australia’s judges in 1992 had to take responsibility for ensuring that the common law did not reflect racist assumptions, so the High Court had little choice but to secure a radical change to bring Australia into line with international human rights standards. However, Wik is a more controversial political intervention because it placed the High Court in conflict with the Commonwealth Government and with all of the States. It also came after the nation had already experienced the acrimonious and prolonged negotiations that preceded the passage of the Native Title Act 1994. Let us be more wary than some American legal philosophers have been in describing this kind of leadership, when it manifests itself, as merely “legal”. Although legal realists have shown that judges who are determined to get a result can usually find a way to secure this within the legal materials at hand, we need to notice the various ways that individual judges go about reaching the same result. In Wik, I prefer Gummow J’s line of argument because it takes its departure from the statutory text and signals his readiness to defer to legislators. By adopting a common law methodology in reading the two relevant statutes, Kirby J sends a quite different signal.

The view defended in this paper that common law methods should not be applied in reading texts has been supported in the United States by thoughtful judges like Learned Hand and Felix Frankfurter – even Oliver Wendell Homes Jr, who celebrated case by case evolution of the common law, recognised that it is important to keep judges out of politics. But these views are out-of-fashion in the United States today. This is because many intellectuals in that country have set-up the important landmark decisions of the Warren-Burger Court as a litmus test for legal theory. In the light of this test, the work of the more deferential judges is regarded as deficient because their regard for process values does not usually allow courts to take a leading policy-making role in advancing the causes of justice and liberty.

As Australians who benefit from a system in which the party that controls the House of Representatives has a genuine opportunity to govern, we should recognise that reliance on courts for the making of a broad range of policy as a coequal partner with legislators is understandable in a system where the House of Representatives and Senate must both share in exercising legislative authority and can still be frustrated by a presidential veto. Fortunately, we do not have the same need to encourage our judges to provide this kind of leadership, even in securing our human rights, because we can more confidently rely on the members of the opposition party as well as the self-interest of the majority party to call attention to any serious abuse of power by the executive. Although the competition which our democratic system relies upon is by no means a perfect defence, and our record in Australia needs to be improved, there is not enough evidence to suppose that the best way we can proceed to accomplish a progressive change is by abandoning a system that has served us well by placing a greater reliance on judicial leadership.

If we choose to do this, we may well find that the legislators whose authority is undermined by extensive judicial review start campaigning against our courts. A huge incentive for doing this will be the opportunity to secure the support of those who are angry because of the judicial interventions (called “Reagan Democrats” by political scientists in the United States); each party trying to outperform the others in demonstrating its hostility to the principles of justice that unpopular judges claim to have relied upon. Thus, we should not rush blindly to embrace an expedient that has arisen in different circumstances. Indeed, although it is unfashionable to admit this, conservative judges in the United States (such as William Rehnquist CJ, Robert Bork and Antonin Scalia JJ) are right in thinking that they have something to learn about the “rule of law” and “democracy” from British and European sources. They are certainly convincing when they claim that:

1. policy activism by judges is inherently elitist and usually incompatible with democratic norms; and 2. if judges who are motivated to secure good outcomes or who are blessed with a keen sense of justice do not restrain themselves, they will not be allowed to monopolise power for very long.[135]

Experience in the United States shows that this assessment is credible. When courts are out-of-step with other institutions, the judiciary itself comes under political pressure. Most significantly, the power that politicians inevitably enjoy to make judicial appointments will be used to ensure, at best, that those individuals who are selected for judicial office promise to respect procedural norms (that require deference to elected officials); or, at worst, that those who are selected intend to represent the specific interest groups that are attacking the unpopular substantive value choices the courts had previously imposed.

We should be willing to learn from this wisdom. Persistent “dynamic interpretation” by Australian judges will involve a rejection of the ideals on which Australia’s legal culture has been built and exhibits a hostility to the democratic norms that require us to help in sustaining a separation between legislative and judicial power. It is also likely to produce the kind of political backlash that has helped to secure conservatives in power for so long in the United States.[136] This is why, in celebrating the outcome in Wik, we should not set-up Kirby J’s opinion as an Australia litmus test.



[*] Reader, Political Science, University of Melbourne. I wish to thank Geoffrey Lindell for drawing my attention to the strengths of Gummow J’s opinion in Wik and Associate Professor Patrick Parkinson and the anonymous referee for their useful criticisms.
[1] [1979] USSC 144; (1996) 141 ALR 129; (1979) 443 US 193.
[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.
[3] Taken from the summary of the High Court’s ruling provided by Mason CJ and McHugh J. See [1992] HCA 23; (1992) 107 ALR 1 at 7.
[4] A compelling argument for this view is presented by Reynolds, H, The Law of the Land (2nd edn, 1992).
