1989] Realism about the High Court

REALISM ABOUT THE HIGH COURT

JEFFREY GOLDSWORTHY*

27

THE NEW REALISM

Ever since Bentham attempted to "pluck the mask of Mystery from theface ofjurisprudence",1 courts have been accused of legitimating their decisionsby hiding their real grounds, which are necessarily subjective and partisan,behind a smokescreen of artificial and esoteric ratiocination. Such iconoclasmhas, in our century, been a staple of American realism, Marxism and morerecently the critical legal studies 'movement', all of which have inevitablyinfluenced Australian legal theory.

It has sometimes been argued that in constitutional cases the High Courthas used 'legalism' to confer on essentially political decisions a speciouslyapolitical appearance. This argument is made most carefully and thoroughlyby Brian Galligan, a political scientist, in his recent study of the High Court.2

His argument deserves to be carefully assessed, especially if he is right topredict that a more 'realistic' account of judging is destined to supplant'legalism' in academic and legal circles, and in the public mind.3 Legalism,he says, "will appear quaintly archaic to the next generation of lawyers . . .".4

If so, our legal and political culture may be profoundly changed for betteror worse. It is crucial that the new realism be clear-headed and cautious,or it may unwittingly discard law along with legalism.

Galligan's endorsement of the new realism is not unqualified. He rejectsthe simplistic view of some realists that because judging is not reducibleto formal logic, it must rest on the personal biases of the judges.5 He fearsthat in embracing realisnl, a new generation of Australian judges may gotoo far and adopt "non-interpretivist methods".6 Non-interpretivism, popularin the United States, "involves judges reading their own preferred valuesand policy views into the constitution, and overruling elected legislatureson the basis of what judges prefer or think is desirable or advantageous".7Galligan rightly fears such a development, and prefers 'interpretivism', whichrequires deciding questions of constitutionality "by reference to theconstitution, either its actual language and structure or the values andintentions of the founders which it embodies".8 But is this not legalism, thestill popular but false view which is undermined by realism? Galligan thinksnot, but the distinction he draws between legalism and interpretivism is notclearly and consistently maintained. Consequently, his criticisms of the HighCourt's legalism may discredit interpretivism, making more likely the veryoutcome he fears: the ascendancy of non-interpretivism.

* Senior Lecturer, Faculty of Law, Monash University.1 J H Burns and H L A Hart (eds) A Comment on the Commentaries and A Fragment on

Government (1977) 391) 410.2 Brian Galligan, Politics of the High Court, A Study of the Judicial Branch of Government

in Australia (1987).3 Ibid 37, 244, 252-258.4 Ibid 37.5 Ibid 38.6 Ibid 260.7 Ibid 259; see also 232-233.8 Ibid 258.

28 Federal Law Review [VOLUME 18

2 LEGALISM IN THE HIGH COURT

What does Galligan mean by legalism? It includes literalism, the naivebelief that all questions of constitutional interpretation can be decided purelyby reference to "the plain meaning of the actual language of the text",9 andconceptualism, an approach to related questions which emphasises legal formrather than practical substance, and abstract categories and technicaldistinctions rather than the interests and values at stake. to While admittingthat this is something of a caricature, he insists that "it does sum up theCourt's professed method",,1

Galligan's preferred interpretivism is markedly different from, and superiorto, legalism thus dermed. The interpretivist is willing to look beyond thewords used in the Constitution, to the values and intentions of those whodrafted them. 12 This is often not only desirable, but simply unavoidable:first, the words used may be vague, ambiguous or (occasionally) inconsistent;secondly, application of the bare words alone may frustrate their obviouspurpose. Moreover, it can be argued that most cases which come to theHigh Court are of this sort. Parties are reluctant to spend large sums ofmoney attempting to avoid provisions whose meaning and effect are clearand uncontroversial. On the other hand, even the interpretivist must respectthe words actually used: it cannot be permissible to ignore them wheneverthis seems better to serve their intended purpose. It is because a purposiveapproach to interpretation can be abused that it is feared, as the Americanlegal philosopher Lon Fuller pointed out:

One can imagine a course of reasoning that might run as follows: This statutesays absinthe shall not be sold. What is its purpose? To promote health. Now,as everyone knows, absinthe is a sound, wholesome, and beneficial beverage.Therefore, interpreting the statute in the light of its purpose, I construe it to directa general sale and consumption of that most healthful of beverages, absinthe. 13

