12:55

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THE HIGH COURT OF AUSTRALIA AND THE
SUPREME COURT OF

THE UNITED STATES - A CENTENARY
REFLECTION*

The Hon Justice Michael Kirby AC CMG**

INTRODUCTION

In October 2003 in Melbourne, the High Court of Australia celebrated the

centenary of its first sitting. According to the Australian Constitution, it is the
“Federal Supreme Court” of the Australian Commonwealth.1 Although the
Constitution envisaged the establishment of the High Court, the first sitting of the
new court did not take place until a statute had provided for the court and the
appointment of its first Justices. They took their seats in a ceremony held in the
Banco Court in the Supreme Court of Victoria on 6 October 1903. Exactly a
century later, the present Justices assembled in the same courtroom for a sitting
to mark the first century of the Court.

In the course of the century, the Australian Justices have paid close attention
to the decisions of the Supreme Court of the United States. The similarities
between the Australian Constitution and that of the United States from which
many basic ideas were borrowed made such attention inevitable. For the
Australian colonists fashioning their own Constitution, the United States
Constitution was “an incomparable model”.2

Indirectly, the Australian colonies owed their existence to the American
Revolution and the work of the colonists who met at the Constitutional
Convention in Philadelphia in 1787, there establishing a Constitution of shared
powers, with a Supreme Court and federal judiciary to uphold the federal
compact. But for the loss of the American colonies, it is unlikely that the
government of King George III would have been sufficiently interested to

* Based on a lecture given to the Washington College of Law, American University,
Washington, 24 September 2003.
** Justice of the High Court of Australia.
1 Commonwealth of Australia Constitution Act 1900 (UK); 63 & 64 Vict c 12. In form,
the Australian Constitution was appended to the Imperial Act. In reality, it was virtually
entirely drafted in Australia, adopted at Constitutional Conventions of elected
representatives and approved by referenda conducted throughout the Australian colonies.
2 O Dixon “The Law and the Constitution”, in O Dixon Jesting Pilate (2nd ed) (hereafter
“Jesting Pilate”) (New York, Hein, 1997) 44.

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establish the colony of New South Wales, out of which the Australian nation
grew. That development is thus one of those accidents of history that presents
the puzzle as to what would have been the fate of the Great South Land had it not
been for the American Revolution of 1776.

That revolution had dual consequences, important for Australia’s future.
First, it necessitated the urgent investigation of alternative places to which Britain
could send the convicts who had formerly been sent to the American colonies.
Secondly, the British government was sufficiently shocked by the loss of the
American colonies that it modified its colonial policy, at least with respect to
those settled by colonists who came from the British Isles. To some extent, the
British learned the lessons that the American colonists had taught. These
included the ultimate right of people to alter, or to abolish, the form of
government imposed upon them and to institute a new government to correct
intolerable wrongs; the need to avoid despotism lest those subject to it throw off
such government and provide new protections for their security; and the
necessity without delay, to establish (at least in settler societies) a form of
government similar to that enjoyed at home by the commons of England.

When, after 1776, the British Government lost the right to deposit unwanted
convicts in the American colonies, the necessity to find an alternative venue
arose. Various possibilities in Africa were canvassed. Eventually, those with the
responsibility of deciding these things remembered the report of the journey to
the South Pacific by Captain James Cook. Thus was born the idea of establishing
a new colony in Australia.3 It was to be a penal colony.

Australians are therefore children of the American Revolution. From the
start, their legal history was connected to that of the United States. The evolution
of British colonial policy had the consequence of avoiding the need for
revolution in Australia. From the beginning, the example of the legal and
judicial system of the United States remained before the Australian colonists.
When, eventually, self-government began to spread to the Australian colonies
after the 1850s,4 part of the impetus for change was the ever-present example
provided by the United States Constitution and the governmental and judicial
systems that it had created.

3 A Castles An Australian Legal History, (Sydney, Law Book Company, 1982) 20-31.
4 Ibid 165, 401-402. Responsible government was granted in New South Wales in 1855
by the establishment of an elected Lower House of Parliament (the Legislative
Assembly). This followed an earlier partial grant of self-government in 1842 by an
Imperial Act that provided for a Legislative Council, two-thirds of whose members
would be elected on a franchise limited by a property qualification. There were similar
moves in the other Australian States; cf Yourgala v Western Australia (2001) 207 CLR
344.

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The similarities and differences between the constitutional arrangements
adopted in Australia and the United States have been explored by earlier writers.5
One way of understanding ourselves is to endeavour to see ourselves as others
see us. We do this not so much in tribute to others as to reflect upon ourselves -
holding up the experience of others as a mirror by which we may see our own
concerns reflected in slightly different forms. Lawyers of the common law
tradition share the advantages of the English language and a particular system for
solving legal disputes. They enjoy institutions with common features. This
linguistic and institutional history brings with it not only similar approaches to
the resolution of problems but shared values and a shared methodology for
resolving conflict in society.

It was in the Royal Courts in London that the idea of common law
institutions took hold. Out of the work of those courts came not only the
resolution of particular disputes but precedents which, recorded and, followed by
later judges, helped to resolve similar disputes. The idea of the public trial,
conducted before a judge and a jury was so powerful in the English imagination
that when they had their own civil war and decided to rid themselves of an
autocratic king, they followed the format of a jury trial, however flawed.6 Even
in such a matter, the idea of constitutionalism and the rule of law could not be
ignored.

Because the United States and Australia share the same language and a great
part of the same legal tradition derived from England, it is useful to compare
their judicial institutions and legal doctrines. This is especially so in the case of
Australia and in respect of the judicial branch of government, because, save in
certain particular matters, the founders of the Australian Commonwealth copied
from Art III of the United States Constitution many of its ideas when they were
drafting Ch III of the Australian Constitution.7 Moreover, from the beginning of
the High Court of Australia, the Justices borrowed from United States precedents
of which, especially in the early years, they were very familiar.8
The high level of similarity of history, culture and law may therefore
sometimes make it useful both to the United States and Australia to be aware of

5 O Dixon “Two Constitutions Compared” in Jesting Pilate (1997) esp 100-112; F C
Hutley, “The Legal Traditions of Australia as Contrasted with those of the United States”
(1981) 55 Australian Law Journal 63.
6 cf M D Kirby “The Trial of King Charles I: Defining Moment for our Constitutional
Liberties” (1999) 73 Australian Law Journal 577, where the story is told.
7 O Dixon “Two Constitutions Compared” in Jesting Pilate, 100 at 101.
8 They were specially acquainted with James Bryce's The American Commonwealth: see
M N C Harvey “James Bryce, ‘The American Commonwealth’, and the Australian
Constitution” (2002) 76 Australian Law Journal 362.

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what is happening in the courts of the other country. Developments that occur
there may occasionally be followed. Sometimes, even if not followed, a
consideration of the experience of a similar constitutional system requires us to
clarify our own thinking and to justify our points of difference, if only to
ourselves.

SIMILARITIES

Judicial power and federal powers:

The first similarity between the Australian High Court and the Supreme
Court of the United States concerns the role of the two courts. In any written
Constitution, but particularly a federal one that divides power between different
parts of the same polity, it is essential to have an umpire. There must be an
authoritative means of determining where power lies. In the case of dispute, it is
imperative to know whether a particular law or official or judicial act, is valid. In
both the Australian Constitution and the Constitution of the United States, the
federal supreme court has the responsibility ultimately to decide such matters.9

At different times in the history of a federation, different views will prevail
concerning the respective powers of the central (or federal) lawmakers and
office-holders and those of the subnational polities, in Australia as in the United
States, the States. At the beginning of federation in Australia, drawing on late
nineteenth century United States cases, the federal Constitution was seen as a
contract between coordinate partners (the Commonwealth and the States). In
accordance with the written text of the Constitution, each component enjoyed
substantially equal responsibility for the good government of the people. The
three original Justices of the High Court of Australia drew an inference from the
federal structure of the Constitution, that certain powers were reserved to the
State legislatures so that, by the use of its express grants of legislative power, the
Federal Parliament could not use its powers to invade the lawmaking functions
inferentially reserved to the States.10

It did not take long for the new national Parliament to put this doctrine to the
test by the exercise of federal lawmaking power in a way seen to intrude into
presumed State functions. The entry of Australia into the First World War in

9 O Dixon “Government Under the American Constitution” in O Dixon Jesting Pilate
(1997).
10 D'Emden v Pedder (1904) 1 CLR 91; Deakin v Webb (1904) 1 CLR 585; Webb v
Outrim [1907] AC 81 (PC); Baxter v Commissioners of Taxation (1907) 4 CLR 1087;
Austin v The Commonwealth (2003) 77 ALJR 491; 195 ALR 321.

