7.30 p.m. Friday, 15 February 2002
Justice of the High Court of Australia
It is an honour to be asked by Tony Blackshield, Michael Coper and George Williams to speak at this dinner to celebrate the publication of the Oxford Companion to the High Court of Australia, a truly remarkable book, by whatever standard it is measured. Every Australian lawyer with more than a passing interest in the law is familiar with the writings of Tony Blackshield and Michael Coper, writings that for many years have illuminated legal, and particularly constitutional, issues for the great benefit of the courts, the academy and the legal profession. In less than 10 years, George Williams has also achieved a reputation comparable to theirs. His profile as a radio and television commentator on High Court cases is now so high that my illustrious colleague – Michael Kirby – is no longer Australia's best-known lawyer. George has relegated him to the minor role of Australia's best-known judge.
I am proud of the fact that George is one of the editors of this monumental work. As the jacket of the Companion indicates, he was my Associate at the High Court in 1992, the year in which the High Court handed down its decisions in Mabo and the freedom of communication and other great constitutional cases. Hard though it may be to believe, George was not responsible for any of those decisions.
I always tell my new associates – "If you think there are any errors in my judgments, tell me. I'd rather learn it from you than from Adrienne Stone or the young Turks writing in the Federal Law Review or from Dennis Rose in a future Lucinda Lecture." George Williams never hesitated to tell me when he thought the conclusion or reasoning in one of my draft judgments was wrong.
The Oxford Companion to the High Court of Australia is an amazing compendium of High Court information. It has 435 separate entries in about 650,000 words, contributed by 225 authors although there is a suggestion that there are only 224 authors and one has doubled up under a nom de plume. Nothing of relevance or interest concerning the Court appears to have been omitted. In one volume, the Companion has:
Even what some may regard as trivia is interesting and often tells a story about the Court or the milieu in which it has operated. The Companion has a Table, for example, that shows the number of times Justices of the Court appeared as counsel before the High Court, as recorded in the Commonwealth Law Reports. It does not of course take into account appearances in special leave applications or cases which did not make the Commonwealth Law Reports. But it is an interesting piece of trivia and gives rise to a number of conclusions about the work of the Court and its litigants.
With 211 appearances, Sir Hayden Starke appeared before the High Court more times than any other person appointed to the Court. That is three times as many appearances as Chief Justice Gleeson who appeared 70 times and four times as many as the 52 appearances that I had. The discrepancy between the appearances of Justice Starke and present day Justices tells us something about the work of the High Court and those who litigated cases in the Court. Sir Hayden Starke's numbers are bolstered by appearances in the original jurisdiction of the High Court when it dealt with matters that since 1976 have been heard by the Federal Court. Tax, intellectual property and diversity jurisdiction matters are examples. Many of Sir Hayden Starke's appearances in the High court would now be appearances in the Federal Court of Australia.
The number of Hayden Starke's appearances and those of Sir Owen Dixon (175), Sir Adrian Knox (138) and Sir Wilfred Fullagar (132) also confirms what a quick perusal of the Commonwealth Law Reports suggests, viz, that High Court work before the Second World War was dominated by a few counsel, retained by large corporations. In modern times, only Sir Garfield Barwick with 173 appearances matches their appearances although David Bennett and David Jackson, not yet appointed to the Court, may be challenging them.
Another interesting piece of trivia is a Table that shows the predecessor of each judge appointed. Justice Kirby proudly tells me that he replaced Sir William Deane. His predecessors include such notables as Justices Evatt, Windeyer and Stephen. Armed with the information in the Companion, however, I can now point out to Justice Kirby that the original occupant of his place on the Court was Justice Powers – a Justice described by the Companion as a "mediocrity", with no sense of humour, whose departure from the Court was unlamented. In contrast to Justice Kirby, Justice Powers is almost certainly the least known of any of the Justices of the Court although he served for 16 years. But perhaps, I should not make too much of that particular Table. It also shows that the seat that I hold has been occupied by more Justices who died in office than any other seat on the Court.
In the Introduction to the Oxford Companion to the Supreme Court of the United States, the editors stated that their chief task was to illuminate the way in which the Supreme Court performs its crucial role as the guardian and interpreter of the Constitution. They saw the Supreme Court not only as a legal institution but also as "a hybrid political, social, economic, and cultural institution … that speaks through the law but whose decisions shape and … are shaped by the social order of which it is a part." A perusal of the Oxford Companion to the High Court suggests that its editors saw their chief task in much the same way.
