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Abstract

Existing studies for the United States examine the extent to which the public is knowledgeable about US courts, arguing that knowledge of the courts is linked to public support for their role. We know little, though, about the Australian public’s awareness of the High Court of Australia. We report the results of a survey of a representative sample of the Australian adult population, administered in November 2017. We find that few Australians know the names of the Justices, the number of Justices on the Court, how the Justices are appointed or for how long they serve. Awareness of recent cases decided by the Court is mixed. We find that age and education are better predictors of awareness levels than is gender. Our findings are important because in the absence of awareness of the High Court, the potential exists for the public to see the Court as having a more overt political role than it has, which may lower esteem for the Court. The potential for this to occur is exacerbated if, and when, politicians attempt to drag the High Court into the political fray, by attributing political motives to it that it does not have.
WHAT THE AUSTRALIAN PUBLIC KNOWS ABOUT THE HIGH COURT
Ingrid Nielsen and Russell Smyth
This version (August 2018) forthcoming in Federal Law Review
ABSTRACT
Existing studies for the United States examine the extent to which the public is knowledgeable
about US courts, arguing that knowledge of the courts is linked to public support for their role.
We know little, though, about the Australian public’s awareness of the High Court of Australia.
We report the results of a survey of a representative sample of the Australian adult population,
administered in November 2017. We find that few Australians know the names of the Justices,
the number of Justices on the Court, how the Justices are appointed or for how long they serve.
Awareness of recent cases decided by the Court is mixed. We find that age and education are
better predictors of awareness levels than is gender. Our findings are important because in the
absence of awareness of the High Court, the potential exists for the public to see the Court as
having a more overt political role than it has, which may lower esteem for the Court. The
potential for this to occur is exacerbated if, and when, politicians attempt to drag the High
Court into the political fray, by attributing political motives to it that it does not have.
Alfred Deakin Professor Ingrid Nielsen, Pro Vice-Chancellor Research Performance, Deakin University;
Professor Russell Smyth, Deputy Dean (Academic Resourcing), Monash Business School, Monash University.
We thank Erwin Gutierrez from Qualtrics for patiently answering many questions about the administration of
the survey reported in this article. We thank Matthew Groves, Shiri Krebs, Carolyn Sutherland and two
anonymous reviewers for several helpful suggestions on earlier versions. We alone remain responsible for the
views expressed and any remaining errors. This research was approved by Monash University Human Ethics
Committee (Project 11582) and Deakin University Human Ethics Committee (Reference 2017-323).
The work of the courts today is shrouded in general public ignorance.
1
[F]ew Australians outside the law schools are likely to be able to name the Chief Justice, let
alone the puisne Justices, of the High Court’.
2
I INTRODUCTION
In this article we seek to answer the question: What is the level of awareness among the general
public about the High Court of Australia (hereafter the High Court) and to what extent are
Australians aware of the identities of the Justices who sit on the Court? To do so, we draw on
the findings from a survey that was designed by the authors and administered to a representative
sample of the adult Australian population over a two-week period in November, 2017. The
survey asked participants if they could identify the Justices of the High Court, together with
several political and public identities, as well as asking multiple choice questions about
institutional features of the Court and questions designed to test awareness of recent High Court
cases that have been publicised in the media. We also draw on the findings of the survey to
examine the extent to which variation in the general public’s awareness of the High Court can
be attributed to differences in participantsage, education and gender.
We focus on public awareness of the High Court for two reasons. The first is that decisions of
the High Court, as the final court of appeal in Australia, carry enormous practical significance
for everyday Australians. Of all the courts in the judicial hierarchy in Australia, the High Court
makes decisions that have the most far reaching consequences for how people live their lives,
how they work and are paid, and many other issues about which people care.
3
This influence
stems, in part, from the role of the High Court as a check on the Executive and Parliament,
vested in Chapter III of the Constitution. The manner in which the High Court has exercised
its role in shaping power sharing between the Federal and state and territory governments has
also had an important influence on central features of how people live and work.
4
Second, unlike the United States for which there are studies of this sort for courts at most levels
of the judicial hierarchy, there are no studies of this sort for Australia. Given the enormous
power of the High Court over issues that people care about, knowledge of the Court represents
a natural place to start. This is not to say that lower-level courts are not worth studying in this
context. We need studies for a range of courts to provide points of comparison and for
1
A.R. Blackshield, ‘The Legitimacy and Authority of Judges’ (1987) 10 University of New South Wales Law
Journal 155, 160.
2
Justice Virginia Bell, ‘Examining the Judge’ (Speech delivered at the launch of Issue 40(2) of the University of
New South Wales Law Journal, Sydney, 29 May 2017)
<http://www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29May2017.pdf>.
3
While one could give many examples, consider as a selection, the right of young people to vote (Rowe v
Electoral Commissioner [2010] HCA 46); who can sit in the Federal Parliament (Re Canavan; Re Ludlam; Re
Waters; Re Roberts [No.2]; Re Joyce: Re Nash; Re Xenaphon [2017] HCA 45); the law pertaining to refugees
(Plaintiff M96A/016 v Commonwealth of Australia [2017] HCA 16); the manner in which wages are set (New
South Wales v Commonwealth [2006] HCA 52; and freedom of religion (Adelaide Company of Jehovah's
Witnesses Incorporated v Commonwealth (‘Jehovah's Witnesses case’) [1943] HCA 12).
4
Examples include people’s right to enjoy the natural environment (Commonwealth v Tasmania (‘The
Tasmanian Dam case) [1983] HCA 21 and what taxes people pay and to which branch of government (see eg.
South Australia v Commonwealth (‘First Uniform Tax case’) [1942] HCA 14; Victoria v Commonwealth
(‘Second Uniform Tax case’) [1957] HCA 54; Parton v Milk Board (Vic) [1949] HCA 67).
robustness. However, the advantage of beginning with a study for the High Court is that
awareness levels of the High Court can serve as a benchmark for future such studies.
There are important reasons why we should care about the level of public awareness of the
High Court and its institutions. Several studies have found that public awareness of high courts
is positively correlated with esteem for the judiciary.
5
Positivity theory postulates that if people
have low awareness of the High Court and its institutions, they will be unable to identify the
differences between the Court, on one hand, and Parliament and the Executive on the other.
Lacking such knowledge, the public will imply to the Court a more overt political role and in
so doing, will hold the Court, and its Justices, in less esteem than if the Court were regarded as
less political.
6
This reflects the relatively low esteem in which the Australian public holds its
politicians.
7
James Gibson, Gregory Caldeira and Vanessa Baird state:
Research from the United States strongly suggests that greater awareness of the
Supreme Court directly translates into greater support for it. This is not necessarily
because the people who become aware of the Court invariably discover that it is making
desirable public policy. Instead greater awareness means greater exposure to the
legitimizing symbols associated with high courts.
8
James Gibson and Gregory Caldeira expand on this argument in the United States context,
articulating the causal chain between knowledge and judicial legitimacy as follows:
People acquire knowledge of the Court by paying attention to it.
But paying attention imparts more than information; attentive citizens are
simultaneously exposed to powerful symbols of judicial legitimacy, such as robes,
privileged forms of address (your honor) etc. The lessons these symbols teach is that
courts are different; they are not ordinary political institutions in the American political
scheme.
Thus, events that increase the salience of the Supreme Court increase citizen knowledge
and institutional support (emphasis in original).
9
5
For example, see James Gibson, Gregory Caldeira and Vanessa Baird, ‘On the Legitimacy of National High
Courts’ (1998) 92 American Political Science Review 343; Sara Benesh, ‘Understanding Public Confidence in
American Courts’ (2006) 68 The Journal of Politics 697-707; Damon Cann and Jeff Yates, ‘Homegrown
Institutional Legitimacy: Assessing Citizens’ Diffuse Support for State Courts’ (2008) 36 American Politics
Research 297; James Gibson, ‘The Evolving Legitimacy of the South African Constitutional Court’ in Francois
du Bois and Antje du Bois-Pedain (eds), Justice and Reconciliation in Post-Apartheid South Africa (Cambridge
University Press, 2008).
6
For an outline of ‘positivity theory’ or ‘positivity bias’ see David Adamany and Joel Grossman, ‘Support for
the Supreme Court as a National Policymaker’ (1983) 5 Law and Politics Quarterly 405; Gregory Caldeira and
James Gibson, ‘The Etiology of Public Support for the Supreme Court’ (1992) 36 American Journal of Political
Science 634; James Gibson, Gregory Caldeira and Lester Kenyetta Spence, ‘Measuring Attitudes Toward the
United States Supreme Court’ (2003) 47 American Journal of Political Science 354.
7
A survey administered in 2016 found that the extent to which the Australian public trusted its politicians was
at its lowest level since 1969, with only 26 per cent of participants expressing confidence in the Federal
Government - see Henry Belot, ‘Confidence in Democracy Hits Record Low as Australians “Disaffected with
Political Class”’, ABC News, December 20, 2016 <http://www.abc.net.au/news/2016-12-20/2016-australian-
election-disaffected-study/8134508>.
8
Gibson, Caldeira and Baird, above n 5, 349.
9
James Gibson and Gregory Caldeira, ‘Knowing the Supreme Court? A Reconsideration of Public Ignorance of
the High Court’ (2009) 71 Journal of Politics 429, 430.
Following this line of argument, Gibson and Caldeira, have suggested, low knowledge of
courts is politically significant since it threatens the legitimacy of judicial institutions’.
10
Public
understanding of the High Court and its institutions is, relatedly, very much linked to public
confidence in the Court and its decisions. Justice Margaret McMurdo writes: ‘Most of us now
accept that it is for the judiciary to foster public confidence in the courts by ensuring the public
understand the role of judges to administer justice according to the law. This is necessary to
maintain public confidence, understanding and support for the courts, even when they make
unpopular decisions’.
11
Former Chief Justices of the High Court, Sir Anthony Mason,
12
Sir
Gerard Brennan
13
and Murray Gleeson
14
have also stated that promoting understanding of the
High Court and its role is essential to ensuring public confidence in the Court. Consistent with
the tenets of positivity theory, these senior judges have tended to emphasise that the Court is
not a partisan political institution; hence, seeking to separate out the Court, in the minds of the
public, from the Parliament and Executive.
The High Court has instigated various initiatives to increase awareness of its role. The judges
have made themselves more accessible on various occasions in an attempt to reduce the
mystique associated with being a judge.
15
The High Court has been releasing media statements
in important cases dating back to the Tasmanian Dam case.
16
The High Court’s website
contains summaries of recent judgments, the profiles of current and past Justices and links on
which people can click to learn more about the Court or find out how to visit.
17
In 2016-2017
there were 78,000 visitors to the High Court, including 34,000 school students.
18
While the
High Court is not yet using Twitter,
19
several of the lower courts are now using social media
to disclose information about decisions.
20
There has also been discussion about televising
proceedings of the Court.
21
The Court now publishes audio-visual recordings of Full Court
hearings heard in Canberra on its website.
22
The media has recently contained news stories
about important cases before the Court and the Justices who are hearing the cases. For example,
in late 2017, in the lead-up to the High Court (sitting as the Court of Disputed Returns) decision
on the citizenship of the seven members of parliament pursuant to Section 44(i) of the
10
Ibid, 430.
11
Justice Margaret McMurdo, ‘Should Judges Speak Out?’ (Paper Presented at the Judicial Conference of
Australia, Uluru, April 2001) <http://jca.asn.au/wp-content/uploads/2013/11/mcmurdo.pdf>.
12
Sir Anthony Mason, ‘The Courts and Public Opinion’ (2002) 11 New South Wales Bar Association News 30.
13
Sir Gerard Brennan, ‘Courts for the People – Not People’s Courts’ (1995) 2 Deakin Law Review 1.
14
Chief Justice Murray Gleeson, ‘Public Confidence in the Judiciary’ (Paper Presented at the Judicial
Conference of Australia, Launceston, 27 April, 2002)
<http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_jca.htm>.
