The Three 'R's of Recent Australian Judicial Activism: Roach, Rowe and (No) 'Riginalism

Article excerpt

[In this article the author argues that two recent High Court of Australia decisions, Roach v Electoral Commissioner and Rowe v Electoral Commissioner, are prime examples of judicial activism, of judges employing interpretive techniques that have the effect of significantly inflating their own discretionary powers at the point of application of the Constitution. Indeed, he argues that these interpretive techniques would almost certainly be rejected by voters pondering a more from parliamentary sovereignty to a written constitution were these techniques, and their effects, spelt out in advance. He considers those two decisions in detail and then concludes by noting several unpalatable implications of the thinking underlying them.]


  I Introduction
 II Context
III Roach and Animal Farm Judging: Four Years Good, Two Years Bad
 IV Rowe and Rowing Gently Down This Stream
  V Concluding Remarks on Judicial Activism


Judicial activism is a hotly contested notion or concept, (1) one that usually carries with it pejorative connotations. At its heart, the label 'judicial activism' suggests some degree of illegitimacy. The core charge is that the judges have exceeded their proper role in a democracy. They have moved from the many grey areas, or penumbras of doubt, (2) involved in interpreting the laid-down statures and constitutional provisions (where disagreement and diverging answers are only to be expected from individual judges who bring differing values, concerns, emphases and intellectual abilities to the task) into something that no longer looks like interpretation. It looks more like legislating from the bench, otherwise described as point-of-application judges imposing their own first-order moral and political preferences, judgements and sentiments on all the rest of us.

The gist of the judicial activism complaint, then, is a complaint about what the unelected top judges are doing--that they are gainsaying or second-guessing or circumscribing or redirecting the elected branches of government without any legitimate warrant or grounds for doing so.

In that above sense the judicial activism charge is a serious one to make. Notice, however, that it does not necessarily connote bad faith. The gainsaying, second-guessing and circumscribing can be done not only to achieve what are believed to be good substantive outcomes (which can motivate even bad faith judicial activism), but also in the belief the constitutional materials and jurisdiction's rules of recognition (3) do allow such actions. The latter belief, in other words, can be honestly held by the judges. It is just that disinterested observers may disagree and think such a belief far-fetched in the particular circumstances. Still, that does not amount to bad faith on the part of the judge.

Accordingly, at least in my sense, judicial activism need not be an exercise in bad faith interpreting. This complaint or gravamen is broad enough also to encompass implausible and unconvincing interpretation, where the legal materials do not support the substantive outcomes (however worthy) that judges believe are possible.

Of course the line between interpretation that constitutes judicial activism and interpretation that does not will be drawn in different places by different people. Almost everyone might recognise the possibility of judicial activism in the abstract, but in any particular case where that charge or allegation is made, you are likely to find smart, well-informed, nice people simply disagreeing about the merits of that charge. I accept that reality up-front.

Nevertheless, in the rest of this paper I will seek to convince the reader that two recent High Court of Australia decisions are prime examples of judicial activism in my above sense; they are rather blatant examples of illegitimate judging techniques or interpretive approaches taken by the majority Justices. The fact the outcomes that are achieved in both instances are likely to be seen by many (me included) as on balance a good call in cost-benefit terms (if one were in the position of legislating on a blank slate) does not in some magical, ineffable way make the illegitimate interpretive approaches of the majority judges thereby acceptable or legitimate. …