THE STRENGTHS OF THE WEAKEST ARM[1]

 

Keynote address, Australian Bar Association Conference,

 

Florence, 2 July 2004.

 

The source of the notion that the judiciary is the weakest arm of government is Alexander Hamilton's The Federalist Papers. Writing in various New York newspapers under an assumed name between October 1787 and March 1788, Hamilton had taken up the task of convincing that State's Constitutional Convention that it should ratify the newly drafted United States Constitution. With that in mind, he identified a number of factors which he said "prove[d] incontestably that the judiciary is beyond comparison the weakest of the three departments of power"[2]. In contradistinction to the executive and the legislature, he said, the judiciary had "no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever". For that reason, the judiciary possessed, he said, not "force nor will but merely judgment" and ultimately had to "depend upon the aid of the executive arm even for the efficacy of its judgments"[3].

 

Hamilton's view concerning the judiciary being the weakest arm of government is somewhat surprising. Unlike his arch rival, Thomas Jefferson, who favoured a narrow view[4] of executive and judicial power and believed that political power should reside in the States, Hamilton believed in a powerful central government. Perhaps Hamilton's view of the judiciary was coloured by his opinion of the importance of the executive government. Although a highly successful lawyer by profession, he was a high ranking officer in the revolutionary army who became the nation's first Secretary of the Treasury and the creator of the Bank of America. He believed that the future of the United States would be best served by a strong central government and the development of manufacturing and military power. Hamilton "had a vision of American greatness" and throughout his career "battled with forces fearful of the concentrated political, economic and military power necessary to achieve that greatness"[5]. If George Washington was the saviour of the United States and Chief Justice Marshall its definer, then Hamilton was its builder, a point strikingly made by George Will when he wrote:

 

"There is an elegant memorial in Washington to Jefferson, but none to Hamilton. However, if you seek Hamilton's monument, look around. You are living in it. We honor Jefferson, but live in Hamilton's country." [6]

 

 

Alexander Hamilton laid the foundations for what became the United States superpower. He was more important to the building of the United States than Jefferson, although, until recently, historians have thought Jefferson the more important figure. Even politicians as diverse in their thinking as Franklin Roosevelt and Ronald Reagan have claimed to be Jefffersonians. I greatly admire Alexander Hamilton. But I think his assessment of the power of the judiciary was wrong and clearly so in a federation like Australia and the United States.

 

The reason that Hamilton underrated the strengths of the judiciary - particularly a federal judiciary - is that he overlooked, or perhaps more accurately, did not foresee three significant matters that falsified his assessment of its strengths. The first is the frequency with which the judiciary has been called on to exercise the power of judicial review and declare legislative and executive acts void and of no effect. The second is the importance of the social, economic and political issues that courts - particularly federal courts - must decide. The third is the underpinning of the judiciary's strength by public confidence in its integrity, impartiality and capacity.

 

The constitutional strengths of the weakest arm.

 

The first matter that Hamilton overlooked was the frequency and effect of judicial review. While emphasising the "natural feebleness of the judiciary" in the respects he identified, Hamilton did acknowledge its "superiority" to the legislature insofar as it could pronounce legislative acts void. That superiority was reflected, he said, in the axiom that "whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former"[7]. This axiom was most notably invoked by the Supreme Court of the United States in Marbury v Madison[8]. The framers of our own Constitution adopted it[9]. In Australian Communist Party v The Commonwealth Fullagar J said that "in our system the principle of Marbury v Madison is accepted as axiomatic"[10].

 

In Australia, where constitutionally entrenched rights and obligations are few, the notion that the judiciary is superior, in any way, to the legislature as an institution of social regulation might appear problematic. But constitutionally the Australian courts have and exercise the power to invalidate State and federal legislation. That the nation gives such power to unelected judges is testament to the strength of the judiciary's position in the Australian polity.

 

The most obvious example of this particular superiority of the judiciary occurs in any country, governed by a written Constitution, where the courts identify and enforce substantive constitutional rights of the people and, as a result, declare legislation invalid. The discernment of constitutional rights frequently leads to the relevant society being organised by reference to their existence. Sometimes, the exercise of judicial power in these cases even has societal consequences that democratically elected legislatures oppose. Decisions like Roe v Wade[11] in the United States dealing with abortion rights are the most recognisable instances of final courts, by identifying and applying substantive constitutional rights, effectively changing society in ways that legislatures simply could not and in many cases did not want to change it. In Roe, a majority of the Supreme Court held that state criminal abortion laws that had no regard to the stage of a mother's pregnancy violated the Due Process Clause of the Fourteenth Amendment. The majority interpreted the Amendment to protect the right to privacy, including a woman's qualified right to terminate her pregnancy, from state action[12].

