Celebrating the High Court's Centenary

An address by former chief justice of the High Court, Sir Anthony Mason to the conference dinner which marked the Centenary of the Australian High Court.

Centenary of the High Court Conference, Sydney
Friday, 21 February 2003

Conference organised by Professor George Williams of the Gilbert + Tobin Centre for Public Law at the University of NSW

It is a pleasure to speak at this Dinner on the subject of the centenary of the High Court of Australia. Since I became a law student in 1946 until I retired from the High Court in 1995, the Court was the focus of my life.

In earlier days, the Court had a stronger Melbourne composition than it has had in more recent decades. Only in later times has it been called the High Court of New South Wales. When I appeared as counsel for Browne and Fitzpatrick, contemnors of Parliament, in the High Court in Adelaide in 1955, the Court was customarily described there as 'The Wise Men from the East'. The Court then consisted of Justices from the three Eastern States.

The edge of sarcasm in the description reflected two imagined slights to South Australia. One was the non-appointment to the original High Court of Sir Samuel Way, Chief Justice of South Australia who was a baronet and Privy Councillor, and perhaps the only Privy Councillor among the Australian colonial judges at the turn of the century. Deakin made a subsequent offer to appoint Way in 1906 when he was over 70. It was simply a gesture and was refused. The other perceived slight was the non-appointment of Mr Frank Villeneuve Smith QC, who was for many years South Australia's leading counsel. The Oxford Companion on the High Court tells us that he was descended from Nelson's French opponent at the Battle of Trafalgar, Admiral Villeneuve.

The currency of 'The Wise Men from the East' did not survive Sir Ronald's appointment, let alone the later ascension of St Mary. When I was appointed in 1972, it was the convention to appoint High Court Justices as Privy Councillors. I did not become a beneficiary of this practice. Initially it was because Justice Murphy was next in line after me.

London would not have wished to expose itself to the possibility of appointing Justice Murphy to the Privy Council. There would have been apprehensions that he might accept the appointment. There were perhaps even greater apprehensions that he would reject it. So it was desirable to have me standing in the queue ahead of Justice Murphy. At a later stage, in 1981, when Sir Harry Gibbs was Chief Justice, an approach was made through him to me. By then the appeal from the High Court to the Privy Council had gone and the dual right of appeal from the Supreme Court of the States to the High Court and to the Privy Council had become a real problem. So I asked Sir Harry to refer it to all the Justices for consideration. After discussion, a majority, including myself, took the view that I should decline the approach.

My view was that it was no longer appropriate for members of the High Court to serve on both the High Court and the Privy Council. The High Court had become responsible for finally declaring the law for Australia and it was undesirable that this responsibility should be qualified in any way by our participating in Privy Council appeals, when the Privy Council was still entertaining Australian appeals.

Since leaving the High Court, I have been sitting in exotic jurisdictions where people have been addressing me as 'my Lord President', 'my Lord' and 'Your Lordship'. This is a heady experience, as Justice Michael Kirby will attest, and is calculated to persuade me to refuse to follow decisions of the High Court of Australia in which I have not participated. So far I have not succumbed to this temptation.

While Sir Robin Cooke and I were sitting together on the Supreme Court of Fiji, Sir Robin became a real Lord.
Before his elevation, his signature on the Court judgments was simply 'Robin Cooke'. After his elevation to the House of Lords, his signature was transmogrified into 'Cooke of Thorndon'.

I pointed this out to Sir Gerard Brennan who had joined us on the Fiji Court. I asked him whether I should change my judgment signature from unadorned 'A.F. Mason' to 'Mason of Mosman', Sir Gerard pondered deeply for a moment and said 'No. They will think you are a used car dealer'. I have not forgiven Sir Gerard for this comment.

