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Speeches
AUSTRALIAN
BAR ASSOCIATION CONFERENCE
NEW
YORK, 2 JULY, 2000
JUDICIAL
LEGITIMACY
MURRAY
GLEESON*
Political legitimacy is a familiar concept.
It is the foundation of community acceptance of authority.
The existence of such legitimacy is sometimes contentious,
but, where it exists, it secures general obedience to
laws even though they do not have universal approval.
It is the factor which transforms the will of an electoral
majority into a binding rule which the community generally
will accept, if not cheerfully, at least as a matter
of civic responsibility.
Democracy does not involve the assumption that
the wishes or interests of the majority must always
prevail over those of minorities. A proper concern
for human rights requires that laws, and the exercise
of power, should respect minority groups. A decent
regard for those who are in a minority in some respects,
or on some issues, is for the benefit of society generally.
In purely utilitarian terms, enlightened self-interest
dictates that those in a majority on one issue ought
to respect the legitimate interests of the minority,
if only because there will be other issues on which
they themselves will be in a minority. A weakness
of some human rights discourse is that it attributes
permanent minority status to particular categories of
people, as though we live in a single-issue society.
A measure of the quality of a civil society is the respect
which is shown for minority views and interests.
Even so, laws are generally obeyed, and the power of
people in authority is generally accepted, on the understanding
that they represent the democratically expressed will
of the community. It is political legitimacy which
sustains governmental power, and it is the need for
such legitimacy which sets the limits of governmental
authority.
Questions of judicial legitimacy also arise.
Like parliamentarians, judges make decisions which,
in the interests of civil order, have to be accepted,
even if they are not popular. Since court cases
usually have at least one losing party, almost all judicial
decisions adversely affect somebody. Some offend
large sections of the community, or powerful and vocal
interest groups. What ultimately secures their
acceptance is not their wisdom, as to which there may
be strong disagreement, but their legitimacy.
How are the boundaries of judicial legitimacy
established?
Judicial power, which involves the capacity to
administer criminal justice, and to make binding decisions
in civil disputes between citizens, or between a citizen
and a government, is held on trust. It is an express
trust, the conditions of which are stated in the commission
of a judge or magistrate, and the terms of the judicial
oath.
The direct legal source of the power exercised
by a judge is statutory. Commissions are issued
to Australian judges by the executive government under
authority conferred by an Act of Parliament. The
executive government which appoints a judge is responsible
to a parliament. The will of the people, expressed
through Parliament, is the foundation of judicial power.
If one looks beyond the direct source of judicial authority
to its ultimate constitutional foundation, the same
answer follows. When, in 1902, Alfred Deakin,
then Commonwealth Attorney General, introduced into
the Federal Parliament a Bill for the Judiciary Act,
he was required to meet objections that it was unnecessary
to establish a High Court of Australia, at least at
that early stage in the history of the Federation.
He answered by making the argument that, although s
71 of the Constitution, which mandated the establishment
of the High Court, did not fix a time within which that
was to occur, the Constitution was not merely an Act
of the Imperial Parliament, but was, more significantly,
an expression of the will of the Australian people.
He said:[1]
“The
High Court exists to protect the Constitution against
assaults. It exists because our Constitution,
although an Imperial Act, has a dual parentage.
It proceeds from the people of the whole continent.
It is one of the institutions which the people of
Australia, when they accepted the Constitution, required
to be established for the purpose of ensuring that
there should not be a departure from the bond into
which they thereby entered for themselves and for
posterity. This Constitution is not the creation of
our State Parliaments only, neither is it the creation
of the Imperial Parliament only. It draws its
authority directly from the electors of the Commonwealth,
and it is as their chosen and declared agent that
the High Court finds its place in the Constitution
which they accepted.”
To a lawyer, the characterisation of the High
Court as the agent of the Australian people, entrusted
with the responsibility of ensuring observance of the
Federal compact, signifies the fiduciary capacity in
which it exercises its powers.
Judges are appointed to administer justice according
to law, and for most of them, in their day to day activities,
their duty is clear. The rules, whether of common
law or statute, to be applied to the facts as honestly
found, are fairly readily ascertained. The capacity
of an individual to make an impartial determination
of the facts, and to understand and conscientiously
apply the law, is the primary requirement of fitness
for judicial office. Many of the laws to be applied
by judges give them a discretion, and, within the limits
of the principles governing the exercise of such discretion,
they will find that they have the capacity, and sometimes
the obligation, to exercise qualities of judgment, compassion,
human understanding and fairness. Our laws were
not made to be administered by computers, and judges
have ample scope for exercising qualities of wisdom
and understanding without compromising their integrity
or their impartiality. Ultimately, however, in
the administration of any law, there comes a point beyond
which discretion cannot travel. At this point,
if a judge is unable in good conscience to implement
the law, he or she may resign. There may be no
other course properly available. Judges whose
authority comes from the will of the people, and who
exercise authority upon trust that they will administer
justice according to law, have no right to subvert the
law because they disagree with a particular rule.
