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Sackville, Ronald --- "Why Do Judges Make Law? Some Aspects of Judicial Law Making" [2001] UWSLawRw 5; (2001) 5(1) University of Western Sydney Law Review 59


Ronald Sackville

The end of a fiction

To ask the question: 'Why do Judges Make Law?' implies that they do make law. Today no informed observer disputes that judges – especially judges of the High Court – do make law.[1] As recently as thirty or forty years ago – certainly within my memory as a law student in the halcyon days of the early 1960s – many lawyers argued that it was not the job of the courts to create new law. Rather, their task was to discover and apply the existing body of legal principles by a logical if not purely mechanical process. The law was seen by those commentators, in Oliver Wendell Holmes’ memorable phrase, as a 'brooding omnipresence in the sky'.[2]

In an article published in 1988, Justice Michael McHugh of the High Court (as he now is) remarked that it was very difficult to see how judges ever believed that they did not make law as distinct from simply discerning and declaring the law.[3] He argued, quite correctly in my view, that judges have always made new law, by applying or extending established rules to novel circumstances and by altering the content of legal rules in accordance with changed economic and social circumstances. Indeed, in a 1979 judgment, Murphy J made out a case that jurists as distant as Bracton (who wrote in the thirteenth century), Sir Francis Bacon and Jeremy Bentham all recognised that English law had grown through conscious judicial decision-making.[4] Certainly that icon of positivist jurisprudence, John Austin, characterised the declaratory theory of law as a 'childish fiction'.[5] And he did so in 1873.

The notion that courts make law is now widely understood not only by lawyers but also by lay commentators and the general community. The advent of a more sophisticated public understanding of the judicial role coincided with a marked change in technique by the High Court. Sir Owen Dixon famously said on his swearing in as Chief Justice in 1952, that he should be sorry to think that the Court was anything other than 'excessively legalistic'. In his view there was 'no other safe guide to judicial decisions in great conflicts than a strict and complete legalism'.[6]

Sir Owen’s remarks were made specifically with reference to so-called 'Federal conflicts' – that is, cases involving the demarcation of powers between the Commonwealth and the States. But his words are usually interpreted, not without reason, as descriptive of the High Court’s general approach to decision-making at the halfway point of the twentieth century. It is significant that Sir Owen spoke not long after the Court had decided the defining cases of the mid-twentieth century, the Bank Nationalisation Case[7] and the Communist Party Case.[8] The first decision frustrated a central platform of the then socialist Labor Government; the other defeated a measure at the heart of the newly elected conservative Government’s world view. Both decisions were of profound political importance and fraught with policy implications. The transcript of argument in the Communist Party Case, for example, makes it quite clear that the judges were aware of the civil liberties issues that the legislation starkly presented.[9] Yet the legal analysis in the judgments appears to stand apart from any policy questions to which the impugned legislation might have given rise.

The supposed virtues of a strict and complete legalism were rejected by the High Court during Sir Anthony Mason’s tenure as Chief Justice (1987 to 1995). The new philosophy, which was articulated with increasing force and clarity during the latter part of Sir Anthony’s term, took as its starting point the proposition that it is impossible to interpret any instrument, let alone a constitution, divorced from values. The danger was that a 'strict and complete legalism' would be (and had been) used as a cloak to disguise undisclosed and unidentified policy values. It was much better for courts to acknowledge explicitly the values that moved them when interpreting the Constitution or developing the common law.[10] In this way, the full reasoning of the Court would be exposed and subjected to critical scrutiny.

Sir Anthony emphasised that in shaping fundamental legal principles, the courts were concerned not with 'transient community values', much less the personal preferences of a particular judge.[11] Rather, they acted in conformity with what Brennan J described as the 'relatively permanent values of the Australian community'.[12] These included the enduring values recognised by the common law such as personal liberty, freedom of expression and the inviolability of the person.[13]

