Inside the Mason Court Revolution: The High Court of Australia Transformed.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Twomey, Anne

Inside the Mason Court Revolution. The High Court of Australia Transformed by Jason L Pierce (Durham: Carolina Academic Press, 2006) pages vii-x, 3-334. Price US$30.00 (hardcover). ISBN 1 59460 061 9.

CONTENTS I Introduction II The Anecdotal Aspect of the Book III The Substance of the Book IV The Relationship between Commonwealth Governments and the High Court V Stare Decisis and the High Court VI Conclusion I INTRODUCTION

This is the work of an outsider (an American political scientist and PhD student) about a critical period in the history of the High Court of Australia. As such it had the potential to be utterly Fascinating or completely misconceived. The actual result is mixed. Parts of the book are compelling reading. These are the anecdotal parts, where the author records the candid views of senior Australian judges about the High Court, the role of the judiciary, the judicial method and criticisms of particularly controversial judgments. Other parts, being the attempts to support the anecdotal material with sufficient theory and evidence to justify the award of a PhD, including graphs and statistics, appear (at least From a practical lawyer's point of view) to be artificial and sometimes meaningless. (1)

It must First be acknowledged that this book was written primarily For an American audience. It provides clear and concise explanations of the Australian constitutional system and the context of particular cases For that audience, and does so in terms Familiar to Americans. To Australian ears however, some of that language is grating, such as the references to the High Court's 'docket', 'agenda' and those who have 'clerked' For the Court. There is a particularly egregious reference to 'Down Under' on page 3.

Secondly, the book was written For an audience of social scientists. Pierce locates his analysis Firmly within the context of the existing theoretical scholarship by North American political scientists on the operation of the United States Supreme Court. While he challenges some of that scholarship, his work is informed by it and builds upon it. Whether that is done well or badly is impossible for an Australian lawyer to judge. However, it is likely that an Australian legal audience will find these aspects of the book somewhat alienating or unconvincing. Indeed, the very judges who gave their forthright and critical comments to Pierce about the use of theory and principle by the Mason Court would be likely to have a few choice words about the more obscurely theoretical aspects of this book. (2) One could imagine 'Judge No 3', for example, describing it as 'pseudo-scientific, airy-fairy, mumbo-jumbo', or the like.

Fortunately, much of the book weaves together the comments of a wide range of senior Australian judges who give their appraisal not only of the Mason Court and some of its particularly controversial judgments, but also the role of the judge and the judicial method. It is these parts of the book that an Australian legal audience will find fascinating on two levels.

II THE ANECDOTAL ASPECT OF THE BOOK

First, there is the superficial level of gossip and entertainment. Pierce somehow managed the extraordinary feat of getting 85 senior judges (including 10 current and former High Court judges) and other senior barristers to speak candidly to him about the Mason Court and judging generally. Perhaps it was his status as an outsider that helped. It is extremely unlikely that these judges would have made the same comments to an Australian legal academic. Pierce guaranteed each of his informants anonymity, although all agreed to being listed in the back of the book as participants. The grant of anonymity was, as Sir Harry Gibbs once said in a different context, 'a frail shield'. (3) Pierce describes to his readers 'the Sydney-based judge whose office was filled with enough museum-quality sculptures, busts, and objets d'art to open his own gallery' and 'the judge who photographs each visitor to his office'. (4) No prizes would be given in Australia for the identification of either well-known judge.

Almost every quote in the book is attributed to a judge given a particular number. Some characteristics of the judge are usually revealed in introducing the quote (for example, 'a NSW appellate judge' or a 'High Court justice') and other characteristics are often revealed by the quotations themselves (for example, the cases the informant argued or heard). The consequence is that if one works through the book playing a game of 'judicial sudoku', one can identify a number of the anonymous judges, some positively and others through a process of elimination. For example, Justice Slicer was the only Tasmanian Supreme Court judge interviewed, and is therefore identified by the reference to 'a Tasmanian Supreme Court judge'. No doubt some unfortunate functionary of the Commonwealth Attorney-General has been ploughing through the book trying to identify those judges whose critical views of the Mason Court single themselves out for higher appointment.

Nearly all the truly colourful quotations, however, can be traced back to one source--the legendary Judge No 3, who wages the good fight against '"with-it" professors', (5) 'women's lib', (6) those who have succumbed to 'the siren song of the left-wing intellectuals', (7) and those who say 'bugger the Constitution.' (8) Judge No 3 is quick to paint a portrait of judges past and present: 'Toohey was a terrible communist. Brennan wasn't much better.' (9) However, his Honour gives some begrudging respect to Chief Justice Gleeson who 'doesn't have a heart so there is no danger in him being overly smuffy to anyone.' (10) Few in the legal profession would have difficulty in guessing the identity of Judge No 3, and most would take his opinions in the exuberantly pot-stirring and mischievous manner in which they were intended (which would probably not be apparent to an American audience).

Beyond the gossip, the judicial comments recorded in this book are in many cases both thoughtful and thought-provoking. They provide great insight into the judicial role and method from those who practise it. Both the divergences and similarities in views are instructive and this material could well prove useful for future studies on the judiciary.

III THE SUBSTANCE OF THE BOOK

Pierce's book has a relatively simple structure. First, he sets out to identify what was 'orthodoxy' in judicial behaviour before the Mason Court. He describes a number of 'dimensions' of orthodoxy, including the importance of certainty, the separation of judges from the political world, legal reasoning that is clinical, logical and technical, a high reliance on precedent and 'interstitial' legal development. (11)

Secondly, he attempts to demonstrate how the Mason Court supplanted that orthodoxy both in its behaviour and its legal reasoning. He argues in chapters four and five that the Mason Court:

* placed a higher premium on fairness and individualised justice than certainty;

* became politicised because it addressed overarching principles and policy matters in its judgments, writing its judgments for the public rather than directing them to the parties in the case;

* took on the role of a public educator, with justices more commonly speaking out in public on political issues;

*...