The judiciary in Australia has come under heavy attack on several occasions in the past two decades or so for what is called judicial activism, or judicial adventurism.
This week the High Court’s second-longest serving justice, Michael Kirby, explained the need for restrained judicial activism in a series of lectures he was invited to give in England.
The attacks of judicial activism in Australia came in several sweeps. First, state premiers were incensed that the High Court allowed the Commonwealth’s foreign-affairs power to strike down state laws and interfere in what they saw a state matters.
Then Ministers in the Keating Government were incensed at the High Court. The court struck down Labor’s attempted prohibition of political broadcasting on the ground that it was offended an implied right of freedom of political communication in the Constitution. Then it struck out a Labor Member’s defamation action on the ground that the Constitution protected political communication. Some called for the appointment of black-letter lawyers to the Bench to prevent this judicial activism.
Then Coalition Members and Ministers berated the court for judicial activism over native title. Acting Prime Minister Tim Fischer called for the appointment of capital C conservatives to the Bench.
Accusations of judicial activism are not especially new, particularly in Australia. In the 1950s Labor then the Liberals attacked the court as being anti-democratic and/or adventurist when it struck down the nationalisation of the banks and the abolition of the Communist Party.
The critics of the court argued that the judges should only apply the law, not make new law. That has been seen (misguidedly) as the conservative view. The idea is that judges apply existing law to new situations – an adherence to strict legalism.
Kirby referred to this as the noble lie. He welcomed the honesty or more recent decades that acknowledged that judges sometimes applied policy considerations to decisions and hence made new law.
This is probably perplexing and troubling for many who think that parliament makes the law and the judges apply it. To have unelected judges making things up seems profoundly undemocratic. However, the infinite complexity and unforeseeability of human affairs makes it inevitable. Humans have disputes. Some of them present novel circumstances. Sometimes there is no specific law or precedent that fits the new circumstances. New law has to be constructed using analogy and sometimes policy considerations.
In his lectures Kirby said it was better to acknowledge policy considerations and state them as such. Judges had to make law. Judge did have choices to make. He argued that there was no cause for alarm because there were safeguards. Judges had to give reasons for their judgments. Judges could not make law willy-nilly. They were constrained by the cases that came before them, unlike Parliaments.
New law often sparks controversy. Those who do not like the new approach – usually conservatives for want of a better word — often resort to the slogan of “judicial activism”. But when you start pulling the accusations apart it seems that “judicial activism” is little more than a court or a judge ruling in a way you don’t like.
A case earlier this year showed how muddling an unhelpful the label “judicial activist” is.
In Melchoir’s case a doctor performed quite competently a sterilisation operation on Mrs Melchoir. But he had “uncritically accepted his patient’s assertion that her right fallopian tube had been removed” in an earlier operation he should have advised her to check if that had really been the case. It had not. Mrs Melchoir became pregnant as a result of the doctor’s negligent advice and failure to warn.
The question was whether the doctor should pay for the upkeep of the child.
It was a novel question. By analogy with old law the majority (including Kirby) held that a negligent person was liable for all the foreseeable damage that would flow from the negligent action. The cost of bringing up a child was quantifiable and was damage that flowed.
Conservatives, by and large, did not like this result. But they had difficulty applying the label “judicial activists”, even though some did anyway. The difficulty arose because it was some of the minority who would have delivered the correct result as far as many conservatives are concerned engaged in the techniques of judicial activism. They added a spot of religion, policy and ideology to the question. They said that the birth of a child was always a blessing and that the sanctity of life meant that no economic value could be put on it. They said parents might exaggerate the costs so as to unburden themselves of their obligations to bring up the child. There is no direct legal authority to support these views. They are more policy, ideology and novelty than strict legal reasoning from past cases.
One member of the minority, Justice Dyson Heydon, had before his appointment to the court attacked judicial activism. Yet in Melchoir’s case he was being activist, novel and attentive to policy in rejecting the damages.
The case shows that it is silly to put judges in boxes with labels.
In a way the judicial activists are the true the conservatives. They display all the hallmarks of conservatism: they are realistic, pragmatic and believe in long-term nurture of institutions through gradual change, rather than strict adherence to a set of rules, a method or an ideology.
The judicial activists, by occasionally making new law and realistically acknowledging that they do it, have been the great conservators of the common law over 800 years.
Kirby said the common law was not a formal garden, a place of manicured lawns, observing a strictly preordained theory with a coherent design.
“The judicial gardeners are busy,” Kirby said. “Every now and again they try to clean up a section of the garden. They pull out a few dead bushes. They replant the remainder in a more orderly fashion. 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 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.”