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Editor’s Note: Last month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In keeping with this website’s goal of encouraging debate about the proper bounds of judicial power, we have invited replies from commentators with a range of views. Some might be expected to be more sympathetic to Professor Finnis’s lecture and others much less so. Last week we published replies by Prof Mark Elliott (University of Cambridge) and Prof Grégoire Webber (Queen’s University, Canada). See here and here. The final reply in this series is by Prof Adrienne Stone (University of Melbourne).


The Australian Constitution is now highly unusual among the world’s democracies but it is not well-known internationally and, where it is known, it is not much admired.  The Australian High Court, once a well-integrated part of the family of common law courts, is increasingly isolated, at least in public law, by the distinctiveness of the framework it applies. In Professor Finnis’ lecture, however, the Australian Constitution and two of this Century’s most important and high profile High Courts judgments are held up as beacons of good sense and constitutional orthodoxy.

This perspective is arresting for a scholar of Australian constitutional law and serves as a reminder that the scholarly tendency toward criticism can be a matter of habit as much as an appropriate intellectual stance.  But with the benefit of that habitual scepticism, I propose to offer some comments that call into question the wisdom of those aspects of Australian law that Professor Finnis celebrates and in turn the conception of judicial power that he advances. In doing so, it should hardly be necessary to add, that the contributions of a scholar of Professor Finnis’ standing to the debate on judicial power are highly illuminating. As a scholar of Australian constitutional law, in particular, it is gratifying that Professor Finnis turns once again to questions of judicial power in which his extremely important work has long been a central point of reference.

I will start with Professor Finnis’ main thesis as to the nature of judicial power and his admiration for the judgment of Justice Heydon in Momcilovic. In the context of a lecture about the nature of judicial power, the reference to Australian constitutional law is very appropriate. As Professor Finnis explains, Australian judges have, for the better part of a century, been grappling with the concept of ‘judicial power’. The conception they have generated comes very close to that he articulates. The hallmark of judicial power is the resolution of a dispute between parties by the application of existing law to agreed or determined facts.  Moreover, in conformity with Professor Finnis’ fifth thesis, the separation of judicial power is treated in the Australian courts as law. Judges enforce the principle and their decisions are binding and, subject only to constitutional amendment, final.  Indeed, this body of judge-made constitutional law about the separation of judicial power has in recent years been the most important constraint on federal and state parliaments.

Justice Heydon’s judgment in Momcilovic and his views on ‘proportionality’ sit within this large body of law.  The question whether Australian courts may utilize proportionality analysis arose in this way. Section 32 of the Victorian Charter of Rights and Responsibilities contains an interpretive obligation (akin to, though weaker than, section 3 of the Human Rights Act).  Section 7(2) of the Victorian Charter contains a general limitation clause (akin to section 1 of the Canadian Charter).  Momcilovic provided an opportunity for the High Court to consider the constitutional validity of s 32 and its relationship with s 7(2).  Alone among the judges, Justice Heydon found first that s 7(2) was to be considered as part of the interpretive process mandated by s 32 and, second that in part for that reason, s 32 was invalid.  (Some aspects of his reasoning were adopted by other judges but only Justice Heydon held both these positions.  The detail of this complex decision is lucidly explained here).

The inquiry mandated by s 7(2) gave rise to two problems. First the guiding standard – ‘reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’ – provided no objectively determinable criteria.  Moreover the balancing process it requires was held to be unsuitable for judicial decision.  As Justice Heydon explained:

Section 7(2) does not talk of ‘balancing’ … [but] that is the process it involves. But the things to be balanced or weighed are not readily comparable — the nature of a right and various aspects of a limitation on it, the nature of a right and other rights … could include many matters of practical expediency of which courts know nothing, social interests about which it is dangerous for courts to speculate and considerations of morality on which the opinions of the governed may sharply differ from those of the courts. It is for legislatures to decide what is expedient in practice, what social claims must be accepted, and what moral outcomes are to be favoured — not courts.

For these reasons s 32 (read with s 7(2)) conferred a non-judicial power and, moreover, one so inimical to the judicial power that it undermined the continuing status of the Victorian courts as ‘courts’ under the Constitution.

