Judicial activism and the death of the rule of law. (Law).(address by Justice Dyson Heydon)(Transcript)

I AM EXTREMELY HONOURED to have been invited to address this Quadrant dinner. I regard the institution as a vernal island which one can periodically visit as an escape from the great polluted oceans of cant washing around it.

THE RULE OF LAW

ON FEBRUARY 19, 1941, George Orwell published his celebrated pamphlet The Lion and the Unicorn. In analysing the superiority of English life to that of Axis and communist Europe, he said:

 
   The gentleness of English civilisation is mixed up with barbarities 
   and anachronisms. Our criminal law is as out of date as the muskets 
   in the Tower. Over against the Nazi Storm Trooper you have got to 
   set that typically English figure, the hanging judge, some gouty 
   old bully with his mind rooted in the 19th century, handing out 
   savage sentences ... People will accept them (and Dartmoor, and 
   Borstal) almost as they accept the weather. They are part of "the 
   law" which is assumed to be unalterable. 
 
      Here one comes upon an all-important English trait: the respect 
   for institutionalism and legality, the belief in "the law" as 
   something above the State and above the individual, something which 
   is cruel and stupid, of course, but at any rate incorruptible ... 
 
      The totalitarian idea that there is no such thing as law, there 
   is only power, has never taken root ... 
 
      The hanging judge, that evil old man in scarlet robe and horse 
   hair wig, whom nothing short of dynamite will ever teach what 
   century he is living in, but who will at any rate interpret the law 
   according to the books and will in no circumstances take a money 
   bribe, is one of the symbolic figures of England. He is a symbol of 
   the strange mixture of reality and illusion, democracy and 
   privilege, humbug and decency, the subtle network of compromises, 
   by which the nation keeps itself in its familiar shape. 

Those observations of the Old Etonian ex-policeman and socialist correspond with a deep tradition of the common law. In the great case of Entick v Carrington (1765) the Court of Common Pleas set aside warrants purportedly justifying a forceful seizure of the plaintiff's papers. Lord Camden CJ gave instructions that the notes from which he gave his decision should be burned, but by accident they were preserved. According to them, he said, in rejecting an argument that even if the warrants were otherwise unlawful, they were justified on the ground that they were employed to seize documents which were seditious libels:

 
   If it is law, it will be found in our books. If it is not to be 
   found there, it is not law ... [With] respect to the argument of 
   state necessity, or a distinction that has been aimed at between 
   state offences and others, the common law does not understand that 
   kind of reasoning, nor do our books take notice of any such 
   distinctions. 

Orwell saw the merit of the English judges as lying in their interpretation of the law according to the books and in their doing so incorruptibly. That is one core element in the "rule of law". Geoffrey Walker's profound work The Rule of Law has demonstrated the range of meanings which that expression has. Under the "rule of law" as the expression is used below, it is not possible, at least without explicit parliamentary legislation to the contrary, for most important material or personal interests of one citizen to be radically damaged against that citizen's wishes by another citizen, a corporation, or an arm of government unless some independent person holds that that is right.