Use of American cases in different areas of law
Charts 10 to 13 at the Appendix show, in pie charts, the relative use of American cases by type of matter over the entire period, as well as three particular periods: 1903-1910, 1951-1960 and 1991-1997. While the trend was not uniform over the entire period, these latter three charts demonstrate that, generally, the use of American cases in areas of law other than constitutional law expanded over time. In 1903 to 1910, constitutional law cases accounted for 72% of American case citations. In 1991-1997, they accounted for only 34% of American case citations.
The use of American cases in the first two decades can be explained primarily on the basis of the similarities between the American and Australian constitutions and the fact that the first five (and only those five) High Court judges were, themselves, Framers of the Constitution and had some understanding of the relevant American case law on which the adoption of American provisions into the Australian Constitution was premised.
It was natural, then, that the judges, and counsel appearing before the Court, would have considered American constitutional cases relevant to the interpretation of the new Australian Constitution. The table of cases in Quick and Garran's 1901 text, The Annotated Constitution of the Australian Commonwealth, lists a significant number of American cases-about a third of all the cases cited. It is also notable that, in their preface, Quick and Garran expressed their acknowledgments and obligations to 23 texts, 12 of which were on the American Constitution. In 1905, Andrew Inglis Clark noted in the preface to the second edition of his text, Australian Constitutional Law, at p. v:
"[T]he decisions of the High Court of Australia ... have authoritatively declared that the doctrines and principles of federal constitutional law which were enunciated by the Supreme Court of the United States in the case of McCulloch v. Maryland, as those which should govern the interpretation of the Constitution of that country, are equally applicable to the interpretation of the Constitution of the Commonwealth of Australia. Reference to American decisions may therefore now be made by a writer on Australian constitutional law with much more confidence."
Given, the clear parallels between the Australian and American constitutions, and the regular use by the High Court of American cases in the first two decades, it might seem surprising that the practice of referring to American authority in constitutional matters rapidly declined. Certainly, one might have expected that with the creation of Australian case law, the need to continue to refer to American cases would decline a little, as it did in the second decade, but the influence on the decline in use of American case law by the most important case in Australian Constitutional history was considerable and cannot be underestimated.
The statement penned by Isaacs J (on behalf of himself, Knox CJ, Rich and Starke JJ) in the Engineers Case, was the most significant factor in the prolonged demise of American authority in the High Court. He said:
"But we conceive that American authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own Constitution. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for reasons we are about to state, be recognized as standards whereby to measure the respective rights of the Commonwealth and States under the Australian Constitution. For the proper construction of the Australian Constitution it is essential to bear in mind two cardinal features of our political system which are interwoven in its texture and, notwithstanding considerable similarity of structural design, including the depositary of the residual powers, radically distinguish it from the American Constitution. One is the common sovereignty of all parts of the British Empire; the other is the principle of responsible government. The combined effect of these features is that the expression 'State' and the expression 'Commonwealth' comprehend both the strictly legal conception of the King in right of a designated territory, and the people of that territory considered as a political organism."
While it has been said that this statement was misunderstood and misused by Australian judges for decades to preclude American case law from being cited to the Court, the fact is that Isaacs himself, rarely referred to American case law, even when it would have been most apt to refer to it. Isaacs' preference for English example instead of American was demonstrated in the Constitutional Conventions where he and Higgins opposed Griffith, Barton, O'Connor, Downer, Symon, Glynn and Wise in relation to the form of judicial review to be adopted. Notably, Higgins continued to cite American cases after Engineers without apology, whereas other judges usually apologised when they cited them. As Griffith CJ was particularly knowledgeable about American case law, perhaps the deep personal animosity between Griffith CJ and Isaacs J subconsciously led Isaacs J to shun those external legal sources upon which Griffith CJ relied. Certainly, the Engineers Case (argued only a few months after Griffith CJ had resigned) was the vehicle with which Isaacs J led the Court in overturning fundamental Constitutional doctrines espoused by Griffith CJ. In the Engineers Case, Isaacs J returned to the arguments he, as King's Council, had put to (and had rejected by) Griffith CJ, Barton and O'Connor JJ in 1904 in Deakin v. Webb.
