The Court and the 'executive'
In recent years judges of the High Court have aired concerns over the problem that has been central to the thesis of this book-the dominance of parliament by the executive. We have already discussed at some length the reasons why the party system has destroyed the true role of parliaments, to govern with representative accountability. Concern with these matters came to light again in a speech by Justice Toohey at a conference on constitutional change in Darwin. Referring to the traditional role of parliament as the defender of the people's liberties, he said, '… parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it.'A new role for the High Court?
As a result the High Court, in recent years, has occasionally felt justified in ruling against parliamentary legislation (stemming from the executive), relying on principles of the common law in interpreting the constitution. Margo Kingston quoted the Chief Justice's view in this matter in an article entitled 'Just Who is Judging Victoria': 1Justice Mason only gradually and reluctantly came to accept the idea of a wider involvement of the High Court over a long period, as it seemed to him quite foreign to our democratic heritage of parliamentary safeguards.Decisions of the Court and the flurry of consequential public comment show a depth of concern with regard to the idea of a wider role for the courts. The judges seem to have been quite surprised at the public reaction. Justice Toohey ventured to suggest that in the absence of a constitutional bill of rights, a Court:
…as a guardian of a written constitution ... might feel a responsibility to apply principles of 'natural law' ... to protect core liberal-democratic values.The Court, in departing from the traditional practice of a strict interpretation of the law, might look at the possible intentions of the people when they passed the constitution in the 1890s. Justice Toohey thought:
It might be contended that the Courts should ... conclude that where the people of Australia, in adopting the Constitution, conferred power to legislate upon a Commonwealth parliament, it is to be presumed they did not intend that those grants of power should extend to invasion of fundamental common law liberties.He noted that the judiciary is the 'weakest' of the three arms of government, and that:
Judicial review can never amount to government, but it could ... frustrate ... the will ... of a current majority of members of a legislature, which does not necessarily coincide with the will of the majority of its citizens.Justice Toohey argued that since it is people's right to amend the Constitution by referendum, the Court should be seen as democratic and not 'anti-majoritarian' in its interpretation of the Constitution. Rather, he feels the Court 'should be seen as representing the people, in giving protection to individual rights in advance of ratification by referendum'-should the executive, in its wisdom, ever pose such questions to the people. There is, of course, no opening at present for the public to instigate a referendum on any such matter, which also underlines the Court's concern to see the provisions of the (people's) Constitution fully honoured. The High Court has shown that it can set limits to the legislative power of the executive. Although Justice Toohey reminds us that:
…this capacity is restricted to the situation where laws are imprecise and conflict with 'natural law' (and)… that parliament by precise legal construction has a final say, just as the people can overturn a decision of the courts by referendum.A 'precise legal construction', which is High Court proof, might require legal genius of a possibly clairvoyant order. The determined legalism of the Barwick High Court caused a vast increase in the amount and complexity of tax legislation; and we still have tax avoidance. The threat of retrospective legislation, (predating the implementation of an avoidance scheme if necessary), would have easily overcome that problem. At present, governments could simply not be trusted with that kind of retrospectivity, again demonstrating the serious ineffectiveness of party-executive government.
The Constitution and the common law
In rejecting legislation for a ban on political advertising during an election period, the Court found that the text of the Constitution implies that freedom of communication is essential to the conduct of representative government. The Court decided, in the case of 'Capital Television vs. The Commonwealth', that freedom of speech, dissemination of information, discourse and political discussion are all supported by the Constitution, as part of the process enabling voters to make informed judgments on the choices before them in an election; but Justice Brennan, in a dissenting judgment, clearly thought that TV advertising did not promote intelligent political discussion or assessment of political choices. In his view such advertising has the major purpose of persuading voters by appealing to the emotional rather than the rational side of a voters' nature.The people and democracy
Justice Dawson spelt out an important and far-reaching distinction in his dissenting judgment:In this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve its own-shared values'.2Absolutely. However there is a problem. Shared values have become less than clear, and the undemocratic nature of our party system stymies the ability of society to advance its body of shared values and to protect its 'fundamental freedoms'.