In 1967 I appeared against Keith Aickin in BHP v Commissioner of Taxation in Melbourne before Justice Kitto. The hearing was interrupted by noisy building operations on an adjacent site where a telephone exchange was to be built for the Commonwealth. On the Judge's instructions, accompanied by Keith Aickin, I went on to the site, as Solicitor-General, to tell the Site Manager to desist.

Working on the site was a gentleman who told me, in a flurry of obscenities, that the Judge and I could go jump in the lake. It was a lake of a kind that I had not and still have not encountered.In reporting back to the Judge, I attributed to the Site Manager a sanitised and more civilised version of what he had said. In the meantime, the Judge had been reading a very recent judgment of lord Denning. The Judge made it clear to us that he disapproved of the judgment and its author in the strongest terms.

He then ordered that the Site Manager be brought into Court and threatened him with dire consequences if he did not desist. For a fleeting moment, I thought the Judge had mistaken the Site Manager for lord Denning.

Sir Frank wrote a powerful advocate's judgment, emotionally as well as intellectually committed to his point of view. Sir Owen Dixon, on the other hand, exhibited an almost Olympian detachment, threading an intricate path through what otherwise seemed to be an impenetrable jungle. Beyond any question, he was and remains Australia's finest lawyer and was largely responsible for the High Court's high reputation in the United Kingdom. But that does not mean that he was infallible or that we need to pick over his words just as the ancient augurs sought divine inspiration from examining the entrails of a sacrificial animal.

Of the Court itself, there is much one could say. The Court began and continued for a long time to follow the House of lords model and to deliver individual judgments. With the arrival of Sir Owen Dixon, joint judgments became more common and even more so when he became Chief Justice, such was his influence with his colleagues.

My own view has been that the Court should deliver joint or majority judgments, if they can be achieved. While I was Chief Justice, we made a more concerted effort to achieve that result, particularly by inviting one of our number to write an initial judgment or draft. That practice had some success but the degree of success was less than we had hoped.

There were various reasons for this. Among the reasons were disagreements among the members of the Court about the role of the Court and about approaches to constitutional interpretation. These differences are to be seen in the judgments. Similar differences have also been reflected in judgments of the Supreme Court of the United States in the past and more recently, as Justice Scalia has acknowledged, when he claimed that his colleagues were unwilling to do battle with him on his terms. One can hardly blame them.

You cannot impose a regime of joint judgments on judges who hold conflicting views. Judicial integrity cannot be compromised. For many years, the Supreme Court of the United States maintained an uneasy convention sustaining one majority and one minority opinion, but eventually the convention broke down.

Of the High Court's performance, what can we say towards the end of 100 years? I have no doubt that, among our national institutions, the Court's standing and reputation are very high indeed. How do you evaluate a court's performance? Alfred Deakin's expectations of the Court were so high that it was always going to be difficult to achieve them. But if you look at the role of the Court as he saw it, you would have to say that his vision has been realised in a number of significant respects. Despite the early rumblings of State Supreme Court Judges.

Supreme Court Judges always rumble as Chief Justice Spigelman will tell you the early Court won them over by the quality of its work. Then the early Court asserted its authority over the interpretation of the Constitution when the Privy Council sought to exceed its permitted role.

The Court, as Deakin predicted, has moulded the interpretation of the Constitution to meet changing circumstances. In 1920, as Windeyer J noted in the Payroll Tax Case,1 the Constitution was read in a new light Australians had become one people and Australia one country and national laws might meet national needs. As his Honour stated: 'In any country where the spirit of the common law holds sway the enunciation by the courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances.'

The Court, by its bold and innovative interpretation of the conciliation and arbitration power and its acceptance of paper disputes, enabled the Conciliation and Arbitration Court and later the Commission to make awards setting industrial terms and conditions which governed employment in particular industries. Likewise, by an expansive interpretation of the corporations power, the Court enabled the Commonwealth to regulate corporations and their activities.

