From Judicial Deference to Judicial Defiance: An analysis of the evolution of the role of the High Court of Australia in the governmental process.

This thesis investigates the evolution of the judicial perception of the role of the High Court of Australia in the governmental process. Although its jurisdiction is conferred by the Australian Constitution and certain acts of Parliament, the role of the High Court is neither prescribed by Parliament nor explicitly set out in the Constitution. In fact, as authoritative interpreter of Australia’s constitutional document, the High Court’s task is, in part, to determine the roles of all three arms of federal government – the legislature, the executive and the judiciary. It can therefore be seen as making critical decisions about the shape of Australian democratic institutions even though it is itself without direct democratic mandate.
For much of its first century the High Court has been free to define its own role and the scope of the judicial power without political interference or substantive external examination. However, in the 1990s several factors prompted this situation to change; among them, the High Court's incursion on what is traditionally understood to be legislative power (primarily evident in the Court’s constitutional implication of rights), community and political unrest over the substance of several of the Court’s decisions, the admission that the Court understood its role to be that of a law-making body, the Court’s frequent consideration of policy matters previously believed to be the domain of Parliament, the increased volume and availability of judges’ extra-judicial commentary, and the growing interest in the Court as a political institution by legal and political science scholars. These and other factors assured that the role of the High Court in the governmental process became a subject of debate in non-legal as well as legal forums.
By systematic analysis of the Court’s decisions on the scope and nature of federal judicial power, this thesis seeks to map and explain the evolution of the judicial perception of the role of the High Court in the governmental process. Three distinct trends in the judicial role perception are discerned; each referable to the influence of particular identities on the Court, the elucidation of diverse interpretive methods, and different emphases applied to the judicial consideration of the federal judicial power in relation to the legislative and executive powers. A classification system is developed that packages this information into three defined eras which broadly show a change in role perception from judicial deference to the respective roles of the legislature and, to a lesser extent, the executive to judicial defiance against those arms of government.
The extra-judicial commentary of High Court judges is then examined to discover how the judiciary explain their understanding of the Court’s role outside of the confines of case law and whether these explanations match the role perceptions discerned from the Court’s curial pronouncements in each identified era. Finally, this thesis analyses and contextualises the broader public debate about the role of the High Court, investigates the Court’s institutional and jurisprudential response and considers whether the debate has informed or shaped the Court’s current understanding of the limits of its role in the governmental process.