¹ This tendency has attracted a great deal of criticism: see, eg, Williams, George, Human Rights under the Australian Constitution (Oxford University Press, 2002) 96–128Google Scholar; Zines, Leslie, The High Court and the Constitution (Federation Press, 5^th ed, 2008) 569–78Google Scholar; Charlesworth, Hilary, ‘The High Court and Human Rights’ in Cane, Peter (ed), Centenary Essays for the High Court of Australia (LexisNexis Butterworths, 2004) 356, 358–61.Google Scholar For a defence of the Court's record in relation to these provisions, see, eg, Booker, Keven and Glass, Arthur, ‘The Express Rights Provisions: Form and Substance (or Opportunities Taken and Not Taken?)’ in Lee, H P and Gerangelos, Peter, Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (Federation Press, 2009) 155.Google Scholar

² R v Archdall and Roskruge; Ex parte Carrigan (1928) 41 CLR 128, 136 (Knox CJ, Isaacs, Gavan Duffy and Powers JJ), 139–40 (Higgins J); Kingswell v The Queen (1985) 159 CLR 264, 276 (Gibbs CJ, Wilson and Dawson JJ), 282 (Mason J). Section 80 has consequently been described as a ‘mere procedural provision': Spratt v Hermes (1965) 114 CLR 226, 244 (Barwick CJ). An alternative interpretation is that the words ‘on indictment’ connote the relative seriousness of the offence, and thereby establish an independent standard for the enlivenment of the provision that substantively burdens the legislative power of the federal government. Justices Dixon and Evatt advocated forcefully for this approach to s 80 in their joint dissent in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 580–4, as did Deane J in Kingswell v The Queen (1985) 159 CLR 264, 298–310. More recently, James Stellios has offered a third reading of s 80 as a mechanism for facilitating the exercise of Commonwealth judicial power throughout the federal system: Stellios, James, ‘The Constitutional Jury — “A Bulwark of Liberty“?’ (2005) 27 Sydney Law Review 113, 133–9.Google Scholar Convincing as this account may be, its significance for an historical analysis of judicial choice is limited by the fact that it was not directly contemplated by the Court.

³ R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 276–80 (Brennan, Deane and Dawson JJ). Their Honours argued that s 41 was only meant to protect the federal voting rights of those so entitled at Federation on the statutory establishment of federal franchise. Keven Booker and Arthur Glass have defended this restrictive approach as a necessary concession to the practical need to ensure uniform federal franchise: Booker and Glass, above n 1, 159–60. However, as Anne Twomey has pointed out, non-uniformity was a logical consequence of the initial operation of s 41, as only South Australia and Western Australia had extended the vote to women by 1901 (a fact specifically discussed in the Convention debates): Twomey, Anne, ‘The Federal Constitutional Right to Vote in Australia’ (2000) 28 Federal Law Review 125, 138–41.Google Scholar Twomey also argues that this narrow interpretation destroys a vital link between state and federal franchises created through the interaction of s 41 with ss 24 and 25: at 141–3.

⁴ (1989) 168 CLR 461.

⁵ See Patapan, Haig, Judging Democracy: The New Politics of the High Court of Australia (Cambridge University Press, 2000).Google Scholar

⁶ Pierce, Jason L, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press, 2006) ch 7Google Scholar; Patapan, Haig, ‘High Court Review 2001: Politics, Legalism and the Gleeson Court’ (2002) 37 Australian Journal of Political Science 241CrossRefGoogle Scholar; Patapan, Haig, ‘High Court Review 2002: The Least Dangerous Branch’ (2003) 38 Australian Journal of Political Science 299.CrossRefGoogle Scholar A recent exception to this has been the Court's defence of voting rights by way of the principle of representative government: Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1.

⁷ See, eg, the rejection of an implied freedoms of association and movement in Kruger v Commonwealth (1997) 190 CLR 1. For a discussion of that aspect of the case, see Williams, above n 1, 194–6. See also Gelber, Katharine, ‘High Court Review 2003: The Centenary Year’ (2004) 39 Australian Journal of Political Science 331CrossRefGoogle Scholar; Gelber, Katharine, ‘High Court Review 2004: Limits on the Judicial Protection of Rights’ (2005) 40 Australian Journal of Political Science 307.CrossRefGoogle Scholar

⁸ See Galligan, Brian, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (University of Queensland Press, 1987).Google Scholar

⁹ An argument to which I will return in Part II(A) of this article.