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1914 led to the use of the defence power11 in ways that challenged the previous
assumptions about the “reserved powers” of the States. Under the defence
power, the High Court upheld a broad ambit of lawmaking as claimed by the
Federal Parliament to regulate the economy in ways that would otherwise have
been unavailable. War made the difference, as so often it does.12

Before long, new appointees to the High Court of Australia questioned the
notion of the reserved powers of the States. Eventually, in 1920, in the
Engineers’ Case,13 the majority of the Court rejected the doctrine of implied State
immunities. The Court held that, if federal legislation were within the ambit of a
grant of power to the Federal Parliament, broadly construed as befitted a
Constitution, no implication arose from the federal structure of the Constitution
that would, on its own, be sufficient to invalidate such a law. This charter for
national lawmaking has subsequently been qualified somewhat by an elusive
doctrine based on the constitutional necessity that the States should continue to
exist, should perform their envisaged constitutional functions, and should not be
destroyed or significantly prevented by federal law from discharging their
functions as States.14 The Engineers’ Case was nonetheless a most important
charter for the lawmaking power of the Federal Parliament. As in the United
States, the highest court has generally upheld the validity of federal legislation
against State constitutional challenges.15 Only recently in Australia, and usually
in relation to implications derived from Chapter III (the Judicature), has the
federal lawmaking power taken something of a battering.16

Constitutional and judicial review:

There is no express grant of power to the High Court of Australia, or any
other Australian court or body, to invalidate federal or State law as
unconstitutional. There are systems of government that assign such ultimate
responsibilities in this regard to the legislature. The Hong Kong Special
Administrative Region discovered this when the People’s Republic of China
insisted that the ultimate powers of supervision of certain “constitutional”

11 Australian Constitution, s 51(vi).
12 Farey v Burvett (1916) 21 CLR 433; South Australia v The Commonwealth (1942) 65
CLR 373; O Dixon, “Aspects of Australian Federalism” in Jesting Pilate, 113 at 121-122.
13 Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129. For
a contemporary, critical commentary see G de Q Walker, “The Seven Pillars of
Centralism: Engineers' Case and Federalism” (2002) 76 Australian Law Journal 678.
14 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31.
15 O Dixon “Aspects of Australian Federalism” in Jesting Pilate 113 at 116-121.
16 Re Wakim; Ex parte McNally (1999) 198 CLR 511; Bond v The Queen (2000) 201 CLR
213; Hughes v The Queen (2000) 202 CLR 535; cf Gould v Brown (1998) 193 CLR 346.

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decisions affecting Hong Kong after the British handover, belonged to the
Standing Committee of the National People’s Congress of China, not to a court.17
In a sense, the recognition until now of the House of Lords, as a kind of
committee or board of the British Parliament, and of the Judicial Committee of
the Privy Council as an expert legal body advising the British monarch, continue
a model of ultimate resolution of legal questions in the legislature or the
executive, not in a separate judiciary.

In the case of the British institutions, the symbolism does not reflect the
current political or legal realities. Many of the Law Lords now rarely take part in
political debates in the legislative chamber. Some never do.18 Although Privy
Council determinations are traditionally expressed in the terms of “humble
advice” to the monarch there is no occasion in modern history where the
monarch has not accepted that advice. As in so many features of the British
Constitution, appearances belie reality. Proposals to abolish the present
arrangements and create a Supreme Court for the United Kingdom are under
active consideration in late 2003. However, the existence of alternative models
for ultimate decision-making in important constitutional contests, indicates that,
without an express grant of authority for judges to have the last word, it was by
no means inevitable that it would turn out that way.

Global constitutionalism therefore owes a great debt to the decision of the
United States Supreme Court in Marbury v Madison.19 By that decision, the
Supreme Court, through the voice of Chief Justice Marshall, asserted the court’s
power to rule conclusively on the validity of the distribution of constitutional
powers between the United States Congress and the States.

17 The power of the National People's Congress to make laws for Hong Kong,
inconsistent with the Basic Law was upheld in HKSAR and Ma and Ors [1997] 2 HKC
315. The ultimate responsibility for the interpretation of the Basic Law lies under Art
158 with the Standing Committee of the National People's Congress: Y Ghai, “Sentinels
of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of
Rights” (1997) 60 Modern Law Review 459; 459; Y Ghai, “Hong Kong and Macau in
Transition - Debating Democracy”, Democratisation, Vol 2 No 3 [1995], 270.
18 J Steyn “Human Rights: the Legacy of Mrs Roosevelt “ [2002] Public Law 473 at 483.
Lord Steyn's comments on the peculiar office of the Lord Chancellor were noted in
(2002) 76 Australian Law Journal 216. In July 2003 the office of Lord Chancellor was
abolished, although later revived - temporarily it seems. Chief Justice Dixon pointed out
that the strict application of the separation of powers was “artificial”, “impractical” and
“opposed to British practice”: O Dixon “The Law and the Constitution” in Jesting Pilate
52. However, as a judge he was to give it strong and inconvenient application: eg The
Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
19 1 Cranch (5 US) 137 (1803) discussed O Dixon “Aspects of Australian Federalism” in
Jesting Pilate 113 at 115.

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When the functions of the High Court of Australia were being designed, it
was assumed that the same power of authoritative disposition would devolve
upon the court. However, to cure perceived defects in the United States
arrangements, two important provisions were added to the Australian
Constitution. Being constitutional grants of original jurisdiction, they could not
be removed from the High Court by any action of the other branches of
government. In s 75(iii) of the Australian Constitution it was provided that in all
matters “in which the Commonwealth or a person suing or being sued on behalf
of the Commonwealth is a party,” the High Court would have original
jurisdiction.

It has been argued that, inherent in the grant of such jurisdiction under s
75(iii) of the Australian Constitution was contained the power to make the
jurisdiction effective, as by the issue of a writ of certiorari to quash a
constitutionally invalid action of the Commonwealth or of a person being sued on
behalf of the Commonwealth.20 In addition to this, to overcome a perceived gap
of the United States Constitution identified in Marbury v Madison,21 original
jurisdiction was also granted to the High Court of Australia in all matters “in
which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth.”

Although these paragraphs of the Australian Constitution, with their mention
of particular remedies, including constitutional writs, represented an advance on
the provisions of the United States Constitution, the fundamental idea concerning
the function of the Judicature is one that has been adapted in Australia from the
United States precedent. Needless to say, the assertion of such a large power of
ultimate authority, and its acceptance by the people and government, provides a
significant defence for constitutionalism. It represents an important check upon
excess, or neglect, of jurisdiction. But it also assigns potentially controversial
functions to the highest court. In Australia, as in the United States, the apex
court is constantly called upon to arbitrate on the lawfulness of legislation as well
as of executive and judicial acts purportedly done under authority derived from
the Constitution.

20 Australian Constitution, s 75(iii).
21 1 Cranch (5 US) 137 (1803) where it was held that Congress had exceeded its
constitutional power by authorising the Supreme Court in its original jurisdiction to grant
a writ of mandamus.

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Common law courts:

The High Court of Australia, like its United States counterpart, is a common
law court.22 It uses common law techniques. It hears arguments in open court
addressed to judges. They pronounce judgment in open court and publish
reasons for their decisions. Those reasons are stated in the discursive manner of
the common law, as distinct from the abbreviated and seemingly dogmatic
fashion of most courts of civil law countries.
Precedent and the principle of stare decisis are important to both legal
systems but they are not unchanging. Both courts are increasingly concerned
with the meaning of legislation, a feature of an age in which the significance of
judge-made law is being overtaken by written law enacted by legislatures. Yet
even in the task of interpretation of legislation, there are principles of the
common law that are observed for the ascertainment of the meaning of the
legislation and the exposition of the operation of the law. The common law
system avoids gaps in the law. If the Constitution is silent and there is no
applicable legislation or rules made by the executive or the judges under
delegated power, the judiciary in our tradition has the responsibility and function
to state a rule of the common law apt for the case. This rule will be derived, for
the most part, by analogical reasoning applied to earlier decisions so as to express
a new rule that will fill the identified gap.

In the United States, the common law was received from England by the
original colonies upon the theory, applicable also in Australia, that it was carried
to the new territories as part of the inheritance of the English settlers. At the
same time, the settlers brought with them the principles of equity. The
persistence of these traditional streams of law was recognised in Article III of the
United States Constitution with its reference to the jurisdiction of federal courts
as including law (ie common law) equity and admiralty law.23. In Australia, the
colonial courts were, like many of their predecessors in the American colonies,
Royal Courts, established by royal decree or order in council made in the name
of the King. Subsequently, specific legislation provided for the introduction of
the common law into the several Australian colonies at a specified date.24 It was

Footnote continues

22 O Dixon “Two Constitutions Compared” in O Dixon Jesting Pilate (1997)100.
23 US Constitution, Art III, s 2.
24 A “Charter of Justice” dated 2 April 1787 purported to create courts of civil and
criminal jurisdiction for the New South Wales colony. By a second set of Letters Patent
on 4 February 1814, a “Supreme Court” and a “Governor's Court” were purportedly
created. Because of doubts as to the validity of these instruments, the British Parliament
enacted the Supreme Court Act 1823 (GB); 4 Geo IV c 96. This authorised new Letters
Patent and the establishment of a Supreme Court as court of record providing the date for

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recognised that some rules of the common law might not be received into the
new settlements, being unsuitable to the condition of those colonies at the time.
However, in Australia, that exception was not generally given a broad operation.

Thus, as recently as 1978, the High Court of Australia held that the English
rule that a convicted felon could not sue in the courts until he had served his
sentence or received a pardon was suitable to the conditions of the Australian
colonies and thus received as part of the common law of Australia. This was so
although, at the outset of British settlement, a large proportion of the colonial
population comprised convicted felons who would thereby be excluded from
legal rights25. Similarly, the High Court held that the principle of English law
relieving owners of cattle and sheep from liability for damage occasioned to
others when their animals trespassed onto public highways, was not unsuitable to
the condition of highways in Australia, different though they were.26 Such
borderline decisions proved controversial. They attracted strong dissenting
opinions in the High Court.27 But it is essential in any common law system to be
able to identify the sources of the judge-made and statute law which later judges
will be bound to apply. Where such law is inherited from another jurisdiction (as
in the case of the United States and Australia) it is necessary to identify the date
for the reception of that law so that disputes about the content of the inherited
law will be diminished and can ultimately be resolved according to a clear
principle.

