The fifth Boyer lecture by Chief Justice Murray Gleeson is concerned with the role of High Court of Australia in a federal polity. The argument is that the High Court is both a final court of appeal and a constitutional court.
So what does the Court do? What is the role of the High Court of Australia? Should it defend democracy and citizenship? I am becoming increasingly disturbed by Gleeson's Boyer lectures due to the non-appearance of democracy. My unease arises from the High Court defending federalism but not a democratic federalism.
Gleeson says that the role of the High Court as a constitutional court is closely bound up with the nature of federalism. He then restates what he means for federalism. Presumably he keeps restating the obvious for all those who naively think that federalism is not embodied in the Australian constitution.
"The essence of a federal system of government is an agreed division of powers and authority between the political entities which make up the federation: in Australia, the Commonwealth and the States. Inevitably, disputes will arise from time to time, either between governments, or between citizens and governments, over the limits of the powers defined by the Constitution. Resolving such disagreements is, ultimately, the task of the High Court."
"In the last resort, it is for the judiciary to determine the powers of the Parliament and of the executive. When federalism was first established in the United States, this was not seen as inevitable. Thomas Jefferson, for one, had a different opinion. But long before the Australian federation came into being, the principle of the judiciary as the body which resolved disputes about the powers of the other branches of government was established. The precedent was followed here, virtually without question."
"The responsibility of ruling upon the validity of laws enacted by democratically elected parliaments is thus cast upon a group of unelected lawyers. The fact that they are unelected means that they have no need to seek popularity, and should be uninfluenced by public or political opinion. The fact that they are lawyers reflects two considerations. The first is that the Constitution is itself a basic law, and constitutional disputes raise issues concerning the interpretation of a written legal document. The second is that the members of the Court are expected to approach their task by the application of what Sir Owen Dixon described as 'a strict and complete legalism'".
Gleeson's remarks make the High Court a very powerful institution. It both unifies the common law in Australia and is the ultimate interpreter and guardian of the Constitution. Hence it is the keystone of the federal arch. It holds federalism together.
The Antipodean legal positivists, with their deep dislike of judicial activism, would not welcome that! The High Court is not only the centre and crown of the whole set of State judicial systems it is the centre and crown of federal jurisdiction as well. Both the Prime Minister and the Attorney General, who have been very critical of the judiciary in the past, passed up criticizing the High Court in their speeches to the Centenary High Court Sitting and Australia Centenary Conference. They were fulsome in their praise.
Well I have a criticism. The architectural image of the High Court as the keystone of the federal arch sees the federalism as a building in which the polity operates. A building has a purpose---it enables us to dwell and it offers a better kind of life. So the democratic polity would work better for citizens with the federalism. Though citizenhip makes a belated appearance in Gleeson's Boyer Lectures, democracy barely gets a mention. So the High Court, as the ultimate interpreter and guardian of the Constitution, highlights federalism but not democracy.
Surely the a central purpose of federalism is to protect and deepen democracy. Federalism, as a form of government that unites separate political entities/states within a single national system, but which allows each political entity/state to retain its independence, ensures the spreading of political power and connecting political institutions to citizens. The house of federalism in which we live ensures that government remains close to citizens; encourages development of the nation in a decentralised and regional manner; and provides a barrier to the dominance of the majority. But the purpose of federalism is to ensure justice, limit injustice and facilitate the good life.
I appreciate that we have a conservative High Court and that Justice Murray Gleeson considers the ethos of the High Court to be one of restraint, economy, prudence, respect for other agencies of decision reasoned judgment and fidelity to the law. But the silence on democracy and citizenship from the interpreter and guardian of the Constitution comes as a shock. I discern indifference in the undernourishment of democracy by the High Court.
I sense that Gleeson's defence of federalism as a way to constrain power is a constraint of democratic power exercised by citizens. The rule of law is a cover for the rule of law over democracy at a time when citizens are losing control over political power that they can use to enable them to live a more flourishing lives.
Posted by Gary Sauer-Thompson at October 13, 2003 11:33 PM | TrackBack