To apply interpretivism properly thus requires striking a balance betweenthe actual text and its purpose or spirit. There is no value-free, mechanicalprocedure for doing so. As Galligan says, judging belongs to the realm ofpractical reason, and involves "reconciling, weighing and choosing betweenprinciples and precedents that often are in conflict or overlap ..."14 Somejudges seem to have regarded this as incompatible with law, and so improper;a principal function of law, after all, is to substitute clear, objective standardsfor subjective opinions and preferences whose conflict might threaten socialorder. But legal reasoning which relies excessively on textual meaning anddeductive logic is artificial and even arbitrary. Interpretivism, we might say,is sensible legalism; what Galligan calls legalism is just silly. (Note howeverthat he does not believe the High Court's profession of legalism to havebeen silly; it has been a shrewd political strategy).

Evidence can certainly be found for Galligan's claim that legalism, in thesense of literalism and conceptualism, has characterised the Court's published

9 Ibid 258; see also 31.10 Ibid 32; see also 175.II Ibid 32.12 Ibid 258.13 L Fuller, "Positivism and Fidelity to Law - A Reply to Professor Hart" (1958) 71 Harv

Law Review 630, 670.14 B Galligan, supra n 2, 38.

1989] Realism about the High Court 29

reasoning in important constitutional cases, at least since the landmark decisionin the Engineers casel5 in 1920. Before Engineers the Court enforcedconstitutional doctrines not expressed in the Constitution, but believed tobe necessary to protect the federal system it established and therefore tobe implied by it. The doctrine of reserved State powers was designed torestrict Commonwealth legislative powers in the interests of state sovereignty,and the doctrine of intergovernmental immunities was aimed at preventingthe Commonwealth and the States from interfering with one another. 16 Inprinciple, at least, these doctrines reflect just the sort of interpretivism ofwhich Galligan approves, and so it is surprising that he criticises them as"palpably insufficient for striking down important government legislation".17In any case, he argues that this non-legalistic method did not threaten theCourt's legitimacy until the emergence of the Labor party as a major politicalforce. 18 Thereafter, the Court's decisions became increasingly controversia1. 19In Engineers this method was renounced by the Court, which according toGalligan desired a neutral basis for constitutional review not dependent on"respect for an original compact that had been framed without Labor'sparticipation".20

In a revolutionary opinion endorsed by a majority of the Court, Isaacs Jcondemned the practice of basing important constitutional doctrines onimplications rather than express provisions. According to Isaacs J, the Courtshould apply the Constitution "according to its own terms . . . [and] preciselyas framed",21 without resort to "an implication which is formed on a vague,individual conception of the spirit of the compact".22 It was for those whodrafted the Constitution to consider what limitations on the powers it conferredwere necessary; the Court had no right to add further, unexpressed limitations."[T]he duty the Constitution places upon this court [is to] loyally [permit]. . . that great instrument of government to speak with its own voice, clearof any qualifications which the people of the Commonwealth or, at theirrequest, the Imperial Parliament have not thought fit to express . . .'~3

Galligan says that these broad principles of interpretation have been followedby the Court to this day.24 But he also describes Sir Owen Dixon, whointellectually dominated the Court for many years,25 as the paragon of legalism.

Dixon remains the epitome of the Australian legal establishment's model of a judge.He both reflected, and made the leading contribution towards articulating, thelegalist approach of the High Court.26

15 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.16 B Galligan, supra n 2, 84.17 Ibid 91.18 Ibid 84-85.19 Ibid 85-91.20 Ibid 97.21 Supra n 15, 142.22 Ibid 145.23 Ibid 160.24 B Galligan, supra n 2, 97-98.25 Ibid 202.26 Ibid 203.

30 Federal Law Review [VOLUME 18

This is problematic, because Sir Owen Dixon strongly opposed themethodology advocated by Isaacs J in Engineers. In West v Commissionerof Taxation, His Honour said:

Since the Engineers' case a notion seems to have gained currency that in interpretingthe Constitution no implications can be made. Such a method of constructionwould defeat the intention of any instrument, but of all instruments a writtenconstitution seems the last to which it could be applied.27

In many cases Sir Owen Dixon insisted that the federal system itself requitedthat the powers of both the Commonwealth and the States be subject tocertain implied limitations. To the statement that such reasoning was political,and not legal, he responded:

The Constitution is a political instrument. It deals with government andgovernmental powers. The statement is, therefore, easy to make though it hasa specious plausibility. But it is really meaningless. It is not a question whetherthe considerations are political, for nearly every consideration arising from theConstitution can be so described, but whether they are compelling . . .28

