By Justice Dyson Heydon
Justice Heydon, a judge of the New South Wales Supreme
Court and Court of Appeal, was appointed to the High Court of Australia in
December. He gave this address to a Quadrant dinner in
Quadrant Magazine, Volume XLVII, Number 2, January-February
2003
http://www.quadrant.org.au/php/archive_details_list.php?article_id=277
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
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 Our criminal law is as out of date as the muskets in the Tower.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
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.
The
rule of law prevents citizens being exposed to the uncontrolled decisions of
others in conflict with them. Powerful citizens are not permitted to use
self-help against other citizens so far as their arbitrary might permits.
Officers of the state are not permitted to imprison or otherwise deal forcibly
with citizens or their property merely because they think it is their duty to
do so. Mobs are not able to loot or lynch their enemies at will. Indeed,
The
rule of law operates as a bar to untrammeled 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, and possessing a measure of independence from the wrath
of disgruntled governments or other groups. These independent arbiters are
usually judges.
The
rule of law preserves for citizens an area of liberty in which they can live
their lives free from the raw and direct application of power. It creates a
framework within which the creative aspects of human life can thrive. The rule
of law dilutes power; it diffuses it; and yet it also makes it more efficient.
The rule of law prevents police officers trespassing on and seizing private
property or holding citizens without trial or other hearing; yet it permits and
facilitates the procurement of evidence in a regular way with a view to the
convincing demonstration of criminal guilt in due course. It prevents the
employees of banks, for example, applying the strict terms of oppressive
mortgages ejecting debtors from their houses at will; but it enables the
enforcement of whatever contractual rights there are in due course.
The
rule of law operates on principles which are known or readily discoverable and
hence do not change erratically without notice; which are reasonably clear;
which apply uniformly and generally, not in a discriminatory way; which apply
prospectively, not retroactively; and which are in force through public trials
operating on rational procedural rules before judges who are independent of the
state and of all parties. All parties are treated as intrinsically important,
however unequal in strength and however lacking in popularity or virtue they
may be. The more ineffective a state’s laws are against private coercion or
anarchy or government power, the less they can be described as representing the
rule of law.
The
purpose of the rule of law is to remove both the reality of injustice and the
sense of injustice. It exists not merely because of the actual remedies it
provides for damages, injunctions and other specific remedies, and criminal
sanctions. It exists also to prevent a damaging release of uncontrollable
forces of disorder and primal urges towards private revenge against wrongdoers
by assuaging the affront to human dignity experienced by the victims of
wrongdoers. Sir James Stephen said that the criminal law bears the same
relationship to the instinct for revenge as does marriage to the sexual
appetite, and the same is true of the civil law. The rule of law channels
potentially destructive energies into orderly courses.
Most
disputes are settled without the parties ever going to a trial before a judge.
However, what happens in the resolution of trials is of vital importance to the
rule of law. If a particular dispute is resolved by a speedy and just trial,
the chance of the vastly greater numbers of potential disputes being settled
before trial rises. If trials are slow and uncertain, and are not seen as
objectively just, the chances of peaceful settlement of disputes are reduced
and the temptation to violent self-help increases.
A
key factor in the speedy and just resolution of disputes is the disinterested
application by the judge of known law drawn from existing and discoverable legal
sources independently of the personal beliefs of the judge. One hundred and
fifty years ago, most criminal cases and many civil cases were decided by
juries presided over by judges. Now juries are used only in serious criminal
cases and to a minuscule extent in civil cases. It is largely judges, not
jurors, who now decide disputes. In fulfilling that task, judges need a
reasonable minimum of application, balance, civility and intelligence: but they
need two things above all. One is a firm grip on the applicable law. The other
is total probity.
JUDICIAL
ACTIVISM
WHAT
IS BELOW described as “judicial activism” badly impairs both qualities, and in
that way tends to the destruction of the rule of law. Judicial activism in
constitutional law and in statutory construction will not be discussed: each
field raises real problems but they differ to some extent from those discussed
below.
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. It means serving some function other
than what is necessary for the decision of the particular dispute between the
parties. Often the illegitimate function is the furthering of some political,
moral or social program: the law is seen not as the touchstone by which the
case in hand is to be decided, but as a possible starting point or catalyst for
developing a new system to solve a range of other cases. Even more commonly the
function is a discursive and indecisive meander through various fields of
learning for its own sake.
“Judicial
activism” may be said to contrast with jury “inactivism”. In jury trials in
modern urban conditions, at least, the jurors will know nothing of the parties
personally. The jurors are told what issue it is they must decide. Their duty
is to reach factual conclusions relevant to that issue. They do not give
reasons for those conclusions. They have the practical power (though probably
not the right) to refuse to enforce particular laws which they perceive to be
unjust and of which they disapprove, and to deny relief to particular
unpleasant people whom they dislike.
But
apart from tempering the system in this way, juries had little interest in
issues outside the narrow facts of the case. They had, and have, very little
room for activism.