Not only was this statement in the Engineers Case used to deny recourse to American case law, but the mode of interpretation of the Constitution advocated in that case favoured reliance on the plain meaning of the words and discouraged consideration of external legal sources to assist in interpretation. In relation to interpreting the Constitution, Michael Coper has said:
"[T]here are at least three ... broad groupings of the possible sources of judicial doctrine. ... First, there are sources which are resorted to in the elucidation of what the document means: for example, the text of the Constitution or its supposed purposes. Secondly, a major source is what other judges have said the Constitution means: that is to say, this source is provided by the doctrine of precedent. Thirdly, judicial decisions are sometimes based on the idea that in cases of doubt the decision of the legislature should stand; sometimes expressed in the form of a presumption of validity, this is the democratic idea of deference to the wishes of the body supposedly reflecting the view of, and accountable to, the community. Yet all three categories turn on the idea of deference, as is to be expected in the very notion of an external source of decision: the first embodies the idea of deference to the command of the Constitution, the second the idea of deference to the wisdom of the past, and the third the idea of deference to the viewpoint of a coordinate institution of government."
In the Engineers Case, the Court purported to require reliance predominantly upon one of these three sources-the text of the Constitution-and denied the relevance of American authority (an element of the second type of source). In 1904, the High Court denied itself recourse to the debates of the Constitutional Convention to assist it in interpreting the meaning of the text (one might suggest that, as Griffith was the primary drafter of the Constitution and Barton and O'Connor were on the drafting Committee, in their role as interpreter of it, they did not want to be bothered by the conflicting views of their fellow Framers when they knew what they had drafted), and this source of interpretive assistance lay untouched until Cole v. Whitfield in 1988.
This literalist approach prevailed in the Court at least until the 1970s. Notably, the Engineers Case also promoted the third source, that is, deference to Parliament. Stephen Gageler makes the point that Engineers placed representative government and the political process at the centre of the Constitution, and that, instead of the Court being protector of the States against Commonwealth abuse of power, the Constitution gave the people this power through representative government. But notwithstanding that the Court made this reference to popular sovereignty-a concept akin to republicanism-the Court denied access to the case law of the pre-eminent modern republic, the United States of America.
The legalistic and literalist approach to interpretation adopted by the Court in the Engineers Case reached its zenith with the influence of Sir Owen Dixon on the Court. In his celebrated statement concerning interpretation of the Constitution, Dixon said:
"[T]he Court's sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or on the other, and that it has nothing whatever to do with the merits or demerits of the measure.
"Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism."
This is not to say that Dixon's strict legalism was identical to the literalist approach in the Engineers Case. For example, in West v. Commissioner for Taxation, Dixon indicated that implications were a legitimate form of assistance in interpreting the Constitution, whereas Engineers appeared to preclude resort to implications. Nevertheless, Dixon's general legalistic approach was such as to deny policy considerations and to limit the benefit that could be seen to be obtained from consideration of analogy and example in judgments from foreign jurisdictions.
While Dixon had close links with America and judges on its Supreme Court through his appointment as an ambassador to the United States during World War 2, he did little to encourage recourse to American case law for judicial inspiration. In his address upon being sworn in as Chief Justice, Dixon made an interesting comment concerning Federalism, which may give a hint to why he did not seek to follow American authority. He said:
"I do not overlook the distinction which we unfortunately maintain between State and Federal jurisdiction. That is an eighteenth century conception which we derived from the United States of America in the faithful copy which was made of their judicial institutions. It is to be hoped that at some future time it will be recognised that under the English system of law, the British system of law which we inherited, the whole body of law is antecedent to the work of any Legislature and that the courts as a whole must interpret and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian Courts administering the total body of law."