[5] In Mabo, Deane, Toohey and Gaudron JJ accept that the extinguishment of native title may well give rise to a claim for compensatory damages [1992] HCA 23; (107 ALR 1, Deane and Gaudron JJ at 76, Toohey J at 150–3).
[6] Many pastoralists fear that various High Court justices will interpret their leases very narrowly (limiting the activities they may undertake to the depasturing of stock and the building of yards). As Mark Love notes: “Neither the 1910 nor the 1962 Queensland Land Acts say much about the actual rights conferred by “pastoral leases” .... This is the source of the uncertainty which farmers now face.” (“The Farmgate Effect” in Hiley, G (ed), The Wik Case: Issues and Implications (1997) at 43).
[7] A statement summarising the understanding of Toohey, Gaudron, Gummow and Kirby JJ about the significance of Wik is included as a Postscript at the end of Toohey J’s opinion, (1996) 141 ALR 129, 189–90. One paragraph (at 190) reassures pastoralists in the following terms: “To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it”.
[8] Kirby J seems to view the Australian High Court in this American way. He tells us that the new building standing impressively next to Lake Burley Griffin reminded the justices of the judiciary’s place in the “constitutional triangle”: “Once the Justices of the High Court could see, so visibly and physically, that their Court was inescapably part of the trinity of the governmental organs of the country, a new national vision of the Court was bound to follow” (Kirby, M, “A F Mason – From Trigwell to Teoh” (1996) http://www.hcourt.gov.au/mason.htm at 5). He makes the same point in Kirby, M, “Lionel Murphy – Ten Years On” (1997) http://www.hcourt.gov.au/ murphy1.htm at 5.
[9] Goldsworthy, J, “Originalism in Constitutional Interpretation” (1997) 25 Fed LR 1 describes the traditional Australian approach to statutory construction at 8–12. Dworkin and Eskridge each deny that “dynamic interpretation” is hostile to democratic norms and each views their own approach as “egalitarian” and “democratic”, but their different claims are unconvincing, as I will show. I have discussed Dworkin’s views more fully in Tucker, D, The Rehnquist Court and Civil Rights (1995) at 146–66.
[10] A number of Kirby J’s recent speeches and papers are available at the High Court of Australia Web site: http://www.hcourt.gov.au. In particular, see his address “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” Conference (1997) http://www.hcourt.gov.au/cooke.htm. In another speech also available at this site, Kirby J notes that the judicial method as taught by Julius Stone, recasting the “constraints of law” so as to acknowledge a broader discretion for judges, has been influential amongst “a new generation of Justices (many of them Stone’s pupils)”, see “Julius Stone and the High Court of Australia” (1997) http://www.hcourt.gov.au/ stone.htm at 3 and 5.
[11] See Peter Butt’s analysis of Wik, “Leases after Wik”, 71 Aust LJ 326; see also, Hiley, (ed), above n6.
[12] I place “legal reasoning” between inverted commas because it is a contested concept.
[13] Whether good causes can be effectively advanced through judicial initiatives that are in conflict with what most people want is doubtful. Of course, courts are effective when they have the backing of other branches of government or accurately anticipate majority support, but in this circumstance judicial leadership is unnecessary. On the problems faced by courts in securing good outcomes, see the summary of the political science literature that examines the effectiveness of the United States Supreme Court in Tucker, above n9, ch2; and Rosenberg, G, The Hollow Hope: Can Courts Bring About Social Change (1991).
[14] Ronald Dworkin describes the United States as a “constitutional democracy”, distinguished by the fact that “rights are taken seriously”. See, Dworkin, R, A Bill of Rights for Britain (1990). Against Dworkin, I insist that citizens in a democracy must share in determining the particular conception of any right that is to be constitutionally protected. See Campbell, T, “Democracy, Human Rights, and Positive Law” [1994] SydLawRw 16; (1994) 16 Syd LR 195 and Waldron J, “ A Right-Based Critique of Constitutional Rights” (1993) 13 Oxf J Leg Stud 18. There is good authority for this view, see Dahl, A, Democracy and Its Critics (1989) at 190–2.
[15] William Brennan J defends the use he makes of “dynamic interpretation” in constitutional law. See “The Constitution of the United States: Contemporary Ratification” in Rakove, J (ed), Interpreting the Constitution: The Debate Over Original Intent (1990) at 23–40. Kirby J has expressed the view that judges should not substitute their opinion for that of elected representatives when this has been expressed in clear laws, see Builders Labourers’ Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 405 (hereinafter “BLF”). He does this once again in Wik (1996) 141 ALR 129 at 260. His reasons for accepting this subordination are “long standing political realities and loyalty to the desirable notion of elected democracy ....” (BLF at 406) But this firm statement is vitiated by a willingness to challenge the conventionally understood distinction between the common law and statutory law. In terms of his account, judges have a vast realm, their own domain or empire, in which they may legitimately develop policy initiatives even when reading statutes, see Kirby, “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10 at 6–13.
