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December 22, 2004
In this speech Chief Justice Murray Gleeson addresses the challenges facing the High Court in the 21st century.
Suprisingly, the majority of the speech is devoted to the challenges of administration and procedure. What has happened to the High Court? Once it was concerned with substantive issues.Now it is concerned with administration and procedure.
It was only towards the end of the Chief Justice Gleeson's speech that matters of substance are raised:
"The principal challenge facing the High Court in the 21st century will be the same as the principal challenge of the 20th century. It springs from the role of the Court in the Federation....The acceptance by Federal and State governments, and the public generally, of the principle that the High Court possesses the ultimate power to decide legal issues arising under the Constitution of the Australian Federal Union has always depended, and will continue to depend, upon confidence in the Court's independence and impartiality, and in the legitimacy of its approach to the exercise of judicial power."
And that means what? The court defending its constitutional power:
"Confidence in the [High] Court has never been put to the test in the face of a threat of constitutional disintegration. There is presently no reason to expect that it ever will. But the possibility cannot be ignored. It will always be the first responsibility of the members of the Court to protect the Court's reputation for legitimacy in the exercise of power."
That is pretty defensive it not? The High Court is primarily concerned about defending its legitimacy as the keystone of the arch of federalism.
There is not even a hint of concern about the relationship between federalisim and democracy. I find that very sobering. Why the narrowness? Why the lack of engagement with public issues? Why the inward looking nature of the reflections?
This text by Justice Justice Ronald Sackville makes a worthwhile suggestion:
" Except for sporadic debates on such matters as the republic or a new preamble, ongoing discussion of constitutional principles in Australia tends to be the province of the experts. We should not be surprised that the Australian people are so reluctant to approve change in our constitutional arrangements when the principles underlying those arrangements are so difficult to grasp and so little is done to engage the community in a sustained dialogue about our constitutional development.
The inaccessibility of the Australian Constitution is a serious defect in our constitutional arrangements. Whether it is an irremediable defect and in particular whether the High Court has a role to play in creating a dialogue with the Australian community is an issue deserving of close consideration."
Justice Sackville is not very optmistic that this will happen. He concludes:
"...if there is to be a genuine dialogue between the High Court and the Australian people, [then from] the High Court’s perspective, this would require, at the very least, a different style of judgment writing, a conscious effort to encourage community understanding of the issues at stake in constitutional adjudication, more open analysis of policy questions and increased opportunities for other courts to contribute to the development of constitutional doctrine. For the institutional reasons I have given, even assuming a willingness by the High Court to alter course, a dialogue of the kind I envisage will be very difficult to achieve."
We will have to turn to political philosophy instead of the law if we are to begin dialogue about the relaionships between the Constitution, the High Court, democracy and citizensip.
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