15
The high-water mark was probably when, in 1988, then Chief Justice Sir Gerard Brennan and Justices Mary
Gaudron, John Toohey, Kenneth Hayne and William Gummow appeared in a documentary, in which they
discussed their lives away from the Bench, including doing the shopping, attending parent-teacher interviews
and the difficulties associated with raising daughters see The Highest Court, (Directed by Daryl Dellora,
Australian Film Finance Corporation and Film Art Deco Pty. Ltd, 1988).
16
Commonwealth v Tasmania [1983] HCA 21. See Martin Clark, ‘Remembering the Tasmanian Dam Case’
on Opinions on High (24 July 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/clark-tasmanian-dam/>.
17
<http://www.hcourt.gov.au>.
18
High Court 2016-17 Annual Report (High Court of Australia, 2017), 26.
19
See Jeremy Gans, ‘Live tweeting from the High Court’ on Opinions on High (27 June 2017)
<https://blogs.unimelb.edu.au/opinionsonhigh/2017/06/27/news-live-tweeting-the-high-court/>.
20
Margaret Jackson and Marita Shelly, ‘The Use of Twitter by Australian Courts’ (2015) 24 Journal of Law,
Information and Science 83.
21
Paul Mason and Daniel Stepniak, ‘Court in the Web: The Impact of the Internet on the Cameras in Court
Debate’ (2000) 28 Alternative Law Journal 71.
22
<http://www.hcourt.gov.au/cases/recent-av-recordings>.
Constitution,
23
there were several feature articles profiling the Justices of the Court.
24
There
was even a quiz in which readers were asked to see if they could identify the High Court judge
from one of three photos, with the other two photos being of well-known celebrities or sports
stars.
25
One might conjecture that asking participants about basic facts such as the identity of the
Justices or the composition of the Court does not address whether people understand the role
of the Court in democratic governance.
26
It might be argued that the latter is really what we
want to know, together with what determines such understanding. Yet, our reason for asking
basic questions about the Court, its Justices and recent decisions relate to the mechanism
through which positivity theory, as outlined above, acts. Positivity theory suggests that people
acquire knowledge of the Court by paying attention to the Court and that by paying attention
to the Court, people are exposed to powerful symbols of judicial legitimacy that increase
knowledge and support. As Gibson, Caldeira and Baird state: ‘Simply put, to know courts is to
love them because to know them is to be exposed to a series of legitimizing messages focused
on the symbols of justice, judicial objectivity and partiality’.
27
Detailed questions about the
role of the Court in democratic governance might be hard for people to answer. More mundane
questions about the identity of the judges, recent cases and basic questions about the Court as
an institution are indicative of the extent to which people have been paying attention to the
Court. Positivity theory posits that people acquire knowledge by paying attention to the Court
and that paying attention imparts more than information. Knowledge is linked to support and
the ability to distinguish the Court from the legislature. Again, to quote Gibson, Caldeira and
Baird, positivity theory suggests that generally speaking to know something about courts is to
be favourably oriented toward them’.
28
Hence, awareness of even basic information about the
Court, without necessarily a detailed understanding of how the Court functions in democratic
governance, can be a lead indicator of support for the Court.
The remainder of the article is set out as follows. The next section provides an overview of
existing studies for the United States and highlights the dearth of related literature for Australia.
Section III examines how differences in the judicial and political systems of Australia and the
United States might affect relative awareness levels. Section IV contains details on the design
and administration of the survey and characteristics of the participants. Section V presents the
results and discusses the findings. The conclusion is contained in Section VI.
II EXISTING STUDIES
To this point, almost all the literature that has examined public awareness of the courts is for
the United States. Most studies have focused on the general public’s awareness in the United
23
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No.2]; Re Joyce: Re Nash; Re Xenaphon [2017] HCA 45.
24
For example, see Jackson Gothe-Snape, ‘High Court: Meet the Men and Women Behind the Bench’,
<http://www.abc.net.au/news/2017-10-09/become-a-high-court-justice-expert-in-90-seconds/9010172>.
25
‘Celebrity, Sports Star, Actor or Judge: Can You Pick Who’s Who on the High Court?’
<http://www.abc.net.au/news/2017-10-08/high-court-justice-quiz-can-you-pick-these-judges/9011294>.
26
See, by analogy, Arthur Lupia, ‘How Elitism Undermines the Study of Voter Competence’ (2006) 18 Critical
Review 213. Lupia argues that questions such as: ‘Can you identify the Vice President?’ reflect a bias as to what
academics think voters should know, but are not relevant to voter’s ability to make a competent choice at
election time. Lupia’s focus is on voters, though, and the arguments are different when it comes to the
mechanisms linking awareness of courts to institutional support for courts.
27
Gibson, Caldeira and Baird, above n 5, 345.
28
Ibid, 344, emphasis ours.
States of the United States Supreme Court.
29
Most of the earlier studies concluded that the
public’s awareness of the United States Supreme Court was very low. In a survey from the late
1980s that is widely cited, 71 per cent of participants could not name one Justice of the Supreme
Court, but 54 per cent of participants could name Judge Wapner as the judge on the popular
television show ‘The People’s Court’.
30
More recently, in a survey administered in 2000 by the
American National Election Study (ANES), just 10.5 per cent of participants were able to
identify William Rehnquist as the then Chief Justice of the United States.
31
The received
wisdom from earlier studies that the American public was largely ignorant of the Supreme
Court and its Justices was challenged by Gibson and Caldeira, who argued that this conclusion
was an artefact of how responses were coded.
32
Specifically, ANES required very precise
answers to record the response as correct; otherwise, the answer was recorded as wrong. Going
back over the ANES data, Gibson and Caldeira show that when nearly correct’ answers are
taken into account, the public’s knowledge of the Court is much higher. They found that 72 per
cent of the answers to the Rehnquist question in the ANES 2000 survey that were marked as
incorrect were ‘nearly correct’.
33
In a recent paper, Bullock and Rader challenge Gibson and
Caldeira’s conclusions, suggesting that the latter were too generous in [their] evaluation of
nearly correct answers’.
34
Bullock and Rader conclude: ‘Prior research may have understated
popular knowledge of the Court, but Gibson and Caldeira have overstated it’.
35
Other research
shows that public awareness of the Supreme Court can vary across ethnic groupings and can
depend on the ethnic profile of who is on the Court. For example, one study found that
awareness of the Supreme Court among Latinos in the United States increased following
Justice Sonia Sotomayor’s appointment to the Supreme Court in May 2009.
36
In addition to studies examining public awareness of the Supreme Court, there are a few studies
that have examined public awareness of the lower courts in the United States. Sarah Benesh,
Nancy Scherer and Amy Steigerwalt found that only about one quarter of participants in a
survey that they administered knew how Federal judges were appointed, although this figure
is slightly higher when ‘nearly correct’ answers are included.
37
Mark McKenzie, Cynthia
Rugeley, Daniel Bailey and Seth McKee examined the public’s awareness of their local
judges.
38
In their survey, participants were asked via an open-ended question if they could
name a local judge in their community.
39
They found that less than one fifth of participants in
29
See eg. Charles Franklin, Liane Kosaki and Herbet Kritzer, ‘The Salience of U.S. Supreme Court Decisions’
(Working Paper, Department of Political Science, The University of Wisconsin, 1993),
<https://faculty.polisci.wisc.edu/kritzer/research/opinion/apsa1993.pdf>; Gibson and Caldeira, above n 9; John
Bullock and Kelly Rader, ‘Americans Knowledge of the U.S. Supreme Court’ (Working Paper, Department of
Government, University of Texas, July 2016) <http://ssrn.com/abstract=2816598>.
30
Richard Morin, ‘Wapner v Rehnquist: No Contest; TV Judge Vastly Outpolls Justices in Test of Public
Recognition’. Washington Post June 23, 1989, p. A21.
31
As reported in Bullock and Rader, above n 29, 7.
32
Gibson and Caldeira, above n 9.
33
Ibid.
34
Bullock and Rader, above n 29, 5.
35
Ibid.
36
Diana Evans, Ana Franco, J.L. Polinard, James Wenzel and Robert Wrinkle, ‘Who’s on the Bench? The
Impact of Latino Descriptive Representation on the US Supreme Court Approval Among Latinos and Anglos’
(2016) 97 Social Science Quarterly 1.
37
Sarah Benesh, Nancy Scherer and Amy Steigerwalt, ‘Public Perceptions of the Lower Federal Courts’
(Working Paper, Department of Political Science, Georgia State University, 2009)
<http://ssrn.com/abstract=1443434>.
38
Mark McKenzie, Cynthia Rugeley, Daniel Bailey and Seth McKee, ‘Americans’ Knowledge of their Local
Judges’ (2017) 39 Political Behavior 259.
39
Ibid, 265.
urban areas and 43 per cent of participants in rural areas could correctly name a local judge.
40
Context is important in considering why familiarity with local judges is higher in rural areas in
the United States. In particular, 38 states have some form of election for state supreme courts,
while 39 states elect judges to state intermediate appellate courts and trial courts of general
jurisdiction.
41
Hence, it is possible that people might be more aware of their local judges in the
United States through hearing about them at election time.
Overall, however, public awareness of the courts and judges is low in the United States. The
picture looks better if ‘nearly correct’ answers are given credit, although debate exists as to
how liberal one should be in recording answers as ‘nearly correct’.
There is a dearth of literature on public awareness of the Australian courts. Paul Kildea and
George Williams note that in Australia …. opinion polls on specific decisions are rare’.
42
Kildea and Williams refer to some specific public opinion polling on the High Court’s decision
in Mabo,
43
which suggest that public understanding of the decision was ‘modest’ and
‘patchy’.
44
Relatedly, there is some public opinion polling on sentencing. Karen Gelb
summarized much of this over three decades, concluding that typically 60-70 per cent of
respondents believe that sentencing is too lenient.
45
In an extensive study, Kate Warner and
colleagues examined juror attitudes to subsequent sentencing in trials on which they sat in
Tasmania as a means of gauging public opinion on sentencing.
46
That study concluded that
jurors, who were more informed about the offence and sentencing guidelines than the general
public, were more likely to approve of sentences given by judges.
47
Tangentially, there is also
one study that examines the extent to which the High Court is responsive to public opinion,
focusing on the Communist Party case.
48
There are, however, no studies that examine public awareness of basic facts about the High
Court, such as the appointment process, gender balance on the Court and retirement age for
Justices; public awareness of recent cases the Court decided or recognition of who sits on the
Court. Given the implications of public awareness of the Court for judicial legitimacy, this is
a significant shortcoming in our understanding of the High Court. We address this gap in the
literature. Justice Virginia Bell, in the statement cited at the beginning of this article, suggests
that few Australians would be able to identify the Justices of the Court. We test this conjecture
and compare levels of public awareness of the Court with findings from the United States.
40
Ibid, 269.
41
American Bar Association, ‘Fact Sheet on Judicial Selection Method in the States’,
<https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf>.
42
Paul Kildea and George Williams, ‘The Mason Court’ in Rosalind Dixon and George Williams (eds) The
High Court, the Constitution and Australian Politics (Cambridge University Press, 2015), 255.
43
Mabo v Queensland (1992) 175 CLR 1.
44
Kildea and Williams above n 42, 256.
45
Karen Gelb, Myths and Misconceptions: Public Opinion Versus Public Judgment About Sentencing (Report,
Sentencing Advisory Council, 2006), 11.
46
Kate Warner, Julia Davis, Maggie Walter, Rebecca Bradfield and Rachel Vermey, Jury Sentencing Survey,
(Report to the Criminology Research Council Grant: CRC 04/06-07, April 2010).
47
Ibid, 95.
48
Australian Communist Party v. Commonwealth, 82 C.L.R. 1 - see Charles H. Sheldon, ‘Public Opinions and
High Courts: Communist Party Cases in Four Constitutional Systems’ (1967) 20 Western Political Quarterly
341.
