The ConstitutionalConversation betweenthe Courts and Parliament

Hon Justice R. G.Atkinson Judge of the Supreme Court of Queensland

The rather unusual title for this address to the 2000 Annual General Meeting of the Queensland Chapter of the Australian Study of Parliament Group derives from an article in the Public Law Review of March 1999 by Associate Professor Hiebert from the Department of Political Studies at Queen's University in Canada. Her article is entitled 'Why Must a Bill of Rights be a Contest of Political and Judicial Wills? The Canadian Alternative'.' Her thesis is that the Canadian Charter of Rights and Freedoms has introduced a new framework for facilitating what she calls 'conversations' between parliaments and courts about the importance that should be attached to citizens' rights and the justification for actions of the state that conflict with protected rights. In Australia in recent times, particularly after the High Court's decisions in Mabo v Queensland (No 2)* and Wik Peoples v Q~eensland,~ courts and judges have been the subject to unprecedented attacks by parliamentarians. The present paper considers how appropriate communicationbetween the two great institutionsin our society can be fostered so that such antagonism can be replaced with mutual respect for each other's proper roles within a democracy. In doing so, I will be drawing on the public reactions to Australian, Canadian, British and South African cases to examine the health or otherwise of the relationshipbetween parliaments and the judiciary. The notion of a civilised constitutional conversation between the great institutions of our democratic society about the rights of citizens seems eminently sensible. In Australia the various organs of government, in particular the legislature and the judiciary, traditionally show each otherwary respect. As in otherwestern democracies, theparliament passes legislation and the courts endeavour to enforce the law by giving effect to the will of parliament expressed through that legislation. At times it is not easy to divine what the legislative intention is and various rules for the interpretationof legislation have developed as a result. Often judges will be required to iron out the incompleteness and ambiguities of laws and even inconsistencies between laws? The courts also apply the common law and from time to time anomalies in the common law give rise to what individualjudges perceive to be injustice. In those circumstances, in their judgments judges may call for legislative action to correct a common law rule which apparently gives rise to inj~stice.~ For the most part courts and parliaments are very restrained in their dealings with one another. It is in the public exercise of their respective roles that the separation of powers is most clear in Australia's version of the Westminster system. However, some members of the legislature have occasionally had an explosive, even abusive, reaction to decisions of court^.^ By their very nature, courts often find themselves unable to respond to criticism of this type. It is essential to their proper constitutional role that the courts remain 1 (1999) 10 Public Law Review 22. 2 (1992) 175 CLR 1. 3 (1996) 187 CLR 1. 4 Foster, Sir C, 'The Encroachmentof the Law on Politics' (2000) ParliamentaryAffairs 328 at 340. 5 See, for example, Carlowev Frigmobile P A [I9991 QCA 527 at [9]; Row v WilltracPty Ud [I9991 QSC 359. 6 Mason, Sir A, 'No place in a modem democratic society for a supine judiciary' (1997) 35 (11) Law Society Journal 51.


2 Hon Justice R.G.Atkinson

depoliticised.The CommonwealthAttorney-General,after sayingin 1997that SirAnthony Mason was ignoring contemporary reality when he asserted that the role of the AttorneyGeneral was to defend the judiciary when it is under attack, has more recently said that while it was appropriate to have public debate on Court decisions, it was wrong to attack judges pers~nally.~He conceded that sustained political attacks capable of undermining public confidence in the judiciary, call for defence by the Attorney-General. [plersonal attacks against individual judges are likely to undermine public confidence in the judiciary and thereby damage the legitimacy necessary to its effective functioning as the third armof go~ernment.~ Of course tensions of this nature exist in other countries. In the US there has been considerable constitutional tension between the legislature and the judiciary particularly over the conflictbetween the United StatesSupremeCourt's interpretationof constitutional principles and legislative priorities. For example, the US Supreme Court recently invalidated a six year old provision of a federal law that permittedvictims of rape, domestic violence and other crimes 'motivated by gender' to sue their attackersin the FederalCourt. The Court, in a five to four decision in United States v orriso on? struck down the civil remedy provisions of the Violence Against WomenAct of 1994. The majority held that the interstate commerce clause of the Constitution was not sufficientto support the statute in question. While the SupremeCourt had over many years allowed Congress considerable latitude in regulating conduct and transactions under the commerce clause, in 1995in The United States v Lopez10the Court expressedthe limits on that power. The Courtheld that s 922(q) of the Gun-FreeSchool Zones Act could not be supported under the interstate commerce clause because it was 'a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terns'. Similarly the Court in Morrison12held that 'gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.' The minority opinion, written by Justice Souter, paid explicit respect to the findingsof Congress. Passage of the ViolenceAgainst WomenAct in 1994had been preceded by four years of hearings which included testimony from medical practitioners and law professors; from survivors of rape and domestic violence; and from representatives of state law enforcement agencies and private business. This testimony led to no fewer than eight separate reports by Congress demonstrating the economic effect of this violence. The annual economic detriment of domestic violence and sexual assault was estimated as being $3 billion in 1990 and $5 to $10 billion in 1993. Gender-based violence in the 1990s was shown to operate in a manner similar to racial discrimination in the 1960s in reducing the mobility of employeesand their production and consumptionof goods shipped in interstate commerce. Like racial discrimination, 'gender-based violence bars its most likely targets -women -from full participation in the national economy'.13 Congress acted after dozens of studies showed that women seeking relief faced considerable obstacles from statejudicial systems that regarded sex offences as unworthy of serious attention.14Justice Souter predicted that the change in the Court's view of the

