High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

High Court Review 2006: Australian Federalism—Implications of the WorkChoices Decision

This year's High Court Review focuses exclusively on the WorkChoices decision, in which the federal government's new industrial relations regime was upheld by the High Court as within the Commonwealth's powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Court's preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.     

High Court review 2003: the centenary year

2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal of Political Science.     

High Court Review 2010: The Resurgence of Rights?

In 2010 the High Court delivered several judgments with potentially significant implications for the protection of human rights in Australia. It invoked the doctrine of the implied constitutional freedom of communication in Aid/Watch; found that offshore processing of asylum seekers must comply with procedural fairness and natural justice; invalidated elements of the SA government's control order scheme as it encroached on the independence of the judiciary; and invalidated amendments to electoral laws that shortened the period for enrolment. In this review we evaluate the implications of these decisions in the wider context of the protection of human rights in Australia. We argue that while these decisions have made an important contribution to restating the boundaries of rights protection, there are significant limitations in relying on judicial review as a mechanism of rights protection within the Australian constitutional framework.     

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.     

High Court Review 2009: Exit Kirby,Enter Consensus?

In its first full year under the leadership of Chief Justice Robert French, 2009 marked two key developments in the High Court: the retirement of Justice Michael Kirby and a shift to greater consensus amongst members of the bench. The first part of the Review analyses Kirby's contribution to Australian jurisprudence and asks whether lower rates of dissent can be attributed to his exit alone. The second part of the Review examines the key constitutional decisions handed down by the Court in 2009, which decided matters relating to the acquisition of property on ‘just terms’ in the Territories, the application of the Kable doctrine to preserve the separation of powers in the States and the source and scope of the Commonwealth's power to spend.     

Historical Consensual Norms in the High Court

There is a substantial political-science literature that discusses the notion of consensual norms in the US Supreme Court. Most of this literature assumes that consensual norms exist, rather than proving their existence. Caldeira and Zorn ( American Journal of Political Science 42: 874-902, 1998) use the method of cointegration developed in econometric time-series analysis to prove the existence of a single consensual norm in the US Supreme Court. This study applies cointegration analysis to historical time-series data on dissenting and single judgments to examine whether there is a single consensual norm in the High Court of Australia. The study finds that a single consensual norm does not underlie decision making in the High Court. This result is explained on the basis that the institutions underpinning decision making and the approach to decision making are different between the Australian High Court and the US Supreme Court.     

The Prestige of Australian State Supreme Courts Over the 20th Century

This article measures the prestige of the Australian State supreme courts and examines competing explanations for differentials in their prestige over the course of the 20th century. The study finds that the prestige of the State supreme courts are positively correlated with the reputation of their Bench, proxied by the number of High Court judges from that State; socioeconomic diversity in that State, proxied by the State's population; and legal capital, proxied by the number of pages of the official law reports of the State supreme court.     

Globalisation,Neoliberalism and the Transformation of the Australian State

A review of the literature is used to construct a model of economic 'globalisation' and its implications for the state. Three theses are derived from this exercise: the 'economic globalisation thesis', the 'loss of state sovereignty thesis' and the 'neoliberal convergence thesis'. These theses are assessed empirically, the latter two against Australian evidence. The paper argues that while the Australian state has lost considerable sovereignty, this effect is more pronounced at the macroeconomic level than at the microeconomic level. And though it can be argued that Australia broadly conforms to the pattern of 'neoliberal policy convergence', the paper argues that 'externalist' explanatory accounts of the type offered by the globalisation thesis overlook important domestic pressures for neoliberal policies.     

Asylum-seekers in Australia's international relations

The paper is divided into five sections. In the first, I offer some observations on the nature of 'sovereignty', and on the place of 'border controls' within sovereignty discourse. In the second, I discuss what it means to be a 'middle power', and what 'soft power' resources a middle power may need to use. In the third, I argue that crude populism has shaped recent responses to asylum-seekers, with scant regard to some of the wider consequences for Australia's reputation, but suggest that part of the blame lies with past failures of the foreign policy establishment to recognise genuine concerns entertained at mass level about the morality of Australian alignments and affiliations. In the fourth, I outline the key elements of Australia's recent policies towards asylum-seekers, and argue that they entail costs in terms both of Australia's reputation, and the nature of the Australian polity. In the fifth, I suggest some new directions to pursue.     