A policy oriented approach

The adoption of a more openly policy oriented approach coincided with what appeared to be a more vigorous exercise of the Court’s law-making function. A series of important decisions transformed Australian constitutional law. In Cole v Whitfield,[14] the Court abandoned an economically and historically indefensible construction of s 92 of the Constitution that had conferred a privileged status on interstate traders. In Street v Queensland Bar Association,[15] the Court struck a blow against State parochialism by breathing new life into s 117, which prohibits a State discriminating against the resident of another State. And, most dramatically, in a series of cases the Court held that there is an implied freedom of political communication in the Constitution.[16] The implied freedom not only invalidated Commonwealth legislation, but also curtailed the operation of stringent State defamation laws, which had frequently worked to the advantage of public figures and to the disadvantage of freedom of speech.[17]

Outside constitutional law, the Court was equally vigorous in forging new doctrine. Its most famous – or notorious - interventions were Mabo v Queensland (No 2),[18] , Dietrich v The Queen[19] and Minister for Immigration and Ethnic Afairs v Teoh[20] . The first recognised native title as part of the common law of Australia, thereby recasting the very foundations of Australian property law. In Dietrich, the Court held that the trial of a person charged with a serious criminal offence can be stayed, perhaps permanently, if that person is unable to secure legal representation. This decision, too, had important consequences, notably for legal aid agencies which were forced to divert scarce funds to criminal prosecutions (mostly for the benefit of males) and away from other areas such as family law (mostly to the detriment of females).[21] And Teoh, although not directly incorporating Australia’s international treaty obligations into domestic law, required administrative decision-makers to direct attention to whether their decisions might contravene those obligations.

It is perhaps an irony that the more open policy oriented approach of the Mason Court encouraged more intensive and sustained public criticism of its decisions. Although many of the cases decided by the Court were important, they certainly had no greater social, economic and political significance than the Bank Nationalisation and Communist Party cases. Yet they attracted much more vehement criticism than the earlier cases. The chorus of disapproval reached a crescendo with the decision in Wik Peoples v Queensland[22] which, although post-dating the departure of Sir Anthony Mason from the Court, tends to be viewed as reflecting the philosophy of the Mason Court. The equation seemed to be that the more open the process of judicial law-making, the less restrained the voices of the critics.[23]

Judicial activism and judicial restraint

One consequence of the uproar over the High Court’s apparently bold law-making is that the expression 'judicial activism' has become a political slogan, carrying distinctly pejorative overtones. In contemporary discourse in Australia the expression is frequently used in a derogatory sense to describe judicial law-making, especially of constitutional dimensions, which reflects the personal (usually liberal) policy preferences of unelected judges rather than a neutral application by them of established principles. In this sense, the expression implies that activist judges exceed the proper limits of the judicial function and indeed, usurp the democratic authority of elected Parliaments.

A contrast is often drawn between judicial activism and the exercise of judicial restraint. Judicial restraint is used to describe judicial reasoning that stresses the importance of following precedent and faithfully giving effect to the text of the Constitution and of statutes. Judicial restraint emphasises the virtue of minimising, if not eliminating, the judge’s own policy preferences from the decision-making process. It also implies that the Court should defer to the will of democratically elected Parliaments.

Despite the vehemence of the debate, the boundaries between judicial activism and judicial restraint can be surprisingly difficult to draw. Indeed, particular decisions may contain elements of both. The point can be illustrated by the recent case of Re Wakim.[24] There the Court, by a six to one majority, invalidated the cross-vesting scheme[25] insofar as it depended on State legislation investing federal courts with State judicial power. According to the majority, Chapter III of the Constitution contemplates that the federal courts created by Parliament will exercise jurisdiction only with respect to the matters specified in ss75 and 76 of the Constitution. Thus the co-operative legislative scheme, which purported to empower federal courts to hear and determine matters arising under State law, could not survive constitutional scrutiny.

There are three striking features about the decision in Re Wakim. First, it seems clear enough that the members of the High Court had a choice as to whether or not they would read Chapter III of the Constitution as prohibiting the conferral of State judicial power on federal courts. In Gould v Brown,[26] decided only sixteen months before Re Wakim, the cross-vesting scheme had been upheld by an evenly divided High Court.[27] In view of the divergence of judicial opinion in Gould v Brown, it is difficult to suggest that the invalidity of the scheme inevitably flowed from the unambiguous text of Chapter III of the Constitution. This is not to deny that the majority was able to invoke powerful arguments rooted in the text and structure of Chapter III. The point is simply that the contrary construction of the text of the Constitution was fairly arguable.