Separation of judicial power:

Both the Supreme Court of the United States and the High Court of Australia
are afforded constitutional guarantees of their independence from the other
branches of government. So as are the other federal courts envisaged in Art III
and Ch III of the two Constitutions. Section 71 of the Australian Constitution
begins in language that is a direct copy of Art III sec 1 of the United States

the introduction of English law. There were similar developments in the other R P
American Colonies: Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines
and Remedies (3rd ed) (Sydney Butterworths. 1992) 10-21.
25 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; cf US Constitution, Art III, s 3
forbidding “corruption of blood”.
26 State Government Insurance Commission v Trigwell (1979) 142 CLR 617; cf now
Brodie v Liverpool Shire Council (2001) 206 CLR 512.
27 In both Dugan and Trigwell Murphy J dissented: (1978) 142 CLR 583 at 606; (1979)
142 CLR 617 at 642.

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precedent. There is an additional reference in the Australian Constitution to the
vesting of federal jurisdiction in “other courts.”28

The United States provision for the appointment of federal judges copied the
statute of Great Britain expressly stating that the judges “shall hold their offices
during good behaviour.”29 There is no exact equivalent in the Australian
Constitution. There judicial tenure is implied from the express provision that
Justices of the High Court and other federal courts shall not be removed except
“on an address from both Houses of the Parliament in the same session praying
for such removal on the ground of proved misbehaviour or incapacity”.30 In the
first century of the Australian Constitution no federal judge has been removed
from office under this power. In one notable case, the power was invoked but the
proceedings were later abandoned.31

Jury trial: civil and criminal:

The United States and Australian Constitutions inherited from the common
law tradition of England the mode of jury trial that was common in that country
at the time the two constitutions were written. In the United States and Australia
jury trial continues to this day in serious criminal cases, both federal and State.
The guarantee of jury trial contained in the United States Constitution32
influenced the terms of s80 of the Australian Constitution. The latter provision
states that “The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held in the State
where the offence was committed, and if the offence was not committed within
any State the trial shall be held at such place or places as the Parliament
prescribes.” The similarity to the United States text is obvious.

The significance of the Australian guarantee has been diminished by the
strict interpretation applied to its language. In effect, the High Court of Australia
has held that a precondition to the application of the constitutional guarantee is a

28 Australian Constitution, s 71. See also s 77(iii).
29 US Constitution, Art III, sec 1. The position in Great Britain was regulated by the Act
of Settlement of 1701; 12 & 13 Will III, c 2 and by the Commissions and Salaries of
Judges Act 1760 (UK); 1 Geo III c 23.
30 Australian Constitution, s 72(ii); cf US Constitution, Art 1 s 3 regulating articles of
impeachment. Only one United States Justice has been subject to the impeachment
procedure, namely Samuel Chase (1808). However, there were campaigns for the
impeachment of Chief Justice Earl Warren and Justice William O Douglas. Justice Abe
Fortas resigned in 1969, possibly in consequence of a threat of impeachment.
31 The events concerning Justice L K Murphy is told in E Campbell and H P Lee, The
Australian Judiciary (2001) 102-115.
32 US Constitution, Art III, s 2.

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decision of the prosecutor to proceed with the criminal accusation against the
accused federal offender “on indictment”.33 If legislation authorises a summary
procedure, and if that procedure is elected by the prosecutor, the result will be
that the entitlement to jury trial will be bypassed. Along with other judges of the
past, I have dissented from this construction of the guarantee of jury trial.34
There is no Australian equivalent to the 7th Amendment to the United States
Constitution. In consequence, jury trial of civil causes has greatly declined in
Australia in recent years. In most parts of Australia that mode of trial, if it still
exists, is now confined to particular proceedings, such as actions for defamation
or actions alleging fraud.35

Dissenting opinions:

A further important feature of the common law system is the right, enjoyed
by appellate judges in the United States and Australia, to dissent if they disagree
with the proposed orders or reasons of their colleagues. In both countries, this
right is taken for granted. It is not common outside the common law world. On
a visit to the Conseil Constitutionnel of France, I discovered not only that the
right of dissent was not recognised but that very few of the members of the
Council favoured its introduction. In part, this attitude originates in a different
view about the nature of law. It may be affected by a culture that is
fundamentally less libertarian than that of the common law. Or it might be traced
to the traditions of the codifiers of the civil law whereby the law is ultimately to
be found in an explicit provision whose clarity is a source of its legitimacy. In
such societies, judicial elaboration of the law usually has a confined role. Indeed,
it is often regarded as primitive, whereas we see it as honest and transparent.

Originally, the Judicial Committee of the Privy Council, to which appeals lay
from Australia until their final abolition in 1986,36 allowed no dissent. Formally,

Footnote continues

33 The King v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556;
Kingswell v The Queen (1985) 159 CLR 284; Cheatle v the Queen (1993) 177 CLR 541;
Cheng v The Queen (2000) 203 CLR 248.
34 eg Cheng v The Queen (2000) 203 CLR 248 at 322-328 [220]-[237]. In my reasons I
examined United States authorities such as Almendarez-Torres v United States 523 US
224 (1998) and Appendi v New Jersey 68 USLW 4576 (2000). See ibid, 328-332 [238]-
[351].
35 Described in Naxakis v Western General Hospital (1999) 197 CLR 269 and Gerlach v
Clifton Bricks Pty Ltd (2002) 209 CLR 478 and John Fairfax Publications v Rivkin
[2003] HCA 50.
36 Privy Council (Limitation of Appeals) Act 1968 (Aust); Privy Council (Appeals from
the High Court) Act 1975 (Aust); Australia Act 1986 (Aust & UK), s 11; Kirmani v

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this was justified because that court’s reasons were expressed in the form of
advice to the monarch. Conflicting advice was thought to be an embarrassment.
Perhaps a somewhat similar view lies behind the civil law tradition that excludes
dissents. Disagreements are thought to cast doubt on the authority of the court
pronouncing its judgment and uncertainty about the content of the resulting law.
As in the Privy Council, this attitude inevitably leads to judicial reasons that are
often the product of compromise, as attempts are made to include sometimes
incompatible opinions in the one text. Some reasons of the European Court of
Justice (which permits no dissents) appear to reflect a similar internal tension.
The European Court of Human Rights (whose judges enjoy the right of dissent)
avoids such problems. So do the appellate courts of Australia and the United
States. From the start after the English tradition, judges have, in both countries,
always been entitled, indeed obliged, to express their true opinions either as to
the outcome of a case or, if agreeing in the outcome, as to the reasons that
support the order or judgment disposing of the matter.

Both in Australia as in the United States, only a minority of decisions of the
highest court are unanimous. Dissenting and separate concurring opinions are a
regular feature of the work of each final court. Their existence is accepted as
reflecting the difficulty and controversy of the cases that come before such
courts. They may also reflect the fairly consistent inclinations that emerge in the
responses of individual judges, and groups of judges, to the resolution of legal
contests. This is so in the United States Supreme Court. It is also true in my
Court.

In the early days of each court, in part because of the commanding influence
respectively of Chief Justice Marshall and of Chief Justice Griffith, there were
relatively few dissents. Each of the original Justices of the High Court of
Australia (Griffith, Barton and O’Connor) had played an active part in framing
the Australian Constitution. They shared common views about its meaning and
essential purposes. In the first four years of the High Court, there were only four
dissenting opinions, all of them by Justice O’Connor. None was on a
constitutional question. But this unanimity broke down with the appointment in
1906 of Justices Isaacs and Higgins, the former especially being of a different
opinion on many constitutional and legal questions to that of the founding
Justices. The unanimity of the first years has never been recaptured.

In Australia, as in the United States, dissenting opinions can sometimes
influence later judicial decisions. Occasionally this happens after a relatively

Captain Cook Cruises Pty Ltd [No 2]; Ex parte Attorney-General (Qld) (1985) 159 CLR
461 at 464.

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short time.37 Sometimes it occurs after many decades.38 Some judges dissent
rarely. In recent years I have dissented in about 30% of the matters decided by
the High Court. That is the highest proportion in the history of the High Court.
The previous highest rate of dissent was by Justice Lionel Murphy (about
20%).39 The next highest amongst the current Justices is Justice McHugh (15%),
after which the level trickles away to insignificant numbers. However, the right
of dissent belongs to every Justice. Attitudes to its use differ. It is a precious
feature of the exercise of the judicial power in both countries.

The judicial life:

The daily work of the Justices of both courts is quite similar. Much time is
spent in reading written casebooks and argument. Time is also spent reviewing
the written material filed on behalf of those who seek to engage the jurisdiction
of the Court. In the early days of each Court, after the English tradition, most of
the work was performed by the judges sitting in open court, listening to argument
and sometimes disposing of decisions by ex tempore opinions and the
pronouncement of orders and judgments at the end of the hearing. In more recent
times, the oral trial tradition has declined in both courts, although oral argument
in open court remains a central feature of the methodology of each body.