Galligan has not overlooked this. He acknowledges that the Court's partialbreak with Engineers principles in the 1947 State Banking case29 reflectedSir Owen Dixon's influence, and in particular his advocacy of principlesimplied by the federal system.30 Later, he refers to Sir Owen's opinion inBoilermakers31 as "a classic example of Dixonian techniques~', although itdepended partly on "the distillation of fundamental principle inherent in thestructure of the constitution".32 But this is clearly not legalism in Galligan'ssense: it is interpretivism of the sort he himself eventually endorses. Galligantakes this to show that Sir Owen Dixon's advocacy of 'strict and completelegalism' cannot be taken at face value,33 which helps support his thesis thatlegalism has been used to legitimate the Court's decisions rather than actuallyto generate them. But surely it is nluch more likely that by legalisni SirOwen Dixon never meant literalism.

Admittedly Sir Owen Dixon's judgments were often too legalistic inGalligan's sense. He sometimes failed to strike the right balance betweentextual considerations and fundamental principle or underlying purpose, asmost notably in the interpretation of s 92 of the Constitution.34 (The HighCourt has only recently35 given that section the meaning it was intendedto express, reversing decades of case law which construed it as a guaranteeof laissez faire in interstate trade.) Moreover, while the Court has revivedthe concept of implied intergovernmental immunities, it still follows Engineersin refusing to recognise reserved State powers as a matter of implication(which largely explains the recent controversial decision in the TasmanianDam case36). Also, other judges have adopted a more legalistic approach

27 (1937) 56 CLR 657, 681.28 Melbourne Corpor(ltion v Commonwealth (1947) 74 CLR 31,82.29 Id.30 B Galligan, supra n 2, 167.31 R v Kirby; ex parte Boilermakers' Society ofAustralia (1956) 94 CLR 254.32 B Galligan, supra n 2, 208.33 Ibid 39; see also 160.34 The relevant words read: "trade, commerce, and intercourse among the states . . . shall be

absolutely free."35 Cole v Whitfield (1988) 62 ALJR 303.36 Commonwealth v Tasmania (1983) 158 CLR 1.

1989] Realism about the High Court 31

(in Galligan's sense) than Sir Owen Dixon: Sir John Latham and Kitto J,for example. But these considerations just emphasise the fact that the Justiceshave not consistently followed any particular method, let alone the legalismwhich Galligan disparages.

Surprisingly, Galligan refers to chapter 15 of Leslie Zines' authoritativework The High Court and the Constitution37 as "a more careful examinationof judicial attitudes than those of the critics of legalism examined here".38But Zines concludes that

many judges who emphasise the importance of legalism do not regard that methodof approach as denying resort to broad social and political values they perceivein the Constitution .... While I have concentrated on the approach of four ChiefJustices because they had emphasised the importance of legal reasoning, it willhave been apparent throughout this book that the same is true of most othermembers of the court.39

It is very often difficult to distinguish narrow legalism from sensibleinterpretivism. The Court's approach to the characterisation of Common­wealth laws - the process of deciding whether or not such laws deal withsubjects over which the Commonwealth has power - has often beendisparaged as excessively legalistic, because the Court considers only theirdirect legal operation, and not their practical impact or purposes (whichmay affect matters clearly not within Commonwealth power). But as Zinesargued, that approach can be defended as a prudent refusal to be drawninto the propriety of Parliamentary purposes.40 Galligan considers the decisionin First Uniform Tax, 41 which allowed the Commonwealth to monopoliseincome taxation and potentially to control State expenditures, to have beenabsurdly legalistic,42 but defends the decision in the Tasmanian Dam case,which may affect the federal balance just as dramatically, as displaying a"commendable commitment ... to judicial restraint" in not imposing judicialviews as to external affairs "over those of the national executive andlegislature".43 The point is not that this defence fails, but that First UniformTax can be defended on similar grounds. Indeed, the doctrine in Engineersitself was defended by Sir Isaac Isaacs by appealing to a policy of judicialrestraint.

