Copyright by Jason Louis Pierce 2002 The Dissertation Committee for Jason Louis Pierce Certifies that this is the approved version of the following dissertation: Judicial Entrepreneurism and the Politics of Institutional Change: An Analysis of the Recent Judicial Role Transformation in the High Court of Australia Committee: John C. Higley, Co-Supervisor Hersel Watson Perry, Jr., Co-Supervisor Gary P. Freeman David A. Anderson Sanford V. Levinson Judicial Entrepreneurism and the Politics of Institutional Change: An Analysis of the Recent Judicial Role Transformation in the High Court of Australia by Jason Louis Pierce, B.A. Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the Requirements for the Degree of Doctorate of Philosophy The University of Texas at Austin August 2002 Dedication To Emily Acknowledgements Preliminary fieldwork for this dissertation began in 1997, when I spent a few months as a research intern at the Australian Parliament and the Australian National University in Canberra. Over the five ensuing years, an ever-growing group of individuals assisted me along the way. Let me state from the outset that this dissertation would have been impossible without the help and encouragement of numerous people. The dissertation draws heavily upon eighty-plus in-depth interviews that I conducted with Australia’s most senior appellate judges from 1997 to 2000. These interviews were conducted under conditions of anonymity, meaning that I draw quotations from the interviews, but I nowhere disclose who made particular comments. My informants agreed, however, to have their names listed as participants, which I have done as Appendix A. Without these individuals, this dissertation obviously would not have come to fruition. I must thank first and foremost, therefore, those judges who took time out of their hectic schedules to talk with an American graduate student. I appreciate their generosity, forthrightness, and patience. Collectively they provided a richly contoured mosaic of High Court history that scholars would be hard pressed to glean from other sources. I hope this work does justice to their thoughtful remarks. The fieldwork would not have been possible without generous financial support from the Fulbright I.I.E. Program, the Australian-American Fulbright Association, and the Edward A. Clark Center for Australian and New Zealand Studies at the University of Texas at Austin. Nor would it have been as professionally profitable and personally rewarding without the kind hand of many Australian academics and government officials: Christopher Doogan, the High Court’s Chief Executive and Principal Registrar, Senator Nick Bolkus, then Commonwealth Shadow Attorney-General, Simon Banks, Patrick Keyzer, George Williams, Fiona Wheeler, Adrienne Stone, and Graeme Hill. A special thanks goes to Professor Michael Coper, Dean of the Australian National University’s v Faculty of Law, for hosting my visit, providing ample office space and institutional support, and welcoming me into a vibrant intellectual community. I also thank Professors Gary Freeman, Sanford Levinson, and David Anderson for serving on my dissertation committee and providing valuable critiques and sage advice. My dissertation co-chairs, Professors John Higley and H.W. Perry, Jr., deserve special mention. I thank each for their steady guidance, wisdom, and tireless commitment to me and this project. I consider myself fortunate to have worked under such professional political scientists. In working together so well for so long, the two proved wrong those who dissuade graduate students from having co-chairs. On a more personal note, I want to mention a few individuals who made this journey in Austin and Australia all the more meaningful: my small group at Grace Covenant Church in Austin, Texas, the congregation of Belconnen Baptist Church in Canberra, Australia, the McTaggarts, the Freudenbergers, Aaron and Cathy Kennedy, and Joseph Santamaria and his family. I especially thank my family for their constant support and encouragement. This dissertation I dedicate to Emily, my best friend, life-partner, and greatest blessing. vi Judicial Entrepreneurism and the Politics of Institutional Change: An Analysis of the Recent Judicial Role Transformation in the High Court of Australia Publication No._____________ Jason Louis Pierce, Ph.D. The University of Texas at Austin, 2002 Supervisors: John C. Higley Hersel Watson Perry, Jr. This dissertation explores a fundamental transformation that occurred in the High Court of Australia’s institutional role over the last twenty years. From the mid- 1980s to the late 1990s, the Court embarked on a concerted, systematic effort to recast its role within the legal and political systems. It went from operating at the margins of politics to the political storm center. Principally through watershed vii decisions on indigenous people's land rights and on free speech protections, the Court also shed its legal positivist traditions and ushered legal realism into its jurisprudence. Using data collected from personal interviews with over eighty senior appellate judges, including a majority of current and retired High Court Justices, the dissertation analyzes the causes and consequences of this transformation. It advances that an interplay of individual, institutional, and political factors contributed to the transformation’s genesis and its ultimate failure. Throughout, it highlights the importance of individual judges’ choices and the historical and institutional contexts that shape and constrain those choices. viii Table of Contents Chapter 1 Judicial Roles and the Australian High Court ....................................... 1 Chapter 2 A Sketch of Australian Legal History and Structures ......................... 30 Chapter 3 An Explanation and Justification for Interview Research................... 49 Chapter 4 Perceptions of Australia’s Judicial Orthodoxy.................................... 67 Chapter 5 Judges, Law, and Politics Under the Alternative Role Conception... 116 Chapter 6 Legal Reasoning Under the Alternative Role.................................... 188 Chapter 7 The Causes and Timing of Australia's Judicial Role Transformation…………......……………………………………….248 Chapter 8 The Jacobins Are Dead (Or At Least Retired): Developments Since The Mason Court................................................................................ 309 Chapter 9 Assessments & Conclusions.............................................................. 355 Tables, Charts, and Figures..................................................................................367 Appendix A List of Informants .......................................................................... 396 Bibliography ....................................................................................................... 399 Vita……………. ................................................................................................. 426 ix Chapter 1: Judicial Roles and the Australian High Court That court was “hyperactive,” “adventurous,” “incomparably activist,” “composed of judicial legislators,” and “controlled by Jacobins.” The Justices were “under the influence of left-wing theorists,” “deciding cases as Marx or Freud would have,” “defying common sense,” “moving the goal posts instead of just deciding if a goal had been scored,” and “overcome with delusions of grandeur.” One might think such disparaging (or perhaps endearing) remarks are the exclusive domain of the U.S. Supreme Court and its justices. But in fact, each of these tart descriptions came when I asked Australian appellate judges to describe their country’s final appellate court, the High Court of Australia. Students of American courts may not bat an eye at such characterizations, but this banter is altogether heretical in Australia. During the last fifteen years, the High Court has captured the attention of the Australian public and politicians in unprecedented ways. Legal and constitutional questions have leapt from the dusty pages of casebooks to the front pages of newspapers. Conversations about the High Court and its judges have echoed in the corridors of the state and national parliaments, if not the courthouses. Many of the Court’s recent decisions have occupied state and national governments like few other issues. A single decision in 1996 concerning land rights for Australia’s indigenous people nearly precipitated, for example, a double dissolution election in the federal parliament, something that has occurred only six times in Australia’s history, whereby both houses of the national parliament are dissolved and new elections held. 1 What has occurred Down Under to generate these reactions? What could solicit these characterizations about the judges on Australia’s highest court? This dissertation will make the case that from the mid-1980s to the mid-1990s a group of High Court judges embarked on a concerted effort to redefine substantively their institution’s role within the political system. These judges introduced a new vision for the Court’s role that stood in sharp contrast to an orthodox vision that had dominated the Court and the broader judicial culture for much of the twentieth century. They moved the Court from operating on the margins of Australian politics to its storm center. The Court shifted its institutional focus away from simply resolving legal disputes to making policy that addressed some of the country’s most controversial