Hon Justice Michael Kirby AC CMG


High Court of Australia




Delivered 19 November 2003


University of Exeter, UK




The contributions of the High Court of Australia to the legacy of the common law might seem a natural theme for me to address at the time of the court's centenary. However, in the world as it is now, it is inappropriate to limit myself to provincial concerns. I therefore tackle a topic that transcends national borders and attracts professional concern in every common law country.


"Judicial activism� is my topic. It is one that is, or 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" � even metaphorical "treason" against the Constitution � the time has come for citizens to sit up and pay attention. If the accusation is even partly correct, the citizens are entitled to explanations, perhaps even redress. If the accusation is false, healthy civic discourse requires that fact to be demonstrated.


Most lawyers of my age, raised in Australia or other Commonwealth countries, accepted at the beginning of their life in the law a rather strict theory about the limits of the power and legitimacy of a judge in creating new legal rights or imposing new legal duties on fellow citizens. Occasional judicial remarks might hint that the truth was otherwise. But the fundamental doctrine remained that a judge applied the law. A judge did not make law.


To this day that simplistic notion is treated as self-evident by many editorialists and even some disgruntled lawyers. It probably represents the belief about the judicial role shared by many citizens. It taps a reservoir of comfortable verities. It is reinforced by a 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�. It is wrong. Yet part of its survival can be attributed to some very English features of the common law. These have nurtured a mechanical notion of judicial work although the sunlight of truth and reality should long since have dispelled such myths.


The theory in England, at least from Tudor times, was that judges had to find their authority in the text of the law, just as the new bishops 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 Church, authority had led to excessive, even absurd, claims of power, immunities, indulgences and luxuries. Churchmen had lost their connection with the ultimate source of their authority, the Bible. Even 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�.


In the United States, judges after the revolution began to interpret and apply the ambiguous language of the new Constitution. Their work showed that choices were inevitable in judicial work. Yet for all this, by the 19th century the "oracular view of the judicial function" took hold of most of the English judges. This was also important for England's colonies. With the growth of parliamentary legislation, this view that judges merely declared the law was reinforced. The judicial function was basically viewed as one of verbal analysis and textual application.


This image of the law reflected the preferred theory of most judges of English-speaking countries well into the second half of the 20th century. Whenever tempted to depart from the words of the past, they would usually pull themselves back to the "noble lie". They did not �make� law, they �applied� it. They would say this in the belief that any acknowledgment that they enjoyed a substantial role in expressing the law and applying it in new ways would defy accepted political theory. It would upset other lawmakers.


Distance from the heart of a great empire sometimes makes those far away more extreme in their imperial ideology: keener than those at its seat to cling to its orthodoxy. Over most of the 20th century, in countries like Australia, the lawyers who occupied the highest positions in the judiciary had imbibed and accepted their legal doctrine from London. 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) continued to proclaim the doctrinal impermissibility of any judge-made innovation.


Examples of this trend may be identified as late at 1978, when a question arose before the High Court of Australia concerning the use of imported English law. The Court held that a convicted felon, Darcy Dugan, could not sue a newspaper for defamation because of the ancient English law of attainder and corruption of the blood. He had been sentenced to death and although that sentence was later commuted, he lost his civil right to sue. The Australian judges scoffed at argument that these doctrines had not been received into the New South Wales colony at the time of British settlement. It was submitted for Mr Dugan that, when Australia was settled, there were so many convicted felons in the Australian colonies, that to deprive them all of civil rights was such an affront to the rule of law that it made the adoption of the old English law of attainder unsuitable to Australian conditions. That submission was rejected. Application of the old rule was regarded as a positive virtue. In the High Court, Justice Murphy alone dissented.


Nothing much changed in Australia until well into the 1980s. In part, the resistance to change reflected the personalities and opinions of the judges. In part, the Australian restraint may have arisen because, until 1986, most Australian judges were still looking over their shoulders to signals from the Privy Council in London.


Over and above these causes of apparent judicial passivity was one potent influence. It was the impact on the Australian legal psyche of the doctrinal position adopted by Sir Owen Dixon. Dixon had served as a Justice of the High Court of Australia from 1929 and as Chief Justice for 12 years after 1952. By the power of his legal knowledge, the wisdom of his judgments and the effectiveness of the exposition of his philosophy in and out of court, 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.� 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".


Even today, long after he has gone, the power of Dixon�s exposition and example continued to influence the notion of what it is to be a judge in Australia. 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.


Dixon's views � and like opinions of exponents of the same outlook � became an ideology. They provided a banner under which now marches a motley band of followers. Some of today�s �strict legalists� are merely nostalgic, like those 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 perceived frailties. But some are politicians or polemicists of differing stripes who know nothing of the common law and its marvellous creativity. These bully boys (and girls) are contemptuous of fundamental human rights and jealous of any source of power apart from their own. Some represent powerful interests who hate it when judges 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.


A return in the 21st 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, accept 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.


To return to Dixon�s "excessive legalism" would be to take a journey back into a world of deception, where judges pretended to a mechanical function whilst knowing, when they stopped to think about it, that it is inevitable that they play a creative role in making law. Today there is room for legitimate differences over the occasions and scope of creativity proper to judges. But 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 past 20 years could be lost.


If any judge or lawyer in the United Kingdom feels safe, in the current enlightenment of the British judiciary, from a return to the "noble lie", that judges merely apply the law, they need only reflect on the comparative brevity of that enlightenment, the determination of the forces now aligned against it and the course which the debate on judicial activism has taken in other countries in recent times. With the global common law come international movements, both for good and ill. As the United Kingdom moves towards the creation of its own new Supreme Court � even if it is one very different from those of the United States and Australia � it is as well to be alert to the controversies that tend to beset such courts. The visibility, mode of appointment, functions and public role of the judges of such 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 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.


(*) The full text with references will be published in 2004 by the Hamlyn Trust, England.