 

Because the Supreme Court's conclusions in Roe v Wade were based on what the Court saw as inviolable constitutional rights, legislatures were effectively prevented from resolving the abortion issue in the United States[13]. Thus, the discernment, application and enforcement of constitutional limits on legislative power is entirely the province of the final court in the nation because "correction through legislative action is practically impossible"[14]. That is so even where it means that such final courts are effectively accorded a regulatory power which carries with it profound political, social and economic consequences. In 1949, the Privy Council observed that our Constitution frequently compels the High Court to resolve issues that are "not so much legal as political, social or economic" in nature[15]. Many commentators now assert that the High Court is "a political institution that makes many decisions which can and often do have an effect on the political life of the nation"[16].

 

Australia does not have a Bill of Rights. But our Constitution does contain a number of rights that may be invoked to invalidate legislation of the federal and State Parliaments. The best known is s92 of the Constitution. As a result of the High Court's interpretation of that section, s92 has played a major role in shaping the economic landscape of the nation. It prevented the nationalisation of the banking system[17], the prohibition on growers selling their fruit to interstate customers[18], the establishment of a monopoly government airline[19] and the preferential treatment of State railways over road hauliers[20] to mention but a few of its effects on State and federal legislative power and the national economy.

 

Section 117 of the Constitution does not confer rights but it allows interstate residents who are subjects of the Queen to ignore laws that discriminate against them on the ground of their interstate residence. As construed by the High Court in Street v Queensland Bar Association[21], s 117 enabled interstate lawyers to ignore State laws which prevented them from practising in that State. Similarly, the implied constitutional freedom of communication on political matters, first identified by the Court in Australian Capital Television Pty Ltd v The Commonwealth[22], does not confer individual rights. But it enabled media organisations to obtain findings that federal legislation prohibiting political advertising for particular periods was invalid. Justices of the High Court have also interpreted Chapter III of the Constitution as conferring rights that the federal parliament cannot impair such as the right to a fair trial[23].

 

Moreover, in interpreting the scope of the powers conferred on or withdrawn from the Commonwealth and the States, the High Court establishes constitutional boundaries that define what State and Federal legislatures can and cannot do. Australian society is, in turn, organised according to these boundaries. By invalidating or upholding enactments, and as a result of its methodology for interpreting the Constitution, the High Court has made many decisions that have profoundly affected the social, economic and political life of the nation.

 

The Engineers Case[24], for example, by insisting that the Constitution should be interpreted according to its natural and ordinary meaning and without resort to the doctrine of implied prohibitions or the immunity of State instrumentalities strengthened the powers of the Commonwealth and altered the nature of the Australian federation. The decisions in the Uniform Tax Cases[25] and the State Grants Case[26] made it certain, as Alfred Deakin had predicted, that the States would become financially tied to the chariot wheels of the Commonwealth. The High Court's decision in the excise cases culminating with Ha v New South Wales[27] reinforced that dependency. The decision of the Court in the Bank Nationalisation Case[28] had ramifications for the financial structure of the nation. It is difficult to believe that the Australian economy would have achieved its present strength and development if there had been only one Australian bank owned and controlled by the government of the Commonwealth. Equally, it is difficult to believe that Australia would have been as politically free a country as it is today if the High Court had upheld the validity of the legislation challenged in the Communist Party Case[29]. If that legislation had survived, its legacy must have influenced the way that we give effect to political rights and freedoms.

 

Thus, in countries where courts are routinely compelled to decide constitutional issues, the judiciary has a broad regulatory power that shapes the social, economic and political fabric of the country. By discerning and enforcing substantive constitutional rights and boundaries, those courts regulate the pluralist democracies of their countries in a manner that the legislature cannot.

 

The superiority of ultimate appellate courts over the legislature - development of the common law

 

Law-making in private law cases raising social, economic and sometimes political issues is the second factor that has strengthened the position of the judiciary. Cases concerning such issues frequently enable the judiciary to change the direction of society. While most of the work of the courts is concerned with "the disinterested application of known law"[30], from time to time courts must decide issues that are intensely political, economic and social as well as legal. The candour with which this is acknowledged is also displayed by recurring statements to the effect that judges engage in a law-making function through the principled development of the common law"[31]. As a result, courts - particularly ultimate appellate courts - frequently make law in cases with profound social, economic and political ramifications that influence the development of society. In a democracy, only an unelected institution of considerable strength can achieve such an effect.