III DIFFERENCES BETWEEN AUSTRALIA AND THE UNITED STATES
The United States Supreme Court is more politicized than the High Court of Australia. The
politicization of the United States Supreme Court is reflected in the process of appointment,
involving Senate confirmation hearings; the partisan nature of appointment; and the political
questions that it adjudicates under the Bill of Rights. While some appointments to the High
Court have had political overtones, there have been few appointments with the express
intention of altering the composition of the Court.
49
The High Court of Australia Act (1979)
requires the Commonwealth Attorney General to consult with the Attorneys-General of the
States; however, this process largely occurs behind closed doors. Candidates being considered
for appointment sometimes get leaked to the media and their names get reported,
50
but the
judicial appointment process does not play out in the public eye as it does as in the United
States.
51
While there is evidence of attitudinal and ideological voting on the High Court,
52
decision-making on the High Court is not as overtly political as it is on the United States
Supreme Court.
53
How might these differences affect the level of public awareness of the High Court and United
States Supreme Court in the two countries? The Senate confirmation hearings and more overt
political nature of decision-making on the United States Supreme Court give the Justices of the
Supreme Court in the United States a celebrity status that the High Court Justices do not have.
In the speech from which we quote at the beginning of this article, Justice Bell writes: ‘The
Justices of the Supreme Court of the United States are subject to a form of celebrity that would
be disquieting to an Australian judge. For $24 you can buy a Ruth Bader Ginsburg coffee mug
featuring a rather grim portrait of her Honour and the words “I dissent”’.
54
Because the Justices
of the Supreme Court have a form of celebrity status, it is likely that the general public in the
United States will be more aware of their identity than the general public will be of the High
Court Justices in Australia. This extends to the appointment process and, at least, the most
important cases. The Senate confirmation hearings are televised and covered broadly in the
media.
55
Thus, the United States public are likely to be much more aware of how appointments
are made than the Australian public is of appointments to the High Court. While we have
suggested above that the High Court makes decisions that affect how Australians live and work,
and decides issues that matter to the Australian public, it is fair to say that it probably has not
decided cases that have acquired their own celebrity status in the manner in which the United
States Supreme Court has. One thinks of United States Supreme Court decisions such as Brown
49
Geoffrey Sawer, Australian Federalism in the Courts (Melbourne University Press, 1967), 61; George
Winterton, ‘Appointment of Federal Judges in Australia’ (1987) 16 Melbourne University Law Review 185, 188.
50
See, in general, Troy Simpson, ‘Appointments that Might Have Been’ in Tony Blackshield, Michael Coper
and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press,
2001), 23.
51
Winterton, above n 49, 186.
52
For example, see David L. Weiden, ‘Judicial Politicization, Ideology and Activism at the High Courts of the
United States, Canada and Australia’ (2011) 64(2) Political Research Quarterly 335.
53
For a comparison of the appointment process and decision-making on the High Court and United States
Supreme Court see Russell Smyth, ‘The “Haves” and the “Have Nots”: An Empirical Study of the Rational
Actor and Party Capability Hypotheses in the High Court 1948-99’ (2000) 35 Australian Journal of Political
Science 255, 258-261.
54
Bell above n 2, 6
55
For a discussion of the Senate confirmation process in the United States see David A. Strauss and Cass R.
Sunstein, ‘The Senate, the Constitution, and the Confirmation Process’ (1992) 101 Yale Law Journal 1491. For
a discussion of the saturation media coverage of the judicial nomination process in the United States see Richard
Davis, ‘Supreme Court Nominations and the News Media’ (1994) 57 Albany Law Review 1061.
v Board of Education
56
(on racial desegregation) and Roe v Wade
57
(on abortion) that transcend
the courtroom and have generated their own historical and political legacies.
58
All of this
suggests that awareness of the institutional arrangements of the High Court, the identity of its
judges and recent cases will be lower among the general public in Australia than the
corresponding aspects of the Supreme Court will be in the United States.
What does the fact that the High Court is not as politicized as the United States Supreme Court
mean for the application of positivity theory to the High Court? As discussed above, positivity
theory suggests that if people have low awareness of the Court, they will potentially mix up
the role of the Court, Parliament and Executive and attribute to the Court a more political role
than it performs. Judges come to be seen as politicians in judicial robes and this lowers the
esteem in which the Court is held. The fact that the High Court is not as politicized as the
United States Supreme Court should make positivity theory more applicable in the Australian
context. In the United States, having greater awareness of the Supreme Court and its functions
makes the general public more knowledgeable of its political role, although this is distinct from
the executive and legislature. This is even more so when it comes to the state courts, given the
high proportion of states that elect their state judges. Hence, in the United States, having more
awareness of the courts still could lead individuals to the conclusion that judicial process is
highly politicized and, in turn, this could have a negative impact on the esteem in which they
are held. In contrast, increased awareness of the High Court’s essentially apolitical role, at least
in a partisan political sense, should assist the general public to clearly differentiate the role of
the High Court from that of the Executive or Parliament in democratic governance.
If the High Court is apolitical in a partisan sense, it might be argued that increased awareness
of the identities of the judges may politicize their role. It is not entirely clear what the
relationship is, but there would seem to be some link between the politicization and judicial
activism of the United States Supreme Court and judges’ celebrity status in the United States,
compared with the relative lack of politicization and of celebrity status in Australia. In the
speech that we quote at the beginning of this article, after conjecturing that few people would
know the identities of the High Court Justices, Justice Bell goes on to state:
The reason I suggest why the community is uninterested in the judges who make these
decisions is because of an unstated acceptance that the decisions are made on legal
merit and not on the political or ideological sympathies of the judge.
59
The implication here is that through retaining a low profile, and relative anonymity, the Justices
can decide cases while standing largely above the political process. By contrast, if High Court
Justices were to be subject to [the same] form of celebrity as United States Supreme Court
Justices
60
their roles would necessarily become more politicized and the esteem in which the
public holds the Court, and by extension its legitimacy, would be tarnished.
56
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
57
Roe v. Wade, 410 U.S. 113 (1973)
58
For a flavor of how these cases have become etched into the American psyche decades after the actual
decisions, see Jill Lepore, ‘This is Forty: The Anniversary of Roe v Wade’, The New Yorker January 17, 2013;
Valerie Strauss, ‘How, After 60 Years Brown v Board of Education Succeeded And Didn’t’, Washington Post
April 20, 2014.
59
Bell, above n 2, 6.
60
Ibid.
The risk in Justice Bell’s position, however, is that if the judges maintain a low profile, they
run the risk that what the public learns about the Court comes from politicians and that
politicians will politicize the Court’s essentially non-political role. By remaining anonymous
(and running the risk of not being well understood) the Court leaves the door ajar for politicians
to attack judicial independence with misinformation and rhetoric when it suits the interests of
politicians to shift the blame for controversial decisions. In these circumstances, low awareness
among the general public of the role played by the Court, can result in the public attributing a
political role to the Court that does not exist. Thus, consistent with positivity theory, low
awareness can lead the public to see judges in the same way as they view politicians.
The challenge is then for the Court to counter misinformation about its role. The burden of
countering misinformation about the Court should not just fall on its shoulders. While the Court
fell out of favour when Daryl Williams was Commonwealth Attorney, there is a role for the
Attorney-General to explain to a wider audience the role of the High Court, the process of
appointing judges to it and the concept of judicial independence as it pertains to the Court, as
well as to defend judges from political attacks when they occur.
61
As LJ King has described it,
in the period in which Daryl Williams was Attorney General, there were:
strong, even vitriolic, attacks on the High Court and its judges in connection with the
Wik
62
decision. Those attacks went far beyond criticism of the judicial reasoning and
amounted to an attack on the integrity of the High Court as an institution and the
integrity of the judges, thereby damaging public confidence in the Court.
63
Williams refused to defend the Court against such political attacks on the basis that it was not
the role of the Attorney General to do so.
64
This stance was heavily criticised by Sir Anthony
Mason,
65
Sir Gerard Brennan
66
and Michael Kirby.
67
Each of these judges has argued that it is
the role of the Attorney General, as the first judicial officer of the Commonwealth, to defend
the judiciary from political attack and help better educate the public.
As Justice Bell alludes to, more exposure can also invite more public criticism.
68
But, it comes
down to the form that the exposure takes. The legacy of the Kilmur rules, and now the AIJA
Guide to Judicial Conduct,
69
is that judges are constrained from defending particular decisions
61
See LJ King, ‘The Attorney General, Politics and the Judiciary’ (2000) 74 Australian Law Journal 444.
62
Wik Peoples v Queensland [1996] HCA 40.
63
King, above n 61, 455-456.
64
See Daryl Williams, ‘Who Speaks for the Courts?’ (Paper Presented at a Australian Institute of Judicial
Administration National Conference on Courts in a Representative Democracy, November 1994), 183.
65
Sir Anthony Mason, ‘No Place in a Modern Democratic Society for a Supine Judiciary’ (1997) 35 Law
Society Journal 51; Mason, above n 12, 31-32.
66
Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 72 Australian Law Journal 33.
67
Justice Michael Kirby, ‘The Judiciary in Federation Centenary Year – Good News, Bad News, No News’
(The Australian Institute of Judicial Information Eleventh Oration, Sydney, 22 June 2001).
68
There are, of course, contexts in which an increase in public awareness of particular judges may undermine
public confidence in the judiciary or even make them the butt of jokes. One thinks of the time when former
High Court Justice, Dyson Heydon (in his role as the Royal Commissioner investigating corruption in trade
unions) received a great deal of attention in the media because of his claim that he had not read a particular
email attachment because he did not own a personal computer and relied on an assistant to print emails out for
him see Elle Hunt, ‘Dyson Heydon: I read emails only after they have been printed out for me’, The Guardian
(Australian Edition) August 31, 2015 <https://www.theguardian.com/australia-news/2015/aug/31/dyson-
heydon-i-read-emails-only-after-they-have-been-printed-out-for-me>. Judges also receive negative media
attention when the public perceives that their track record of sentencing indicates they are ‘out of touch’.
69
Australian Institute of Judicial Administration, Guide to Judicial Conduct (AIJA, 2nd ed, 2007).
or speaking out in public on controversial issues.
70
On the one hand, this means that they are
restricted in the extent to which they can engage people in the information age. But, on the
other, if the Court’s engagement with the public focuses on increasing understanding of the
role of the Court and how cases are decided, there is no need to wander into controversial
territory. As such, the Kilmur rules should not be a serious bar to increasing awareness of the
Court and its role. Indeed, Stephen Parker’s AIJA Report on the topic, published two decades
ago, emphasised the need for judges to better communicate their role to the public.
71
Judges
should use accessible language, especially when making speeches. When judges do not use
accessible language, this contributes to perceptions that judges are out of touch.
IV DETAILS ABOUT THE SURVEY AND PARTICIPANTS
A Questions in the survey
The first part of the survey was designed to elicit information on the level of awareness of the
current Chief Justice and puisne Justices of the High Court. The manner in which the questions
were asked followed the wording used in successive ANES surveys in the United States. The
questions take the form: The following questions are regarding various public figures. We
want to see how much information about them gets out to the public from newspapers,
television and the like. We then asked about the job or political office that each individual
currently holds. For example, the relevant question about Susan Kiefel was framed as: What
job or political office does Susan Kiefel currently hold? We asked this question for the Chief
Justice and each of the puisne Justices of the High Court, together with prominent politicians
and public figures from Australia and overseas. To provide a point of comparison with the U.S.
survey that found more Americans knew Judge Wapner than William Rehnquist,
72
we asked:
What job or political office does Judy Sheindlin currently hold? (Judy Sheindlin being Judge
Judy on the television show of the same name). The questions for the High Court Justices
were interspersed with the questions for the other individuals.
