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October 9, 2003
I see that week-long celebrations to mark the 100th anniversary of the High Court began on Monday with a special ceremonial sitting of the full bench of the High Court in Melbourne. It had been appointed by the Judicary Act of 1903.
My interest was caught because of the politics involved. At one level the poltiics is embedded in the history of the High Court. The High Court is shifting away from an almost exclusive reliance on British and Australian law and judgements by British and Australian courts to embrace more international law, especially human rights law. It is an evolutionary shift and one associated with globalization but it opens up political tensions. These can be seen in the next level of politics of the anniversary celebrations.
The celebration was marked by a critique of Philip Ruddock, Australia's newest Attorney General for his earlier criticisms of judges, judgments and courts when he was Immigration Minister.
The criticism came from two sources. The first, was former Chief Justice Sir Gerard Brennan. He said that Ruddock's history of attacking the integrrity of the judicial process was inconsistent with the function of the attorney general. Brennan said that the attorney general's role was to defend the integrity of the judiciary against his ministerial colleagues.
The second criticism came from the Victorian Attorney-General, Rob Hulls, who was representing all state and territory attorney generals. He said that as Attorney-General Philip Ruddock had to put his criticism's behind him and become a defender of the judicary.
Earlier in the week Justice Michael Kirby had written that:
"Recent attacks on the court and on individual judges by people who should have known better undermine the rule of law. The lack of proper media coverage of the court's work, including informed criticism, is a depressing feature of the superficial world of infotainment. Yet it can still be said that the High Court has fulfilled its national role beyond the expectations of those who created it."
That national role, says Kirby, includes defending the constitution and establishing a single common law for Australia both in economic and social terms.
Hence we the politics surrounding the High Court. What is going on here? As I understand it most of the conservative criticism of the High Court has been directed at its judicial activism. A good example is the Quadrant speech given by John Dyson Heydon, before he was appointed justice of the High Court.
Judicial activism in Australia does not mean judges overturning laws on constitutional grounds. Nor does it mean judges on the High Court making controversial decisions which don’t necessarily reflect the views of the government of the day. It means interfering in politics.
Does not the High Court have a long history of judicial activism in this sense? There was Henry Higgins in the early part of the century; the development of a centralized federalism; the close alliance between a conservative High Court and the property classes; judges have gone on strike over their wages and work conditions; the Barwick's Court supported for tax avoiders; the discovery of implied freedom of speech in the Constitution; and Mabo and Wik.
Interfering into politics in what way? Through judicial progressivism. Such activism is at:
"...odds with the fundamentals of democracy... [since] seven un-elected judges should never be allowed to usurp the legislative power of elected Australian Parliaments. Legislative (and executive) power, according to the basics of liberal democracy, should be exercised by those whose authority is derived ultimately from the people. There can be no justification, legally or morally, for any form of judicial amendment to our constitution."
The politics is to prevent prevent the High Court from usurping parliamentary control of ministerial decisions and causing the breaking down of the separation of powers doctrine. This is the key to understanding what is meant by judicial activism.
More neutrally, judicial activism refers to the politics of the High Court involved in importing a doctrine of Lockean rights that is missing from our Constitution under the cloak of interpretation.
Update
An example of the conservative criticism of judicial activism is provided by Janet Albrechtsen's Leave policy to the law-makers. She is criticising Jane Stapleton's view that her "hope is that in contrast to our past, the next 100 years will deliver the promise of our existing legal system to be a 'living instrument', to be inclusive, address disadvantage, cherish difference and confront historical wrongs".
Albrechtsen responds that this makes judges policy makers.
"Stapleton's vision represents the worst kind of rule by personal conscience. Some judges love it because, with a flourish of the judicial pen, they get to play grand policy-maker. But judges are ill equipped for the role. Their expertise in the law and sifting through evidence does not translate into expertise in formulating policy. Unlike politicians, they are not tested by an opposition; on the contrary, they are usually surrounded by sycophants. Neither do they have experts on hand to advise them about economics and cost-benefit analyses. So, when they make policy, they often botch it."
With conscience-driven judicial decision-making judges become social engineers. Hence the importance of checks and balances on judges who play policy-maker. The most obvious check is criticism of judges by politicians and the media who should be taking an informed fight to the judiciary when it oversteps the mark. Without sensible but vigilant criticism, judicial activism will result in a profound alteration to the separation of powers.
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