When you think of some of the landmark High Court decisions – the Bank Nationalisation, Communist Party, Tasmanian Dams, Mabo and Wik cases, it is clear that High Court decisions have both shaped the social, political and economic order and were shaped by that order. The Engineers' Case, decided in 1920, is a good general illustration of the point. By insisting that the text of the Constitution was conclusive both in what it directed and what it forbade, the Engineers' Case increased dramatically the scope and content of the legislative powers of the Commonwealth. No longer were the powers of the federal Parliament to be read down by vague implications drawn from the federal nature of Constitution, as had occurred in cases before 1920. The Commonwealth's control of trade and commerce, external affairs, industrial disputes, corporations and defence would be very different today if the Engineers' Case had not prevailed. That was why Sir Garfield Barwick, as nationalistic in his outlook as Sir Isaac Isaacs, said in his retirement speech that we must be "wary that the triumph of the Engineers' Case is never tarnished." Yet as Sir Victor Windeyer once pointed out, the decision in Engineers' was the product of the changing nature of Australian society. It was, he said, the result of the Constitution being "read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and that national laws might meet national needs."
Although the High Court functions as an institution and not a mere collection of individuals, one or two individuals have often significantly influenced its triumphs and what some see as its failures. Professional historians no longer place much weight on the once popular theory that the actions and beliefs of great individuals are the chief causes of great historical events. But when you examine the relationship of the High Court to Australian society, it is difficult to escape the conclusion that the actions and beliefs of certain individuals have had a large effect on that relationship. Sir Isaac Isaacs, who wrote the judgment in the Engineers' Case, is one notable example. It would be invidious to mention other names having regard to the inferences that might be drawn from the omissions. I would not want to undermine the wise decision of the editors – for some of us, at least – of not selecting the ten best and ten worst Justices.
Nevertheless, two individuals deserve mention. One of them is a person who was never appointed to the Court – Alfred Deakin. He was the Attorney-General responsible for the passing of the Judiciary Act 1903 which, if it did not create the Court as some argue, at least established it and provided for its jurisdiction. Few now recollect the lack of interest in – not to mention the hostility to – the creation of the High Court that existed in the years immediately after federation. The Chief Justices of the Supreme Courts, with the exception of Sir Samuel Griffith, were either opposed to or did not support the establishment of the Court. Sir Samuel Way, the Chief Justice of South Australia said it was no more needed than the 5th wheel on a coach. The leaders of the State legal professions thought it would impair the stature of their Supreme Courts. Newspapers carried accounts describing the proposed Court as "a splendid luxury". Many politicians thought that a High Court would have so little business that the expense of setting it up could not be justified. They thought that, in so far as a High Court was needed, its work could be done by ad hoc sittings of the Court manned by the Chief Justices of the States.
Deakin had a different conception of the Court. He intended to create a Court that he predicted would acquire the same status as the US Supreme Court, the House of Lords and the Privy Council. His three hour speech in support of the Judiciary Bill is one of the greatest – perhaps the greatest – speech ever made in the federal Parliament. He noted that the Constitution was drawn up "on simple and large lines" and that it opened up "an immense field for exact definition and Interpretation". He said:
Deakin had no doubt that High Court interpretation rather than formal amendment was the means by which the Constitution would grow and adapt to the changing necessities and circumstances of successive generations. He agreed with an interjection that something could not be read into the Constitution that was not there. But he insisted that the Constitution had "to be interpreted in accordance with the needs of the time."
Such was the hostility to the establishment of the Court that over a year elapsed between the introduction of the Judiciary Bill into the Parliament and it becoming law. Even then, the Parliament only agreed to a Court of three Justices instead of the five that Deakin wanted. Without his vision and energy, the establishment of the High Court as one of the great institutions of Australian life may have been delayed for many years. And it may have been a different body from the Court we know today. Those who think that the establishment of the High Court was inevitable and would have come, if Deakin had never lived, should remember the history of the Interstate Commission. Section 101 of the Constitution declares that there shall be an Inter-state Commission. But an Interstate Commission was not established until 1912, was abolished in 1950, re-established in 1983 and again abolished in 1989. Is it too fantastic to think that, without Deakin, the High Court, if it existed at all, might be a very different body from the Court we know today?
