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Campbell, T --- "Judicial Activism - Justice or Treason" [2003] OtaLawRw 2; (2003) 10 Otago Law Review 307

Judicial Activism — Justice or Treason?^[*]

Tom Campbell[**]

Judicial ethics is about more than sustaining public confidence in the courts. It is, or should be, primarily about fidelity to law. However, law-abidingness in judicial method is not the standard fare of judicial ethics codes and handbooks, which tend to concentrate on pointing out that judicial officers should not publicly support political causes, just as they should not frequent hotel bars, or fall asleep on the bench. These matters are of some importance, but this is largely because they relate to more fundamental judicial matters, in particular, to the judicial duty, to ‘do justice according to law’.[1] This is the basal judicial duty that requires analysis and justification if we are to explore adequately the foundations of legal ethics.

While the ringing phrase ‘justice according to law’ gets little more than passing attention in ethics handbooks, it is the linchpin of any system of judicial ethics. All the things that judges should not do in their lives have to be seen against assumptions about what they should do in court. Whatever your job you should not turn up drunk, or fall asleep at work. But more specifically judicial sins, such as showing bias, partiality or favouritism, derive their force from normative paradigms of the judicial task. It is because of the our ideas about the role of courts in society, for instance, settling disputes or enforcing legal obligations, that we require judges to be impartial, unbiased, listen to both parties, and, yes, perhaps justices do, therefore, have a particularly strong duty not to fall asleep on the job. But, is ‘doing justice according to law’ any more than a grand phrase that can be put to one side as a motherhood statement from which nothing specific follows?

We can certainly construe the term ‘justice’ here in many different ways. ‘Justice’ may mean anything from (1) the accurate application of authoritative rules of positive law (formal justice), through (2) treating the parties fairly according to some process model, (procedural justice), to (3) dealing with people according to their deserts, or their needs, or their moral rights (or however we care to define substantive justice).[2] Interestingly, the phrase ‘according to law’ can be construed in almost exactly the same variety of ways as can the word ‘justice’. ‘According to law’ might mean: ‘according to the authoritative rules’, or it might mean ‘following procedural rules’, or it might mean ‘acting in accordance with the substantive fundamental moral principles embedded in the very idea of law’.[3]

Because the terms ‘justice’ and ‘according to law’ can be interpreted to mean exactly the same thing and in a variety of different ways, it is easy to dismiss the phrase ‘doing justice according to law’ as a grand sounding pleonasm with whatever content we care to give it. This is hardly a promising basis for a system of judicial ethics.

Such vacuous pluralism may however be resisted. We can reasonably assume that ‘according to law’ is a way of limiting how judges may go about doing justice (whatever that is), at least to the point of saying that judges must make decisions that are in accordance with recognised legal principles and rules and do so in accordance with procedures that are similarly defined. That is, ‘according to law’ points, at least, to the justice of judges as being formal and procedural justice, not substantive justice accessed independently of the content of positive law. A judge should not ignore ‘the law’ in the positivist sense of the rules and principles generally accepted as legally binding in the system in question, on the grounds that they were simply attempting to be ‘just’ in some undefined moral sense.

To say more about this we need a theory to articulate and justify this scheme of things. This is to enter the controversial ground of philosophical jurisprudence. How ought judges to determine cases that come before them? What is the nature of judicial power? This in turn is meshed into the wider discipline of legal and political philosophy which deals with what sort of legal system we want to have and how this relates to our preferred political system.[4]

Over the past few decades there have been major shifts in the dominant paradigms of judicial reasoning. Amongst the judiciary (at least according to their public statements) we have moved from the standard espousal of a pretty strict commitment to following the rules and precedents, to a much more open-ended interpretive method in which the inevitably of judicial law-making is celebrated rather than minimised. The so-called ‘fairy tale’ of the declaratory theory and the ‘noble lie’ that judges do not make law,[5] undermined by the teachings of legal realism and later on by various post-modernists,[6] has been replaced by a plethora of positions, from American pragmatism, through economic analysis, to inspirational moralism in which judges are allotted the task of protecting vulnerable minorities from the twin evils of majoritarian democracy and minority wealth.

Some of these changes are personified in the eclipse of the work of the Oxford philosopher Herbert Hart by that of his American successor Ronald Dworkin. Hart’s position in The Concept of Law[7] is that law is a system of ordinary conduct guiding and facilitating rules identified and applied in accordance with a higher order but nevertheless actual social rule, called the rule of recognition, that enables us to identify the authorised first order rules that citizens are meant to follow and judges are meant to apply. For Hart, the routine application of these first order rules works pretty well most of the time but they are sometimes unclear (since language is open textured), sometimes incomplete and sometimes absent, leaving room for a limited element of judicial discretion that gives scope for some common sense flexibility.

Hart confronted and headed off the legal realists, but was less able to deal with Ronald Dworkin who argued that this ‘model of rules’ is simply not how things work in the law.[8] Law, as all practitioners know, Dworkin argues, is full of principles, with basically moral content. These principles, such as equality before the law, or that no one should benefit from his or her own wrongdoing, can override rules in the service of rights and therefore justice. And these principles cannot be understood and applied, Dworkin argues, without the exercise the moral judgment.

With this sort of analysis Dworkinians have convinced several cohorts of students and hence generations of present and future judges, that it is the adjudicative duty of judges to make the law ‘the best that it can be’, and by ‘the best that it can be’, he means, ultimately, the way that most nearly accords with the moral views of the individual judge, in practice with the concurrence of sufficient of his colleagues to carry the day in court. True, he applies this in the main to constitutional cases, and true he presents this as a way of interpreting existing legal materials, not creating law from scratch. Nevertheless, at bottom his theory is that ‘the law’ (and not just constitutional law) contains fundamental moral principles whose application involves the exercise of the first-order moral judgments of the judge, that is moral judgments about substantive right and wrong, moral justice and injustice.[9]

This model of law as an extrapolation from judicial morals does meet with some resistance, principally on the grounds that Dworkin overestimates the judicial capacity to know what is morally right or wrong, and that the diversity of reasonable moral views that individual judges may hold is incompatible with producing an actual legal system that manifests the qualities of being both principled and coherent. There are just too many judicial cooks with a hand in this particular law-making broth.[10]

One locus of this resistance emanates from Australasia. Jeffrey Goldsworthy, professor of law at Monash, James Allan, a Canadian who has taught at Otago for many years, Jeremy Waldron, a New Zealander currently at Columbia University, New York, and I have been dubbed by a not unfriendly critic ‘the Antipodean Positivists’.[11] The critic is David Dyzenhaus, a South African working in Canada, who has condemned legal positivism for perpetuating the apartheid regime in his home country,[12] in much the same way as Gustav Radbruch and Lon Fuller argued that the Nazis could have been more effectively resisted had the judges of the Weimar Republic espoused the jurisprudence of natural law rather than legal positivism.