No judge has a choice between implementing the law and
disobeying it.
This principle is reflected in the provisions
of the Australian Constitution. Covering clause
5 provides that the Constitution, and all laws made
by the Parliament of the Commonwealth under the Constitution,
shall be binding “on the courts, judges, and people
of every State and of every part of the Commonwealth”.
It is the binding force of the Constitution, as the
basic law, upon courts, that is the source of the power
which courts exercise when they review legislative and
executive action. This was the point made by Marshall
CJ, almost two hundred years ago, in Marbury v Madison[2].
The concluding paragraph of the judgment in that case
reads:
“Thus,
the particular phraseology of the constitution of
the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions,
that a law repugnant to the constitution is void;
and that courts, as well as other departments, are
bound by that instrument.”
The principle that courts are bound by the Constitution,
and all other laws, defines the relationship between
judges and the community. It is the condition
upon which judges and courts are invested with authority.
Like other members of the community, individual
judges will, on occasion, disapprove of some of the
laws enacted by Parliament. Provided their capacity
to administer the law impartially is not compromised,
they are free to criticise the law, and to propose change.
In fact, judges regularly point out defects in the law,
and make proposals for law reform. Many Australian
courts have established procedures for drawing to the
attention of Parliaments, and Law Reform Commissions,
suggestions for changes in the law. Judges are
often especially well placed to understand, and comment
upon the implications of, legislative measures.
The qualification earlier expressed, however, is important.
Impartiality is a condition upon which judges
are invested with authority. Judges are accorded
a measure of respect, and weight is given to what they
have to say, upon the faith of an understanding by the
community that to be judicial is to be impartial.
Judges, as citizens, have a right of free speech, and
there may be circumstances in which they have a duty
to speak out against what they regard as injustice.
But to deploy judicial authority in support of a cause
risks undermining the foundation upon which such authority
rests.
The principles of judicial legitimacy, which
sustain the acceptability of judicial authority and
decisions, are most easily seen at work in the context
of the day by day application of statutory rules and
settled legal principles. But legal principles
sometimes need to be changed or developed, and the meaning
of statutes is not always clear.
The methodology by which judges carry out their
function, in appropriate cases, of developing and refining
the principles of the common law, was the subject of
detailed examination by McHugh J in a paper delivered
to this Conference two years ago[3].
The views there expressed, with which I respectfully
agree, have an important bearing on the legitimacy of
the judicial process. I simply refer to them,
without repeating them.
Statutory interpretation is a function which
sometimes leads to accusations that individual judges,
under the guise of construing a statute, are in truth
amending it. When such a charge is made, it is
an imputation of illegitimacy, and implies not merely
error but abuse of power.
In practice, judges have three major sources
of protection against such an accusation. First,
the principles according to which disputes about the
meaning of statutes are resolved by courts are reasonably
well established, and generally accepted. They
are similar in most common law jurisdictions.
In many respects they are reinforced by Acts of Parliament
governing the subject of statutory interpretation.
There are differences between individual judges in approaches
to questions such as textual or purposive construction,
the utility of various aids to construction, such as
the parliamentary history of an Act, and other matters.
By and large, however, it is a rare judge who strays
so far from the ordinary canons of construction as to
produce a result which gives rise to a charge, not merely
of error, but of usurpation of legislative authority.
If such a deviation does occur, it is likely to be readily
identifiable. Secondly, the appeal process results
in a fairly large measure of conformity amongst judges
in their approach to statutory interpretation.
Thirdly, if Parliament does not like the way a statute
has been construed by the courts, it has it within its
power to amend the statute. It is not uncommon
for parliaments to respond in this way to a judicial
decision which places an unexpected or unintended meaning
upon legislation. The capacity of Parliament to
do this serves a useful function in cooling down controversy
which might otherwise call into question judicial integrity.
The area of judicial activity which gives rise
to most questioning of judicial legitimacy is judicial
review. Judicial review of legislative action
causes tension between the judiciary and the legislature.
Judicial review of administrative action causes the
same kind of tension between the judiciary and the executive.
There is no provision in the Constitution of
Australia, just as there is no provision in the Constitution
of the United States, which expressly provides that
legislation enacted in excess of the powers conferred
by the Constitution, or contrary to some expressed or
implied constitutional limitation on power, can be declared
by a court to be invalid. At the time of the decision
in Marbury v Madison, in 1803, it was not the
universal opinion in the United States that the Supreme
Court had the that power. Thomas Jefferson did
not think that the judiciary should have the power to
pass upon the validity of acts of the legislature or
the executive. His opinion of the judiciary was,
to say the least, cautious. He wrote[4]:
“It
is not enough that honest men are appointed judges.
