¹ Examples of such criticism are summarised in Michael Kirby, Through the World's Eye,(2000) 157-160.

² Most recently given voice in Williams, Daryl, 'Judges must conduct their own defence' TheAustralian Financial Review (Sydney), 2 April 2001, 57Google Scholar.

³ See Kirby, above n 1, 159-60.

⁴ Sir Gerard Brennan, 'The State of the Judicature' (Paper presented at the 30th Australian Legal Convention, Melbourne, 19 September 1997)(copy on file with author); Michael Kirby, 'Attacks on Judges: A Universal Phenomenon' (Paper presented at the American Bar Association, Maui, Hawaii, 5 January 1998)(copy on file with author); Michael Kirby, 'Judicial Activism' (1997) 27 Western Australian Law Review 1; Murray Gleeson, 'Legal Oil and Political Vinegar' (Paper presented at the Sydney Institute, Sydney, 16 March 1999) (copy on file with author); Murray Gleeson, 'Judicial Legitimacy' (Paper presented at the Australian Bar Association Conference, New York, 2 July, 2000) (copy on file with author); Murray Gleeson, Boyer Lectures 2000 – The Rule of Law and the Constitution (2000); Murray Gleeson, 'Occasional Address' (Paper presented at Griffith University, Brisbane, 20 April 2001) (copy on file with author); Michael McHugh, 'The Judicial Method', (1999) 73 Australian Law Journal 37; Kenneth Hayne, 'Letting Justice be Done Without the Heavens Falling' (Paper presented as the Fourth Fiat Justitia Lecture, Monash University, Melbourne, 21 March 2001) (copy on file with author); John Toohey, ''Without Fear or Favour, Affection or Ill-Will': The Role of Courts in the Community' (1999) 28 Western Australian Law Review 1. Perhaps the most memorable and publicly accessible attempt by the Court to present itself andits work for scrutiny was the participation of Chief Justice Brennan and Justices Toohey, Gaudron, Gummow and Hayne in a television documentary: The Highest Court, ABC, nationally broadcast 9.30pm, 26 May 1998.

⁵ Kirby, Michael, 'Shocking level of civics ignorance', The Sydney Morning Herald (Sydney), 16 August 1997, 5Google Scholar.

⁶ Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) xi.

⁷ Ibid 6.

⁸ ibid

⁹ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

¹⁰ Patapan, above n 6, 13-14.

¹¹ Williams, George, Human Rights under the Australian Constitution (1999) 76Google Scholar; RTE Latham, 'The Law and the Commonwealth' quoted in Tony Blackshield and George Williams, Australian Constitutional Law ; Theory – Commentary ; Materials (2nd ed, 1998) 243.

¹² Patapan, above n 6, 17.

¹³ Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1.

¹⁴ McGinty v Western Australia (1996) 186 CLR 140.

¹⁵ Patapan, above n 6, 96.

¹⁶ Ibid 16.

¹⁷ R v Barger (1908) 6 CLR 1.

¹⁸ D;Emden v Pedder (1904) 1 CLR 91.

¹⁹ Above n 9, 155, (Knox CJ, Isaacs, Rich and Starke JJ).

²⁰ West v Commissioner for Taxation (NSW) (1937) 56 CLR 657. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 69, Deane and Toohey JJ stated that 'it has long been recognized that the 'notion' or 'dogma' which gained currency for a period after the decision in the Engineers' Case to the effect that the rejection of the doctrine of “immunity of instrumentalities” meant that no implications can be made in construing the Constitutio was mistaken'.

²¹ Patapan, above n 6, 29 and Chapter 3 generally.

²² The significance of the declaratory mind-set of the common lawyer and its pervasiveinfluence over the High Court for much of its life is noted by Patapan in numerous places: ibid 15; 27; 123-4; 140-1; 182-3.

²³ Victoria v The Commonwealth (Payroll Tax Case) (1971) 122 CLR 353, 402. An example wherePatapan does expose the claims of legalism very effectively is in his handling of Barwick CJ;s judgment in Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) which takes place in Chapter see Patapan, above n 6, 77-80.