Secondly, the invalidation of the cross-vesting scheme, which had operated successfully for nearly a decade, was certain to create considerable inconvenience to litigants and the wider community. One consequence of the decision, for example, was that the Federal Court was held to have acted without jurisdiction in a large number of cases, both concluded and pending.[28] The legal status of these decisions rendered uncertain by the demise of the cross-vesting scheme. Another consequence was the resurrection of potential jurisdictional disputes in federal courts, a phenomenon that the cross-vesting scheme was thought to have consigned to legal history.

Thirdly, two members of the majority in Re Wakim were at pains to contend that policy considerations could play no role in the Court’s decision. McHugh J acknowledged that it would be very convenient and usually less expensive and time-consuming for litigants in federal courts if those courts could deal with all litigious issues arising between the parties whether or not the issues had any federal element. He thought that from the litigant’s point of view that was 'saying a great deal'.[29] But, from a constitutional point of view it said 'nothing'. Similarly, Gleeson CJ commented that approval or disapproval of a legislative policy was 'irrelevant to a judgment as to constitutional validity'. That argument had to 'succeed or fail on its legal merits'.[30]

At one level, the majority judgments in Re Wakim exhibit characteristics commonly associated with judicial restraint. They rest on a close analysis of the text and structure of Chapter III of the Constitution. They eschew reliance not merely on the policy preferences of individual judges, but on the community values reflected in the cooperative scheme itself. Yet at another level the judgments display features commonly associated with judicial activism. In particular, it is difficult to imagine a decision more counter-majoritarian in effect, and less deferential to the will of elected Parliaments, than Re Wakim. After all, the Court invalidated a cooperative scheme endorsed and enacted by every democratically elected Parliament in the country, Commonwealth, State and Territory.

The point of those observations is not to argue for or against the result in Re Wakim. Rather it is to emphasise the difficulty of classifying judicial reasoning by reference to conventional labels often applied to particular courts or judges. Nonetheless, it is fair to say that the case illustrates both a departure from the policy-oriented jurisprudence of the Mason Court and a preference for what the present Chief Justice has described as the 'legalistic method' of judicial reasoning.[31] One of the questions presented by this preference is whether courts can make interpretative choices independently of policy judgments. If the answer is no, the further question arises as to whether a legalistic method might not, as Sir Anthony Mason argued, create a risk that reasoning processes will be disguised rather than elucidated.

When should the courts make new law?

If it is true that appellate and constitutional courts necessarily make law, a further question arises: when should they step in to change existing law and when should they stay their hand? In other words, what are the criteria for determining the limits of the judicial law-making role? The question lies at the heart of the appellate function and of the responsibilities discharged by a Constitutional court.

Having posed the question, it must be said that there is no easy or uniform answer. Some guidelines can be offered. The first is that there is a fundamental difference between constitutional and non-constitutional cases. When a court is being asked to invalidate State or Commonwealth legislation, it must be conscious that it is being asked to override the will of one or more elected Parliaments. Even in a country where judicial review of legislation has been accepted as axiomatic from the beginning, considerable caution must be exercised before unelected judges take on themselves the responsibility of holding that legislation infringes the Constitution and is therefore invalid. Particularly is this so when the basis for invalidity is said to be an unexpressed limitation on legislative power to be implied in the Constitution. That is why there is considerable force in the criticism levelled at those High Court judgments that went so far as to suggest that there was an implied guarantee of legal equality to be found in the Constitution.[32] Doubtless equality under the law is an admirable aspiration. But for the Court to elevate equality into a constitutional imperative, without a clear textual foundation, is to implement a unilateral transfer of power from elected Parliaments to unelected courts without the endorsement of the people.

The second guideline is a corollary of the first. The courts can be considerably bolder when engaged in moulding the common law or interpreting legislation. The reason is that Parliament, if it considers the result unsound, can legislate to overturn the decision and introduce a new rule or principle. By making new law in a non-constitutional context the courts are not at risk of committing the 'counter-majoritarian' error.

This does not mean the courts are at large to transform the common law when they feel the urge to do so, nor that they are free to interpret legislation in a manner that disregards the language used by Parliament. There are obvious constraints. Courts can only act when cases are brought before them; they cannot simply choose the issues on which they make pronouncements. The approach taken in a given case must be consistent with what Brennan J described as the 'skeleton of principle' [33] and (at least so far as lower and intermediate courts are concerned) conformable with precedent. Most importantly, they must justify their conclusions by a process of inductive reasoning that can be subjected to close and critical scrutiny.