All know the influence of interest on the mind
of man, and how unconsciously his judgment is warped
by that influence. To this bias add that of
the esprit de corps, of their peculiar maxim and creed
that ‘it is the office of a good judge to enlarge
his jurisdiction,’ and the absence of responsibility,
and how can we expect impartial decision between the
General government, of which they are themselves so
eminent a part, and an individual state from which
they have nothing to hope or fear. We have seen
too that, contrary to all correct example, they are
in the habit of going out of the question before them,
to throw an anchor ahead and grapple further hold
for future advances of power.”
Similar criticisms, and apprehensions, have been
repeated many times during the 19th and 20th centuries.
Federal judges, Jefferson said, are influenced by interest,
by which he did not mean only, or even mainly, financial
interest. Partiality was what he had in mind.
They have a propensity to expand their own jurisdiction.
They are relatively unaccountable. They are appointed,
paid, and in some cases, promoted by the federal government,
and have no connection with the state governments.
They do not confine themselves to deciding the issues
that require decision in particular cases, but lay down
wider principles with a view to extending their own
power. For these reasons, according to Jefferson,
they are not to be trusted with determining issues between
federal and state governments as to the validity of
legislation.
By the time the Australian Constitution was drafted,
the framers had before them the example of one hundred
years of judicial review in the United States.
They took for granted the principle established in Marbury
v Madison. Moreover, as Attorney General Deakin
pointed out in his speech to parliament on the Judiciary
Bill in 1902, the Australian colonies in the 19th
century were familiar with legislatures of limited capacity,
and with courts pronouncing upon the validity of legislation.
The enactments of Australian colonial legislatures were
frequently scrutinised for validity, both by the Supreme
Courts of the respective colonies and by the Privy Council.
Indeed, before there was either responsible or representative
government in the colony of New South Wales, legislation
propounded by the Governor-in-Council was not effective
unless the Chief Justice of New South Wales certified
that it was not repugnant to the laws of England.
From the earliest days of European settlement we had
judicial review of legislation.
Attorney General Deakin, referring to the American
precedent, said[5]:
“The
special political function of the Supreme Court of
the United States is that of pronouncing upon the
validity of legislation – the function of determining
whether an Act comes within the powers of Congress
or is reserved to the State legislatures. That
is a power which to foreigners appears almost inexplicable
– so strange is it to their experience that any judicial
body should have so vast a power. To us, as
to our Canadian kinsmen, and the founders of the American
Republic, there is no such surprise. In the
old colony days, before the American Constitution
was established, the State courts were accustomed
to pronounce upon their own statutes, and to determine
whether or not they conflicted with the Royal charters
under which those colonies existed. So in Canada,
since the establishment of the Union, without any
obvious extension of authority, the supreme and local
courts of that country have freely pronounced upon
the validity of provincial acts, or upon those of
the Dominion Parliament. .. We had precisely
similar experiences in these States when they were
colonies. We have seen Acts rejected or set
aside because they conflicted with the Constitutions
of these colonies.”
It is of the essence of a federation that there
be a written instrument distributing legislative power
between the parliaments of the entities which comprise
the federation, and in Australia we consider that, of
necessity, part of the judicial power is to determine
disputes as to that distribution. Attorney General
Deakin said:[6]
“What
are the three fundamental conditions to any federation
authoritatively laid down? The first is the
existence of a supreme Constitution; the next is a
distribution of powers under that Constitution; and
the third is an authority reposed in a judiciary to
interpret that supreme Constitution and to decide
as to the precise distribution of powers. ..
What the legislature may make, and what the executive
may do, the judiciary at the last resort declares”.
The power to declare invalid an expression of
the will of a democratically elected legislature involves
a responsibility of a special kind. The existence
of an unelected body with a capacity to decide that
an enactment of an elected parliament is without effect
will only be accepted if the community is confident
that the power will be exercised for the purpose for
which, and in accordance with the conditions upon which,
it was given. This was the reason behind Sir Owen
Dixon’s famous observation concerning the need for strict
and complete legalism in the resolution of federal issues.
It is sometimes overlooked that what he said,
in its context, contained a challenge. He asked,
in effect: what is the competing view? If the
High Court is not to resolve federal conflicts by a
legalistic method, what other method is it to employ?
Different lawyers have different ideas as to the techniques
that are appropriate to strict and complete legalism,
but who would care to suggest an alternative to legalism?
A complaint that a judgment is literalistic is one that
I can understand, and with which, on occasions, I may
agree. But what exactly is the meaning of a complaint
that a judgment is legalistic? Judges are appointed
to interpret and apply the values inherent in the law.
Within the limits of the legal method, they may disagree
about those values. But they have no right to
throw off the constraints of legal methodology.
