How judicial activism results in the death of the rule of law in Australia

The first desire may be less blameworthy than the second, but it can be almost as pernicious.

A trial judge is obliged to find the facts in the case before him sufficiently to enable him to decide the case and to permit any appellate court to decide the case however the course of argument on appeal proceeds. But trial courts ought to be cautious in their exploration of well-settled law.

It is wrong to deal with issues which, even though they have been raised, are not issues which it is necessary for the specific outcome of the case to deal with. It is even worse to deal with unnecessary issues which have not been raised.

Courts are not supposed to decide questions which are merely moot, theoretical, abstract or hypothetical. They are not supposed to offer opinions which are merely advisory. The duty of a judge is to decide the case. It entails a duty to say what is necessary to explain why it was decided as it was, and a duty to say no more than what is necessary. To breach the latter duty is a form of activism capable of causing insidious harm to the rule of law.
The second danger for judicial probity arises where the court deliberately sets out to alter the law.

To this form of activism there are numerous objections. First, it rests on a contradiction. If judicial statements of the law are binding, save where the High Court chooses to overrule one of its own earlier decisions, radical new statements of the law should not be made and prior authority should not be lightly overruled. But if radical new statements are routinely made and established authority is almost nonchalantly departed from in later cases, then they can be no more binding, and no more likely to survive, than the earlier statements which have been overthrown. Even in the short life of judicial activism in this country, there have been extraordinary instances of the freaks of fortune and the instability of judicial grandeur.

The Mason court greatly widened the law of negligence. The court over which Gleeson CJ, who is not sympathetic towards judicial activism, presides, is generally, but not always, contracting it. The Mason court recognised an implied constitutional freedom of communication as a means of invalidating legislation. Then that implied constitutional term was said to create substantive defences in defamation proceedings.

Then, for different reasons, Mason CJ and Deane J retired. Hence the law was significantly modified again when the court, in a unanimous joint judgment, held that the Constitution could not directly affect the private rights of litigants by giving defamation defendants a defence, but the common law had to conform to the Constitution, and that a new defence of qualified privilege should be recognised.

What happened is perhaps within the rather loose accepted limits of modern judicial behaviour, but it is astonishing that the court gave leave to reargue the correctness of two decisions only three years old, and then departed from them.

Second, what one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hence the capacity of the law to command obedience.

Third, leaving aside the legitimate role of appellate courts in changing the law by a Dixonian process of development and adaptation, it is legislatures which create new laws. Judges are appointed to administer the law, not elected to change it or undermine it.

Different forms of assistance and the avoidance of incongruity and uncertainty. Legislatures have all the resources of the executive branch of government to assist them. These mechanisms are superior to the fumbling discussions which can take place when judges attempt to reason towards radical legal changes.

A small judicial change in the law to deal with an injustice in a particular case can cause other unchanged parts of the law to rest on contradictory principles. Uncertainty develops as to whether the unchanged parts of the law will be changed in future.