High Court of Australia




Delivered 24 November 2003


University of Cardiff, UK  3. COUNTER-REFORMATION
Just as we were feeling safe in a new era after the legal Reformation and excited at the challenge of describing a new judicial method, a Counter-Reformation was launched by old-style formalists. To give a political analogy, it is as if the glasnost of Gorbachev was overthrown and the old guard of Brezhnev & Co came knocking on the door with all the old falsehoods and fictions. My object is to give a warning about the strategies of those who lead the call to return the law and the judiciary to the land of fairytales.
The expression "judicial activism" need not have been a pejorative label. Activism of a sort was the very essence of the judicial method of the common law. Where else, one might ask, did the common law and the principles of equity come from, if it was not from judicial activity over 800 years?
It is written constitutions, with the politico-legal judgments that they inevitably demand, that have attracted the most furious accusations of judicial activism by those who have disagreed with particular rulings. When, in the early years of the Supreme Court of the United States, Chief Justice Marshall asserted the power of his court to declare an Act of Congress, or the conduct of federal officials, void, he and the Court were furiously attacked by President Jefferson. The Justices of the Supreme Court were accused of subversion of the popular will. It has been a recurring theme in constitutional adjudication in all common-law nations ever since.
The United States probably still wins the prize for the most extreme instances of attacks on the judges. One federal judge in the United States recently wrote of how his decisions, though always subject to appeal, have resulted in the inclusion of his name on a "10 Most Wanted list" drawn up by politicians. He 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".
In Australia, consistent with our tendency to use robust language, strong epithets are often deployed to cut down so-called tall poppies. Not surprisingly, political leaders and media pundits, together with a few local lawyers, have like naughty schoolboys, jumped with gusto onto the Australian "judicial activism" bandwagon. For instance, following the 1996 Wik decision of the High Court, concerned with the rights of Aboriginal claimants to native title over their land, the acting Prime Minister (Mr Tim Fischer), promised that the federal government would appoint "Capital-C Conservatives" to replace retiring Justices of the High Court. His intervention earned him a reproof from Chief Justice Brennan. It procured an apology. But that was all.
The traditional defender of the federal judiciary in Australia, the Federal Attorney-General, did not intervene to defend the judges or their courts. This was so although he must have known that they could not themselves effectively do so without damaging their offices. Instead, he maintained a Trappist-like silence. He also did so when I was attacked in the Federal Parliament.
We do well to remember these things in Australia in the warm after-glow of the centenary celebrations of the High Court of Australia. Judges should not become too starry-eyed. They need to keep their feet planted firmly on the ground. Any judge today – in Britain, Australia or anywhere else – who thinks that he or she is immune from this new tendency towards invective against judges had better think again. Although the High Court of Australia, like other final courts, has always been the subject of criticism, the attacks in recent times have become more vituperative, more sustained and more intensely personal. It is not a development healthy for our institutions of government.
There is evidence that a similar movement may be getting underway in the United Kingdom. In 1995 the Home Secretary, Mr Michael Howard, launched a series of vitriolic attacks on the judiciary. Following one case, in which Justice Dyson in the High Court in London ruled that the Home Secretary had acted unlawfully in respect of prisoner appeals, Mr Howard declared: "The last time this particular judge found against me … the Court of Appeal unanimously decided that he was wrong". Ten years earlier, such a statement would not have been made by a Minister of the Crown.
 In more recent times, the present Home Secretary, Mr David Blunkett, has criticised judges in similar terms for performing their functions of judicial review of his administrative decisions. His attacks on the judiciary provoked a leading lawyer, Lord Alexander of Weedon QC, to declare that the Minister was "deeply antagonistic to the judiciary and to the legal profession when his ministerial wishes are thwarted". In Australia, under successive governments, there have been similar antagonists.
