Showdown at the High Court Corral?

Despite still being swamped with exam marking and administrative tasks at CDU, it’s past time to inject a bit of legal content into Troppo Armadillo, which seems of late to be evolving de facto into an online literary magazine. Not that there’s anything wrong with that, mind you; it’s a welcome development as far as I’m concerned.

Nevertheless, TA began as a blog focusing on current political and legal issues, so it’s not unreasonable for readers to expect a few politico-legal posts. Justice Michael Kirby’s recent utterances in defence of judicial activism seem like a good place to start. They’ve generated quite a bit of reaction from the Right e.g. Janet Albrechtsen in the Oz and the blogosphere’s own Tim Blair in the Bulletin. Responses of that sort aren’t all that surprising given some of Kirby’s language, especially his comment that “political leaders and media pundits, together with a few local lawyers, have like naughty schoolboys jumped with gusto onto the Australian ‘judicial activism’ bandwagon“.

What’s marginally more surprising is that Albrechtsen, who by all accounts has a law degree, used Kirby’s remarks merely as a springboard for a spray against “judicial activism” by the NSW Industrial Relations Commission. The only problem is that most of the IRC’s functions aren’t judicial at all. Fixing industrial awards, enterprise bargains and the like is quintessentially a law-making function, where accusations of “creativity” are just misconceived. To be fair, Albrechtsen seems mostly to have had in mind some rather bizarre interpretations of NSW wrongful termination laws by the IRC, a function rather more judicial in nature than fixing industrial awards. Nevertheless, Albrechtsen’s column could hardly be said to make a coherent contribution to the debate about “judicial activism”, such as it is.

Actually, Kirby’s remarks read as a whole are not quite as extreme or inflammatory as their media coverage suggests. They were part of a series of four Hamlyn Lectures at Exeter University titled “‘Judicial Activism’, Authority, Principle and Policy in the Judicial Method”, and you can read slightly edited versions here (1), here (2), here (3) and here (4). This observation from lecture 4 (delivered two days ago), for instance, is one with which I wholeheartedly concur:

Somewhere between the spectre of a judge pursuing political ideas of his or her own from the judicial seat irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical nor excessively creative.

For anyone with even a little understanding of law, the debate isn’t between simplistic extremes of “creativity” versus interpretation of a self-evident body of law only capable of a single faithful interpretation. As Kirby colourfully comments:

The common law is not a formal garden. Like other gardens of the English tradition, it is not a place of manicured lawns, observing a strictly preordained theory with a coherent design. Only from above, from a great height, can the logic, pattern and essential order of this garden be perceived. The judicial gardeners are busy. 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.

Even so, there’s no doubt Kirby is a judicial gardener more prone than most to ruthless pruning and planting of exotic species. He’s the sort of Backyard Blitz host who’d have the surprised property owners smiling tensely at the end of the program, before proceeding to rip out the puce pavers and contrasting pergola and re-installing the trusty Hills Hoist, barbie and rusting kids’ swing set as soon as the cameras stop rolling.

Actually, one of the more interesting aspects of Kirby’s spray is that his brother High Court Justice Dyson Heydon is undoubtedly one of the “few local lawyers” Kirby sees as behaving like “naughty schoolboys” for promoting a “legal counter-Reformation” by advocating a return to legal formalism and the “strict and complete legalism” of Sir Owen Dixon. Kirby labels such approaches as “absurd”, “dishonest”, “reactionary”, “extremist” and “duplicity”. Not coincidentally, Justice Heydon gave a speech about judicial activism shortly before his appointment to the High Court, in which he condemned excessive judicial activism in forthright terms and fairly clearly advocated the re-embrace of Dixonian legalism. I blogged about Heydon’s speech here. I’d love to be a fly on the wall in the High Court Justices’ Chambers when Justice Kirby returns from his trip to England.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Geoff Honnor
Geoff Honnor
2024 years ago

“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”

His partner, Johan, could perhaps bear bitter testament to the accuracy of that observation…………

2024 years ago

The last time Albrechtsen was coherent she was exposed as a fraud and liar; clearly she’s learnt her lesson.

Got quite a chuckle out of the second paragraph of your final quotation, though I’m not sure why, as there’s no obvious joke there. Perhaps my sense of humour is getting more sophisticated. (cough)

(It would have been interesting to see what Heydon would have made of the Mabo case were he on the HCB at the time — and, especially, of Gaudron’s judgment.)

2024 years ago

I thought a similar thing when I read an article in the Herald-Sun. The title was something like “Kirby for judicial activism”, but the quote was simply him acknowledging the law-making function of judges with no comment made on its scope. I began reading the article thinking “oh whats Kirby gone and done now?” but ended up quite disappointed!

Herbert Thornton
Herbert Thornton
2024 years ago

Judicial activism is very dangerous indeed. If a judge wants to change the law or make new law, he should run for election as a Member of Parliament.

Canada is an alarming example of what happens when Parliament begins to abdicate power to the judiciary, as it did when it enacted the (so-called) Canadian Charter of Rights and Freedoms that included a power for the Judges to over-rule Acts of Parliament.

The Judges on the Supreme Court of Canada have taken every opportunity to interpret their increased powers as widely as they can. They have even handed down decisions of sorts that Parliament never intended they should hand down.

We have all heard of how the Council of Guardians in Iran over-rules the Iranian Parliament whenever the Council (composed of Muslim theologians) thinks Parliament has done something contrary to the Koran. The Supreme Court Of Canada judges are taking on a similar role – except that instead of imposing their notions of what the Koran means, they increasingly impose their own (usually politically correct) notions of what the Charter means, or even what they think it ought to mean. Given an inch, as the old saying goes, they have taken a mile.

It sounds melodramatic to say so, but the shift of power from Parliament to the Judges is uncomfortably like incipient fascism.