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February 11, 2005
This is an interesting speech by Chief Justice Murray Gleeson on the rule of law under constitutional liberalism.
Gleeson affirms the principle that it is for the judiciary, with guaranteed security of tenure, and not the government, to declare what the law is. He says that this principle is of basic constitutional significance. His argument is built around the judicial method of reworking the common law:
"Whilst many observers of judicial development of the law concentrate only on outcomes, and either applaud or deplore results, the real test of the legitimacy of this activity lies in the process. So long as judges continue to accept the constraints inherent in the judicial method, working from a base-line of existing principle, and solving new problems, or re-evaluating old solutions, consistently with principle, then they can provide an effective answer to a criticism that they are trespassing into a field which belongs to Parliaments."
The judicial method is the judicial activity of making, refining, and developing the law. Without this familar judicial activity much of our law would be either non-existent or anachronistic.
Gleeson then addresses the constitutional significance in terms of the collison between Parliament, the executive and the judiciary.He says that the judicial function is carried out against a social and political background in which parliament intervenes, by way of legislation, in a wide range of subjects which in previous times were left to lawyers and judges. Moreover:
"...parliaments are now democratically elected, and claim to represent the will of the people. Judges, who have been making and developing the common law for centuries, are categorised as unelected and relatively unaccountable, and the judicial role is seen as undemocratic. What judges are doing has not changed. The change that has taken place is in context in which they are doing it. The legitimacy of judicial law-making is questioned in an age when the public equate legitimacy with democratic election and direct accountability."
Hence the constitutional conflict marked by the sign of judicial activism.
Gleeson adds:
"It is not only, or even mainly, the role of judges in developing the common law which is likely to bring them into collision with governments and parliaments. Three other areas of judicial activity require particular mention: constitutional interpretation; the developing importance of human rights law; and judicial review of administrative action."
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