Realism About the High Court Revisited: Pragmatic Statesmanship in the Expansion of Chapter III

Thursday, 15 August, 2013 - 17:30
New South Wales

Paper presented by Professor Jeffrey Goldsworthy (Monash University)

In a review of Brian Galligan's Politics of the High Court (UQP, 1987), published as "Realism About the High Court" (1988) 18 Federal Law Review 27, I was very critical of his thesis that the High Court routinely used a pretense of "strict legalism" to conceal essentially political (albeit non-partisan) reasoning. Twenty five years later, I think there is more to be said for Galligan's position. In the Wheat Board case (2003) 216 CLR 277, Kable (1996) 189 CLR 51 and Kirk (2010) 239 CLR 531, the High Court has acted politically, under a cover of specious legalism, to boost the authority and independence of the judiciary and the Court's conception of the rule of law. This observation is not in itself a criticism: a moral argument to justify this approach could be made, although I would not accept it. These cases raise questions about the propriety of "pragmatic statesmanship" in constitutional adjudication.

Commentators: The Hon Justice James Allsop AO (Chief Justice, Federal Court of Australia) and Professor Peter Cane (ANU College of Law)
Chair: The Hon Justice Robert Beech-Jones (Supreme Court of New South Wales)

Venue: Federal Court, Queens Square, Sydney, Court 18B, 5:30 pm


This is a joint event organised by AACL and the Australian Society of Legal Philosophy