Much ado about Mason

The publication of Jason Pierce’s book Inside the Mason Court Revolution: The High Court of Australia Transformed has stirred up the smouldering embers of past controversies on judicial activism. The frank and anonymous comments contained within Pierce’s book purport to be from past and present members of the judiciary. The comments are candid and those quoted by Janet Albrechtsen in her article in The Australian (July 14, 2007) are indeed controversial.

It would appear that some members of the judiciary are scathing in their appraisal of the Mason court whereas others are less than complimentary in their views on politicians. There is equally much division in their views on the appropriate role of the judiciary within the legal system.

No doubt Pierce’s book will be a fascinating insight into the Mason Court. It will also be quite illuminating in relation to the private views of our nation’s judges. Though a caveat must be added that the opinions are all anonymous. That said, there is no suggestion that the opinions are not genuine.

However, whether the book really challenges our perceptions of the Mason court, its place in history and the proper role of the judiciary, is quite debatable. Indeed, while the so-called traditionalists might rail against the decisions of the Mason court there has yet to be a convincing analysis to suggest that its two landmark decisions, Mabo and implied rights, are in fact wrong.

First, the Mabo decision is simply a correct legal analysis of a seemingly intractable problem. Recognising native title rights may well have solved a difficult political problem, but this was incidental and not central to the legal question at hand. Explaining this point to non-lawyers is difficult. But in its simplest terms all land that is owned within the common law system is held by grant of the Crown. The Crown sits at the apex of our constitutional system and has the highest claim on the land. However, not all the land that is owned within Australia under a property-type of relationship owes its ownership to a grant from the Crown.

Whereas the Crown may have gained sovereignty over Australia at the time of settlement this did not mean that it disturbed or extinguished all the forms of property ownership within the land. There were some parts of the land to which the common law did not spread. To actually acquire ownership of all the land the Crown would have needed for Australia to be terra nullius.

While terra nullius may have gained a particular stigma within Australia it is actually a simple concept within international law. In this context terra nullius requires that there either be nobody on the land or that the people on the land not be asserting any sovereign or ownership rights over the land.

The previously held view of the Australian Government and courts that Australia was indeed terra nullius at the time of settlement was simply wrong. It is more than clear that the Indigenous peoples of the past, and some surviving groups in the present, had legal systems and asserted property rights over land.

Given all that we know now anybody who continues to assert that Australia was terra nullius at the time of settlement simply has no credibility.

It followed that the High Court needed to explain how surviving Indigenous property rights could co-exist with the Crown. The answer supplied by the High Court was that upon settlement the Crown gained radical sovereign title to Australia.

Where native title ceased to exist the land was held by grant of the Crown under the doctrine of tenure. Where native title continued to exist the title was independent of the doctrine of tenure but could be extinguished by a valid Crown grant. The limitation upon this last point is that where the Crown now extinguishes native title it may be required to pay compensation by virtue of the Racial Discrimination Act 1975 (Cth). Australia cannot derogate from the Racial Discrimination Act being there is a jus cogens norm against racial discrimination.

There is much more complexity now to native title, but in a nutshell that is the basic gist of the Mabo decision. It created a political stir at the time. Much of the controversy owed itself to the perfectly understandable fears of non-lawyers as well as the exaggerations of some politicians. But for all the rumblings our democracy survived. More importantly, the High Court corrected what had been a profound legal wrong on the basis of a sound and robust legal analysis.

The methods of the Mason court may be criticised by some commentators: but there has yet to be anybody who has put forward, in my view at least, a compelling legal argument against the Mabo decision.

Indeed, the debate about legal methods is somewhat of a red herring. It is unthinkable that a living breathing discipline such as the law, should remain rooted to the methods of analysis that existed 100 years ago. No one would dare suggest that doctors should operate today with the same methods they employed a century ago. Similarly, the law should develop within its constitutional limits.

The second major controversy of the Mason court relates to implied rights. This is an area where the methods of the so-called traditionalists and the Mason court are brought starkly into relief. In effect this is a division between textualists and contextualists within the law. A simple textual analysis of the Australian constitution would discern no guarantee of freedom of speech on political matters. To a textualist the debate would end there. But the Mason court found that sections 7 and 24 of the Constitution guaranteed an implied freedom of political communication.

The basis of the argument was that as sections 7 and 24 of the Constitution dealt with voting there could be derived from these provisions a restraint of government action that would limit freedom of speech on political matters.

In effect, the legislature was restrained from using its powers under one part of the Constitution to undermine the purposes on another part of the Constitution. That is, to say that Australia has a democracy, but to then allow the government to restrain political speech, would turn the democracy into a hollow exercise.

This caused great controversy because the High Court departed from a staid textual analysis of the Constitution to actually look at why the provisions existed in the first place. Again, the legal analysis of the High Court is sound in this area and nobody has advanced a strong legal argument to do away with implied rights. In fact, even with an ardently conservative government in place over the past decade neither implied rights nor native title itself has actually been repealed.

The Mason court was criticised then and now for advancing a liberal political agenda. But if the Mason court truly wished to advance such an agenda then surely it would have decided against implied rights because, at the time, the Keating Government was seeking to place restrictions of political advertising.

It is a tenet of liberalism that participation in democracy should not be dependant upon wealth. But political advertising skews participation in politics in favour of those actors with great wealth. In this regard the Mason court really was blind, as it should have been, to the political ramifications of its decision.

The private comments of some of the judges do evince an adherence to liberalism and a scepticism of the political process. But this is neither here nor there. What matters are the words and the reasoning employed by the judges in the discharge of their official judicial duties. Their private views are all very interesting but provided they have acted within the bounds of their constitutional powers there is actually nothing to quibble about.

Similarly, the interaction between the judges and ongoing social dialogue is fine within the constitutional limits. As long as the judges are actually exercising judicial power under Chapter III of the Constitution it should not matter if their work shows a degree of recognition of the social consequences of their decision.

While the certain paragraphs of justices Deane and Gaudron’s decision in Mabo may contain pronouncements that are emotive in their language this does not reach across and invalidate their actual legal reasoning. Furthermore, if ever a High Court judge were to depart from judicial power and to make their decisions in an arbitrary, overtly political or even silly way, the Constitution gives the Legislature the power to remove a judge for misbehaviour. Not one of the Mason judges was actually removed for misbehaviour.

Justice Kirby has also been criticised for his numerous public appearances. There is nothing in the Constitution to suggest that the active public life of a judge is inappropriate. If anything, Justice Kirby’s accessibility and prominence has done a great deal to educate the public about Australia’s legal system. He has also been tireless in his interactions with law students and the profession. All of this has been of great value to the law as a discipline.

There should never be a suggestion that judges are beyond communicating with the general public. The last thing that Australian democracy needs is a convention that sets the judiciary up as some kind of quasi monarchy who cannot even be approached by members of the public.

In conclusion, Pierce’s book may well reignite some of the political and legal debates of the 90s. But for all the fuss both Australia’s democracy and legal system has proven robust enough to withstand the controversies of the Mason court. In the final analysis the Mason court probably represented an intellectual generational change within the Australian judiciary. On some key points the bridge has now been crossed and Australia is much the better for it.