INSIDE THE MASON COURT REVOLUTION

Vol. 16 No. 11 (November, 2006) pp.873-877

INSIDE THE MASON COURT REVOLUTION: THE HIGH COURT OF AUSTRALIA TRANSFORMED, by Jason L. Pierce. Durham, NC: Carolina Academic Press, 2006. 344pp. Cloth. $50.00. ISBN: 1594600619.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] politics.tamu.edu.

INSIDE THE MASON COURT REVOLUTION is the “go to” book for a solid, accessible analysis of recent jurisprudential changes on Australia’s High Court, an informative explanation of why these changes occurred, and thoughtful commentary on how permanent they may be. Jason Pierce is a political scientist at the University of Dayton. Because social science studies of the High Court by Australians (or by non-Australians for that matter) are as scarce as rain in the Outback, Pierce’s book stands out like Ayers Rock in an otherwise, often-empty scholarly landscape.

Pierce’s pivotal concern is the tenuous, perhaps transitory, transformation of the High Court’s role within Australian politics during 1987-95 when Anthony Mason presided as Chief Justice of the seven-member court. Although some earlier decisions hinted at what the future might hold, the Court’s “constitutional moment” arrived in 1992 when the Court recognized the pre-existing land rights of Australia’s indigenous peoples in MABO v. QUEENSLAND. Heightening the drama of the moment, the Court also declared in other cases that Australia’s constitution, which does not have a bill of rights, nevertheless provides grounds for developing an implied rights jurisprudence. Four years later, in 1996, shortly after Mason’s retirement, the Court, still under the sway of the role it sought during the Chief Justice’s tenure, handed down WIK PEOPLES v. QUEENSLAND, which ignited a firestorm of political threats aimed at the Court’s project. The Court’s decisions challenged a jurisprudential culture that had gone unchanged since Federation in 1901 and riled a legal community still largely suspicious of legal realism.

A persuasive political story demands more than musings about legal decisions, and to this end Pierce places the Mason Court in a broader historical, doctrinal, and institutional context. He skillfully pieces together traditional analyses of court decisions with less often used (in Australia) institutional information on the Court, e.g., changes in the composition of the Court’s cases and the appearance of interveners or amici curiae, that he collected specifically for his study. The empirical building blocks to the analysis, though, come from interviews Pierce conducted with eighty senior appellate judges and a dozen leading barristers and attorneys general over the period 1997-2001. (Pierce, it should be noted, ends his analysis in 2005 after the reelection of John Howard as Prime Minister the previous year, which allows him to trace the continuing political reactions to the Mason Court.) The appellate judges included current and former High Court judges, Federal Court of Australia judges, and state [*874] appellate judges; nearly two-thirds of the senior appellate judges who make up Australia’s smallish and intimate judiciary.

The book’s appendix and an earlier article (Pierce 2002) provide useful tips for social scientists thinking of knocking on the doors of chambers and courts he succeeded in opening. Elite interviews present unique challenges, and from the evidence at hand the author met them. The frank and open comments from the interviews add color and decorative detail to Pierce’s argument. More important to the structure of his explanation, however, is the scaffolding this “tightly knit elite group” of judges and attorneys collectively put together for him as they talked about the Mason Court.

According to Pierce’s informants, the Mason Court systematically moved away from a deeply entrenched “orthodox” role in Australia’s legal system toward what turned out to be a hazardous, unstable “politicized” one. Several aspects or “dimensions” of these dueling roles emerged “organically” from interviews. The orthodox role reflects traditional British legal methodologies that Australia inherited as a former colony and continued to emulate even after independence and which were shaped by 19th century Oxford scholar Albert V. Dicey’s arguments regarding parliamentary sovereignty and judicial deference.

