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Kirby, Michael --- ""Judicial Activism"? A Riposte to the Counter-Reformation" [2005] OtaLawRw 1; (2005) 11 Otago Law Review 1

“Judicial Activism”?

A Riposte to the Counter-Reformation*

The Hon. Justice Michael Kirby AC CMG**

* Parts of this article draw upon the author ’s Hamlyn Lectures 2003 on Judicial Activism: Authority, Principle and Policy in the Judicial Method. The Lectures are published by Sweet & Maxwell Ltd, London, 2004. Earlier versions of this article were published in Quadrant (Jan/Feb 2004; Vol XLVIII, No. 1-2), 26 and in (2004) 24:3 Australian Bar Review 219.

** Justice of the High Court of Australia.

Some people miss the pseudo ideology of the “good old days”. In older people, especially, nostalgia for lost childhood beliefs is understandable. Yet often those beliefs conceal unsophisticated falsehoods. They bury the truth in soothing fairytales. In the law we have our ideologies. They adapt to changing times and to the surrounding society and culture. After decades, perhaps centuries, of acceptance of the “noble lie”[1] of the declaratory theory of the judicial function and of so- called “strict and complete legalism” most of us, by the end of the twentieth century, came to recognise the reality of the judicial role in a common law system. Judges face choices. Judges make law. They do so in construing the Constitution, interpreting legislation and reformulating the common law. In giving effect to their choices, judges are influenced not only by legal authority but also by legal principles and legal policy. They are affected by their values, sometimes unexpressed. Of course, they work within constraints. But to deny the creative function and duty of the judiciary in such cases is absurd. In recent decades the true debate in the law has shifted from the infantile insistence that judges should merely apply, and never make, the law to a consideration of when and why a new legal rule should be expressed by a judge. When restraint is called for in the judicial decision. And when a new rule is justified.

Recent events, in Australasia and elsewhere, suggest that it is necessary to restate these simple truths. Denouncing particular decisions and attacking identified judges by the label of “judicial activism” is hardly a persuasive response to an important and universal feature of the judicial role. Judges, above all, have a duty to be honest about the choices they make and why they prefer one choice over another. Attempting to return to a “value free” choice immune concept of the judicial role in today’s world is like trying to go back to the ideological falsehoods of Leonid Brezhnev and the Party Congresses of the Soviet Union before Mikhail Gorbachev’s glasnost swept them away. Those who try to put the clock back may deceive themselves. They should not be permitted to deceive others.

To show why this is so in the law and the judiciary, I will sketch the Old Testament - the ideology of the “noble lie” about our judges and their work. Then I will describe the legal Reformation that acknowledged, especially after the 1970s, the falsehoods of the old mythology. I will follow this with a section on the Counter-Reformation that is attempting to restore the “old order of things”. Finally, I will propose a Concordat that acknowledges both the creative role of the contemporary judge - especially in higher appellate courts - and the ever present need that such creativity be tethered to a legal rule - one based on legal principle and policy as well as the already stated rules of existing legal authority.

The Old Testament

“Judicial activism” should be of interest to all citizens. It concerns the way their law is made. It affects their form of government. It involves the fidelity to office of important, well paid and powerful people who sit in the judgment seat. When some of these people are accused of “judicial activism”[2] – even metaphorical “treason”[3] against the Constitution – the time has come for citizens to sit up and pay attention. If the accusation is even partly correct, citizens are entitled to explanations, perhaps even redress. If the accusation is false and naive, healthy civic discourse requires that fact to be demonstrated and explained. Most lawyers of my age, raised in Australia before the 1980s, accepted at the beginning of their life in the law a strict doctrine about the limits of the power of a judge to create new legal rights or impose new legal duties on fellow citizens. To this day that simplistic notion is treated as self-evident by many editorialists and even some disgruntled lawyers. It represents a belief about the judicial role shared by many citizens. It taps a reservoir of comfortable verities. It is reinforced by the lack of teaching of civics in the contemporary world and by the din that emanates from “the echo-chamber inhabited by journalists and public moralists”.[4] It is wrong. Yet part of its survival can be attributed to some very English features of the common law.

The theory in England, at least from Tudor times, was that judges had to find their authority in a text of the law, just as the new bishops after the Reformation were expected to find theirs in the text of Scripture. It was a very English, indeed very Protestant, virtue to demand fidelity to the text so as to curb the inventions and pretensions to unwarranted power. In the English Church, such pretensions had led to excessive, even absurd, claims of power, immunities, indulgences and luxuries. In the present age, we can see resonances of this insistence on the text (but also of divisions about its meaning) in the controversies in the Anglican Church over women bishops, homosexual priests and so called “gay marriage”.

Distance from the heart of a great empire often makes those far away more extreme in their imperial ideology: keener than those at its seat to cling to its orthodoxies. Long after doubting voices had begun to whisper, then to speak and then to cry out the truth about the judicial method in Britain and the United States, the leading judges of Australia (more Catholic than the Pope) proclaimed the doctrinal impermissibility of judge-made innovation.

There was an especially potent cause of the apparent judicial passivity in Australia. It was the impact on the Australian legal psyche of the doctrinal position adopted by Sir Owen Dixon. Dixon served as a Justice of the High Court of Australia from 1929 and as Chief Justice for twelve years after 1952. He taught generations of Australian judges, lawyers, law teachers and students that “there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.”[5] He wrote these words in the context of federal disputes; but it was his general ideology. Dixon confidently and proudly remarked that the court over which he presided was, by some, “thought to be excessively legalistic”. He declared that he would be “sorry to think that it is anything else”.[6]

Even today, long after he has gone, the power of Dixon’s exposition and example continues to influence the ideology of what it is to be a judge in Australia.[7] His words provide a powerful rallying cry for those within the law of a conservative disposition. Judges who do not agree with Dixon’s exposition of legalism, and who suggest that, in its day, it was honoured as much in the breach as in the observance, are commonly denounced as “judicial activists”.