Within these constraints, perhaps the most difficult question facing an appellate court is to determine whether it is appropriate for the court, as opposed to Parliament, to bring about a change in the law. There may be cases where the policy arguments supporting a novel legal principle appear to be very strong, yet an issue arises as to whether it is appropriate for the court to act. The issue is not always openly addressed and, even when it is, it is often not addressed adequately.

An illustration: Mabo

Some of these issues can be illustrated by Mabo (No 2). The effect of that decision was to hold, two centuries after European settlement of the eastern seaboard of Australia, that the common law recognised the concept of native title to traditional Aboriginal lands. In reaching this conclusion, the High Court reasoned by analogy from principles accepted elsewhere in the common law world, especially North America. The Court acknowledged, for example, that claimant groups had to establish continuity of association with the land during the period of European settlement, and that native title could be extinguished by a valid legislative or executive act creating inconsistent interests in land. But the recognition of native title worked a fundamental transformation of the common law of Australia.

At one level, the policy arguments for the High Court’s recognition of native title seem to be overwhelming. The linchpin of the decision was what Brennan J described as the 'unjust and discriminatory' refusal of the previous law to 'recognise the rights and interests in land of the indigenous inhabitants of settled colonies'.[34] Although the judgments devote relatively little time to the policy justification for transforming the common law, it is clear enough that the Court considered that the prior occupation of Aboriginal peoples carried its own moral and legal force, demanding recognition by the common law. There is also a good deal of what Professor Webber describes as 'the jurisprudence of regret'[35] in the judgments. This is reflected in the view expressed by Deane and Gaudron JJ that two centuries of oppression and conflict had dispossessed, degraded and devastated the Aboriginal peoples and had left a 'national legacy of unutterable shame'.[36]

There is no denying the powerful force of this reasoning, which has commanded widespread, although by no means universal acceptance in Australia. The question, however, that the judgments in Mabo do not explicitly address is this: why was it appropriate for the High Court to adopt the doctrine of common law native title two centuries after the commencement of European settlement and in the face of established legal principle to the contrary? It is, after all, one thing to recognise the strong moral claim of aboriginal peoples to native title; it is quite another for the High Court to decide that it, rather than the elected Parliament, should recognise that moral claim.

I think that there is a convincing answer to this question. It starts with the proposition that the High Court, after all, was merely changing the common law. Not only was it open to Parliament to intervene if it disagreed with the High Court’s decision, it was inevitable that Parliamentary scrutiny of the decision would take place. This was because the decision in Mabo (No 2) threw into doubt the validity of many grants of interests in land that had taken place after the Racial Discrimination Act 1975 (Cth) had come into force.[37] There was no doubt that Parliament had to resolve this issue, as well as direct its attention to the many other practical difficulties and uncertainties created by the decision, including the means by which native title claims were to be resolved. Parliament did in fact respond swiftly to Mabo, by enacting the Native Title Act 1993 (Cth).

Although Mabo worked a profound change in the common law of Australia, it did so in a way that preserved majoritarian values. In substance, its effect was to change the rules dictating which interest groups bore the onus of attracting the attention of Parliament. Prior to Mabo, Aboriginal people had no entitlement to traditional lands unless they were able to persuade Parliament to enact legislation (as it had, in a limited way, by passing the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)). After Mabo, non-Aboriginal interests adversely affected by the decision bore the burden of persuading Parliament to negate or modify native title. And it was open to Parliament, if it so chose, to repudiate the concept of native title recognised by the High Court.

In the result, Parliament enacted a compromise. But the legislative compromise firmly endorsed native title as part of the law of Australia, in terms very similar to those expounded by the High Court.[38] The legislation has since been amended, in a way not wholly advantageous to Aboriginal people.[39] But native title in Australia now rests on a firm democratic footing. Mabo has received the endorsement of Parliament.

Two contrasting cases

Mabo can fairly be regarded as a unique case. Yet the kind of policy issues confronting the High Court in that case occur regularly. Each fresh case raises the question of whether it is appropriate for the Court to change the law or whether the responsibility is that of Parliament. While the decision is rarely straightforward, there are criteria that can usefully be applied.

