The Role of the Judge
The traditional idea that the role of the judge is to interpret the law and the role of the legislature is to create law, has been subjected to sustained criticism. The extent of the law creating role of the judge depends on the context and circumstances. The common law in the pre-modern era during the period when the common law was being brought into existence, provided the judge a far more creative role than that which is available to the modern common law judge in England. The High Court in a manner which I have no time to explain has, in recent years, adopted a creative attitude (or may be destructive depending on the perspective) to the inherited English common law.
The role of the judge in the interpretation of Acts of Parliament may be more limited where parliament has taken pains to spell out its intentions, aims and objectives. In such a situation the role of the judge is limited to interpreting words and phrases and working out ambiguities arising from failures by parliament to clearly enunciate its will and purposes.
The role of the constitutional judge is wider than that of a judge operating in the modern common law system or interpreting an Act passed by Parliament.
The Constitution is an Act of the United Kingdom Parliament, but it is more than an Act of Parliament. In the words of Richard Latham one of the effects of the Engineers case was to tie the court to the crabbed rules of English statutory interpretation. This means that the court interpreted the Constitution like another statute. It placed primary emphasis on the words of the Constitution and the words of a challenged Act.
One can be legalistic without being literalist. Legalism involves the employment of tried and tested methods of ascertaining the meaning of a legal document as intended by the authors. In relation to a constitution, it may involve where necessary an examination of the totality of the document and the historical context. Literalism is quite a different proposition. It means the adherence to the literal meaning of language with no regard to extra-textual considerations or broader constitutional objects. Sir Owen Dixon was a legalist who avoided literalise.
The following judicial dicta provide a rationale for a different and broad interpretation of the Constitution.
O'Connor J stated in the Jumbunna Coal Mines case:
Where it becomes a question of construing words used in conferring a power ... on the Commonwealth Parliament, it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.
Higgins J. in AG for NSW v Brewery Employees Union of NSW stated:
Although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting — to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be.
These two quotations (including another by Windeyer J referring to the Constitution as the birth certificate of a nation) have been frequently quoted by the judges of the High Court.
There are two possible methods of broadly interpreting the Constitution.
The first approach is one which articulates a need to change and adapt the Constitution in the context of changing circumstances. The alternative approach is that the totality of the Constitution must be examined and interpreted in its historical context taking account of the intentions of the founders, leaving changes to the people in accordance with the amending procedure provided by the Constitution.
I therefore identify three approaches to constitutional interpretation — the literal technique, the broad interpretation in the light of changing circumstances, and, the broad interpretation in the context of the intentions of the founders. I propose to focus on these competing views.
Professor PH Lane (1988:606) writes about one High Court decision which favoured the Commonwealth thus:
"We detect a judicial concern for the ubiquity of a law-controlled community, and an unease about the escape of the individual, the interstate trader, from that uniformity".
He also notes that the judges had expressed a fear of putting more and more matters outside the authority of Australian parliaments.
Senator Gareth Evans argued
"It is the judges rather than the people or politicians who have in practice borne the primary responsibility of adjusting the Constitution to the reality of social and economic change".
Regrettably, however, this has not been good jurisprudence when the result was clearly to distort the constitutional compact.
The views of Sir Anthony Mason on the role of a judge and the High Court are provided in Australian Lawyers and Social Change (eds D Hambley and J Goldring) where he states
"in recent years the High Court has been less inclined to pursue formal legal reasoning so far".
He cites a number of examples of his impatience with traditional legal reasoning.
He is critical of the Boilermaker's case which excluded
"from the judicial power industrial arbitration as well as administrative and legislative functions".
There was good reason for excluding the arbitral function from the judicial power. The industrial body, court or commission, does not decide merely in terms of rules of law, but may consider a wide range of other functions. It is common knowledge that industrial bodies, in handing down their judgments take account of the industrial power which trade unions have and the implications which may ensue if an order or judgment which raises the anger of the trade union officials and the trade union movement is handed down. Therefore in those circumstances law and what is right, just and equitable, gives way to might. Might is often right in terms of decisions of these bodies. To regard these decisions as exercises of the judicial power will erode confidence in the judicial system.
Sir Anthony also provides an example of the High Court submerging in the general duty of care the particular duties ordered by an occupier to different entrants on his premises. Sir Anthony prefers a general rule applying to all types of entrance. The common law, guided by reason and common senses has taken the view that it would be unfair and unjust to treat all persons coming on the property in the same way. Sir Anthony prefers a general and convenient rule to a rule which provides flexibility and adaptation to individual cases. There may be problems with the application of the rule and distinctions, but these are more than counter-balanced by the benefits of attempting to relate to particular situations and not treating different categories as if they were similar.
Sir Anthony also argues that the courts have a responsibility
"to develop the law in a way that will lead to decisions that are humane, practical and just".
Such a formulation provides a slippery slope for judges.
