On criticising "judicial adventurism".(Law)

THE EDITORIAL "Judicial Adventurism and Public Debate" (Quadrant, January-February 2004) raises some important questions about the speeches and writings of Justice Michael Kirby and judicial decision-making generally. The editorial recognises that judicial creativeness is "essential to the development of the law". It goes on to say that, because of its importante, judicial decisions must be "continually subject to criticism whether that is always rational or moderately expressed or not" though "civil and rational discourse is to be preferred".

There is no reason to keep within the limits of "moderately expressed" criticism it it is directed at truly unacceptable judicial behaviour (some examples of which will be given later). However, the editorial is right in preferring criticism that is "civil and rational". But what counts as "rational" criticism of judicial decision-making?

It is now universally accepted that judges make law. After analysing the applicable legislation, the judicial precedents and other relevant material, and examining their logical implications, judges often need to make choices ("policy choices") between alternative legally-open conclusions. Those choices are necessarily determined by non-legal considerations and will often be influenced, it not determined, by personal beliefs on social issues, including issues of morality.

Sometimes little or no room for policy choices may be left by the legal materials. Instances include the majority judgments in the 1992 Political Broadcasting Case, in which Commonwealth legislation seeking to impose restrictions on political advertising was held invalid on the ground of inconsistency with an "implied" constitutional freedom for political expression. The decision has been attacked by (among others) Justice Dyson Heydon, before his appointment to the High Court, as a case of judicial "activism" (Quadrant, January-February 2003).

That criticism seems unjustified. For example, if parliament in 1905 had enacted legislation restricting the sending of electoral material by post, the High Court even in those days could well have been expected to strike down the legislation on the ground of inconsistency with the constitutional provisions for the election of members of parliament. The implications of the constitutional provisions were compelling. Of course, views can reasonably differ on the difficult issues involved in applying the implied restrictions to particular legislation, such as the "free time" provisions in the electoral legislation challenged in the Political Broadcasting Case. But attacks on the principle as involving inappropriate judicial "activism" do seem misconceived.

EXAMPLES OF DIFFICULT choices are too numerous to mention. A prominent one is the choice in the 1983 Tasmanian Dam Case between wide and narrow interpretations of the Commonwealth's "external affairs" power--one interpretation giving the Commonwealth wide powers to implement international treaties and the other leaving a state free (so far as the external affairs power is concerned) to permit the destruction of World Heritage areas by mining, forestry and other forms of exploitation permitted by the state even where the state itself had requested the World Heritage nomination.

A difficult and interesting choice had to be made recently in Cattanach v Melchior, where the majority decided against awarding damages for the cost of bringing up a child born after a negligently performed sterilisation. In his summary of the Hamlyn Lectures (Quadrant, January-February 2004) Justice Kirby describes as "activism" the decisions of the dissenting justices (Chief Justice Gleeson and Justices Hayne and Heydon) who, he asserted, would have "arbitrarily" cut off the liability otherwise resulting from an unqualified application of the general principles of liability for negligence. it their conclusion had been "arbitrary" in not giving substantial reasons for their ultimate choice, they would have failed to perform their judicial duty. In fact, they gave detailed and weighty reasons for making an exception to the general principle. In any ordinary sense of the word arbitrary, Justice Kirby's description seems very unfair to the minority. If the minority's reasoned modification of a general principle was "activism" it was of the most orthodox kind.