Some of today’s “strict legalists” are merely nostalgic. They are people who pine for the return of a faded empire. Some are fine jurists searching for a meaning to the law that is larger and more objective than their own frail judgments. But some are politicians, media gurus or polemicists of differing stripes who know nothing of the common law and its marvellous creativity. They are contemptuous of fundamental human rights and jealous of any source of power apart from their own. Some represent powerful interests who despise judges who express the law in terms of legal principles to protect minorities, the weak and the vulnerable. But independent judges, fortunately, will keep on doing so. It is part of their duty. A return in the twenty-first century to a world in which “judges do not make the law”, a world that is proudly “excessively legalistic”, a world of “strict and complete legalism” is neither possible nor desirable. It is the world of Brigadoon – a place of smoke and mists that never existed as portrayed, except in metaphor and imagination. If we could re-create it now, it would be a cruel place of indifference to the fact that judges have choices, that such choices are inherent in the common law system itself and that, giving a meaning to uncertain words and phrases, rules and principles is the daily work that judges actually do.

Of course, there is room for legitimate differences over the occasions and scope of creativity proper to judges. However, a return to “strict and complete legalism” of the judge-as-mechanic is not the way to go. Judges and lawyers of the common law need to engage intellectually with this issue. Unless they do so, the gains of the legal Reformation of the past twenty years could be lost. The honesty and transparency that has come with those gains could be buried as a Counter- Reformation in the law gains momentum in a determined endeavour of an influential minority to restore what is called “the former condition of things”.[8]

As New Zealand and the United Kingdom accept the idea of their own Supreme Courts[9] - even if very different from those of the United States and Australia - it is as well for their lawyers to be alert to the controversies that tend to beset such final courts. The visibility, mode of appointment, functions and public role of the judges of supreme courts tend to make them and their institutions a lightning rod for those who resent their power and who challenge their decisions. Particularly where those decisions affirm the fundamental rights of the weak against the powerful.

To defend our judiciary and legal system as they truly are, citizens must know more about them. They must learn that, contrary to myth, judges do more than simply apply law. They have a role in making it and always have. In the judiciary we have moved beyond the Old Testament. But the citizens, politicians, editorialists and some of the legal profession itself, have not kept pace with the changing ideology. It is as if they have been in an ideological coma these past twenty years, denying the realities of the new world about them.

The Reformation

The more intelligent of contemporary defenders of the dogma of “strict legalism” accept that occasional advances in the common law decided by judges were legitimate, so long as such changes “grew” strictly out of past precedents; were derived solely by a vague and self-fulfilling methodology of “strict logic and high technique”[10] and ignored policy, especially social policy,[11] inherent in considering alternative decisions.

However, in truth, the methodology of our judges has not been fashioned by logic alone; but by experience, as Justice Holmes of the United States Supreme Court once famously observed.[12] The common law is a product of judgment and opinion developed over 800 years. It reflects millions of judicial attempts to produce outcomes that conform to rules; but also to secure results that appear lawful, just and appropriate to the conditions in which the decisions were made.

We should not be ashamed of this extraordinary creation. It is a brilliant and very English invention adapted in Australasia to our needs. It is pragmatic and adaptive. It still governs about a quarter of humanity long after the British Empire has faded into history. Truly, this is a mighty heritage.

Three institutional features of the common law reinforce the established elements of judicial creativity. These features help to explain the tendency of the common law to grow and develop in a pragmatic rather than a strictly logical way. The first relates to the personal characteristics of the senior judiciary. Almost without exception, those judges have come from a comparatively small group of lawyers. Before judicial appointment, they were normally socialised in a tiny and cohesive group of barristers. They generally shared a common socio- economic background. They saw things in roughly similar ways.[13] Ordinarily, they did not need to debate ideology. It grew up with them.

The second is the judicial obligation to give reasons and sit in public.[14] These obligations discourage a naked usurpation of power by judges.[15] Moreover, the duty to deliver and publish reasons compels a judge to engage in a kind of dialogue between the past and present. Such a dialogue will often reveal incongruities between the rules in the books and the unique circumstances of the particular case. It may disclose how things thought just, even in the recent past, are not seen as just or suitable as a matter of legal regulation today.

Thirdly, the right of judges in collegiate courts to dissent, and to express a differing opinion is another feature of the common law system that recognises and stimulates judicial creativity. The very diversity of judicial opinions about the outcome of a particular case is a constant reminder of the indeterminate nature of much judicial decision-making. Perhaps it is why most of the civil law systems of Europe forbid dissent. It unsettles the ideology of legal certainty.