[16] Dworkin’s more important work on this topic include: “How to Read the Civil Rights Act” in A Matter of Principle (1986) at 316–31; Law’s Empire (1986) ch9; “Comment” in Scalia, A (ed), A Matter of Interpretation (1997) at 115–27. Eskridge’s contributions include: Dynamic Statutory Interpretation (1994); “Dynamic Interpretation” (1987) 135 U Pa LR 1479; (with Frickey, P) “Forward: Law as Equilibrium” (1994) 108 Harv LR 27; “The New Textualism” (1990) 37 UCLA LR 621. Also defending the “dynamic approach”, see Calabresi, G, A Common Law for the Age of Statutes (1982); and, recommending that an unclear statute be treated as a garbled command that leaves the judges with a broad discretion, see Posner, R, The Problems of Jurisprudence (1990) at 267–78. Rejecting the “dynamic interpretation” and defending a textualist approach, see Scalia J’s two Tanner Lectures, published in Scalia (ed), A Matter of Interpretation (1997). Scalia’s argument against dynamic interpretation reworks the case made by Frankfurter, F, “Some Reflections on the Reading of Statutes” (1947) in O’Brian, D (ed), Judges on Judging (1997). The American literature is comprehensively reviewed in Sunstein, C, “Interpreting Statutes in the Regulatory State” (1989) 103 Harv LR 405. The topic has been reviewed within Congress, see Statutory Interpretation and the Uses of Legislative History, Hearings before the Subcommittee on Courts, Intellectual Property and the Administration of Justice of the House Committee on the Judiciary, 101 Cong, 2 Sess (1990).
[17] A claim defended at length in Law’s Empire, id, ch9.
[18] In a recent address to the American Bar Association, “Attacks on Judges – A Universal Phenomenon” (1998) http://www.hcourt.gov.au/maui.html, Kirby J expresses concern about the exposure of contemporary judges in many jurisdictions to intemperate attacks, and criticises the tendency for governments to make political appointments. He canvasses reasons for the changes he disapproves but fails to note an important and simple explanation – many judges are now using common law techniques when reading statutes or a constitution.
[19] There are signs that this is occurring. Our Constitution says nothing about campaign financing, elections or defamation, yet our High Court has recently embraced a conception of representative government that leaves politicians and other public figures vulnerable to personal attacks; and that forbids fair-minded reforms that focus on limiting the influence of money in politics. See: Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 66 ALJR 214; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.
[20] Brown v Board of Education of Topeka [1954] USSC 42; [1954] 347 US 483 (hereinafter Brown).
[21] After Brown, the United States Supreme Court was without political allies, opposed by the President, Congress and various State governments that were forced to desegregate their schools.
[22] The term “colour-blind society” is taken from John Harlan J’s dissenting judgment in Plessy v Ferguson [1896] USSC 151; [1896] 163 US 537. This case allowed racial segregation as long as the separate facilities provided to each racial group are equal. In Brown, Warren CJ was careful not to leave the impression that he meant to overrule Plessy by adopting a “colour-blind” approach. He argued that segregated schooling could never offer African-American children equality because it involved stigmatisation – that “separate but equal” was impossible in schooling. But the effect of Brown has been that segregation is now always viewed as an unacceptable harm. Subsequent cases have established the “colour-blind” rule. See Kull, A, The Colour-Blind Constitution (1992) at 182–224.
[23] Brown involved a novel legal innovation because it offered an interpretation of the Fourteenth Amendment to the United States Constitution that went against everyone’s understanding of the intentions of those who proposed and ratified the Amendment – nobody supposes that Americans in the mid-Nineteenth Century wished to abandon segregation. The Warren Court justices simply read the Amendment as though it had been drafted to deal with problems in the mid-Twentieth Century claiming authority to decide its meaning for the nation, without reference to history.
[24] For some efforts, see Dworkin, Law’s Empire, above n16 at 379–392; Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980) at 75–7.
[25] This is what happened to Justice William Rehnquist at the time of his nomination by President Richard Nixon. He had worked as a clerk for Justice Jackson at the time of Brown and a in memo stated “I think Plessy v Feguson was right and should be re-affirmed”. This statement was held against him, nearly preventing his confirmation. See Davis, S, Justice Rehnquist and the Constitution (1989) at 14. Brown and its companion case Bolling v Sharp [1954] USSC 41; [1954] 347 US 497 were also a very serious problem for Judge Robert Bork when he was nominated to the Supreme Court by President Ronald Reagan. Questioners tried to force him to denounce Brown because of his commitment to the doctrine of originalism as a theory of interpretation.
