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October 14, 2003
The arguments that we have been considering by Chief Justice Murray Gleeson in his Boyer Lectures establish a key point. That it is a constitutional rule which is the foundation of the legal system, and not the unlimited power of the sovereign (ie Parliament in liberal democracy). That constitutional rule is then accepted----federalism--- in the practice of the legal system, with this practice emboding an obligation to deploy its criteria.
Yet the High Court carries a lot of baggage because it has played an integral part in the nation-building of the twentieth century--eg.,the Communist Party Dissolution Case.
A key figure in this story here is Sir Owen Dixon, who is often celebrated as one of Australia's finest High Court Judges and he is best known for his espousal of a ‘strict and complete legalism’ as the only safe guide to resolution of disputes. And the philosophical presuppositions that sit behind the tight judicial logic? What about them?
Consider these remarks by Sir Owen Dixon:
"We regard our country as a southern stronghold of the white race—a thing for which it is well fitted; and our population is European. The aboriginal native has retreated before the advance of civilisation, contact with which he apparently cannot survive. The analogy in this country is the Red Indian, but the Australian Aboriginal is of a much lower state of development. He belongs to the Stone Age and no success has attended efforts to incorporate him in civilised society."
It's not a cheap political shot. Remember that Australian Aborigines were denied citizenship until the late 1960s. Those remarks can be interpreted as providing a justification for why indigenous Australians should not be granted citizenship.
The above remark is a reminder that we need to pay attention to the social and political preconceptions behind the reverence for tight judicial logic. The High Court is a political institution in liberal democracy, it is involved in the political debates of the time, and its reasoning is part of liberal political reason.
At a more sophisticated level, the appeal to the rule of law, does need to distinquish legal authority from the exercise of arbitrary political power. So what makes the legal authority of the High Court legitimate? It is more than tight judical logic, professional credibility (the respect and confidence of the other judges and legal profession) or the fundamental rules involved in the law making procedure. It also involves the moral constraints on legal authority that distinquish its conduct from the exercise of arbitrary political power.
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