Judicial activism.(Letters)(Letter to the Editor)

SIR: It is possible to feel sorry for Justice Michael Kirby in his proxy battle with Justice Heydon by medium of his Hamlyn Lectures (condensed in Quadrant, January-February 2004).

Dyson Heydon, in his Quadrant dinner speech (January-February 2003) before appointment to the High Court, could name Kirby as one of those whose appointments were responsible for "abrupt and almost arbitrary change[s] ... [to which t]he objection is that in truth the judge wrests the law to his own authority" and for "rel[ying] on 'international conventions', whether or not Australia is a party and even though they have not been enacted into Australian law".

Kirby must make do with periphrasis and veiled sneers. But not all veiled, or free from ponderous and repetitious rhetoric to say that judges, especially common law judges, make law: a boring truism, though Kirby's colleagues have lately done a good job of limiting the lawmaking of the High Court's leading dissentient. What is surprising from a hard-working intelligent man who is normally courteous is his use of snide attacks on the securely mute Chief Justice Dixon.

Both Kirby and Heydon misconstrue Sir Owen Dixon as having been "proudly 'excessively legalistic'", but Kirby said it twice, and critically. So he should have noticed that "proudly legalistic" is the only reasonable inference from Dixon's words.

Of Dixon's most famous words he says (in the Fourth Hamlyn Lecture 2003 on the High Court website), "the doctrine of 'strict and complete legalism' ... was absurd and dishonest ... [judges should have discarded] the duplicity of earlier judicial illusions". Interesting that Kirby doesn't take up the point recently made by a commentator that Dixon, in commending legalism--traditional legal method--was assuring one and all, conservatives left and right, that the court which had struck down Chifley's bank nationalisations and Menzies' outlawing of the Communist Party would continue to put traditional judicial method before its members' personal extra-legal values. Perhaps it suits Kirby to leave students and lay readers with the impression that Dixon was dishonest or naive.

In his Quadrant summary Kirby is at least consistent in the way he attacks the critics of "judicial activism". Just his first page contains "The relics of discarded empires present sad, even pathetic spectacles", "the world around had changed forever", "true believers", "doctors warn that she must be given no news that would excite her. Mention of the disappearance ... is verboten", "They miss the departed certainties. The lies are trotted out ... for the very best of motives--to keep the old ideology", "The spell of the old deceptions", "Some people miss the pseudo-ideology of the good old days. In older people, especially, nostalgia for lost childhood beliefs is understandable", "unsophisticated falsehoods". At best it is all about a "noble lie".

Your editorial made the important point that the judicial activists create uncertainty. Following the Dixon thread gives ...