[26] New York Times Co v Sullivan, [1964] USSC 40; [1964] 376 US 254.
[27] Roe v Wade [1973] USSC 43; (1973) 410 US 113. Almost everyone now concedes that Blackmun J’s opinion in this case is indefensible. But this concession comes only after elaborate theories have been offered to reach the same result with more compelling arguments. See Dworkin, R, Life’s Dominion: An Argument about Abortion and Euthanasia (1995) chs 4, 5 and 6; and Tribe, L, Abortion: The Clash of Absolutes (1990) ch2.
[28] Kairys, D, With Liberty and Justice for Some: A Critique of the Conservative Supreme Court (1993) at 210.
[29] Id at 195.
[30] This point is made by Scalia J in his recent Tanner Lectures, above n16 at 10–12, 46–47.
[31] Ronald Dworkin discusses the case in “How to Read the Civil Rights Act”, above n16, and William Eskridge’s discussion is in “Dynamic Statutory Interpretation”, above n16.
[32] Dworkin calls this the “coherence theory” of legislation: “This supposes that a statute should be interpreted to advance the policies or principles that furnish the best political justification of the statute.” “How to Read the Civil Rights Act” above, n16 at 327. His argument is elaborated in more detail in Law’s Empire, above n16, ch9.
[33] The quotation is Dworkin’s summary, “How to Read the Civil Rights Act”, above n16 at 327. Brennan J’s actual words are: “Congress’ primary concern ‘was with the Negro in our economy’” ((1979) [1979] USSC 144; 443 US 193 at 202, citing Sen Humphrey (1964) 110 Cong Reg at 6548). Nevertheless, the summary accurately links the concerns that Brennan J lists, relating to the high level of unemployment amongst African Americans and the poor prospects they face without adequate training. At one point Brennan J writes: “Congress feared that the goals of the Civil Rights Act – the integration of blacks into the mainstream of American society – could not be achieved unless this trend [high unemployment] were reversed. And Congress recognised that that would not be possible unless blacks were able to secure jobs ‘which have a future’” ((1979) [1979] USSC 144; 443 US 193 at 202, citing Sen Clark 1964) 110 Cong Reg 6548 at 7204).
[34] In Section 703 (a) of Title VII.
[35] Public Law 92–261, 86 Statute 103 (1972); through the addition of Section 703 (j).
[36] Prior to 1974, the Kaiser Aluminium Chemical Corporation had a bad record of discriminating on the basis of race – only 5 of the 273 skilled workers in one plant were black. See Affirmative Action Review; Report to the President (1997) at 3.
[37] Rehnquist J writes: “Reading the language of Title VII [against the background of its legislative history] one is led inescapably to the conclusion that Congress fully understood what it was saying and meant precisely what it said .... The plain language of the statute too clearly prohibited such racial discrimination to admit of any doubt.” [1979] USSC 144; (443 US 193 at 254, 1979).
[38] Dworkin criticises Rehnquist J for relying on controversial claims about Congress’s intentions (“How to Read the Civil Rights Act”, above n16 at 326). But this is a misreading of Rehnquist J’s argument. His opinion is based on a textualist analysis – the words used in Title VII allow no other construction. He draws attention to legislative history only to call into question what he takes to be the controversial and implausible claim that Brennan J makes about legislative purposes.
[39] Rehnquist J writes: “Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities over white persons. In the light of Title VII’s flat prohibition on discrimination ... such a contention would have been, in any event, too preposterous to warrant response.” [1979] USSC 144; (1979) 443 US 193 at 244–5.
[40] In Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (1991), Edsall, T, and Edsall, M, tell us: “In public opinion polls, whites are opposed to black preferences in hiring and job promotion by a margin of 82 to 11, and are against reserving openings for blacks at colleges by a margin of 69 to 22. Blacks favour these programs by, respectively, margins of 57 to 36 and 73 to 24” (at 186, citing the 1986 University of Michigan’s National Election Study survey). In a more recent publication, Sniderman and Piazza report that “The new raceconscious agenda has provoked broad outrage and resentment. Affirmative action is so intensely disliked that it has led some whites to dislike blacks – an ironic example of a policy meant to put the divide of race behind us in fact further widening it” (Sniderman, P M and Piazza, T L, The Scar of Race (1993) at 118).
[41] Brennan J writes: “Had Congress meant to prohibit all race-conscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts.” [1979] USSC 144; (1979) 443 US 193 at 205.
[42] Id at 204, citing remarks of Sen Humphrey, (1964) 110 Cong Rec 6552.
[43] Weber, id at 202.