SIR
OWEN DIXON’S LEGALISM
A
FAVOURITE TARGET of activist judges and their defenders, either as a bogeyman
or as an object of ridicule, is Sir Owen Dixon. When Sir Owen Dixon was sworn
in as Chief Justice in 1952, he exalted “close adherence to legal reasoning”,
he proudly admitted being “excessively legalistic”, and he expressed faith in
“a strict and complete legalism” as the only safe guide to judicial decisions
in the solution of great conflicts. It is common now for these views to be
dismissed with de haut en bas gestures of depreciatory scorn.
Modern
commentators sometimes seek to explain these words away by saying that he was
only speaking of conflicts arising under the federal Constitution, not the many
other conflicts resolved by courts. They also insinuate that there was
something phony in what he said, because he participated in many decisions
which were in a sense highly “activist” in the sense of being antithetical to
contemporary political programs, for example, successively thwarting Mr
Chifley’s desire to nationalise the banks and Mr Menzies’ desire to ban the
Communist Party. These observations are captious. Sir Owen Dixon thought that
non-constitutional cases should be decided by recourse to legalism as well.
Thus in 1942 he told the American Bar Association that the High Court brought
to federal constitutional cases “the same forms of reasoning, the same methods
of thought and the same outlook as it does to the other cases contained in its
list”. In any event almost any piece of litigation is regarded by at least one
of the parties as a “great conflict”: there would be no point in submitting to
the stress and hazards of litigation unless the conflict were thought to be a
great one. In a speech delivered in 1955 at
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; and we are not at liberty to reject
them, and to abandon all analogy to them, in those to which they have not yet
been judicially applied, because we think that the rules are not as convenient
and reasonable as we ourselves could have devised.
Parke
B therefore said that the mere fact that the case was new did not justify the
judges deciding it on their “own judgment of what is just and expedient”. Sir
Owen Dixon said that Parke B’s words “do not need much extension if they are to
serve as a statement of what I have witnessed during my service in the courts
as judge and counsel”. He praised the “strict logic and high technique” of the
common law.
Sir
Owen Dixon’s modern critics explain this away by saying that the speech was
delivered at
Sir
Owen adopted the phrase “strict logic and high technique” from an analysis by
F. W. Maitland of why it was that though in the sixteenth century civil law
derived from Roman law spread throughout Europe, it was not received in
England. He said it was because the common law has “strict logic and high
technique, rooted in the Inns of Court, rooted in the Year Books, rooted in the
centuries”. The medieval Year Books setting out the oral arguments in and
decisions of cases, on which the law taught in the Inns of Court was based, are
highly reminiscent, in their vigour and directness of disputation, of exchanges
in our courts now. An element in the strict logic and high technique employed
by the medieval common lawyers and their successors was the procedure of
isolating the decisive point — it might be quite a narrow point — in debating
the outcome of a case. The “technique” involved some technicality.
So,
in litigation, it was common for the judge to identify what the crucial issue
was, and reach a decision on that issue and no other. It was thought that a
collision of material or other interests between two parties, fought out
fiercely between their counsel, and resolved by a judicial decision on the
crucial issue and no other, generated an outcome from which, when considered
with many other like outcomes, one could infer some rule or principle for use
in the decision of future cases. The precise point of decision in each of
numerous cases fought skilfully and hard could permit a graph, as it were, to
be drawn establishing a more general rule or principle. The more general rule
or principle did not necessarily exactly correspond with what each judge in
each particular case said was the rule or principle. What the courts did
mattered as much as what they said, and in some ways more.
Over
time this approach was seen as turning on the distinction between the reasons
for a decision, on the one hand, and observations made in the course of arriving
at the decision which were not strictly part of its reasons, on the other.
Later courts were expected to follow the rules and principles stated by earlier
courts. But what was followed was not everything that might be said on the way
to a decision — only the reason for the decision. One part of traditional
technique turned on the process of “distinguishing” earlier decisions from the
case in hand on particular bases.
From
this distinction between obiter dicta and ratio decidendi there arose two conclusions.
The first was the doctrine of stare decisis — a strict doctrine of precedent,
but only in relation to the rationes decidendi of cases. The decisions of
earlier judges had to be followed — but only in what was decided, not in
everything that was said. The second conclusion was that it was desirable to
avoid uttering too many dicta. It was classically expressed in 1915 by Viscount
Haldane LC:
It
is in many cases only by confining decisions to concrete questions which have
actually arisen in circumstances the whole of which are before the tribunal
that injustice to future suitors can be avoided.
Viscount
Haldane was no arid reactionary pedant. He had held many offices in the Liberal
governments of Campbell-Bannerman and Asquith apart from that of Lord Chancellor;
he was to become Lord Chancellor again in Macdonald’s first Labour government
in 1924. At the time he spoke he was about to be hounded from office for
supposedly being pro-German, but he is now seen by all as an exceptionally able
equity lawyer, and seen by some as a man whose reorganisation of the British
Army prevented the Germans winning the war before Christmas 1914. His
explanation accounts for why the common law concentrates on the ratio
decidendi: the ramifications of a particular problem and of particular
solutions to it are perceived most clearly when that actual problem, which is
crucial to defeat and victory, has arisen and been argued out.