The second part of the survey was designed to test awareness of prominent judges from the
High Court’s past. The question took the form: We now have a set of questions regarding
various historical public figures, who are now all deceased. We then proceeded to ask: What
prominent office did [name of the individual] hold when he was alive? We asked if participants
could identify the prominent office held by Sir Owen Dixon, Sir Robert Menzies, Lionel
Murphy and John F. Kennedy. We selected Sir Owen Dixon for this purpose, given he is widely
recognised as Australia’s greatest ever jurist
73
and the period when Dixon was Chief Justice is
regarded as the Court’s ‘Golden Age of jurisprudence.
74
The reason for selecting Lionel
Murphy for this purpose was that shortly before the survey was administered the Records of
the Parliamentary Commission of Inquiry into the conduct of Murphy, which had originally
been established in May 1986, were released.
75
The Murphy files, as they were widely
referred to in the media, received extensive press coverage in mid-September 2017. Moreover,
70
Matthew Groves, ‘Public Statements by Judges and the Bias Rule’ (2014) 40 Monash University Law Review
115; McMurdo, above n 11, 1-3
71
Stephen Parker, Courts and the Public (AIJA, 1998).
72
Morin, above n 30.
73
For example, see S E K Hulme, ‘Recollections Mainly to Do with the Dixon Court’ (2003) 77 Australian Law
Journal 653, 655 where Hulme quotes Dame Pattie Menzies as saying to her husband: ‘Robert, you must
remember that Owen Dixon is not God. He replied: No, my dear, but only just.
74
Leslie Zines, ‘Dixon Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford
Companion to the High Court of Australia (Oxford University Press, 2001), 220, 220.
75
See https://www.aph.gov.au/Parliamentary_Business/Parliamentary_Commission
both Dixon and Murphy have had prominent biographies written about them, which potentially
increase public awareness of them and the offices that they held.
76
The third part of the survey asked a series of multiple choice questions about the Court. We
asked questions about how Justices are appointed, how long Justices remain in office, how
many Justices there are on the Court and how many female Justices are on the Court.
Participants were asked to select one of five responses, one of which was the correct answer
and one of which was ‘don’t know’. We used multiple choice because previous research
suggests that closed-end multiple choice questions are a preferable way to elicit this sort of
information, rather than to ask open-ended questions of the form: How are Justices of the High
Court appointed? The latter are a more difficult, and arguably unrealistic, test of public
knowledge.
77
The fourth part of the survey focused on awareness of recent High Court cases that had been
publicised in the media. The question took the form: In the last 12 months, the High Court of
Australia has made some important decisions. Do you know if, in the last 12 months, the High
Court has made decisions on ….’. We then gave five issues with possible answers being yes,
no or ‘don’t know’. This format followed the approach used in Gibson and Caldeira when
testing knowledge of decisions of the United States Supreme Court.
78
Three of the issues the
legal validity of the postal survey on same-sex marriage;
79
whether members of parliament
ostensibly holding dual citizenship were in fact dual citizens;
80
and the legal validity of the
Victorian legislation preventing the release of convicted murderer Julian Knight
81
were cases
that the High Court heard in 2017. A fourth issue whether OJ Simpson’s convictions for
armed robbery and kidnapping in a Las Vegas casino in 2007 should be overturned tested
participants’ understanding of the jurisdictional reach of the High Court. OJ Simpson was
released from prison in Nevada on October 1, 2017, following a parole hearing in July 2017
82
that received a lot of publicity in Australia
83
prior to the administration of the survey. Thus, it
is likely that many participants would have been aware that Simpson had been released from
jail. We were testing if participants were aware that the High Court had no jurisdiction to hear
matters in Nevada in the United States. A fifth issue - the legal validity of reintroducing capital
punishment in Australia is a matter the High Court did not consider in 2017.
In addition to these questions, the survey asked about the age, gender and highest educational
qualification of each of the participants.
76
Philip Ayres, Owen Dixon (The Miegunyah Press, 2003); Jenny Hocking, Lionel Murphy: A Political
Biography (Cambridge University Press, 1997).
77
Jeffrey Mondak, ‘Developing Valid Knowledge Scales’ (2001) 45 American Journal of Political Science 45.
Given this, one might ask why we used open-ended questions in the first two parts of the survey. We did so for
two reasons. One was to facilitate comparison with how the questions on the identities of the judges were asked
in ANES, which has been used in most previous studies for the United States. The other is that questions about
the identities of the individuals in the first two parts does not lend itself to multiple choice questions given all of
the individuals were either judges, politicians or other public figures.
78
Gibson and Caldeira, above n 9, 434.
79
Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40.
80
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No.2]; Re Joyce: Re Nash; Re Xenaphon [2017] HCA 45.
81
Knight v Victoria [2017] HCA 29.
82
Details on the parole hearing are provided at http://parole.nv.gov/information/simpson/simpson-hearing/
83
The story was featured on the front page of most of the major Australian newspapers and was the lead story in
the television news broadcasts the evening following Simpson’s release from prison.
B Administering the survey
The survey was administered by market research firm Qualtrics, in the form of an online
questionnaire over a two- week period in the second half of November 2017. Qualtrics checks
every IP address and uses a digital fingerprinting technology to exclude duplication, and ensure
the validity of the sample. Participants came from traditional market research panels that are
managed by Qualtrics. Potential participants from the Qualtrics panel were initially sent an
email inviting them to participate in an online survey. The initial email informed potential
participants that the survey was for research purposes and how long it was expected to take,
but to avoid self-selection bias it did not include details about the contents of the survey. The
target sample was 500 participants aged 18 or above who are representative of the Australian
adult population in terms of age, education and gender.
84
To ensure representativeness,
Qualtrics ensured that the sample from its market research panel was proportioned to the
Australian adult population and then randomized before the sample was administered. The
final sample was 520 participants. Table 1 provides a breakdown in terms of age, gender and
highest educational qualification.
Table 1: Age, gender and highest educational qualification of participants(a)
Number
%
Gender
Male
265
50.96
Female
255
49.04
Age
18-24
42
8.08
25-34
114
21.92
35-44
115
22.12
45-54
124
23.85
55-64
64
12.31
65-74
52
10.00
75-84
7
1.35
85 and over
2
0.38
Highest Education
Completed primary school
25
4.81
Completed secondary school
130
25.00
Vocational qualification
175
33.65
Bachelor’s degree(b)
125
24.04
Masters or PhD
65
12.50
Notes: (a) In terms of age, education and gender representation, Qualtrics seek to ensure that the composition of
the sample is as close as possible to the distribution for the adult Australian population aged 18 and over.
Qualtrics use the following sources to obtain information on the breakdown of age, gender and highest
educational qualification of the adult Australian population: Australian Bureau of Statistics (ABS) 2016 Census
QuickStats <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/036> and the
slightly older source ABS Highest Level of Education (all persons aged 15 years and over)
<http://www.abs.gov.au/websitedbs/censushome.nsf/4a256353001af3ed4b2562bb00121564/mediafactsheets2n
d/$file/Topic%20-%20Highest%20Level%20of%20Education.pdf>
(b) Includes Diploma, Graduate Diploma, Graduate Certificate, Advanced Diploma and equivalent.
84
The one exception is that those studying law, those with a law degree and those working in the legal
profession were screened out prior to administering the survey.
The project received ethics approval from the universities of both authors. Once selected for
participation in the online survey, but prior to commencing the survey, participants were asked
to read an explanatory statement, which outlined the purpose of the survey and that responses
would be used to write a paper regarding public awareness of the High Court. Participants were
also informed that their involvement in the study was completely voluntary and that the survey
would take approximately 10 minutes to complete. Participants were provided with a small
cash or in-kind reward (eg. airline points or gift cards) for taking part in the survey. The
amount, or form, of reward was not dependent on participants’ responses. Participants had the
opportunity to request a summary of the responses and a draft copy of this paper.
Qualtrics encourages participants to provide thoughtful answers and undertakes various data
quality checks to ensure that they do. The survey commenced with a commitment question:
Do you commit to providing thoughtful and honest answers to the questions in this survey?
To continue with the survey, participants had to agree to provide their best answers. Responses
from participants who completed the survey in less than one-third of the median time were
replaced. Participants who straight-lined through the survey (provided the same answers to
all questions) were replaced. Participants who clearly did not provide thoughtful answers or
did not take the survey seriously were replaced.
85
Participants are aware that Qualtrics retain
records of participation history and that if they do not treat the survey seriously they will
potentially be dropped from the panel and not be invited to participate in future surveys.
Overall, only a small number of participants (less than 15) had to be replaced in the survey.
V FINDINGS
A Level of awareness of the current Justices of the High Court
Table 2 presents responses on the number and percentage of participants who were able to
correctly identify the current members of the High Court. To serve as a point of comparison,
Table 2 also shows the number of participants who were able to correctly identify several senior
politicians from Australia, the UK and the US, the Chief Justice of the United States (John
Roberts), Judy Sheindlin (Judge Judy) and Selina Meyer (fictional US President on the
television show, Veep). The first column provides the number, and percentage, of participants
who correctly identified the job or political office held by each person. The second column
provides the number, and percentage, of participants who were nearly correct in identifying the
job or political office held by each person. The third column is the sum of the first two columns.
The final column records the number of participants who responded ‘don’t know’. Pearson’s
χ2 co-efficients computed from a series of 2 (group) x 1 (level) contingency tables showed that
for every judge, politician, and fictional public figure, the percentage of respondents who
answered ‘don’t know’ was statistically significantly different to the percentage of people who
answered correctly or nearly correctly (combined). Of all seventeen public figures, there were
only four for whom ‘don’t know’ answers were significantly fewer than correct or nearly
correct (combined) answers; namely, Malcolm Turnbull, Donald Trump, Bill Shorten and
Teresa May, suggesting that these four figures are far greater household names than the others.
As discussed above, in the US literature there is recognition that just giving credit to strictly
correct answers underestimates the level of awareness of public figures, but there is debate
85
This decision was taken by the authors and, in all cases, was an obvious decision to make. For example, a few
such participants responded that Malcom Turnbull was ‘a dictator’ and Bill Shorten was ‘a goofball’ (or similar-
type responses). A few of the participants that were removed wrote a swear word or offensive word in response
to every open-ended question. Other participants that were removed wrote ‘who cares?' in response to several of
the open-ended questions. In no cases did we remove participants who were evidently trying to provide a
considered response, even if one or more of their answers were way off the mark.
about how liberal the coder should be in giving credit for nearly correct answers.
86
While what
constitutes a nearly correct answer involves a certain degree of subjectivity, the coder should
use transparent coding rules to ensure that, as far as possible, decisions are reproducible by
others coding the same responses.
87
The exact responses that we coded as correct and nearly
correct for each individual are provided in Table 3. For example, if the participant wrote that
Susan Kiefel was Chief Justice of Australia or Chief Justice of the High Court, we coded this
as a correct response. Responses that were recorded as nearly correct were Chief Justice, judge
of the High Court, judge, Chief Justice of Australian Supreme Court, something to do with the
High Court and High Court. For the puisne Justices, to be recorded as a correct response
participants had to answer Justice (or judge) of the High Court or puisne Justice (or judge) of
the High Court. If the participant gave answers such as Justice, judge, or High Court, this was
recorded as nearly correct. Overall, if the participant showed at least some awareness of who
the person was (eg. judge or politician), the institution in which they serve (eg. High Court or
Parliament) or, in the case of politicians their political affiliation (eg. Liberal or Labor), even
if they did not know the exact position or political office, we recorded the response as nearly
correct.
Table 2: What job or political office do [the following people] currently hold?