²⁴ Galligan, Brian, 'The Australian High Court;s Role in Institutional Maintenance and Development' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions – Theories, Principles and Institutions (1996) 200Google Scholar.

²⁵ As Doyle CJ has said, 'It is not that previously the High Court did not make law but now itdoes. It is simply that during his [Mason's] time as Chief Justice that role was more openly avowed and, I believe, more frequently exercised.': Doyle, John, 'Implications in Judicial Law-Making' in Cheryl Saunders (ed), Courts of Final Jurisdiction – The Mason Court in Australia (1996) 84Google Scholar.

²⁶ Patapan, above n 6, 16-17.

²⁷ See Galligan, above n 24, 200-201 and Patapan, above n 6, 15 (text accompanying n 24).

²⁸ Specifically, Dixon J's role in the establishment of the Melbourne Corporation principle andthe Cigamatic doctrine. The latter poses such an interesting challenge to the orthodoxyestablished by the Engineers Case it has been referred to as 'Dixon's heresy': see Meagher, RP Gummow, WMC, 'Sir Owen Dixon's Heresy' (1980)54 Australian Law Journal 25, 29Google Scholar.

²⁹ Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

³⁰ For example, consider the brief but necessary comments of George Williams in respect offederal implications as a preface to his consideration of implied freedoms. George Williams, 'Judicial Activism and Judicial Review in the High Court of Australia' in Tom Campbell and Jeffrey Goldsworthy, Judicial Power, Democracy and Legal Positivism (2000)418. In contrast, Patapan;s only mention of this case occurs in n 29 of Chapter 2 as reviving the principle of intergovernmental immunities – which actually invites much more speculation from the novice reader than no reference at all!

³¹ Kirk, Jeremy, 'Constitutional Implications (I): Nature, Legitimacy, Classification, Examples'(2000) 24 Melbourne University Law Review 645, 675-6Google Scholar.

³² (1992) 177 CLR 106, 133-5.

³³ In particular McHugh J whose dissent in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 197-8, 202 indicates that he remained unconvinced that the freedom as conceptualised by some members of the Court at that time was consistent with the Engineers methodology.

³⁴ (1997) 189 CLR 520.

³⁵ Stone, Adrienne, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' (1999) 23 Melbourne University Law Review 668, 706Google Scholar. In this article, Stone argues forcefully that the insistence by the Court in limiting its understanding of that implied freedom by reference solely to the ;text and structure; of the Constitution presents real problems for its future application. Jeremy Kirk has also observe that the ;text cannot provide the requisite content of the constitutional requirement, nor determine the relevant boundaries;: Jeremy Kirk, ;Constitutional Implications (II): Doctrines of Equality and Democracy; (2001) 25 Melbourne University Law Review 24, 52.

³⁶ See Patapan, above n 6, 29; Stone, above n 35, 675; Williams, above n 11, 190; Andrew Lynch, ;Unanimity in a Time of Uncertainty: The High Court Settles its Differences in Lange v Australian Broadcasting Corporation' (1997) 6 Griffith Law Review 211.

³⁷ Patapan, above n 6, 29.

³⁸ Ibid 24, 150, 161, and 171 amongst others.

³⁹ Williams, above n 11, 76.

⁴⁰ Sir Anthony Mason, ;The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience; (1986) 16 Federal Law Review 1, 5.

⁴¹ Sir Anthony Mason, ;The Role of the Courts at the Turn of the Century; (1993) 3 Journal of Judicial Administration 156, 164.

⁴² See Greg Craven, ;Original Intent and the Australian Constitution: Coming to a Court NearYou; (1990) 1 Public Law Review 166; Michael Stokes, ;Constitutional Commitments not Original Intentions: Interpretation in the Freedom of Speech Cases; (1994) 16 Sydney Law Review 250; Jeffrey Goldsworthy, ;Originalism in Constitutional Interpretation; (1997) 25 Federal Law Review 1; Michael Kirby, ;Constitutional Interpretation and Original Intent: A Form of Ancestor Worship; (2000) 24 Melbourne University Law Review 1; Jeffrey Goldsworthy, ;Interpreting the Constitution in its Second Century; (2000) 24 Melbourne University Law Review 677.