In this climate perhaps the High Court is justified in seeing a need to act on behalf of our fundamental freedoms. One member suggested that if the Court has the 'wave-length' of the public, its decisions might be regarded as more democratic than those of parliament. However the idea that the Court might be more able than parliament to represent the views of the community, and that it might come to exercise a right to do so, created something of a furore. The Minister for Justice, Senator Tate, objected strongly, despite the efforts of the Attorney General, Mr. Duffy, to quieten the matter and remove the whole discussion from the public domain. Senator Shacht was another to be 'up in arms' with the suggested interference in the role of parliament. Peter Costello appeared to be in sympathy with Senator Tate, clearly wanting to see parliament retain its true decisive role. On the other hand it may have been the danger to their 'executive role' that concerned them more.
The concern of parliamentarians is understandable. The 'first blow' is often decisive. It becomes difficult for parliament to undo a High Court decision that has already granted rights.
Others also, are objecting to a widened role for the High Court, taking issue with the notion that judges should be able to overrule the laws made by an elected body in a democracy. However, unlike their American counterparts, their appointment comes under extremely little public notice or examination.
Parliament's role
Statute law has always been the responsibility of parliament and this invasion of its domain is a departure from the principle of the separation of powers, in which parliament is to make the laws, the executive is to implement the laws and the courts rule on questions of justice under the law. However, the separation between legislature and executive collapsed long ago, as executives used party discipline to corner the power of parliament. It has been truly said that executives have become, in these critical times, combative, and rough instruments of democratic justice, while parliaments have lost the initiative. Compared with Australia's public involvement in the 19th century, our democracy is in a state of decay.Margo Kingston also records the view expressed by Justices Mason and Brennan that parliaments are tending to avoid the hardest political decisions in the hope that the courts may resolve the issues and save them political 'flack'.3 If executives refuse to restore parliamentary authority and allow the public its rightful involvement in the decisions that affect us all, then perhaps the running battle with the High Court will continue.
A bill of rights
Justice Toohey indicated a possibility of the Court taking up a new role in protecting the fundamental liberties of the people based on the common law. In the absence of a formal bill of rights, he felt that the courts might find it necessary over time to construct an implied bill of rights by interpretation of the actual text of the Constitution in the light of 'natural law'.The Law Institute of Victoria has called for a legislative bill of rights to ease the burden of the High Court, a change to eventually be embodied in the Constitution by referendum. However, Canada, in separating from the United Kingdom, followed the American example of a bill of rights and is finding a resultant politicisation of the judiciary. Is this really the way we want to go? Any change in the rights and powers under the constitution should certainly be submitted to the people by way of referendum, not by legal decision. Mark Snedden, senior law lecturer, Monash University, made this point quite forcibly. He questions the right of judges, who are not elected and for whom there is no review, to 'veto the will of the majority expressed through Parliament',4 an elected body. The dysfunctional roles of executive and parliament are not recognised in that view either.
Appointment of judges
Although independent, our judges are appointed by the same executives that control our parliaments. That too could fuel reflection about the principle of the separation of powers.Attention has been drawn to the American manner of appointment of a Supreme Court judge and the practice of conducting a wide-ranging public enquiry into the suitability of the proposed appointee; a process reflecting the greater powers vesting in the American Supreme Court.
Vetting their appointments clearly has some value, but the downside is that the wider involvement of their Congress in the appointments simply results in legitimising an enhanced political role for the Court; while the stronger each source of power becomes, the more serious are the conflicts. Traditionally, the separation of powers was to enable rational and stable government; but that kind of stability has been shattered by the persistent distortions of party politics.
Democratic judges
Lord Denning, an English judge of some renown, was referred to by the editor of the Melbourne Herald some years ago under the title of 'More Lordly Thinking' This judge, it appeared, often upset lawyers by applying principles of reason and justice in his judgements, rather than following intricate legal argument and a blind adherence to precedent, which may not be altogether appropriate.Peter Ellingsen likened his old newspaper colleague, Murray Smith, to former US Supreme Court Chief Justice Earl Warren, who was known to whisper to advocates, 'Yes, yes, I know the legal arguments. But is it fair?'5 What a delight! What an example to explode the humbug of the politically (or legally) correct!