 

The High Court of Australia is an ultimate appellate court as well as a purely constitutional court. It combines "distinctive federal functions with those of an ordinary Court of Appeal in matters of general law""[32]. It is not surprising, for instance, that a statistical analysis of the work of the High Court during the period May 1998 to December 2002 revealed that, in that four and a half year period, out of a total of 256 reported cases, the Court decided only 60 "constitutional" cases"[33]. Similarly, in 2003, only 16 of 73 cases could be described as "constitutional" in nature"[34].

 

The reality is that the High Court is regularly required to determine private law issues that the legislature has not explicitly or directly regulated, whether by choice, practical inability or neglect. When the Court does so, it frequently engages in a well-established function of making or developing the law, within principled constraints"[35]. In doing so, the High Court exercises a widely recognised and accepted authority to depart from longstanding precedent, whether its own"[36] or the previously applied authorities of overseas jurisdictions"[37]. Indeed, even those who take a conservative view of the Court's function recognise that, as "the keystone of the federal arch","[38] it is "entirely legitimate" for the High Court to change the law from time to time"[39]. For approaching 40 years, the House of Lords has explicitly acknowledged that it also has this power"[40]. So too has the Supreme Court of the United States[41]. What this means is that ultimate appellate courts like the High Court can alter the law substantively even without the imprimatur of explicit and orthodox constitutional doctrine[42]. That has happened in Australia, for instance, in cases involving tort[43], defamation[44] and evidence[45] in the recent past. It is not surprising therefore that litigants frequently ask the High Court to depart from one of its earlier decisions. To the extent that ultimate appellate courts carry out these functions, they exercise a "strength" that is integral to the realisation of pluralist democracy. As an analysis of the cases reveals, courts such as the High Court may achieve social change in contexts where legislatures cannot politically do so.

 

Last July, the High Court of Australia handed down a decision dealing with whether a couple who, as a consequence of medical negligence had become the parents of an unintended child, could seek an award of damages against the doctor for the cost of raising and maintaining the child[46]. By majority, the Court held for the parents against the doctor. One of the reasons given for the majority holding was that to deny recovery would be logically inconsistent with the existing and uncontested heads of recovery for the hospital and medical costs of the birth and for the attendant pain and suffering associated with it[47]. The Court's decision was followed by significant public comment, a great deal of it adverse to the positions adopted by the Justices in the majority[48]. Perhaps not surprisingly, that public commentary essentially focused on the emotive and cultural issues raised by the appeal rather than on the extent to which the majority's conclusion was compelled and informed by a process of logical legal reasoning[49]. Following this public reaction, the Justice and Other Legislation Amendment Act 2003 (Q) was passed by the Queensland legislature[50]. That Act, inter alia, amended the Civil Liability Act 2003 (Q) by preventing a court from awarding damages for the costs ordinarily associated with rearing or maintaining a child[51].

 

This illustration might suggest the powerlessness of ultimate appellate courts within contemporary representative democracies. That is, the epilogue to the High Court's decision in Cattanach v Melchior may be seen as revealing the impotence of the judiciary in resolving the significant controversies of the day. Such a view, however, entails an insufficiently sophisticated conception of the judicial contribution to pluralist democracy. In fact, the illustration is entirely consistent with the proposition that "[a]cts of judicial law-making have been known to set in motion a continuing process of reform"[52].

 

The judgment of the Supreme Court of the United States in 1954 in Brown v Board of Education[53] - concerning racial segregation - provides a further example. Commentators recognise that that decision and its progeny litigation produced hardly any relevant practical alteration in American race relations, but they also acknowledge that as a result of that decision "what Congress did beginning in 1964 brought massive change"[54]. For that reason, the Supreme Court's decision in Brown demonstrates that "judicial intervention" may "stimulate legislative action, thereby producing a democratic result"[55].

 

The catalytic role of ultimate appellate courts in this context reflects the reality that "[a]s a rule, the legislator, because of the pressure on parliamentary timetables, reacts only to insistent demands"[56]. The aftermath of both Brown and Cattanach reveal how decisions of ultimate appellate courts can compel legislators to change their priorities. But the strengths of the so-called weakest arm are most evident in situations where the decisions of appellate courts change society in ways that the legislature cannot or will not. In politically unprofitable areas - most characteristically involving groups which, or individuals who, lack political or economic strength - ultimate appellate courts cannot avoid their responsibility to decide cases that result in political, economic and social change[57].