Putting aside the historical basis of such emotive claims,[13] the crucial thing to note about antipodean positivism is that it is not an old style analytical theory that seeks to define law as, for instance, the commands of the sovereign, but a normative or ethical theory that expresses a preference for a certain type of legal system, where, according to my own version at any rate, there is a set of fairly specific general rules that can be identified and applied without recourse to contentious moral or other speculative matters, a system that it is possible for citizens to understand and follow (no doubt with legal advice in complex areas) and judges to apply without recourse to controversial first-order moral judgments.[14]

I call this theory ‘ethical positivism’, partly because the positivism in question is justified by a political morality and not by pure conceptual analysis, but also because the theory requires ethical practitioners, particularly ethical judges and lawyers, to make it work. Waldron tends to use the term ‘normative positivism’ (despite the fact that this label is used for the rather different view that law is a system of norms not facts).[15] It is also, for reasons that will become clearer, sometimes called ‘democratic positivism’. In this article I explore how ethical or democratic positivism can be used to develop and justify a working definition of judicial activism that enables us to bring into focus significant types of unethical judicial conduct and give substance to the idea of doing justice according to law.

1. Judicial Activism

‘Judicial activism’ is a term not much liked by judges. Used pejoratively it suggests that the ethical judge is a passive, mechanical creature, a rather unflattering picture of judicial work. Used eulogistically it seems to imply that bold and creative judges are akin to political activists, a not very reputable bunch and another unwelcome judicial image. And if all ‘judicial activism’ refers to is the interstitial law-making aspect of judging then it is no big deal these days. Everybody agrees, we are told, that judges make law to some extent albeit in a particular incremental way, largely within the confines of those aspects of the common law that are their special provenance, and where it is necessary in the process of statutory interpretation. And if none of these is what ‘judicial activism’ means then we have a hopelessly imprecise, ambiguous and unhelpfully emotive term that reeks of journalism rather than dispassionate analysis. ‘Judicial activism’, it is suggested, is a term to be discarded.[16]

I am not so sure about this. ‘Judicial activism’ is a term of political criticism and all terms of political criticism are fluid and contested. If we were to give up our political vocabulary on the grounds of indeterminacy, there would be precious little political discourse left. In these situations we need to refine and articulate the points that are being made in the discourse, so that something more precise can be articulated and evaluated.[17] And to do that, we need a theory of adjudication.

My suggestion is that we approach judicial activism not narrowly as having to do simply with the proper scope of judicial law-making but through the broader notion of its contrary, judicial law-abidingness. On this approach a judicial activist is essentially (1) a judge who does not apply all and only such relevant, existing, clear, positive law as is available, and (2) a judge who makes such decisions by drawing on his or her moral, political or religious views at to what the content of the law should be. I put in this second criterion because we have to distinguish the judicial activist from both the judicial sloth and the judicial ignoramus. The judicial activist has an overt or operative agenda for law reform in identifiable directions that require moral and political rather than legal legitimation. This is often described as making policy decisions, if only because it involves, or should involve, reasoned argument as to desirable social objectives and the means to their attainment.

In so far as judicial activism is a failure to apply existing law it may be called ‘negative judicial activism’, and in so far as it replaces existing clear and relevant law with new rules, something which appellate courts have the capacity to do, it may be called ‘positive judicial activism’. To this we must add adjudication which, when positive law is either not clear or not available, goes beyond what is necessary to achieve clarity and consistency in law in a minimalist way. I call this ‘opportunistic activism’. By a ‘minimalist way’ I have in mind that which is necessary to deal with the case in hand, or in the case of appellate courts, to clarify a relatively confined area of law.[18]

In this wider context, the prime reason why judges should not be making law is that they should be applying it. Judicial law-abidingness rather than judicial inactivity is the virtue that contrasts with the sin of judicial activism. Judicial activism, as I have defined it (and as, I believe, it operates as a term of criticism outside the sphere of US Constitutional law), is not to be contrasted with judicial restraint, if this is characterised as a failure to apply existing law because it conflicts with government policy or, in the case of judicial review, with legislation that is being challenged as ultra vires or unconstitutional. Indeed failure to apply clear constitutional rules is a classic example of negative judicial activism.[19]

As a matter of judicial ethics I do not argue that judicial activism is always wrong, but I do hold that, outside the confines of a fairly conservative common law methodology, it is can be so wrong as to be treasonable, because it is a breach of trust and an abuse of judicial power that undermines the foundations of constitutional democracy. The fact that most activist judges are only trying to be just, may be relevant to a plea in mitigation, but not as an acceptable defence. Certain legal philosophers, many constitutional and international lawyers, including Ronald Dworkin, are thoroughly implicated in this treachery. So are all those, judges, legislators, and academic commentators who promote and condone the progressive expansion of vague moral standards into the corpus of the law: such as unconscionability, good faith and open-ended standards such as reasonableness. The theory behind the critique of judicial activism provides a basis for the criticism of enlarged judicial discretion in general.

More dispassionate scholars may agree with my conclusions but nevertheless deplore the language: surely treason is too strong a word for what is only after all a matter of jurisprudential opinion about how judges should decide cases, a matter of reasonable disagreement between reasonable people. Maybe, but such a tolerant approach underestimates the potential damage both to law and democracy that anything but spasmodic judicial activism can do.

In using the term treason I am not imputing evil intent to judges or others whose conduct undermines the democratic rule of positive law. Often judicial activism is quite the reverse: a misguided attempt to do what is right, sometimes on a naïve assumption that their moral views are shared by all reasonable people. This can make the culture of judicial activism dangerously self-confident, arrogant and self-righteous.[20]

However, in case the language of treason still seems too strong, it should be emphasised that I am also not suggesting that judicial activism should be deemed a form of judicial misconduct justifying discipline and removal. My reticence here is not because judicial activism is not an abuse of office. It usually is. But rather on account of the fragility of constitutional government. We need to be absolutely sure that judges cannot be dismissed for making decisions unpopular with government or the press. We cannot therefore afford to make judicial activism a disciplinary offence leading to dismissal for this would have an unacceptable chilling effect on judicial independence.