¹⁰ Shapiro, Martin, ‘Judicial Review in Developed Democracies’ (2003) 10(4) Democratization 7, 18.CrossRefGoogle Scholar Of course, in practice, the distinction between structure and rights is not always so clear-cut. Structural questions might and often do implicate individual freedoms, and structural review can take on a rights ‘flavour’ where those freedoms are taken into interpretive consideration. An example of the latter can be found in the High Court's occasional use of proportionality when determining whether a purported exercise of implied incidental Commonwealth power is sufficiently connected to a relevant head of power: see, eg, Commonwealth v Tasmania (1983) 158 CLR 1, 260 (Deane J) ('Tasmanian Dam Case’); Nationwide News Pty Ltd v Willis (1992) 177 CLR 1, 30–1 (Mason CJ); Cunliffe v Commonwealth (1994) 182 CLR 272, 296–8 (Mason CJ), 321 (Brennan J); Leask v Commonwealth (1996) 187 CLR 579, 593–4 (Brennan CJ), 614–15 (Toohey J). In a formal sense, the boundary between structure and rights is probably haziest where structural implications take on a functional equivalence with rights (eg, the implied freedom of political communication, which is commonly referred to in rights terms despite its structural pedigree): Stone, Adrienne, ‘Judicial Review without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review’ (2008) 28 Oxford Journal of Legal Studies 1, 12.CrossRefGoogle Scholar The relevant distinction for current purposes is the position in which a particular exercise of review places a court in relation to the political branches; what matters is that it ‘looks’ like rights review from an institutional standpoint.

¹¹ Stone, ‘Judicial Review Without Rights', above n 10, 11–13, 19–25. Implicit in this is the assumption that ‘legitimacy’ can be understood, at least roughly, as a form of social capital, which is capable of being accumulated and ‘spent': see Roux, Theunis, The Politics of Principle: The First South African Constitutional Court, 1995–2005 (Cambridge University Press, 2013) ch 2.CrossRefGoogle Scholar The concept of legal legitimacy is elaborated upon further in the text accompanying nn 20–21 below.

¹² Waldron, Jeremy, Law and Disagreement (Clarendon Press, 1999)CrossRefGoogle Scholar; Waldron, Jeremy, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346.CrossRefGoogle Scholar

¹³ Waldron, Law and Disagreement, above n 12, ch 11; Goldsworthy, Jeffrey, ‘The Constitutional Protection of Rights in Australia’ in Craven, Gregory (ed), Australian Federation: Towards the Second Century (Mebourne University Press, 1992) 151, 167–70.Google Scholar

¹⁴ Stone, ‘Judicial Review without Rights', above n 10. There are exceptions to this, but they are limited. They include provisions framed in relatively specific and therefore uncontroversial terms (eg, the one-third requirement for a quorum in the lower house of the Australian Parliament under Constitution s 38), and constitutional guarantees against discrimination between the constituent polities within a federation, which secure their political participation and thus the basic conditions for the existence of the federation itself: Stone, Adrienne, ‘Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law’ (2010) 60 University of Toronto Law Journal 109, 124–5, 128–30 ('Democratic Objections’).CrossRefGoogle Scholar

¹⁵ Constitution s 51(xxix).

¹⁶ Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 229 (Mason J); Tasmanian Dam Case (1983) 158 CLR 1.

¹⁷ Stone, ‘Judicial Review without Rights', above n 10, 15–17.

¹⁸ For criticisms of Stone's analysis, see Aroney, Nicholas, ‘Reasonable Disagreement, Democracy and the Judicial Safeguards of Federalism’ (2008) 27 University of Queensland Law Journal 129Google Scholar; Goldsworthy, Jeffrey, ‘Structural Judicial Review and the Objection from Democracy’ (2010) 60 University of Toronto Law Journal 137.CrossRefGoogle Scholar For Stone's response to her critics, see Stone, ‘Democratic Objections', above n 14.

¹⁹ Stone herself does touch briefly on this as being a consequence of her argument, but only in the prescriptive sense of providing ammunition to those advocating for the constitutional protection of rights: Stone, ‘Democratic Objections', above n 14, 130.

²⁰ See Fallon, Richard H Jr, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787, 1817–20.Google Scholar The diminishment of a court's store of legal legitimacy can, in turn, act to intensify the political constraints operating against it: see Roux, The Politics of Principle, above n 11, ch 2. The nature of political constraints is explored further in Part II(B) of this article.