 

Perhaps the most frequently cited example of this in Australia is the decision of the High Court in Mabo v Queensland (No 2)[58]. In 1967, 90 per cent of the Australian people voted for a constitutional amendment to allow the Commonwealth Parliament to enact "special" laws for the Aboriginal race[59]. Although the possibility of legislation providing for indigenous land rights became a live issue from that date, it was not until the Court's decision in Mabo that Australian law "recognize[d] a form of native title which, in the cases where it ha[d] not been extinguished, reflect[ed] the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands"[60]. It is now generally recognised that the High Court's decision in Mabo "forced the federal government to take legislative action in a field that it had largely avoided"[61]. In other words, the Court "could not sidestep the issue" even where politicians had[62].

 

The decision of the High Court in Brodie v Singleton Shire Council[63], reformulating the rules concerning the liability of councils for injuries caused by defective roads, is a further illustration of an ultimate appellate court being compelled to act as a consequence of legislative inaction. The judgment of Kirby J in that case noted that, although the legislature might have the primary role and responsibility "in reforming the common law" that fact did not "relieve this Court of its own responsibilities to repair clearly demonstrated defects of judge-made law"[64]. A majority of the Court held that the pre-existing state of authority "discredit[ed] the Australian legal system" because it "neither promote[d] the predictability of judicial decision nor facilitate[d] the giving of advice to settle or avoid litigation"[65]. For that reason, application of the otherwise sound policy of stare decisis - with its presumption of predictability - would have achieved little. To the contrary, once there was a justiciable controversy before the Court[66], it was compelled to change the law even where that alteration had profound economic, social and political consequences.

 

A significant aspect of the Court's reasoning in Brodie was that the "highway rule" - which derived its provenance from English decisions dating to the nineteenth century - would have anomalous application to contemporary Australian society[67]. The decision demonstrated what Sir Gerard Brennan described in 1976 as the "balance between the legal conservation of values from the past and the alteration of legal rules to accommodate new values"[68]. This balance was a necessary corollary of the judicial function because it was not clear that "research, drafting, persuasion of Ministers, and legislative time allocation [would] proceed at a pace which correspond[ed] with the quickly changing needs of contemporary society". Failure to proceed at that pace was considered unacceptable because "[u]nless the law [was] kept reasonably close behind the march of changing social values, it [would] lose public confidence"[69].

 

Sir Gerard made particular reference to the decisions of the House of Lords in Donoghue v Stevenson[70] and Hedley Byrne & Co. Ltd v Heller & Partners Ltd[71] in this context. Those decisions reflected the "sensitivity" of the courts to changing social requirements. Extra-contractual protection of consumers and the subsequent application of that duty to persons exercising professional skills, were recognised by the House of Lords to be in accordance with the expectations of English society as at 1932 and 1964 respectively. The fact that the doctrines initiated in those decisions have never seriously been challenged or reversed by legislatures is testament to the strengths accorded to ultimate appellate courts in pluralist democracies. In fact, decisions like Donoghue and Hedley Byrne provide empirical support for the notion that final courts often change societies in ways that legislatures approve but for political reasons or oversight do not initiate.

 

A contemporary illustration of the same point may be found in the very recent decision of the House of Lords in Campbell v MGN Limited[72] where the House of Lords upheld a claim for damages for invasion of privacy. Ms Campbell was a well-known fashion model who publicly but falsely stated that she did not use illegal drugs. The defendant published newspaper articles that revealed that she was, in fact, a drug addict who was receiving treatment for her addictions. They were accompanied by surreptitiously taken photographs of Ms Campbell outside a branch of Narcotics Anonymous. She conceded that publication of the fact that she was a drug addict was a matter of legitimate public comment because she had lied to the public. However, the House of Lords held that the publication of details of her treatment and the photographs constituted a breach of her right to privacy in her private life.

 

Statements made in judgments given by the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[73] indicate that a tort of invasion of privacy may exist in Australia. The High Court's reasoning in respect of this emergent common law right of privacy was necessarily restricted by the circumstances of the case because it was a corporation rather than a natural person who was invoking the right of privacy. Subsequently, in Grosse v Purvis[74], Senior Judge Skoien of the Queensland District Court awarded a significant sum ($178,000 with interest) to a natural person who claimed, inter alia, invasion of her common law right of privacy. In recognising the cause of action, his Honour said[75] that the decision of the High Court in Lenah Game Meats rejected the proposition that there was no enforceable common law right to privacy since the Court's earlier decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[76].