A useful guideline is that where the courts themselves have created an unsatisfactory situation, they should generally accept responsibility for reforming the law in the interests of clarity, efficiency and fairness. This point can be illustrated by the recent decision of the High Court in John Pfeifer Pty Ltd v Rogerson.[40] Pfeifer concerned the choice of law rules to be applied where a person, injured as the result of an accident in one State or Territory, sues the person said to be responsible in the court of another State or Territory. While the issues presented by interstate accident cases of this kind might be thought technical, such cases arise virtually every day and determine the rights of ordinary Australians.

The High Court had previously held that interstate tort claims are governed by complex choice of law rules derived from international conflict of laws principles. Specifically, the Court adopted the so-called 'double actionability' rule formulated by Brennan J in Breavington v Godleman.[41] The resolution of interstate tort claims was further complicated by the principle that questions of 'procedure' were governed exclusively by the laws of the forum ('lex fori').[42] Since 'procedural' rules were held to embrace certain kinds of limitations statutes and the assessment of damages, the lex fori could effectively determine the outcome of a claim for damages arising out of an accident occurring in some other part of Australia. Thus one practical consequence of the law formulated by the High Court was to encourage forum shopping, since plaintiffs could avoid restrictions imposed by the law of the place where the accident occurred ('lex loci delicti') by choosing the forum most advantageous to them.

The law as formulated by the High Court not only encouraged forum shopping, but involved distinctions that the Court itself characterised as 'doubtful or even artificial'.[43] Moreover, as the Court emphasised in Pfeifer,[44] the authorities had paid insufficient attention to the fact that choice of law questions generated by events occurring within Australia arise in a federal (not international) context. Within that framework, it would be curious, to say the least, if the outcome of proceedings were to depend on the forum chosen by the plaintiff.

In these circumstances, it was appropriate for the High Court to cast aside the unsatisfactory judge-made choice of law rules applicable in intra-national torts and substitute new principles. While law reform bodies had examined the policy questions,[45] their deliberations did not throw up policy issues that the Court could not evaluate itself. Indeed, it can be argued that the High Court is uniquely equipped to evaluate the operation of choice of law rules within the Australian federal system.[46]

In Pfeifer, the Court accepted that it bore responsibility for changing the choice of law rules for intra-national torts. The Court adopted a new choice of law rule, namely that the lex loci delicti governs in tort cases involving an interstate element regardless of the forum in which the proceedings are instituted.[47] It abandoned the double actionability rule in such cases.[48] And it foreshadowed reformulation of the procedure-substance distinction, so as to limit procedural rules to those that govern or regulate the mode or conduct of court proceedings.[49] Having created the conditions for the common law to 'unravel into chaos',[50] the Court was the appropriate body to fix the problem.

The other side of the coin is illustrated by Breen v Williams.[51] The issue in that case was whether a patient has a right, upon request to her medical practitioner, to examine and copy her medical records. The claim, as ultimately formulated, was qualified. It did not, for example, extend to administrative records created by the doctor for his own benefit. Nor did it apply to disclosures that the doctor reasonably believed would be likely to cause serious harm to the patient’s physical or mental health. The Supreme Court of Canada had held such a claim was encompassed within the fiduciary duties owed by a doctor to a patient.[52] The United Kingdom had enacted legislation conferring on patients a statutory right of access to their medical records.[53] But the claim was novel in Australia.

The New South Wales Court of Appeal rejected the patient’s claim.[54] Kirby P dissented. He found the reasoning of the Canadian Supreme Court 'wholly convincing' in its recognition of the 'special and intimate interests of the patient in the content of the medical information which concerns nobody more directly than [that] patient'.[55] Kirby P listed several policy reasons why the qualified right of access should be granted. He pointed out, for example, that patients now had a less trusting relationship with medical practitioners and that changes in information technology allowed records to be accessed much more readily and cheaply.