The
mockery to which Sir Owen Dixon’s enlightened critics, on and off the bench,
have subjected him obscures an essential truth. 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. When new cases arose, existing principles could be extended to deal
with them, or limited if their application to the new cases was unsatisfactory.
As business or technical conditions changed, the law could be moulded to meet
them. As inconveniences came to light, they could be overcome by modifications.
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. Particular rules might be modified
by the detection of more general principles underlying them or a more rigorous
reformulation of some traditional concept. In Sir Owen Dixon’s lifetime there
were numerous judicial changes to private law, particularly the law of tort. He
participated in many of them.
Though
Sir Owen Dixon did not think that the law could never change, he 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. He also thought that even courts free to depart from their earlier
decisions or the earlier decisions of lower courts should not lightly overturn
established precedents. He was further of the view that the law in general
should only be changed by a process of gradual development, not by violent new
advances or retreats or revolutions or ruptures.
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. The aggregation of
many decisions by individual minds concentrating on a concrete problem over
decades or centuries tended to lessen the sharpness of grievances arising from
the application of the consequential principles in particular cases.
Circumstances might occasion modification of the principles, but there was
nothing ignoble in the tradition of beginning with strong prima facie respect
for inherited wisdom and being cautious in departing from it. But since Sir
Owen Dixon’s retirement in 1964 and his death in 1972 an entirely different
approach has grown up within the legal system.
CHANGES
IN THE LEGAL SYSTEM
SINCE THE
IT
IS INSTRUCTIVE to compare the position of Australian courts in Sir Owen Dixon’s
day with their present position. Under his Chief Justiceship, from 1952 to
1964, the High Court of Australia had a worldwide reputation, its most celebrated
members, apart from himself, being Fullagar J, Kitto J, Menzies J, Taylor J and
Windeyer J. Many English and American lawyers thought that Sir Owen Dixon was
the greatest common law judge in the world. Some said that the High Court was
the greatest appellate court in the world. Modern attempts to suggest that a
presumption of continuance has been operating have not proved entirely
successful.
The
apex of the Australian legal system in theory comprised the Privy Council and
the High Court, though in practice the House of Lords played a significant
role. Australian appeals went from state courts or the High Court to the Privy
Council, not the House of Lords. But the judges who sat in the Privy Council
were largely the English and Scottish lawyers who sat in appeals to the House
of Lords in English or Scottish cases. Hence the dominant influence on the
Australian common law was the English common law. Further, many significant
English statutes affecting private law were re-enacted here, producing local uniformity
and access to a body of valuable English decisions construing those statutes.
The
superior courts of
In
1963 Sir Owen Dixon himself said the High Court should not prefer House of
Lords decisions to its own if it thought the House of Lords to be wrong. By
degrees appeals from Australian courts to the Privy Council were abolished
between 1968 and 1985. In 1978 the High Court decided it was no longer bound by
Privy Council cases. In 1986 it decided that no Australian court was bound by
any English court, though the intrinsic persuasive value of English decisions
remained.
Ever
since the
In
the years since the
Each
year the Commonwealth and state parliaments enact statutes which are much
greater in number, size and complexity than they were thirty years ago.
Both
the content of and the other materials relating to private law have become more
complex: doctrine is subject to more qualifications, many more cases are
reported, each case tends to examine all that has gone before, many cases
produce judgments which are very long by traditional standards. Even cases that
are not reported are often cited. Thirty years ago, a typical civil case would
produce an ex tempore judgment of three or four pages. Now such judgments are
commonly reserved, and are ten or a hundred times longer. Indeed, in all
courts, ex tempore judgments are rarer, and so are short judgments.
On
the part of solicitor, advocate, judge and jurist, a fear of failure through
leaving something out has been substituted for a disciplined sense of relevance
— it seems hard to locate what is crucially important, easy to concentrate on
what is marginal.
The
judiciary which operates in these conditions is much larger than it was thirty
or forty years ago. In 1967 there were thirty Supreme Court judges in
This
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.
CHALLENGES
TO PROBITY
PROBITY,
that essential judicial virtue, can be damaged by various pressures. One is
corruption by offers of money or advancement. It seems true still that modern
Australian judges are financially as incorruptible as George Orwell’s gouty old
bullies were. No corrupt offers of advancement have been proved.
Another
pressure on probity is a judicial temptation to see the judicial name in the
newspapers. On the whole, that temptation has been successfully resisted.
Probity
may be affected by conscious bias for or against a particular litigant or class
of litigants. The law compels judges who have such a bias or may reasonably be
thought to have such a bias to disqualify themselves, and in practice it may be
assumed that very few judges are consciously biased.
