The rule of law operates as a bar to untrammelled discretionary power. It does so by introducing a third factor to temper the exposure of particular citizens to the unrestrained sense of self-interest or partisan duty of other citizens or institutions - an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power.
It operates on principles which are known or readily discoverable, reasonably clear, apply uniformly and generally, not in a discriminatory way, apply prospectively, not retroactively and are in force through public trials operating on rational procedural rules.
It is largely judges, not jurors, who now decide disputes. In fulfilling that task, they need two things above all. One is a firm grip on the applicable law. The other is total probity.
"Judicial activism" badly impairs both qualities, and in that way tends to the destruction of the rule of law. The expression "judicial activism" is here used to mean using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case.
A favourite target of activist judges and their defenders is Sir Owen Dixon. In a speech delivered in 1955 at Yale Law School he quoted the following words of Parke B in 1833 approvingly:
Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise.
He did not think that the common law was frozen and immobile, fashionable though it is to attribute this caricature of a view to him. He contemplated change in the law as entirely legitimate. The changes could be effected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rule was first developed.
However, Sir Owen Dixon was of the view, which remains the law, that the change could not be generated by a court bound by the earlier decisions of courts superior in the hierarchy - only by a court which, while respecting its own earlier decisions, was free to depart from them. That approach had one great virtue. It subordinated individual judicial whim to the collective experience of generations of earlier judges out of which could be extracted principles hammered out in numerous struggles.
Since Sir Owen Dixon's retirement in 1964 and his death in 1972 an entirely different approach has grown up within the legal system.
It is right that English cases should no longer bind. But it is regrettable that even their persuasive value will steadily fall. These developments have greatly favoured judicial activism in Australia. Rising public addiction to increasingly complex litigation has also tended to facilitate the role of judicial activism in damaging both the probity of the courts and in consequence the capacity of the courts to retain a sound grip on the applicable law in particular cases.
A fundamental change in the judiciary has taken place which has caused two new types of pressure on probity. Many modern judges think that they can not only right every social wrong, but achieve some form of immortality in doing so.
Judgments tend to cite all the efforts of their author, of their author's colleagues, of other state courts and English courts and American courts and Canadian courts and anything else that comes to hand. Often no cases are followed, though all are referred to. There is much talk of policy and interests and values.
Trial judges permit themselves considerable liberties in distinguishing High Court decisions on very narrow grounds. The citations seem more designed to highlight supposed judicial learning than to advance the reasoning in any particular direction relevant to the issues between the parties.
There are two types of wholly illegitimate pressure pushing a judge away from probity, and evidencing judicial activism. The first is the desire to litter judicial decisions with the judge's opinions on every subject which may have arisen, however marginal. The second is the desire to state the applicable law in a manner entirely unconstrained by the way in which it has been stated before because of a perception that it ought to be different.
This is a summary of Justice Heydon's address to a Quadrant dinner in Sydney on October 30. The complete text, fully footnoted, is available from the Quadrant office.
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