In the United States, the Supreme Court, serving a much larger and even
more litigious society, has long required written procedures for the admission of
cases to the Court’s docket. In Australia, a provision governing rights of appeal
to the High Court in civil matters (determined by reference to the value of the
matter at stake) persisted until 1984. Federal legislation then empowered the
High Court to control its own appellate jurisdiction. Today, virtually universally,
that jurisdiction is subject to the requirement of special leave to appeal granted
by the Court.40 In this way, each court now selects the cases it will determine.

Applicants for special leave to appeal in Australia are normally allowed
twenty minutes in which to advance oral arguments the substance of which has

37 eg Dietrich v The Queen (1992) 177 CLR 292 overruled McInnes v The Queen (1979)
143 CLR 575; Re Wakim; Ex parte McNally (1999) 198 CLR 511 overruled Gould v
Brown (1998) 193 CLR 346.
38 Tame v New South Wales (2002) 76 ALJR 1348; 191 ALR 449 overruled in part
Chester v Waverley Corporation (1939) 62 CLR 1; Re Patterson; Ex parte Taylor (2001)
207 CLR 391 overruled Nolan v Minister for Immigration and Ethnic Affairs (1998) 165
CLR 178.
39 J Hocking Lionel Murphy: A Political Biography (2nd ed) (Cambridge, Cambridge
University Press, 2001).
40 Judiciary Act 1903 (Aust), s 35 upheld in Carson v John Fairfax and Sons Ltd (1991)
173 CLR 194.

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already been considered by the Justices in the parties’ written submissions. The
workload imposed by these proceedings has led to suggestions either that a
universal system of written application should be substituted, as in the United
States Supreme Court, or that the High Court should itself decide whether oral
argument would be of help to it. The conduct of oral argument in matters of
constitutional and legal significance not only has utility for the Justices in
allowing them to clarify key questions. It also has a strong symbolic
significance. If all argument is in writing the transparency of the judicial process
is to that extent diminished. Oral hearings, even in the final court, continue to
have many supporters in Australia. The time for an oral hearing of an appeal,
once special leave is granted, or of a proceeding in the original jurisdiction of the
High Court, is not limited to 20 minutes. The Court assigns the date for the
hearing. Normally, it leaves it to the parties to allocate the assigned time
between themselves. Oral argument is thus more extensive than is usual in the
United States court.

The role of clerks:

The Justices today in both courts enjoy assistance not only from the written
briefs and the advocacy of the parties and interveners. They also engage young
law graduates appointed for a short period to work in the Justices’ chambers. In
Australia, these clerks are called “associates”. The Justices of the High Court
each have two such associates. Appointment to such positions is highly sought
after. In my own case I advertise vacancies each year in all Australian law
schools. In consequence, I receive hundreds of applications. Eventually these
are reduced to one male and one female appointee. I do not chose my staff from
particular law schools or on the nomination of others, as seems to be a common
tradition in the United States. On the contrary, I observe strict equal opportunity
principles in their recruitment. Each Justice in Australia has his or her own
system of making such appointments. So far, two former associates have been
appointed Justices of the Court - Justice McTiernan (who was associate to Justice
Rich) and Justice Aitkin (who was associate to Chief Justice Dixon).

The world of ideas:

Most Justices in both countries today accept responsibilities outside the
courtroom. They participate in professional, academic and other functions in
keeping with the educative role of a judge of a final court. Not all Justices
welcome such obligations; although some do. In the Commonwealth of Nations,
there is an Association of Commonwealth Judges and Magistrates that holds
regular conferences at which they can share judicial experiences.
Commonwealth Law Conferences and specialist meetings of Commonwealth

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judges provide opportunities for comparing notes on the common issues facing
national final courts of appeal. Judges of such courts are also expected to take
part in the meetings of judges of their own country where, necessarily, they play
a leadership role beyond the pages of the court reports.

Beyond the nation and such Commonwealth meetings, there is an increased
tendency in recent years to bring together judges from a wider range of countries,
including those from other countries of the common law and civil law traditions.
For example, a global constitutionalism seminar is held every year at the Yale
Law School. I have attended that series in recent years together with Justice
Breyer of the Supreme Court of the United States, Lord Chief Justice Woolf of
the United Kingdom, Justice Iacobucci of the Supreme Court of Canada and
judges from the supreme courts of countries as diverse as Hong Kong, India,
Israel, Japan, Peru, Poland, the European Court of Human Rights and the French
Conseil Constitutionnel.

In such meetings judges of final courts quickly recognise the commonality of
questions that arise for decision prompted by the same or similar social
movements. Acknowledging fully the duty of obedience to their own
constitutions and laws, knowledge about contemporaneous approaches to
common problems can sometimes enhance the quality of local judicial solutions.
At a number of international seminars attended by Justices of the Supreme Court
of the United States, I have participated, as they have, in discussion of the
growing influence of international human rights norms upon domestic judicial
decision-making.41
The recent references in the majority opinions in Virginia v Atkins42 and
Lawrence v Texas43 to international developments relevant to the issue in hand
suggest that the United States Supreme Court is now joining other final courts in
using this source of legal reasoning. Atkins concerned the carrying into effect of
a sentence of death upon a mentally handicapped prisoner. Lawrence concerned
the constitutional validity of the Texas anti-sodomy laws. Jurisdiction can
occasionally be an intellectual prison for a judge. Of course, some are content to
live out their days in that prison, regarding it as their only proper place.
However, in the age of jumbo jets, the Internet and much greater trans-border
judicial dialogue, it is now possible for judges of the High Court of Australia, the
Supreme Court of the United States and other final courts to meet, as they
regularly do. Globalism is not only a feature of the modern economy. It is a

41 M D Kirby “The Australian use of International Human Rights Norms: From
Bangalore to Balliol - A View from the Antipodes” (1993) 16 University of NSW Law
Journal 363.
42 536 US 304 at 329 (2003), (fn 21) Opinion of the Court per Stevens J.
43 71 USLW 457 at 4578-4580 (2003). Opinion of Kennedy J for the Court.

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vehicle for the development of ideas. Legal ideas are an important category that
are not immune from this development.

Robes, salaries and taxes:

There are some minor and relatively trivial similarities between the two
courts. The robes of the Justices are now very similar. Until 1986, the Justices
of the High Court of Australia wore the traditional robes of the English judiciary.
This meant that, when sitting in a hearing, they wore a wig, an accoutrement to
which all of them were long accustomed when practising as barristers. Now, in
the High Court, my robes represent an even more austere copy of those worn in
Washington.
Another similarity exists in the relative decline in the remuneration of
Justices both in the United States and in Australia. In 2002 Chief Justice
Rehnquist and Justice Breyer drew this decline to the notice of Congress and the
American public.44 Similar complaints have been made on behalf of the
Australian judiciary. The remuneration of the Justices of each Court is protected
by a “compensation clause”. The Australian provision was modelled directly on
that of the United States.45 As in the United States, the problem has not been one
of actual diminution of remuneration (save for a suggestion by the Australian
government during the Great Depression that the Justices of the High Court
should accept a reduction in their emoluments in common with other federal
office-holders).46 The real source of complaint is the comparative decline of
judicial salaries when compared to those paid to the justices at the foundation of
the Court; in comparison with other officials and wage earners at that time; and
in comparison with the incomes of the practising legal profession. As in the
United States,47 the view has generally been taken in Australia48 that non-
discriminatory taxation upon federal judges does not conflict with the prohibition
upon the reduction of salaries and other benefits enjoyed by Justices already
appointed to office. However, in a recent case, the High Court of Australia
struck down a federal taxation law directed at the pension benefits of newly

44 Statement of W H Rehnquist, Chief Justice of the United States, before the US
National Commission on the Public Service, 15 July 2002.
45 Australian Constitution, s 72(iii).
46 J Bennett Keystone of the Federal Arch (1980) 46. (The Boyer Lectures, Radio
National December 17, 1980).
47 United States v Hatter 532 US 557 (2001).
48 Cooper v Commissioner of Income Tax (Q) (1907) 4 CLR 1304.

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appointed State judges, holding that the federal law impermissibly interfered in
the government of the State preserved by the federal Constitution.49

Apart from these commonalities, daily life is similar. In a final court there is
no relief from the obligations of reading, research, decision-writing, amendment
of drafts, checking of proofs of opinions and discussion of the product with one’s
colleagues and staff. The business of running a court within an assigned budget
falls heavily on the Justices, aided by court staff. The work of both courts is
mentally taxing and unremitting. But it is also intellectually exhilarating. Within
the law, there are few posts that offer the same cerebral rewards as a seat on the
final court of one’s nation. In the nature of things, few individuals attain such an
office. Many lawyers of great ability miss out, by chance or politics or because
of factors over which they have no control. In the history of the United States,
105 persons have been appointed to the Supreme Court including the nine present
incumbents. In Australia, over the course of a century, 44 Justices have been
appointed. The responsibilities are accepted freely with a cheerful heart because
nobody is obliged to remain in such an office a day longer than he or she wishes.
Always waiting in the wings are aspirants, many of them worthy.

DIFFERENCES

In spite of these similarities, there are significant differences between the

roles which the final courts play in the United States and Australia and the
functions of the Justices within those courts.

Appointment and qualifications:

The coming into office is quite different. By the United States Constitution,
the President has the power to appoint judges of the Supreme Court and all other
officers of the United States not otherwise provided for in the Constitution.
However, the President may only do so with the advice and consent of the
Senate.50 There is no similar control upon the appointment of judges by the
Executive Government in Australia.