The arbitration power and section 92 were the principal constitutional battlefields for most of the century. But fashions in litigation, as with clothes, change. The big arbitration challenges are now history while Cole v Whitfield put section 92 to sleep. But, like Cinderella, it may awake. On the other hand, Chapter III is alive and, dare I say it, teeming with implications. One is careful not to use that word in polite company, so distasteful are its overtones. So, I apologise if I have caused offence.

Some point to blips on the radar screen the narrowness of the Incorporation decision on the corporations power, the death of co-operative federalism, the destruction of cross-vesting and the impenetrability of the Hughes decision, to mention only more recent decisions. But they are only blips, if even that. In the final balance the High Court has enabled the Constitution to work effectively 100 years after it was brought into existence.

Even if this result was achieved at a price an expansion in Commonwealth power this was inevitable. The adoption of literalism and the rejection of the constitutional implications and doctrines that protected the States inevitably promoted the expansion of effective Commonwealth power.

One area in which the Court has certainly been successful is in the important area of criminal law. Over the years, the Court's record in this area has been distinctly superior to that of the House of Lords, despite the vehemence of McHugh J's dissent in Dyers v The Queen the recent right of silence case. He said of the majority that it 'wields the anathema'. At first, I thought he meant 'wields the assegai', but clearly he did not.

The Court's reputation in Australia has always been reinforced by the fact that appointment to the Court has been greatly prized. Few of Australia's leading lawyers have declined appointment to the Court. And more so than in most other major common law jurisdictions, the Justices of the Court have provided the lead in developing and refining the law. This ought to change but there is not much sign of it.

What of the future?

What are the major challenges and questions that face the High Court?

First, there is the burden of work, notably the increasing number of special leave applications. Even so, the number of these applications is significantly less than the number with which the Supreme Court of Canada has to deal and very much less than the number of certiorari petitions in the Supreme Court of the United States. The problem for the High Court, however, is accentuated by the legislation which restricts access to the Federal Court in judicial review cases, thereby imposing an oppressive and inappropriate burden on the High Court. A very recent decision on privative clauses may alleviate this problem.

Secondly, there is the matter of judicial independence. Strong political criticism of the Courts, the absence of effective means of dealing with it and the Attorney's practice of conducting private interviews with candidates for appointment to judicial office, particularly the High Court, will be matters of continuing interest. If it is necessary for an Attorney to interview prospective candidates, then it may be necessary to publish the interviews in order to ensure that legitimate boundaries are not transgressed. That raises the question: 'Why is an interview by the Attorney-General necessary?' Why could not such an interview be conducted by a departmental officer if it is simply directed to the candidate's availability and the blamelessness of the candidate's past record?

In a sense, to ask this question is to skirt the real issue. The real issue is whether an Attorney or a government is entitled to seek to ascertain from a candidate his view of the judicial function and what it entails. In my opinion, an Attorney is entitled to seek that information but is not entitled to ask how the candidate would decide particular cases or questions.

It will not escape those of you who have witnessed on television or read a transcript of a confirmation hearing before the Senate Judiciary Committee in the United States that what I have just said could serve as a description of what in fact happens there. The candidates refuse to state how they would decide a particular case or question. There are obvious problems in this approach which I won't explore.

There is the risk of crossing the boundary between legitimate and illegitimate inquiry. Inquiry might lead to an Attorney being told just what he wanted to hear and it might tend to fence in the future judge.

It needs to be understood that a significant percentage of judges take up judicial office without having developed a fully integrated judicial philosophy. High Court Justices are not exceptions to this generalisation. Some perhaps a surprising number develop a judicial philosophy and a more sophisticated understanding of the Constitution 'on the job', so to speak.

Whatever their previous experience, experience on the High Court is bound to be enlightening and they must be free to act and decide in the light of that experience. I remember attending a New Zealand Law Convention some 10 or 12 years ago. There was a session on judicial appointments. The two principal speakers were Chief Justice Eichelbaum (in person) and Justice Scalia (on a wide angle screen beamed in from Washington). He was sitting at his desk in the Supreme Court, looking rather like a judicial prize fighter waiting for the opening bell. Sir Thomas Eichelbaum landed the first blow. He said he had never known a case in New Zealand in which political considerations had entered into a judicial appointment. Justice Scalia counter-attacked in typical style and responded that, in the United States, he had never known a case in which political considerations had not entered into the appointment.