That Galligan sometimes misconceives the difference between narrowlegalism and sensible interpretivism is shown by some of his specific criticisms.For example, he criticises Sir Owen Dixon's distinction between the meaningof the defence power, which remains constant, and its application, whichcan change according to the international political climate, as "highly artificial",a "convenient legal fiction" helping to maintain the Court's "legalistic facade".44But surely the distinction is required by simple commonsense: the defencepower must allow the Commonwealth to do more in times of war than inpeace. This distinction between the meaning of a provision and its application

37 L Zines, The High Court and the Constitution (1981).38 B Galligan, supra n 2, 268.39 L Zines, supra n 37, 290.40 L Zines, 44Commentary [on a paper by Gareth Evans]", in A D Hambly and J L Goldring

(eds) Australian Lawyers and Social Change (1976) 81, 84-86.41 South Australia v Comnl0nwealth (1962) 108 CLR 130.42 B Galligan, supra n 2, 131-134.43 Ibid 247.44 Ibid 130.

32 Federal Law Review [VOLUME 18

is the fruit of sound interpretivism, and indeed is just what is needed tosatisfy Galligan's desire for "a more balanced developmental approach thatpreserve[s] the essential federal character of the [Constitution] while allowingfor national growth and changed socio-economic conditions".45 (A desireclearly shared by Sir Owen Dixon, who said that the Constitution was"expressed in general propositions wide enough to be capable of flexibleapplication to changing circumstances"46).

3 HAS LEGALISM BEEN A POLITICAL STRATEGY?

Galligan claims that legalism has been the High Court's "professed method",but not the method it has actually used to decide cases.47 Statements suchas the following are scattered through his text:

"[Llegalism has been championed by the Court because it is an effective politicalstrategy for exercising judicial review. By actively cultivating an impartial imageand professing an apolitical method, the High Court has been able to carry outits delicate political function with ease".48"All the judges used the techniques of legalism to dress up basic judicial choices".49"[I1he Court's public rhetoric and legalistic technique have disguised judicial powerand helped legitimate the Court's controversial decisions".50

He often refers to legalism as a 'cloak' or 'shield' which, by concealing the'true' nature of the Court's decisions, deflects criticism. The High Court,we are to believe, has adopted legalism as a "political strategy" for this reason,51and in doing so it has displayed "considerable political skills".52 The Courtin 1950, for example, is said to have been "as shrewdly perceptive of politicsand public opinion as Menzies himse!f'.53

He explains that there was a particular need for this strategy in Australiabecause for two reasons our political environment has been less hospitableto judicial review than the American: first, popular sentiment here favoursparliamentary supremacy, the principle that elected legislators should notbe fettered by a 'higher law'; secondly, the Liberal-Labor party division haspolarised Australian politics and embroiled both the Constitution and theHigh Court in controversy.54 A central theme of the book is the conflictbetween Labor and the Constitution, which the Court must uphold withoutundermining constitutional stability. There is a basic tension between theConstitution and Labor's policies because the former presupposes and favoursa liberal order of social and economic individualism.55 According to Galliganlegalism is the "noble lie''56 which has enabled the Court to maintain itsintegrity and independence "in the atmosphere of extreme partisanship thathad resulted from the rise of the Labor Party in Australian politics".57 "Pure

45 Ibid 152.46 Australian National Airways v Commonwealth (1945) 71 CLR 29, 81.47 B Galligan, supra n 2,39 and 251.48 Ibid 39.49 Ibid 176.50 Ibid 242.51 Ibid 38-39, 71.52 Ibid 249-252.53 Ibid 207.54 Ibid 39.55 Ibid 142.56 Ibid 41.57 Ibid 97; see also 37, 72, 119.

1989] Realism about the High Court 33

legal technique could appeal to all parties in Australian politics whereascommitment to a particular political order meant taking political sides".58

This sort of claim is not novel. Sometimes direct evidence has been adducedto support it. The English judge, Lord Radcliffe, once said that althoughthe theory that judges simply applied, and never changed, the law wasuntenable, "personally, I think that judges will serve the public interest betterif they keep quiet about their legislative function . . . The judge who showshis hand, who advertises what he is about ... [may be] doing more harmto general confidence in law as a constant, safe in the hands of the judges,than he is doing good ...".59 But Galligan produces virtually no direct evidenceof this kind.60