However,
a fundamental change in the judiciary has taken place which has caused two new
types of pressure on probity. The fundamental change is that it has a different
character from that of a generation ago. There is within its increased ranks a
large segment of ambitious, vigorous, energetic and proud judges. Ambition,
vigour, energy and pride can each be virtues. But together they can be an
explosive compound. Rightly or wrongly, many modern judges think that they can
not only right every social wrong, but achieve some form of immortality in doing
so. The common law is freely questioned and changed. Legislation is not
uncommonly rewritten to conform to the judicial worldview.
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. They do not limit themselves to reported
cases, but use computers to obtain access to unreported ones. They use huge
footnotes (which appear to be regarded as a mark of erudition) containing
copious references to articles in Australian and overseas university or
professional law reviews (the now-bloated numbers of these being to some extent
a by-product of a world-wide explosion in law school numbers, and hence
academic numbers, in the last forty years).
The
citations often in fact do not demonstrate judicial erudition, being
associate-generated, or, worse, computer-generated. But however they are
generated, they seem more designed to highlight supposed judicial learning than
to advance the reasoning in any particular direction relevant to the issues
between the parties. They appear designed to attract academic attention and the
stimulation of debate about supposed doctrines associated with the name of the
judicial author.
Here
the delusion of judicial immortality takes its most pathetic form, blind to
vanity and vexation of spirit. In all, the words
How
did this new class arise? Because its members misunderstood the circumstances
of their formative years. The new class arose partly because almost all modern
judges were educated in law schools staffed by professional law teachers as
distinct from practitioners teaching part-time, and a critical analysis of the
merits of legal rules was a significant aspect of that education. It arose
partly because of a wider interest in
It
does not follow, of course, from the fact that rules can be examined
critically, or that it is useful to do so, that they should be lightly
abandoned or sidestepped. It does not follow from the diversity of opinions in
the
There
are two types of wholly illegitimate pressure pushing a judge away from
probity, and evidencing judicial activism. They must be consciously avoided but
they are growing. 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.
EXCESSIVE
DEBATE IN JUDGMENTS
THE
FIRST DESIRE may be less blameworthy than the second, but it can be almost as
pernicious. For example, a given case can raise five potential points of
controversy. Each of those points can raise numerous sub-issues. It is much to
the advantage of a party whose position on a central and decisive issue is
factually weak to permit as many others to develop and to start as many other
hares as possible. The cloud of questions thus arising may obscure one issue on
which the party who should lose is doomed.
Further,
whether the court is an ultimate appellate court or some other court
contemplating in some legitimate way a modification of the law in an area where
there is no contrary binding precedent, or whether the court is merely seeking
to understand precisely what the applicable rules are, it can be useful to
survey the whole field and seek to reduce to order everything that lies within
that field. But it does not follow that the court should record its journeys
through the ages and from
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. Fact finding is not
only a primary task. It can be a difficult one. But trial courts ought to be
cautious in their exploration of well-settled law. There are relatively few
areas where a trial court can legitimately make new law. Hence there is likely
to be little justification for extensive debates preparatory to a decision
whether a case falls within one rule rather than another.
The
wider the debates the more they are likely to harass, confuse and distract
hard-pressed District Court judges and magistrates in particular. A penny-wise
executive forces them to operate without transcripts. Their superiors place
them under pressure to deliver ex tempore judgments as much as possible. Their
primary role of applying well-settled law to controversial facts is frustrated
by excessive attempts to acquaint them with inconclusive legal analysis in
other courts, as they sit in a fog of fatigue with throbbing headaches
attempting to grasp and recollect untidily presented and conflicting evidence
with a view to reaching immediate factual conclusions and legal results based
on them.
In
appeals the court’s role can be a little wider. A discursive analysis of the
law can be appropriate if it is necessary to decide the matter. An intermediate
appellate court may be confronted with a conflict of authorities in different
trial courts throughout
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, having no foreseeable consequences for the particular parties.
Their determinations are supposed to be conclusive or final decisions on
concrete controversies, not inconclusive and tentative speculations on
controversies which have not yet arisen. Excessive and self-indulgent surveys
of the law and debates about the background to and future of particular rules
contravene these prohibitions, which are based on good sense.
In
short, if a case can be decided on the facts without venturing into
controversial legal areas, it should be decided only on the facts. If it can be
decided on a distinct point of law without going to any other point of law, it
should be so decided. If the point of law on which a case can be decided is
clear, while there may be point in examining the historical background, or the
different way the point might be decided in other jurisdictions, or the extent
to which the condition of the law on that point has been praised or attacked by
earlier judges or writers, there is no point in recording that examination. 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.