 

The decision in Grosse v Purvis reveals that, although privacy did not carry the day in Lenah Game Meats, the reasoning in that decision has led to a form of responsive social regulation which was not compelled by legislative intervention[77]. Although this function of the judiciary may not be broadly comprehended, its existence reflects the instrumental value that ultimate appellate courts have in contributing to the operation of pluralist democracies. More specifically, it reveals that political power within such democracies is more diffusely spread over the three arms of government than is generally recognised. The more orthodox understanding is that final courts in pluralist democracies are only accorded with political power to the extent that they constitutionally confine the activities of the legislature and the executive.

 

Public confidence in the judiciary

 

The establishment of public confidence in the integrity, impartiality and capacity of the judiciary is the third important factor that has strengthened the position of the judiciary. From time to time, individual judges and judgments are criticised - sometimes trenchantly - but overall the public has confidence in the judiciary as an institution. That must be so. Otherwise, chaos would long ago have overwhelmed the societies that make up the common law world. Because this public confidence exists, legislatures and executive officials cannot ignore the binding judgments of the judiciary. If they wish to overrule those judgments, they must do so by engaging the democratic process and enacting public legislation that is within the constitutional powers of the relevant legislature. In practice, judgments of the judiciary are virtually self-executing. True it is that in the last resort the enforcement of civil and criminal judgments is carried out by the executive government. But it would be truer to say that those judgments are enforced because the public, confident of the impartiality and integrity of the judiciary, demands that the judiciary's judgments be enforced.

 

Leaving aside a few racist politicians in the Deep South of the United States, I do not think any politician in the common law world in the last 150 years has dared to defy a final judgment of the ultimate court of the nation. Richard Nixon is said to have briefly contemplated defying the order of the Supreme Court to hand over the Watergate tapes. But he quickly realised that defiance of the Court would place him in a worse position than he already was. Franklin Roosevelt, dissatisfied with the judicial invalidation of much of his New Deal legislation, intended to pack the Supreme Court with judges more sympathetic to his policies. He gave up mainly because of hostile public opinion. In Australia, the Chifley and Menzies governments calmly accepted the invalidation of legislation giving effect to fundamental planks in their political platforms - the nationalisation of banks and the outlawing of communism respectively. The present federal government has recently accepted, no doubt with disappointment but without demur, the invalidation of legislation that it regarded as important - legislation designed to restrict asylum seekers having access to the courts. Moreover, year after year, State and federal governments freely pay out millions of dollars in damages to satisfy judgments given against them by the courts in claims they had hotly contested.

 

Without doubt, public confidence in the integrity, impartiality and capacity of the judiciary has strengthened the so-called weakest arm. The existence of this public confidence in the judiciary has severely undermined Hamilton's claim that the judiciary has to "depend upon the aid of the executive arm even for the efficacy of its judgments."

 

The advantages of judge made law

 

In a paper that I gave in 1987, drawing on an article by Professor Cappelletti[78], I said that law-making by judges arguably has a number of advantages over law-making by the legislature[79]. They were:

 

(1) the judiciary's law-making is potentially more flexible, more concrete, and more adaptable to unforeseeable individual situations than legislation;

 

(2) the judiciary is less vulnerable to demagogic and local or pressure group values and priorities;

 

(3) the judiciary can add to the overall representation of the political system by protecting groups that cannot gain access to the political process;

 

(4) the judiciary has a scholar's "insulation" which is "crucial in sorting out the enduring values of a society" and it is concerned "with the flesh and blood" of actual cases as opposed to the position of the legislator who deals "with abstract or dimly foreseen problems"[80];

 

(5) the judiciary's law-making has a real advantage in competition with legislation in that it works with concrete cases and generalises only after a long course of trial and error in the effort to work out a practical principle.

 

 

However, a recurring criticism of the judiciary in this context is that judges potentially undermine the majoritarian conception of democracy when they exercise a quasi-legislative function. In this respect, absolute judicial deference to the legislature is assumed to be the only way to preserve the essential democratic precept of majority rule. The answer to this criticism is that political scientists have identified several factors that demonstrate the falsity of the assumption that the will of the majority is expressed through the electoral process and enforced through the norm of legislative supremacy[81]. Weaknesses in the electoral system[82], popular disinterest in politics, the nature of political parties, the proliferation of specific interest groups, low voter turnout (where voting is not compulsory) and structural features of legislative institutions all undermine the unqualified assertion that legislative acts are the primary expression of the majority's will[83]. Consequently, the legislative and executive arms of government do not - cannot - always embody the will of those whom they govern. The paradigm of perfect representative democracy is therefore inaccurate[84]. Simple majoritarian concerns about judicial legitimacy cannot be substantiated.

