Book Reviews 167

The High Court, the Constitution and Australian Politics Rosalind Dixon and George Williams (eds) (Cambridge University Press, 2015, 368 pp) There is a longstanding ‘obsession’1 in the American literature with the ‘countermajoritarian difficulty;’ a shorthand term first introduced by Alexander Bickel to describe the problem of having an unelected judicial branch with power to overturn decisions of the popularly elected legislature.2 Indeed, broader questions concerning the relationship between constitutional law, politics and history have generated extensive interest and debate in America, but comparatively less discussion in Australia.3 The High Court, the Constitution and Australian Politics is a welcome contribution to the body of Australian literature on this topic. The book brings together distinguished constitutional lawyers and political scientists to explore the relationship between the constitutional decisions of the High Court and federal politics in Australia. The book is divided into 16 chapters. The four introductory chapters provide an overview of the effect of invalidation rates, formal constitutional amendment and dissent on the relationship between the High Court and politics over time. The subsequent 12 chapters are ordered chronologically by reference to each of the Chief Justices of the High Court, beginning with the Court led by Sir in 1903 to the present Court led by Chief Justice . The editors concede in their Introduction that the arrangement of the book according to Chief Justice is problematic.4 It is difficult, however, to think of a better approach. Had the book been arranged thematically, for example, fewer authors would have been able to contribute to the project. The diversity in perspectives and approaches of the 21 contributors is one of the book’s distinguishing features. While some readers may not be entirely satisfied by the book’s depth, it is not intended to be a constitutional law textbook or commentary. The book is accessible and should appeal to an audience beyond constitutional and public lawyers. At the same time, it provides enough fresh insights to ensure that it will have a lasting place on the shelves of academics, practitioners and students in the field. The book highlights the different interactions between the High Court and broader political currents in Australia. One interaction occurs when the Court is

1 B Friedman, ‘The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy’ (1998) 73 New York University Law Review 333. 2 A Bickel, The Least Dangerous Branch (1962). 3 The editors situate this book in the Australian literature which has examined the relationship between the High Court and politics. See, eg, G Sawyer, Australian Federal Politics and Law, 1901-29 (1956); G Sawyer, Australian Federal Politics and Law, 1929-49 (1963); B Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987); D Solomon, The Political High Court: How the High Court Shapes Politics (1999); H Patapan, Judging Democracy: The New Politics of the (2000); J Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (2006). 4 R Dixon and G Williams (eds), The High Court, the Constitution and Australian Politics (2015) 7. 168 Australian Year Book of International Law Vol 33 required to determine the constitutional validity of legislative or executive action. The contributors explore the extent to which the decisions of the High Court have generally tended to promote or frustrate the aims of the government of the day – that is, whether the High Court is, or has been, broadly ‘pro’- or ‘counter’-majoritarian. Russell Smyth and Vinod Mishra answer this question using quantitative analysis. They measure the rate at which legislation has been invalidated by the High Court. The statistics reveal that the High Court has generally been promajoritarian throughout its history, but has experienced ‘bouts’ of countermajoritarianism.5 While the invalidation of Commonwealth legislation would be, for Bickel, an archetypal example of the High Court acting in a countermajoritarian manner, what happens when that decision is ratified by the popular majority in a subsequent referendum? Can the Court, in those circumstances, still be classified as being countermajoritarian? Michael Coper explores this and other related questions in his thoughtful and erudite analysis of the complex interplays between judicial review and formal constitutional amendment.6 Other contributors also grapple with the difficulties in identifying what constitutes ‘the majority’ for the purposes of analysing the High Court’s decisions in the ‘majoritarian versus countermajoritarian frame.’7 John Williams observes, for example, that the Griffith Court was arguably countermajoritarian when it invalidated aspects of the Commonwealth’s industrial relations legislation in cases such as R v Barger8 and Huddart, Parker & Co Pty Ltd v Moorehead.9 These decisions were, however, subsequently followed by several referendums which purported to confer more expansive powers on the Commonwealth.10 Each referendum was unsuccessful. It is difficult, then, to classify the Griffith Court as being broadly pro- or counter-majoritarian. While the Court’s narrow interpretation of federal power appeared out-of-step with the preferences of the legislative majority, it was seemingly in-step with those of the popular majority. These unsuccessful constitutional referenda preceded the ‘iconic’ but ‘extremely controversial’ decision of the Court headed by Sir Adrian Knox in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers Case’)11 in 1920.12 Anne Twomey notes that in the Engineers Case and the decisions which followed it, the Knox Court adopted an approach to constitutional interpretation which had the effect of conferring greater power on the Commonwealth at the expense of the states. The Knox Court, therefore, ‘supported the aims of federal governments of all

5 R Smyth and V Mishra, ‘Judicial Review, Invalidation and Electoral Politics: A Quantitative Survey’ in R Dixon and G Williams (eds), above n 4, 30. 6 M Coper, ‘Judicial Review and the Politics of Constitutional Amendment’ in Dixon and Williams, above n 4. 7 A Gauja and K Gelber, ‘The French Court’ in Dixon and Williams, above n 4, 326. 8 (1908) 6 CLR 41. 9 (1909) 8 CLR 330. 10 J Williams, ‘The Griffith Court’ in Dixon and Williams, above n 4, 93-5. See also Coper, above n 6, 49-50. 11 (1920) 28 CLR 129. 12 A Twomey, ‘The Knox Court’ in Dixon and Williams, above n 4, 104-7.