²¹ Judges might also be motivated to transgress the limits of legitimate legal argument as a means to actualise their own policy preferences. However, it is important to note that this is not a necessary corollary to a constraint-based conception of legal doctrine, as it is in behavioural or attitudinal models of judicial decision-making: see, eg, Segal, Jeffrey A and Spaeth, Harold J, The Supreme Court and the Attitudinal Model (Cambridge University Press, 1993).Google Scholar Called on to respond to a particular legal problem, a judge can be motivated by a genuine desire to give effect to the most authentic possible expression of an existing body of doctrine, while at the same time being limited by that doctrine (as commonly occurs when several equally plausible solutions present themselves). That the interaction between doctrinal constraints and judicial preference formation is somewhat more complex than suggested by behavioural modelling is a key insight in the historical-institutionalist school's reaction against such simplified accounts: see, eg, Whittington, Keith E, ‘Once More unto the Breach: PostBehavioralist Approaches to Judicial Politics’ (2000) 25 Law & Social Inquiry 601CrossRefGoogle Scholar; Clayton, Cornell W and Gillman, Howard (eds), Supreme Court Decision-Making: New Institutionalist Approaches (University of Chicago Press, 1999).Google Scholar

²² 5 US (1 Cranch) 137 (1803) ('Marbury’).

²³ Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262.

²⁴ That of providing a basis in precedent for the Supreme Court's power to declare laws unconstitutional during adjudication: Graber, Mark A, ‘Establishing Judicial Review: Marbury and the Judicial Act of 1789’ (2003) 38 Tulsa Law Review 609, 626.Google Scholar Its significance even in this regard is questionable, as it was more than 80 years before the Supreme Court first acknowledged the decision as providing a discrete precedential basis for its review powers in Mugler v Kansas, 123 US 623 (1887). As Graber wryly puts it, the fact that Marbury established judicial review ‘was a well kept secret throughout the nineteenth century': at 627. He suggests instead that the Judiciary Act of 1789, 1 Stat 73 played a much greater role in its establishment.

²⁵ Whittington, Keith E, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in US History (Princeton University Press, 2007) 9.CrossRefGoogle Scholar

²⁶ Perhaps the best-known 20th-century example of this was Orval Faubus’ mobilisation of the National Guard, during his tenure as governor of Arkansas, to prevent the desegregation of Little Rock public schools mandated by Brown v Board of Education, 347 US 483 (1954). Faubus’ denial of the Supreme Court's authority to bind state governments precipitated a national crisis, prompting the Court to assert judicial supremacy in Cooper v Aaron, 358 US 1 (1958), For an account, see Daniel A Farber, ‘The Supreme Court and the Rule of Law: Cooper v Aaron Revisited’ [1982] University of Illinois Law Review 387. But defiance of the Court's early decisions by the states was relatively widespread. For example, its orders in both New Jersey v Wilson, 11 US (7 Cranch) 164 (1812) (concerning the withdrawal of a tax exemption over certain Indian lands) and Martin v Hunters’ Lessee, 14 US (1 Wheat) 304 (1816) (concerning the Supreme Court's authority to review decisions of state courts) were simply disregarded by the governments of New Jersey and Virginia, respectively: Friedman, Barry, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009) 84.Google Scholar The issue was foregrounded in Worcester v Georgia, 31 US (1 Pet) 1 (1831), part of a series of conflicts over Georgia's efforts to remove the peoples of the Cherokee Nation to the west in order to facilitate its own expansionary ambitions. Naturally, Georgia denied the Supreme Court's authority, refusing even to participate in the litigation. Informally, President Andrew Jackson — who both favoured Native American removal, and endorsed a vision of federalism in which the coordinate departments remained independent from one another — sided with Georgia; that is, until the issue of the Court's authority (and, indirectly, of Cherokee sovereignty) became implicated in questions over Jackson's ability to enforce a tariff levied over South Carolina: Friedman, above n 26, 88–104.

²⁷ The quintessential example is Franklin Roosevelt's abortive ‘court-packing plan', a legislative package, initiated in response to the Hughes Court's hostility to his New Deal agenda, that would have allowed him to appoint up to six judges to the Court for every incumbent member over 70 years and six months who refused to retire. For an account, see Friedman, above n 26, ch 7.

²⁸ This occurred in Malaysia in 1988, when three judges of the Supreme Court, including the Lord President, were removed by a tribunal convened by the country's Prime Minister, Mahathir Mohamad: see Gillen, Mark and McDorman, Ted L, ‘The Removal of the Three Judges of the Supreme Court of Malaysia’ (1991) 25 University of British Columbia Law Review 171.Google Scholar More to the point, judicial removal also took place in colonial South Australia and Van Diemen's Land: see Part III(A) of this article.

²⁹ See Roux, Theunis, ‘Principle and Pragmatism on the Constitutional Court of South Africa’ (2009) 7 International Journal of Constitutional Law 106, 109–12CrossRefGoogle Scholar; Roux, The Politics of Principle, above n 11, ch 2.