[44] There is another basis for this conclusion. Brennan J argues that one underlying purpose behind the amendment of the Act (through the addition of Section (j) which forbids the imposition of affirmative action programs) is to protect "traditional management prerogatives". Yet this same purpose would also be served by allowing for voluntary programs. (See [1979] USSC 144; (1979) 443 US 193 at 207) Rehnquist J responds by claiming that the voluntary nature of the Kaiser Aluminium Chemical Corporation’s plan (that is in question in Weber) is a fiction. The company was responding to threats by the Office of Federal Contract Compliance because of the racial imbalance in its work force. [1979] USSC 144; (1979) 443 US 193 at 246.
[45] Dworkin tells us: “Against the background of centuries of malign racial discrimination, phrases like “discriminate against someone because of race” or “deprive someone of an opportunity because of race” may be used in a neutral (or as Brennan put it in his opinion, in a “literal”) sense, so that any racial classification whatsoever is included. Or they may be used (and I think typically are used) in an evaluative way, to mark off racial classifications that are invidious ...” See “How to Read the Civil Rights Act”, above n16 at 318.
[46] As Scalia J notes, “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated”. See Scalia J, above n16 at 17.
[47] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1491, n46.
[48] He allows that when a deal has been struck and a special clause inserted into a statute that reflects this – the example he gives is section 703 (h) of Title VII that “appears to protect good faith seniority arrangements against disruption pursuant to Title VII” – the agreement should be upheld. (See, “Dynamic Statutory Interpretation”, above n16 at 1495). But Eskridge never faces the fact that Title VII, in its totality, reflects deals done within the Congress. Why are some deals upheld whereas others are ignored?
[49] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1492. It is instructive to generalise this proposal. A national health insurance scheme or a work for the dole plan will inevitably rely on optimistic notions that are clearly wrong. But we do not expect courts to reconsider decisions made by elected representatives unless they have very strong reasons for doing this. The task assigned to judges is to uphold laws unless they are manifestly irrational.
[50] Eskridge also thinks it relevant that the Supreme Court failed to force the EEOC to work with the guidelines of Title VII; rather, it encouraged the Commission’s efforts to advance African Americans through affirmative action that relied on racial quotas.
[51] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1493.
[52] The rule in Griggs v Duke Power Co, [1971] USSC 46; (1971) 401 US 424, was changed in Wards Cove Packing Co v Antonio, [1989] USSC 104; (1989) 490 US 642. In amending the Civil Rights Act in 1991, Congress set-out its own statement of the proof that needed to be met in establishing that a company is guilty of discrimination, rejecting the rule established in Wards Cove without fully endorsing the former Grigg’s standard.
[53] See Kull, above n22, ch11 at 182–227.
[54] See the evidence cited above, n40.
[55] Eskridge, “Dynamic Statutory Interpretation”, above n16 at 1493–4.
[56] This is the weakness of the approach to affirmative action taken by John Ely, above n24 at 151– 3. It would be fine if a white male like Brian Weber could defend himself through the political process but in most circumstances this is not a convincing assumption. Affirmative action is usually imposed by administrators and managers who are not accountable to the individuals who must necessarily lose-out to make room for those who are selected on the basis of their race or gender.
[57] The discussion is in Eskridge, Dynamic Statutory Interpretation, above n16 at 13–47.
[58] [1987] USSC 43; (1987) 480 US 616.
[59] Eskridge, Dynamic Statutory Interpretation, above n16 at 31.
[60] The metaphor of sequential story-telling is also used by Dworkin, describing “dynamic interpretation” as a chain novel. See Law’s Empire above n16, ch7, especially at 228–32.
[61] In Johnson the justices are seriously divided over what constitutes an acceptable reason for a company using a suspect category of the kind listed under Title VII. Scalia J requires a compelling purpose; O’Connor J requires such a severe statistical imbalance that it is clear there was discrimination against a particular group in the past; Brennan J thinks affirmative action to help minorities is acceptable in most circumstances.
[62] Eskridge, Dynamic Statutory Interpretation, above n16 at 17–25.
[63] Id at 19; see generally at 17–25, and 28.
[64] “For if law’s legitimacy is not mechanically established by a rule’s pedigree or its process of formulation, the interpreter has a grave responsibility to reestablish the productivity of law every time she construes a statute.” Id at 201; see generally at 199–204.
[65] Id at 302. The economic analysis is explained in Epstein, R, Forbidden Grounds: The Case Against Employment Discrimination Laws (1992) ch2; and in Posner, R, “The Efficacy and the Efficiency of Title VII” (1987) 136 U Pa LR 513.