No Australian judicial officer is elected. All are appointed with tenure and
independence by the Executive Government of their jurisdiction - federal, State
or Territory. Although the Australian Senate is one House of the Federal
Parliament,51 that body has no part to play in the appointment of judges. The
only parliamentary power with respect to judges is to consider a prayer for

49 Austin v The Commonwealth (2002) 77 ALJR 491; 195 ALR 321.
50 US Constitution, Art I, s 2.
51 Australian Constitution, s 7.

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removal and then only on the specified grounds and conditions and within a
specified time.52 In the matter of appointments, the Executive is untrammelled.
By the Constitution, appointments to the High Court are made by “the Governor-
General in council.”53 The Governor-General is the Queen’s representative in
Australia. The council referred to is the Federal Executive Council.54
Historically, this is a copy of the Queen’s Privy Council in the United Kingdom.
But by the Australian Constitution, it is made up exclusively of Ministers of the
Australian Government, together with the Governor-General. The Governor-
General has powers - substantially to be consulted, to encourage and to warn.
Like the Queen he must, by convention, normally accept the advice of the
Ministers expressed in the Executive Council.

There are legal requirements relating to the qualifications for office as a
Justice of the High Court.55 However, these hardly reflect the conventional
qualifications that are normal for such appointments. Usually these are long and
high judicial service, experience as a leading barrister or, more rarely, political
service. Recently, provision has been made in Australia by which the federal
Attorney-General, before an appointment of a new Chief Justice of the High
Court or Justice, is obliged to consult the States about such appointments. In
Australia, unlike India,56 this statutory obligation of “consultation” means no
more than that. There is no obligation to appoint anyone whom the States
nominate. The most that the statutory procedure of consultation achieves is to
identify some leading candidates for appointment. The entire process takes place
behind closed doors.

Inescapably and naturally, there is a high degree of political involvement on
the part of the Federal Cabinet and Government of the day when a vacancy on
the High Court of Australia falls to be filled. There are no confirmation hearings.
Indeed, there is no public process at all. There is not even a process of
advertisement and formal interview, as is now more common with other judicial
appointments in Australia. After the recommendation of the Federal Cabinet has
been conveyed to the Governor-General (and sometimes even before) the
announcement is made by the Prime Minister or the Federal Attorney-General.
And that is it.

Despite the apparent success and general acceptance of the procedures for
public interview for judicial appointments and promotions in South Africa under

52 Australian Constitution, s 72(ii).
53 Australian Constitution, s 72(i).
54 Australian Constitution, s 63.
55 High Court of Australia Act 1979 (Aust), s 6.
56 Supreme Court Advocates' Association v Union of India [1994] AIRSC 268; [1993]
Supp 2 SCR 659; Special Reference No 1 of 1998 JT 1998 (5) SC.

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the post-apartheid Constitution, few judges or politicians in Australia would
favour the introduction of a confirmation process similar to that of the United
States. None could be found who would support the system of elected judges, a
method of judicial appointment (and removal) apparently difficult to reconcile
with true judicial independence.57 The theoretical imperfections of the present
system of judicial appointments in Australia are raised each time an important
appointment is made. And then, the institution closes around the new appointee.
He or she gets on with the work. The political process turns to other things. It is
rare that this system delivers an inadequate or incompetent appointee. Inevitably,
governments hope that their appointees will reflect, in a general way, their
philosophical viewpoint. They are often disappointed. But this is so both in the
United States and in Australia.

Fixed retirement:

Once appointed, a Justice of the High Court of Australia serves to the age of
seventy years unless earlier retiring from, or dying, in office. Originally, the
Australian Constitution contained no maximum term of appointment. Following
the United States precedent it did not take long for the High Court to hold that the
constitutional silence meant that appointees held office for life.58 This is one of
the reasons for the small number of office-holders in both courts.

In the early 1970s, in the absence of Chief Justice Barwick, the Senior
Justice, Sir Edward McTiernan, went to the Parliament to administer the oaths of
office to the new members. Many of the parliamentarians were so shocked at his
advanced age (he was then in his eighties) that moves arose to amend the
Australian Constitution to provide for a compulsory retirement age. The
Constitutional Alteration (Retirement of Judges) proposal was enacted by the
Federal Parliament in 1977. The amendment was then approved by the electors.
It attracted the dual majorities required to effect a change of the Australian
Constitution.59 The amendment did not affect the tenure of serving Justices.

Although there is a handful of “lifers” on the federal Family Court of
Australia, life tenure has now all but disappeared from the Australian judicial

57 International Covenant on Civil and Political Rights, Art 14.1.
58 In Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR
434.
59 The Australian Constitution, s 128 requires that, to be effective, an amendment of the
Constitution must be adopted by the Federal Parliament and approved by a majority of
the electors nationwide and in a majority of the States. The proposal to introduce
retirement ages for the federal judiciary was approved on 21 May 1977. The nationwide
affirmative vote was 78.63%. The amendment was carried in every State.

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scene as federal judges appointed before 1976 died or retired from office. In
most Australian States, for many years, judicial tenure was to the age of seventy
or seventy-two. Few Australians, including few judges, are mourners for the
passing of life tenure. Although some very distinguished judges of the past
would have been lost in Australia by compulsory retirement, the Constitution
serves contemporary society. The regular appointment of younger people to a
nation’s supreme court is a means of injecting new approaches and new ideas,
permitting regular change at the nomination of elected governments and avoiding
the spectacle of very old judges serving on beyond their prime or in the hope of
holding out until a change of administration.

A general appellate court:

The High Court of Australia is a general court of appeal. It hears appeals
from judgments and orders of virtually all Australian courts - State, Federal and
Territory. In this sense, it brings together the entire Australian legal system. The
work of its Justices is not confined to the application of federal law. They decide
appeals on purely State law matters having nothing to do with the Constitution or
federal legislation.

This feature of the High Court - which it shares with the Supreme Courts of
Canada and India - has two important consequences. First, it places the High
Court in the mainstream of the general judicial system. It marks the Court out as
a general court of ordinary law. This means that constitutional and federal
questions are typically perceived as an aspect of the law, not as something
divorced and different. Secondly, this character affects the qualifications
essential to perform the functions of a High Court Justice successfully. It affects
the appointees’ self-image. It rubs off on their conception of their own
function.60 There is nothing like a few days deciding abstruse questions of State
statutory law to bring a constitutional philosopher down to earth.

Other countries (such as South Africa) have followed the European tradition
and established a separate constitutional court, with judges appointed for fixed
terms. However, the Australian court is a court of law in the fullest sense. Its
role in supervising decisions of State courts is assured by two constitutional
provisions. The first is the entrenched power to hear appeals from judgments and
orders of the Supreme Courts of the States and from any other State court from
which, at the establishment of the Commonwealth, an appeal lay to the Privy
Council.61 As well, a novel provision in the Australian Constitution permitted

60 O Dixon “Two Constitutions Compared” in Jesting Pilate 100 at 104.
61 Australian Constitution, s 73(ii).

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the Federal Parliament to invest any court of a State with federal jurisdiction.62
This very important power was quickly utilised by the passage of the Judiciary
Act 1903 (Aust).63 The growth of federal courts, other than the High Court itself,
did not take place in Australia to any degree until the 1970s when the Family
Court of Australia64 and the Federal Court of Australia65 were established. More
recently, the Federal Magistrates Court has been created.66 The investing of
other courts with federal jurisdiction has been a very successful constitutional
idea. It too has reinforced the integration of the nation’s Judicature.

When a State Parliament endeavoured to impose duties on a State Supreme
Court that were challenged as inimical to the exercise of judicial power, the High
Court of Australia found the State law invalid. It held that the Australian
Constitution not only protected the independence of federal courts but, because
of the inter-relationship of federal and State courts, it also protected the
independence of the latter. As it was put, the State courts were required to be
suitable receptacles for the exercise of the federal jurisdiction provided by the
Constitution.67 This was a case of deriving inferences from the Constitution, a
process that has occurred in Australia throughout the history of federation.68
At the time of federation in Australia, the colonial courts were already long
established. There were well respected and subject to appeal to the Privy
Council. The evenness of their quality was one of the reasons for the delay in the
establishment in Australia of a substantial and separate federal judiciary.69
When, eventually, significant federal courts were created to deal with particular
aspects of federal jurisdiction deemed specially appropriate for national
administration, those courts, in turn, became part of the integrated judiciary that
comes together in the High Court. In a sense, the facilities of appeal and the
vesting of jurisdiction have strengthened the unity and integration of the
Australian Judicature. They have upheld the generally uniform standards of
appointment and performance of judicial officers in all Australian courts.

62 Australian Constitution, s 77(iii).
63 Judiciary Act 1903 (Aust) ss 39, 39A, 64, 68, 79, 80.
64 Family Law Act 1975 (Aust), s 21.
65 Federal Court of Australia Act 1976 (Aust), s 5.
66 Federal Magistrates Act 1999 (Aust).
67 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
68 eg Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
69 Re Wakim; ex parte McNally (1999) 198 CLR 511 at 605 [200].