Kirby P directly addressed the argument that any change in the law should be for Parliament and not the courts. In his view, it was right for the courts to impose new rights and duties on the patient-doctor relationship. It was unrealistic to expect Parliament to act on a 'matter of detail of the law’s operation'.[56] For centuries courts had imposed duties on fiduciary relationships and there was 'no reason in legal concept' why the step should not be taken in this case.[57] Nor was he convinced that there would be any insuperable difficulties created by the fact that medical practitioners had maintained records in the past in the belief that the patient had no rights of access.[58]

A unanimous High Court dismissed the appeal. All members of the Court considered that the law of fiduciary relationship had developed differently in Australia than in Canada and that it did not support a duty on doctors to afford access to a patient’s medical records. Gaudron and McHugh JJ said that it was 'not possible' for the Court to extend existing principles to create the right asserted in the case. They argued that

Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must ‘fit’ within the accepted body of accepted rules and principles. The judges of Australia cannot, so to speak, ‘make it up’ as they go along.[59]

This, in my view, overstates the case against judicial intervention. It was open to the High Court to adapt existing principles to include the patient’s claim to access to information. While it may have been true that the Canadian law had developed differently, it goes too far to imply that extending the law of fiduciary relationships, to confer a right of access to patient records, would have been to 'make it up'.

A more convincing answer to the appellant’s case was that the Court in Breen v Williams was simply ill-equipped to make the policy judgment that underlay her argument. This was the point made by Dawson and Toohey JJ, albeit in summary form, when they said that the desirability of the result sought by the appellant was 'far from self-evident' and the policy choices were appropriate for Parliament rather than the courts to make.[60] The Court, for example, had no empirical information as to the impact of a change in the law on the practices of doctors and the welfare of patients. Nor did it have information as to the practical difficulties that might be created by a retrospective change in the law (the only kind Australian courts can effect).[61] And the Court’s processes simply did not allow for the kind of consultation and discussion that could be regarded as necessary to achieve community understanding of legal reforms in such a sensitive area.

Unlike Pfeifer, this was not a case where the Court itself had created the problem. Nor was it one where the Court could be confident that it had the data required to make the necessary policy judgments. The High Court was therefore right to transfer the battle to the legislative arena.


One of the manifestations of millenarianism is a belief that the twenty-first century will necessarily be very different from the twentieth. And so it will in many respects. Certainly the courts will face an endless variety of novel and doubtless difficult questions generated, for example, by astonishing scientific and technological advances and the great social and economic changes wrought by globalisation and the spread of international human rights.

But while the setting for judicial law-making will change, the dilemmas facing appellate and constitutional courts are likely to be familiar. Judges will continue to grapple with the fundamental problem of determining the limits of judicial law-making responsibilities. They will also grapple with the need to articulate the reasons for the choices they make. These are questions that go to the heart of the rule of law in a constitutional democracy.

[1] See generally R Sackville 'Continuity and Judicial Creativity – Some Observations' [1997] UNSWLawJl 16; (1997) 20 UNSWLJ 145.

[2] The expression appears in Holmes J’s dissent in Southern Pacific Co v Jensen [1916] USSC 71; 244 US 205 (1917), at 222.

Holmes J rejected that description of the common law.

[3] M H McHugh, 'The Law-Making Function of the Judicial Process' (1988) 62 ALJ 15.

[4] State Government Insurance Commission v Trigwell (1979) 142 CLR 617, at 650-651.

[5] J Austin, Lectures on Jurisprudence, (4th ed 1873), at 655.

[6] (1952) 85 CLR xi, at xiv.

[7] Bank of New South Wales v Commonwealth (1948) 76 CLR 1, aff’d [1949] HCA 47; (1949) 79 CLR 497 (PC).

[8] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

[9] See G Williams, 'Reading the Judicial Mind: Appellate Argument in the Communist Party Case' [1993] SydLawRw 1; (1993) 15 Syd L Rev 3.

[10] See A F Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience' (1986) 16 FLR 1, at 5.

[11] A F Mason, 'The Judge as Law-Maker' (1996) 3 James Cook ULR 1, at 12.

[12] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at 319.

[13] A F Mason, note 11 above, at 13.

[14] [1988] HCA 18; (1988) 165 CLR 360.

[15] [1989] HCA 53; (1989) 168 CLR 461.

[16] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.

[17] The Court has subsequently retreated somewhat from this position: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[18] Mabo v Queensland (No 2) (1992) 175 CLR 1.