But what is creativity and what is restraint in a judge? This question arose recently in the House of Lords[16] and the High Court of Australia[17] in cases concerning claims by parents of children, born after a failed sterilisation procedure, who sued to recover the economic costs of raising their unexpected child. In the Australian case both parties argued their respective propositions of public policy at length. The surgeon and those opposing the recovery of damages by the parents cited Biblical texts,[18] the traditional common law respect for human life once born,[19] the supposed application of restrictions the law has placed on recovery of pure economic loss,[20] fear of the commodification of human life, and even the provisions of relevant international human rights treaties.[21] On the other hand, the parents suing to recover the unexpected costs they had been forced to incur, relied on strict judicial adherence to the general principles of negligence law,[22] the burden of persuasion which, they asserted, was carried by those who sought a departure from such principles, the general refusal of the common law to accept zones of legal immunity for professional people,[23] and the need to redress the particular burden which such an immunity would impose on women and mothers.[24]

The Australian decision was notable for the candid discussion, in each of the six opinions in the High Court, of the issues of public and legal policy which the case was seen as presenting. None of the judges in the case – not one – pretended that the path to his decision could be found solely by the application of logic and past legal authority. None approached his conclusion only by a technique of “strict logic”, whether described as “high”, “low” or otherwise.[25] But how did contemporary judges in Australia, Britain and elsewhere come to invite debate about, and to participate in, candid discussion of issues of legal and public policy that may influence their decisions in particular cases? One reason for the change in the judicial method is the continuing impact that legal realists have had on judicial thinking in the common law world since the early twentieth century. The doyen of these writers in the United States was Roscoe Pound and in Australia, my teacher Julius Stone at one time also Professor of Law at Auckland University. Discoveries about the psychology of decision- making[26] and analysis of the inherent obscurities of language as the vehicle for legal ideas, have made contemporary judges much more understanding of the choices that they face in resolving the legal disputes that come before them. Denying the choices, inherent in verbal reasoning over social regulation, will not make the choices go away.

What follows from this? Clearly, it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, futile and naïve for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, may be found in the application of nothing more than purely verbal reasoning and “strict logic” to words written by judges in earlier times about the different problems they then faced.[27] Without identifying the issues of legal principle and legal policy at stake, there is a real risk that the judge may stumble along from case to case in a confusion of ideas derived from a mechanical application of past authority without appropriate regard to the dynamics of the contemporary circumstances in which the rules of law must operate.[28] Better that judges should see contemporary problems, and decide them as they truly are.

This pragmatic and realistic approach to the common law’s elaboration now operates in tandem with contemporary approaches to the interpretation of Acts of Parliament. Realism has led courts everywhere to a principle of “purposive” construction of legislation.[29] This acknowledges an active role for the judge in ascertaining what the purpose of the legislation is, in order to help give effect to it.[30] The function of constitutional interpretation too is creative, indeed it is inescapably political in a broad sense of that word. Sir Owen Dixon would not have denied it.[31] Even in the days of Dixon’s dominance, the High Court of Australia was not reluctant to reach important conclusions based upon implications drawn by the judges from the structure and purpose of the Constitution, although not spelt out in clear terms in the text.[32] In Australian Communist Party v The Commonwealth[33] in 1951, the High Court of Australia invalidated a federal law that banned the Communist Party. In explaining his conclusion, Dixon, the advocate of strict legalism, relied on a broad political and philosophical notion of the rule of law. He treated this as an “assumption” implied in the Constitution.[34] That assumption helped to determine the outer boundary of legislative power of the Federal Parliament which had therefore been exceeded in that case.

Despite this kind of legal reasoning, judicial decisions, unlike political activism, must always be anchored in legal authority. Consistency and the avoidance of purely personal idiosyncrasies require that judicial work commence with any relevant legal text and proceed with the assistance of any applicable legal history. Yet in important constitutional cases, and especially where novel issues or ambiguous texts of Parliamentary Acts or past judicial decisions are presented for review, such sources are insufficient. They do not take the mind of the decision-maker far enough along the journey to decision. In short, in judicial work, text is primary. But it is often insufficient. One of the greatest advances in my legal lifetime has been the growing realisation and acknowledgment that this is so. It has led to a generation of judges who are more candid about the choices they make. This has truly been a great legal Reformation. True conservatives uphold their institutions as they are. They acknowledge and rejoice in their capacity to adapt to, and absorb, social and attitudinal change. But now a Counter-Reformation has begun in the law and in society. It has attracted some powerful and noisy exponents. It cannot be ignored.

The Counter-Reformation

Just as we were feeling safe in a new era after the legal Reformation and excited at the challenge of clarifying a more truthful judicial method, a Counter- Reformation was launched by old style formalists. My object is to give a warning about the strategies of those who lead the attempt to return the law and the judiciary to the land of fairytales. The United States probably still wins the prize for the most extreme instances of attacks on judges. One federal judge recently suggested that so-called “judicial activism” has become: more often than not a code word used to induce public disapproval of a court action that a politician opposes but is powerless to overturn. In most cases, the mindless incantation of the phrase amounts to a political retrial which touches the congregation of voters on an emotional level without promoting any reasoned discourse amongst them.[35]

The decisions of the Australian High Court that have attracted the most furious charges of “judicial activism” were given before my appointment to the Court. I do not therefore feel personally defensive about them. I try to look on them with reasonable dispassion. Four categories of cases are involved. So let me consider them in turn:

• In the first case, in Dietrich v The Queen[36] in 1992, the High Court held that a person, facing trial for a serious offence, unable to afford a lawyer, was normally entitled to an order halting the trial until the state provides a lawyer to represent him in the trial. Given the long established law permitting courts to stop deliberately or seriously unjust proceedings and given the great complexity of most modern criminal trials for trained lawyers let alone unrepresented accused, the decision seems pretty unsurprising to someone tutored in the law.[37] That judges in Australia should ultimately decline to participate in a charade of legal process is understandable, given their oaths and vocation.[38] To grumble about this decision suggests a degree of formalism that has temporarily forgotten what the central purpose of the legal and judicial system is. Yet grumblers and critics there are.[39]