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A national common law:

In consequence of this judicial integration, Australia has rejected the notion
of a separate federal common law or separate systems of common law for each of
the polities making up the federation. Instead, the High Court has held that there
is a single, uniform common law applicable throughout the nation. Ultimately, it
is susceptible to ascertainment and exposition by the High Court itself.70 The
notion of a single Australian common law, modified by local State and Territory
legislation, involves some theoretical difficulties.71 In the United States, each
State has its own common law as expounded by its own courts.72 The Australian
insistence upon a single body of the common law has been strongly affirmed in
recent decisions of the High Court.73 The constitutional foundation for this
doctrine lies in the unifying role of the High Court as the sole final court of
appeal of Australia.

The Commonwealth connection:

That function of the High Court as the final appellate court is comparatively
recent. At the outset of federation, appeals lay to the Privy Council in London
both from the High Court of Australia itself and from State supreme courts. The
larger facility for Privy Council appeals was one of the few amendments upon
which the British Government insisted when it was presented with the
Constitution drafted by the Australian Constitutional Conventions of the 1890s.
There were two derogations from the Privy Council’s jurisdiction envisaged by
the Constitution. The first, demanded by the colonists, was that appeal would
only lie to the Privy Council on constitutional questions as to the respective
powers of the Commonwealth and the States if a certificate to allow such an

70 R v Kidman (1915) 20 CLR 425. Lange v Australian Broadcasting Corporation (1997)
189 CLR 520. Indeed, earlier it was commonly stated that there was but one common
law applicable throughout the entire British Empire as pronounced by the courts of
England: cf O Dixon “Two Constitutions Compared” in Jesting Pilate 100 at 104-105.
71 L J Priestley, “A Federal Common Law in Australia?” (1995) 6 Public Law Review
221.
72 Erie Railroad Coal v Tompkins 304 US 64 (1938).
73 Lipohar v The Queen (1999) 200 CLR 485; John Pfeiffer and Son Pty Ltd v Robertson
(2000) 203 CLR 503; Regie Nationale des Usines Renault SA v Xhang (2002) 76 ALJR
551; 187 ALR 1.

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appeal was granted by the High Court.74 In the history of federation, only one
such certificate was ever granted.75 Many were refused.

As well, provision was included in the Australian Constitution for the
Federal Parliament to make laws “limiting matters in which” leave to appeal to
the Privy Council might be granted.76 Eventually, appeals from the High Court
and federal courts were “limited” under this provision to the extent of abolition.77
The validity of such “limitation” was upheld.78 In due course, the direct appeals
from the State supreme courts were also abolished.79 This was done by
concurrent legislation of the Australian federal and State Parliaments and the
United Kingdom Parliament. The laws were symbolically given the Royal assent
by the Queen personally during a visit to Canberra. Normally such assent is
given by the Governor-General or Governor in the Queen’s name.

There is now no external or higher court for Australian judicial decisions
beyond the High Court of Australia. Inevitably, this change in the function of the
High Court from one subordinate in most matters to the Privy Council to a court
of final appeal has brought the High Court closer to a perception of its functions
similar to that of the Supreme Court of the United States. Having myself sat both
in a final appellate court and one subject to further appeal, I know the difference.
The change in status of the High Court was quickly followed by a period of
significant creativity on the part of the Court during the years in which Chief
Justice Mason presided.80 If, in more recent years, the creativity of the Court has
diminished, this is no more than a normal feature of the way common law courts
tend to operate in fits and starts, rather than at a uniformly steady pace.

Given the character of other final appellate courts throughout the world, it
seems unlikely that the High Court of Australia will, in the long term, revert to
the rather limited view of its functions held by Australian judges and lawyers
during the time when the court was subject to Privy Council supervision. Whilst
some lawyers in Australia still hanker for a return to those “good old days”, the
example of the Supreme Court of the United States indicates the necessity and
inevitability of the creative function of an ultimate court of a nation having

74 Australian Constitution, s 74.
75 Deacon v Webb (1904) 1 CLR 585; Baxter v The Commonwealth (1907) 4 CLR 1178.
The only certificate ever granted was in Attorney General (Commonwealth) v Colonial
Sugar Refining Co Ltd [1914] AC 237; 17 CLR 644.
76 A R Blackshield “The Abolition of Privy Council Appeals” in A R Blackshield and G
Williams, Australian Constitutional Law and Theory (3rd ed, 2002), 570.
77 By legislation culminating in the Australia Acts 1986 (Aust)(UK), s 11.
78 Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464.
79 Australia Act 1968 (Aust) (UK), s 11.
80 Sir Anthony Mason was Chief Justice of Australia from 1987 to 1995.

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constitutional responsibilities.81 Such creativity, harnessed to legal authority, is
the essential characteristic of all common law courts. Those who dispute this fact
must explain where the great body of the common law came from if not from
judicial invention.

On the whole, the link of the High Court of Australia to the Privy Council
was not an onerous burden on the Court’s judicial performance. In colonial days
especially that link saved the Australian legal system from parochialism that
might otherwise have afflicted it.82 By affording the facility of appeal in a small
number of cases to the judges of England who sat in the Privy Council, that body
provided a wealth of comparative law doctrine, largely drawn from English court
decisions, that greatly enriched Australian law.

Now, Australian courts are not bound by any foreign judicial decision. For
the moment, Australian courts observe Privy Council decisions given in
Australian appeals during the time when that Court was part of the Australian
judicial hierarchy.83 Yet the termination of this last formal link has brought an
even greater flowering of comparative law material into the Australian courts. It
is now extremely rare for the High Court of Australia to decide any major issue
of constitutional or common law without examining the way in which similar
issues have been dealt with in other like common law countries, particularly the
United Kingdom, the United States and Canada.

On the other hand, an examination of United States decisions indicates the
contrast that exists in the higher English, Canadian, New Zealand, South African,
Indian and other courts of the Commonwealth of Nations where there is a much
greater inclination to look outwards for analogies and reasoning. Such sources
frequently prove of great advantage to the performance of the judicial task. In
the United States, there are more than fifty home jurisdictions. They serve a
single nation. But in the post-Imperial world of Commonwealth countries, it is a
great strength of the common law technique, as now practised, that judges are
accustomed to, and comfortable with, the citation of judicial opinions, written in
the same language, tackling similar questions in different countries.
Parochialism is a common problem for lawyers. It is reinforced by
jurisdictionalism which is an inescapable aspect of lawyering. The contemporary
common law affords a treasure house of readily available analogies. These are
now available through the Internet. They greatly enrich judicial performance in
countries such as my own.

81 H Luntz “Throwing off the Chains: English Precedent and the Law of Torts in
Australia” in M P Ellinghaus & Ors The Emergence of Australian Law (1989), 70.
82 F C Hutley “The Legal Traditions of Australia Contrasted With Those of the United
States” (1981) 55 Australian Law Journal 63 at 68.
83 Cook v Cook (1986) 162 CLR 376 at 390.

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Absence of a Bill of Rights:

The Australian Constitution does not include a general bill of rights. The
founders of the Commonwealth shared James Madison’s initial opinion that it
was impossible to define the rights of the people. It is not true to say that the
Australian Constitution contains no rights provisions. However, they are limited.
As in the case of the right of jury trial, they have sometimes been the subject of
restricted interpretations.84
Most modern constitutions contain charters of fundamental rights. Where
they do not, statements of rights have frequently been added. Thus, the
Canadian Charter of Rights and Freedoms was adopted in 1982.85 Even in the
United Kingdom, for half a century, the law has been subject to scrutiny in
accordance with the European Convention on Human Rights.86 Since 2000, the
Human Rights Act 1998 (UK) has rendered many human rights issues justiciable
in the courts of Britain. Australia is one of the last civilised nations not to have
such a charter. The conventional source of the opposition, particularly amongst
politicians, is that bills of rights introduce needless inflexibility into law-making
and enhance judicial power at the expense of democratic accountability.

The absence of a general bill of rights does not mean that the High Court of
Australia is totally incapable of defending basic civil liberties when they are
threatened by intrusive legislation or governmental action. Sometimes, express
provisions of the Constitution have been enlisted to strike down federal
legislation affecting the compulsory acquisition of private property87. Sometimes
federal legislation is found invalid, as was the attempt to dissolve the Australian
Communist Party in 1950. That law failed for want of an appropriate foundation
in federal legislative power.88 The decision of the High Court of Australia in that

Footnote continues

84 Kingswell v The Queen (1985) 159 CLR 264. There has been a similarly narrow
reading of s 116 of the Australian Constitution concerning freedom of religion: Attorney-
General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559.
85 The Canadian Charter was preceded by the Canadian Bill of Rights 1960 (Can). See
M R Wilcox An Australian Charter of Rights? (1993) 28-36.
86 See eg Dudgeon v United Kingdom (1981) 4 EHRR 149; (1983) 5 EHRR 573. For a
description of the different ways in which issues of rights are addressed in the two legal
systems see M D Kirby, “Law and Sexuality: The Contrasting Case of Australia” 12
Stanford Law & Policy Review 103 (2001).
87 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 (“Bank
Nationalisation Case”).
88 Australian Communist Party v The Commonwealth (1951) 83 CLR 1. This may be
contrasted with Ex parte Quirin 317 US 1 (1942) upholding trial of alleged saboteurs in
wartime by a military commission not the civilian courts. See G E White, “Felix

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case stands in marked contrast to the contemporary decision of the Supreme
Court of the United States involving the constitutional validity of similar
provisions contained in the Smith Act. Despite the express guarantees of freedom
of speech and freedom of association in the United States Constitution,89 the
Supreme Court of the United States, by majority, upheld the severe civil
restrictions imposed by Congress on communists.90 This ironic outcome of two
constitutional challenges demonstrates that liberty sometimes depends upon more
than constitutional texts.