He relies on two kinds of evidence. The fITst is the discrepancy he perceivesbetween the Court's professed method of legalism, and the method it hasactually used to decide cases. But this evidence is weak because, as I haveargued, in professing legalism the Justices have not generally been professingliteralism. The second kind of evidence rests on his criticisms of the reasoningused to justify particular decisions which he assumes the Justices foundpolitically congenial. We are apparently invited to infer that a decision,compatible with a judge's presumed political preferences but publicly justifiedby reasons which can be shown to be unsatisfactory, is more likely to havebeen consciously motivated by the former rather than the latter. This is madeclear when he says that "to understand the substantive aspects of decisionsit [is] necessary to read between the lines of opinions; to search out unstatedpremises, assumptions and contradictions in the stated "legal" reasons; toexamine the pattern of outcomes; and to distil the frame of mind and thepersonal biases of judges".61 Galligan himself criticises the proponents ofjurimetrics for believing that significant conclusions can be drawn fromstudying the patterns of outcomes of judicial decisions.62 Those patternsthemselves cannot tell us why the decisions were reached.63 Thus, he addsto the study of outcomes a critical examination of the published reasonsfor the decisions, and biographical evidence of the judges' beliefs and values.But apart from the unfairness of many of his criticisms of judicial reasoning,the flaw is that reasoning regarded by a critic as obviously unsatisfactory,even incomplete and artificial, may actually have persuaded a judge committedto particular methods of legal analysis. And of course like the rest of us,judges sometimes, and perhaps often, act for reasons which are not fullyarticulated or scrutinised. This is not to say that it is never reasonable tosuspect that a decision was reached for ulterior motives. Galligan is on well­trodden ground when he alleges that Sir Isaac Isaacs, at least, was less interestedin the legalistic techniques endorsed in Engineers than in their consequence,an expansion of national powers at the expense of the states.64

58 Ibid 97.59 Radcliffe, Not in Feather Beds (1968), 265; quoted in P Atiyah, "Judges and Policy" (1980)

15 Israel Law Review 346, 357. In this article Atiyah quotes similar statements of otherEnglish judges.

60 The closest he comes is in quoting from one of Sir Owen Dixon's letters to Sir John Latham,but Galligan himself acknowledges that even here Sir Owen "maintained the formalities oflegal professionalism" (B Galligan, supra n 2, 113).

61 Ibid 101.62 Ibid 36.63 Ibid 35.64 Ibid 101-102.

34 Federal Law Revie~v [VOLUME 18

Apart from Engineers itself, the most likely candidates for Galligan's thesisare the decisions on s 92. Yet even here it cannot be accepted unconditionally.The High Court's recent judgment in Cole v Whitfield,65 sweeping away decadesof authority to the contrary, demonstrates conclusively that the section wasnot intended to guarantee laissez faire in interstate trade and commerce.Why, then, did the Court and the Privy Council go so wrong, with sucha devastating impact on Labor policy and the party itself in the 1940s? Itis no doubt naive to believe that the judges' social and political values playedno part. But is it naive to attribute at least equal influence to their dedicationto interpretive techniques which in this instance miscarried? At the time theCourt was, regrettably, unwilling to consider extrinsic evidence (such as theConvention debates) bearing directly on the Founders' intentions - evidencewhich was decisive in Cole v Whitfield. The Court was left with the bareConstitutional text and s 92 does, after all) say that interstate trade andcommerce shall be absolutely free (although admittedly the context of itssurrounding provisions casts doubt on the laissez faire interpretation). Eventhe judges who had attended the Convention Debates failed to agree onthe intended meaning of those words, and one of them - Sir Isaac Isaacs- wilfully66 muddied the waters. Moreover, the anti-protectionistinterpretation which the Court has now adopted would not have been fullyenforceable in the first decades of the century because the requiredadministrative law remedies had not then been developed.67 Galligan himselfsays that in the case of each judgment in the Bank Nationalisation case,68"the operative premise . . . was a basic assumption about the meaning ofsection 92 or a personal preference in favour of private over public enterprise".69Precisely: but how can we tell which?

Galligan's thesis is difficult to falsify. When the Court is legalistic its decisionis politically motivated. But when it is not legalistic, as in the State Bankingcase,70 its decision is also politically motivated. In that case, previously referredto, a majority adopted Sir Owen Dixon's view that an implied limitationprotected the States from Commonwealth legislation aimed specifically atthem; this had the effect of invalidating important banking legislation ofthe Chifley government. Galligan asks why it was in this case that the Courtdeclined to follow Engineers, and suggests that, unable to use s 92 to invalidatethe legislation, it "needed a foundation for its decision that was not otherwiseavailable in the explicit words of the constitution." The judges reverted toa past interpretive theory "in order to substantiate their decision".?1 But this

65 (1988) 62 AL1R 303.66 During the Convention Debates Isaacs had warned the delegates that the wording of s 92

was "very dangerous" because it went "much further than is intended": Convention Debates,Adelaide, 1897, 1141. Later in W A McArthur Ltd v Queensland (1920) 28 CLR 530 heheld the Commonwealth to be exempt from s 92 while adopting an extremely broadinterpretation of its wording which, as Galligan says, "had little basis either in the federalconventions or in the first twenty years of judicial interpretation" (B Galligan, supra n 2,103). This served Isaacs 1's nationalist agenda nicely, but later came unstuck when the Courtoverruled the exemption, while affirming the broad interpretation. Coper emphasizes thecontribution of McArthur to the emergence of the laissez-faire interpreta~ion ofs 92 in Freedomof Interstate Trade Under the Australian Constitution (1983), 37, 301 and 305-306.