The problem here goes back to the unfortunate fact that we both need governments and have reason to fear the concentration of power that they involve. The tragic paradox of politics is the fact that in order to achieve the preconditions of an orderly and secure society we need to create a potential instrument of oppression. While democracy is an attempt to deal with this paradox by making government a revocable trust, a temporary grant of power to be exercised only under a system of law, no system can formally solve the problem of who guards the guardians, in this case the persons whose job it is to say, within the rule of positive law, when that law has been broken.

That government be a government of rules, that there be separation of powers between law-makers and law-appliers, and that governments be vulnerable to the votes of the populace and that judges be not vulnerable in this way, are amongst the greatest political achievements of human civilisations, but they cannot do away with the need to entrust someone with making final answers in such matters as the lawfulness of political conduct. In this situation allowing parliaments, or the governments that control them, to remove judges for judicial activism is likely to be a greater danger to constitutional democracy than permitting such activism to continue.

The need to protect judges in this way enhances rather than diminishes the sinfulness of judicial activism. Given that judges require immunity from external control, judicial activists can rely on the fact that there is no acceptable way of institutionalising an effective counter to such abuse of judicial powder. Because they are protected by the constitutional norms of judicial independence, judges are immune from the formal consequences of their misconduct. Judicial activism is not a risky path for judges. The cost is paid by the community through the damage that is done to our system of government. So, I stick to my strong ethical terminology: judicial activism is, or may be, treason.

2. Democratic Positivism

To explain and defend this position, I outline why we might want to adopt democratic positivism as a theory of how a legal system ought to operate. Why would we wish to adopt a theory that appears to advise not only citizens but judges to put aside their own ideas of substantive justice and replace them with apparently amoral rules that we follow simply because they are the law? This looks like the abnegation of responsibility all round.

There are two sorts of reasons for supporting the ideal of the rule of positive law. The first, the weaker of the two reasons, is that adopting legal positivism makes for having a formally good legal system, with all the social and economic benefits that flow from it. And the second, a much stronger reason, is that legal positivism is necessary for the realisation of a democratic system of government, that is a system of government in which the people as a whole have real power to control how they are governed. Putting the two considerations — order and democracy — together, I have argued, as a matter of normative political theory, that any large and complex society ought to possess a formally good legal system, as I shall define it.[21]

With respect to the formally good legal system, we are talking here not about the moral or other content of ordinary laws or even of procedural rules, but about the way in which simply having an orderly and public system of rules produces social benefits such as social coordination, facilitation of cooperation and systematic control of harmful conduct. A formally good legal system should consist of a framework of intelligible and applicable rules by means of which we can coordinate our behaviour, enter into workable agreements and know what we cannot do or must do in order to avoid official disapproval and sanctions. These objectives can be achieved, it is argued, only if we have an agreed set of specific rules capable of being understood, followed and applied by people whether or not they agree with their content.

We will, of course, also want the content of the rules not only to be compatible with the aims of coordination, facilitation and regulation, but actually to produce results that we think optimal with respect to our social and political values. However, whatever these substantive values may be, we require formally good law: rules that are general, clear, specific, applicable, and stable. This is the familiar theme that clear, predictable law promotes order and stability in society. Rules enable us to know where we stand and to plan accordingly.

The conception of a formally good legal system is also fundamental to a particular sort of justice, formal justice, the justice of treating like cases alike in terms of pre-existent criteria. This sort of justice cannot be achieved unless there is an operative system of general rules impartially applied. Without that we cannot claim to be even attempting as a society to treat like cases are alike in a systematic way.

Of course, a really good legal system, a system that is good overall, will have laws that are not only general, specific and clear, but actually have content we like because it includes the right generalisations, the right classifications, and the right remedies. If we could only agree what such substantively good laws would be then our political problems would be at an end. But in what Jeremy Waldron calls ‘the circumstances of politics’ we disagree fundamentally about the proper content of law.[22] Democracy is a system set up to handle and resolve these disagreements in so far as this is possible while still being able to have an operative set of rules which serve until such time as they are changed by appropriately democratic means.

This takes us to the second argument for ethical positivism: that a system of good positive law is essential for the realisation of democratic government in a large and complex society. There are many reasons for adopting this view. For instance, collectives or their representatives cannot routinely make decisions about particulars, but only about types of persons and situations. Further, choice of rules is not only a manageable focus for political discussion and choice, but is one which functions so as to mitigate the role of naked self-interest in politics by making explicit the choices that have to be made between how different categories of person and behaviour are to be subject to or beneficiaries of state power. Finally, only if democracy is centred on the choice of rules, can it begin to approach the ideal of providing real political power to the people as a whole. And if the rules thus created are not followed or are subverted by processes that enlarge judicial discretion at the expense of rule-governed decision-making then democracy is thereby diminished.

In many ways both reasons for adopting the rule of positive law are hardly controversial. Clearly all tolerably fair and effective societies need a publicly knowable system of followable rules that can be identified in a publicly verifiable way.[23] And few would demure from the general thesis that the people through their elected representatives should make the rules, that it is the courts duty to apply them, and that democratic decision-making is more democratic if it is focussed on making general rules than on ad hoc exercises of majority power.

Even the most activist of judges usually endorse some such background set of political assumptions. This is, however, often followed by a string of caveats and qualifications that threaten to undermine the initial commitment to the democratic rule of law. Majorities get it wrong. Minorities suffer in consequence. Rules need to be kept up to date. Parliaments are slow to legislate. Technology moves too fast for government. Politicians are short-sighted. All these truisms, and many more, are used to justify departures from the accepted norm.

It is pointed out, for instance, that often there simply are no rules of a reasonably specific sort available to apply in many cases. In this situation there is no logical space for negative activism (not applying the rules) or indeed positive activism (changing the rules) for there are none to be changed, and opportunistic activism becomes inevitable and pervasive. In this situation legalism cannot be strict because it is bound to be incomplete.[24] This is why appellate judges, at any rate, always have decisions to make that are not significantly constrained by rules. Does this point by itself not undermine any hard form of ethical positivism? If there are no clear and relevant rules for judges to apply what are they meant to do?

3. Contextualism

There are indeed problems for ethical positivism with respect to formally defective legal systems, and since the rule of positive law is an ideal that can never be fully attained, the issue of what to do when the system falls short of the ideal is something that impacts on all legal systems to some extent all of the time. The issue is to identify the most acceptable strategy for judicial decision-making when the existing legal system is defective.