• A second case that raised tempers was Mabo v Queensland [No 2][40] also in 1992. That decision reversed a long held rule of the Australian common law to the effect that, on the British acquisition of Australia, all native title to land anywhere in the continent had been extinguished at the moment the Union Jack was rung up, far away. The High Court decision upholding the survival of native title unless overridden by later Australian grants, angered some farming, mining and legal interests. This was understandable. Yet today, most Australians accept the correctness of what was decided in Mabo. A fundamental factual premise of the old law, that Aboriginals were universally nomadic with no interest in land, was shown to have been seriously wrong. Many similar decisions in other settler countries have removed like flaws of past legal reasoning that could only be understood in terms of previous attitudes of racial superiority. These have no place in Australian common law today. Yet grumblers and critics about Mabo remain.

• A third case was one in which I did participate: Wik Peoples v Queensland.[41] The decision in that case held that the Mabo principle potentially applied to pastoral leases, comprising about 40 per cent of the Australian inland. The decision involved the application to pastoral leases of the orthodox common law rule that basic civil rights are not taken to have been abolished by an Act of Parliament - such as those on pastoral leases – except by very clear provisions. This is not a novel rule. It is applied to other Australians all the time. Yet grumblers and critics never cease to complain about the Wik decision.

• A fourth group of Australian cases in the 1990s, said to involve judicial activism, concerned decisions to uphold an implication of free speech in the Australian Constitution.[42] That implication was inferred by the High Court from the necessity to make the constitutional system of representative democracy effective and truly workable. Deriving implications from written documents is rudimentary lawyering. In the high noon of “strict legalism” in Australian constitutional law, implications of great importance were derived by Justice Dixon and his colleagues, from the sparse constitutional text and not only in the famous Australian Communist Party v Commonwealth.[43]

Citizens and lawyers can have, and express, differing views about these and other decisions of the High Court. That is their right in a free society. But, in terms of legal doctrine, none of the decisions is particularly novel. All use well worn methods of legal reasoning. None, I suggest, deserves the torrent of abuse directed at them. Each is in the great tradition of the common law - adapting and updating the law for a time of rapid social change.

Yet in Australia, in the 1990s, political leaders and media pundits, together with a few lawyers jumped with gusto onto the “judicial activism” bandwagon. For instance, following the 1996 Wik decision, the then Acting Prime Minister of Australia (Mr Tim Fischer), declared point blank that the federal government would appoint “Capital C Conservative[s]” to replace retiring Justices of the High Court.[44]

The traditional defender of the federal judiciary in Australia, the Federal Attorney-General, did not intervene to defend the judges, their offices or their courts from pointed attack on their decisions.[45] This was so although he must have known that they could not defend themselves effectively without damaging their offices. We do well to remember these things in Australia in the warm after-glow to the centenary celebrations of the High Court of Australia. Judges should not become too starry-eyed. The attacks on Australian judges in recent times have become more vituperative, more sustained and more intensely personal. Under successive governments there have been ardent antagonists. This is not a development healthy for the institutions of government. There is evidence that a similar movement may be getting underway in the United Kingdom. It has occurred in New Zealand and in other places.[46]

Nevertheless, whilst noting these dangers, it can be conceded that some of the more thoughtful exponents of the Counter-Reformation have made certain valid points. One derives from the separation of powers principle of the Constitution. That principle recognises that the judiciary does not enjoy the great powers of law-making that belong to the parliament and the Executive.[47] An elected legislature has both the legal and moral responsibility for making the most substantial changes in the law.[48] However imperfect elected government may sometimes seem, the principle obliging the people, through elected representatives, to take ultimate responsibility for important matters affecting themselves, and not to leave difficult decisions to an elite of “experts”, is one that constitutions, including the Australian Constitution, enshrine and that human rights instruments also uphold.[49]

Like every judge, I have obeyed the admonitions of restraint. For example, I did so in a case envisaging an increase of landlord duties in negligence which I saw as having significant economic potential.[50] I did so in a case involving defamation on the Internet, where a completely new legal regime was proposed to meet some very telling criticisms of the settled law in a radically new medium.[51] I did so in the case concerning liability for the costs of raising a child born aI think Westenfter negligent advice about an incomplete sterilisation operation.[52] In that case, the application of the basic common law principles of recovery for proved negligence favoured the claimants. As it seemed to me, and to the majority of the High Court, to cut damages off arbitrarily involved unacceptable “judicial activism”. Doing that was a matter for Parliament, not the courts. Perhaps this only goes to show that “judicial activism” exists in the eye of the beholder.[53] Typically, it is a phrase used to wound and demonise and belittle its object rather than to invite a reasoned debate.

Another context where the Counter-reformationists are particularly vocal involves cases where legally enforceable rights have been introduced into the common law system.[54] In Australia, we have so far remained a citadel of resistance against a constitutional bill of rights.[55] But in the United Kingdom (and virtually everywhere else in the world including New Zealand) the new era of human rights law has dawned. Like it or not, for most of humanity, it is an idea whose time has come. Right or wrong, it is we in Australia who are out of step in our law on this issue.