Orthodoxy expects certainty in judicial decisions that narrowly apply the law to the resolution of disputes between private parties. Politics and the law occupy separate realms where judges serve as caretakers guarding the boundaries between the two. Without a bill of rights and given the federal structure of Australia, orthodoxy presumed the High Court’s responsibility dealt almost exclusively with the division of powers between the states and federal government. Legal reasoning was declaratory in nature, closely bound by the text of the law, and governed by precedent. Evolution in legal rules occurred interstitially according to common law tradition as existing rules were applied to novel situations. The “politicized” role turned orthodoxy on its head. Uncertainty was acknowledged. New rationales for decisions besides text and precedent were put forward. A “public model” of High Court litigation encouraging a wider range of participants emerged. The High Court stretched its jurisprudential horizons to include public policy questions of justice and personal rights that parliament had failed to address. MABO and implied rights naturally followed. And so did political challenges and eventually the High Court’s retreat from this politicized role.

Pierce advances an “interplay thesis” to explain the trajectory of the Mason Court’s project. The thesis is eclectic in nature and contingent in application. No single factor – say, changes in the ideological mix of justices reflecting appointments to the Court by conservative Liberal governments followed by Labor governments – suffices, and not all factors are equally important or influential at the same time. So, the thesis draws from the legal, attitudinal, and neo-institutional models [*875] in the American literature to identify key variables, but Pierce’s analysis neither replicates these models nor does it necessarily advance them.

Three chapters provide an historical overview of the Australian legal system and deploy the interview data to establish how the legal community perceived the High Court’s orthodox role and how this audience interpreted the Mason Court’s innovations. Pierce supplements this information with case-level data showing increasing numbers and proportions of cases involving constitutional issues that no longer focused exclusively on the Court’s traditional “meat and potatoes” questions regarding federalism or government powers. Following these chapters, Pierce concisely and clearly explores how the Court’s legal reasoning in landmark decisions changed with how it had reconceived its judicial role. The remaining three chapters investigate the causes and timing of the changes, and the High Court’s eventual retreat to orthodoxy.

Elections and institutional changes helped establish the timing and context of the High Court’s changes, but they did not determine them. Mason was appointed Chief Justice by a Labor government, and other Labor appointments buttressed the Court’s initiatives; the Court’s key decisions were also handed down with a sympathetic Labor government in power. Still, Mason first became a High Court justice as a Liberal appointee, and he gave few signs during his early years on the bench that he harbored serious doubts about the Court’s orthodoxy. Moreover, one of his key allies during the transformation was a Liberal appointment. Pierce conscientiously ponders the question whether the Court’s decisions simply reflected the ideological differences between Liberal and Labor governments that appointed the judges but concludes the facts on the matter are mixed. Individuals mattered, but certain institutional reforms enhanced the status and autonomy of the High Court that facilitated the Mason Court’s attempt to redefine its role.

Pierce collected data for High Court judgments from 1945-2001 that revealed a shift from the private to public model that accompanied the Court’s move away from orthodoxy. This change reflected in part government legislation. Non-party interveners and amici curiae rarely appeared in the High Court before 1976, when a Liberal government amended the Judiciary Act of 1903 to allow attorneys-general of the states and territories and especially the Commonwealth’s Attorney-General to intervene in constitutional disputes. Participation by other organized interests or groups, however, remains virtually non-existent compared to the tumultuous involvement of groups in United States or even more placid Canada. Three structural reforms were more crucial to the Mason Court’s transformation.

In 1977, Australia created a Federal Court with a varied jurisdiction. The importance for the High Court is that this reform removed a sizeable number of trials, mostly involving revenue and intellectual property questions, from the Court’s docket that had been heard by individual justices. Freed from the [*876] burden of trying these cases, the High Court justices could focus their energies more sharply on their appellate functions. The second reform went into effect in 1984 when the High Court gained control over its agenda after parliament limited the right to appeal and extended the Court’s discretionary authority to grant leave to appeal. While judges and barristers disagreed over whether the High Court deliberately chose cases that would promote its transformation, Pierce’s data show the dramatic shift in the origin of cases with the switch to discretionary leaves to appeal. The last important change took place two years later in 1986 with the abolition of appeals from Australia’s courts, including the High Court, to Britain’s Privy Council. This reform removed the last vestige of the Court’s colonial status that had cast a shadow over the High Court as Australia’s final court of appeals. Peirce presents very interesting information on the outcomes of Privy Council appeals from Britain’s colonies and the Commonwealth during the 20th century and draws attention to the operation of this mostly overlooked transnational court. For Australia, its High Court no longer would be second guessed by Law Lords sitting in Westminster as members of the Judicial Committee of the Privy Council.