7 Lagan B, 'A-G will act to curb attacks againstjudges' Sydney Morning HeraZd, 9 December 1998 at 2. 8 Williams D, 'Judicial Independence and the High Court' (1998) 27 University of WesternAustralia Law Review 140. 9 529 US (2000). 10 514 US 549 (1995). 11 514 US 549 (1995) at 561. 12 529 US (2000). 13 United States v Morrison 529 US (2000) at 9. 14 Greenhouse L, 'Women Lose Right to Sue Attackers in Federal Court' New Yo& Times, 16 May 2000,US v Morrison 529 US (2000) at 27-28 per SouterJ.


The ConstitutionalConversationbetween the Courfs and Parliament 3

scope of the interstate commerce power would eventually prove as serious a wrong turn for the Court as the decisions of the 1930s that, in rejecting elements of the New Deal, provoked the crisis of 1937when President Rooseveltthreatened to stack the US Supreme Court. The decision to limit the provisions of the Violence Against WomenAct drew criticism from senators who had sponsoredthe law about the appropriatedivision of power between the courts and the legislature. These were not personal attacks but a serious response to the question about the respective roles of the two arms of government. Senator Joseph Biden, the chief Senate sponsor of the Violence Against Women Act, said at a news conference on 15 May 200015 that 'this decision is really all about power: who has the power, the court or Congress?' He said there had been a notable improvement in the responseof the States to violence againstwomen sinceCongress put the issue on its agenda in the early 1990s. He predicted the decision would 'have a lot less impact on violence against women than on the future role of the United States Congress. The damage done to the Act is not as bad as the damage done to Americanjurisprudence'. Although Senator Biden's criticism was robust, in my view, the manner in which the debate was carried on is a sign of a healthy and free society.16 At the other end of the spectrumis the unacceptable, and more often thannot inaccurate, personal criticism of judges. An unpleasant example is found in political attacks on certain American judges over their willingness or otherwise to uphold the death penalty fuelled by the popular election of judges in some states.17 Supreme Court judges in Tennessee, California and Mississippi have lost office as a result of such attacks which misrepresent the record of the judge or the law. One particularly disgraceful example is that of Justice James Robertson in Mississippi, who lost ofice after he was attacked for a concurring opinion he had written expressing the view that the Constitution did not permit the death penalty forrape. In doing so, he and his fellowjudges were merely upholding theirjudicial oath. The US Supreme Court had held ten years earlier, in Coker v Georgia," that the Eighth Amendment did not permit the death penalty in such cases. This style of political attack on the judiciary has found no place in the Australian political landscape and yet some of the invective against the integrity and intelligence of individual judges and the institution of the High Court of Australia arguably fell into a similar category. Controversy is not limited to those countries with written constitutionsor bills of rights which must be interpreted by the courts. The latest issue of the British Law Quarterly ~ e v i a ocommences with a discussionon the limits of thejudicial functionin thatcountry. ' ~ This discussion was occasioned by the House of Lords' decision in Fitzpatrick v Sterling Housing Association ~ t d "which the authors describe as raising 'important questions as to the respective functions of the judiciary and the legislature'. The House of Lords held that the deceased man's male partner of 20 years was entitled to succeed to a protected tenancy as a 'member of the deceased tenant's family'. The authors of the article took the view that this matter, involving as it did questions of changing social attitudes to samesex relationships,was emphaticallynot a matter for the courtsbut for the Parliament. They ~bserved:~' [flew branches of the law more obviously reflect the outcome of conflict between competing