DELIBERATE
ALTERATION OF THE LAW
BY JUDGES
THE
SECOND DANGER for judicial probity arises where the court deliberately sets out
to alter the law. Sir Owen Dixon said the following to his audience at the
in
our Australian High Court we have had as yet no deliberate innovators bent on
express change of acknowledged doctrine. It is one thing for a court to seek to
extend the application of accepted principles to new cases or to reason from
the more fundamental of settled legal principles to new conclusions or to
decide that a category is not closed against unforeseen instances which in
reason might be subsumed thereunder. It is an entirely different thing for a
judge, who is discontented with a result held to flow from a long accepted
legal principle, deliberately to abandon the principle in the name of justice
or of social necessity or of social convenience. The former accords with the
technique of the common law and amounts to no more than an enlightened
application of modes of reasoning traditionally respected in the courts. It is
a process by the repeated use of which the law is developed, is adapted to new
conditions, and is improved in content. The latter means an abrupt and almost
arbitrary change … The objection is that in truth the judge wrests the law to
his own authority.
The
last forty-seven years have changed all that. One key date is February 29,
1972, when Sir Victor Windeyer — after Sir Owen Dixon, probably the greatest of
Australian judges — retired. The appointment to the court of Sir Anthony Mason,
a highly respected equity lawyer and ex-Solicitor-General, on August 7, 1972, was
then a cloud not even as big as a man’s hand, but in hindsight the appointment
can be seen to have been crucial. A significant event took place early in
1975,when Kirby J, a judge of the Conciliation and Arbitration Commission, was
appointed by Mr Lionel Murphy, QC, the Attorney-General, as Chairman of the
Australian Law Reform Commission, which commenced operations in that year.
Another
key date is February 10, 1975, when Murphy J went to the High Court. For some
time the dominant ethos of the court did not change. Sir Garfield Barwick’s
general approach to the law while in office from 1964 to 1981 did not differ
much from that of his predecessor, and nor did that of Sir Harry Gibbs. The
younger justices appeared for some time to be of the same view. Thus in State
Government Insurance Commission v Trigwell (1979) Mason J said that because the
court was “neither a legislature nor a law reform agency” it should be
reluctant to vary or modify settled common law principles merely because they
might be thought ill-adapted to modern circumstances. He gave very powerful and
trenchantly expressed reasons for that view.
But
Murphy J delivered a series of addresses contending that the entire judiciary
was biased against “women, Aborigines and the weak” and deriding the
traditional approach of the court. In particular, he treated judicial work as
an act of uncontrolled personal will, and sneered at the doctrine of precedent
as one “eminently suitable for a nation overwhelmingly populated by sheep”. He
said: “As judges make the law … they are entitled to bring it up to date …
[Judges] should not change it by stealth, they should change it openly and not
by small degrees. They should change it as much as they think necessary.”
Murphy
J’s conduct on the bench matched his words off it. His judgments were almost
always brief. While this is certainly no sin in itself, he practised an
exquisite economy in relation to what is conventionally called legal reasoning.
The only content of a typical judgment was usually a series of dogmatic,
dirigiste and emotional slogans. For some reason he came to fascinate and
influence several of the other judges, very different in approach and
experience though they were from him. This influence became most clearly
apparent not while he served, but after his premature death in office on
October 21, 1986, following an unhappy period of personal controversy and
painfully debilitating illness. Soon after Mason J succeeded Sir Harry Gibbs as
Chief Justice in 1987, the majority approach radically changed.
In
1998, McHugh J rightly said that the whole argument of Sir Owen Dixon to the
TO
THIS FORM of activism there are numerous objections. First, it rests on a
contradiction. As Sir Owen Dixon told his audience at Yale, a court which
deliberately changes the law in order to establish a better rule seeks to treat
itself as possessed of a paramount authority over the law for the future in
virtue of the doctrine of judicial precedent, while simultaneously setting at
nought every relevant judicial precedent of the past: “[The] conscious judicial
innovator is bound under the doctrine of precedents by no authority except the
error he committed yesterday”.
In
short, 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, and many brave new developments have already
become entombed in the urns and sepulchres of mortality.
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:
Nationwide News Pty Ltd v Wills (1992); Australian Capital Television Pty Ltd v
The Commonwealth (1992). Then that implied constitutional term was said to
create substantive defences in defamation proceedings: Theophanous v Herald
&Weekly Times Ltd (1994); Stephens v West Australian Newspapers Ltd (1994).
Then,
for different reasons, Mason CJ and Deane J retired. The absent are always
wrong. 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 with the Constitution, and that a new defence of
qualified privilege should be recognised: Lange v Australian Broadcasting
Corporation (1997).
This
outcome represents a tactical compromise of which a French politician in the
Second,
though the newly created rule may seem more just, the force of the new rule
will depend on the capacity of the legal system to command the consent of the
governed. Courts inflict great pain and distress on those who lose litigation
and on those adversely affected by principles laid down in litigation. The
public will put up with pain of that kind which is caused by parliamentary
legislation — not always, but most of the time. The public will also put up
with a great deal of the pain caused by litigation if it is seen to be the
result of long-established rules which could be, but have not been, changed by
parliamentary legislation. It is much less easy for the public to put up with
the pain if it is caused by the worldview of one judge, or a bare majority of
appellate judges; or if the courts are in discord; or if judicial opinions are
in a state of constant flux as they swing back and forth or spiral down in
sickening fashion. 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, the conscious making of new law
by radical judicial destruction of the old rests on a confusion of function.