The first thing to note is that where there is an absence of clear, specific and practicable legal rules, then the system is defective and should be improved. A policy of leaving it to the judges to sort out is ineffective and unacceptable. The primary duties here fall on governments and legislatures. Democratic positivism is not a theory of law directed primarily at lawyers and courts, but at the democratic system as a whole, especially the legislature and the legislative drafters that serve them. It is the responsibility of the democratic system to produce clear, comprehensive and applicable rules.

Yet systems fail, often chronically, and governments evade their responsibilities. In the meantime democratically minded judges are in a difficult situation. The situation is not so problematic in the criminal law where charges not based on clear rules may be dismissed, but is less easy in private litigation when it may seem wrong always to leave a detriment where it lies, and may be inadequate with respect to the function of pressing dispute-resolution. Nevertheless, no punishment and no remedy when there is no clear law is a good starting point, and we need to be cautious of filling the evident gaps in any system of law by the liberal exercise of judicial discretion, or, at the higher level, in the making of new law.

Marginal creativity for the purpose of providing clarity and certainty is something that is required, even by legal positivism. The argument for having a formally good system of law itself legitimates a measure of rule creation, for instance where this is necessary to resolve pressing disputes, although the argument from democracy suggests that any significant legal developments should be left with democratically elected bodies. Even the minimal creativity of judges should be provisional, in that it is subject to legislative review, or in the case of constitutional law to constitutional amendment. Hence, we need the constraint of minimalism and the assumption of provisionality.

There are more radical objections to the feasibility of ethical positivism than the occasional, or even frequent, absence of rules. Of particular philosophical interest is the argument that we can never have rules whose meanings limit decision-makers. Rules, we are told, are but strings of symbols, symbols are artificial cultural constructs whose meanings depend on how they are understood by their audience. All language must therefore be interpreted. And all interpretation is subjective in that it is vitally dependent on the mental operations of the particular individual seeking to understand the rule. It follows that there is no such thing as plain or ordinary meaning.[25]

Such rule-scepticism depends on sociological and philosophical arguments to the effect that all meanings depend on understandings of symbols that are embedded in cultural presuppositions and personal histories. For it is evident that there is no ‘objective’ meaning that is independent of shared linguistic conventions and the shared social experience in which these conventions apply.

But the fact that language is a social phenomenon with certain social underpinings does not, in itself, show that culture, conventions and social experiences cannot result in shared understanding of texts. ‘Plain meaning’ is certainly a culturally dependent phenomenon, indeed a communicative achievement, but it manifestly can succeed in social circumstances where there are shared understanding and the genuine desire to communicate.

That we often fail to achieve plain meaning, indeed that we often do not want to, or indeed that we often want to undermine or subvert it (which is exactly what lawyers are often paid to do), are evident facts of messy, lazy and adversarial social situations. But this is not to say that effective communication — through the use of shared understandings closely associated with the language in which these understandings are expressed — cannot take place, or cannot be an ideal towards which effective progress is made to the point where it makes sense to talk of plain language. Indeed, to deny the possibility that a culture can be developed in which it makes sense to talk of plain meaning is in the end self-defeating, for it is a view that, ex hypothesi, cannot be communicated.[26]

Nevertheless, the problems of achieving successful communication are real ones and do present a challenge to any form of legal positivism. How can we go about achieving legal clarity? Much depends on exactly what is being commended by way of interpretive method. To give the concept of judicial activism more substance it is necessary to identify a positivist approach to judicial reasoning.

The approach to legal reasoning that fits best with ethical positivism is textualism, but a form of textualism that places texts in their contexts. I call it, enjoying the play on words, contextual textualism, or contextualism for short. Text in context, or contextualism, does not see the text as simply a way of getting at the subjective intention of the legislature. Democracy cannot be defended in terms of an appeal to some usually non-existent subjective general will. Rather, we have a system where the people through their elected representatives have the duty of creating an official text, approved by a democratic vote, that is then constitutive of what they intend, and is therefore something for which they can be held responsible at least when understood in accordance with its plain meaning (or lack of it). Contextualism is not intentionalism.

Neither is contextualism to be equated with ‘literalism’ if this means reading the words and sentences out of context, merely with the aid of a good dictionary in ignorance of the social and political contexts. Indeed most people we call literalists accept that the words of a piece of legislation can only be understood in the type of situation from which the legislation arose and to which it is intended to apply, the ends it is designed to serve, the controversies that led up to it, the alternative positions that might have been adopted, and the conventions of language shared by those involved, together with the conventions for the interpretation of such authorised texts in that jurisdiction.

But contextualism is not purposive interpretation in any strong sense of ‘purposive’. Contextualising does not mean, use the text to find the ultimate or background over-arching purpose of the legislation then do whatever is necessary to achieve that purpose in this case or in similar cases. Rather it means, if you have an appreciation of the social realities from which the legislation emerged then you have the context that may enable you to understand the meaning of the text.

Contextualism is a form of originalism, but only in the sense that it generates reasons for emphasising the original texts, particularly of statutes and constitutions. It legitimates going back to the meaning of a text prior to the accretions of later and sometimes textually erroneous precedential decisions. To that extent it endorses the so-called literalism of the Engineer’s Case that abandoned some tenuously based constitutional implications, about intergovernmental immunities and reserved state powers, and returned to ‘the meaning of the Constitution’ read ‘naturally in the light of the circumstances in which it was made’.[27]

In that sense contextualism is not essentially conservative. It provides a basis for overturning a line of precedent that has got out of touch with the original text. Another example might be the way in which Cole v Whitfield[28] went back to the evident contextual meaning of s. 92 that ‘trade, commerce and intercourse amongst states shall be absolutely free’, namely to promote free trade and avoid protectionisms between states rather than constitutionalise laisser-faire political economy. Cole may also be read as a contextualist return to the text that corrected the previous judicial activism evident in decisions such as the bank nationalisation case in 1948.[29]

There is of course a tension between a textualism of precedents and a textualism of original text, but the democratic standing of the Australian constitution does give a basis for the Engineer’s Case and Cole v Whitfield if we see these as returning to ‘ordinary and natural meaning’ of the democratically endorsed text. Indeed the same may be said about the recent cases of Hughes and Wakim in relation to cross vesting. If the Constitution clearly does not allow for the Commonwealth DPP to prosecute under states’ corporations legislation there is a contextualist reason for deciding the issue on that basis, although it may be contested how far state constitutions exclude states conferring state jurisdiction on Federal courts.[30] Certainly the contextualism of ethical positivism does not mean following the interpretive method of the time. It is not conservative in that sense. As we have seen, it allows for putting to one side precedents based on non-positivistic or activist interpretations of authoritative texts.