The first point to be noted about this finding is that it is not law in Australia. No other judge in Momcilovic adopted this position with respect to proportionality under the Charter.  Moreover, since then a majority of the High Court has explicitly adopted proportionality analysis in a different context.

The position is moreover in tension with established practice of Australian courts. As I have argued elsewhere, the task of implementing the Australian Constitution inevitably requires the same kinds of judgments as are involved in proportionality analysis:  judgments as to the meaning of the many morally contested ideas that the Constitution adopts.  The need for this kind of reasoning is especially obvious where judges have developed unwritten structural principles that resemble constitutional rights. In Australian constitutional law these include a right of freedom of political communication and a ‘rule of law’ principle. Equally, it is required by s. 92 of the Constitution, which guarantees freedom of trade among the states.

But even if we are to dismiss these aspects of Australian constitutional law as either exceptional or themselves instances of impermissible disregard for the limits of the judicial power (as Jeffrey Goldsworthy views the freedom of political communication), the judicial role under the Australian Constitution is necessarily highly evaluative. Federalism for instance is itself an idea the meaning and value of which is contested.  And precisely because the text of the Constitution does not and could not hope to provide clear resolution of the many disputes that arise under it, the judicial role in determining the division of powers in a federation requires the same mix of technical legal reasoning, factual judgment and evaluation of a contested concepts. Put simply, it is the High Court that has shaped Australian federalism, the separation of powers doctrine, the fundamental institutions of government and while it is far from unconstrained in its role, it nonetheless has inevitably faced choices of considerable moment. It has to decide what is expedient, which outcomes are to be preferred and in doing so it chooses between contested conceptions of constitutional ideas. (Jeffrey Goldsworthy and I disagree about whether this ‘structural’ judicial review is a necessary consequence of federal constitutionalism but that particular disagreement is not to the point here.)

This is not to say that adoption of proportionality is an insignificant step. Proportionality analysis does bring these matters of evaluation to the fore. The Court now explicitly acknowledges the balancing element of these inquiries that (as explained here) had previously been implicit in its use of the standard ‘reasonably appropriate and adapted’. Nor is it an argument in favour of proportionality analysis. There are other ways to determine the limits on rights that might be preferable not least because they render tests that are more readily applied by judges and might provide better guidance to legislators and later and lower courts.

But given the many ways in which the Australian courts already interpret vague and general language and choose between competing conceptions of contestable ideas, the claim that proportionality analysis is so entirely foreign to Australian courts that it is constitutionally impermissible does not sit well with reality of judging under the Australian Constitution. In this light, it is not surprising that although the High Court adheres to a conception of the judicial role in the terms Professor Finnis describes, the Court also frequently qualifies that conception acknowledging a more complex understanding of the judicial role.  Indeed, in Precision Data Holdings, a unanimous High Court explicitly acknowledged that  ‘in some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power.’

That the Australian High Court does not adhere in practice to the conception of judicial power that Professor Finnis counsels is in itself inconclusive as to the correctness of this view. But if the Australian High Court does not adhere to that conception, it is hard to believe there is a court that does.  And if no court adopts a conception of judicial power of the purity that Professor Finnis’ counsels, the case for it is surely undermined.

In addition, there are reasons of democratic principle to resist the conclusion that judicial power is so tightly confined. I have elsewhere ventured the concern that the Human Rights Act implements a stronger form of rights review than was promised on its enactment.  If that is right, then there is a concern that the British people did not get the human rights regime for which they voted. The position taken by Justice Heydon in Momcilovic would create a reverse version of the problem in Australia.  Whereas the British people may have got more than they bargained for, under Justice Heydon’s analysis of judicial power the people would get much less. Indeed, the people of Victoria are outright denied their democratically enacted Charter.

Of course the point of constitutional principles is sometimes to frustrate the will of the people in the name of more fundamental ideals.  But, for obvious reasons traced to our commitment to democracy, it is a weapon to be wielded carefully and rarely.  And the case for denying the Australian courts the power to implement a form of rights protection adopted by our close constitutional cousins is, I suggest, far from clear.