⁴³ See discussion below accompanying nn 47-52.

⁴⁴ Patapan, above n 6, 27-8; Haig Patapan, ;The Dead Hand of the Founders? Original Intentand the Constitutional Protection of Rights and Freedoms in Australia; (1997) 25 Federal Law Review 232-234; Kirk above n 35, 26-31. While Patapan contends that originalism will tend to restrain judicial activism, he does also suggest that ;by adopting a different perspective on the founders; understanding of progress and liberalism, it may be possible for originalism in Australia to accommodate a more activist judiciary;: (1997) 233.

⁴⁵ Williams, n 11, 25-45; 79-84 for a concise view of the unhelpfulness of the conventiondebates in respect of constitutionalising human rights. Williams writes, ;[i]t is a mistake to overestimate the level or quality of debate at the Conventions, just as it is a mistake to believe that the records of the debates present the whole picture. Debate on fundamental constitutional concepts was unsophisticated and showed a lack of understanding by many speakers.; Williams, n 11, 34.

⁴⁶ Graeme Hill, ;;Originalist” vs “Progressive” Interpretations of the Constitution - Does itMatter?' (2000) 11 Public Law Review 159. This is supported by Patapan;s statement that ;far from being the “dead hand” of the past, originalism in fact allows the greatest scope for political experimentation and innovation; : Patapan, above n 44 (1997) 233.

⁴⁷ Gleeson, The Boyer Lectures, above n 4, 98, 134.

⁴⁸ Patapan, above n 6, 32.

⁴⁹ John Braithwaite, ;Community Values and Australian Jurisprudence; (1995) 17 Sydney Law Review 351, 355-60.

⁵⁰ In addition to Patapan, see Jeremy Kirk, ;Constitutional Implications from Representative Democracy; (1995) 23 Federal Law Review 37, 71-3; Klaus A Ziegert, ;Judicial Decision- Making, Community and Consented Values: Some Remarks on Braithwaite;s Republican Model; (1995) 17 Sydney Law Review 373; Martin Krygier and Arthur Glass, ;Shaky Premises: Values, Attitudes and the Law; (1995) 17 Sydney Law Review 385.

⁵¹ John Daley, ;Defining Judicial Restraint; in Campbell and Goldsworthy (eds), above n 30,300.

⁵² Ibid.

⁵³ In particular, see Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, 383,(Murphy J); though Deane J also discussed this, ibid 410.

⁵⁴ For example, see Stevens v Head (1992) 176 CLR 433, 461; Theophanous v Herald ; Weekly Times Ltd (1994) 182 CLR 104, 180.

⁵⁵ Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); Australian CapitalTelevision v Commonwealth (1992) 177 CLR 106, 138, (Mason CJ); and McGinty v Western Australia (1996) 186 CLR 140, 230, (McHugh J).

⁵⁶ Gleeson, The Boyer Lectures, above n 4, 6.

⁵⁷ Patapan, above n 6, 31 and Kirby, above n 1, 149-154.

⁵⁸ Patapan, above n 6, 31.

⁵⁹ Gleeson, The Boyer Lectures, above n 4, 3, 74-5. See also, Kirby, above n 1.

⁶⁰ Ibid 85.

⁶¹ Ibid 55-6.

⁶² Helen Irving, ;The Australian Constitution and the Federal Compact;, forthcoming paperdelivered at Faculty of Law research seminar, University of Technology, Sydney, 2000, 12 (copy on file with author).

⁶³ See McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J), and more forcefully, Sue v Hill (1999) 199 CLR 462, 571-2 (Callinan J).

⁶⁴ Wik Peoples v Queensland (1996) 187 CLR 1.

⁶⁵ Patapan, above n 6, 119.

⁶⁶ Above n 64, 70-84 (Brennan CJ).