67 M Coper, Encounters With the Australian Constitution (1987), 290.68 Bank ofNSWv Commonwealth (1948) 76 CLR 1.69 B Galligan, supra n 2, 175 (emphasis added).70 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.71 B Galligan, supra n 2, 168-169.

1989] Realism about the High Court 35

is gratuitous. If they had wanted to the majority could easily have foundan express textual rationalisation for its decision, either by followingLatham CJ and using characterisation, or by construing more broadly theexpress exemption from Commonwealth power of "State banking".Furthermore, Galligan himself provides a more plausible explanation for thedecision: it reflected the dominant influence of Sir Owen Dixon, who hadnever concealed his disapproval of Engineers, and whose modified doctrineof immunities was in Galligan's own opinion "entirely valid and eminentlysensible".72

Surely in the absence ofconcrete evidence to the contrary, it is more plausibleto assume that in proclaiming their apolitical role and using legalistictechniques the Justices have usually been sincere, believing this to constitutetheir duty. After all, as previously explained, the interpretivist cannot ignorethe constitutional text; the meaning (or meanings) of the text must be addressedat some point in judicial reasoning. Even Galligan Inust therefore concedethat up to a point semantic, syntactic and logical analysis is quite proper.It is true that the Court has placed excessive reliance on these techniques,at the expense of fundamental principle or underlying purpose, but it hasnot ignored the latter. This suggests that although the balance they havestruck between text and purpose can be criticised, the Justices, like Galliganhimself, have been committed to interpretivism rather than something quitedifferent. After all, there are good explanations (if not justifications) for thatbalance having been struck differently in the past. For example, the publisheddebates of the Constitutional Conventions, which Galligan rightly says shouldbe used more often,73 had no index ,until 1987. Furthermore, as Galliganoften acknowledges, most of the Justices have been appointed from the ranksof a narrow professional caste and were steeped in its traditions, some ofwhich are increasingly regarded as misguided.74

Galligan may object that I have misrepresented his position. He does, indeed,acknowledge that legalism is a narrow kind of interpretivism.75 He does saythat "many of the judges, formed and practised in the traditional mouldof their profession, may have been unaware or only partly aware of thepolitical implications of legalism ...".76 Later he says that, in Engineers itselfand subsequently, "probably the majority" of judges have used legalism "asan apolitical technique that produced, willy nilly, a certain outcome; buta discerning few would manipulate it to achieve a preferred political order".77The problem is not that Galligan does not say these things - he is toocareful and thorough for that - but that they are overshadowed by hisfrequent claims to the contrary. If most judges embraced legalism out ofconviction, why claim so often and so unconditionally that it was adoptedby the Court as a 'cloak', 'facade', 'shield' or 'noble lie' to deflect criticismby concealing the 'true nature' of its activities? These claims are not compatiblewith the much milder claim, which he might have made, that the judges'subjective values have been unconsciously promoted through their sincere

72 Ibid 168.73 Ibid 256.74 Some other reasons are discussed by G Sawer in Australian Federalism in the Courts (1967)

52-57.75 B Galligan, supra n 2, 260.76 Ibid 40.77 Ibid 102; see also 144.

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commitment to legalism. Anyway, that would have been to claim merelythat judges are human, and as Galligan says in response to the practitionersof jurimetrics, "such a banal conclusion was never in dispute".78

Galligan offers little real evidence that the Court needed to adopt legalismas a legitimating strategy. If one wishes to be seen to be acting legitimately,the best strategy is to act legitimately - that is, properly. If so, and if,as Galligan rightly believes, narrow legalism is less proper - less legitimate- than the broader interpretivism he favours, the Court would have beenpolitically more astute to practice the latter rather than the former. He claimsthat legalism was adopted to minimise the hostility of the Labor Party towardsdecisions inimical to it. But why suppose that decisions based on narrow,artificial interpretive techniques would be more palatable to Labor than thesame decisions openly based on more substantial grounds, such as theunderlying principles and policies which the Constitution was intended toexpress? Acquiescence has depended on Labor's commitment to the rule oflaw, and this ideal is served at least as well by the latter as by the formerapproach.

