Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.

 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate


On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.


RSS 2.0

The High Court must address public misgivings about judicial activism

By Bryan Horrigan - posted Wednesday, 8 October 2003

The High Court's centenary this week rightly brings celebrations of its triumphs as the ultimate constitutional umpire and defender of the rule of law. Yet there is still public confusion about the Court's law-making. Both the Court and the Howard government have institutional roles in raising the level of public legal literacy and undoing the harm caused by unjustified political complaints of judicial activism.

High Court Chief Justice Murray Gleeson currently makes much of the seven judges' failure to split along lines matching the political colours of the governments appointing them. However this does not prove that the Court is completely apolitical. Partisan politics is only one way in which politics, ideology, and values could affect law.

The most pernicious lingering myth is that only parliaments make law, judges simply apply it, and judges who change precedent too much or against political expectations are undemocratic judicial activists. In a new book, I argue that this public misconception is exacerbated because different sections of the Australian community hold fundamentally different views about the nature of law and justice, so that we are often stuck talking at cross-purposes about legal controversies.


Labelling judges as undemocratic activists is sometimes just code for governmental dissatisfaction with inconvenient judicial outcomes, especially in politically sensitive areas like native title and immigration detention. Incoming Attorney-General Phillip Ruddock must now defend courts which he and other Howard government ministers have accused of activism.

Still, governments don't mind judicial activism when it suits them politically. Liberal US Supreme Court judges first clothed women's abortion rights with constitutional protection in the 1970s, but President George W. Bush won't lose too much sleep if conservative judges roll back that protection. To paraphrase one American judge, calls for judicial intervention or restraint depend on "whose ox is being gored".

Just before his elevation to the High Court last year, Justice Dyson Heydon castigated what he perceived as the Court's judicial activism mainly during Sir Anthony Mason's tenure as chief justice. The Mason years produced landmark decisions like Mabo and implicit constitutional protection of political free speech. Instead, Heydon endorsed the legalistic philosophy of judging associated with the much-respected Sir Owen Dixon. He called for judges to leave to politicians any ground-breaking legal changes which might disturb the settled legal and political order.

This approach favours incremental law-making, the collective wisdom of precedent, and Dixon's methodology of "strict logic and high technique". It views judicial activism monolithically, and demonises it as a threat to the rule of law. However, the suggested dichotomy between legalism ("hooray") and judicial activism ("boo") is unhelpful, as there is much room for argument about different ways of doing justice according to law. Indeed, both legalism and activism have a spectrum of meanings.

Few people from politics, law, or academia dissented publicly from Justice Heydon's resurrection of one kind of legalism. Yet more than one of his current High Court colleagues is on record exposing strict legalism's weaknesses, with one likening it to a fairytale. Sir Anthony Mason briefly responded by bemoaning the Gleeson Court's backtrack towards legalism, which "conceals rather than reveals the reasoning process". We shouldn't leave public debate about this topic mainly to judges.

Landmark cases like the High Court's decision this year on medical negligence causing an unplanned pregnancy demonstrate the unhelpfulness of analysing cases along a spectrum between legalism and activism. The Court narrowly decided that negligent doctors could be liable for the reasonable costs of child-raising until adulthood. All seven judges grappled with public policy issues, with the outcome turning on which set of policy interests each judge favoured.


Chief Justice Murray Gleeson thought the answer depended on "general principles, based upon legal values". Justice Ian Callinan pointed to the influence of judges' "own social values" and not just "strict legal principle". Even Justice Dyson Heydon acknowledged the relevance of "the law's assumptions about some key values in family life as reflected in the unenacted and enacted law". These candid judicial admissions show that precedent only takes you so far in difficult cases.

Legalism's supporters might argue that it is one thing for judges to use values entrenched in legislation and judge-made law to extend liability for medical negligence incrementally. It is another thing altogether to overturn a century of property law assumptions in Mabo to recognise native title, based partly on the contemporary values of the Australian people. This is a debate worth having. Yet Mabo's non-discrimination principle also underlies much Australian law. Moreover, both following and changing precedent involves choices and affirmation of particular values and interests over others.

Denying legalism does not mean that judges should interfere in politics, overturn precedent willy-nilly, or have carte blanche to do whatever they like. That throws out the legal baby with the bathwater. It just means that legalism offers an incomplete view of judicial reasoning and law-making boundaries between courts and parliaments.

  1. Pages:
  2. Page 1
  3. 2
  4. All

An edited version of this article was published in The Age on 8 October 2003.

Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

Share this:
reddit this reddit thisbookmark with Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Professor Bryan Horrigan studied at Oxford University as a Rhodes Scholar and now works at the University of Canberra, where he is Director of the National Centre for Corporate Law and Policy Research and Deputy Director of the National Institute for Governance. He is the author of Adventures in Law and Justice - Exploring Big Legal Issues in Everyday Life.

Other articles by this Author

All articles by Bryan Horrigan
Related Links
Bryan Horrigan's Law Portal
National Centre for Corporate Law and Policy Research
The High Court
Photo of Bryan Horrigan
Article Tools
Comment Comments
Print Printable version
Subscribe Subscribe
Email Email a friend

About Us Search Discuss Feedback Legals Privacy