It follows that while contextualism may be the contrary of ‘judicial activism’ it should not therefore be confused with judicial inactivity. Indeed failure to apply existing law — negative judicial activism — is a culpable form of inactivity. Judicial law-abidingness often requires clear and decisive action in applying the text of the law. One aspect of the sad history of native title in Australia is the failure of courts to apply correctly existing law, by holding that the land was unoccupied or ‘unsettled’ when this was not in fact the case, although courts can hardly take the primary blame for that, given the assumptions of the time as to the nature of Aboriginal society.

As we have seen, judicial activism need not be opposed to judicial restraint. Judicial law-abidingness certainly does not involve holding back from the application of positive law simply because to apply the law would thereby constrain government or have major social and economic consequences. Judicial ‘restraint’ in this context is an abdication of judicial responsibility.

On the other hand, judicial law-abidingness does not require a court to give priority to its own interpretations of rules in situations where other reasonable interpretations are placed on these same rules by governments and administrators. The term ‘judicial activism’ was developed primarily in the area of constitutional law to formulate the thesis that courts should show respect for the interpretations of the constitutions developed by elected governments where these are not clearly contrary to the text of the constitution. That does not mean that governments or legislatures, any more than judges, may simply make the constitution mean what they choose and simply assert for instance that its legislation is within legislative power. That was tried in the Communist Party case,[31] and properly rejected by the High Court.

Interestingly, the legislation in question in that case,[32] was declared invalid in part at least because it gave judicial power to the executive to decide who was a ‘communist’, that is, who belongs to a body of persons whose existence is prejudicial to the security and defence of the commonwealth, a violation of the separation of powers that is clearly incompatible with democratic positivism. To that extent the Communist Party decision is in line with democratic positivism. If judicial law-abidingness rules out courts putting their own favoured interpretation on such provisions and claiming their necessary superiority, then the use of vague and abstract constitutional provisions to support a preferred political goal is a form of judicial activism. It goes beyond what the text requires. In this context, deference to the elected branch is appropriate.

So there is a type of judicial activism, an opportunistic variety perhaps, that takes the form of utilising the necessarily broad provisions of a constitution to achieve purposes that have no firm basis in a contextual understanding of the Constitution. Much of the implied rights jurisprudence of the Mason court falls under this head of opportunistic judicial activism. It goes beyond what the text requires in the pursuit of a political objective. Certainly, free speech of some sort is clearly a presupposition of the representative government established in the Constitution, but what constitutes the sort of free speech that makes representative government a reality is a controversial matter that the founding fathers of Australia clearly left to the parliament to decide under the constraints provided by the text of the constitution and the representative system itself.

Australian Capital Television[33] invalidated, in the name of freedom of political communication, a no doubt imperfect law whose purpose was to restrict the impact of unequally distributed wealth on the outcome of elections by preventing political advertising during election periods. In so doing, the High Court of Australia opted for an American over a British model of dealing with election advertising, a preference that is not justified by a contextual understanding of our constitution. Given the lack of rigour in the method of reasoning adopted, and the opportunistic way in which a new right was discovered in the Constitution, it does look as if at least this piece of implied rights jurisprudence was the result of a conscious attempt to alter the Constitution by unconstitutional means. This may be seen as a very positive form of judicial activism and a palpable act of judicial treason comparable to what the New Zealand Court of Appeal did in Baigent’s Case.[34]

The logical extension of this approach to implied rights was clearly articulated in the minority judgment of Dean and Toohey JJ. in Leeth.[35] There the concept of judicial power was used to frame an implied right to equality before the law which, as they present it, would permit judges to render any legislation invalid on the basis that the distinctions it embodies are either not in the judge’s view reasonable or because, in the judge’s view, they are disproportionate to any legitimate end. This is precisely what a loose form of implied rights reasoning would endorse, thus subjecting the substance of all democratic decisions to the moral and political opinions of the higher judiciary. This was a dissenting opinion that has not been taken up favourably in later cases. In general the Australian High Court, meantime, has drawn back from that particular anti-democratic abyss.

The Australian implied rights jurisprudence can be seen as a move towards acquiring an entrenched bill of rights and it is important to articulate a response of ethical positivism with respect to court-centred entrenched bills of rights for the purpose of judicial review. Evidently the values underlying ethical positivism are congruent with core human rights. Ethical positivism identifies a legal contribution to achieving a polity within which human beings are respected as being of equal worth and importance and must involve in part having legal rights that embody the values that underlie the discourse of human rights. Nevertheless, there are many human rights concerns about pursuing those moral rights that are human rights through the mechanism of entrenched bills of rights.

Here I only mention one of these concerns, which is that a court-centred Bill of Rights involving judicial review effectively requires judges to be judicial activists. It requires them to take broadly drawn statements of rights and turn them into concrete provisions that are not required by the text but represent the judges’ moral readings, no doubt supported by a selective appeal to the moral readings of other judiciaries, and does so in a way that leaves citizens no legitimate way to resist them — no way beyond constitutional amendment, a process that is itself powerless in the face of loose methods of constitutional interpretation.[36] Removing democratic rights in this way is a direct challenge to basic human rights and manifests a disrespect of the citizens whose autonomy, rationality and morality is called into question by having such constitutional arrangements. Within democratic positivism human rights ought to be pursued through the ordinary procedures of politics in which the courts feature only after the enactment of appropriately specific legislation.[37]

4. The Common Law Defence

Of the many arguments that can be pitted against democratic positivism one of the most powerful is based on the fact that the history of the common law may be seen as standing outside the theory. At best, what I propose, it may be objected, is applicable only to statutory interpretation and maybe to constitutional law, but not to the common law. This is scarcely surprising since the history of the common law largely predates the rise of democracy, a fact that is often forgotten when considering the relevance of common law traditions to contemporary judicial practice. Further, democratic positivism does not seek to be an explanatory theory that gives an account of either the history or the current performance of legal systems. Democratic positivism is a normative theory that sets up an ideal against which these phenomena can be evaluated. It does not, and is not intended to, describe accurately all that goes on. Democratic positivism sets forth an ideal to which we should strive. My complaint is that it is an ideal that is being put aside for no good reason and to the peril of our system of government.