³⁰ Shapiro, above n 10, 11–13. In this light, Marbury's apparent precedential significance is seen to be more a product of historical revisionism than something intrinsic to the case itself. As Graber argues, ‘[t]he better claim is that important late nineteenth and twentieth century cases cited Marbury when seeking to establish strong precedential foundations for modern review practice': Graber, ‘Establishing Judicial Review', above n 24, 628.

³¹ Marbury, 5 US (1 Cranch) 137, 167–70 (1803).

³² Ibid 170.

³³ For a detailed account of the political circumstances surrounding the decision, see Friedman, above n 26, ch 2.

³⁴ Marbury, 5 US (1 Cranch) 137, 174–8 (1803).

³⁵ Graber, Mark A, ‘The Problematic Establishment of Judicial Review’ in Gillman, Howard and Clayton, Cornell (eds), The Supreme Court in American Politics: New Institutionalist Interpretations (University of Kansas Press, 1999) 28, 36.Google Scholar

³⁶ See, eg, Graber, Mark A, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 35CrossRefGoogle Scholar; Graber, Mark A, ‘The Passive-Aggressive Virtues: Cohens v Virginia and the Problematic Establishment of Judicial Power’ (1995) 12 Constitutional Commentary 67Google Scholar; Graber, Mark A, ‘Federalist or Friends of Adams: The Marshall Court and Party Politics’ (1998) 12 Studies in American Political Development 229CrossRefGoogle Scholar; Graber, Mark A, ‘Establishing Judicial Review? Schooner Peggy and the Early Marshall Court’ (1998) 51 Political Research Quarterly 221CrossRefGoogle Scholar; Graber, Mark A, ‘Naked Land Transfers and American Constitutional Development’ (2000) 53 Vanderbilt Law Review 71.Google Scholar

³⁷ SirDixon, Owen, Jesting Pilate and Other Papers and Addresses (Severin Woinarski ed, Law Book, 1965) 245, 247.Google Scholar The Court's strict commitment to legalism is generally traced to its decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ('Engineers’ Case’).

³⁸ Galligan, Politics of the High Court, above n 8.

³⁹ Ibid ch 4.

⁴⁰ Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29.

⁴¹ Bank of New South Wales v Commonwealth (1948) 76 CLR 1 ('Bank Nationalisation Case’).

⁴² A-G (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237; British Medical Association v Commonwealth (1949) 79 CLR 201.

⁴³ Communist Party Case (1951) 83 CLR 1.

⁴⁴ Galligan, Politics of the High Court, above n 8, 43. See also: at 203–7. At the same time, the influence of McCarthyism over public life in the United States only intensified, more or less unchallenged by the conservative and politically vulnerable Vinson Supreme Court: see Lichtman, Robert M, The Supreme Court and McCarthy-Era Repression: One Hundred Decisions (University of Illinois Press, 2012).CrossRefGoogle Scholar

⁴⁵ See Part II(A) of this article.

⁴⁶ Shapiro, above n 10, 8.

⁴⁷ (1999) 198 CLR 511 ('Wakim’). See also Byrnes v The Queen (1999) 199 CLR 1; Bond v The Queen (2000) 201 CLR 213; R v Hughes (2000) 202 CLR 535.

⁴⁸ This is a statement about the nature of the Court's interpretive approach, not the soundness of its reasoning. For a detailed and excoriating critique of the substance of the Wakim judgment, see Rose, Dennis, ‘The Bizarre Destruction of Cross-Vesting’ in Stone, Adrienne and Williams, George (eds), The High Court at the Crossroads: Essays in Constitutional Law (Federation Press, 2000) 186.Google Scholar

⁴⁹ Dixon, above n 37, 247.

⁵⁰ Shapiro, above n 10, 18.

⁵¹ See Part III of this article.

⁵² See Part IV of this article.

⁵³ Chanock, Martin, The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice (Cambridge University Press, 2001) 23.CrossRefGoogle Scholar

⁵⁴ See Atiyah, P S and Summers, R S, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Clarendon Press, 1987).Google Scholar

⁵⁵ See, eg, Foucault, Michel, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans, Vintage Books, 1995).Google Scholar

⁵⁶ This feature of culture, or some aspect of it, is present in accounts of law as a traditional or customary practice: see, eg, Krygier, Martin, ‘Law as Tradition’ (1986) 5 Law and Philosophy 237CrossRefGoogle Scholar; Webber, Jeremy, ‘The Grammar of Customary Law’ (2009) 54 McGill Law Journal 579.CrossRefGoogle Scholar

⁵⁷ A truly comprehensive account of the emergence and shape of Australian politico-legal culture is, of course, not feasible given the constraints of the format. What follows amounts instead to a rough genealogical sketch, one that, it is hoped, will suffice to illustrate the essential features of that culture as they relate to the question at hand.