Those who staff courts do not have that function. They lack the experience to
perform it; they lack the assistance required to perform it; they can only do
it retrospectively; it is not easy for them to do it clearly; it is not easy
for them to do it decisively; and it is not possible for them to balance the
financial and other effects of the changes against other demands.
Different
functions. The duty of a court is not to make law, or debate the merits of
particular laws, but to do justice according to law. The oath taken by a judge
of the Supreme Court of New South Wales includes the words “I will do right to
all manner of people after the laws and usages of this State without fear or
favour, affection or ill will.” Thus judges swear to apply the existing laws
and usages, not to unsettle them by critical debates about them and
speculations about their future, and certainly not to develop new laws and
usages. It is legislatures which create new laws. Judges are appointed to
administer the law, not elected to change it or undermine it.
Judges
are given substantial security of tenure in order to protect them from shifts
in the popular will and from the consequences of arousing the displeasure of
either the public or the government. The tenure of politicians, on the other
hand, is insecure precisely in order to expose them to shifts in the popular
will and to enable those shifts to be reflected in parliamentary legislation. Judicial
rascals are not to be thrown out. Political rascals can be.
Different
experience. Politicians spend much of their lives attending barbecues, tea
parties and dinners they do not want to attend, opening exhibitions they do not
want to open, delivering speeches they would prefer not to deliver, listening
to complaints or ideas from citizens which they would prefer not to hear. From
late adolescence they have been organising, intriguing and debating. They are
accustomed to giving up one point for the sake of gaining another, accustomed
to compromise, accustomed to attack and to be attacked, and accustomed to
shifts and manoeuvres. They are not highly esteemed, the system in which they
operate may be imperfect, but they are universally seen as necessary.
A
judge who dislikes the constraints of membership of the judiciary because it
prevents the fulfilment of a particular program or agenda, should, like Dr
Evatt, leave that group, join or start a political party, and seek to enter a
legislature. Politicians must run the risks and suffer the burdens of standing
for parliament, of having a business or professional income disrupted, of
having their views attacked, and of having to persuade preselection committees,
the officials of union and other groups, electors, ministers and other power
brokers of their ability and of the sense of their opinions. They have to spend
much time trying to remedy their constituents’ problems by negotiating with or
cajoling representatives of central government and other public and private
institutions.
That
training, rigorous and painful as it is equips most Australian politicians,
acting in groups, with an understanding of how far legislation can be enacted
to satisfy particular wishes of particular sections of the community. Just as
complete victory for any point of view is unlikely in the federation as a whole
because of the division of power between bicameral legislatures and between the
central government and the states, so it is unlikely within each polity because
of the clashes of interest groups and the necessity to work out practical
compromises between them. But the democratic process leaves it open to the
citizens as a whole, in periodical elections, to bless or oppose the plans or
decisions of particular parties or groups or clans of politicians.
Australian
politicians collectively have an immense experience of life and of the almost
infinitely various points of view within the population. Their whole careers
rest on understanding the desires and needs of individual citizens. Judges, on
the other hand, are lawyers with a relatively confined experience of life: it
may have been intense, it may have involved exposure to many conflicts, it may
have given insights into human suffering under acute stress, but it is quite
narrow compared to the experience of the members of the legislature.
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, both within departments and in the form of standing or ad hoc
commissions of inquiry. Legislatures can hold public hearings if necessary.
Their members have staffers who can assess opinion by dealing with lobbyists
and the press. They can conduct a wide survey of problems in the context of the
entire field of which they are part. They can effect change in a coherent as
distinct from a piecemeal way, which is not readily open to a court seeking to
effect a significant change.
These
mechanisms are superior to the fumbling discussions which can take place when
judges attempt to reason towards radical legal changes — where they seek to
“balance” in a rather windy way “interests” and “policies” and “needs” and
“values”, none of them empirically established and few of them clearly articulated.
Judges, unlike politicians, have to decide a particular case, not all possible
cases, and have to do so without assistance from the executive, or indeed from
anyone except the legal representatives of the parties.
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. Modern High Court justices have often said that any
judicially created change in the law must “fit” within the general body of
accepted rules and principles (for example Breen v Williams (1996)). But what
they have done does not always conform to this salutary precept.
Retrospectivity.
When a legislature decides to change the law, it usually does so prospectively.
Leaving aside the occasional tax measure which operates from the day when a
change of policy is announced — itself an understandable but not an
uncontroversial practice — most parliamentary legislation takes effect only on
or after enactment. This enables those affected by it to adjust to it in
advance, to arrange their affairs in relation to the new legal regime. They can
be protected by transitional provisions. But judicial legislation can only be
retrospective. If conduct takes place in the year 2000 which was lawful in 2000
according to the precedents applicable in 2000,but a court in 2002 overturns
those precedents and holds the conduct to be unlawful, it is legislating with
retrospective effect.