15 As reported in the New York Times, 16 May 2000. 16 Attorney-Generalfor New Sollth Walesv Mundqy [I97212 NSWLR 887 at 908 per HopeJA;Ambard vAttomyGeneralfor Trinidadand Tobago [I9361 AC 322 at 335 per Lord Atkin, see Chapman G, 'Criticismof Judges, Courts and judicial decisions, especially by politicians' (1995) New Zealand Law Journal 267. 17 Bright SB, 'Political Attacks on the Judiciary' (1997) 80(4) Judicature 165. 18 433 US 584 (1977). 19 Cretney S, and Reynolds F, 'Limits of the Judicial Function' (2000) 116 Law Quarterly Review 181. 20 [I9991 3 WLR 1113. 21 Note 19 at 184.


4 Hon Justice R.G.Atkinson

economic and political interests than the Rent Acts; few areas of the law are more calculated to arouse strongly divergent feelings than those concerned with the consequences of sexual relationships (although the three majority opinions show little doubt about correctly iden-g changesin social attitudesto same-sexrelationships).Whether that confidencewas securelybased or not, there is a powerful reason for regretting the fact that the majority considered the issue of successionrights appropriate forjudicial rather than legislativeaction. Is there an alternative to this institutional conflict? Not everyone demonstrates the leadershipprovided by President Nelson Mandela of SouthAfrica. When the Constitutional Court of South Africa struck down a law delegating broad powers to his administration, President Mandela immediately made a public announcement that the Court had spoken and its decision must be im~lemented.~~ In the context of the debate in Australia about the need or otherwise for a bill of rights and its possible effects on the balance of power between government and citizen with the judiciary as arbiter, it is interesting to return to some observations of Professor Hiebert in the article I referred to earlier. She suggeststhat the Canadian experience with its Charter of Rights and Freedoms offers an innovative and useful structure for avoiding political/ judicial stalemates.23The Charter, she suggests,24 by political circumstance rather than genius, provides a framework for resolving institutional disagreementsabout its interpretation.In doing so, [it] offers an alternativeway of thinking about how a bill of rights affects governing. Instead of encouraging a contest between political and judicial wills, the Charter envisages an ongoing and multi-layered constitutional conversation about the scopeand meaning of fundamentalhuman rights and on the importance andjustification of legislative objectiveswhen these conflict with protected rights. This constitutional conversation is guaranteed by two aspects of the Canadian Charter. The first is the general limitation clause which is in s 1 of the Charter and provides: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrablyjustified in a free and democratic society. The second is the legislativeoverride found in s 33 of the Charter which provides: 33. (1)Parliament or the legislatureof a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 - 15 of this Charter. These clauses were essential compromisesinsisted upon by provincial governments in return for their supportfor the Charter.25In Hiebert's opinion the advantageof these clauses is they allow for constitutional conversations about what priorities should be attached to conflicting objectives and rights, which draw from the comparative strengths of both judicial and representative institutions. Arguably, this mode of resolution, which allows for opportunities for institutional disagreement, offers a more balanced system of checks and balances than what exists in some political systemswhich have opted for, or have avoided, a bill of rights.26 This solution is particularly useful because codified rights do not necessarily provide for obvious or non-contentious resolution to rights conflicts. Furthermore it is legitimate to be concerned about the democratic implicationsof a small number of non-representative

22 Note 17 at 173. 23 Othercommentators have suggestedthat thereis grave conflictparticularlybetweenthe CanadianProvincial Court system and the governments which established them: Seniuk G, 'Judicial Independence and the Supreme Court of Canada' (1998) 77 CanudianBar Review 381; Re Judges' Reference [I9971 3 SCR 3. 24 Note 1 at 23. 25 Lougheed P, 'Why a notwithstanding clause?' Points of View/ Points de vue no. 6 (1998) 1. 26 Note 1 at 25.