⁵⁸ Kadish, Sanford H, ‘Judicial Review in the High Court and the United States Supreme Court’ (1959) 2 Melbourne University Law Review 4, 8.Google Scholar

⁵⁹ See McLaren, John, ‘The Judicial Office … Bowing to No Power but the Supremacy of the Law: Judges and the Rule of Law in Colonial Australia and Canada, 1788–1840’ (2003) 7 Australian Journal of Legal History 177Google Scholar; Holloway, Ian, ‘Sir Francis Forbes and the Earliest Australian Public Law Cases’ (2004) 22 Law and History Review 209CrossRefGoogle Scholar; Holloway, Ian, Bronitt, Simon and Williams, John, ‘Rhetoric, Reason, and the Rule of Law in Early Colonial New South Wales’ in Foster, Hamar, Berger, Benjamin L and Buck, A R (eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (UBC Press, 2008) 78.Google Scholar

⁶⁰ Thomson, James A, Judicial Review in Australia: The Courts and the Constitution (SJD Thesis, Harvard University, 1979) 21.Google Scholar

⁶¹ McLaren, above n 59, 178.

⁶² See, eg, de Q Walker, Geoffrey, The Rule of Law: Foundation of Constitutional Democracy (Melbourne University Press, 1988) 144Google Scholar; Kinley, David, ‘Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law’ (1994) 22 Federal Law Review 194.CrossRefGoogle Scholar

⁶³ Dicey, A V, Introduction to the Study of the Law of the Constitution (Macmillan, first published 1885, 10^th ed, 1959) 187–203.Google Scholar For a useful typology distinguishing formal conceptions of the rule of law (such as Dicey's) from more substantive ones, see Paul P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467.

⁶⁴ McLaren, above n 59, 178–80.

⁶⁵ Not even in the limited sense suggested by Blackstone, in which as much of the law as is applicable to the circumstances of the colonies at that time is received: SirBlackstone, William, Commentaries on the Laws of England (Legal Classics Library, first published 1765–69, 1983 ed) vol 1, 104–5.Google Scholar In the Australian context, see Windeyer, Victor, ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) 1 University of Tasmania Law Review 635.Google Scholar CfEvatt, H V, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409, 415–21Google Scholar; Castles, Alex C, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1.Google Scholar

⁶⁶ Holloway, above n 59, 211 (emphasis in original). See also Holloway, Bronitt and Williams, above n 59.

⁶⁷ Holloway, Bronitt and Williams, above n 59, 84. See also, generally, Atiyah and Summers, above n 54.

⁶⁸ McLaren, above n 59, 178.

⁶⁹ Holloway, above n 59.

⁷⁰ Castles, Alex C, An Australian Legal History (Law Book, 1982) 400 ff.Google Scholar

⁷¹ Thomson, above n 60, 46–60; Castles, ‘The Reception and Status of English Law in Australia', above n 65, 23–8.

⁷² South Australia, Hutchinson v Leeworthy, Parl Paper No 142 (1864) 19–21 (Boothby J), 21–2 (Gwynne J) (decided on 28 May 1860), cited in Thomson, above n 60, 47. See also Pike, Douglas, ‘Introduction of the Real Property Act in South Australia’ (1960) 1 Adelaide Law Review 169, 184–5.Google Scholar

⁷³ South Australia, Payne v Dench, Parl Paper No 100 (1863) 1–3 (Gwynne J), 3–5 (Boothby J) (decided on 16 April 1861), cited in Thomson, above n 60, 48.

⁷⁴ As Boothby said, ‘I think it is very doubtful whether the Crown had power to assent to the Constitution Act without the consent of the Imperial Parliament. If the question was raised, I have little doubt that … [it] would be found to be not worth the paper it is printed on': Lloyd v Kelly, South Australian Register (Adelaide), 10 August 1860, 3, quoted in Thomson, above n 60, 48.

⁷⁵ South Australia, Letter dated August 12, 1861 from William Hinde to the Chief Secretary, Parl Paper No 143 (1864), quoted in Thomson, above n 60, 49.

⁷⁶ See Dixon, above n 37, 50–1.

⁷⁷ Thomson, above n 60, 51.

⁷⁸ Ibid 23–33.

⁷⁹ Ibid 34–45.

⁸⁰ Blackshield, Tony and Williams, George, Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 5^th ed, 2010) 120.Google Scholar

⁸¹ Pike, above n 72, 187.

⁸² Castles, above n 70, 408.

⁸³ Ibid 407–8.

⁸⁴ And which, it should be added, Justice Boothby proceeded to construe as narrowly as possible: Thomson, above n 60, 59 n 511.