⁶⁷ Patapan, above n 6, 140.

⁶⁸ Above n 64, 179-84 (Gummow J).

⁶⁹ Leslie Zines, ;Judicial Activism and the Rule of Law in Australia; in Campbell andGoldsworthy (eds), above n 30, 408.

⁷⁰ Patapan, above n 6, 140. The division that can be caused over the act of balancing historicalcertainty with the declaratory theory is identified by Alder as an example of the type of incommensurable disagreement which leads to dissents in final courts. His discussion of the House of Lords; split over this faultline in Kleinwort Benson v Lincoln City Council [1998] 4 All ER 513 indicates that this problem is not peculiar to the High Court of Australia. See John Alder, ;Dissents in Courts of Last Resort: Tragic Choices?; (2000) 20 Oxford Journal of Legal Studies 221, 230-1.

⁷¹ Patapan, above n 6, 141.

⁷² Australian Agricultural Co v Federated Engine-Drivers ; Firemen;s Association (1913) 17 CLR 261, 278 (Isaacs J). See also JW Harris, ;Overruling Constitutional Interpretations; in Sampford and Preston (eds), above n 24, 231-247; Bryan Horrigan, ;Towards a Jurisprudence of High Court Overruling; (1992) 66 Australian Law Journal 199; Patrick Keyzer, ;When is an issue of ;vital constitutional importance;? Principles which guide the reconsideration of constitutional decisions in the High Court of Australia; (1999) 2 Constitutional Law and Policy Review 13.

⁷³ Patapan, above n 6, 139.

⁷⁴ Mabo v Queensland (No 2) (1992) 175 CLR 1, 145; Patapan, above n 6, 128-31.

⁷⁵ Another good example, in an area quite removed from those covered in Judging Democracy, is the High Court;s development and application of the doctrine of unconscionable transactions in equity. From a perfectly acceptable doctrinal genesis and a clearly legitimate modern application in Commercial Bank of Australia v Amadio (1983) 151 CLR 447, the High Court has managed (through two decisions in particular - Louth v Diprose (1992) 175 CLR 621 and Bridgewater v Leahy (1998) 194 CLR 457) to create uncertainty and debate about the legitimate circumstances for the application of such relief - a point which has been noted in vigorous dissents in those cases. See the judgment of Toohey J in Louth; and the joint judgment of Gleeson CJ and Callinan J in Bridgewater.

⁷⁶ Williams, above n 30, 420-3.

⁷⁷ See n 36 and Leslie Zines, ;The Present State of Constitutional Interpretation; in AdrienneStone and George Williams (eds), The High Court at the Crossroads - Essays in Constitutional Law (2000), 227.

⁷⁸ Patapan, above n 6, 60.

⁷⁹ (1997) 189 CLR 520.

⁸⁰ Patapan, above n 6, 29.

⁸¹ Ibid 60.

⁸² Ibid 70, 74, 86 and 88.

⁸³ Theophanous v Herald ; Weekly Times, (1994) 182 CLR 104, 199-200 (McHugh J); McGinty v Western Australia (1996) 186 CLR 140, 169 (Brennan CJ).

⁸⁴ For example, the use of textualism as an indicia of judicial restraint was recently discussed in Daley, above n 51, 305. Whether or not there is a meaningful distinction to be drawn between the two concepts, my argument is that the Court;s treatment of this issue is reflective of Zines; comment that it ;was the tone rather than the substance of the [Lange ] judgment that seemed to presage a new more legalistic attitude;: Zines, above n 77.

⁸⁵ Kirk, above n 35, 45.

⁸⁶ As, it seems, is Chief Justice Gleeson who has asserted that the ;establishment ofrepresentative parliamentary democracy as the method of government for our Federation has been held to carry implications for freedom of political debate and comment;: Gleeson, The Boyer Lectures, above n 4, 60-1.

⁸⁷ Essentially, Anthony Birch, Representative and Responsible Government: An Essay on the British Constitution, (1964) 17.

⁸⁸ Stone, above n 35; Kirk, above n 35.