[66] Eskridge, Dynamic Statutory Interpretation, above n16 at 302. Interestingly, in the light of this understanding of what judges ought to be doing, Eskridge should be highly critical of O’Connor J’s opinion in Johnson. In 1987 O’Connor J felt bound by the requirements of stare decisis to uphold Brennan J’s view of how Title VII should be read. Yet it is clear from what she has since revealed in her opinions (see, City of Richmond v Croson, [1989] USSC 15; (1989) 488 US 469 and dissenting in Metro Broadcasting v FCC, [1990] USSC 131; (1990) 497 US 547) that she holds very strong views about the harmful effects of racial preferences. Thus, her decision to follow Weber must fail Eskridge’s test of integrity.
[67] Scalia J has textualist grounds for claiming that the “colour-blind” view he advocates is required by both Title VII of the Civil Rights Act 1964 and by the Equal Protection Clause of the Fourteenth Amendment; so he would be justified in objecting to Eskridge’s charge that he attempts to impose his own values.
[68] Eskridge, Dynamic Statutory Interpretation, above n16 at 199.
[69] Fish, S, There’s No Such Thing as Free Speech and it’s a Good Thing, Too, (1994) at 190–1.
[70] As Fish states, “... hearkening to me will lead to nothing. Hearkening to me, from my point of view, is supposed to lead to nothing. As I say in Doing What Comes Naturally in answer to the question "What is the point?" the point is that there is no point, no yield of a positive programmatic kind to be carried away from these analyses” (id at 307).
[71] Fish, There’s No Such Thing as Free Speech above n69 at 56–7.
[72] Women and minorities comprise less than 25 percent of federal judges in the United States, see Patterson, T E, We the People: A Concise Introduction to American Politics (1995) at 468.
[73] Shetreet, S, “Who will judge: Reflections on the process and standards of judicial selection” (1987) 61 ALJ at 766 citing evidence (at 776) provided by Neumann, E, The High Court of Australia: A Collective Portrait 1903 to 1972, (2nd edn, 1973) at 105–106. The generalisation that Australian judges are drawn from a narrow rather privileged, background remains true today. See also, Pannick, D, “Our judiciary still exists almost exclusively of middle-aged to elderly men who worked as barristers for twenty years or more prior to their appointment” The Judges (1987) at 50.
[74] The materials from this course have been collected and are published with an Introduction by Eskridge, W, Frickey, P, Legal Process: Basic Problems in the Making and Application of Law (1994).
[75] Jeffrey Goldsworthy makes this point, above n9 at 8–12. See also Pearce, D C and Geddes, R S, Statutory Interpretation in Australia (4th edn, 1996) at 22–33.
[76] This distinction has been challenged by John Toohey J who argues that statutes should not be construed, in the absence of compelling evidence, as disturbing fundamental common law principles, “ Government of Laws and Not of Men” (1993) 4 PLR 158 at 170. What Toohey J suggests is that principles of common law he and other contemporary judges approve, and selectively apply, should serve as an implied Bill of Rights. The idea is also promoted by Trevor Allan, “The Common Law as Constitution: Fundamental Rights and First Principles” in Saunders, C, ed, Courts of Final Jurisdiction: The Mason Court in Australia (1996) at 146–67. But this view has been forcefully criticised by Jeffrey Goldsworthy who observes, “Probably the most fundamental principle recognised by common law courts throughout the 19th century was that of the sovereignty of the Imperial Parliament”; See, “Implications in Language, Law and the Constitution”, Lindell, G, ed, Future Directions in Australian Constitutional Law (1994) at 174ff.
[77] [1920] HCA 54; (1920) 28 CLR 129 at 161–2.
[78] Goldsworthy’s list of the more important British authorities (provided above n9, see his n44 at 8) includes: Maxwell, P P, On the Interpretation of Statutes (1875), n40 at 1; Hailsbury’s Laws of England (4th ed) Vol 44, Para 522; Bennion, F, The Interpretation of Statutes (2nd edn 1992) 345–7; P Langan, Maxwell on the Interpretation of Statutes (12th ed 1969) 28; Black, H, Handbook on the Construction and Interpretation of the Laws (1896) 35ff; Singer, N J, Sutherland Statutory Construction (5th edn 1992) Vol 2A at 22–3; Driedger, E, Construction of Statutes (2nd edn, 1983) at 105–6.
[79] Goldsworthy, above n9 at 9, citing Hurst, D J, “The Problem of the Elderly Statute” (1983) Leg Studies 21.
[80] In explaining this point with regard to constitutional law, Goldsworthy draws a distinction between “enactment intentions” and “application intentions”. He writes: “[O]nly the founders’ ‘enactment intentions’ are relevant to the meaning of the Constitution, and not their “application intentions”. The object is to clarify the meaning of the provisions which they enacted, and not to discover their beliefs about how those provisions ought to be applied”. (See above, n9 at 20).
[81] See Pearce and Geddes above, n75 at 24–6.