⁸⁵ Colonial Laws Validity Act 1865 (Imp) ss 2, 3.

⁸⁶ Thomson, above n 60, 48–60.

⁸⁷ Holloway, above n 59, 218.

⁸⁸ See La Nauze, J A, The Making of the Australian Constitution (Melbourne University Press, 1972) ch 1.Google Scholar

⁸⁹ See Collins, Hugh, ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society’ (1985) 115(1) Dædalus 147.Google Scholar

⁹⁰ Goldsworthy, ‘The Constitutional Protection of Rights in Australia', above n 13, 152–4.

⁹¹ See Mallory, J R, ‘Politics by Other Means: The Courts and the Westminster Model in Australia’ (1979) 17 Journal of Commonwealth & Comparative Politics 3CrossRefGoogle Scholar; Thompson, Elaine, ‘A Washminster Republic’ in Winterton, George (ed), We, the People: Australian Republican Government (Allen & Unwin, 1994) 97.Google Scholar This structural tension has been cited as the cause of the 1975 constitutional crisis: Howard, Colin and Saunders, Cheryl, ‘The Blocking of the Budget and Dismissal of the Government’ in Evans, Gareth (ed), Labor and the Constitution 1972–1975: Essays and Commentaries on the Constitutional Controversies of the Whitlam Years in Australian Government (Heinemann, 1977) 251.Google Scholar

⁹² As Galligan points out, judicial review was ‘a dominant theme’ at the Constitutional Convention, one ‘that constantly recurred throughout the debate on the judiciary clauses': Galligan, Politics of the High Court, above n 8, 56. Indeed, Josiah Symon famously referred to the High Court as ‘the keystone to the federal arch': Official Record of the Debates of the National Australasian Convention, Adelaide, 20 April 1897, 950.

⁹³ Galligan, Politics of the High Court, above n 8, 48–63.

⁹⁴ Bryce, James, The American Commonwealth (Macmillan, 1889).Google Scholar On Bryce's influence on the Convention participants, see, eg, La Nauze, above n 88, 18–19, 85, 273; Galligan, Politics of the High Court, above n 8, 44–5; Irving, Helen, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, rev ed, 1999) 122.Google Scholar

⁹⁵ See Wright, John F S, ‘Anglicizing the United States Constitution: James Bryce's Contribution to Australian Federalism’ (2001) 31 Publius: The Journal of Federalism 107CrossRefGoogle Scholar; Maddox, Graham, ‘James Bryce: Englishness and Federalism in America and Australia’ (2004) 34 Publius: The Journal of Federalism 53.CrossRefGoogle Scholar

⁹⁶ See, eg, Bryce, above n 94, vol 1, 374–5.

⁹⁷ Ibid vol 1, ch 23.

⁹⁸ For a discussion on the nature of judicial supremacy and its relationship to judicial review, see Whittington, Political Foundations of Judicial Supremacy, above n 25, 5–10.

⁹⁹ Gageler suggests that the framers expected amendment to be the primary mechanism by which the Constitution would adapt to changing circumstances, which was obviously not borne out in practice: Gageler, Stephen, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162, 174.CrossRefGoogle Scholar While Craven identifies elements of interpretive progressivism (interpretation in light of contemporary standards and needs, as distinct from originalism) among the Convention participants, he concludes that ‘any suggestion to the effect that strong progressivism was a dominant, or even significant, position among the Founders amounts to a gross exaggeration': Craven, Greg, ‘Heresy as Orthodoxy: Were the Founders Progressivists?’ (2003) 31 Federal Law Review 87, 128.CrossRefGoogle Scholar

¹⁰⁰ Gageler, above n 99, 164–74.

¹⁰¹ Ibid 170.

¹⁰² See Part III(A) of this article.

¹⁰³ Gageler, above n 99, 164–5.

¹⁰⁴ Pierce, above n 6, 227–30. This contention is based on the views (given anonymously) of Australian appellate judges and senior legal practitioners interviewed by Pierce in the course of his research. As one High Court justice remarked, ‘[T]here was an attitude of mind on the part of Australian judges that although they weren't strictly bound by … decisions of English courts … because the Privy Council was constituted by judges who sat in the House of Lords there was a natural tendency … to follow a House of Lords decision': at 228. Similarly, another claimed that ‘the Brits never understood federation — just didn't understand what was involved in it. They simply had no conception of the quite different role of the judiciary in a federation': at 229. A barrister who had appeared often before the Court reflected on the cross-jurisdictional pervasiveness of the English courts’ influence:

The Privy Council had no experience in constitutional law in any sense comparable to the way you have it in the U.S. or Australia. That I think does have an effect on the modes of reasoning because if you have to decide constitutional cases, there are so many factors you take into account. Sometimes very few of them have much to do with legal reasoning in any traditional sense: at 229.