Constitutional implications:

In recent times, the High Court of Australia has found implications of rights
in the constitutional text, including of an irreducible freedom in certain
circumstances to discuss matters of politics and government.91 This last-
mentioned freedom was found to be implied in the representative electoral
democracy established by the Australian Constitution.92 Without such a
freedom, it was held, the democratic elements of the Constitution would be
defeated or reduced to a charade. Other cases have suggested that an inference
should be derived from the independent Judicature established by the
Constitution to support an implied constitutional guarantee of due process of
law93 and of unbiased judges.94 These insights have not yet won a majority
amongst the present Justices.

Apart from the constitutional guarantees, liberty is protected in Australia by
the strong presumption that legislation does not reduce fundamental civil rights,

Frankfurter's Soliloquy in Ex parte Quirin”, 5 Green Bag (2nd Series), 423 (2002); cf
Lloyd v Wallach (1915) 20 CLR 299.
89 US Constitution, First Amendment.
90 Dennis v United States 341 US 494 (1951).
91 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty
Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly
Times Ltd (1994) 182 CLR 104.
92 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
93 Polyukovich v The Queen (1991) 172 CLR 501 at 607-612, 703, cf 532, 689; Leith v
The Commonwealth (1992) 174 CLR 455 at 484-488, 501-502; cf at 466-469; see Parker,
“Protection of Judicial Processes and Implied Constitutional Principles” (1994) 16
Adelaide Law Review 341.
94 Ebner v Official Trustee (2001) 205 CLR 337 at 363 [81]-[82]; 362-373 [114]-[117]; cf
Tumey v Ohio 272 US 510 (1927).

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unless such a purpose is clearly and unmistakenly expressed in valid
legislation.95

Australia does not have the same constitutional protections for free
expression as exist under the First Amendment, as interpreted by the Supreme
Court of the United States.96 However, this is, in part, due to a different balance
that has been struck by legislation (and by the common law) between free speech
values and values protective of other important attributes of human dignity such
as honour, reputation and privacy. These competing values also appear in
international human rights instruments.97 They represent human rights deserving
legal protection as much as the human right to free expression. Most Australians,
and most Australian judges (although not the Australian media) consider that the
balance struck by United States judicial authority on this subject is somewhat
extreme.98 The interface between the United States approach and that of
Australian law has come to the fore in recent decision of the High Court of
Australia concerning a publication about an Australian citizen uploaded on the
Internet in the United States but downloaded to do its principal damage and hurt
to reputation in Australia, where the plaintiff lived.99

The absence of a formal bill of rights in the Australian Constitution has
tended to reinforce the view that most of the High Court Justices have held about
their role. It has tended to emphasise legalism and to diminish a creative and
adaptive spirit that usually accompanies judicial interpretation of the language of
a constitutional bill of rights. Although there are sporadic suggestions that
Australia should adopt a constitutional bill of rights,100 an attempt to include
basic rights in the federal Constitution was overwhelmingly rejected in a
constitutional referendum held in 1988.101 Given the Australian record on

Footnote continues

95 Bropho v Western Australia (1990) 171 CLR 1 at 20; Durham Holdings Pty Ltd v New
South Wales (2001) 205 CLR 399 at 414-415 [27]-[31]; The Daniels Corporation
International Pty Ltd v Australian Competition and Consumer Commission (2002) 77
ALJR 40; 192 ALR 561.
96 eg New York Times Co v Sullivan 376 US 254 (1964); Rosfenbloom v Metromedia 403
US 29 (1971); Gertz v Robert Welch, Inc 418 US 323 (1974).
97 eg International Covenant on Civil and Political Rights, Arts 17 (privacy, honour and
reputation), 19 (freedom of opinion and expression).
98 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR
199 at 282-283 [199]-[202].
99 Dow Jones Inc v Gutnick (2003) 77 ALJR 255; 194 ALR 433.
100 Discussed in D Harris, A New Constitution for Australia (2002); see also Human
Rights - the Australian Debate (1987); M R Wilcox, An Australian Charter of Rights?
(1993).
101 Pursuant to the Australian Constitution, s 128. A proposal to incorporate “one vote
one value” was rejected by a majority of the electors in every State and secured a national

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achieving formal constitutional change102 (which is as conservative in this respect
as that of the United States), the prospect of a constitutional bill of rights for
Australia in the short term seems remote. More likely is it that individual States
and Territories, and eventually the Federal Parliament, will enact general human
rights legislation out of which, in the long term, a successful constitutional
amendment may emerge. It will not be soon.

Use of international law:

Partly as a consequence of the last consideration, there has been a tendency
in recent years to look to international human rights law to inform the
development of Australia’s domestic law. In 1988, I suggested that this was a
development with a large potential.103 At the time, my suggestion was regarded
as legal heresy. Eventually, the High Court of Australia accepted the possibility
that international human rights instruments, to which Australia was a party,
might influence the development of the common law. This occurred in an
important decision of the High Court of Australia, delivered before my
appointment, reversing more than a century of judicial decisions denying
recognition of the claims of Australia’s indigenous peoples to legal interests in
their traditional land.104

More recently, I have suggested that the Australian Constitution itself should
be read, in the event of ambiguity, so as to avoid departures from the
fundamental norms of international law, specifically in the area of human
rights.105 For some time, this approach remains controversial.106 However, there

affirmative vote of only 37.10%; cf McGinty v Western Australia (1996) 186 CLR 140.
A proposal to include guarantees of trial by jury, religious freedom and just terms in
matters of State concern was rejected in every State and secured an aggregate national
affirmative vote of only 30.33%.
102 In 103 years, 44 proposals have been put to the Australian electors for the amendment
of the Australian Constitution. Only 8 have succeeded: A R Blackshield and G Williams
Australian Constitutional Law and Theory (3rd ed, 2002), 1301.
103 M D Kirby “The Australian Use of International Human rights Norms: From
Bangalore to Balliol - A View from the Antipodes” (1993) 16 University of NSW Law
Journal 363; M D Kirby, “Law, Like the Olympics, is Now International - But Will
Australia Win Gold?” (2000) 7 James Cook Uni L Rev 4 at 13-15.
104 Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42.
105 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 655-657
(acquisition of property); Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 417-
419 [166]-[167] (racial discrimination). See also Wilson v Minister for Aboriginal and
Torres Strait Islander Affairs (1996) 189 CLR 1 at 40 (separation of judicial powers).

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are reflections of it in the recent decisions of the Supreme Court of the United
States.107 Some Australian judges and lawyers would probably agree with the
spirit of the dissenting opinions of Justice Scalia in those cases.108 However, the
adjustment of municipal law to avoid disharmony with international law is a
challenge that final courts of appeal everywhere will have to face in the course of
the present century. The last words on this subject have not been written.

Interpretation of original intent:

In Australia, as in the United States, there have been lively debates,
concerning the extent to which the interpretation of the written text of the
Constitution is governed by the original intent of the founders or whether the text
is released from their intentions, the task being one of finding the meaning of the
Constitution, “set free” from the assumptions and purposes of those who wrote
it109

In the United States, possibly because of the revolutionary origins of the
Constitution, the diversity of the country, the size of the population and the
disparity of its legal organisation, many have felt, with Thomas Jefferson, that
“the country’s peculiar security is in the possession of a written Constitution.”
The constitutional text in the United States has attracted much greater reverence
than the Australian document has done. One has a feeling that much more
attention is given in the United States to the historical facts as they existed at the
time between 1787 and 1788 when the Constitution was adopted expressing the
basic beliefs and values of those who had declared their independence from
Britain110. Although, in Australia, it is common for the High Court to examine
understandings about the language of the Constitution, held when the document
was drawn up111, and specifically to scrutinise the debates in the Conventions that

Footnote continues

106 K Walker “International Law as a Tool of Constitutional Interpretation “ (2002) 28
Monash University Law Review 83; L Johns, “Justice Kirby, Human rights and the
Exercise of Judicial Choice” (2001) 27 Monash University Law Review 290.
107 Atkins v Virginia 536 US 000 (2002) per Stevens J (fn); 122 SCt 2242 (2002);
Lawrence v Texas (2003).
108 536 US 000 (2002) at 000 per Scalia J, 122 SCt 2242 (2002). He had expressed like
views in Stanford v Kentucky 492 US 361 at 369 fn 1 (1989); cf Kartinyeri v The
Commonwealth (1998) 195 CLR 337 at 383-386 [95]-[109]; AMS v AIF (1999) 199 CLR
160 at 180 [50]; cf 218 [168]-[169].
109 Andrew Inglis Clark Studies in Australian Constitution Law (1901), 21 cited in Re
Wakim; Ex parte McNally (1999) 198 CLR 511 at 600-601.
110 See eg Dred Scott v Sandford 60 US 393 at 407-408 (1857) per Taney CJ.
111 cf Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 523
[111]. In that case much attention was paid to the provisions of the US Constitution Art

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preceded the adoption of the Constitution (a course which until recently was
regarded as impermissible),112 it is generally recognised that the elucidation of
constitutional meaning involves more than a purely historical exercise. In a
sense, this recognition has been reinforced by the rigidities of the Australian
Constitution and the difficulty of securing its formal amendment.