In 1955, in an article concerning the influence of United States Chief Justice John Marshall (Chief Justice from 1801 to 1835) on the Australian Constitution, he said:
"Marshall's exposition of the basal concept of federalism as an instrument of national life carried persuasive force in a new country and a new century and made some significant contribution towards determining the course of Australian constitutional development."
While Dixon CJ was clearly prepared to acknowledge the influence of certain American decisions on the High Court and the development of the Australian Constitution, he did not see that there was much to be gained in dwelling too much on recent American authority. In 1942, he identified the different approaches to interpretation as a reason for not looking to modern American cases to interpret the Australian Constitution. He said:
"Notwithstanding the great similarity in our institutions, there is I believe, in the outlook of American lawyers and of Australian lawyers upon federal law and the functions of the highest federal courts a perceptible difference. I feel that in Australia we look upon the problems with which the High Court deals from a much more legalistic point of view than that which is now currently adopted by lawyers towards similar problems with which the Supreme Court of the United States deals."
In recent times, the Dixonian interpretive approach has been described as merely a method used to cloak the High Court's conservative value judgments in the guise of strict-legalism, and that the modern High Court is somewhat more intellectually honest in exposing its reasoning process and values in its judgments. Bryan Horrigan has identified five separate developments in this regard:
"(1) modern awareness that, to the extent that the High Court has always made value judgments, such judgments are characteristically cloaked in the rhetoric of strict literalism;
(2) more open recognition that judicial reasoning is not a value-free exercise, leading to ancillary debates about the proper scope for value judgments and the different kinds of value judgments involved;
(3) greater judicial willingness to reinterpret substantive law by reference to underlying doctrines and principles, in full recognition of the complexity of the judicial obligation to decide according to law;
(4) more opportunity for inherently value-based arguments about individual rights to come before the court; and
(5) greater appreciation that certainty in the law is and always has been a question of degree rather than kind."
These developments give greater freedom for the Court to have regard to comparative law to suggest new ways of looking at Constitutional questions.
In 1987, in his last weeks as Chief Justice, Sir Harry Gibbs gave a speech in which he indicated that if a Bill of Rights were to be written into the Australian Constitution, it might lead to American methods of interpretation, based on social and economic values, being applied by the High Court. He said:
"The Supreme Court of the United States has at times adopted a most adventurous approach. In that country it has become recognised and perhaps accepted that the courts, in deciding these questions [concerning fundamental rights], should take into account social and economic considerations. It is in that field that the real area of dispute now arises. ... The real question is whether judges in deciding constitutional questions should be guided by the words and logic of the constitutional instrument itself, and should put aside social, economical and political considerations, or whether they are entitled to take those considerations into account. In Australia it has traditionally been thought not only that judges are ill-equipped to make value judgments on matters of that kind, but also that it is not their function to impose their own values on society, and that respect for the courts will be maintained only if they base their decisions on the constitutional text. Whether this view will continue to be held is one upon which I could express no opinion. The question would of course assume particular importance if a Bill of Rights were ever written into the Australian Constitution."
Within a relatively short time of his departure as Chief Justice, the High Court was beginning to imply rights into the Constitution and use American authority extensively to assist in their interpretation. Sir Harry's prediction has also been accurate with regard to Canada, where, since its adoption of a Charter of Rights, there has been a significant increase in reference to American cases. His statement also appears to indicate an unwillingness on his part to look to American cases because of the values oriented approach to interpretation taken by American judges, of which he appeared to disapprove, while impliedly recognising in some of his fellow High Court judges those very tendencies.
In 1988, McHugh (then a judge of the NSW Court of Appeal) indicated that he supported the American values oriented approach that had been disapproved of by Gibbs CJ. He said:
"But in the end, the judge, like the legislator and the administrator, can only make a judgment as to whether the adoption of the proposed rule will be in the public interest having regard to the various interests involved. This means the whole range of social, economic, and industrial interests."
It is interesting to note that McHugh J is one of the leading High Court judges in citing American cases.