In fact, Pierce himself cites the final abolition of Privy Council appeals as a key precipitant for the Mason Court's ‘transformation’ of the High Court's place in the Australian legal system: at 224–37.

¹⁰⁵ Zines, above n 1, 1–9.

¹⁰⁶ D'Emden v Pedder (1904) 1 CLR 91; Deakin v Webb (1904) 1 CLR 585; Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488.

¹⁰⁷ Peterswald v Bartley (1904) 1 CLR 497; R v Barger (1908) 6 CLR 41; A-G (NSW) v Brewery Employees Union of New South Wales (1908) 6 CLR 469.

¹⁰⁸ McCulloch v Maryland, 17 US (4 Wheat) 316 (1819); Collector v Day, 78 US (11 Wall) 113 (1870); United States v E C Knight Co, 156 US 1 (1895).

¹⁰⁹ Galligan, Politics of the High Court, above n 8, 79–80; Patapan, Judging Democracy, above n 5, 11–12.

¹¹⁰ See Part III(A) of this article.

¹¹¹ Galligan, Politics of the High Court, above n 8, 26–30, 85.

¹¹² R v Barger (1908) 6 CLR 41.

¹¹³ Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; Colonial Sugar Refining Co Ltd v A-G (Cth) (1912) 15 CLR 182; Adelaide Steamship Co Ltd v The King (1912) 15 CLR 65.

¹¹⁴ Galligan, Politics of the High Court, above n 8, 85–91.

¹¹⁵ Ibid 91.

¹¹⁶ Ibid 91–4, 97.

¹¹⁷ Engineers’ Case (1920) 28 CLR 129, 152 (Knox CJ, Isaacs, Rich and Starke JJ).

¹¹⁸ Dixon, above n 37, 247.

¹¹⁹ Gageler, above n 99, 175–6.

¹²⁰ Patapan, Judging Democracy, above n 5, 14–15.

¹²¹ Goldsworthy, Jeffrey, ‘Australia: Devotion to Legalism’ in Goldsworthy, Jeffrey (ed), Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006) 106, 121.Google Scholar

¹²² Engineers’ Case (1920) 28 CLR 129, 150 (Knox CJ, Isaacs, Rich and Starke JJ). The Court's insistence that such a continuity could be sustained was all the more significant for the predominance of British interpretive norms in the context of its general legal role, as discussed in the text accompanying n 104.

¹²³ Gageler, above n 99, 178.

¹²⁴ Lynch, Andrew, ‘The High Court — Legitimacy and Change: Review Essay: Haig Patapan, Judging Democracy — The New Politics of the High Court of Australia’ (2001) 29 Federal Law Review 295, 298.CrossRefGoogle Scholar

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¹²⁶ Galligan, Politics of the High Court, above n 8, 38–41.

¹²⁷ Goldsworthy, Jeffrey, ‘Realism about the High Court’ (1989) 18 Federal Law Review 27, 32–6.Google Scholar Galligan, for his part, argues that Goldsworthy has mischaracterised his argument, and Goldsworthy in turn argues that Galligan has ignored the thrust of his criticisms: Galligan, Brian, ‘Realistic “Realism” and the High Court's Political Role’ (1989) 18 Federal Law Review 40CrossRefGoogle Scholar; Goldsworthy, Jeffrey, ‘Reply to Galligan’ (1989) 18 Federal Law Review 50.CrossRefGoogle Scholar

¹²⁸ Galligan, Politics of the High Court, above n 8, 41.

¹²⁹ See Part III of this article.

¹³⁰ Tasmanian Dam Case (1983) 158 CLR 1, 129 (Mason J), 169–70 (Murphy J), 221 (Brennan J), 262 (Deane J). Chief Justice Gibbs, in dissent, proffered the alternative view, arguing that:

The division of powers between the Commonwealth and the States, which the Constitution effects, could be quite meaningless if the federal government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the Parliament so that they embraced literally all fields of activity: at 100.

¹³¹ For an account of the political climate within which the decision was laid down, see Galligan, Politics of the High Court, above n 8, 240–8.

¹³² Richardson v Forestry Commission (1988) 164 CLR 261; Victoria v Commonwealth (1996) 187 CLR 416.

¹³³ Mabo v Queensland [No 2] (1992) 175 CLR 1 ('Mabo’); Wik Peoples v Queensland (1996) 187 CLR 1.

¹³⁴ See especially Mabo (1992) 175 CLR 1, 29, 38–42 (Brennan J).