 

Contemporary societies like Australia are better understood as pluralist democracies in which there is not a single source of regulatory power. The legislature, the executive and the judiciary should not be perceived in any necessarily hierarchical way because all are accountable directly or indirectly to the electorate. The legislature and the executive are accountable to the electorate directly through the institutions of representative and responsible government. The judiciary is indirectly accountable because the legislature has power to remove judges on the grounds of incapacity or proven misbehaviour. Each of these repositories of power has an instrumental and systemic role to play in the realisation of democracy. It is precisely this diffusion of political power among the institutions of government that gives our democracy its pluralist characteristic. The fact that the judiciary in Australia is accountable only in non-electoral ways does not undermine the validity of its contribution in this context. This is because the legitimacy of each institution within this pluralist conception must be determined by reference to "its instrumental value" in contributing to a democracy[85]. In turn, this "instrumental value" may be measured by the extent to which courts are practically compelled to regulate society where legislatures are not able or do not do so.

 

Thus, the judiciary has two important strengths in a pluralistic democratic society. First, the capacity to alter the common law to reflect contemporary values and assumptions. Second, the capacity to enforce constitutional rights and to determine the boundaries of legislative power in systems governed by written constitutions. In these cases, the decisions of the judiciary either directly change or, where the legislature has power to act, frequently cause the legislature to change the social, economic and political fabric of the nation.

 

Time has proved that Alexander Hamilton's vision of the role of the United States was correct. Time has also proved that his vision of the role of the judiciary was wrong. Given that the Constitution "is what the judges say it is"[86] and that the judiciary has the power to declare that acts of the legislature and executive, not authorised by the Constitution, are void, it is not easy to accept that Hamilton was correct when he said that the judiciary was "the weakest of the three departments of power". And, as I have sought to show, Hamilton was wrong when he said that the judiciary had no influence over the purse or the "direction either of the strength or of the wealth of society and can take no active resolution whatever".

 

[1] I am indebted to Alex De Costa, Research Officer in the Library of the High Court of Australia, for his assistance in preparing this paper.

 

[2] Hamilton, "Federalist No. 78" in Hamilton, Madison & Jay, The Federalist Papers (New American Library Edition, 1968) at 465-466. In this context, Hamilton cited Montesquieu's analysis of the three arms - "[o]f the three powers above mentioned, the judiciary is next to nothing": Spirit of Laws, vol 1 at 186.

 

[3] Hamilton, "Federalist No. 78" in Hamilton, Madison & Jay, The Federalist Papers (New American Library Edition, 1968) at 465. On this point, Lord Woolf has more recently observed that "in part, the justice system is the weakest arm of government because, in England, it is totally dependant on the executive for its resources: Lord Woolf, "Should the Media and the Judiciary be on Speaking Terms?" (Eighth RTÉ/UCD Law Faculty Lecture Dublin), 22 October 2003, at http://www.dca.gov.uk/judicial/speeches/lcj221003.htm viewed 1 July 2004.

 

[4] Knott, Alexander Hamilton & The Persistence of Myth (University Press of Kansas, 2002) at 5.

 

[5] Knott, Alexander Hamilton & The Persistence of Myth (University Press of Kansas, 2002) at 6-7.

 

[6] Will, Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy (New York: Free Press, 1992) at 167 in Knott, Alexander Hamilton & The Persistence of Myth (University Press of Kansas, 2002) at 6.

 

[7] Hamilton, "Federalist No. 78" in Hamilton, Madison & Jay, The Federalist Papers (New American Library Edition, 1968) at 466-468.

 

[8] 5 US 368 (1 Cranch 137) (1803). See also Farber, "The Importance of Being Final" (2003) 20 Constitutional Commentary 359.

 

[9] See Deakin, (1902) 8 Commonwealth Parliamentary Debates 10,967; and Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 79-252. As Professor Craig has pointed out, because the United Kingdom does not possess a single, written constituent document, "the courts have not arrogated to themselves the power to strike down primary legislation of the Westminster Parliament": Craig, "Constitutional and Non-Constitutional Review" (2001) 54 Current Legal Problems 147 at 155.

 

[10] (1951) 83 CLR 1 at 262. That statement was invoked once again in Attorney-General (WA) v Marquet. The Court said that, in Australia, "it is the courts, rather than the legislature itself, which have the function of finally deciding whether an Act is or is not within power": (2003) 78 ALJR 105 at 116 [66]; 202 ALR 233 at 248 per Gleeson CJ, Gummow, Hayne and Heydon JJ.

 

[11] 410 US 113 (1973).

