Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty
Kirby, Michael, Melbourne University Law Review
[This article was originally delivered as a contribution to a conversazione held in 2005 at the Melbourne University Law School in which judges, legal academics, journalists and others discussed issues of 'judicial activism'. Developing ideas expressed in his 2003 Hamlyn Lectures on the same topic, the author asserts that creativity has always been part of the judicial function and duty in common law countries. He illustrates this statement by reference to the Australian Communist Party case, and specifically the reasons of Dixon J, often cited as the exemplar of judicial restraint. He suggests that judicial activism' has become code language for denouncing important judicial decisions with which conservative critics disagree. By reference to High Court decisions on the meaning of 'jury' in s 80 of the Australian Constitution and cases on constitutional free speech, legal defence of criminal accused and native title, he explains the necessities and justifications of some judicial creativity. He illustrates the dangers of a mind-lock of strict textualism and the futility of media and political bullying of judges who simply do their duty. Finally he calls for greater civility in the language of discourse on the proper limits of judicial decision-making.]
CONTENTS I Nostalgic Thoughts II The Australian Communist Party Case III Textual Mind-Lock IV Original Intent and Ancestor Worship V Decisions under Attack A Constitutional Free Speech B Legal Defence for the Indigent C Native Title VI Media Bullies and Judges VII Conclusion
Constitutional dangers exist no less in too little judicial activism as in too much. (1)
I NOSTALGIC THOUGHTS
It is a special pleasure for me to present these thoughts in a session chaired by Sir John Young. It is 30 years since I first met him in his chambers in Melbourne as Chief Justice of Victoria. I had just been appointed to chair the Australian Law Reform Commission, a new federal agency established to advise on the reform of federal laws. I had the privilege of meeting the distinguished judges of the Supreme Court of Victoria who were members of the Chief Justice's Law Reform Committee. They included Sir Oliver Gillard, Sir Murray McInerney and Mr Justice Cliff Menhennitt. They were fine and talented judges. I learned much from them and from Sir John Young himself.
He, in turn, had learned from his mentors, especially Sir Owen Dixon. He served for a time as associate to that great Australian judge and Chief Justice. Dixon J has been praised for his adherence to the legal method. However, like all great judges of the common law tradition, he knew that the law cannot stand still. It moves and adapts to changing circumstances and different times. Those who deny this fact are wilfully blind to the realities of the judicial tradition to which we, the people of Britain, the United States and Australia, are heir. In our legal system, the judges are law-makers. They are not law-makers in the bold tradition of the other branches of government--the legislature and the executive. But law-making is part of the judicial function. Let there be no mistake about this.
To the blind or false-sayers who ignore or deny these simple facts, a question must be posed. Where else did the common law of England and its offshoots in America and Australia come from, if not from the judges? Look around the room of any judge or lawyer of our tradition and you will find bookshelves full of casebooks with legal exposition, explanation and development. It is not that the judges cannot help themselves. It is that, being a judge in our legal system necessarily involves the office-holder in a creative function. Recorded in those law books, indeed found on virtually every page, are the legal principles that form the bedrock of our system of law and precedent. It is as well that these home truths should be stated at the beginning of this conversazione so that those who live in the dream world where judges make no law can be given a rude awakening. …