Before concluding, I will also venture some remarks on Professor Finnis’ appeal to the judgment of High Court in Al-Kateb v Godwin. Professor Finnis criticizes the Supreme Court in Belmarsh on the grounds that there was an obvious alternative interpretation of the relevant legislation pursuant to which the challenged law could be cast as consistent with the Human Rights Act. Proper statutory interpretation would, he argues, have revealed that the detention authorized by the law challenged in Belmarsh was only lawful if ‘at the outset of detention, and every three months thereafter’ detention could be justified by a demonstration that ‘the Government was trying to deport [the appellants] and taking good faith measures to overcome the legal and practical obstacles to deporting them’. The High Court of Australia’s decision in Al-Kateb (given only months earlier) does provide something of an analogy.  The High Court dismissed a challenge brought by an ‘unlawful non-citizen’ against his detention under the Migration Act 1958 (Cth) finding that Act permitted ongoing detention for the purposes of removing the unlawful non-citizen.  Thus the Court acknowledged, as Professor Finnis argues the Supreme Court should have in Belmarsh, that the purposes of detention would provide a limit on its length.

However, the effect of the decision in Al-Kateb was considerably more extreme than would have been the case under the law challenged in Belmarsh, even under the interpretation recommended by Professor Finnis. A majority of the High Court in Al-Kateb held that detention was permissible under the Act if it ‘has not yet been practicable to effect removal’ of the unlawful non-citizen and even if ‘there is no real likelihood or prospect of… removal in the reasonably foreseeable future.’ Mr Al-Kateb who was stateless and could not be removed either to Kuwait or Gaza (where he had requested to go) nor any other place therefore faced the prospect of indefinite detention potentially lasting the length of his life.

On one view, Al-Kateb is simply an illustration of how separation of powers principles should operate. The High Court applied the existing law to agreed or determined facts (consistently with Professor Finnis’ first thesis) and consistently with his fourth thesis, responsibility for outcomes of this kind lies with the executive and legislature.

However, the severity of the result invites two observations.  First, it offers a possible explanation for the lack of any reference to Al-Kateb in either the argument or the judgments in Belmarsh. The persuasiveness of Al-Kateb would surely have been undermined by the fact that the result made even some members of the High Court majority uncomfortable. Justice McHugh, in particular, called the result ‘tragic’ and, though he did not go so far as to call for an Australian Bill of Rights, he did rather pointedly refer to the calls made by others. If the idea of indefinite and potentially life-long detention was uncomfortable for the High Court of Australia, it surely would be entirely unpalatable for a court actually entrusted with the protection of human rights through a mechanism like the Human Rights Act.

Second, there are strong arguments that this result was not required, even if we accept the central tenets of Professor Finnis’ account of judicial power.  Some of the dissenting judges undoubtedly employed the kind of reasoning that Professor Finnis would eschew. Justice Kirby for instance found that these provisions were unconstitutional based on a reading of the Constitution made in light of its ‘fundamental’ principles and by reference to international law. However, Justice Kirby’s non-interpretivst, internationalist approach to the Constitution is a position held by him alone. Other dissents in Al-Kateb were much more orthodox.  In particular, Chief Justice Gleeson – certainly no judicial radical – found for Mr Al-Kateb through ordinary means of statutory interpretation.

On Chief Justice Gleeson’s interpretation, the Act’s failure explicitly to address Mr Al-Kateb’s circumstances gave rise to two possible interpretations: Either the Act requires a person in Mr Al-Kateb’s position to be kept in administrative detention for as long as it takes to remove him, even if it never becomes practicable to remove him. Alternatively, the Act requires that when removal is not a practical possibility, then the detention is to come to an end at least until removal becomes possible.

The Chief Justice preferred the latter interpretation based firstly on the statutory text (see paras [14]-[22]) but also on the principle of legality. As he put it, ‘Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.’ The judgment is very persuasive and entirely orthodox. Somewhat ironically, then, the judgment in Al-Kateb may exhibit the very flaw that Professor Finnis identifies in Belmarsh: oversight of an alternative (and rights-compliant) interpretation.

This analysis of Al-Kateb does not undermine Professor Finnis’ central thesis directly.  However, I have digressed into this discussion because I take Professor Finnis’ lecture to contain an implicit recommendation of the majority reasons in Al-Kateb.  In this context, it is important for audiences beyond Australia to see just how extreme the position taken by the High Court in Al-Kateb was, especially as there are strong arguments that such a result was not required within the framework of orthodox statutory interpretation.

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