As the functions of the courts in judicial review, and in the application of the new British Human Rights Act are enlarged, and as new functions to invalidate laws and administrative actions are to be imposed on the judiciary by the proposed European Constitution, judges and lawyers in Britain must get ready. If the American, Canadian and Australian experience is any guide, the full force of the legal Counter-Reformation will not be far away.
The American, Canadian and Australian experience shows that the vituperation can come from both sides of politics. Whatever its origin, “judge-bashing” is dangerous. It threatens public confidence in the independence of the judiciary. It weakens faith in the decisions of judges. Worst of all, judge-bashing may bully many judges back to formalism. Adhering to extreme judicial restraint tends to fend off the political firestorms that restatements of the law of any controversy are likely to whip up. The attacks on the judiciary in many countries in recent years may, in some cases, have increased doubts about the judicial capacity to improve and renew the law.
Whilst noting these dangers, we should examine some of the more thoughtful contributions of the Counter-Reformation. When the agitprop of the rhetoric is stripped away, there sometimes remain valid ideas which the less polemical opponents of realism and transparency in judicial reasoning have expressed.
One derives from the separation of powers principle. That principle recognises that the judiciary does not enjoy the great powers of law-making that belong to the parliament and the executive. This basic point constitutes a salutary and constitutional reminder of an important, even basic, principle. An elected legislature has both the legal and moral responsibility for making the most substantial changes in the law. To the extent that judges assume that responsibility – where it should and would have been performed by elected officials – those judges diminish the healthy democratic element in lawmaking.
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 enshrine and that human rights instruments uphold. Such experts, including very learned judges, may sometimes have insufficient empathy, or experience, to determine the suitable shape of the law on a particular topic. At least, this may be so where large questions of policy are involved.
Like every judge, I have, from time to time, obeyed these admonitions of restraint. I did so in a case envisaging an increase of landlord liability in negligence which I saw as having large economic potential. 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. I did so in a case concerning liability for the costs of raising a child born following negligent advice about an incomplete sterilisation operation. In that case, the application of the basic common law principles of recovery for negligence favoured the claimants. To cut damages off arbitrarily involved "judicial activism" which I thought was a matter for Parliament, not the courts. On this view, it is legislators and not the judges who should wear the accountability for arbitrary departures from basic legal principle governing recovery. However, pundits, commenting on the case, portrayed the adherence of the Court majority to the common law principle as "judicial activism". In fact, it was the contrary. Perhaps this only goes to prove that judicial activism exists in the eye of the beholder. It is a phrase used to wound and curse and belittle its object rather than to invite a reasoned debate about what the law says, and should say.
Another context where the more shrill Counter-reformationists are particularly vocal involves cases where legally enforceable rights have been introduced into the common law system. In most common-law countries the challenge of marrying the new law of human rights and the old law must be accepted by the courts. It must occur although the enthusiasm for involving judges in human rights decisions is by no means universal, including among judges themselves. In Australia, we have so far remained a citadel of resistance against a constitutional bill of rights. But in the United Kingdom (and virtually everywhere else) the new era of human rights law has dawned.
Even before the Human Rights Act came into force in the United Kingdom, judges were using European human rights law in expounding the content of the common law. Despite the critics of this process, it is natural and inevitable that contemporary judges should have regard to this large body of international legal principle on human rights. This is the world we live in. Human-rights principles provide a source for consistent judicial decision-making where there is a gap to be filled in the common law or an ambiguity of the written law to be resolved. As Lord Steyn has pointed out, in interpreting and applying basic human rights, "the straight-jacket of legal logic is not enough". So much may be accepted. But what is to be put in its place?
Ironically, despite the texts and all 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" 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. They quake in their shoes at the thought of "hero judges" released to "strut their stuff". It is too late, in their view, to save the United Kingdom, Canada and India 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.
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 old law without considering the context in which it must operate and its justice and conformity to basic principle. The call for a return to the “strict and complete legalism” must be rejected as the fairytale that the legal Reformation taught it was. But what do we put in the place of fairytales?
* The full text with references will be published in 2004 by the Hamlyn Trust, England.