(1)
% Correct
(2)
% Near correct
(1) + (2)
Don’t know
7.31
5.97
13.28
82.69(b)
7.88
1.73
9.62
88.08(b)
6.54
1.54
8.08
89.81(b)
6.54 (a)
0.76
7.30
89.81(b)
10.96
2.69
13.65
82.88(b)
7.12
1.54
8.65
90.00(b)
6.15
0.76
6.92
91.54(b)
83.65
2.50
86.15
5.38(b)
69.62
7.69
77.31
19.23(b)
7.69
8.85
16.54
79.42(b)
75.96
15.77
91.73
4.62(b)
6.35
1.54
7.88
89.81(b)
9.62
5.19
14.81
78.85(b)
0.38
9.62
10.00
86.73(b)
76.54
9.23
85.77
11.73(b)
15.19
5.77
20.96
75.19(b)
0.96
4.81
5.77
90.00(b)
Note: (a) Includes one respondent who wrote ‘Media spokesperson for the AFL’. Another individual of the
same name is the media relations manager for the Australian Football League. (b) Percentage of ‘Don’t know’
responses is statistically significantly different to combined ‘Correct’ and ‘Near correct’ responses at p<.001.
For the current members of the High Court a high proportion of participants more than four
fifths in each case - answered ‘don’t know’. Opinions differ on how to treat don’t know
answers. Jeffrey Mondak suggests that if the participant answers ‘don’t know’, this should be
taken to indicate more knowledge than incorrect answers, on the basis that some participants
86
Compare Gibson and Caldeira above n 9 with Bullock and Rader, above n 29.
87
Matthew DeBell, ‘Harder than It Looks: Coding Political Knowledge on the ANES’ (2013) 21 Political
Analysis 393, 395-396.
who answer this way may have concealed partial knowledge.
88
The more accepted view from
more recent studies is that participants who answer ‘don’t know’ really do not know and that
such answers should be grouped with incorrect answers and not be given partial credit.
89
In this
study, we adopt the more accepted view and group ‘don’t know’ and incorrect answers.
Table 3: Responses recorded as correct and near correct in Table 2
Recorded as correct answer
Recorded as near correct answer
Susan Kiefel
Chief Justice of Australia;
Chief Justice of the High
Court; Chief Justice of the
High Court of Australia
Chief Justice; Judge of the High Court;
Judge, Chief Justice of Australian Supreme
Court; Something to do with the High
Court’; High Court
Virginia Bell
Justice of the High Court;
Justice of the High Court of
Australia; Judge of the High
Court; Judge of the High Court
of Australia; Puisne Justice of
the High Court
Justice Australia; Judge; High Court;
Senior Puisne
Stephen Gageler
As per Bell J.
Leader on the High Court; Judge; High
Court; Something to do with the High
Court
Patrick Keane
As per Bell J.
Judge; Justice; High Court
Geoffrey Nettle
As per Bell J.
High Court; High Court of Australia;
Judge; Justice
Michelle Gordon
As per Bell J.
Justice; Judge; High Court; Chief Justice
James Edelman
As per Bell J.
Justice; High Court
Malcolm Turnbull
Prime Minister of Australia;
Prime Minister
Liberal Party; LNP; Liberal; In Parliament;
Head Office; Member of Parliament
Bill Shorten
Leader of Federal Opposition;
Leader of the Opposition;
Opposition Leader; Leader of
the Federal ALP/Labor Party.
Labor; Labor’s candidate; Labor Party;
Head of the Labor Party; Opposition
Something; Shadow Minister Labor;
Member of Parliament; Australian Labor;
Opposition; Opposition in Australia;
Politician; Labor Politician; Shadow Prime
Minister; Opposite Side Prime Minister;
Prime Minister in Waiting
Tony Smith
Speaker of the House of
Representatives; Australian
Parliament Speaker; Speaker of
Parliament; Speaker of the
Member of Parliament; Liberal Party;
Speaker; Politician; Liberal Party Member
for Casey
88
Jeffrey Mondak, ‘Reconsidering the Measurement of Political Knowledge’ (1999) 8 Political Analysis 57.
89
Robert Luskin and John Bullock, ‘Don’t Know Means Don’t Know. DK Responses and the Level of Political
Knowledge’ (2011) 73 Journal of Politics 547; Stephen Jessee, ‘Don’t Know Responses, Personality and the
Measurement of Political Knowledge’ (2017) 5 Political Science Research and Methods 711.
Lower House of the Australian
Parliament
Donald Trump
President of the United States;
President of America; POTUS
President; White House Republican; World
Leader; Politician
John Roberts
Chief Justice of the United
States; Chief Justice of United
States Supreme Court
Justice in the United States; Judge; Chief
Justice; Supreme Court Justice
Paul Ryan
Speaker United States House
of Representatives; United
States Speaker of the House;
GOP Speaker of the House,
Speaker; Politician; US Politician; US
Parliament Speaker; Speaker; US House of
Congress; Member of US Parliament;
Speaker of US Government; Republican in
the US; Republican Representative; US
Member of Parliament; Congressman
Chuck Schumer
United States Senate Minority
Leader
Democratic Party; US Democrat; US
Politician; Senior Senator from New York;
US Senator from New York; American
Member of Parliament; US Something
Political
Teresa May
Prime Minister of the United
Kingdom; Prime Minister of
England; Prime Minister of
Great Britain.
Prime Minister; Top position in UK; MP;
Head of UK; UK Premier; Politician
Judy Sheindlin
Judge Judy; TV judge; TV
personality; judge on
television; US TV show judge;
Host of Judge Judy TV show;
lower court judge on
television; Small claims court
judge in the US; Judge in the
US with her own TV show.
Judge; US judge; Reality TV Personality;
TV Show Host; On Television
Selina Meyer
Fictional President of the
United States on the Television
show Veep
Fictional Character; Veep Star; Veep,
Fictional Political Character; On a TV
Show; Fictional Character on a Political
TV Show; Fictional Character in Veep;
Character Played by Julia Dreyfus;
Fictional Character Played by Julia
Dreyfus on Veep
In addition to correct, nearly correct and don’t know answers, some participants provided
incorrect answers. Among the incorrect answers, participants thought that each of Susan Kiefel
and Virginia Bell were Prime Minister of New Zealand (mixing up their Honours with Jacinda
Ardern who had been elected Prime Minister of New Zealand shortly before the survey was
administered). Other incorrect answers for Susan Kiefel included Member of the Legislative
Assembly in Victoria and the Federal Health Minister. Other incorrect answers included
Federal Treasurer (Stephen Gageler), Governor General (Jeffrey Nettle) and the former First
Lady of the United States (Michelle Gordon). In the latter case, the participant appears to have
mixed up Michelle Gordon with Michelle Obama. In a few instances, participants listed
previous positions held by the judges. Two participants thought that Jeffrey Nettle was a judge
of the Court of Appeal in Victoria, an office his Honour held prior to being appointed to the
High Court, and one participant thought that Stephen Gageler was the Commonwealth Solicitor
General, which was the office he held before being appointed to the High Court.
Several observations can be made based on Table 2. The first is that relatively few participants
could identify the current members of the High Court, consistent with the conjecture of Justice
Bell that is reproduced at the beginning of the article.
90
Around one in 10, or less, participants
were able to correctly identify each current member of the Court with Justice Nettle being the
judge that the most participants could identify. If we include nearly correct answers, with the
exception of the Chief Justice, for most of the judges the numbers barely change. Summing the
correct and nearly correct answers provides an upper bound on public awareness of the judges.
As an upper bound, around 13 per cent of participants were able to identify each of Chief
Justice Kiefel and Justice Nettle, but less than 10 per cent of participants were able to identify
each of the other judges.
91
Overwhelmingly, most participants responded that they did not
know the job, or political office that each of the current members of the High Court hold.
Another observation from Table 2 is that public awareness of the High Court judges is very
low compared to awareness of political leaders in Australia, the UK and US. Over three
quarters of participants gave correct or nearly correct answers to the job or political office held
by Bill Shorten, while 85 per cent, or more of participants were correct or nearly correct in
their responses for Malcolm Turnbull, Teresa May and Donald Trump. While far fewer
participants knew that Tony Smith is Speaker of the House of Representatives in the Federal
parliament, it remains that more participants were able to identify Tony Smith as the Speaker
of the House than were able to identify Susan Kiefel as the Chief Justice. These findings are
similar to results from ANES in the US using similarly worded questions. The ANES surveys
find that awareness of Supreme Court judges is much lower than major political leaders,
although not that much different to less visible politicians, such as the Speaker of the House.
92
In the survey, level of awareness of the High Court judges was similar to the awareness that
participants had of US politicians Paul Ryan (Speaker of the United States House of
Representatives) and Chuck Schumer (United States Senate Minority Leader). If we focus on
correct answers, almost as many participants knew that John Roberts was Chief Justice of the
United States Supreme Court as knew that Susan Kiefel was Chief Justice of the High Court
of Australia, although awareness of Susan Kiefel is greater than that of John Roberts when
nearly correct answers are considered. More participants knew that Judy Sheindlin was Judge
Judy than were able to identify any member of the High Court. This finding is consistent with
the US survey that showed that while more than 50 per cent of participants knew who Judge
Wapner was, over 70 per cent could not name a Justice of the Supreme Court,
93
although the
differences are not as extreme. Just one in five were correct or nearly correct in identifying
90
Bell, above n 2.
91
The relative prominence of Justice Nettle is hard to explain. On the one hand, he does not seem to be a high-
profile judge in the sense of giving interviews or making many speeches. One reader of an earlier version of this
article suggested that this finding might simply be that, of all the judges, he looks like what people expect a
judge to look like. But, this cannot be the reason because we did not show participants photos. It may plausibly
be that Justice Nettle is known because he was the trial judge on what has been one of the most high-profile
criminal cases in recent Victorian history - R v Bayley [2013] VSC 313, although if this is the case, it might be
expected that his Honour would be most well-known by the public within the state of Victoria. We tested this
contention statistically and found that respondents in the state of Victoria were more likely than those from all
other states and territories to know Justice Nettle (χ2 =4.192, p<.05).
92
As reported in Gibson and Caldeira, above n 9, 431.
93
Morin, above n 30.
Judy Sheindlin as Judge Judy. Very few participants knew the political office occupied by the
fictional Selina Meyer from Veep.
B Level of awareness of previous Justices of the High Court
Table 4 details responses on the number, and percentage, of participants who were correct,
nearly correct or did not know the prominent office occupied by Sir Owen Dixon, Lionel
Murphy, Sir Robert Menzies and John F. Kennedy when they were alive. Again we computed
Pearson’s χ2 co-efficients from a series of 2 (group) x 1 (level) contingency tables to show
differences in the percentage of respondents who answered ‘don’t know’ compared to the
percentage of people who answered correctly or nearly correctly (combined). Of the four
historical figures, there were two for whom ‘don’t know’ answers were significantly fewer than
the correct or nearly correct (combined) answers, namely John F Kennedy and Sir Robert
Menzies. Significantly more people responded ‘don’t know’ with respect to Sir Owen Dixon
and Lionel Murphy, suggesting that they are relatively less well known than Kennedy and
Menzies.
In retrospect, a flaw with how this question was asked is that each of these individuals held
more than one prominent office when they were alive. For Sir Own Dixon, while most of the
participants who were correct answered Chief Justice of Australia (or Chief Justice of the High
Court), two answered a Justice (or judge) of the High Court and two answered a judge of the
Supreme Court (of Victoria), both of which were also correct. The correct answers for Lionel
Murphy were evenly split between Justice (or judge) of the High Court and Attorney General.
Table 5 shows the responses that were coded correct and nearly correct in each case.
Table 4: Which prominent office did [the following people] hold when [they] were alive?
(1)
% Correct
(2)
% Near correct
(1) + (2)
Don’t know
Robert Menzies
67.69
2.31
70.00
27.69(c)
Owen Dixon
3.27(a)
5.00
8.27
87.50(c)
John F Kennedy
67.31
20.58
87.89
9.42(c)
Lionel Murphy
11.54(b)
12.88
24.42
67.31(c)
Notes: (a) Of the 17 correct answers, 13 respondents stated Chief Justice of Australia (or Chief Justice of the
High Court), two stated a Justice or Judge of the High Court and two stated a Judge of the Supreme Court. (b)
Of the 60 correct answers, 30 respondents stated Attorney General and 30 respondents stated a Justice or Judge
of the High Court. (c) Percentage of ‘Don’t know’ responses is statistically significantly different to combined
‘Correct’ and ‘Near correct’ responses at p<.001.