[82] See Winterton G, “Separation of Judicial Power as an Implied Bill of Rights” in Lindell (ed), above n76 at 198 and n90.
[83] (1996) 141 ALR 129 at 283.
[84] Id.
[85] “Statutory Interpretation, Law Reform and Samford’s Theory of the Disorder of Law”, Part One is published in (1994) 22 Fed LR 116–70 and Part Two in (1995) 23 Fed LR 77–132.
[86] Zines, L, The High Court and the Constitution (3rd edn, 1992) at 14.
[87] See Kirby, M, “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, above n10, quoted at 1.
[88] Id at 6.
[89] Hart, H L A, writes: “Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology”, in Preface, The Concept of Law (1961).
[90] Kirby J himself notices the importance of Professor Stone’s influence on younger Australian judges. He writes: “[I]f an explanation for the fundamental changes of approach in the High Court of Australia between the days of Dixon and Stone and the days closer at hand is sought, the explanations are complex. But they include the advent to the Court of Justices who had actually been taught by Julius Stone; ...” (from “Julius Stone and the High Court of Australia”, http://www.hcourt.gov.au/stone.htm at 3).
[91] See, the Postscript appended to Toohey J’s opinion, above n7.
[92] On the specific fears of pastoralists see, above, n6.
[93] As Brennan CJ points out, the presence of indigenous communities would have been anticipated. They were not normally regarded as trespassers: “Unless the lessees took some action to eject them, their presence on the land would have been impliedly consented to .... Nevertheless, ... inhabitants of the land demised became liable to exclusion by the lessee once the lease issued.” (1996) 141 ALR 129 at 154.
[94] Thus, Dawson J writes, “In the Native Title Act case I indicated that I intended to follow the decisions of this Court in Mabo v Queensland (No 1) and Mabo v Queensland (No 2). Following that course, I am able to express my agreement with the judgment of the Chief Justice in these matters.” (1996) 141 ALR 129 at 164. McHugh J simply writes: “I agree with the judgment of Brennan CJ in these matters and with the orders which he proposes.” (1996) 141 ALR 129 at 219.
[95] Their authority on this point is supported by the advice offered by the Attorneys in every state as well as the Commonwealth. It is also supported by the Federal Court of Australia in North Ganalanja Aboriginal Corporation v State of Queensland (1996) 61 FCR 1. It is the understanding expressed by Prime Minister Paul Keating in the House of Representatives. (Keating reassured pastoralists that it is “the government’s view that under common law past valid freehold and leasehold grants extinguish native title”; in his Second Reading Speech on the Native Title Bill, 16 November 1993). M A Stephenson tells us, writing soon after Mabo: “If a lease is granted then native title is extinguished. This would be the case for most pastoral leases in Queensland which are grants of exclusive possession to the tenant, with no qualifications regarding Aboriginal rights of user.” In Stephenson, M A, and Ratnapala, S, (eds) Mabo: A Judicial Revolution (1993) at 111.
[96] Brennan CJ writes: “... the ordinary rules of interpretation require that, in the absence of any contrary indication, the use in a statute of a term that has acquired a technical legal meaning is taken prima facie to bear that meaning” (1996) 141 ALR 129 at 145.
[97] Stephenson, “A New Dimension to Land Tenure” in Stephenson and Ratnapala (eds), above n95 at 111.
[98] As he puts it: “... the limited reservations in the special conditions are not sufficient to avoid the consequence that the traditional rights and interests of the Meriam people were extinguished. By granting the lease, the Crown purported to confer possessory rights on the lessee and to acquire for itself the reversion expectant on the termination of the lease. The sum of these rights would have left no room for the continued existence of rights and interests derived from Meriam laws and customs.” Mabo [1992] HCA 23; (1992) 107 ALR 1 at 53.
[99] This is how I understand Brennan J’s complex statement about “reversion expectant on the termination of a lease” (see full quotation, above n98). By granting a lease, the Crown necessarily takes control of the land and uses it for its own purposes. These purposes are declared in the instrument and radical title is transformed. No common law claims can be sustained on the expiree of the lease, the Crown is now the owner. The leases are not issued on the property of some other owner. (The point is explained by Stephenson, in Stephenson and Ratnapala (eds), above n95 at 111). However, if reservations are contained in the enabling legislation, in terms of which the grant is made, the statutory reservation may be read as indicating that “the Crown’s interest was not intended to be expanded to give absolute and beneficial ownership at the expiree of the lease” (Stephenson, in Stephenson and Ratnapala (eds), above n95 at 111).
[100] I reach this conclusion on the basis of the comment made by Mason CJ and McHugh J summarising the implications of the decision in Mabo [1992] HCA 23; (1992) 107 ALR 1 at 7. Dawson J’s view is expressed at 123. Here, they each declare their agreement with Brennan J’s reasoning in the case.