The Constitutional Conversationbetween the Courtsand Parliament 5

and non-elected judges having the final word on what priorities are to be attached to social values." While the judiciary prides itself on objectiveness and impartiality, there is an equally crucial role for the exercise of political judgment by parliamentarians who are elected for that purpose. The existenceand respect for a neutral arbiter of disputes between citizen and citizen, and between citizens and the state, is also essential to the working of a democratic system.28 The sophisticationof the judicial task and the way in which it must be grounded in an understanding of social and political reality is amply demonstratedin the most recent case on the Charter: Granovsky v Canada (Minister of Employment and higration)? a decision of the Supreme Court of Canada. The Court was considering the constitutionality of a provision of the Canada Pension Plan for persons with temporary disabilities.In doing so it considered s 15(1)of the Charter which provides that: [elvery individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The appellant had been denied the disability pension. The Court stated that the issue before it30was that 'the pension was properly denied unless the legislation infringed the appellant's equality rights under s 15(1)of the Charter and cannot be saved under s 1'. It can therefore be seen that an essential part of the task incorporates a consideration of the general limitation clause in s 1 of the Charter. In paragraph 33 the Court said: [tlhe Charter is not a magic wand that can eliminate physical or mental impairments,nor is it expected to create the illusion of doing so. Nor can it alleviate or eliminate the functional limitations truly created by the impairment. What s 15 of the Charter can do, and it is a role of immense importance, is address the way in which the state responds to people with disabilities. Section 15(1) ensures that governmentsmay not, intentionallyor through a failure of appropriate accommodation, stigrnatise the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairmentdoes not entail, or fail to recognise the added burdens which persons with disabilities may encounter in achieving self-fulfilmentin a world relentlessly oriented to the able-bodied. The Court referred to many outstanding examples of persons with quite severe disabilities who have made extraordinary contributions to society. As they point ouf3' Beethoven was deaf when he composed someof his most enduringworks. FranklinDelano Roosevelt,limited to a wheelchair as a result of polio, was the only president of the United States to be elected four times. Terry Fox, who lost a leg to cancer, inspired Canadians by his effort to complete a coast to coast marathon as he raised millions of dollars for cancer research. And Professor Stephen Hawking, struck by amyotrophiclateral sclerosis and unable to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist. In a carefully and closely reasoned decision applying tests developed in previous cases on the Charter,32and in the context of social reality, the Court was able to provide a principled solution to the problem in question. In the end it was unnecessary to deal with

27 See -th JAG, 'The Brave New World of Sir John Laws' (2000) 63(2) Modem Law Review 159; Gava J,

I

I I

1

I

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'The rise of the hero judge' The Australian Financial Review, 14 November 1996, p 21; Enderby K, 'Judges right to go in where politicians fear to tread. ..' m e Australian, 24 May 1993, 9. 28 Lord Steyn, 'The Weakest and Least Dangerous Department of Government -The Role of the Judiciary in a Democracy' [I9971Public Law 84. 29 2000 SCC 28. 30 Granovsky v Canada (Ministerof Employmt and Immigration)2000 SCC 28 at [15]. 31 Granovsky v Canada (Ministerof Employment and Imigration) 2000 SCC 28 at 1281. 32 Rodriguez v British Columbia (AttorneyGeneral) [I9931 3 SCR 519;Eaton v Brant CountyBoard of Education [I9971 1 SCR 241; EMridge v British Columbia (Attorney-General)[I99713 SCR 624;Law v Canada (Minister of Employment and immigration) [I9991 1 SCR 497.


6 Hon Justice R.G. Atkinson

an argument as to the general limitation clause found in s 1because the Court held there was no violation of s 15(1)of the Charter. It was, however, integral to the way in which the initial question was posed. The two limitations introduced into the Bill of Rights in Canada ensure that the democratic ideal prevails. A simcant role is preserved for the political judgment of the legislature. No single correct answer necessarily exists for the principled resolution of a rights conflict. A legitimate interpretation of a bill of rights is not necessarily derived exclusively from courts. As Hiebert says, '[rlather, it accepts the proposition that a range of acceptableand principled answers may exist and views the resolution of rights conflicts as a joint responsibility of courts and Parliament'.33 She conclude^:^^ [dlebates about adopting a judicially reviewable bill of rights inevitably generate polarised positions with respect to the competence and virtue of Parliament, as contrasted with courts, for evaluating Stateaction from a human rightsperspective. But reflection on the Canadianexperience with the Charter of Rights allows for a different variation on the debate. The Charterestablishes the rights and values that are to be the normative standards for evaluating State action. However, in expressing these, it does not presume thatjudges are the only institutionalactors whose voices are authoritative and legitimate when interpreting and resolving conflicts around rights. The Charter seeks to resolve social and rights conflicts by facilitatingconversationbetween Parliament and courts about the legitimacy of State actions, rather than generating a contest of judicial and political wills. In doing so, it recognises the legitimacy of institutionaldisagreements. This gives effect to what Sir Gerard Brennan referred to in the speech which he gave on the occasion of his retirement in 1998 as Chief Justice as:35 the mutual respect which the branches of Governmentmust have and demonstrate for the powers and functions of each. Mutual respect is the necessary acknowledgment of the constitutional distribution of powers and the manifesting of mutual respect accords with the expectation of the Australian people. As the present Chief Justice of Australia, the Honourable Murray Gleeson AC has similarly observed:36 [tlhe courts and the Parliaments have their own distinctive contributions to make to justice, and there is no reason why each side cannot continue to maintain a decent regard for the role of the other. So let me conclude by saying that a constitutional conversation may encourage the parliament and the judiciary to work in an independent but complimentary way as the separate arms of government. The advantage of a Charter is that it sets out the common aspirationsof citizens articulatedthrough the political process given effect to by the courts. A 'constitutional conversation' between the courts and legislature ensures that it is the citizens who are supreme rather than either institution which serves them.