A good illustration of adaptation of the meaning of constitutional words in
Australia may be found in the decision of the High Court in Sue v Hill.113 There,
the question involved the meaning of a provision in the Constitution excluding
from election to the Federal Parliament any person who was “a subject or a
citizen … of a foreign power.” There could be no doubt that, in 1900 when the
Australian Constitution was adopted, the United Kingdom would not have been
regarded as a “foreign power”. There are too many references in the Constitution
to the United Kingdom, and to the status of subjects of the Crown,114 to attribute
such a meaning to the text. Nevertheless, at the end of the twentieth century, the
High Court held that a person who was a citizen of the United Kingdom was
disqualified from election to the Australian Federal Parliament whilst she
retained that separate citizenship. In short, she was a “citizen of a foreign
power”. The result was one that would have struck the founders of the
Australian Commonwealth as astonishing. The notion that the High Court should
give meaning to the Constitution strictly in accordance with the original intent of
the founders is not one that accords with the overall practice of the High Court of
Australia.115 Nor, in my view, is it one appropriate to constitutional
interpretation in a final court with those responsibilities.

Diversity and opinion writing:

There are differences in matters of detail in the work of the two supreme
courts. My court has not adopted the style, followed in the United States
Supreme Court, by which an opinion of the Court is written by a single Justice
assigned by the Chief Justice or, if he is in a minority, by the senior Associate
Justice. Although unanimous opinions are sometimes achieved in the Australian

I, s 8, cl 8 that sustain patents of invention, the expression in the Australian Constitution,
s 51(xviii). See ibid, at 479-480 [28]-[32], 532 [134].
112 Cole v Whitfield (1988) 165 CLR 360 at 385-390.
113 (1999) 199 CLR 462.
114 eg Australian Constitution, ss 34(i), 117.
115 M D Kirby “Constitutional Interpretation and Original Intent - A Form of Ancestor
Worship?” (2001) 24 Melbourne University Law Review 1; J Kirk, “Constitutional
Interpretation and a theory of Evolutionary Originalism” (1999) 27 Federal Law Review
323.

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High Court, including in important constitutional cases,116 ordinarily, the
arrangements for the writing of opinions are much more informal. A system of
formal consultation after hearings has been introduced in recent times. However,
there continue to be large numbers of separate concurring and dissenting
opinions. This has long been the tradition of the English courts, other than the
Judicial Committee of the Privy Council.

In Australia, the inclination of judges to join in the opinions of their
colleagues varies over time, depending, in part, on personal relations and shared
legal and philosophical viewpoints. In effect, multiple opinions enhance the
creative element in the law. They respect the independence of individual
Justices. On the other hand, they can sometimes obscure the binding rule for
which a court’s decision will stand. They sometimes create inefficiency and
uncertainty in the judiciary and legal profession.117 The United States practice,
introduced by Chief Justice Marshall, has much to commend it. There are similar
practices in intermediate appellate courts in Australia. But, so far, the practice
has not been copied in the High Court of Australia.

Another precedent that has not been copied is that of the reported practice of
some Justices of the Supreme Court of the United States in delegating to clerks
the writing of a first draft of judicial opinions. I am not aware that this has ever
occurred in the case of a Justice of the High Court of Australia, although the
clerks (“associates”) are often asked to perform particular tasks of legal research
and to provide comments and criticisms upon the first draft prepared by the
Justice.

In the 1930s, Justice Brandeis remarked that the reason why the Justices of
the Supreme Court enjoyed such a high reputation in Washington was that “we
are the only people who do our own work”.118 Inflexibility in the adherence to
the ways of the past is not necessarily a matter for pride. I have long thought that
common law courts should study the procedures of some courts of the civil law
tradition in which a greater part of the writing of the facts, analysis of the issues
and the presentation of the synthesis of the arguments could be performed by
officials. This would leave to the Justices the truly difficult task of decision-
making. Traditionalists oppose such suggestions, pointing out, correctly, that the
presentation of the facts and issues in a case can sometimes profoundly affect the

116 eg Cole v Whitfield (1988) 165 CLR 360; Lange v Australian Broadcasting
Corporation (1997) 189 CLR 520.
117 C Moisidis, “Achieving World's Best Practice in the Writing of Appellate Judgments”
(2002) 76 Law Institute Journal (Victoria), 30 at 32.
118 Justice Brandeis quoted C E Wyzanski “The Law of Change”, Lecture at University of
Mexico School of Law (1968) cited in M D Kirby The Judges, (1983), 41 (Boyer
Lectures 1983, 25-26).

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outcome of the case. However, as the workload of courts increases and
substantial numbers of important cases are remitted to other decision-makers for
arbitration, mediation or assessment, it may eventually become necessary (even
in a final court) to reconsider some of the familiar ways of doing things. For the
time being, in the Australian High Court, we remain resolutely tied to the
traditional ways.

CONCLUSIONS

Five influential ideas:

A reflection on the similarities and differences between the High Court of
Australia and the Supreme Court of the United States will indicate that the
similarities are profound and predominate. The differences are less so. Both
courts serve vibrant, democratic societies and advanced economies. Both share
the heritage of the common law. Both courts uphold federal constitutional
arrangements in independent judicial institutions whose orders are obeyed
without question and without, for the most part, any need of physical
enforcement.

Of the five great legal ideas of the founders of the United States of America
four, at least, have proved successful exports. One, the executive presidency,
combining the roles of head of state, head of government and commander in
chief, has not been widely adopted. Australia, like a majority of countries,
continues to follow the system of responsible, cabinet government. Virtually no
one in Australia suggests a change in this respect. To most outsiders the
American model seems, in this respect, a flawed system, overly influenced by the
example of the centralised monarchy of King George III in 1776119 and too little
reflective of the modern needs for collective government with general harmony
between the branches of government, difficult to achieve under the United States
Constitution.120 The constitutional monarch continued to evolve after 1776. The
evolution did not affect the United States Constitution.

The republican idea, on the other hand, has been highly successful. Although
Australia remains a constitutional monarchy,121 most other nations since 1776

119 O Dixon “Government under the American Constitution”, in Jesting Pilate 106 at 111.
120 O Dixon “Two Constitutions Compared” in Jesting Pilate, 100 at 101.
121 A referendum for the alteration of the Australian Constitution to create a republic was
put to the electors on 6 November 1999. The affirmative national vote was 44.74% with
54.40% against. The referendum did not secure a majority in a single State: It therefore
failed to pass. See G Williams, “Why Australia Kept the Queen” (2000) 63
Saskatchewan Law Review 477.

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have abolished their monarchies. Even constitutional monarchies embrace the
civic ideals of republicanism. They retain the symbols of monarchy as useful
further checks on the abuse of elected power.122 But, in their essential character,
they are republics.

The Bill of Rights idea, quickly incorporated into the original amendments to
the United States Constitution, has also proved a powerful influence not only in
national constitutions but in the growing number of international instruments that
uphold fundamental rights - economic, social and cultural as well as civil and
political. Australia remains outside the systems of national and regional human
rights charters. But it is a party to - and its law is influenced by - the many
international human rights treaties to which it has subscribed.

The federal idea was the most complex of the innovations of the American
founders. A number of federal states, including some created after the end of
British colonial rule, have collapsed.123 Others have proved unstable. Yet on the
whole the federations of the United States and Australia (and of Canada, India
and elsewhere) have been successful examples of the division and
decentralisation of legal and political power. There is an inherent tension
between federalism and responsible government which is still being played out in
Australia. But it is difficult to imagine how nations of the physical size of
Australia or the United States could have been successfully, justly and efficiently
governed without adopting a federal system. For it, Australians are indebted to
the American model whose division of governing powers largely shaped their
own.
The greatest constitutional export after the American Revolution of 1776,
and the settlement that followed it, has been the establishment by a written
constitution of an independent Judicature with defined powers as the ultimate
arbiter of constitutionalism and defender of the rule of law. In Australia, this
precedent was faithfully followed. The High Court of Australia was created,
substantially, to play the part that the Supreme Court plays in the United States.
In a sense, the High Court of Australia, like other courts of many later nations,
has built upon the great traditions of the United States court. It continues to do
so.

In every country, but particularly every federal country, the ideas written by
Chief Justice Marshall in 1803 in Marbury v Madison124 continue to inform

122 cf O Dixon “The Law and the Constitution” in Jesting Pilate 40-41.
123 eg the original Pakistan; the Central African Federation and the original Malaysian
Federation (including Singapore). The Soviet Union, Czechoslovakia and Yugoslavia
were also federal states that broke up in recent years. Nigeria fought off the separation of
Biafra to survive intact, just as the United States did in its Civil War.
124 1 Cranch (5 US) 137 (1803).

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decisions about the concept of the judicial role in a modern state. The export of
these ideas, and many others inherent in them, are abiding contributions of the
judges and lawyers of the United States to constitutionalism as it continues to
develop in all parts of the world.

Global constitutionalism:

The end of this story is not yet written. Future chapters may reveal that some

of the younger nations, that borrowed many of the governmental ideas nurtured
in the United States, came in time to repay part of their debt. In today’s world,
more than before, we can, and should, learn from each other, even in matters of
constitutional law. In a sense, this is another American idea - that the imperialism
of power and money gives way, in the end, to the liberty of shared experience
and the unstoppable influence of new ideas.

THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF
INTRODUCTION
SIMILARITIES
DIFFERENCES
CONCLUSIONS