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Realistic ‘Realism’ and the High Court’s Political Role

Published online by Cambridge University Press:  24 January 2025

Brian Galligan
Brian Galligan*
Affiliation:
Political Science Dept, Research School of Social Sciences, Australian National University
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Extract

I welcome the opportunity to respond to Jeffrey Goldsworthy’s article, “Realism about the High Court”, in which he criticises aspects of my account of the High Court’s political role in interpreting the Australian Constitution. My book, Politics of the High Court, sets out the functions that the Founders intended the Court to play — interpreting the Constitution and adjudicating high level disputes involving governments — and examines, within a historical context, how the Court has actually carried out those functions in major decisions and lines of interpretation of key sections of the Constitution. As I pointed out in the book, this is the stuff of ‘high’ politics: authoritatively determining the meaning of the Constitution which is the basic instrument of government; and in particular disputes deciding whether to overrule democratically elected governments.

Type
Research Article
Information
Federal Law Review , Volume 18 , Issue 1 , March 1989 , pp. 40 - 49
Copyright
Copyright © 1989 The Australian National University

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References

1 B Galligan, “The Political Role of the Judiciary”, Paper presented to the First Canada-Australasian Law Conference, 4-9 April 1988, (ANU, Canberra) 11.

2 Galligan, B Politics of the High Court. A Study of the Judicial Branch of Government in Australia (1987) 30-31Google Scholar.

3 Ibid 31-32.

4 Ibid 34.

5 Ibid 38-39.

6 G Barwick, Foreword to P H Lane, Lane's Commentary of The Australian Constitution, (1986) vii. Barwick is refuting the claims of 'judicial adaptation' made by Lane in the Preface to his book.

7 Id. “Connote” was widely used in medieval logic by Duns Scotus and Occam, and was common in nineteenth century English logic. For example in J S Mill's Logic I ii 55: “The word white, denotes all white things, as snow, paper, the foam of the sea, etc., and implied, or as it was termed by the schoolmen, connotes, the attribute of whiteness”: Complete Oxford Dictionary (1971).

8 The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374.

9 Brennan, F G, “Limits on the Use of Judges” (1978) 7 F L Rev 1, 3Google Scholar.

10 M Kirby The Judges, Boyer Lectures 1983 (1983, Australian Broadcasting Corporation) 38-39,42.

11 Murphy, transcript of National Press Club address, 22 May 1980 (Parliamentary Library, Current Information Service) 4-5.

12 Mason, A, “The Role of a Constitutional Court in a Federation: A comparison of the Australian and United States Experience”(l986) 16 F L Rev 1Google Scholar.

13 McHugh, M, “The Law-making Function of the Judicial Process” (1988) 62 ALJ 15, 116Google Scholar.

14 A Mason, supra n 12, 5.

15 Ibid 23.

16 lbid 25.

17 This famous passage is from Lord Reid's “The Judge as Lawmaker” (1972) quoted in M McHugh, supra n 13, 19:

There was a time when it was thought almost indecent to suggest that judges make law — they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the common law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words “open sesame”. Bad decisions are given when the judges muddle their password and the wrong doors open. But we do not believe in fairy tales any more.

18 Ibid 124.

19 lbid 24.

20 Ibid 117-127.

21 P Bobbit, Constitutional Fate: Theory of the Constitution (1982). See also Perry, MJ, “Noninterpretive Review in Human Rights Cases: A Functional Justification” (1981) 56 NY Uni L R 278, 278Google Scholar: “The legitimacy of non-interpretive review is the central problem of contemporary constitutional theory”.

22 See Sir Anthony Mason's discussion of the relationship between the doctrine of parliamentary supremacy and legalism in “The Role of a Constitutional Court in a Federation”, supra n 12, 4-7; and my analysis of Australia's dominant Westminster tradition of responsible government in “Federal Theory and Australian Federalism” in Galligan, B (ed) Australian Federalism (1989) 45-68Google Scholar.

23 Official Record of the Debates of the Australasian Federal Convention (Adelaide, 1897) iii, 25.

24 See my Politics of the High Court, ch 2; and J H Thomson, “Constitutional Authority for Judicial Review: A contribution from the Framers of the Australian Constitution” in G Craven (ed). The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 173-202. Thomson emphasises that:"Australian courts have not provided a clear and consistent elucidation of the constitutional source of judicial review”: ibid 201.