Democratic positivism is entitled to be highly suspicious of the common law, especially in its resurgent forms as a counterweight to the authority of parliaments. This is not a suspicion with respect to its role as a method of statutory interpretation, if this is seen as a matter of seeking to render statutes clearer and more consistent in the course of interpretation within the confines of the text, contextually understood as applied to particular cases. Indeed ethical positivism requires that courts insist that statutes be clear and unambiguous if they are seeking to change existing law, including existing common law, particularly where long established rights are involved.

Following in the tradition of Jeremy Bentham, democratic positivists are highly suspicious of the common law in a democracy if it is taken to be a significant source of new law with an open ended method in relation to sources of law — culling from all over the world precedents that are to the liking of adventurous judges, and methods of precedential reasoning that provide no clear basis for ad hoc developments of law. And there is certainly reason to be suspicious if the common law is reoriented to become a bedrock of moral principles that trump actual rules and whose implications must be forever unclear due to their abstract and largely textless formulations.

Nevertheless perhaps there is no great harm in the common law as long as its development is gradual and it is in clear subordination to legislation. It may indeed be a means to achieve greater clarity and consistency. And there may be benefit in the gradual development of rules in the light of the cases that come before the courts: unforseen circumstances and changing social realities. There are strong arguments against this on the grounds that it gets us into lots of problems due to lack of policy expertise, as when incremental developments in the law of negligence have undermined the system of insurance that has made these changes possible. Judicial law-making can get us into a mess because justices generally do not have the competences or the resources to carry it out well, even if the values they bring to bear on policy making are not in contention. Further, the issues that divide the parties in legal cases are only part of a wider and more complex picture about which the court is uninformed and with which it may be incompetent to deal.

Nevertheless, on the purely practical ground that legislation and administration cannot effectively deal with all the matters that come before the courts, common law development may be no great problem if it is incremental and consensual. But even so, caution is required since incremental changes reach crucial thresholds that are tantamount to major changes in law and the required consent is difficult to establish. Ideally, therefore, in a flourishing democracy, common law should fade away into constrained statutory interpretation. Certainly democratic positivism fiercely resists attempts to entrench common law to the point where it is put beyond the reach of statutory revision.[38] It is one of the points that can be made against the development of implied constitutional rights jurisprudence in Australia that this can be used as a basis for developing the common law in a way that boosts its authority and makes it less amenable to legislative review.[39] A similar effect may be seen in the application of s.6 of the UK Human Rights Act 1998, which requires public authorities, including courts, to act consistently with Convention Rights when carrying out their duties.[40]

This link of the common law to human rights brings us to one of the most immediately persuasive argument for judicial activism. Democracy, it is commonly argued, does not adequately protect vulnerable minorities. There is thus a case for retaining a measure of judicial activism whereby judiciaries can intervene to protect those whose votes are too small in number to prevent injustice being done to them. Sometimes this argument is based on a very simple view of democracy that assumes all voters are solely motivated by narrow self-interest with no interest in the public good or justice. However, even on a more optimistic view, we all agree that majorities can get it wrong, and that in this as in every area of life people do have limited altruism. As it happens, this is a main reason for insisting on the rule of positive law, and why it is that a principal duty of the courts is to ensure that general laws are fairly applied, especially in the case of vulnerable groups, just as it is similarly a reason for statutory provisions to outlaw discrimination on ground of race, gender, age and so on.

But to go beyond strict statutory constructivism in order to shield vulnerable minorities and give courts a roving brief to change the law when they think a social group is being badly treated by the majority, comes up against the key political difficulty that we do not have agreement about when and where such injustice exists or what should be done about it if it does.

Yet it would not be a big concession for democratic positivism to allow that judicial belief in a grave injustice may justify at least ignoring mistaken precedents and correcting a past mistake in common law. It is possible to read Mabo partly in that way.[41] In contrast to the largely unfettered power given to judges who have to administer court-centred Bills of Rights, common law legal revisions in the cause of minority rights are subject to the override of parliament, and Mabo has since been accepted by Parliament in a modified and developed form.[42] If it is problematic, it is not the most problematic form of judicial activism, particularly if it is confined either to minor changes or to changes that are based on mistakes of law or fact in cases decided many years earlier.

In the case of Mabo, there was not a long and impressive line of precedents, and the precedents could readily be interpreted as mistaken applications of current law since they either made the false assumption that the territory of what is now Australia was effectively unsettled and without an existing system of rights in relation to the use of land, or erroneously held that it was a matter of law not of fact that Australia came into existence through settlement not conquest.[43] The precedential decisions were clearly erroneous in the factual assumptions made at the time in relation to the application of the terra nullius doctrine. What actually occurred was conquest, not the occupation of unsettled territory.

The decision in Mabo was certainly not incremental since it threatened the basis of Australian property law, but it can be considered positivist as it involved looking afresh at the application of the relevant law of occupation in the light of an improved knowledge of historical facts. Further, just because a decision has political consequences does not make it activist. Indeed it would have been a form of negative activism not to make an obviously correct decision in law because it has major consequences. No doubt it would be better from the democratic positivist point of view that the legal changes deriving from Mabo had been initiated by the political process along the lines of more radical native title acts, but the methodology of the decision in question is not significantly suspect in ethical positivist terms.

Given what is at stake in protecting the rule of law, it may be regretted that such a concession is being made into the general principle that perceived injustice legitimates a major shift even in democratically correctable common law. Once we go beyond formal justice, then justice — substantive justice — takes us into the further consequences of changing the rules and straight into policy questions beyond the capacities of courts. Correcting a social injustice is a complex, non-incremental matter that cannot be distinguished from policy making considerations, therefore we cannot sustain the position that judicial law-making is acceptable to correct substantive injustice but not with respect to determining public policy.