Retrospective
legislation is usually regarded as an evil thing, antithetical to the rule of
law. 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.
Clarity.
Parliament, when it changes the law, is usually capable of doing so with a
degree of clarity because legislation is drafted by persons with considerable
training, experience and skill in drafting. They are capable of achieving a
much greater degree of precision than a group of judges can, particularly a
group of judges speaking in separate judgments.
Decisiveness.
Further, if there is to be parliamentary change, it must naturally rest on a
reconciliation and elimination of differences — at least to the extent that a
majority of one for a bill is achieved — because without that reconciliation
and elimination there will be no legislation. But an appellate court is under
no such discipline. The only discipline on an appellate court is to produce a
majority for a set of orders.
There
can be total chaos within, and total contradiction between, the reasoning of
each of the judges favouring the majority orders. The case decided by the
making of orders which are supported by chaotic or contradictory reasoning is
not an authority — it lacks a ratio decidendi — but the obiter dicta of
particular judges may have considerable influence. A radical measure of
instability can arise by the repetition of discordant opinions in case after
case.
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 —
Brennan J in particular resisted — 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 — the reason why the winner won and
the loser lost — yet the proliferation of dicta caused endless speculation at
all levels of the court system. These dicta have now been politely sidelined in
cases decided over the last two years, but the harm caused would have been much
less likely if parliamentary legislation had been employed. Incidentally, the
doctrine of “proximity” was used by the majority in Burnie Port Authority v
General Jones Pty Ltd (1994) as a reason for abolishing an old common law rule
about the escape of substances from land: the fading away of proximity in later
times must place a question mark over a decision based on its supposed
significance.
Inconsistency.
When courts effect radical judicial change, whether it comes out of a clear
blue sky or not, 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
It
is questionable whether it is the proper role of the courts to introduce
radical changes of this kind which parliament had not done, particularly in
view of their tendency to cause immense strains not only within the community
as a whole, but also within the legislature as it seeks to accommodate society
to the new position. 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.
Incidentally,
it might also be questioned whether the process of judicial legislation in Mabo
displayed fairness to Aboriginal interests in holding that a fee simple grant
destroyed native title when on the facts the case did not concern Aborigines,
about whom no facts were proved, but the rather different Meriam people, and
Aboriginal interests were not heard. While parliaments have no duty to give
hearings to affected interests, they usually do, and, unlike the High Court,
they did in relation to the Native Title Act both before it was enacted in 1993
and before it was amended in 1998.
A
more mundane example concerns the financial costs of judicial change. The
executive in introducing federal legislation has to make estimates of the
financial impact of the legislation. Courts do not. An example of a decision
having large financial implications is
Dietrich v R (1992), permitting (over the dissent of Brennan J) the criminal
trial of a person accused of a serious offence to be stayed if that person
could not obtain legal representation. The practical effect is to compel
governments either to abandon some criminal trials or increase legal aid, yet
six of the nine governments, being the primary parties potentially affected by
the decision, were not before the court.
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
That
decision abolished the distinction by a four-three majority. This operated
retroactively. Though at the time when the plaintiff was injured in 1992
because a bridge under the council’s control collapsed, it had not committed
any tort, the High Court retroactively held that since the immunity for
non-feasance did not exist, one might have been committed. The matter was
remitted to the lower courts for consideration of whether it had been. If
insurance policies were taken out by councils on the basis of the old
distinction, so that the policies only covered acts of misfeasance, the
decision exposes them to wide past uninsured liabilities in relation to any
injury caused by non-feasance in the preceding three years which could now be
sued for.
Another
difficulty is that the case potentially creates huge future liabilities for
councils. How great those new liabilities are is not clear, since while the
court widened potential liability by abolishing the non-feasance immunity, it
also recognised that at least pedestrians faced a quite high hurdle of proving
liability. If a change of that type had been effected by parliament, not only
would councils have been given prior notice so as to enable insurance
adjustments and the effecting of changes in their systems for detecting and
repairing faults in roads, but state governments, or the federal government, would
have been able to make financial arrangements with councils to enable them to
meet the new responsibilities created by the widened liability.
Yet
a further difficulty with the case is that it contemplates an intrusion of
courts into the business and administrative decisions of councils. The widening
of duties for councils raises the issue of how they are to pay for the work
which must be carried out in order to comply with those duties. Gleeson CJ,
who, with Hayne J and Callinan J dissented, said:
Road
maintenance and improvement involves, amongst other things, establishing
priorities for the expenditure of scarce resources. Accountability for
decisions about such priorities is usually regarded as a matter for the
political, rather than the legal, process … If such considerations come to
depend entirely upon judicial estimation, case by case, of the reasonableness
of a council’s public works programme, it is at least understandable that
governments may think they have cause for concern ...