Most participants (87.5 per cent) did not know who Sir Owen Dixon was, while less than 10
per cent provided answers that were correct or nearly correct. Given that Dixon retired in 1965,
this result is not particularly surprising. A few of the participants who at least knew Dixon was
a judge, noted that they were aware of his name through its association with Owen Dixon
Chambers in Melbourne. Almost a quarter of participants were correct, or nearly correct, in
identifying the prominent offices held by Lionel Murphy. The higher awareness of Murphy
likely reflects his prominence as a politician as well as a judge, together with the fact that the
release of the Murphy files had received widespread press coverage just prior to the
administration of the survey. Incorrect answers for Murphy included boxer (presumably the
participant was thinking of Lionel Rose), singer (presumably the participant was thinking of
Lionel Richie), United States President, Governor General, Bishop, Prime Minister of
Australia, Prime Minister of the United Kingdom, Solicitor General, Chief Justice of the High
Court and Magistrate. The latter may reflect that in the press coverage of the Murphy files in
the lead up to the survey, Murphy’s name was often discussed together with New South Wales
Chief Magistrates Murray Farquhar and Clarence Briese.
Table 5: Responses recorded as correct and near correct in Table 4
Recorded as correct answer
Recorded as near correct answer
Robert Menzies
Prime Minister; Prime
Minister of Australia
Liberal; In Parliament; Liberal
Party; Liberal Leader
Owen Dixon
Chief Justice of Australia;
Chief Justice of the High
Court; Chief Justice of the
High Court of Australia;
Justice of the High Court;
Judge of the High Court;
Justice of the Supreme
Court
Judge; Chief Justice; High Court
John F Kennedy
President of the United
States; President of
America; POTUS
President; White House;
Democrat; US assassinated; US
Senator
Lionel Murphy
Justice of the High Court;
Justice of the High Court of
Australia; Judge of the High
Court; Judge of the High
Court of Australia; Attorney
General; Federal Attorney
General.
MP or Judge; Senator for NSW;
Judge; Politician or Judge;
Politician; Senator; Australian
Judge, Justice, Judge; Labor
Minister under Whitlam; High
Court; Politician; In Parliament;
MP; Minister; Labor; Labor Party
High Court; Lawyer in the High
Court
Awareness of both Dixon and Murphy was much lower than either Sir Robert Menzies or John
F. Kennedy. Two thirds of participants were able to identify that Menzies had been Prime
Minister of Australia and that Kennedy had been President of the United States. When nearly
correct answers are included, 70 per cent of participants had at least a general idea of who
Menzies was and 88 per cent of participants had at least a general idea of who Kennedy was.
This finding is not surprising given that Menzies and Kennedy are among the most prominent
political figures of the twentieth century in Australia and the US respectively.
C Awareness of the appointment process, retirement age and composition of the Court
Figure 1 provides responses to the multiple-choice question asking which statement best
describes how judges on the High Court are appointed. Just over a third of participants (34.62
per cent) knew that the Governor General appoints High Court judges on the advice of the
federal government. About 40 per cent of participants selected the option ‘don’t know. About
one quarter of participants selected an incorrect response. Among the incorrect options, 13.46
per cent thought that High Court judges are elected by a conscience vote in the House of
Representatives, 8.85 per cent thought that the Prime Minister alone decides who will become
a High Court judge and 3.27 per cent thought that High Court judges are directly elected by
the people. We grouped the responses as correct or incorrect to assess whether the percentage
of correct responses was statistically significantly different to the percentage of incorrect
responses. A Pearson’s χ2 co-efficient indicated that the percentage of correct responses was
statistically significantly lower than the overall percentage of incorrect responses. Based on
these results, awareness of how judges are appointed to the High Court in Australia is lower
than awareness of the appointment process to the Supreme Court in the US. The ANES surveys
found that 73.9 per cent (in 2001) and 65.4 per cent (in 2005) of participants knew that Justices
were appointed to the Supreme Court in the United States.
94
The greater awareness in the
United States of how judges are selected for the Supreme Court, likely reflects widespread
media coverage of the Senate confirmation process.
95
Figure 2 provides responses to the multiple-choice question asking participants if they know
how long judges on the High Court remain in office. Just 17.31 per cent knew that there is a
compulsory retirement age of 70 years of age. Almost one half (48.65 per cent) did not know.
Among the incorrect answers, 14.62 per cent thought that High Court judges have life tenure,
which was abolished following a referendum in 1977,
96
13.27 per cent thought High Court
judges serve a fixed five-year term and 6.15 per cent thought the retirement age was 80 years
old.
Again, we grouped responses as correct or incorrect to assess whether the percentage of correct
responses was statistically significantly different to the percentage of incorrect responses. A
94
Gibson and Caldeira, above n 9, 433.
95
See Davis, above n 55.
96
Constitution Alteration (Retirement of Judges) 1977
3.27% 8.85%
34.62% *
13.46%
39.81%
They are directly elected by a vote of the people
The Prime Minister alone decides who will become a High
Court judge
The Governer General appoints judges on the advice of the
federal government
They are elected by a conscience vote in the House of
Representatives
Don’t know
P
* Percentage of correct responses is statistically significantly different to all (combined) incorrect (and don't know) responses at p<.001.
Figure 1 - In your opinion, which of the following statements best describes how judges
on the High Court of Australia are appointed?
Pearson’s χ2 co-efficient indicated that the percentage of correct responses was statistically
significantly lower than the overall percentage of incorrect responses. Again, these results
suggest that awareness of how long Justices serve on the High Court is lower than awareness
of how long Justices serve on the Supreme Court in the United States. The ANES surveys
found that 66.4 per cent (in 2001) and 60.5 per cent (in 2005) of participants knew that Justices
on the Supreme Court in the United States serve a life term.
97
Figure 3 shows answers to the multiple-choice question asking participants if they know how
many Justices there are on the High Court. Just under one fifth of participants knew that the
current High Court consists of seven Justices. Around three fifths of participants responded
that they did not know how many Justices are on the High Court. Approximately 20 per cent
of participants selected an incorrect response. A Pearson’s χ2 co-efficient indicated that the
percentage of correct responses was statistically significantly lower than the overall percentage
of incorrect responses.
Figure 4 shows participants’ answers to the question about the number of female judges on the
current High Court. Close to two thirds of participants did not know how many women were
on the High Court. Just 13.85 per cent of participants knew that there were three female High
Court Justices, which a Pearson’s χ2 co-efficient showed was statistically significantly lower
than the overall percentage of incorrect responses. This figure is lower than in the United States,
where in a survey administered by the Pew Research Centre in 2015 one third of participants
knew that there were three women on the US Supreme Court.
98
97
Gibson and Caldeira, above n 9, 433.
98
Meredith Dost, ‘Dim Public Awareness of Supreme Court as Major Rulings Loom’, Pew Research Centre
<http://www.pewresearch.org/fact-tank/2015/05/14/dim-public-awareness-of-supreme-court-as-major-rulings-
loom/>.
14.62%
17.31% *
6.15%
13.27%
48.65%
They have life tenure
They have a compusory retirement age of 70
They have a compulsory retirement age of 80
They serve a fixed five year term
Don’t know
* Percentage of correct responses is statistically significantly different to all (combined) incorrect (and don't know) responses at p<.001.
P
Figure 2 - In your opinion, which of the following statements best describes how long
judges on the High Court of Australia remain in office?
Overall, based on the results of the survey, public awareness of how High Court judges are
selected, how long they serve, how many Justices there are on the Court and what proportion
of the Court are women is generally low. Compared with similarly worded surveys
administered in the United States, our results suggest that awareness of these aspects of the
High Court in Australia is lower than that of the Supreme Court in the United States.
D Level of awareness of recent cases decided by the High Court
Writing about the United States Supreme Court, Charles Franklin, Liane Kosaki and Herbert
Kritzer suggest that while the public may be largely uninterested and uninformed about the
3.65%10.38%
19.62% *
5.96%
60.38%
3
5
7
9
Don’t know
3.70%
17.5%
13.85% *
1.73%
63.30%
0
1
3
5
Don’t know
* Percentage of correct responses is statistically significantly different to all (combined) incorrect (and don't know) responses at p<.001.
P
Figure 3 How many Justices are there on the High Court of Australia?
* Percentage of correct responses is statistically significantly different to all (combined) incorrect (and don't know) responses at p<.001.
P
Figure 4 How many Justices currently sitting on the High Court are women?
Court, it is still interested in the decisions of the Court, given their potential to influence
people’s lives.
99
These authors note that in the United States, there has been much interest in
Supreme Court decisions on abortion, civil rights and flag burning, among others.
100
Table 6 presents findings on awareness of recent cases heard in the High Court.
Table 6: In the last 12 months, the High Court of Australia has made some important
decisions. Do you know if, in the last 12 months, the High Court has made decisions on:
Yes (%)
No (%)
Don’t know (%)
The legal validity of reintroducing capital
punishment in Australia
7.12
19.81
73.07
The legal validity of the postal survey on same
sex marriage
60.58
17.50
21.92
Whether members of the federal parliament
thought to hold dual citizenship, in fact, held
dual citizenship and should continue to be
allowed to sit in the federal parliament
65.77
16.73
17.50
Whether OJ Simpson’s convictions for armed
robbery and kidnapping in a Las Vegas casino
in 2007 should be overturned
7.12
17.50
75.38
The legal validity of Victorian state legislation
preventing the release of convicted murderer
Julian Knight, after he had served a minimum
non-parole period in 2014
17.69
42.88
39.42
The two High Court cases that received the most media publicity in the lead up to the survey
were those concerned with the legal validity of the plebiscite on same sex marriage
101
and the
citizenship seven.
102
Two thirds of participants knew that the High Court had heard the case on
dual citizenship
103
and three-fifths of participants knew that the High Court had heard a case
on the legal validity of the same sex plebiscite. The case brought by Julian Knight challenging
the legal validity of Victorian legislation preventing his release from jail after he had served
his minimum term
104
was much less visible and represented a more challenging proposition for
participants in the survey. Just 17.69 per cent of participants thought the High Court had heard
this case, while 42.88 per cent thought it had not and 39.42 per cent did not know.
Next, we consider the two scenarios on which the High Court did not hear a case in 2017 the
legal validity of reintroducing capital punishment and the OJ Simpson case. Few people (just
7.12 per cent in both instances) thought that the High Court heard a case with these facts.
However, just 19.81 per cent of participants thought the High Court had not heard a case on
the legal validity of reintroducing capital punishment and 17.5 per cent thought that the High
Court had not heard an appeal from OJ Simpson. Around three quarters of participants did not
know if the High Court had heard such a case. Given the evidence from recent studies that
99
Franklin, Kosaki and Kritzer, above n. 29, 1.
100
Ibid, 2.
101
Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40.
102
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No.2]; Re Joyce: Re Nash; Re Xenaphon [2017] HCA 45.
103
Technically, it was the High Court sitting as the Court of Disputed Returns that heard the citizenship seven
case. However, with very few exceptions, the media simply referred to the High Court hearing the case; hence,
it was framed that way in the survey.
104
Knight v Victoria [2017] HCA 29.
those who respond ‘don’t know’ really do not know and should be treated as incorrect,
105
more
than four-fifths of participants did not know that the High Court had not heard such cases.
The findings for the legal validity of the plebiscite on same sex marriage and the citizenship
seven suggest a very similar level of awareness of recent High Court cases to that exhibited in
Gibson and Caldeira’s study of awareness in the US of recent Supreme Court cases. In the
Gibson and Caldeira survey, about two-thirds of participants knew that the Supreme Court had
recently ruled on abortion and rights of African Americans.