Despite the texts and all of the legal developments that have occurred, many of those in the vanguard of the legal Counter-Reformation want to return to, or stay in, a world in which basic human rights are kept in check and judges are kept as far away from them as possible. The slightest “rights talk”[56] has a tendency to make the exponents of the legal Counter-Reformation furiously excited. They see proposals for a constitutional charter of rights as a frontal attack on their very notion of the rule of law and of the legitimate judicial method, as they see it.[57] They quake in their shoes at the thought of “hero judges” released to “strut their stuff”.[58] It is too late, in their view, to save the United Kingdom, Canada and the United States from this foreign folly. But in the South Seas lies a big land which they hope will keep the flame of the true faith of the common law judge alive until the rest of the world repents the error of its ways.[59]

I used to share some of these views. Fortunately, I grew out of the spell of legal formalism and its infantile over-simplifications. We need a middle ground that reflects the pragmatic character of the common law in contemporary times. The extremes of unbounded judicial creativity and invention will be tamed. But so too will be the extreme of mechanical application of pre-existing law without considering the context in which it was expressed and must operate and its justice today and conformity to basic principle. The call for a return to the “strict and complete legalism” must be rejected as the fairy tale that the legal Reformation thought it was. But what do we put in the place of such fairy tales?

Concordat — Judicial Creativity Within Constraints

Somewhere between the spectacle of a judge, pursuing political ideas of his or her own from the judicial seat, irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative.

We must now face up to the difficulty of identifying the criteria by which the contemporary common law judge can legitimately exercise the judicial power in a given case to express, or to decline to express, a new rule of law or to state an existing rule in new and different terms.[60] Without a theory to govern such activity, it is difficult to have a serious debate about “judicial activism” and judicial restraint, except in terms of visceral reactions to particular outcomes.

The search for factors that encourage, or restrain, judicial re-expression of the law, in ways that affect the rights of the parties and others in a like position, goes on.[61] An exhaustive checklist is an illusion. The judge who cries in dissent for restraint in one case may be moved in another to lead the efforts to re-express the law, and vice-versa. The judge’s analysis of a legal problem may bring him or her to discard past statements of legal authority as “ill adapted to modern circumstances … [or] rest[ing] on dubious foundations”.[62] Yet in the next case the same judge may reject the appeal to creativity and insist on strict adherence to past “doctrine” and old legal authority, unchanged and unadapted.

We should not be over-concerned about such divergences. Obviously, consistency of approach is desirable. However, a human institution like the judiciary, of changing membership and changing minds, operates within, and serves, a changing society. Over time, the judiciary is bound to reflect different values.[63]

Subject to any constitutional restrictions, a legislature can usually do what it likes in making the law. A judI think Westenge has no such freedom. A judge can do nothing without a case. A judge must operate within a complex world of rules, mostly made by others. The judicial function is therefore always tethered in some way to a rule or principle of law. Sometimes that law may be clear, binding and immediately applicable. Sometimes it may be obscure and at best discovered by reasoning by analogy applied to a decision in the case in hand. Sometimes it will bear only a remote similarity to earlier cases or texts relied on by the contesting parties to solve their problem. However, ultimately, in the common law system, there is never an absence of law. If there is no apparent law on the subject, the judge is duty-bound to create it, based on past precedents and old texts. Citizens need to know and face up to these realities. So do the bullies who cry “judicial activism” in an attempt to silence those who explain the choices of the judicial role as it truly is.

Where judges are confronted with cases that involve unique facts, they must respond to the parties’ arguments. Judges cannot walk away. Judges cannot postpone indefinitely. Judges cannot say it is too hard. It is the obligation to make a decision in a particular case, affecting real parties, that concentrates the judicial mind upon the duty to find, as efficiently and accurately as possible, the applicable rule of legal authority.[64] If that rule is clear and binding, the judge in our legal system usually applies it. And that is that. Cases where the propounded rule is unclear, not legally binding or such as to suggest the need for a court with the power to re-express it, are exceptional. But they certainly exist. The higher the judge is placed in the judicial hierarchy, the more likely is it that such cases will arise for decision. In such cases, faced with a novel problem of the common law or an ambiguity of the constitution or of a law made by parliament, the judge should therefore have regard to the second and third of the three sources of guidance: not only legal authority, but also legal principle and legal policy.

Legal principle comes from an analysis of the emerging common themes of multiple decisions in connected areas of the law.[65] Being itself a captive of past decisions, legal principle will not always be of great assistance. In such circumstances, the quandary of judicial choice can be helped, and judicial reasons will be made more transparent, by the identification of any policy considerations that the judge takes into account.[66] Novel cases require judges with the responsibility of decision to evaluate the choices they make by reference to considerations of legal policy. In the past, such questions were commonly submerged in judicial reasoning expressed in verbal formulas. However, in most countries of the common law today, judges in the higher courts evaluate new cases by reference not only to authority and emerging principle; but also to such considerations of legal policy. Judicial attention to considerations of policy is not new. What is new is the open judicial acknowledgment of it. The legal Counter-Reformation that has gathered steam in many countries in recent years teaches contemporary judges the need for fuller explanations of judicial re-expressions of the law. The attempt to restore a reactionary and dishonest ideology about the judicial function, and verbal formalism in the expression of judicial reasons, is usually a cloak for a substantive agenda. Such formalism must be defeated - just as all extremist positions must fail.

Greater honesty and candour about judicial reasoning is the abiding legacy of the enlightenment that came with the legal Reformation, particularly in the latter part of the twentieth century. It is a great heritage of the High Court of Australia led by Sir Anthony Mason and it continued in the time that Sir Gerard Brennan was Chief Justice. In New Zealand, it is a great legacy of Sir Robin Cooke’s time as President of the Court of Appeal. So far, in most countries, it has basically survived the Counter-Reformation. In Australia the prognosis must be more guarded, so concerted and powerful is the movement to restore the “former condition of things”.