Governments tend to look at most appointments through a political lens. Despite all the mantra about appointing the best lawyers and I don't suggest this is insincere judicial appointments are no exception. If you are a politician, it is not difficult to convince yourself that a lawyer who fits your description, whatever it may be, is the best lawyer. If you are a lawyer, you don't need to convince yourself you just look in the mirror.

The third question, a very important one, concerns judicial methodology. Some four years ago I remarked that it was too early to say whether a strong pattern of judicial decision-making had emerged in the Court since I left it. That is no longer so. It is now clear enough that there has been a return to legalism, even a return to Sir Owen Dixon's view of judicial method. It is an incomplete and inadequate approach to judicial methodology.

It conceals rather than reveals the reasoning process. While this may divert attention away from what are the more debatable aspects of judicial reasoning, thereby possibly lessening the prospect of criticism, the judicial obligation is to state the reasons and that means to state them fully. This form of legalism is not an approach considered acceptable by other major common law jurisdictions. Justice Scalia of the United States Supreme Court may stand apart from this generalisation. But the thesis by which he stands or falls is originalism rather than legalism.

In 1997, Lord Bingham of Cornhill, England's Senior Law Lord, described legalism as having little support today. Perhaps his Lordship's knowledge of Australia was deficient. He went on to say of the modern judges - 'They know from experience that the cases which come before them do not in the main turn on sections of statutes which are plain and unambiguous in their meaning. They know from experience... that the cases they have to decide involve points which are not the subject of previous decisions, or are the subject of conflicting decisions or raise questions of statutory interpretation which apparently involve general lacunae or ambiguities. They know, and the higher the Court the more right they are, that decisions involve issues of policy.'

If the Court's methodology differs from that of other major common law jurisdictions, then it may well affect the relationship between the law as judges declare it here and how it is declared elsewhere. Not that I support a universal uniform common law. Far from it. But it is hard to accept that differences which are purely doctrinal should always be decisive. One has to make allowances for precedent, history and the way in which the law has developed in one's own jurisdiction. But then we are talking of differences which are not merely doctrinal Law, whether made by judges or legislators, must be adapted to the needs of society. That must be the ultimate criterion by which 'good law' is differentiated from 'bad law'.

One other point I should make. It is a serious mistake to regard Alfred Deakin's frequently repeated statement 'Federalism is legalism' as an endorsement of legalism as a judicial methodology. This statement was made in a context in which Deakin was fighting against strong opposition for the establishment of a powerful High Court of five Justices, a fight which he lost in 1903. In this context, he was pointing out that federal disputes would generate important legal questions which would require resolution by a very strong Court. By 'legalism' he meant the importance of the law in resolving those legal questions or, as Professor Zines has put it, 'the predominance of the Judiciary in the Constitution and the prevalence of a spirit of legality among the people'. Clearly, he was not referring to judicial methodology. Indeed, if you look to the language he employed in his masterly speech of 3 1/4 hours on the second reading of the Judiciary Bill, when he described the role of the High Court, a speech which attracted the lavish praise of his friend, the artist Tom Roberts, it was not the language of legalism.

Rather, it was what Canadian lawyers would call 'living tree' language.

I make one concluding comment. When Sir Robin Cooke retired as President of the New Zealand Court of Appeal, the title of the conference held in his honour was 'The Struggle for Simplicity'.

With one possible exception, I cannot imagine that it would occur to anyone to so entitle a conference associated with any Justice of the High Court of Australia, past or present. The one exception is the present Chief Justice. The clarity of his judgments shines out through layers of complexity. Clarity is not a synonym for simplicity but it comes close.