106
The much greater awareness of
the same-sex marriage plebiscite and citizenship seven cases than the Julian Knight case is
consistent with the findings of Franklin et al. who also found that public awareness was much
lower of less visible cases.
107
Franklin et al. find that public awareness of a case is directly
linked to the amount of media coverage that case gets.
108
In the case of Julian Knight’s
challenge to the Victorian legislation, coverage was largely restricted to a day or two when the
case was decided. This obviously reflects the fact that the outcome of the case did not have the
broad national implications of the other two cases. Franklin et al. argue that concentrated media
coverage results in a spike in public awareness on the day, but awareness is not persistent.
109
Gibson and Caldeira asked participants if the Supreme Court had ruled on an issue (minimum
income tax), which it had not. The responses can be compared with our results for the legal
validity of capital punishment and the OJ Simpson appeal. In Gibson and Caldeira’s survey,
the percentage of correct answers was also lower, and the percentage of participants responding
that they did not know was higher on the minimum income tax question than for the issues on
which the Supreme Court had ruled.
110
What is interesting in our results is that roughly the
same percentage of participants did not know if the High Court had heard cases concerning
capital punishment or OJ Simpson. In the case of capital punishment, it is conceivable that the
High Court may have heard a case matching these facts and, having not heard about it,
participants responded ‘don’t know’. Thus, a high proportion of ‘don’t know’ responses is
understandable. In the case of OJ Simpson, though, many participants would have been aware
that he had been released on parole in Nevada because it received widespread press coverage.
And, even if they were not aware that Simpson had been paroled in Nevada, one would expect
that participants should know that the High Court of Australia would not hear a case concerning
convictions for offences committed in Nevada. That such a high proportion of participants
responded ‘don’t know’ on this question suggests a low awareness of the Court’s jurisdiction.
E Participants’ characteristics and awareness of the High Court
In this section, we examine if the level of awareness of how judges are appointed, their tenure
on the Court, the number of Justices on the Court and the gender composition of the Court as
well as awareness of recent High Court cases vary by participants’ age, education and gender.
105
See studies cited at above n 89.
106
Gibson and Caldeira above n 9, 434.
107
Franklin, Kosaki and Kritzer, above n 29, 13.
108
Ibid, 23.
109
Ibid.
110
Gibson and Caldeira above n 9, 434.
1. Gender
Previous studies have found substantial evidence of a gender gap, favouring men, in political
knowledge in Europe
111
, the United States
112
and in a cross-section of countries across the
globe.
113
The reasons for the gender gap in political knowledge are not well agreed upon. The
standard explanation for many years was that the gender gap in political knowledge stemmed
from differences in traditional resources between men and women. Jennifer Jerit and Jason
Barabis summarize the implications of men and women having different resources as follows:
For decades researchers explained the gender gap in knowledge by noting that women
have lower levels of traditional ‘resources’, like education, income and occupational
status. …. Differences in these resources were thought to contribute to the gap in
knowledge because of their relationship with certain attitudes (eg. efficacy, political
interest) and behaviors (eg. discussing politics, listening to the news).
114
A problem with this explanation is that within countries, such as the United States, the gender
gap has continued to persist while gender equality has improved and across the globe there is
evidence of a gender gap favouring men not just in countries in which the distribution of
resources between men and women remain unequal, but also in countries where resources are
more evenly distributed.
115
Hence, more recent explanations have posited that knowledge gaps
are measurement artefacts.
116
For instance, it has been suggested that women are more likely
to respond that they ‘don’t know’ than men because they are less likely to guess, perhaps
stemming from women being less self-confident
117
or being more risk averse.
118
It has also
been suggested that the gender gap may disappear, or be substantially reduced, if questions ask
about female politicians or policies that are more relevant to women.
119
Our first hypothesis is that men will be more aware than women of institutional aspects of the
High Court, such as how Justices are selected, their number and the retirement age on the Court,
as well as knowledge of its recent cases. We also examine if this reflects women answering
111
See, for example, Monica Ferin and Marta Fraile, ‘Measuring Political Knowledge in Spain: Problems and
Consequences of the Gender Gap in Knowledge’ (2014) 147 Revista Espanola de Investigaciones Sociologicas
53; Marta Fraile, ‘Do Women Know Less About Politics than Men? The Gender Gap in Political Knowledge in
Europe’ (2014) 21 Social Politics 261.
112
See, for example, Jason Barabas, Jennifer Jerit, William Pollock and Carlisle Rainey, ‘The Question(s) of
Political Knowledge’ (2014) 108 American Political Science Review 840; Kim Fridkin and Patrick Kenny,
‘How the Gender of US Senators Influences People’s Understanding and Engagement in Politics’ (2014) 76
Journal of Politics 1017; Jennifer Jerit and Jason Barabas, ‘Revisiting the Gender Gap in Political Knowledge’
(2017) 39 Political Behavior 817.
113
Jessica Forin-Rittberger, ‘Cross-national Gender Gaps in Political Knowledge: How Much is Due to
Context?’ (2016) 69 Political Research Quarterly 391.
114
Jerit and Barabas, above n 112, 818-819.
115
Forin-Rittberger, above n 113.
116
Jerit and Barabas, above n 112, 819-820.
117
Jeffrey Mondak and Mary Anderson, ‘The Knowledge Gap: A Re-examination of Gender-based Differences
in Political Knowledge’ (2004) 66 Journal of Politics 492.
118
Mary-Kate Lizotte and Andrew Sidman, ‘Explaining the Gender Gap in Political Knowledge’ (2009) 5
Politics & Gender 127.
119
Kathleen Dolan, ‘Do Women and Men Know Different Things? Measuring Gender Differences in Political
Knowledge’ (2011) 73 Journal of Politics 97.
‘don’t know’ more than men and if there are differences for the question on which one might
expect women to have more interest the number of female Justices on the Court.
2. Education
Education has been shown to be associated with political knowledge. Michael Delli Caprini
and Scott Keeter examined how a number of individual level characteristics affected political
knowledge in the United States and concluded that education was the strongest single
predictor of political knowledge.
120
The reason why education is positively associated with
political knowledge is threefold. First, the better educated are more likely to have careers and
social networks that create opportunities to learn about politics and public affairs. Second, the
better educated will be motivated to take an interest in politics and public affairs because these
topics are more likely to be discussed in their professional and social circles. Third, the better
educated will have greater cognitive ability to better understand the nuances of politics and
public affairs and this in itself may stimulate further interest.
121
Our second hypothesis is that
the better educated will have better knowledge of the High Court and its recent cases.
3. Age
The relationship between age and political knowledge is not clear-cut. One possibility is that
political knowledge accumulates with experience as one gets older.
122
People acquire political
knowledge over the course of their life; hence, knowledge accumulates over time.
123
There is
also evidence that as people age they become more interested in current affairs. This may
reflect that they spend more time in the local community discussing current affairs and political
events with other like-minded individuals and that they may have more time to follow such
events in detail through either reading commentary about them in the newspaper or watching
coverage of them on the television.
124
Another possibility is that older people have lower
political knowledge. One reason why this might be the case is that older people are less
effective at searching for information and are less adept at using social media and accessing
other online sources of political information than younger people.
125
Older people experience
cognitive decline, are slower at processing information and may be less able to recall political
knowledge, particularly at advanced ages.
126
Given these conflicting arguments, we proffer
competing hypotheses about the direction of the relationship between age and awareness of
institutional features of the High Court and its recent cases. We hypothesise that there is a
positive relationship between aging and awareness of institutional features of the High Court
and its recent cases. The competing hypothesis is that there is a negative relationship between
aging and awareness of institutional features of the High Court and its recent cases.
127
120
Michael Delli Caprini and Scott Keeter What Americans Know About Politics and Why It Matters (Yale
University Press, 1996), 188.
121
Ibid, 190.
122
See John Strate, Charles Parrish, Charles Elder and Coit Ford, ‘Life Span Civic Development and Voting
Participation’ (1989) 83 American Political Science Review 443; Raymond Wolfinger and Stephen Rosenstone,
Who Votes? (Yale University Press, 1980).
123
Eric Plutzer, ‘Becoming a Habitual Voter: Inertia, Resources, and Growth in Young Adulthood’ (2002) 96
American Political Science Review 41.
124
Brittany Bramlett, ‘Aged Communities and Political Knowledge’ (2013) 41 American Politics Research 674.
125
Richard Lau and David Redlawsk, ‘Older But Wiser? Effects of Age on Political Cognition’ (2008) 70
Journal of Politics 168.
126
Richard Lau and David Redlawsk, How Voters Decide: Information Processing in Election Campaigns
(Cambridge University Press, 2006).
127
Another possibility is that the relationship between aging and awareness is non-linear, in which the
relationship between aging and awareness is positive to a certain age, but becomes negative after that age. To
4. State of residence
While there is no reason to posit that geographical location would be influential on knowledge
for the majority of issues of interest in this paper, an exception is the Julian Knight case, for
which it is likely that knowledge of the case would be higher among those living in the state of
Victoria. Not only is Knight Victoria’s worst mass murderer, but his continued use of the
Victorian Courts to appeal various aspects of his incarceration has meant that he has continued,
from time to time, to appear in the Victorian print and television media over the 30 years since
he was convicted. The fact that Knight is also the only serving prisoner in the state of Victoria
subject to bespoke State Government legislation to keep him imprisoned, despite having a
sentence with a minimum term, affords him a certain macabre celebrity in Victoria. We hence
hypothesise that those living in the state of Victoria will be more likely than those in any other
states or territories to know whether the High Court has heard a recent case testing the legal
validity of the Victorian state legislation preventing his release.
5. Empirical method
We use multiple regression analysis to examine the effects of age, education and gender on
awareness of the High Court and its recent cases, and in respect of knowledge of the Julian
Knight case, to examine the effects of age, education, gender, and residing in the state of
Victoria. Using multiple regression to test our hypotheses has advantages over alternatives,
such as examining the correlation between gender and knowledge or education and knowledge.
The problem with relying on the simple correlation between, for example, gender and
knowledge is that simple correlation cannot control for other relevant factors, such as
education. We have hypothesized that gender and education are positively associated with
knowledge. If we were to find a positive correlation between being male and knowledge, it
might mean that men are more knowledgable than women or it might be that men in our sample
are better educated than women and it is differences in education that is driving the results.
Multiple regression analysis allows us to examine the relationship between a dependent
variable (the variable we want to explain, which in our case is differences in awareness or
knowledge of the High Court) and a series of independent variables, which in our case is each
of age, education and gender, while controlling for the effect of the other individual
characteristics on knowledge. Thus, when testing hypothesis 1 on the effect of gender
differences, if we find a positive relationship between being male and knowledge in a
regression analysis, we can conclude that it reflects gender differences and not differences in
age and education. The same is true for the other individual characteristics. The specific form
of regression analysis we use is called a logit model.
128
test this possibility, we would need to know the exact age of the participant and its quadratic (age squared). In
the survey, participants did not provide their exact age. Instead, they provided their age in an interval (eg. 18-24,
25-34, 45-54 and so on see Table 1), so we are not able to test if the relationship is nonlinear.
128
A logit model is appropriate when the dependent variable (our measure of awareness or knowledge) is a
binary variable. Each of our measures of awareness are binary variables because participants either got the
answer right (one outcome) or wrong, including those who answered don’t know (the other outcome). Of the
independent variables, gender is also a binary variable, while age and highest educational qualification are
categorical variables as shown in Table 1. ‘State’ is a binary variable that denotes that the participant lives in the
State of Victoria (or not) in the analysis pertaining to the Julian Knight case. In the remaining analyses, ‘State’
is a categorical variable denoting each of the states and territories and is used as a categorical control variable.
These results are omitted for ease of presentation.