In particular, they have no right to base their decisions
as to the validity of legislation upon their personal
approval or disapproval of the policy of the legislation.
When they do so, they forfeit their legitimacy.
Like the Supreme Court of the United States,
the High Court of Australia is composed entirely of
lawyers. Unlike the Supreme Court of the United
States, a large part, in fact the bulk, of the work
of the High Court consists of applying the civil and
criminal law as members of the court of final appeal
from other Australian jurisdictions. The expertise which
the members of the Court are required to bring to bear
on that function is their expertise as lawyers.
What else could it be? Similarly, they interpret
and apply the Constitution, which is the basic law,
as lawyers. The Australian community would be
properly concerned if they decided to base their decisions
upon the exercise of other supposed talents. What
those talents might be, when and how they were acquired,
and by whom they might be assessed, are questions that
would need examination if legalism were to cease to
be the base of decision-making.
Decisions of the High Court are not subject to
the usual form of judicial accountability, that is to
say, the appeal process. The only form of accountability
which applies is the requirement to give reasons. The
outcomes of cases may be the occasion of a applause
or disapproval. The reasons may appear more or
less convincing. But the reasons have one thing in common.
They take the form of exercises in legal reasoning.
It is by the standards of legal reasoning that they
are to be measured.
The process by which a judge explains the reasons
for a decision is an intellectual process undertaken
in a manner which conforms to the requirements of legal
discipline. In 1973, Viscount Radcliffe criticised
some of the fashions adopted by commentators on the
work of the House of Lords. He referred to those
who categorise judges as timid or bold, vigorous and
imaginative, or subservient and regressive. He
said:[7]
“What
we have here is romantic writing, and it can be useful
only to fellow romantic spirits. The differences
of point of view that are being alluded to are intellectual
differences to which epithets of heroism and gallantry
are comically inappropriate. .. The time has not come
in this country when a judge has to summon up any
reserves of heroic quality in order to express a novel
opinion on a constitutional matter or one possibly
unwelcome to the executive of the day. I am
not aware that anyone tried to send Lord Atkin to
prison for dissenting from the majority of the Law
Lords in Liversidge v Anderson or that Lord
Reid has been the victim of any official persecution
because he could not agree with his colleagues in
Shaw v DPP ... The three Law Lords who
certainly embarrassed the government by allowing the
Burmah appeal seem to have escaped any serious
consequences.”
The same is true of Australia. Only someone
given to mock heroics, or lacking a sense of the ridiculous,
could characterise differences of judicial opinion in
terms of bravery. The occasions are rare in which
an Australian judge is at risk of any personal, financial,
professional, or social penalty as a result of the way
a case is decided. That is the way the system
is meant to work. No doubt, there exist occasions
when a judge needs to show moral or even physical courage
but these are aberrations. By and large, judges
operate in an environment which is almost uniquely secure,
and which rarely tests their resources of heroism, no
matter how exciting it may be to think otherwise. Furthermore,
as Viscount Radcliffe pointed out, even if one retreats
to the more modest concept of “creativity”, that word
is usually employed without any intellectual content
and “as a signal for general applause and as denoting
the presence of some numinous quality which it is death
to oppose.”[8]
The quality which sustains judicial legitimacy
is not bravery, or creativity, but fidelity. That
is the essence of what the law requires of any person
in a fiduciary capacity, and it is the essence of what
the community is entitled to expect of judges.
There is often room for disagreement amongst lawyers
and judges as to what the law requires, but the terms
of the trust upon which judges are invested with authority
set the boundaries within which the contest must be
conducted. In the case of the resolution of federal
issues, it is fidelity to the Constitution, and to the
techniques of legal methodology, which is the hallmark
of legitimacy.
The same considerations apply to judicial review
of executive action. The Constitution, the legislation
governing judicial review, and the relevant principles
of the common law, define the limits of the authority
of courts to override administrative decisions.
The legislation changes from time to time, and the common
law principles develop. But the Australian statutes
on the subject, and the principles of common law, distinguish
between review of the merits of administrative decisions,
which is usually undertaken by specialist tribunals,
and judicial review based upon principles of legality.
The difference is not always clear-cut; but neither
is the difference between night and day. Twilight
does not invalidate the distinction between night and
day; and Wednesbury[9]
unreasonableness does not invalidate the difference
between full merits review and judicial review of administrative
action.
Australian lawyers are familiar with recent examples
of criticisms of courts for supposedly overstepping
the boundaries of judicial review, and of legislative
response to those criticisms. Internationally,
allegations have been made that a process of judicialization
of public policy is subverting principles of government[10].
The most effective response to such a concern
is for judges to continue to respect, and be seen to
respect, the terms of the trust uupon which they exercise
their authority. Like fairness, legitimacy should
be constantly on display in courts.
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