WHAT DETERMINES THE INSTITUTIONAL LEGITIMACY OF THE HIGH COURT OF AUSTRALIA?

• Date: 01 December 2019
• Author: Krebs, Shiri

I Introduction II What Factors Are Correlated with Judicial Legitimacy? Theories, Variables, and Hypotheses A Judicial Legitimacy B Support for Democratic Institutions and Processes 1 Confidence in Institutions 2 Support for the Rule of Law 3 Support for a Multi-Party System C Support for Democratic Values 1 Political Tolerance 2 Support for Individual Liberty D Political Knowledge E Political Ideology 1 Self-Reported Political Ideology 2 Support for Same-Sex Marriage F Demographic Factors 1 Age 2 Gender 3 Education 4 Born in Australia III Research Methodology: Administering the Survey and Details on Participants IV Results V Conclusion I INTRODUCTION

Judicial legitimacy has been described as a bundle of 'factors justifying ... public trust'. (1) Public confidence in the courts is a contributing factor to judicial legitimacy, but is narrower in scope. (2) Judicial legitimacy is often equated with a court having diffuse support, which differs from specific support. Specific support is issue-specific and depends on whether one approves of the outcome in a specific case; however, diffuse support depends on having a reservoir of ... goodwill' that runs deeper than whether the outcome in a specific case is favourable. (3) Tom Tyler describes legitimacy as

a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just. Because of legitimacy, people feel that they ought to defer to decisions and rules, following them voluntarily out of obligation rather than out of fear of punishment or anticipation of reward.... Being able to gain voluntary acquiescence from most people, most of the time, due to their sense of obligation increases effectiveness during periods of scarcity, crisis, and conflict. (4) Judicial legitimacy matters when decisions are controversial or unpopular. When courts make decisions of which everyone approves, legitimacy is not needed. However, when courts make decisions that are unpopular or with which people disagree, it is important that they enjoy legitimacy among those who disagree. In this sense, as James Gibson describes it, 'legitimacy is for losers'. (5) In such circumstances, it is important that courts have 'a reservoir of goodwill' upon which they can draw to implement decisions that are disagreeable. (6)

Judicial legitimacy is important because it ensures that the public accepts decisions by courts, despite judges having no electoral mandate. While legitimacy is conferred on the Parliament via electoral mandate, judges are unelected. Similarly to the United States, the power of judicial review in Australia is not expressed in the Constitution. (7) Rather, the power of the High Court of Australia to exercise judicial review to uphold the Constitution is mainly derived from the principle established by the United States Supreme Court in Marbury v Madison, (8) which the framers of the Australian Constitution took for granted. (9) Robert Woods notes: 'A court may assert that it is competent to exercise judicial review [based on Marbury v Madison], but that assertion is meaningful only to the extent that other powerful political actors acquiesce to it.' (10)

Moreover, the High Court is vulnerable to public opposition to its decisions because it regularly decides cases against the preferences of the majority of the population. On the occasion of his swearing in as Chief Justice of the High Court, Sir Gerard Brennan stated:

Judicial method is not concerned with the ephemeral opinions of the community. The law is most needed when it stands against popular attitudes sometimes engendered by those with power and when it protects the unpopular against the clamour of the multitude. (11) Russell Smyth and Vinod Mishra found that, for extended periods (1917-29, 1932-41, 1949-72, and 1983-96) throughout the High Court's past, it has been counter-majoritarian, where being counter-majoritarian is measured by the propensity to strike down legislation enacted by the current government (or a previous government of the same political persuasion). (12)

A few high-profile examples help to make the point. In the Australian Communist Party v Commonwealth ('Communist Party Case'), (13) the High Court ruled that the Communist Party Dissolution Act 1950 (Cth) was invalid, (14) despite an Australian Gallup Poll in May 1950 finding that 80% of voters favoured banning the Communist Party (and that poll was carried out one month before Australia entered the Korean War). (15) In Tait v The Queen, (16) the Premier of Victoria, Sir Henry Bolte, attempted to rush through the execution of Robert Tait prior to the Mental Health Act 1959 (Vic) coming into force the next day, which, it was thought, would make the execution impossible. (17) Bolte's motives were political, given that there was general popular support for capital punishment at the time. (18) Dixon CJ adjourned the case, granting a stay of execution 'entirely so that the authority of this Court may be maintained'. (19) When the Solicitor-General, Sir Henry Winneke, felt unable to give an assurance that the executive would not go ahead with the execution, the Court formally issued an injunction preventing the State government from executing Tait. (20)