33 Note 1 at27. 34 Note 1 at 34. 35 (1998) 193 CLR v. 36 Gleeson AM, 'LegalOil and Political Vinegar' (1999) 10Public Law Review 108 at 113.


Who Gets Cited? An EmpiricalStudy of Judicial Prestige in the High Court

RussellSmyth BEc(Hons) LLB(Hons)MEc (Monash)PhD (London),Senior Lecturer,Faculty of Business and Economics,Monash University.'

1. Introduction One of the distinctive features of appellate decision-making in common law countries is that most decisions are accompaniedby written reason^.^ In addition, most written reasons fordecision contain citationsto previous cases as well as secondarysourcessuch asjournal articles and textbook^.^ The cases which judges cite in their reasons are not always purely a matter of choice; some cases are cited because they are binding, while other cases are cited because of their persuasive value. However, when citing cases,judges sometimesgo one step further and refer to other judges by name. This practice is unusual because it is relatively rare and frequently unnecessary. When a previous judgement is cited, standard practice requires only that the publication title, volume, page numbers and deciding court (if not obvious from the publication title) be identified. The judgment's author, or the composition of the court, need not be named4This study attemptsto measure the prestige of successiveJustices of the High Court through counting the number of times that they are referred to by name in a sample of decisions of the High Court reported in the CommonwealthLaw Reports from 1995 to 1999. There are three related reasons why a study of judicial prestige in the High Court is worthwhile. The first is that little research has been done on the High Court itself or the Justices of the High Court. Writing in the mid-1980s, Lloyd suggested, 'Australia's High Court has generated a relatively meagre literat~re'.~This is still generally true today.6 Hence with the Centenary of the High Court approaching in 2003, a study that attempts to measure the prestige of current and past Justices is timely. Secondly, there is considerable debate about the relative standing of specific High Court Justices. Sir Owen

1 This article is part of an ongoing project investigating citation practice, decision-making and voting pattern in Australian and New Zealand courts. The author thanks an anonymous referee of this journal for thoughtful commentson an earlier version that helped to clarifythe important distinctionbetween influenceand prestige. 2 See Kirby M., 'Reasons for Judgement: 'Always Permissible, Usually Desirableand OftenObligatory' (1994) 12 Australian Bar Review 121. 3 For recent citationpractice studiesof Australian appellatecourts see SmythR., 'Academic Writingand theCourts: A QuantitativeStudy of the Influenceof Legal and Non-legal Periodicals in the High Court' (1998)17 University of Tasmania Law Review 164; Smyth R., 'What do Judges Cite? An Empirical Study of the 'Authority of Authority' in the Supreme Court of Victoria' (1999) 25 Monash University Law Review 29; Smyth R., 'Other than 'Accepted Sourcesof Law'? A QuantitativeStudy of Secondary Source Citations in the High Court' (1999) 22 University of New South Wales Law Joum159; Smyth R,'What do Intermediate Appellate Courts Cite?A QuantitativeStudy of the Citation Practice of Australian State Supreme Courts' (1999) 21 Adelaide Law Review 51; Smyth R., 'Law or Economics?An EmpiricalInvestigation of the Impact of Economicson Australian Courts' (2000) 28 Australian Business Law Review 5. 4 See Klein D. and Morrisroe D., 'The Prestige and Influence of Individual Judges on the U.S. Courtsof Appeal' (1999) 28 Jouml of Legal Studies 371,375-376. 5 Lloyd C., 'Not Peace But a Sword! - The High Court Under Latham' (1987) 11 Adelaide Law Review 175, 175. 6 The ARC funded 'High Court Project' at ANU, which is scheduled to publish a volume on the High Court by Oxford UniversityPress in 2001 is a big step towards changingthis situation.