Judging Democracy: The New Politics of the High Court of Australia.

• Jurisdiction: Australia
• Date: 01 April 2002

Judging Democracy: The New Politics of the High Court of Australia by Haig Patapan (Cambridge: Cambridge University Press, 2000) pages i-xi, 1-214. Price A$99.00 (hardcover). ISBN 0 521 77345 8.

In the past decade, the public profile of the High Court of Australia has achieved greater prominence and its role as an institution of Australian government has attracted significant and recurrent controversy. Debate has largely focused upon changes in the Court's interpretative methodology so as to engage issues previously considered political. Critics of the Court have questioned the legitimacy of the Court's activities and the propriety of the Court in intruding upon legislative and executive functions.

Haig Patapan's book engages these central themes under the title of `Judging Democracy'. In confronting the reality that the Court determines major political questions, the author ambitiously seeks an understanding of the dynamics of the Court's political engagement. In charting this evolution of Australian constitutionalism, questions are raised as to whether the Court's constitutional interpretations and common law decisions evince a coherent and comprehensive democratic vision of the Australian polity. This approach is pursued by the examination in individual chapters of several major areas, such as interpretative methodology, political rights, democracy and citizenship, native title, and the separation of powers. From each of these distinctive subjects the author seeks an understanding of the political role of the Court and the consequences of that role for Australian democracy. The final chapter draws together these findings and assesses the claim that the High Court is judging democracy. The content and methodology of the book accordingly focuses upon the judicial contribution to pressing issues of Australian democratic governance. The book's exposition and analysis extends beyond a mere collation of existing, if divergent, democratic responses by the Court. Its original perspectives have the potential to provide new insights into the ongoing debate surrounding the Court's democratic role.

Chapter 1, `The New Politics of the High Court', identifies the political nature of adjudication by a court of final appeal, an issue considered by preceding academic study of the Court (1) and intimated in the revised assumption of the Mason Court that it no longer `declared' the meaning of the law. (2) Patapan asks whether this new approach provides a coherent interpretative substitute to the methodology abandoned, or whether variables and limitations in adjudication--such as differing compositions of the Bench and whether suitable issues are litigated before the Court within a suitable time frame--frustrate the development of a consistent vision of democracy in constitutional issues. The answers to these questions highlight the influences and constraints upon the Court's ability to impart democratic orientations to a variety of constitutional provisions. The focus of the book then squarely rests upon the adequacy and consistency of the Court's democratic appraisal of constitutional and related questions.

This focus, however, highlights two recurrent difficulties inherent in the book's overall analysis. Firstly, the proposition that the Court should be possessed of a `coherent and comprehensive democratic vision of the Australian polity' (3) is inherently problematic. Such a vision might confirm the contentions of the Court's critics that the Mason Court and, to a lesser extent, the Brennan Court, had a calculated and improper political agenda. The question really becomes one of whether the Court might have a consistent and coherent understanding of concepts which can be seen as embedded in the Constitution, such as representative government.

Secondly, the prominence given to judicial engagement with democracy understates the volatile and changeable nature of the judicial role (4) and shifting judicial conceptions of democracy in a constitutional context. The chapters of the book proceed from the challengeable assumptions, firstly, that the new jurisprudence of the Mason Court was consolidated, and not abandoned, by the Brennan Court; and secondly, that `[t]he changes implemented during that time probably set the essential outlines of the jurisprudence that will be pursued by the current Gleeson Court, and beyond.' (5) A major concern in this respect is that, despite a late 2000 publication date, Patapan does not engage with or interpret the significance that the new membership and temperament of the Gleeson Court (from May 1998) represents to his thesis. (6) Similarly, an argument may be made that `consolidation' of the implied freedom of political communication jurisprudence by the Brennan Court in the 1996 case of Langer v Commonwealth (7) and, more particularly, the 1997 cases of Lange v Australian Broadcasting Corporation, (8) Levy v Victoria (9) and Kruger v Commonwealth (10) has done more, in practical terms, through application of a restricted meaning of `political communication' and an overriding test of proportionality, to atrophy rather than sustain a freedom of political communication sourced in representative and responsible government. (11) These and other critical developments in the Brennan and Gleeson Courts--such as the perceived desirability by both major political parties of appointing judges to the Court of a conservative disposition and the unwillingness of the present Attorney-General, Daryl Williams, to defend the Court and its decisions from political attacks--make it less likely that democratic concepts will animate High Court jurisprudence at the present time. The apparent depoliticisation of the Court's constitutional jurisprudence by way of retreat from, rather than entertainment of, democratic notions as informing constitutional provisions, is itself a statement of the institutional proprieties of judging democracy. Such omissions qualify and therefore diminish the authority of the book's appraisal of how the Court has judged the democratic import of key constitutional provisions.

Chapter 2, `Politics of Interpretation', focuses upon the consequences of the Mason Court's abandonment of the declaratory theory, the advocacy of a dynamic, policy-laden approach to interpretation, and the use of `community values' (12) as a new guide to judicial law-making. This new interpretative methodology is rationalised as consistent with, and an enhancement of, representative and responsible government because it involves a judicial supplementation and modernisation of the law. A pointed criticism is made of the difficulties in determining the content and ranking of community values in the new interpretative methodology. Patapan rightly considers that the Court has failed to clearly identify and articulate the bases from which these democratic choices and emphases of community values must inevitably be made. (13) However, in highlighting the problems of ranking and choice of community values as factors in the democratic aspect of constitutional provisions, some consideration should have been given to the fact that the later jurisprudence of the Brennan and Gleeson Courts, in its disengagement from rigorously addressing these democratic questions in constitutional interpretation, leans towards an earlier interpretative methodology and a significantly more limited model of democratic governance. (14)

Chapter 3, `Politics of Rights', considers the Court's notion of representative democracy as conceived in the implied freedom of political communication cases and its derivation of human rights from international law. The author's appraisal of the Court's development of rights and freedoms is juxtaposed with discussion of both the association of parliamentary sovereignty and liberal constitutionalism with their natural rights foundations, and of political and civil rights proceeding from the will of the legislature and utilitarian foundations. A plausible argument is made that these contrasting foundations have variously informed the Court's articulation of the democratic content of rights. (15) The author's argument is compelling and illuminating in two respects. Firstly, the Court has not clearly articulated these tensions, and secondly, the process of adjudication which occurs when democratic considerations enter into constitutional interpretation inevitably touches upon and must ideally accommodate these foundations.

Patapan then provides an informative summary of the different conceptions of rights, citizenship, authority and legitimacy that each philosophical tradition represents. He observes that an emphasis upon liberal constitutionalism with a rights-based foundation will enhance both the democratic orientation of constitutional legal issues as well as the responsibility and influence the judiciary must then exercise over the questions of democracy in constitutional interpretation. (16) A sound framework of analysis and exposition of these democratic questions is subsequently provided. In particular, the jurisprudence of the Court's attempts to allegedly implement an implied bill of rights and the Court's engagement with international law treaties and norms in circumstances raising human rights issues are canvassed with appropriate depth. The author's treatment of these topics displays a skilful exposition and analysis of the democratic import of the decisions through the prism of the competing philosophical traditions.

On occasion, however, this exposition could have been further refined through closer attention to the detail of some matters which directly influence the Court's relationship with the legislature. For instance, there is a lack of adequate reference to the Human Rights Act 1998 (UK) c 42 as highlighting Australia as the last major common law jurisdiction without a bill of rights, and an insufficient appraisal of the influence upon the Lange judgment of the views respectively...