The word "just " seems to provide at first sight a greater degree, of objectivity than the other two phrases, but at first sight this is misleading. The conceptions of what is just, or what is justice, vary. The traditional common law courts were concerned with providing justice in an individual case which involved balancing the conflicting interests of particular parties in a dispute. By comparison, the concepts of social justice and commutative justice impose very different considerations.
Sir Anthony says in the same article
"it is unrealistic to presume any instrument, whether it be by a constitution, a statute or a contract, by reference to words alone, without any regard to fundamental values".
What are fundamental values? Fundamental values of a Marxist, a Socialist, an anarchist, or objectivist, a Liberal, a Libertarian, or a traditional moralist, would be very different. The fundamental values of John Halfpenny, Garry Hand (ALP Left), Paul Keating (ALP Right) Ian MacPhee (Left Liberal), John Howard (Centre Liberal), Jim Carlton (classical Liberal), Joh Bjelke Petersen (Conservative), Fred Nile (Traditional Moralist) and the late Archbishop Penman (Christian Socialist) would be vastly different. Sir Anthony then proceeds
"by values I mean those that are accepted by the community rather than those personal to the judge".
Sir Anthony is apparently confusing community values and fundamental values. There is, however, no indication that Sir Anthony in his judgments on the common law and the constitution which have involved departures from existing precedent, has paid any regard to community values. How are community values to be assessed?
Sir Anthony's judgments seem to reflect the dominant values of the academic community — are these community values? A respected and impartial organisation such as the Roy Morgan Value Study has found that only 4% of the Australian people favour more intervention in the lives of ordinary Australians. Yet one of the bases of Sir Anthony Mason's interpretation of the constitution is that it must be interpreted so as to provide more room for Parliaments to operate. Where is Sir Anthony's respect for community values?
The dismissive nature of the judicial approach of Mason J (as he then was) is illustrated by his dicta in Actors and Announcers Equity of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169.
The issue which arose in that case was about the interpretation of section 51(xx). Section 51(xx) confers power on the Commonwealth Parliament to make laws for foreign corporations, trading and financial corporations.
It was argued (and the argument was accepted by Gibbs CJ and Wilson J) that the legislative power available to the Commonwealth was in respect of the trading activities of trading corporations and the financial activities of financial corporations. This view was summarily dismissed by Mason J in the manner provided in the quotation below. What is significant about the argumentation of Mason J is that he dismissed the views of the Chief Justice and the other justice in a manner which provided no room for the operation of a competing point of view. There were clearly two different methods of interpretation. Mason J however, seemed to be unable to accept the existence of an opposing point of view. This is the disturbing aspect of his approach.
The approach of two other justices (including the Chief Justice) was dismissed by Mason J in the following manner:
Nowhere in the Constitution is there to be found a secure footing for an implication that the power is to be read down so that it relates to "the trading activities of trading Corporations " and, I would suppose, correspondingly to the financial activities of financial corporations and perhaps to the foreign aspects of foreign corporations ... The competing hypothesis, which conforms to the accepted approach to the construction of a legislative power in the Constitution, is that it was intended to confer comprehensive power with respect to the subject matter so as to ensure that all conceivable matters of national concern would be comprehended. The power should, therefore, in accordance with that approach, be construed as a plenary power, with respect to the subjects mentioned free from the unexpressed qualifications which have been suggested. Actor Equity at 207-8
The dismissive rhetoric of Mason J ignores the words "with respect to " at the beginning of 51 and with which the words of section 51(xx) must be read. There must be a relationship between a law and the corporation. Section 51(39) contains the words "incidental to ". Whatever "respect to " and "incidental to " mean, there must be a relationship between the Act and in the terms of section 51(20) the Corporation.
The conclusion of Mason J is based on the impossibility of a foreign corporation's activities being foreign. There is a simple answer. The adjectives which precede corporation must be construed in context. In relation to a trading corporation what must be considered is its "trading nature" in determining the relationship between the activities and the corporation. The same applies to a financial corporation. In relation to a foreign corporation it is the foreign nature which is relevant. Thus a corporation which has been created abroad and which enters Australia and operates, can be regulated in a way which takes account of its foreign nature.
Trading and financial corporations are created in Australia (whether under State legislation or Federal). The drafters of the Constitution envisaged that the such corporations would be created under State law. What is relevant about a foreign corporation is that it has been created abroad.
There is obvious scope for differing views as regards the meaning of "with respect to" and what constitutes "incidental" and the words of section 51(xx). But who can deny and pretend that there need be no connection? Who can deny the existence of alternate views, except a judge who is unable to see an alternative point of view? This is unfortunate because it seems to point to an incipient totalitarian mentality. The incipient totalitarian mentality consists in the dismissive approach, involving failure to recognise and comprehend the existence of a differing point of view.
This approach of dismissing opposing points of view and refusing to recognise their existence is common in political, academic and social discourse. There is no room for such an approach within the judicial system.