 

[12] 410 US 113 at 154 (1973) per Blackmun J (with whom Burger CJ, Douglas, Brennan, Stewart, Marshall and Powell JJ joined).

 

[13] Proponents of the model of pluralist democracy in the United States cite the President's and the Senate's roles in appointing Justices to the Supreme Court as imposing an effective non-electoral means of accountability upon the Supreme Court: see Peretti, In Defense of a Political Court (1999) at 111-225.

 

[14] Payne v Tennessee 501 US 808 at 828 (1990) per Rehnquist CJ (with whom White, O'Connor, Scalia, Kennedy and Souter JJ joined).

 

[15] The Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 639.

 

[16] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 4.

 

[17] The Commonwealth v Bank of New South Wales (1949) 79 CLR 497.

 

[18] James v The Commonwealth (1936) 55 CLR 1.

 

[19] Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29.

 

[20] Hughes & Vale Pty Ltd v New South Wales (1954) 93 CLR 1.

 

[21] (1989) 168 CLR 461.

 

[22] (1992) 177 CLR 106.

 

[23] Dietrich v The Queen (1992) 177 CLR 292 at 326, 362; Kruger v Commonwealth (1997) 190 CLR 1 at 63, 112. See also McHugh, "Does Chapter III of the Constitution protect substantive as well as procedural rights?' (2001) 21 Aust Bar Rev 235 and Spigelman, "The truth can cost too much: The principle of a fair trial" (2004) 78 ALJ 29 at 32-33.

 

[24] Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129.

 

[25] South Australia v The Commonwealth (1942) 65 CLR 373; Victoria v The Commonwealth (1957) 99 CLR 575.

 

[26] Victoria v The Commonwealth (1926) 38 CLR 399.

 

[27] (1997) 189 CLR 465.

 

[28] The Commonwealth v Bank of New South Wales (1949) 79 CLR 497.

 

[29] Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

 

[30] Devlin, The Judge (OUP, 1979) at 3.

 

[31] McHugh, "The Judicial Method" (1999) 73 ALJ 37; McHugh, "The Law-making Function of the Judicial Process" (1988) 62 ALJ 15 (Part I), 116 (Part II).

 

[32] Stevens and Williams, "A Supreme Court for the United Kingdom? A view from the High Court of Australia" (2004) 24 Legal Studies 188 at 191.

 

[33] Lynch, "The Gleeson Court on Constitutional Law: An Empirical Analysis" (2003) 26 UNSWLJ 32 at 42-43 (Tables A (I), A(II)).

 

[34] Lynch and Williams, "The High Court on Constitutional Law: The 2003 Statistics" (Paper delivered at the 2004 Constitutional Law Conference, http://www.gtcentre.unsw.edu.au/2003-High-Court-Statistics.doc viewed 1 July 2004) (Table A).

 

[35] McHugh, "The Judicial Method" (1999) 73 ALJ 37.

 

[36] McKinney v The Queen (1991) 171 CLR 468 at 481 per Brennan J; Baker v Campbell (1983) 153 CLR 52 at 102-104 per Brennan J; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ, at 450-452 per Brennan J.

 

[37] See for example, Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5 which effectively overruled Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390.

 

[38] Deakin, Commonwealth Parliamentary Debates 8 (1902) 10,967.

 

[39] Heydon, "Judicial Activism and the Death of the Rule of Law" (2003) Aust Bar Rev 110 at 115-116. Following Sir Owen Dixon, his Honour asserted that: "When new cases arose, existing principles could be extended to deal with them, or limited if their application to the new cases was unsatisfactory. As business or technical conditions changed, the law could be moulded to meet them. As inconveniences came to light, they could be overcome by modifications." See also Hayne, "Letting Justice Be Done Without the Heavens Falling", (2001) 27 Monash University Law Review 12 at 18-20.

 

[40] Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

 

[41] In Payne v Tennessee 501 US 808 (1991), the Supreme Court stated that "[s]tare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision" at 828 per Rehnquist CJ (with whom White, O'Connor, Scalia, Kennedy and Souter JJ joined). See also Helvering v Hallock 309 US 106 at 119 (1940).

 

[42] Parker v The Queen (1963) 111 CLR 610 at 632.

 

[43] Brodie v Singleton Shire Council (2001) 206 CLR 512.

 

[44] Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5.

 

[45] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

 

[46] Cattanach v Melchior (2003) 77 ALJR 1312; 199 ALR 131.

 

[47] Cattanach v Melchior (2003) 77 ALJR 1312 at 1331; 199 ALR 131 at 157 per McHugh and Gummow JJ.