[19] [1992] HCA 57; (1992) 177 CLR 292.

[20] [1995] HCA 20; (1995) 183 CLR 273.

[21] Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994), at para 9.4.2.

[22] Wik Peoples v State of Queensland (1996) 187 CLR 1.

[23] Justice Kirby has thoughtfully collected some of the choicer comments made by critics in the aftermath of Wik. The Judges of the Court were labelled, among other epithets, as 'bogus', 'feral', 'pusillanimous and evasive' and as a group of 'basket-weavers': M D Kirby, 'Attacks on Judges – A Universal Phenomenon’ (1998) 72 ALJ 599, at 601.

[24] Re Wakim; Ex Parte McNally [1999] HCA 27; (1999) 163 ALR 270.

[25] The case itself concerned the cross-vesting provisions of the Corporations Act 1989 and the Corporations (New South Wales) Act 1990, but the reasoning applied to the cross-vesting scheme established by the Courts (Cross-Vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 of each of the States.

[26] (1998) 193 CLR 346.

[27] Brennan CJ, Toohey and Kirby JJ upheld the cross-vesting scheme. Gaudron, McHugh and Gummow JJ held that it contravened Chapter III of the Constitution. Since the Court was evenly divided, the decision of the Full Federal Court upholding the legislation was affirmed: BP Australia Ltd v Amann Aviation Pty Ltd (1992) 62 FCR 451. Between the decision in Gould v Brown and the challenge in Re Wakim, Brennan CJ and Toohey J had retired from the Court.

[28] These issues are addressed by remedial legislation of the States. See, for example, the Federal Courts (State Jurisdiction) Act 1999 (NSW). In Residual Assco Group v Spalvins [2000] HCA 33, the High Court upheld the validity of one of the key provisions of the remedial legislation.

[29] 163 ALR, at 282.

[30] Id, at 275.

[31] A M Gleeson, 'Judicial Legitimacy', Address to the Australian Bar Association Conference, New York, 2 July 2000, at 5.

[32] See Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455, at 485-490, per Deane and Toohey JJ. Compare Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, at 44-45 per Brennan CJ, at 63-68, per Dawson J (with whom McHugh J agreed); at 112-114, per Gaudron J; at 153-155, per Gummow J.

[33] Mabo at 29-30.

[34] Id, at 42.

[35] J Webber, 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo' [1995] SydLawRw 1; (1995) 17 Syd LR 5.

[36] Mabo at 104.

[37] The effect of Mabo v Queensland (No 1) (1988) 166 CLR 186 was that acts discriminating against native title would be invalid by reason of inconsistency with the Racial Discrimination Act.

[38] See Native Title Act 1993 (Cth), ss 3(a), 10 and 223.

[39] Native Title Amendment Act 1998 (Cth).

[40] [2000] HCA 36.

[41] [1988] HCA 40; (1988) 169 CLR 41, at 110-111. The rule was as follows:

'A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if – 1. The claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. By the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.' This formulation was accepted by the majority in McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, at 39, and reaffirmed in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433, at 453.

[42] Stevens v Head, at 456.

[43] McKain v R W Miller &Co, at 40 (referring to the dividing line between 'procedural' and 'substantive law'.

[44] Pfeifer, at [2], [52] ff.

[45] Australian Law Reform Commission, Choice of Law (Report No 58, 1992), at paras 6.14 ff.

[46] Even if its early efforts did not produce satisfactory results.

[47] Pfeifer, at [81]-[87].

[48] Id, at [96].

[49] Id, at [99].

[50] M Davies, 'Exactly What is the Australian Choice of Law Rule in Torts Cases?' (1996) 70 ALJ 711, at 719.

[51] (1996) 186 CLR 71.

[52] McInerney v MacDonald [1992] 2 SCR 138.

[53] Access to Health Records Act 1990 (UK).

[54] Breen v Williams (1994) 35 NSWLR 522.

[55] Id, at 545.

[56] Id, at 546.

[57] Id, at 546-547.

[58] Id, at 547-549.

[59] 186 CLR, at 115

[60] Id, at 99.

[61] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, at 501-502, per Brennan CJ, McHugh, Gummow and Kirby JJ; at 515, per Dawson, Toohey and Gaudron JJ.

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