Sir Anthony Mason in an article in The Australian, Monday, November 8 1993 argues that the High Court has only done what the common law judges have always done.
There have been many critics of the law making role of the High Court in Mabo and in earlier constitutional cases.
The Chief Justice takes up arms against his critics, which is legitimate in a free society. What however is remarkable is the manner in which he does so. His comments involved denying to his critics any reasonable point of view and ridiculing their arguments.
He says "only a person entirely ignorant of the history of the common law could make such a suggestions".
He accuses his critics of writing "legal fairy tales".
No informed critic denies that common law judges have made law. The real criticism (which Sir Anthony Mason completely ignores) is that what the High Court has done is in no way comparable to the way in which the judges have developed the common law.
The common law was made by the judges over many hundreds of years. Extensions and expansions were made over decades, if not centuries. If the total number of cases are counted changes in individual cases were few and far between.
Such infrequent changes were at most an extension of principle.
Even fundamental cases like Rylands v Fletcher and Donoghue v Stevenson involved an extension within the framework and the methodology of the law.
Moreover the period of fundamental changes in the common law has virtually come to an end in England in recent decades, due to the dominance of Parliament. In an era of parliamentary law making, the Courts have deferred to the legislature.
The law making era of the common law in England by and large belongs to a past era.
The High Court of Australia in recent times has been more adventurous than the English courts. But this does not support Sir Anthony's claim that the High Court is only doing what the English common law judges have always done.
The High Court in Mabo has made a fundamental change.
Previous decisions were ignored with contempt. The normal common law procedure when a change is made is to overrule contrary decisions. The High Court avoided overruling contrary decisions but just ignored them.
The Mabo decision has been described above as an 'edict' because it is not a "judicial" decisions in the proper meaning of that phrase. It does not possess the qualities, the reasoning, or the foundations of a judicial decision.
Its deficiency may be explained by the views of the Chief Justice, Sir Anthony Mason, with respect to the meaning of the common law, and the role of the judiciary — particularly its authority to "make" law. sir Anthony discussed his views at some length in a speech to the Institute of Judicial Administration entitled "The Role of the Judge at the Turn of the Century":
The role of the judge, especially the appellate judge, entails the making of law...Some comments seem to imply that a court exceeds its function if it makes law. Only a person entirely ignorant of the history of the common law could make such a suggestion.
This statement reveals a view of the role of the courts which must give rise to serious concern. The Australian legal system is based on the common law, received from England upon settlement. It is described as a "common laws" system, which distinguishes it from the Civil/Napoleonic Code systems which prevail throughout most of Europe.
The common law is, as its name implies, the law of common usage, that is, the customs and usages of the people. Its roots can be traced to the earliest yeasts of English civilisation. It was already well developed and respected when William of Normandy won his historic victory at Hastings in 1066. William brought no legal code with him, and he was careful not to unduly influence the workings of the common law system. Moreover, in the 150 years or so between the conquest and Magna Carta, very few laws were issued by the Crown:
...the Constitution of Clarendon, perhaps the most comprehensive act of Henry II, claimed to be no more than a record of the customs of his grandfather's time. (AL Poole, Doomsday to Magna Carta, Oxford UP, 1993, 386)
The common law is the product of hundreds of years of struggle against tyranny. It is the most fundamental protector of liberty, including such rights as the presumption of innocence, procedures designed to achieve fair trials, the rule that officials cannot exceed their legal authority, equality before the law, the independence of the judiciary, a strong bias against retrospective legislation, the writ of habeas corpus, and the prerogative writs of prohibition, certiorari and mandamus. Sir Robert Menzies said:
To live in a common law country is, in itself, the very best guarantee of the rights of the individual. (Cited in Samuels G. "A Bill of Rights for Australia" (1979) Australian Quarterly 91 at 93)
The role of the courts is to apply the common law, generally in the form of precedent, to disputes brought before them. This is not to say that the courts are merely passive or mechanical, or that they do not employ a degree of interpretation and creativity in reaching their decisions. However, the common law must always remain their guiding light. The principle is well expressed by the distinguished English jurist CK Allen:
The perpetual process of interpretation must inevitably produce an equally perpetual metabolism in the subject matter of usage. Customs become modified, sometimes to an extent they cease to exist. But always the jurist or the magistrate has to deal with practices springing in the first instance from actual social relationships. (Law in the Making, Legal Classics, 1992, 85)
In the mental baggage of every lawyer lies an understanding of the great judgments — the decisions which form the cornerstones of our legal system. They include decisions like Donoghue v. Stevenson and Rylands v. Fletcher. No one would suggest for a moment that the principles of negligence as laid down in Donoghue, or the principles of nuisance in Rylands, were more than common law rules which, at the time of those decisions, were widely accepted and evolved over a long period.