¹³⁵ See Pierce, above n 6, 261–7. For a highly lucid account of the native title cases in their political context and from the Court's perspective, see Patapan, Judging Democracy, above n 5, ch 5.

¹³⁶ For contrasting extra-curial discussions by High Court judges of this often-disparaged but ill-defined phenomenon, see JusticeHeydon, Dyson, ‘Judicial Activism and the Death of the Rule of Law’ (2001) 10 Otago Law Review 493Google Scholar; JusticeKirby, Michael, ‘“Judicial Activism“? A Riposte to the Counter-Reformation’ (2005) 11 Otago Law Review 1.Google Scholar

¹³⁷ See, eg, Western Australia v Ward (2002) 213 CLR 1; Wilson v Anderson (2002) 213 CLR 401; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. See also Brennan, Sean, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 Public Law Review 209.Google Scholar

¹³⁸ (1992) 177 CLR 1.

¹³⁹ (1992) 177 CLR 106.

¹⁴⁰ Constitution ss 7, 24, 128.

¹⁴¹ See Patapan, Judging Democracy, above n 5, 51–61.

¹⁴² (1997) 189 CLR 520.

¹⁴³ Stone, Adrienne, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar; Stone, Adrienne, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842.Google Scholar

¹⁴⁴ See, eg, Chief JusticeGleeson, Murray, The Boyer Lectures 2000: The Rule of Law and the Constitution (ABC Books, 2000) 98, 134.Google Scholar

¹⁴⁵ Patapan, Judging Democracy, above n 5, 24–7.

¹⁴⁶ See, eg, Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ), 523 (Brennan J); Bropho v Western Australia (1990) 171 CLR 1, 17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen (1994) 179 CLR 427, 436 (Mason CJ, Brennan, Gaudron and McHugh JJ). Writing extra-curially, Chief Justice Robert French has recently suggested that the principle of legality ‘can be regarded as “constitutional” in character even if the rights and freedoms which it protects are not': Chief Justice Robert French, ‘Protecting Human Rights without a Bill of Rights’ (Speech delivered at John Marshall Law School, Chicago, 26 January 2010) 30 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26jan10.pdf>. In the 2008 McPherson Lectures, Chief Justice James Spigelman cast the interpretive presumptions coming within the scope of this principle as equivalent to a ‘common law bill of rights': Chief Justice James Spigelman, ‘The Common Law Bill of Rights’ (Speech delivered at the McPherson Lectures, University of Queensland, Brisbane, 10 March 2008) <http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/spigelman100308.pdf/$file/spigelman100308.pdf>. For a detailed discussion of the principle of legality as an avenue for the protection of rights, see Meagher, Dan, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449.Google Scholar

¹⁴⁷ (1996) 189 CLR 51 ('Kable’). Kable established that ch III places substantive limits on the powers and functions that states are legislatively competent to vest in state courts. These limitations were justified variously on the grounds that certain functions are incompatible with state courts’ status as potential repositories of federal judicial power, or would otherwise undermine their institutional integrity or public confidence in the judicial system more generally: at 94, 98 (Toohey J), 103, 107–8 (Gaudron J), 116, 118, 121 (McHugh J), 133–4, 135 (Gummow J). The principle was rationalised in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 as ‘one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court': at 76 (Gummow, Hayne and Crennan JJ). It has since been further developed and applied: see, eg, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Totani v South Australia (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181. For detailed discussions, see Bateman, Will, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411, 433–41Google Scholar; Steytler, Chris and Field, Iain, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed?’ (2011) 35 University of Western Australia Law Review 227.Google Scholar

¹⁴⁸ (2010) 239 CLR 531, 566–7 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Kirk’).

¹⁴⁹ (2003) 211 CLR 476 ('S157’).

¹⁵⁰ Lacey, Wendy, ‘Kirk v Industrial Court of New South Wales: Breathing Life into Kable’ (2010) 34 Melbourne University Law Review 641, 642.Google Scholar For an analogous discussion of the practical effect of S157 on due process rights, see Beaton-Wells, Caron, ‘Judicial Review of Migration Decisions: Life after S157’ (2005) 33 Federal Law Review 141.CrossRefGoogle Scholar See also Gouliaditis, Nicholas, ‘Critique and Comment — Privative Clauses: Epic Fail’ (2010) 34 Melbourne University Law Review 870.Google Scholar

¹⁵¹ Galligan, Brian, ‘The Australian High Court's Role in Institutional Maintenance and Development’ in Sampford, Charles and Preston, Kim (eds), Interpreting Constitutions: Theories, Principles and Institutions (Federation Press, 1996) 184, 200.Google Scholar