How, in the face of renascent formalism and serious community ignorance about civics, including the judiciary, can the truth of our legal system be told, so that it will be understood by lawyer and citizen alike? First, and most obviously, it is the responsibility of judges to drop the deception that law is mechanical, with all problems solved by just “applying” the law. Judges must tell it as it is. They must do so not just in private conversations with each other but publicly, so that citizens and fellow lawyers, politicians and media pundits can be offered the means to understand the true nature of the task in which judges are engaged. Judges face choices. It is inherent in their task which involves applying rules stated in words that are often ambiguous. Some can deny this. Some may wish it were not so. But it will not change the truth.

Another way to explain reality, as that great judge Lord Reid taught, is by humour. The magic words “strict logic and high technique” are less likely to be taken seriously since Lord Reid in 1972 exploded the formalist fairytale with sharp Scottish derision:

… Those with a taste for fairytales 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. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairytales any more.[67]

If humour does not do the trick, we must hope for enlightenment from plain speaking – from education of the public in the ways of their government. One outcome of the centenary of the High Court of Australia, has been an increase in public discussion in Australia of what courts actually do.[68] We need more occasions to focus public attention on the judiciary and how it works. We need more dialogue and explanation from judges themselves. Today Brezhnev and his apparatchiks, if they were to return, could not restore the falsehoods, fictions and illusions of the theology of the Party line. There may be occasional nostalgia for the pseudo ideology of the old regime and for its glory days. But there can be no going back to its deceptions and falsehoods. Where humour and rational explanations do not produce concord about judicial activism, a parable, may make the point.

The common law is not a formal garden. Like other gardens of the English tradition, it is not a place of manicured lawns. Only from a great height, can the logic, pattern and essential order of this garden be perceived. The judicial gardeners are busy. Every now and again they try to clean up a section of the garden. They pull out a few dead bushes. When this happens, some of those who knew the garden as it was get extremely angry. A few, of curmudgeonly disposition, go round muttering that the former state of things should be restored. Some, who are upset, scream and shout at the gardeners. They denounce them as horticultural “activists”. But overall, things have not changed all that much. It is how this garden has been maintained for centuries. It is how it will probably be for centuries to come. The remarkable thing is that, for all its many faults, the garden is much admired. Those who live elsewhere, come and look over the wall. Sometimes they shake their heads at the lack of logic and order; but in their hearts they know that the garden has been looking better in recent times. Indeed, there is probably no better garden in the world.

[1] M.H. McHugh, “The Law-making Function of the Judicial Process” (1988) 62 Australian Law Journal 15 at p. 18; Lord Radcliffe, Not in Feather Beds (Quality Book Club, London, 1968), xvi.

[2] J. D. Heydon, “Judicial Activism and the Death of the Rule of Law” [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493. The speech was originally published in Quadrant (Jan/Feb 2003; Vol XLVII, No 1), 9, and was also published in (2003) 23:2 Australian Bar Review 110. References are to the Otago Law Review version. See also G. Craven, “The High Court of Australia: A Study in the Abuse of Power” (1999) University of New South Wales Law Journal 216.

[3] T. Campbell, “Judicial Activism - Justice or Treason?” [2003] OtaLawRw 2; (2003) 10 Otago Law Review 307 at p. 314.

[4] Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 W.L.R. 218 at 233, per Sedley L.J.

[5] Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 C.L.R. xi at p. xiv.

[6] Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 C.L.R. xi at p. xiv.

[7] P. Ayres, Owen Dixon: A Biography (Miegunyah Press, Carlton, 2003), 292.

[8] J. D. Heydon, “Judicial Activism and the Death of the Rule of Law” [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493 at p. 515.

[9] Supreme Court Act 2003 (NZ); United Kingdom, Department for Constitutional Affairs, Constitutional Reform: A Supreme Court for the United Kingdom, Consultation Paper, Cmnd. 11/03 (2003).

[10] F. W. Maitland, Introduction, Selden Society Year Book Series, Vol 1 at p. xviii, cited by J. D. Heydon, “Judicial Activism and the Death of the Rule of Law” [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493 at p. 497.

[11] Rootes v Shelton [1967] HCA 39; (1967) 116 C.L.R. 383 at 386-387, per Kitto J., reversing Rootes v Shelton [1966] 2 N.S.W.R. 784.

[12] O. W. Holmes Jr., The Common Law (1881) (Mark De Wolfe Howe ed., Macmillan, London, 1968), 1.

[13] Cf. C. Guarnieri and P. Pederzoli, The Power of Judges - A Comparative Study of Courts and Democracy (English ed. C. A. Thomas) (O.U.P., Oxford, 2002), 70. The homogeneity was acknowledged by Lord Devlin as a relevant factor: P. Devlin, “Judges, Government and Politics” (1978) 41 Modern Law Review 501 at p. 505.

[14] This has been upheld as a universal feature of the administration of justice in the courts: Public Service Board of NSW v Osmond (1986) 159 C.L.R. 656, at 666, per Gibbs C.J. Contrast the position under civil law: M. Lasser, “Do Judges Deploy Policy?” (2001) 22 Cardozo L. Rev. 863 at p. 898.

[15] P. Parkinson, “Tradition and Change in Legal Reasoning” in P. Parkinson, Tradition and Change in Australian Law (2nd ed., LBC, Sydney, 2001), 177 at p. 195.