To recognise this in no way denigrates the great learning and wisdom which was applied by the courts in distilling the principles and setting them out in coherent and sensible form.
However, Sir Anthony Mason is somewhat confused about how the methodology of the common law judges. He says:
It is scarcely to be credited that anyone with an understanding of the judicial process now believes the fairytale that judges "discover" the law and then declare it, without actually making it, as though the judges resembled the Delphic Oracle in revealing the intention of the pagan gods.
A later passage offers some reservations:
But the fact that the courts do make law does not mean that courts are legislatures. Judicial decision-making is very different from political decision-making. The judge decides a particular dispute between parties, and does so primarily by reference to the arguments which they present.
Whilst this is an excellent statement of the role of the courts, it is also precisely where the Mabo decision departs so profoundly from the proper realm of judicial law-making and enters the realm of the legislature. The High Court (correctly) deliberated upon a dispute between the people of the Miriam Islands and the State of Queensland. It reached a decision on the basis of extensive argument by counsel, and with the benefit of detailed evidence about the system of land tenure which was developed over some hundreds of years by the Miriam Islanders.
The folly of the High Court was to extend the principles determined in its consideration of the Miriam Islands issues to apply to the whole of mainland Australia. In doing so it breached many principles of legal methodology.
There was no consideration of existing decisions on the issue of native title, and therefore those decisions were not specifically overturned.
There was no dispute before the court with respect to land situated on mainland Australia, and therefore the court heard no argument with respect to that issue.
The Miriam Islanders are not ethnically Aboriginal, and their society bears little comparison to that of the Aborigines.
The Court heard no evidence with respect to Aboriginal society, or the history of land usage by the Aborigines, despite the extensive anthropological and other evidence which would have been available to it.
Therefore the High Court's clearly stated views that Mabo principles apply to mainland Australia is grossly improper, and is tantamount to legislating for native title throughout Australia. Whilst the judges must understand that that part of the decision is obiter, they also would have been keenly aware that it would not be understood as such by the nation. The Prime Minister, the government and the people have not distinguished between the binding (ratio) part of Mabo and the rest of the decision.
The judges must bear the responsibility for the way it has been interpreted. The Prime Minister of Australia is no fool — and he has assumed that the Mabo Edict applies alike to the Meriam people and to mainland Aborigines.
Development of common law principles has always been a gradual process with changes occurring over many centuries. Cases are decided on the basis of argument placed before the court, and, in each instance, relate strictly to the issues before the court. Extensions or statements of legal principle, such as those in Donoghue and Fletcher, occur within an existing framework and represent an adaptation of this framework to accommodate new circumstances. Radical change, and creation of entirely novel doctrines, such as the Mabo edict, is contrary to, and undermines, common law methodology. Evolved law representing centuries of carefully considered deliberation is fractured by such extreme judicial activism. It is then pieced together in a different and entirely unpredictable shape. As the Mabo edict shows, little consideration may be given to the full ramifications of such "ground breaking" reforms, and abandonment of the previously solid common law foundation leaves little to fill in the gaps which inevitably appear in the new regime. Abstract and untested political values therefore supersede pragmatic legal wisdom based on consideration and experience.
The High Court's Mabo edict thus bears no comparison to the traditional, and proper, process of common law development. The Court has initiated widespread and radical change which ignores the previous legal framework.
A consequence of extending the decision to parties well beyond those directly affected by it has been to create uncertainty on an unprecedented scale. Claims are being lodged. However ill founded the claims are land titles are in doubt. Economic development is at a standstill in an period of unemployment. What judicial decision has ever had this effect?.