Further, as a general principle, it suffers from the defect of requiring to be interpreted in the light of the moral values of the person interpreting the principle. In other words, it is too subjective. There is great disagreement about substantive justice. There are no available criteria to pick and choose between the perceived injustices we allow the judiciary to correct and those we do not. The literature can readily draw distinctions between the whims or personal or idiosyncratic opinions of judges and the reasonable, consensual and enduring values of civilised peoples, but these are often no more than emotive terms for those views we do not share and those we do. Indeed, the concept of enduring values is particularly suspect as it ignores the important factor of moral development. Many of our enduring values are far from admirable. As a test for which values we think should license activism: the fact they are old will not do. The fact that values are still with us looks more hopeful. But why exclude recent developments from the values to which we give weight, as issues of discrimination, which is relatively new in relation to race and gender, and very recent with respect to disability and sexual preference, illustrate? Moreover, enduring values cannot readily be detached from those values that are held in common by the vast majority of a population, thus rendering them impotent with respect to protecting those minorities who believe that their values are being overridden by majority views, the very factor that is said to justify common law intervention on behalf of vulnerable minorities.

No doubt there is a problem here with the respect to the unjust treatment of minorities. In fact requiring democracy to be operationalised via rule-governance is one way of seeking to render political power more equal and so to protect minorities. But, it is not a problem that can be overcome by increasing the discretionary rule-making power of judges. Overall, judicial activism is not a satisfactory response to perceived substantive injustice. Other, more democratic, mechanisms need to be explored.

Conclusion

I have sought to make the case for an analysis of judicial activism in terms of departures from law-abidingness. Where the law in question is good positivist law, the sort of justice that courts should provide is formal and procedural justice, and we should make it possible for them to do so by providing them with good positive law.

This gives us a basis for being highly critical of the move to broad discretionary type law as well as straight out judicial law-breaking in law-making. It provides a particularly strong argument against Bills of Rights, where these are used to strike down or radically change otherwise valid law.

Sometimes I think that there are really two sins: undermining certainty and clarity on the one hand, and ignoring democratic decisions on the other. After all, the absence of clarity and certainty in law is a defect of law in non-democratic societies. And making new law may add to clarity and certainty, at least in the future. But my case is that in a democracy there is an additional reason for good formal law in that effective democratic decisions simply cannot take place unless they can make rules that are actually applied, and this requires that the posited law be clear, comprehensible and applicable.

One advantage of this analysis is that it applies not only at the giddy heights of appellate courts but in every courtroom where laws are enforced (or not, as the case may be). Maybe judicial activism is particularly dangerous in appellate courts because they make law not just in the instant case but by establishing new rules and principles that others then follow. And perhaps judicial activism is especially bad in constitutional matters; these are difficult to change after the event even through constitutional amendment.

Hence the need for tough public scrutiny and critique, not of the motives of judges, or of their off duty activities, but of their judicial conduct on the job. Where necessary we need to criticise and shame unethical judicial conduct. For that is the way that ethics are promoted.

One way we can do this is by suggesting that judges who cannot bring themselves to enforce existing law ought to resign. At least in the straightforward cases of negative activism — failure to apply clear and relevant authoritative rules — judges always do have a choice. If applying a clear law goes against their moral convictions, then they can and should resign rather than put the law to one side or replace it with another.

In the words of the current Chief Justice of Australia: ‘in the administration of any law there comes a point beyond which discretion cannot travel. At this point, if a judge is unable in good conscience to implement the law, he or she may resign. There may be no other course properly available. Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it.’[44] Clearly Chief Justice Gleeson is an antipodean positivist.

[*] This article is derived from Professor Campbell’s valedictory lecture from the Australian National University, which was delivered on May 6^[th], 2002.

[**] Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Canberra.

[1] Thus Chief Justice Gerard Brennan in his introduction to Justice J B Thomas, Judicial Ethics in Australia, LBC, Sydney, 2^[nd] edn 1997, p.v: ‘Judging serves the community in two ways: by doing justice according to law in each case and by maintaining the rule of law in the community at large’. (p.v) The judicial oath for the High Court of Australia, starts with a pledge of allegiance to the Crown and continues: ‘will do right to all manner of people according to law without fear or favour, affection or ill-will’ (High Court of Australia Act 1979 (Cth)). The recent Guide to Judicial Conduct, Australian Institute of Judicial Administration 2002, p.1. states explicitly that its prime concern is to uphold public confidence in the judiciary and only refers to the judicial duty to uphold the law in the context of indicating how to defend the judiciary against misinformed attacks.

[2] For an overview of these distinctions see Tom Campbell, Justice, Macmillan, Basingstoke, 2^[nd] edn 2001, chapters 1 and 2.

[3] A position approached in T.R.S. Allan, Constitutional Justice, Oxford University Press, Oxford, 2001, p.21: ‘Implicit in the requirement of equality before the law, therefore, when viewed as a constitutional safeguard, is a demand for the protection of equal laws’.

[4] See Tom Campbell, ‘Grounding Theories of Legal Interpretation’ in Jeffrey Goldsworthy and Tom Campbell eds, Legal Interpretation in Democratic States, Dartmouth, Aldershot, 2002, 29-45.

[5] The moment that Anglo-Antipodean judges openly espoused law-making is often attributed to Lord Reid when, in 1972, he noted that ‘There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the common law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words “open sesame”.’ (‘The Judge as Lawmaker’, 12 Journal of the Society of Public Teachers of Law, 1972, pp. 22-29. The new orthodoxy is manifest in Australia in Michael McHugh J., ‘The Law-making Function of the Judicial Process’, 62 The Australian Law Journal, 1988, 15-31 and 116-127.)

[6] See, for instance, Georgia Warnke, Justice and Interpretation, Polity Press, Cambridge,1992.

[7] H.L.A. Hart, The Concept of Law, Clarendon, Oxford, 1962.

[8] First in ‘The Model of Rules’ in Taking Rights Seriously, Duckworth, London, 1977, and later in Law’s Empire, Fontana, London 1986.

[9] This position was implicit in his earlier work but is now openly espoused in Freedom’s Law: The Moral Reading of the American Constitution, OUP, 1997. Since this approach permits putting to one side precedents that do not accord with the moral outlook of the judge, and giving prominence to those that do, Dworkin’s position is compatible with ‘doing justice according to law’ only in the very limited sense (1) that judicial decisions must be principled, that is based on reasons, in his case primarily reasons that are grounded in individual rights and not consequentialist reasons that look to future well-being, and (2) that they aim to make the law coherent (i.e., a consistent manifestation of the judge’s first-order moral viewpoint). On the grounds that his method is ‘principled’, Dworkin rejects the label ‘judicial activism’ which he confines to purely ad hoc decision-making.

[10] See Alan Hunt ed, Reading Dworkin Critically, Berg, New York, 1992. Dworkin’s own metaphor is that of the chain novel in which each chapter is seen as an attempt to develop and improve the literary quality of the work while retaining coherence with what has already been written by others. Legal systems are rather messier than that.