6. Results
Results for the regression analyses are contained in Tables 7 and 8. Our results pertaining to
hypothesis 1, that men will be more aware than women of institutional aspects of the High
Court, as well as knowledge of its recent cases, show that the hypothesis was supported only
in relation to the selection of Justices. Men were one and a half times more likely than women
to know that the Governor General appoints High Court Justices on the advice of the federal
government. Men and women did not significantly differ in their knowledge of the tenure of
judges, nor in the membership of the Court. Contrary to our hypothesis, men were less likely
than women to know that the High Court had made a decision on the legal validity of the postal
survey on same sex marriage in the last twelve months. Indeed, men were only a little over half
as likely as women to know this. One reason why women were more likely than men to know
about this particular decision may be that women generally took a more active interest in this
issue, evidenced by the fact that a greater proportion of women (81.6 per cent) than men (77.3
per cent) voted in the plebiscite.
129
On the whole, however, our results do not show evidence
of a gender gap in knowledge of the High Court and its role in Australia, contrary to evidence
that does show such a gap in political knowledge, in favour of men, in Europe and the US.
130
Table 7: Results of logistic regression analyses of knowledge of the High Court
Selection of
Justices
Length of
tenure
Number of
Justices
Number of
female Justices
Gender
1.598*
1.454
1.148
.816
Age
1.341*
1.136
1.335*
1.344*
Education
1.512*
1.409*
1.314*
1.313*
Notes: Figures are ‘odds ratios’ of the likelihood of knowing the correct answer for men, older people, and the
more highly educated (eg. men are 1.597 times more likely to know how Justices are selected). State or
territory of residence was used as a categorical statistical control, but results are omitted here for ease of
presentation.
* denotes statistically significant at less than p=.05.
We turn now to our findings pertaining to gender differences in the tendency to respond ‘don’t
know’. On the whole, we found that women did in fact have a greater tendency than men to
respond in this way when it comes to knowledge about the High Court, consistent with
suggestions that women are less self-confident
131
and more risk
132
averse than men. Close to
half of the women in our sample responded that they did not know how Justices were selected
onto the Court, compared to around one-third of the men. More than half of the women in the
sample responded that they did not know how long Justices serve on the Court, compared to
40 per cent of the men. Two-thirds of the women in our sample responded that they did not
know how many Justices serve on the Court, compared to just over 50 per cent of the men.
Interestingly, when it came to the question of how many female Justices serve on the Court,
the gender difference disappeared. This result is consistent with Dolan’s contention that when
issues are more relevant to women, the gender difference in the propensity to respond ‘don’t
know’ disappears.
133
In relation to knowledge of recent cases heard by the Court, women were
129
1800.0 Australian Marriage Law Postal Survey 2017 (Report, Australian Bureau of Statistics, 2017)
<http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1800.0~2017~Main%20Features~Results~8>.
130
See above n 111-112.
131
See above n 117.
132
See above n 118.
133
See above n 119.
more likely than men to respond ‘don’t know’ in respect of whether the Court had heard the
dual citizenship case (20 per cent of women compared with 14 per cent of men).
134
However,
this gender difference disappeared in respect of the same sex marriage postal vote case. While
the same sex marriage vote in Australia was an issue that is relevant to all Australians, the
‘Yes’ campaign, led by the Australian Marriage Equality group, was associated with a number
of high profile women, such as Magda Szubanski, Penny Wong, and Christine Forster, which
arguably served to make same-sex marriage a female issue as well as a LGBTI issue. As we
have previously mentioned, a greater percentage of women voted in the same sex marriage
plebiscite than men. To the extent that this number indicates the greater relevance of this issue
to the Australian female population, the absence of a gender difference in the ‘don’t’ know’
responses to this question is also consistent with Dolan’s contention.
Our second hypothesis, that the better educated will have better knowledge of the High Court
and its recent cases, was supported with respect to all four aspects of knowledge of the Court,
and also in respect of one of the three recent cases. Better educated citizens were one and a half
times more likely to know that the Governor General appoints High Court Justices on the
advice of the federal government, and almost one and a half times more likely to know that
Justices have a compulsory retirement age of 70 years, that there are seven Justices on the
Court, and that three of the serving Justices are women. Of the recent decisions made by the
Court, education was only influential over knowing that the Court had heard arguments on the
legal validity of the postal survey on same sex marriage. Overall, our findings are consistent
with Delli Capriti and Keeter’s conclusion about the predictive strength of education.
135
Table 8: Results of logistic regression analyses of knowledge of High Court cases
Same sex
marriage postal
vote
Dual citizenship
of Australian
politicians
Law to prevent
the release of
Julian Knight
Gender
.675*
.998
.945
Age
1.165*
1.493*
1.131
Education
State
1.215*
1.134
.978
1.880*
Notes: Figures are ‘odds ratios’ of the likelihood of knowing the correct answer for men, older people, and the
more highly educated (eg. older people are 1.488 times more likely to know the Court heard the dual
citizenship case). State or territory of residence was used as a categorical statistical control in the same
sex marriage analysis and the dual citizenship analysis, but results are omitted here for ease of
presentation.
* denotes statistically significant at less than p=.05.
Taken together, our findings support our third hypothesis that older people have better
knowledge of the Court and its role. Older people were close to one and a half times more
likely to know how Justices are selected, and close to one and a half times more likely to know
both the number of Justices on the Court and the current number of female Justices on the
Court. Moreover, in addition to having better knowledge of the Court itself, older people were
close to one and a half times more likely to know that the Court had heard the recent cases in
134
Each of these differences between men and women are statistically significant at less than p=.05.
135
See above n 120.
respect of the same sex marriage postal vote and the dual citizenship of politicians. At least in
Australia, it seems that political knowledge does accumulate with age.
Finally, it is worth noting that of all the aspects of knowledge of the Court and each of the cases
we examined, knowledge of the Julian Knight case was the only answer not influenced by any
of age, education or gender. This result is most likely explained by the small amount of press
coverage that this case received, relative to the same sex marriage postal vote and the dual
citizenship case, both of which had far reaching implications and as such were two of the most
contentious and widely publicized cases in recent years. By comparison, the Julian Knight
decision lasted little more than a single news cycle in the Victorian based print media across
August 16 and 17, 2017. While key personal characteristics did not influence knowledge of the
Julian Knight case, being resident in Victoria did. Respondents who lived in Victoria were
close to twice as likely as those from any other state or Territory to know about the Knight
case. This result is likely to have been driven by the Victorian based press coverage and the
fact that Knight perpetrated a serious crime of which most Victorians would remain aware.
VI CONCLUSION
Using responses to a survey administered to a representative sample of the adult population,
we have sought to gauge the level of public awareness of key institutional aspects of the High
Court, its recent cases and the names of the Justices. We have also examined the extent to
which variation in awareness can be explained by participants’ age, education and gender.
Overall, our findings suggest that awareness of the High Court is very low. Fewer than one in
10 participants were able to identify most of the Justices of the High Court. This figure
compared unfavourably with awareness of the major political leaders in Australia, the US and
UK. Similarly, public awareness of how the Justices are selected, how long they serve and how
many Justices (and female Justices) there are on the Court was much lower than in the United
States. These findings are consistent with our conjecture in Section III that public awareness
of the High Court would be lower than the United States Supreme Court, given that the latter
is more politicized and that its judges tend to have celebrity status.
Awareness of two very visible cases that the Court decided in 2017 - the legal validity of the
plebiscite on same sex marriage and the citizenship seven was much higher and on a par with
public awareness in the US of major Supreme Court decisions. However, awareness of the less
visible Julian Knight case and knowledge that the Court did not hear a case concerning the
legal validity of capital punishment or an appeal from OJ Simpson were low. We find that
differences in age and education are important in predicting awareness of the High Court,
although there is no real evidence of a gender knowledge gap in favour of men.
What are the implications of low public awareness of the High Court? Positivity theory
suggests that lacking awareness of the Court, the general public will invariably mix up the roles
of the Court, on one hand, and the Parliament and the Executive on the other, leading the public
to imply to the Court a more overt political role than is warranted. While the Court is essentially
non-political, the tendency to mix up the roles of the Court and the legislature will be
exacerbated when politicians attack judges and/or specific decisions, because in doing so they
politicize the role of the Court. Hearing these attacks, the public comes to see judges in the
same light in which they view politicians. In the absence of finding a channel through which
the Court might counter misinformation spread by politicians on such occasions, lacking
awareness of the different roles of politicians and judges reduces the esteem in which the Court
is held by the public compared to the situation if awareness of the Court’s role was greater.
What can, and should, the High Court do to address the potential negative implications of low
awareness among the public? The short answer is more of what the Court is already doing. As
discussed in the introduction, the Court has introduced a range of initiatives to increase public
awareness of its role and its accessibility to the Australian public more generally.
While the High Court now regularly issues a press release or some other statement to explain
its decisions, the problem is that one has to go to the High Court website to read them. There
is likely to be a role for greater use of community liaison officers, in order to facilitate increased
awareness of what the Court does and ease the load on the judges. The problem with the lack
of community liaison officers for the Court however, has not been lack of interest by the Court,
but lack of funding by the government. Successive Chief Justices of the High Court have been
writing to Attorneys General seeking funds for increased community liaison officers for more
than two decades, but the funding has not been provided.
136
There is a role for our schools to better educate students about the courts and the legal system
more generally. In this vein, as noted in the introduction, almost 45 per cent of visitors to the
High Court in 2016-2017 were school children,
137
which is a very positive sign.
As discussed earlier, confronted with criticisms from politicians that extend beyond the reasons
for a decision, there is an important role for the Attorney General to counter misinformation
spread by politicians. Beyond this, the judges themselves can be more visible to the public. In
saying this, we are not advocating that Australia follow the United States down the path of
treating judges as celebrities. Rather, we see judges as being able to perform a role in educating
the public about the nature of the Court without seeking, or assuming, celebrity status. Senior
judges do give speeches explaining the role of the Court and that, importantly, cases are not
decided along party political lines. Many of these speeches, though, are given at graduation
addresses and judicial conferences. While they are typically made available on the High Court
website and often published in law reviews, their message may not be reaching a wider
audience, given that our results suggest that public awareness is still low. Judges do of course
give interviews, designed for a wider audience, but our results suggest that judges could do
more of such activities, perhaps even revisiting The Highest Court.
138
There is much scope for further research arising from the findings of the study; for example, a
more detailed survey of the public’s understanding of the Court’s role focusing on matters that
are specific to an Australian context such as awareness of specific cases, the scope of the
Court’s jurisdiction and the level of politicisation of the appointments process. Future studies
could also explore these questions at the sub-national level. There is also scope to explicitly
test, in an Australian context, positivity theory by examining the relationship between
awareness of the Court and judicial legitimacy. Such a study might regress proxies for judicial
legitimacy on measures of awareness, controlling for other factors likely to be correlated with
judicial legitimacy, such as confidence in institutions, support for the rule of law, support for a
136
See Kirby, above n 67, where his Honor refers to Chief Justice Murray Gleeson writing first to the Attorney
General in October 1998, then to the Minister of Finance in February 2000 and again to the Attorney General in
October 2000, seeking funding for a public information officer for the Court. No funding was provided on each
of these occasions.
137
See above n 18.
138
See above n 15.
multi-party system and support for individual liberty.
139
Questions relating to awareness could
focus on the role and function of the Court, including awareness of the process of appointment
of High Court justices, understanding of the Court’s jurisdictional limitations and, importantly,
understanding of the Court’s role vis-à-vis the Parliament.
139
See Gibson, Caldeira and Baird, above n 5
... 37 Ingrid Nielsen and Russell Smyth examine public awareness of the High Court, based on responses from a nationally representative sample. 38 They motivate their research by pointing out that public awareness of the Court is important because it is expected to be correlated with judicial legitimacy, but High (24 July 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/clark-tasmanian-dam/>. The High Court now posts summaries of judgments on its website in a form that should be intelligible to the publichttp://www.hcourt.gov.au/registry/case-summaries-2018. ...
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