The critics of uncertainty in the common law may point to cases in torts (for example, the concept of reasonableness) which are areas of considerable uncertainty. But if the facts of many common law cases which create uncertainty are examined, it will be seen that they deal with exceptional fact situations which are very unlikely recur. For example, the facts in Hedley v Byrne.
The actual basis of the common law system, however, is predictability and settled rules of law. Walker (1988:163) outlines the classical Conception of the common law as being a reflection of contemporary social values and customs. Development of legal principles occurs through a process of continuous inter-personal adjudication. Modernisation occurs as disputes develop over features of contemporary life. The common law, by adjudicating in novel fact situations on the basis of established rules, is able to keep pace with modern social practice as part of its linear development.
This continuous identification of social practice and its translation into binding law is a process that even now takes place in the courts every day. It is not recognised for what it is because of the positivist bias of most modern legal scholarship but it is there if we care to look. (Walker:1988:166-7)
Principles are thus derived from the aggregate wisdom of many small decisions, just as rules of social life are formed from the many social interactions which occur at a personal level in daily life. Critical decisions in the development of the common law, in which principles are authoritatively stated, such as Donoghue v Stevenson, are properly seen as a summation of pre-existing law, rather than a unilateral imposition of novel doctrine.
Individual decisions, then, play only a limited role in the wider processes of development within the common law. The role of the judge is to impartially apply the law, as it stands, to the facts of the case. It is outside the judicial function to create, from scratch, a new legal order. Central to the process of common law adjudication is the maintenance of a distinction between the personal views of a judge, and the law which they apply.
By gradually developing principles in a manner consistent with the existing framework, continuity and intelligibility are maintained, allowing citizens to order their affairs in a manner consistent with the law as it stands.
Another foundation of common law methodology is the separation of judicial and legislative power. Legislatures are responsible for policy formulation, and enactment of new laws. They are held accountable to the population through continuous discussion and criticism of policy initiatives; and ultimately, through popular election. Members of the legislature are elected for a limited term on the basis of their publicly held opinions. These restraints, as well as judicial review of legislation, prevent Parliament from overstepping its limits and becoming a site of despotism.
By contrast, the judiciary are responsible for ensuring adherence to law as it stands and interpreting novel law as created by the legislature. At appellate level, the courts are unaccountable. If the judiciary abandon common law methodology, and instead, formulate new doctrines on the basis of their own personally held opinions the law becomes arbitrary. Arbitrariness promotes incoherence and the unity of the common law breaks down. If a court rejects the constraints on judicial power implicit in the common law, then there are no constraints on its power.
In Mabo, the High Court has usurped the political function of Parliament by effectively legislating native title into existence and in so doing it has cast aside common law methodology. The Chief Justice of NSW, .... Gleeson, has observed that:
The modern law seems ... to be caught up in a ... trend away from broadly stated rules with fairly predicable ... consequences, towards greater refinement and responsiveness to the facts and circumstances of each individual case. (Gleeson:1992:4) Quoted in the Financial Review, 15 October 1992.
A consequence of this "responsiveness", however, is that the law becomes increasingly arbitrary. "Responsiveness" is a subjective concept, depending on the political philosophy, views, prejudices and inclinations of the judge.
The Mabo Edict goes even further by extending the result of an individual case to the entire system of land-holding in Australia.
Justice for a common lawyer entails careful adherence to common law methodology and a determined avoidance of extra-judicial considerations. The role of the common law is to respond passively to social developments rather than to attempt to force social change. Abandonment of settled and carefully elaborated principle in favour of some entirely new scheme removes the certainty which ensues from adherence to a developed and known structure.
Mabo created a sense of uncertainty of land titles on an unprecedented scale for hundreds of people. The numbers run into thousands if the shareholders of corporations are taken into consideration. It is not inaccurate to say that there has been no such judgement in the history of the common law which has created so much uncertainty.
It is notable that, whilst the current Court is eager to find new limits on the powers of Parliament, it does not hesitate to confer increasing powers upon itself.
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