Galligan himself argues that the Court's de facto legitimacy would in thefuture be best secured by a less narrowly legalistic, more openly policy-orientedstyle of interpretivism.79 But why was this not just as true in the past? GarethEvans was probably right to argue that among the general public, respectfor the Court has been due more to "the obscurity of the Court'spronouncements, and the marginal relevance of their subject matter asperceived by laymen", than to any widespread enthusiasm for legalistictechniques.8o On the other hand, among the cognoscenti, the Court's excessivelegalism has been a continuing target of criticism. If so, as a legitimatingstrategy narrow legalism has at best been inconsequential and at worst counter­productive: not at all what a politically shrewd Court would have chosen.

4 POLITICS AND THE HIGH COURT

Galligan refers disparagingly to the judges' frequent "solemn publicdenials''81 that their role is political. These are said to be "ritualistic''82 andthe distinction between legal and political decision-making "artificial".83 Butin what sense does he think that the Court's role has been and must be'political '?

First, he points out that the Court and the method it uses to decideconstitutional disputes are an important part of the political system, broadlydefined as "a process of authoritative decision making in which politics takesplace as a systemic flOW".84 The Court resolves high-level disputes betweengovernmental institutions, and in doing so it authoritatively interprets theConstitution, thereby shaping the political system and process.85 In this sense

78 Ibid 35.79 Ibid 255-261.80 G Evans, "The Most Dangerous Branch? The High Court and the Constitution in a Changing

Society", in AD Hambly and JL Goldring (eds), Australian Lawyers and Social Change(1976), 13, 74.

81 B Galligan, supra n 2, 30.82 Ibid 38; see also 132, 253.83 Ibid 33.84 Ibid 2.85 Id.

1989] Realism about the High Court 37

the Court's role is political, but in an obvious sense that no-one would everhave denied. (As Sir Owen Dixon himself said, because the Constitutionis a political instrument nearly every question arising under it can be describedas political).86

Secondly, Galligan says that the Court has been political in its choiceof method:

When interpreting a constitution, it is not possible to be apolitical and neutral.But it is possible to be "interpretive" rather than "non-interpretive": that is, todraw out principles and values from the constitution ... rather than read one'sown preferred principles and values back into the constitution . . .87.

It is for this reason that he says that "the argument that has been put forwardthroughout this book is that the Australian court is just as political as itsAmerican counterpart, but that its politics are different",88 in that the formerhas adhered to interpretivism and the latter (at least recently) to non­interpretivism. But again, no-one would ever have intended to deny thatthe High Court has been political in this sense. The judges' decision to applythe Constitution rather than their personal values is 'political' (it is in onesense political to be in another sense apolitical), but does that matter? Galliganconcedes that it is acting in a non-interpretive manner "that makes a courtpolitical in the sense that the term is applied to the Warren Court".89 Justso: our Court has chosen not to be political in that sense (identified belowas the fourth sense of the word), and this is surely what the Justices havemeant in asserting that their duty is to apply the law, regardless of theirown political values.

The third sense in which Galligan thinks the Court's role is political seemsto be that even interpretivism requires value judgments, or 'choices', whichare intrinsically politic,al. This is true for various reasons. Interpretivism, aspreviously explained, requires difficult judgments to be made as to the balancewhich ought to be struck between the words of the Constitution and theirunderlying purposes. These judgments are 'political' because they concernthe proper functions of the Constitution and the Court. Moreover, it maybe that both the words of the Constitution and their underlying purposesare ambiguous, providing no determinate answer to a particular issue. Suchissues must be decided either arbitrarily, or on the basis of the judges'conception of the public interest.

It is true that the High Court, and judges generally, have been reticentin admitting the inevitability of such choices. They have preferred to depictlaw as a fully consistent, unambiguous and comprehensive basis for decision­making, obviating any need for value judgments. But one cannot infer fromthe falsity of this view that there is no distinction between legal and politicalreasoning. What follows is that legal reasoning must sometimes include certainkinds of political judgments. Admittedly, the reason for limiting the roleof political judgments in legal reasoning is itself political, in the second senseof 'political' already shown to be trivial.