 

[48] See Shanahan, "A child should never be seen as damage", The Age, 22 July 2003, 11; Bolt, "Birth a wonder, not damage", The Herald Sun, 21 July 2003, 19; Duffy, "Putting a price on the gift of life", The Daily Telegraph, 19 July 2003, 16; Haslem & Videnieks, "What price a child", The Australian, 18 July 2003, 9; Banham & Dasey, "Fury over the 'DVD player' kid", The Sydney Morning Herald, 18 July 2003, 1; Pollard & Wyld, "Doctors at a premium in the litigation era", The Sydney Morning Herald, 12 August 2003, 1.

 

[49] See particularly Albrechtsen, "A boy judged in the balance", The Australian, 23 July 2003, 1.

 

[50] It was assented to on 6 November 2003.

 

[51] Justice and Other Legislation Amendment Act 2003 (Qld), ss39-41.

 

[52] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I), 116 (Part II) at 124.

 

[53] 347 US 483 (1954).

 

[54] See more recently Cassel, "Brown v Board of Education as Social and Political History" at http://writ.findlaw.com/books/reviews/20040604_cassel.html viewed 1 July 2004; Lazarus, "Evaluating Brown v Board of Education on its Fiftieth Anniversary" at http://writ.findlaw.com/lazarus/20040429.html viewed 1 July 2004.

 

[55] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I), 116 (Part II) at 124.

 

[56] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I), 116 (Part II) at 123.

 

[57] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I), 116 (Part II) at 123.

 

[58] (1992) 175 CLR 1.

 

[59] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 28.

 

[60] (1992) 175 CLR 1 at 15 per Mason CJ and McHugh J. See Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 28-31.

 

[61] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 36.

 

[62] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 37.

 

[63] (2001) 206 CLR 512.

 

[64] (2001) 206 CLR 512 at 594.

 

[65] (2001) 206 CLR 512 at 561, per Gaudron, McHugh and Gummow JJ.

 

[66] See Abebe v Commonwealth (1999) 197 CLR 510 at 533 [46] per Gleeson CJ and McHugh J; at 570 [164] per Gummow and Hayne JJ; In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 508-509 per Mason J (with whom Stephen J agreed); Fencott v Muller (1983) 152 CLR 570 at 606-608 per Mason, Murphy, Brennan and Deane JJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 278 per Gibbs CJ, at 290 per Mason, Brennan and Deane JJ; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 316 per Brennan J.

 

[67] (2001) 206 CLR 512 at 543-546, per Gaudron, McHugh and Gummow JJ.

 

[68] Brennan, "Commentary: Who Controls the Law in Australia?" in Australian Lawyers and Social Change (1976) at 146.

 

[69] The subsequent legislative response to Brodie is recorded in Spigelman, "Negligence and insurance premiums: Recent changes in Australian law" (2003) 11 TLJ 291 at 308-309.

 

[70] [1932] AC 562.

 

[71] [1964] AC 465.

 

[72] [2004] UKHL 22.

 

[73] (2001) 208 CLR 199.

 

[74] (2003) Aust Torts Reports 81-706.

 

[75] (2003) Aust Torts Reports 81-706 at [424-430].

 

[76] (1937) 58 CLR 479.

 

[77] See Telford, "Gross v Purvis: its place in the common law of privacy" (2003) 10(4) Privacy Law and Policy Reporter 66.

 

[78] "The Law-making Power of the Judge And Its Limits: A Comparative Analysis" (1981) 8 Mon LR 15 at 47-56.

 

[79] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I), 116 (Part II) at 117.

 

[80] Bickel, The Least dangerous Branch (1962) at 25-26 in Cappelletti, "The Law-making Power of the Judge And Its Limits: A Comparative Analysis" (1981) 8 Mon LR 15 at 56.

 

[81] See Peretti, In Defense of a Political Court (1999) at 192-198.

 

[82] Dahl, A Preface to Democratic Theory (Uni of Chicago Press, 1956) at 125-131.

 

[83] Peretti, In Defense of a Political Court (1999) at 192-198.

 

[84] McHugh, "The Law-making Function of the Judicial Process", (1988) 62 ALJ 15 (Part I) 116 (Part II) at 123.

 

[85] Peretti, In Defense of a Political Court (1999) at 190.

 

[86] Charles Evans Hughes, Speech at Elmira, NY, 3 May 1907 in Addresses and Papers of Charles Evans Hughes (1908) 133 at 139. And see his explanation in Danelski & Tulchin, The Autobiographical Notes of Charles Evans Hughes (1973) at 143-144.