Literalism v Realism
Dr Andrew Cannon
A federation of independent
States
An Act to constitute the Commonwealth of
Australia
[9th July 1900]
WHEREAS the people of New South Wales,
Victoria, South Australia, Queensland, and
Tasmania, humbly relying on the blessing of
Almighty God, have agreed to unite in one
indissoluble Federal Commonwealth under the
Crown of the United Kingdom of Great Britain
and Ireland, and under the Constitution hereby
established
Constitutional basics
• Powers of the Commonwealth are limited
(s.51)
• Reserve powers lie with the States
• Protection of the States- the Senate
• Strong Trade Union involvementConciliation and Arbitration
The changing policies of the
High Court
• Griffiths CJ and Barton and O’Connor JJ:
States immune from Commonwealth power
• WWI- defence power and price control
• Engineers Case: Commonwealth laws within
power paramount over State laws
• Industrial Relations case: Corporations power
gives the Commonwealth power over everything
NSW v the CW (Industrial Relations Case)
s. 51(xxxv) (the CW has power to make laws in respect to )
conciliation and arbitration for the prevention and settlement of
industrial disputes extending beyond the limits of any one State
Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ (para
195): quoting Dixon CJ "The position of the federal government
is necessarily stronger than that of the States. The Commonwealth
is a government to which enumerated powers have been
affirmatively granted. The grant carries all that is proper for its
full effectuation. Then supremacy is given to the legislative powers
of the Commonwealth."
“… when it is said that there is a point at which the legislative
powers of the federal Parliament and the legislative powers of the
States are to be divided lest the federal balance be disturbed, how
is that point to be identified? It cannot be identified from any of
the considerations mentioned thus far in these reasons, and no
other basis for its identification was advanced in argument …”
Industrial Relations Case
majority: (para 142) “As remarked in Grain Pool of
Western Australia v The Commonwealth: ‘if a sufficient
connection with the head of power does exist, the
justice and wisdom of the law, and the degree to which
the means it adopts are necessary or desirable, are
matters of legislative choice’”
Kirby J: (para 494) “Legal analysis, expressed in words,
can only go so far. To pretend otherwise is to succumb
to the mesmerising effect of verbal formulae. It is to
deny the inescapably personal judgment of the
decision-maker in an illusory quest for an entirely
scientific objectivity that does not exist in the task of
legal characterisation.”
Industrial Relations Case
Kirby J: (para 534) “… a shift in constitutional realities
from the present mixed federal arrangements to a kind
of optional or "opportunistic" federalism in which the
Federal Parliament may enact laws in almost every
sphere of what has hitherto been a State field of
lawmaking by the simple expedient (as in this case) of
enacting a law on the chosen subject matter whilst
applying it to corporations …”
(para 614) “But there are limits. Those limits are found in
the express provisions and structure of the Constitution
and in its implications. This Court's duty is to uphold
the limits. Once a constitutional Rubicon such as this is
crossed, there is rarely a going back.”
The reality of increasing
Commonwealth power
•
•
•
•
The power of income tax shifted in WWII
GST and financial authority
War and international affairs
Making the Constitution fit reality
Literalism v Realism
• Sir Owen Dixon: rejects “the abrupt change of
conceptions according to personal standards or theories
of justice and convenience, which the judge sets up.”
• Sir Anthony Mason:“Yet in some respects his Honour’s
outline resembles an elegantly constructed mansion in
which some of the windows have been deliberately left
open.” “If applied too rigidly, the doctrine of precedent
produces both injustice and lack of rationality - the very
flaws whose purpose it is to expel. Thus adherence to a
past decision which reflects either a principle
undermined by subsequent legal development or the
values of a bygone era, will produce an unjust result,
judged by the standards of today.”
Literalism
• The supposed black letter law tradition
Dixon CJ: “... the Court’s sole function is to interpret a
constitutional description of power or restraint upon power
and say whether a given measure falls on one side of the
line consequentially drawn or on the other and that it has
nothing whatever to do with the merits or demerits of the
measure. … There is no other safe guide to judicial
decisions in great conflicts than a strict and complete
legalism.”
Rich J: “Now, it cannot be too clearly understood that this
Court is not in the smallest degree concerned to consider
whether such a project is politically, economically, or
socially desirable or undesirable.”
Realism
The Mason bench
An implied Bill of Rights:
• Freedom of political speech- Nationwide
News v Wills, Theophanous, Lange,
Roberts and Bass
• Native title- Mabo (No.2)
The basis to depart from
precedent
Brennan (retired CJ): “The existing body of law may
yield no relevant legal rule, or, in rare cases, may yield
a legal rule which is offensive to basic contemporary
conceptions of justice.” In overturning it, however, the
judge does not simply impose his private morality.
“The reasons for judgment in the higher appellate
courts increasingly look behind the legal rule to
discover the informing legal principle and behind the
informing legal principle to discover the basic value.”
Deane (retired J): recourse to Natural Law philosophy
Grey letter lawyers
Rich J in WWII: “(the Federation)… cannot hope to
survive unless it submits itself for the time being to
what is in effect a dictatorship with power to do
anything which can contribute to its defence.”
Gleeson CJ: “The less predictable the decision-making of
a final court of appeal, the less influential its decisions
will be, because it is the predictability of its conduct
that constrains the decision-making of lower courts.
…It is only to the extent to which other courts believe
they know how the High Court would resolve an issue
that those courts can subject themselves to its
authority.”
Some decisions of conservative
benchs
• The Bank Nationalisation Case: no compensation was enough
• The Communist Party Case: proscribing a political organisation
in times of peace is not within power
s.116:”The Commonwealth shall not make any law for
establishing any religion, or for imposing any religious
observance, or for prohibiting the free exercise of any
religion…”
• Jehovah's Witness case: taking their property is beyond power,
preventing their religious observance is not
• Commonwealth funding of religious schools is not “establishing
religion”
• Al Kateb: indeterminate detention is not a breach of
international treaty obligations
Extremes of judicial views
• Montesquieu said:“The judges of the nation are only the
mouths that pronounce the words of the law. Inanimate
beings who can moderate neither its force nor its
rigour.”
• Saleiles: “One wills at the beginning the result; one
finds the principle afterwards; such is the genesis of all
juridical construction. Once accepted a construction
presents itself, doubtless in the ensemble of legal
doctrine, under the opposite aspect. The factors are
inverted. The principle appears as an initial cause, from
which one has drawn the result which is found adduced
from it.”
A balanced view
Cardozo J: “The eccentricities of judges balance
one another. One judge looks at problems from
the point of view of history, another from that
of philosophy, another from that of social
utility, one is a formalist, another a
latitudinarian, one is timorous of change,
another dissatisfied with the present; out of the
attrition of diverse minds there is beaten
something which has constancy and uniformity
and average value greater than its component
element. … The pebble on the beach talking
loudly to its neighbour does not define the
shoreline.”
Conclusion
• The rule of law and judicial
independence
• Judicial power is delegated power
• Too conservative suppresses change
• Leads to too radical change
• The conservatives have been the most
radical: they get away with it when the
powerful in society agree with them
The Australian community is experiencing profound
social and economic change and it is better for the
judicial method to be open to incremental change so
that the courts express legal values that remain in
touch with the developing standards but are not
captive to sudden fashions. They need to test modern
ideas against the accumulated wisdom of the past.
They should be honest about their process. The
judiciary should be prepared to paddle in the
shallows of the sea of change but if they go surfing
with the politicians they may attract a degree of
controversy that undermines public confidence in
them and puts their role at risk.
Falie