⁸⁹ Specifically, Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 (Deane J and Gaudron J); Dietrich v The Queen (1992) 177 CLR 292 (Deane J and Gaudron J);Leeth v Commonwealth (1992) 174 CLR 455 (Deane and Toohey JJ, Gaudron J).

⁹⁰ Williams, above n 11, 249.

⁹¹ Patapan, above n 6, 41-5; see also Williams, above n 11, 82-4.

⁹² Helen Irving, To Constitute a Nation (1998) 69-72; Williams, n 11, 30-45; George Williams, ;A Republican Tradition for Australia?; (1995) 23 Federal Law Review 133, 144.

⁹³ Patapan, above n 6, 17-20; 47-9.

⁹⁴ Though on this topic, see Amelia Simpson and George Williams, ;International Law andConstitutional Interpretation; (2000) 11 Public Law Review 205.

⁹⁵ Patapan, above n 6, 49-50.

⁹⁶ In addition to the supporting extra-curial remarks cited by Patapan, see also John Toohey,;A Government of Laws, and not of Men?; quoted in Galligan, n 24, 186; and Gleeson, The Boyer Lectures, above n 4, 68-71.

⁹⁷ Williams, above n 11, 230.

⁹⁸ See text accompanying n 73.

⁹⁹ Patapan, above n 6, 132.

¹⁰⁰ Where Toohey and Gaudron JJ were joined in a joint judgment by Mason CJ.

¹⁰¹ See Williams, above n 11, 241-3, 249.

¹⁰² Victorian Stevedoring ; General Contracting Co Pty Ltd ; Meakes v Dignan (1931) 46 CLR 73.

¹⁰³ (1995) 183 CLR 245.

¹⁰⁴ (1996) 189 CLR 1.

¹⁰⁵ Patapan, above n 6, 165.

¹⁰⁶ Williams, above n 2.

¹⁰⁷ Patapan, above n 6, 190.

¹⁰⁸ George Williams, ;A Republican Tradition for Australia?; (1995) 23 Federal Law Review 133,143.

¹⁰⁹ Mason, 'Foreword' in Patapan, n 6, viii-ix.

¹¹⁰ Patapan, above n 6, 184.

¹¹¹ Ibid 185.

¹¹² Ibid 186-187.

¹¹³ Ibid 189.

¹¹⁴ Gleeson, The Boyer Lectures, above n 4, 89.

¹¹⁵ Russell Smyth, '"Some Are More Equal Than Others” - An Empirical Investigation into the Voting Behaviour of the Mason Court' (1999) 6 Canberra Law Review 193.

¹¹⁶ This is most attributable to the pronounced change in the Court's composition since 1995 rather than the arrival of any one particular Justice

¹¹⁷ Patapan, above n 6, 192.

¹¹⁸ Gleeson, The Boyer Lectures, above n 4, 82.

¹¹⁹ Murray Gleeson, 'Judicial Legitimacy' Australian Bar Association Conference, New York, 2 July, 2000, reprinted in Gleeson, The Boyer Lectures, above n 4, 124-138 (this quote from 136).

¹²⁰ Ibid.

¹²¹ Zines, above n 77, 231.

¹²² Gleeson, The Boyer Lectures, above n 4, 85. The original statement by Dixon CJ is found at (1952) 85 CLR xiv.

¹²³ Doyle, above n 25, 95.

¹²⁴ Mason, above n 40. I am conscious here of the arguments made by Bryan Horrigan that the proper meaning of strict legalism does not preclude reference to non-rule-based standards', Bryan Horrigan, 'Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning' in Sampford and Preston (eds), above n 24, 42. Horrigan's view is predicated on the basis that there is a 'narrow' and 'wide' sense of 'strict legalism'. The original use of 'strict legalism' by Dixon CJ was in the latter sense and is not to be seen as irreconcilable with subsequent admissions of the role of policy. Horrigan's argument that 'Mason CJ's call for a change in judicial approach is not a complete renunciation of Dixonian strict legalism' (ibid, 64) is hard to square with the words of Sir Anthony Mason himself when he stated, 'As the High Court moves away from "strict and complete legalism" and toward a more policy oriented constitutional interpretation, it is a natural parallel that the Court place greater emphasis on the purposive construction of statutes.' Mason, above n 40, 5. This is not necessarily to resist the construction which Horrigan places upon the sense in which Dixon CJ employed the phrase 'strict legalism', but it would seem either that Mason CJ did not unquestioningly share that perception of what the phrase evoked or, more likely, that the slide from the 'wide' meaning to the 'narrow' which had crept into Australian law by 1986 simply rendered any use of 'strict legalism' no longer helpful as an attempt to explain judicial methodology.