[11] David Dyzenhaus, ‘The Justice of the Common Law: Judges, Democracy and the Limits of the Rule of Law’, unpublished lecture, Melbourne, 8 Nov 2000, p.4.

[12] Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy, Clarendon, Oxford, 1991.

[13] But arguing against this natural law position see Ingo Muller, Hitler’s Justice: The Courts of the Third Reich., transl by Deborah Lucas Schnieder, Harvard University Press, Cambridge, MA, 1991.

[14] Tom Campbell, The Legal Theory of Ethical Positivism, Dartmouth, Aldershot, 1996.

[15] But see Jeremy Waldron, ‘Normative (or Ethical) Positivism’, in Jules Coleman, ed, Hart’s Postscript, Hart, Oxford, 2001, pp.410-434.

[16] See Sackville J, ‘Activism’ in Michael Coper, Anthony Blackshield and George Williams, eds., Oxford Companion to the High Court, Oxford University Press, Oxford, 2001,pp.6-7.

[17] An interesting attempt to do this may be found in the introduction to Kenneth M. Holland ed, Judicial Activism in Comparative Perspective, Macmillan, London, 1991, p.1: ‘Judicial activism comes into existence when courts do not confine themselves to adjudication of legal conflicts but venture to make social policies, affecting thereby many more people and interests than if they had confined themselves to the resolution of narrow disputes. The activism of a court, thus, can be measured by the degree of power that it exercises over citizens, the legislature and the administration.’

[18] Minimalism is sometimes referred to under the broad term of ‘judicial restraint’ which features in many of the 16 meanings of judicial restraint listed by Henry J. Abraham, The Judicial Process, Oxford University Press, New York, 7^[th] edn 1998, pp. 385-410.

[19] The US concept of judicial restraint is derived from James Bradley Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 7 Harvard Law Review, 1893, 129 and Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2^[nd] edn, Yale University Press, New Haven CT, 1965. For an analysis of judicial restraint that could be used as a contrary to my analysis of judicial activism, see John Daley, ‘Defining Judicial Restraint’, in Tom Campbell and Jeffrey Goldsworthy eds, Judicial Power, Democracy and Legal Positivism, Dartmouth, Aldershot, 2000, pp. 279-314 at p.308: ‘I have identified two principles of restraint as follows: 1) judges should make decisions on the basis of posited rules; and 2) judges should avoid exercising functions other than deciding on their own role and enforcing posited rules.’

[20] To reverse the epigram in T.S. Eliot’s Murder in the Cathedral: ‘The last temptation is the greatest treason: To do the wrong deed for the right reason’. For the original word order, see T.S.Eliot, Murder in the Cathedral, Faber, London 1935, pt.1: ‘The last temptation is the greatest treason, To do the right deed for the wrong reason’.

[21] See Tom Campbell, The Legal Theory of Ethical Positivism, Dartmouth, Aldershot, 1996; ‘The Point of Legal Positivism’, 9 King’s College Law Journal (1998) pp 61-87; ‘Legal Positivism and Deliberative Democracy’, 15 Current Legal Problems (1998), pp.68-92.

[22] Jeremy Waldron, Law and Disagreement, Clarendon, Oxford 1999.

[23] As is most lucidly argued in Lon Fuller, The Morality of Law, Yale University Press, New Haven, 1969. But see also Frederick Schauer, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making, Clarendon, Oxford, 1991.

[24] Sir Owen Dixon, at his swearing in: ‘Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’ (1952) 85 CLR xi, at xiv. Later he accepted ‘the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforseen circumstances which might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with the result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or social necessity or of social convenience’. ‘Concerning Judicial Method’, (1956) 29 ALJ 468 at 472.

[25] The literature here is vast, incorporating, as it does, legal realism, critical legal studies, and postmodernist critiques of legal determinacy. See James Boyle ed, Critical Legal Studies, Dartmouth, Aldershot, 1992, and Dennis Patterson ed, Postmodernism and Law, Dartmouth, Aldershot, 1994.

[26] See Tom Campbell, ‘Legislative Intent’ in Ngaire Naffine, Rosemary Owens and John Williams eds, Intention in Philosophy and Law, Dartmouth, Aldershot, 2001.

[27] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

[28] Cole v Whitfield (1988)165 CLR 360.

[29] Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1.

[30] See Dennis Rose, ‘The Bizarre Destruction of Cross-Vesting’ in Adrienne Stone and George Williams eds, The High Court at the Crossroads: Essays in Constitutional Law, Federation Press, Sydney, 2000, pp.180-215.

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

[32] The Communist Party Dissolution Act 1950.

[33] Australian Capital Television v The Commonwealth (1992) 177 CLR 106. Cf Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1.

[34] Simpson v Attorney-General [Baigent’s Case] [1994] NZCA 287; [1994] 3 NZLR 667. The court created a public law remedy for an alleged breach of the NZ statutory Bill of Rights for which, with clear Parliamentary intention, the Act did not provide.

[35] Leeth v The Commonwealth (1992) 174 CLR 455, at 485-90.

[36] This is amply illustrated in Tom Campbell, K.D.Ewing and Adam Tomkins eds, Sceptical Essays on Human Rights, Oxford University Press, Oxford, 2001.

[37] The most cogent expression of this view is to be found in Jeremy Waldron, ‘A Rights-Based Critique of Constitutional Rights’, 13 Oxford Journal of Legal Studies, 1993, pp. 18-51.

[38] See Bonham’s Case (1610), flirted with in Union Steamship Co of Australia v King [1988] HCA 55; (1988) 166 CLR 1 at 10. The court held that State legislative power could be ‘subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law’.

[39] Thus Australian defamation law is becoming progressively constitutionalised through such decisions as Theophanous v Herald & Weekly Times Ltd [1995] HCA 7; (1994) 182 CLR 461.

[40] 6. Acts of Public Authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

[41] Mabo v Queensland (no 2) [1992] HCA 23; (1992) 175 CLR 1 at 26: Brennan J ‘The facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law that were the product of that theory’.

[42] Native Title Act 1993 (Cth), amended in 1998 following Wik Peoples v Queensland (1996) 187 CLR 1.

[43] Milirrpum v Nabalco (1971) 17 FLR 141.

[44] Murray Gleeson, The Rule of Law and the Constitution, ABC Books, Sydney, 2000, p.127.