Throughout his book, Pierce deftly presents comparisons between the High Court and Canada’s Supreme Court and the U.S. Supreme Court. It would be appropriate therefore to follow Pierce’s example and place his study in the context of McGuire’s (2004) argument that institutionalization of the U.S. Supreme Court – i.e., its durability and autonomy – has enabled the American justices to satisfy their policy objectives. McGuire develops an index of institutionalization using seven indicators. Five are relevant to this review: the location of the Supreme Court, circuit riding, a discretionary agenda, federal judicial experience of the justices, and law clerks. Australia’s High Court did not move into its new building in Canberra until 1980, which symbolized, much like Canada’s Supreme Court move to its building overlooking the Ottawa River in 1946, a coming of age. For most of the High Court’s history, moreover, it sat alternately in Sydney or in Melbourne; rather like riding circuit.

As noted earlier, the High Court’s discretion to grant special leave to appeal, won in 1984, gave it control over its docket, like Canada’s Supreme Court in 1975. Creation of the Federal Court of Australia in 1977 created a steppingstone to the High Court, and over the past three decades several High Court justices have served on the Federal bench before being elevated. Canada’s Federal Court was established somewhat earlier in 1971 and has proven to be a less reliable path to the Supreme Court. Finally, Canada’s high court started hiring clerks in 1968, and now each justice has three clerks. Australia’s court lagged behind its Commonwealth peer, and only in the 1990s, while the Mason Court’s tide was running high, began to appoint two “associates” for each judge to perform many of the functions of the clerks in the U.S. Supreme Court. These parallels between Australia, the United States, and Canada [*877] suggest a larger story of how institutions shape judicial policy making.

The parallels break down in one important area, however. The sub-title of Pierce’s book, “The High Court of Australia Transformed,” could justifiably include a question mark. As observers of Canada’s Supreme Court note, its role changed dramatically with the advent of the Charter of Rights and Freedoms, and yet its stature – despite brickbats and criticism – has scarcely been diminished. Australia’s High Court lacks this constitutional infrastructure, and without a bill of rights, the Court’s endogenously produced attempt to transform itself lacked an independent rationale to justify a politicized role. Adverse political winds encouraged the Court’s retreat, and new appointments by Prime Minister Howard’s thrice-elected conservative Liberal government, aided by Australia’s mandatory retirement age of 70, which encouraged turnover, have dramatically changed the ideological composition of the Court. Doctrinal initiatives have been sidelined, and the Court has become more cautious. The absence of a constitutional structure to support the politicized role was like navigating the tricky and dangerous Bass Strait during the Sydney to Hobart yacht race with insufficient rigging and too much sail. The Mason Court’s chief legacy, Pierce concludes, is that its precedent-setting decisions continue to stand as alternatives to orthodoxy, which a High Court sometime in the future may pull out to chart another attempt to redefine the High Court’s role in Australia’s polity.

REFERENCES:

McGuire, Kevin T. 2004. “The Institutionalization of the U.S. Supreme Court.” 12 POLITICAL ANALYSIS 128-142.

Pierce, Jason L. 2002. “Interviewing Australia’s Senior Judiciary.” 37 AUSTRALIAN JOURNAL OF POLITICAL SCIENCE 131-142.

CASE REFERENCES:

MABO v. QUEENSLAND, [No 2] (1992) 175 CLR 1.

WIK PEOPLES v. QUEENSLAND, (1996) 187 CLR 1.

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