¹²⁵ In acknowledging inescapable policy considerations, Justice Sackville had this to say of the High Court's recent work, 'It is tempting to see recent developments as signalling a departure from the policy-oriented jurisprudence of the Mason Court. The inconvenient results flowing from cases like Re Wakim and Abebe and the emphasis on the primacy of the text of the Constitution suggest a retreat towards a "strict and complete legalism" in constitutional adjudication. But this is too simplistic a view': Ronald Sackville, 'Foreword' in Stone and Williams, above n 77, vi.

¹²⁶ Gleeson, above n 119, 134.

¹²⁷ Although the difficulties involved in the use of ;community values; were referred to earlier in this essay, two points need to be borne in mind beforerejecting such a methodology, unpredictable as it may be, for ;strict and complete legalism;. First, it was also acknowledged that some disputes may only be resolved through use of non-legal considerations such as moral or political values. Second, the problems of uncertain identification and application are not substantially lessened by resort only to ;legal values; - especially when one considers Justice McHugh;s opinion that ;what has been called community values has usually been a reference to values…which already inhere in the legal system;: McHugh, above n 4, 46.

¹²⁸ Patapan, above n 6, 20-22.

¹²⁹ Gleeson, The Boyer Lectures, above n 4, 98.

¹³⁰ Gleeson, above n 119, 134.

¹³¹ This would also seem to invite consideration of whether legalism can really be said to be;strict; when it seems to offer such selectivity.

¹³² Daley has said that ;judges tend to have an homogeneous background which emphasizes some values - particularly fair process and individual liberty - in ways which are not entirely rational;: Daley, above n 51, 300.

¹³³ Gleeson, above n 119, 129.

¹³⁴ McHugh, above n 4, 46-7.

¹³⁵ Gleeson, above n 119, 6 of original transcript of speech. Oddly, these words from theoriginal version of the New York speech do not appear in the version found at the end of the Boyer Lectures book. The passage from which they originally came is found in The Boyer Lectures, above n 4, 134-5.

¹³⁶ McHugh, above n 4, 46-7.

¹³⁷ As another example of Justice McHugh;s involvement in such a process, in his 1999 articlehe in fact forecast a diminished role for extra-legal values in the Court;s future work: McHugh, above n 4, 46.

¹³⁸ Williams, above n 30, 427-8

¹³⁹ Zines, above n 68, 408.

¹⁴⁰ Ibid.

¹⁴¹ See generally the various analyses of the Court;s recent work contained in Stone andWilliams, above n 77. In the concluding chapter of that work, Zines finds no trend in the Court;s constitutional interpretation: ;There is not, in my view, any general pattern or direction at this stage. The cases are a motley collection in which the Court and individual judges take varying approaches depending on the issue;: Zines, above n 77, 238.

¹⁴² Horrigan, after arguing for the ;proper; understanding of ;strict legalism; in its ;wide; senseto be acknowledged, says, ;Australian constitutional reasoning, therefore, needs a conceptual framework for accommodating judicial reference to such ;deeper…conceptions of justice; as ;principles; (in something like their Dworkinian sense) or values underlying Australian constitutional law and for distinguishing impermissible from permissible references to ;policy; considerations, community values and other non-rule-based standards.; Above n 124, 61. In spite of his arguments about its true wider sense, the use of ;strict and complete legalism; seems ill-equipped to rise to this challenge.