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43 Fed. L. Rev. 1 (2015)

handle is hein.journals/fedlr43 and id is 1 raw text is: REINTERPRETING 'THE MASON COURT REVOLUTION': AN HISTORICAL INSTITUTIONALIST ACCOUNT OF JUDGE-DRIVEN CONSTITUTIONAL TRANSFORMATION IN AUSTRALIA Theunis Roux* ABSTRACT There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized 'Mason Court revolution' - the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian poltical values. What explains these different outcomes - why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable polico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do. I INTRODUCTION The field of judicial politics in Australia was launched in 1987 with the publication of Brian Galligan's Politics of the High Court.1 Marshalling a wide array of primary and secondary sources, Galligan argued that the successful institutionalisation of judicial review after 1901 could be attributed to the High Court's politically strategic embrace of legalism. From the seminal Engineers decision in 19202 to the controversial Tasmanian Professor of Law, University of New South Wales, Australia. I am indebted to my colleagues, Rosalind Dixon, Arthur Glass, Martin Krygier and Andrew Lynch, for very helpful comments on an earlier draft of this article. 1 Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (University of Queensland Press, 1987). 2 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ('Engineers').

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