For the Court to ignore these limits would be to abandon interpretivism,and to act politically in a fourth sense of the word. Although he endorses

86 West v Commissioner of Taxation (1937) 56 CLR 657,681.87 B Galligan, supra n 2, 232.88 Id.89 Id.

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interpretivism, Galligan's attitude to it sometimes seems ambivalent. At timeshe appears to recommend that the Court assurne a broad, policy-orientedrole. He suggests that it is "irresponsible" for the Court to attempt to determinethe "true construction" of the constitution irrespective of the consequences.90

He asserts that in State Banking the "real issue was public-versus-privateenterprise" rather than the "standard Commonwealth-versus-state categoriesof constitutionallaw".91 He impliedly criticises the Court for ignoring "publicpolicy and political economy" in deciding the Bank Nationalisation case.92

(On the other hand, he says that an "active, policy-making role ... [is]singularly unsuited to the non-elected and tradition-bound institution thata court typically is",93 and that "the court is a particularly inappropriateinstrument for discerning national requirements'1(4).

Many of the Court's critics have advocated a 'statesman-like' approachto the interpretation of the Constitution, to keep it 'up to date' and inaccordance with the supposed requirements of the nation. To some extenta properly interpretivist attitude would enable the Court to do this. TheCourt should interpret the text in the light of its purposes, and as Sir OwenDixon said, it was intended to be

an instrument of government meant to endure and conferring powers expressedin general propositions wide enough to be capable of flexible application to changingcircumstances.95

Non-interpretivists may think that this is all they need, because any'progressive' decision can be rationalised in this way. However, there is clearlya point, even if it is unclear just where it lies,96 at which flexible and purposiveinterpretation becomes amendment. At that point interpretivism shades intonon-interpretivism. Of course, non-interpretivism can always pose asinterpretivism, as Lon Fuller pointed out;97 but in many cases even the post­structuralists and hermeneuticists will be unable to conceal the imposture.Consider, for example, Murphy J's determination to read a Bill of Rightsinto the Constitution by 'implication'. Except in extraordinary circumstances,where the law no longer commands respect, non-interpretivism is unacceptablefor many reasons. Chief among thenl is the rule of law itself. Section 128of the Constitution says "This Constitution shall not be altered except inthe following way ...". It is commonly argued that the referendum procedureprescribed by s 128 is so cumbersome and demanding that the Court shouldprovide an alternative avenue for change. But the Court has no more warrantthan the other branches of government, or the citizen, for disobeying aninconvenient law. Indeed, it has less when that law is the most fundamentalnorm of our legal systenl, on which the system's legitimacy and the correlativeobligations of its subjects partly depel)d.

90 Ibid 115.91 Ibid 166.92 Ibid 175.93 Ibid 33.94 Ibid 251.95 Australia National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 81.96 This is one of several important distinctions systematically ignored in the writings of the

critical legal studies 'movement'.97 L Fuller, "Positivism and Fidelity to Law - A Reply to Professor Hart" (1958) 71 Harv

L R 630,670.

391989] Realism about the High Court

5 CONCLUSION

I have discussed those parts of Galligan's argument with which I disagree.Needless to say, his book contains much information a.nd argument whichis of great value. It is a fascinating historical account of the inter-relationshipbetween the High Court and the broader political environment in whichit has worked. It will enliven the study of constitutional law by illuminatingthe social and political background of the major constitutional battles ofour federal history. But it is marred by claims inadequately supported bythe arguments and evidence he himself adduces: that the distinction betweenlaw and politics is artificial, that for the most part the Court's decisionshave been political in a sense which the judges have believed it importantto conceal, and that they have cleverly done so by disguising them in legalisticgarb. It is true that he himself sometimes contradicts these claims, but onlyinfrequently and inconspicuously. These claims may be harmful: if peopleare told that the Court has never been, and cannot be, apolitical, in anyimportant sense of the word, then many will conclude that 'anything goes'- the only question being whether the judges' politics are to be 'conservative'or 'progressive', a question to be settled (as it is now in the United States)at the time of their appointment.98

Galligan warns that non-interpretivism would undermine the integrity ofour judiciary, and ultimately our federation and our democracy as well. Itis therefore unfortunate that his unjustified claims may appear to enhanceits credibility.

98 An American author has argued that a first step in legitimising modern non-interpretivistjudicial review was to show that judges all along had engaged in it, so as "to destroy theearlier 'myth' that 'objectivity' in the interpretation and enforcement of law was possible":C Wolfe, The Rise of Modern Judicial Review, From Constitutional Interpretation to Judge­Made Law (1986) 13-14.