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.
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.
Retrospectivity. Most parliamentary legislation takes effect only on or after enactment. This enables those affected by it to adjust to it in advance. But judicial legislation can only be retrospective. One or two flurries apart, our law knows nothing of "prospective overruling", by which a court changes the law for future cases, but not for the purposes of the particular case in which the change was made.
Decisiveness. There can be total chaos within, and total contradiction between, the reasoning of each of the judges favouring the majority orders. Thus in the late 1980s and early 1990s, one school of thought in the High Court considered that the crucial test for identifying a duty of care in the tort of negligence was "proximity". But not only was this not universally accepted but what it meant was not agreed upon. There is no case on the law of negligence in this period stating a rule of law about proximity used as the basis for a decision. Yet the proliferation of dicta caused endless speculation at all levels of the court system. The harm caused would have been much less likely if parliamentary legislation had been employed.
Inconsistency. When courts effect radical judicial change, it is not possible for them to carry out the necessary consequential changes to public institutions or governmental financial arrangements. This must be done by Parliament.
Thus when Mabo v Queensland (No 2) (1992) recognised native title, the then Labor government decided that it was necessary to create a legislative regime. The result was the Native Title Act 1993. Parliament, relying on what had been explicitly said in the Mabo case by Brennan J (Mason CJ and McHugh J concurring), assumed that it was to operate on the basis that Crown leases, like the Crown grant of a fee simple, extinguished native title.
Wik Peoples v Queensland (1996) departed from that assumption, over the dissent of Brennan CJ and McHugh J as well as Dawson J, to the consternation of politicians of all parties.
It is questionable whether it is the proper role of the courts to introduce radical changes of this kind which Parliament had not done. It is even more questionable for the court to introduce, in relation to a particular subject, changes which contradict the assumptions on which legislation specifically directed to that subject proceeded.
A recent practical example of the difficulties of radical judge-made changes in the law is Brodie v Singleton Shire Council (2001). It related to the liability of councils for defects in roads and footpaths. This is an important field: in New South Wales, for example, claims by pedestrians in relation to tripping on footpaths comprise the majority of claims against councils and constitute the single most expensive source of public liability claims. Last year the New South Wales government announced that it proposed to nullify the majority decision by legislation. Decisions like those in Brodie have the effect of requiring public expenditure on particular purposes to be increased, to the detriment of expenditure on other purposes. Those are choices conventionally regarded as being for the executive.
Indeterminate justifications. Finally, another undesirable element in some recent judicial changes in the law is that they are based on very indeterminate grounds. When judges detect particular community values, whether in the Australian community or the "international community", as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold.
Radical legal change is best effected by professional politicians who have a lifetime's experience of assessing the popular will. They may not be an ideal class, but they are better fitted than the courts to make radical legal changes.
For these reasons a court faced with the choice of doing justice according to the existing law and seeking to overcome injustice by effecting a significant change in the law should, apart from cases where no conflict with the legislature or the general legal and political order may arise, and no financial problem is likely to be created for public bodies, generally apply the existing law and leave it to Parliament to make a new and more just law if it desires.
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.