Literalism v Realism

1. Literalism v Realism Dr Andrew Cannon

2. A federation of independent States An Act to constitute the Commonwealth of Australia [9th July 1900] WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established

3. Constitutional basics • Powers of the Commonwealth are limited (s.51) • Reserve powers lie with the States • Protection of the States- the Senate • Strong Trade Union involvement- Conciliation and Arbitration

4. The changing policies of the High Court • Griffiths CJ and Barton and O’Connor JJ: States immune from Commonwealth power • WWI- defence power and price control • Engineers Case: Commonwealth laws within power paramount over State laws • Industrial Relations case: Corporations power gives the Commonwealth power over everything

5. NSW v the CW (Industrial Relations Case) s. 51(xxxv) (the CW has power to make laws in respect to ) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ (para 195): quoting Dixon CJ "The position of the federal government is necessarily stronger than that of the States. The Commonwealth is a government to which enumerated powers have been affirmatively granted. The grant carries all that is proper for its full effectuation. Then supremacy is given to the legislative powers of the Commonwealth." “… when it is said that there is a point at which the legislative powers of the federal Parliament and the legislative powers of the States are to be divided lest the federal balance be disturbed, how is that point to be identified? It cannot be identified from any of the considerations mentioned thus far in these reasons, and no other basis for its identification was advanced in argument …”

6. Industrial Relations Case majority: (para 142) “As remarked in Grain Pool of Western Australia v The Commonwealth: ‘if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice’” Kirby J: (para 494) “Legal analysis, expressed in words, can only go so far. To pretend otherwise is to succumb to the mesmerising effect of verbal formulae. It is to deny the inescapably personal judgment of the decision-maker in an illusory quest for an entirely scientific objectivity that does not exist in the task of legal characterisation.”

7. Industrial Relations Case Kirby J: (para 534) “… a shift in constitutional realities from the present mixed federal arrangements to a kind of optional or "opportunistic" federalism in which the Federal Parliament may enact laws in almost every sphere of what has hitherto been a State field of lawmaking by the simple expedient (as in this case) of enacting a law on the chosen subject matter whilst applying it to corporations …” (para 614) “But there are limits. Those limits are found in the express provisions and structure of the Constitution and in its implications. This Court's duty is to uphold the limits. Once a constitutional Rubicon such as this is crossed, there is rarely a going back.”

8. The reality of increasing Commonwealth power • The power of income tax shifted in WWII • GST and financial authority • War and international affairs • Making the Constitution fit reality

9. Literalism v Realism • Sir Owen Dixon: rejects “the abrupt change of conceptions according to personal standards or theories of justice and convenience, which the judge sets up.” • Sir Anthony Mason:“Yet in some respects his Honour’s outline resembles an elegantly constructed mansion in which some of the windows have been deliberately left open.” “If applied too rigidly, the doctrine of precedent produces both injustice and lack of rationality - the very flaws whose purpose it is to expel. Thus adherence to a past decision which reflects either a principle undermined by subsequent legal development or the values of a bygone era, will produce an unjust result, judged by the standards of today.”

10. Literalism • The supposed black letter law tradition Dixon CJ: “... the Court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of the line consequentially drawn or on the other and that it has nothing whatever to do with the merits or demerits of the measure. … There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.” Rich J: “Now, it cannot be too clearly understood that this Court is not in the smallest degree concerned to consider whether such a project is politically, economically, or socially desirable or undesirable.”

11. Realism The Mason bench An implied Bill of Rights: • Freedom of political speech- Nationwide News v Wills, Theophanous, Lange, Roberts and Bass • Native title- Mabo (No.2)

12. The basis to depart from precedent Brennan (retired CJ): “The existing body of law may yield no relevant legal rule, or, in rare cases, may yield a legal rule which is offensive to basic contemporary conceptions of justice.” In overturning it, however, the judge does not simply impose his private morality. “The reasons for judgment in the higher appellate courts increasingly look behind the legal rule to discover the informing legal principle and behind the informing legal principle to discover the basic value.” Deane (retired J): recourse to Natural Law philosophy

13. Grey letter lawyers Rich J in WWII: “(the Federation)… cannot hope to survive unless it submits itself for the time being to what is in effect a dictatorship with power to do anything which can contribute to its defence.” Gleeson CJ: “The less predictable the decision-making of a final court of appeal, the less influential its decisions will be, because it is the predictability of its conduct that constrains the decision-making of lower courts. …It is only to the extent to which other courts believe they know how the High Court would resolve an issue that those courts can subject themselves to its authority.”

14. Some decisions of conservative benchs • The Bank Nationalisation Case: no compensation was enough • The Communist Party Case: proscribing a political organisation in times of peace is not within power s.116:”The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion…” • Jehovah's Witness case: taking their property is beyond power, preventing their religious observance is not • Commonwealth funding of religious schools is not “establishing religion” • Al Kateb: indeterminate detention is not a breach of international treaty obligations

15. Extremes of judicial views • Montesquieu said:“The judges of the nation are only the mouths that pronounce the words of the law. Inanimate beings who can moderate neither its force nor its rigour.” •  Saleiles: “One wills at the beginning the result; one finds the principle afterwards; such is the genesis of all juridical construction. Once accepted a construction presents itself, doubtless in the ensemble of legal doctrine, under the opposite aspect. The factors are inverted. The principle appears as an initial cause, from which one has drawn the result which is found adduced from it.”

16. A balanced view Cardozo J: “The eccentricities of judges balance one another. One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten something which has constancy and uniformity and average value greater than its component element. … The pebble on the beach talking loudly to its neighbour does not define the shoreline.”

17. Conclusion • The rule of law and judicial independence • Judicial power is delegated power • Too conservative suppresses change • Leads to too radical change • The conservatives have been the most radical: they get away with it when the powerful in society agree with them

18. The Australian community is experiencing profound social and economic change and it is better for the judicial method to be open to incremental change so that the courts express legal values that remain in touch with the developing standards but are not captive to sudden fashions. They need to test modern ideas against the accumulated wisdom of the past. They should be honest about their process. The judiciary should be prepared to paddle in the shallows of the sea of change but if they go surfing with the politicians they may attract a degree of controversy that undermines public confidence in them and puts their role at risk.

19. Falie