The role of attitudinal,institutional and environmental factors in explaining variations in the dissent rate on the High Court of Australia

This paper examines the role of attitudinal, institutional and environmental factors in explaining the dissent rate on the High Court of Australia (hereafter High Court) using data for the period 1904–2001. The paper's main conclusion is that the majority of attitudinal and institutional factors tested are important predictors of variation in the dissent rate while the urbanisation rate, which is used to measure socio-political complexity, has no statistically significant effect on the High Court's dissent rate.     

The High Court of Australia and political science: A revised historiography and new research agenda

The judiciary has not been the subject of sustained scrutiny within the political science discipline. The High Court plays a central role in the Australian political system, however, and the exercise of judicial power has far reaching consequences for the legislative and executive branches of government. This article presents a historiography of the study of the High Court by political scientists, using Helen Irving's ‘The Constitution and the judiciary’ as a foil. In order to foster cross-disciplinary study and research within the political science discipline, this article concludes by setting out a new research agenda for the future study of the High Court and the law by political scientists. This research agenda provides new insights into (among other topics) how judges exercise power and the changing relationship between the judiciary and the legislative and executive branches.

在政治学里,司法并不一直是审视的对象。不过,高等法院在澳大利亚的政治体系内扮演了关键的角色,司法权力对于立法和行政部门有着深远的影响。本文将政治学者对高等法院的研究做了历史的梳理,采用了海伦厄万的“宪法和司法”理论为参照。本文为将来政治学者研究高等法院及法律提出了新的研究课题,希望以此促进跨学科以及政治学科的研究。这些课题探讨法官如何行使权力,探讨司法与立法以及行政部门之间变动不居的关系。     

The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²     

High court review 2005: The manifestation of separation of powers in Australia

In 2005 questions were raised in public debate regarding the scope, meaning and manifestation of the constitutional separation of powers and the role of the High Court in interpreting these. In particular, the issue of the efficacy of checks and balances within the system of government against potential abuses of executive powers was raised, due to the dominance of the legislature by the executive for the first time in 24 years. This Review argues that while the High Court staunchly defended its independence and the role of the judiciary in a division of powers, it demonstrated a simultaneous reluctance to curb executive powers. This has implications for the manifestation of separation of powers in the Australian context, both in terms of its philosophical foundations and in so far as it signals a trend away from the likely realisation of public expectations of its role as expressed in appeals made to it.     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

Separation of Powers in Australia

This article argues that the nature and character of separation of powers in Australia has been fundamentally shaped and defined by the High Court, which chose a Blackstonian, common law conception of separation of judicial powers in preference to the principles elaborated in The Federalist and articulated in the American Constitution. But the Court's recent jurisprudence, including its admission that it makes the law, has presented unprecedented theoretical and political challenges to the concept of separation of judicial power in Australia, including a transformation in the role of the attorneygeneral, the creation of new institutions and a move towards an American conception of checks and balances. Thus this article suggests that the Court continues to exercise a profound influence on the formulation of separation of powers in Australia.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

The Voting Rights of Incarcerated Australian Citizens

Drawing on and combining political science and legal frameworks, this article explores the validity of disenfranchising Australian prisoners. The authors examine and critically assess the various arguments used in Australia by both legislators and High Court Justices to defend the practice of disenfranchisement. Such arguments are assessed against liberal democratic principles as well as jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. The authors show that in settings that entrench voting rights in the Constitution, any infringement attracts strict scrutiny from the courts. Courts insist that any abridgement of voting rights should serve a legitimate government purpose and be proportionate to that purpose. The arguments made for prisoner disenfranchisement by legislators in the Australian context invariably fail both parts of this test.     

The ‘Evidence’ of sex,the ‘Truth’ of gender: Shaping children's bodies

This paper is about the body, specifically a child's body, as a site where identity becomes contested. It is also about a surface or space where we lay claim—a site of vested interest. In April 2004, the Australian Family Court ruled that a 13-year-old child (Alex) had gender identity dysphoria and decided to allow reversible hormonal treatment. The Court ruling produced considerable legal, medical and public reflection over whether these decisions were in Alex's best interests, whether Alex was able to make such a decision at his age, and to assess Alex's competency. These debates also aimed to fix sex and gender through the deployment of a nature and nurture framework. The purpose of this paper, using the example of Alex, is to illustrate the various ways that these claims over a child's body, undermine the possibility for rethinking sex and gender.     

Australia's decision to initiate Whaling in the Antarctic: winning the case versus resolving the dispute

On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.