Deakin's achievement in creating the High Court was very great and must never be forgotten. But without Sir Samuel Griffith, the Court may still not have become the institution that it is today. Largely forgotten now is the opposition to the appointment of Griffith as Chief Justice. He had been Premier of Queensland, had played a leading role in the drafting of the Constitution and was Chief Justice of Queensland. He was a very learned lawyer. Yet there were those who thought him too ambitious and self-seeking to be made Chief Justice of the High Court. Others thought the position should go to Barton who had worked so hard to have the Constitution approved by the people and who, of course, was the Prime Minister. Senator Richard O'Connor also had his supporters. He was familiar with the constitutional law of the United States and Canada, had been on the constitutional drafting committees and had had the carriage of the Judiciary Act through the Senate.
Sir Owen Dixon thought that, of the early Justices, the judgments of Justice O'Connor have lived better than that of anybody else. Sir Leo Cussen, the great Victorian judge, thought Barton's judgments were the best and that they had more understanding of what a Constitution was about. But I am far from convinced that either of them would have made a better first Chief Justice than Griffith.
From the beginning Griffith asserted the authority of the High Court. He was in Sir Owen Dixon's words, "a dominant and decisive legal mind". He stood up to the Privy Council in 1907 in Baxter v Commissioner of Taxation by refusing to follow its decision in Webb v Outrim which had disapproved an earlier High Court decision. He pointed out that the Privy Council had had no jurisdiction in Webb v Outrim because the question for decision was an inter-se question that required a certificate from the High Court under s 74 of the Constitution and that none had been given. In fact, the High Court had refused a certificate although five of the States had asked for it to be given.
Earlier in 1904, Griffith had strongly criticised the Full Court of the Supreme Court of Victoria for following Privy Council decisions on the Canadian Constitution in preference to a relevant High Court decision on our Constitution. In 1908 in Bayne v Blake, he strongly criticised the Chief Justice of Victoria who had said that the High Court could not direct the Chief Clerk of the Supreme Court to proceed with inquiries and that the Chief Justice of Victoria was not a servant of the High Court. Griffith CJ pointed out that, although the Chief Justice of Victoria was not a servant of the High Court, he was a member of a State Court and the Constitution made orders under the Judiciary Act binding upon him and the officers of a State Court. On numerous occasions, Sir Samuel Griffith wrote well-reasoned judgments for the Court that displayed his vast knowledge of the law and demonstrated errors in the decisions of the Full Courts of the States. Almost invariably, until the appointment of Isaacs and Higgins, the position of the High Court was strengthened by the unanimity of its decisions.
Many of his judgments are still cited. It is true that his theory of constitutional interpretation, which greatly favoured the States, was overthrown in the Engineeers' Case. But it was probably a good thing for the High Court that his theory of constitutional prevailed in the first two decades of federation. It accorded with the then current doctrine of the United States Supreme Court and with the expectations of most of those who had framed the Constitution. If the High Court had imposed the doctrine of the Engineers Case on the States in (say) 1903, it may have produced a constitutional crisis. Certainly, it would have made it harder for the States and a conservative legal profession to accept the authority of the High Court.
By the strength of his character, his self-confidence and his great legal learning, Griffith was able to dominate the High Court. As a result, the High Court quickly achieved dominance over the State Supreme Courts. When Griffith retired, the High Court had become so dominant that the Chief Justice of New South Wales could congratulate Griffith's successor as the Chief Justice of Australia.
Summaries of the story of the establishment of the High Court and the roles of Deakin and Griffith, like almost everything else that relates to the Court, can be found in the Companion. Even inveterate High Court watchers will find in its pages, much that is novel, interesting and useful. It is hard to believe that it could be at one and the same time a work that is as interesting to the non-lawyer as it is useful to the legal professionals who follow the Court's work. Yet it is. In my view, it is superior in its reach and quality to the Oxford Companion to the Supreme Court of the United States.
I congratulate the editors, contributors and research assistants for producing this monumental work that should be on the bookshelf of every lawyer, politician, journalist, political scientist and citizen interested in the history and workings of the High Court.