[16] McFarlane v Tayside Health Board [1999] UKHL 50; [2000] 2 A.C. 59 at 100-101, per Lord Clyde. See also Rees v Darlington Memorial Hospital NHS Trust [2003] 3 W.L.R. 1091.

[17] Cattanach v Melchior (2003) 215 C.L.R.1.

[18] St John’s Gospel, 16:21 in the Christian Bible. See C.E.S. v SuperClinics (Aust) Pty Ltd (1995) 38 N.S.W.L.R. 47 at 87, per Meagher J.A.

[19] Cattanach v Melchior (2003) 215 C.L.R.1 at 21, per Gleeson C.J.

[20] Cattanach v Melchior (2003) 215 C.L.R.1 at 22, per Gleeson C.J.

[21] Cattanach v Melchior (2003) 215 C.L.R.1 at 22, per Gleeson C.J.

[22] As stated in Livingstone v Rawyards Coal Company [1880] UKHL 3; (1880) 5 App. Cas. 25, at 39, per Lord Blackburn.

[23] Cattanach v Melchior (2003) 215 C.L.R.1 at 53, per Kirby J.

[24] Cattanach v Melchior (2003) 215 C.L.R.1 at 41, per Kirby J.

[25] Cattanach v Melchior (2003) 215 C.L.R.1 at 104, per Callinan J; cf. 215 C.L.R.1 at 83, per Hayne J; cf. Re Z: Decision No. 764 (1982) 3 NZAR 161; XY v Accident Compensation Corporation [1984] NZHC 21; (1984) 2 NZFLR 376; and SGB v WDHB [2002] NZAR 413.

[26] M. D. Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18 Australian Bar Review 4 at p. 19-20, citing Judge Jerome Frank, Law and the Modern Mind (Bretano’s, New York, 1931), 3, 13, 267ff.

[27] Cf. S. Todd, “Negligence and Policy” in The Struggle for Simplicity in the Law - Essays for Lord Cooke of Thorndon (P. Rishworth ed., Butterworths, Wellington, 1997), 105 at p. 110.

[28] H. L. Friendly, “The Courts and Social Policy: Substance and Procedure” in Judges on Judging - Views from the Bench (D. M. O’Brien ed., Chatham House, Chatham, 1997), 289 at p. 290.

[29] In the High Court of Australia, see most recently, Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 C.L.R. 318 at 324, per McHugh J.; [2003] HCA 28; 214 C.L.R. 318 at 368, note 99, per Heydon J. See also Kingston v Keprose Pty Ltd (1987) 11 N.S.W.L.R. 404 at 423-424, per McHugh J. (diss), approved in Bropho v Western Australia [1990] HCA 24; (1990) 171 C.L.R. 1 at 20, per Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 C.L.R. 355 at 381-382, per McHugh, Gummow, Kirby and Hayne JJ.

[30] Regina v Secretary of State for Health; Ex parte Quintavalle (on behalf of Pro-Life Alliance)

[2003] UKHL 13; [2003] 2 W.L.R. 692 at 697, per Lord Bingham.

[31] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31 at 82.

[32] L. Zines, “Legalism, Realism and Judicial Rhetoric in Constitutional Law” (Byers Lecture) (2002) NSW Bar Notes 13.

[33] [1951] HCA 5; (1951) 83 C.L.R. 1.

[34] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 C.L.R. 1 at 193. See also The Queen v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 C.L.R. 254; Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31 at 83; Parton v Milk Board [1949] HCA 67; (1949) 80 C.L.R. 229 at 260.

[35] W. W. Justice, “Two Faces of Judicial Activism”, Judges on Judging - Views from the Bench (D. M. O’Brien ed., Chatham House, Chatham, 1997), 302. See also Justice Ruth Bader Ginsburg as quoted in D. H. Zeigler, “The New Activist Court” (1996) 45 American University Law Review 1367 at pp. 1367-1368.

[36] [1992] HCA 57; (1992) 177 C.L.R. 292.

[37] In the High Court of Australia, Brennan J. dissented on the ground that the decision was an unwarranted intrusion into legislative and executive functions: Dietrich v The Queen [1992] HCA 57; (1992) 177 C.L.R. 292 at 322-323. Dawson J dissented on the basis that an accused had no right to be represented at public expense: at 349-350.

[38] There are similar decisions overseas: Powell v Alabama [1932] USSC 137; 287 U.S. 45 at 68-69, per Sutherland J. (for the Court) (1932); Gideon v Wainwright 372 U.S. 335 at 343-345, per Black J. (for the Court) (1963).

[39] The commentator G. Henderson called it a “political windfall for the recessed legal industry”: “March of the High Court Murphyites” Sydney Morning Herald, 1 February 1992, at p. 13. cf. L. Zines, “Judicial Activism and the Rule of Law in Australia” in Judicial Power, Democracy and Legal Positivism (T. Campbell and J. Goldsworthy eds., Aldershot, Ashgate, 2000), 391 at p. 393.

[40] [1992] HCA 23; (1992) 175 C.L.R. 1.

[41] (1996) 187 C.L.R. 1.

[42] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.

[43] [1951] HCA 5; (1951) 83 C.L.R. 1. See also Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31; The Queen v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 C.L.R. 254. In Austin v The Commonwealth (2003) 215 C.L.R. 185, a majority of the High Court held that an implication of the Constitution rendered unlawful a federal tax on State Judges’ pensions.