[101] This was the view of the majority of the Full Federal Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 61 FCR 1, which held that a Queensland pastoral lease gave the lessee the right of exclusive possession. Richard Bartlett offers a different reading of Mabo, suggesting that, “The issue is unsettled because although the majority seem to clearly favour the conclusion that pastoral leases extinguished native title, the reasoning is unconvincing”. (The Mabo Decision (1993) Commentary at xxii.
[102] (1996) 141 ALR 129 at 143. This argument is noted by Kirby J who goes on to provide reasons for rejecting it at 277.
[103] The compelling argument is actually a practical one – that the huge areas of land in question made it unnecessary and very difficult for pastoralist to exclude the Wik and Thayorre peoples.
[104] Gummow J claims that the pastoral leases granted by the Queensland Government were never intended to secure or to allow for the removal of indigenous people from the land as no provision was made for the issuing of warrants to secure this. (1996) 141 ALR 129 at 238–40.
[105] Id at 240.
[106] Id at 250.
[107] Id at 260.
[108] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10.
[109] Id at 8–9. Here, he also refers to the argument he developed in BLF (above n15), quoting extensively from his opinion.
[110] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, id at 9.
[111] Id at 9–13; “Julius Stone and the High Court of Australia” above n90.
[112] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” above n10 at 9–13.
[113] Id at 10–11. This development has been traced in detail by Kirby J, see: “The Impact of International Human Rights Norms: A Law Undergoing Evolution” (1995) 25 West Aust LR, 1.
[114] Apart from his comments on Julius Stone’s work, above n90, Kirby J cites with approval a decision of the Indian Supreme Court which held that the power to amend the Constitution did not include the power to dispense with any of the fundamental human rights stated in it. See “The Struggle for Simplicity: Lord Cooke and Fundamental Rights”, above n10 at 12.
[115] “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” id at 10.
[116] Ibid.
[117] Ibid.
[118] Id at 13.
[119] (1996) 141 ALR 129 at 269.
[120] Ibid.
[121] This is the opinion of Brennan CJ, above n99. However, he qualifies with the following explanation: “That does not mean that the holders of native title became trespassers. Their continued presence on the land would have been expected and probably known by the lessees. Unless the lessees took some action to eject them, their presence on the land would have been impliedly consented to.” Above n1 at 154.
[122] The Sale of Waste Lands Act Amendment Act 1846. My quotation from this legislation is taken from Kirby J above n1 who provides this phrase at 266.
[123] Id at 266ff.
[124] Despatch No 24, Earl Grey to Sir Charles Fitzroy, 11 February 1848. Quoted by Kirby J, id at 267.
[125] Reynolds, H, The Law of the Land (1992) at 160; see also 128–31. For criticism of Reynolds’ research see, Fulcher, J, “Sui Generis History? The Uses of History in Wik” in Hiley (ed), above n6 at 51–6. Fulcher tries to demonstrate that Grey was a typical Englishman of his time. According to him, Grey thought indigenous peoples had no claim to land on which they had not established a settlement, nor over land which they did not cultivate.
[126] Above n1 at 271.
[127] Id at 275.
[128] Id at 279.
[129] It is interesting to speculate about whether, on Kirby J’s analysis, native title is extinguished in circumstances where rights of access to indigenous people have been included in pastoral leases for specified purposes. In this case, there would be no silence that provides a “leeway” to work in. See, McIntyre, G, “How Wik Applies to Western Australia” in Hiley (ed), above n6 at 27–9.
[130] Above n1 at 281–2.
[131] Id at 284.
[132] Id at 283.
[133] Above n1 at 283, citing Delgamuukw v The Queen in Right of British Colombia (1993) 104 DLR (4th) 470 at 529.
[134] See Harlan Stone J’s famous statement of this position in the US case United States v Carolene Products, Co[1938] USSC 104; , (1938) 304 US 144 at 153.
[135] Scalia J makes these points in his recent Tanner Lectures, above n16; see also Bork, R, The Tempting of America: The Political Seduction of the Law (1990) and Rehnquist, W, “The Notion of a Living Constitution(1976) 54 Tex LR 693.
[136] Edsall and Edsall, above n40, tell us, “In the 1980 contest, 22 percent of all Democrats defected from their party to vote for Ronald Reagan. This defection rate shot up to 34 percent among those Democrats who believed civil rights leaders were pushing “too fast”....” at 164; on the motivation of the “Reagan Democrats” see ch8. Candidate Clinton was able to persuade many of these “Reagan Democrats” to vote for him in 1992 but only by promising not to question the death penalty, not to be soft on crime, and not to support racial quotas.


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