More recently, during the Mason Court, a small number of controversial decisions (21) were heavily criticised by federal and state politicians on the basis that 'the Court exceeded its legitimate bounds by appropriating to itself a power to remake the law, particularly the Constitution'. (22) For example, McHugh J, who was a member of the Mason Court, suggested that recognition of an implied right to freedom of political speech amounted to the Court inserting a new s 129 into the Constitution. (23) As Paul Kildea and George Williams discuss, public responses to the most controversial decisions of the Mason Court were mixed; hence it is not clear that the Court was acting against the preferences of the majority. (24) The 'political storm' generated by the more controversial decisions of the Mason Court and the vitriolic nature of the political attacks, (25) however, underpinned the importance of the Court having legitimacy among those who disagreed with the decisions.

In late 2017, the High Court (sitting as the Court of Disputed Returns) decided on the citizenship of seven Members of Parliament pursuant to s 44(i) of the Constitution. (26) These cases--and their results--stirred up debates concerning problems posed by s 44 and its interpretation by the High Court, (27) culminating with a parliamentary report urging a referendum and amendment of s 44. (28) How people perceive the Court's role in cases such as this, when they may not agree with the outcome, depends on the legitimacy of the Court or the reservoir of goodwill that the Court has established.

Alexander Hamilton famously described the judicial branch as the least dangerous, given that the legislature controls the money and the executive controls force, but the judiciary controls neither. (29) As Chief Justice Gleeson puts it, because the Court makes decisions that will not always be popular with the public, the Parliament, or the executive, among the branches of government, the judiciary is 'the most dependent upon habitual conformity to its decisions, on the part of the community and the other branches of government'. (30) If the Court lacks legitimacy, this makes it more vulnerable to attacks from politicians and media commentators who do not agree with its decisions. (31) Of course, here, legitimacy is not completely exogenous and can be undermined by constant political attack. Traditionally, it was the role of the Commonwealth Attorney-General to defend judges from political attacks when they occurred and promote understanding of the Court's decisions. (32) This function fell out of favour when Daryl Williams was Commonwealth Attorney-General. Williams refused to defend the Court's decisions against such political attacks, on the basis that it was not the role of the Attorney-General to do so. (33) The role of explaining the decisions of the Court, and maintaining diffuse support, is now largely left to the legal profession and the Court itself. (34) High Court judges seek to increase awareness through giving interviews and speeches, and through making the proceedings and judgments of the Court more accessible on its website. (35)

Given the significance of judicial legitimacy for the rule of law, it is important to understand the extent to which the courts are viewed as being legitimate, and the factors associated with differing levels of judicial legitimacy. A large literature exists on the determinants of the legitimacy of courts in the United States, (36) as well as select courts in other countries, such as the European Court of Justice (37) and the South African Constitutional Court. (38) There is also one multi-country study of the legitimacy of several final courts in Europe, Russia and the United States. (39) The related literature for Australian courts is scant. There is a small literature that examines public confidence in the criminal justice system, covering the 'criminal courts', 'police' and 'prisons'. These studies have found that confidence in the criminal justice system and sentencing is generally low in Australia, and lower than in other western nations. (40) Kildea and Williams examine public attitudes to major decisions of the Mason Court based on polling data, but do not explicitly address legitimacy. (41) Ingrid Nielsen and Russell Smyth examine public awareness of the High Court, based on responses from a nationally representative sample. (42) They motivate their research by pointing out that public awareness of the Court is important because it is expected to be correlated with judicial legitimacy, (43) but they do not measure legitimacy or examine its determinacy for the High Court. Sarah Murray, Tamara Tulich and...