[44] See N. Savva, “Fischer seeks a more conservative court” The Age (Melbourne), 5 March 1997 at pp. 1-2. Appointments to the High Court of Australia since 1997 have been judged by many observers by reference to this proclaimed criterion.

[45] B. Heraghty, “Defender of the Faith? The Role of the Attorney-General in Defending the High Court” [2002] MonashULawRw 10; (2002) 28 Monash University Law Review 206. E. Campbell and M. Groves, “Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode” [2002] Public Law 626. The article describes an attack on the author.

[46] See, for example, S. Franks, “Political Criticism of Judges” [2004] NZLJ 11; F. Gibb, “Blunkett v The Bench: The Battle has Begun”, The Times Online, 4 March 2003.

[47] Stringer v Government of the Philippine Islands [1928] USSC 110; 277 U.S. 189 at 201, per Sutherland J.

(for the Court) (1928).

[48] A point made in Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 C.L.R. 1 at 175, per Dawson J. (diss.).

[49] For example, International Covenant on Civil and Political Rights, art. 25; Attorney- General (WA) v Marquet [2003] HCA 67; (2003) 78 A.L.J.R. 105 at 135-138; [2003] HCA 67; 202 A.L.R. 233 at 274-279, per Kirby J.

[50] Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 C.L.R. 313 at 398; cf. H. Stowe, “‘The Unruly Horse’ Has Bolted: Tinsley v Milligan” (1994) 57 Modern Law Review 441 at p. 444 referring to Tinsley v Milligan [1993] UKHL 3; [1993] 3 All E.R. 65 at 79, per Lord Goff.

[51] Dow Jones and Co Inc v Gutnick (2002) 210 C.L.R. 575 at 640. cf. State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 C.L.R. 617 at 633-634, per Mason J, at 652-653, per Murphy J (diss.).

[52] Cattanach v Melchior [2003] HCA 38; (2003) 215 C.L.R. 1 at 53.

[53] W. W. Justice, “Two Faces of Judicial Activism”, Judges on Judging - Views from the Bench (D. M. O’Brien ed., Chatham House, Chatham, 1997), 304.

[54] See eg. G. Craven, “The High Court of Australia: A Study in the Abuse of Power”

(1999) University of New South Wales Law Journal 216; Lord McCluskey, Law, Justice and Democracy (Reith Lectures, 1987) (British Broadcasting Corporation, London, 1987); cf. J. D. Heydon, “Judicial Activism and the Death of the Rule of Law” [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493 at p. 513.

[55] Nevertheless, international human rights law appears in different forms as an influence on the development of the common law (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 C. L. R. 1 at 42, per Brennan J.), the interpretation of statutes (Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 C.L.R. 309 at 363, per O’Connor J.) and, in my view, of constitutional interpretation (Kartinyeri v The Commonwealth (1998) 195 C.L.R. 337 at 417-419, per Kirby J.).

[56] H. Patapan, “High Court Review, 2001: Politics, Legalism and the Gleeson Court”

(2002) 37:2 Australian Journal of Political Science 241 at p. 251.

[57] G. Craven, “The High Court of Australia: A Study in the Abuse of Power” (1999)

University of New South Wales Law Journal 216; cf. J. Kelly and M. Murphy, “Confronting Judicial Supremacy: A Defence of Judicial Activism and the Supreme Court of Canada’s Legal Rights Jurisprudence” (2001) 16 Canadian Journal of Law and Society 3 at p. 7.

[58] J. Gava, “The Rise of the Hero Judge” [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747 at p. 757-758.

[59] M. Davies, “The Future of the Common Law: The Threat from Europe” (2003) 12:1 Commonwealth Lawyer 35 at p. 37.

[60] See Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 C.L.R. 512 at 591-600, per Kirby J.

[61] See P. Winfield, “Public Policy in the English Common Law” (1929) 42 Harvard Law Rev 76 at p. 100; R. Sackville, “Why Do Judges Make Law? Some Aspects of Judicial Law Making” (2001) 5 University Western Sydney Law Review 59 at p. 67; B. Horrigan, “Paradigm Shifts in Judicial Interpretation: Reframing Legal and Constitutional Reasoning” in Interpreting Constitutions - Theories, Principles and Institutions (C. Sampford and K. Preston eds., Federation Press, Sydney, 1996) 31 at p. 38.

[62] Wik Peoples v Queensland (1996) 187 C.L.R. 1 at 179-180, per Gummow J. See also M. D. Kirby, “Judging: Reflections on the Moment of Decision” (1999) 18 Australian Bar Review 4 at pp. 10-14.

[63] R. Smyth, “Historical Consensual Norms in the High Court” (2001) 37 Aust Journal of Political Science 215 at pp. 259-264.

[64] A. F. Mason, “The Judge as Law-Maker” (1996) 3 James Cook University L. Rev. 1 at p. 15; cf. P. Atiyah, Pragmatism and Theory in English Law (39th Hamlyn Lectures, 1987) (Stevens, London, 1977), 173.

[65] P. Atiyah, Pragmatism and Theory in English Law (39th Hamlyn Lectures, 1987)

(Stevens, London, 1977), 156.

[66] A. B. Handler, “Judging Public Policy” (2000) 31 Rutgers Law Journal 301 at p. 306.

[67] Lord Reid, “The Judge as Lawmaker” (1972) 12 Journal of Society of Public Teachers of Law 23.

[68] See Editorial, “A pillar of Australia’s democratic life” The Age (Melbourne), 9 October 2003, at p. 12; Editorial, “A century of judicial independence” The Advertiser (Adelaide), 10 October 2003, at p. 16.

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