The
non-feasance rule is a rule about the accountability of public authorities
invested by Parliament with the responsibility of applying public funds to the
construction, maintenance and improvement of public roads. The common law
principle has been that such an issue is to be determined by the will of
Parliament expressed in legislation, and the courts have encouraged Parliament
to understand that their legislation will be interpreted and applied in a
particular fashion. It is clear that Parliaments have acted upon the faith of
such an understanding. If the rule is to be changed, the change should be made
by those who have the capacity to modify it in a manner appropriate to the
circumstances calling for change, who may be in a position to investigate and
fully understand the consequences of change, and who are politically
accountable for those consequences.
It
is no surprise that last Monday the
One
argument sometimes advanced in defence of the High Court’s activism is that it
is open to parliaments to abolish the changes; yet legislation of that kind is
rare, and the legislative inactivity is evidence of consent to what the courts
have done. In a 1994 article, “An Over-Mighty Court?”, Mr Ian Callinan QC, as
he then was, rebutted this contention by pointing out that legislative
abolition was not possible in relation to constitutional developments in the
High Court, that the relative recency of the new activism meant that it was too
early to draw any conclusions from legislative passivity, and that it would
never be easy for parliaments to abolish by legislation decisions of so august
a body as the High Court.
To
these points can be added the fact that, with a further eight years’
experience, one can observe considerable legislative activity. Whether or not
the insurance companies are correct in saying and behaving as though there is a
public liability crisis, the events of 2002 amount to an adverse reaction to
virtually the whole of the High Court’s widening of the law of negligence in
the twenty years before the appointment of Gleeson CJ. The federal government,
via the Ipp Report, and the other governments, via their own proposed or
already implemented changes in tort law, are revealing an acute dissatisfaction
with what the High Court has done. And in the case of
Indeterminate
justifications. Finally, another undesirable element in some recent judicial
changes in the law is that they are based on very indeterminate grounds. Though
Sir Owen Dixon was not opposed to gradual and principled change in the law, he
certainly did not favour doing so by recourse to ideas which modern High Court
judges have stated in such expressions as “the contemporary needs and
aspirations of society” or “contemporary values” or “the relatively permanent
values of the Australian community” or the “view society now takes” or
“enduring values” as distinct from “transient community attitudes” or
“transient notions which emerge in reaction to a particular event or which are
inspired by a publicity campaign conducted by an interest group”. Sir Anthony
Mason has said:
The
ever present danger is that “strict and complete legalism” will be a cloak for
undisclosed and unidentified policy values … As judges who are unaware of the
original underlying values subsequently apply that precedent in accordance with
the doctrine of stare decisis, those hidden values are reproduced in the new
judgment even though the community values may have changed.
Sir
Owen Dixon might have asked the following questions. How are contemporary
“community values” to be discovered? How are “community values” in former times
to be discovered? Do applicable “community values” exist when the community is
pluralist and divided on many questions? How can searchers for community values
distinguish between their personal values and the values of the community which
are distinct from their own? Kitto J in Rootes v Shelton (1967) saw “changing
social needs”, the “designing” of rules and recourse to “social expediency” as
introducing“ deleterious foreign matter into the water of the common law — in
which, after all, we have no more than riparian rights”. Mason CJ disagreed
with this, but Sir Owen Dixon would not have. And he would not have agreed with
the idea that the law should be changed by judges because of “current social
conditions, standards and demands” ((Dietrich v R (1992)).
Nor
would he have found much profit in another source of law to which advocates of
judicially changed laws increasingly look — international law or international
expectations. In Mabo v
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. It is
highly questionable whether many people in the community see the failure to
prosecute persons charged with a serious crime unless the grant of legal aid is
made to those persons, as conforming to their own personal values: cf Dietrich
v R .
This
suggests that the soigné, fastidious, civilised, cultured and cultivated
patricians of the progressive judiciary — our new philosopher-kings and
enlightened despots — are in truth applying the values which they hold, and
which they think the poor simpletons of the vile multitude — the great beast,
as Alexander Hamilton called it — ought to hold even though they do not. The
trouble is that persons adhering to different values or different perceptions
of need or different aspirations tend to be at risk of being ruthlessly waved
out of all decent society as enemies of the people.
In
short, radical legal change is best effected by professional politicians who
have a lifetime’s experience of assessing the popular will, who have been
seasoned by much robust public debate and private haggling, who have all the
resources of the executive and the legislature to assist, who can deal with
mischiefs on a general and planned basis prospectively, not a sporadic and
fortuitous basis retrospectively, and who can ensure that any changes made are
consistent with overall public policy and public institutions. Professional
politicians may not be an ideal class, but they are better fitted than the courts
to make radical legal changes.
It
is curious that the Mason court, whose members individually have tended to
stress that the Constitution was made by the people of Australia, and who
collectively implied into the Constitution a provision requiring freedom of
political communication on the basis that the Constitution provided for
representative democracy, whereby parliamentary legislators are chosen directly
by the people, tended to treat itself as another legislature even though it was
not chosen by the people: Australian Capital Territory Television Pty Ltd v The
Commonwealth (1992) 177 CLR 106 at 137 per Mason J. Footnote 3 on that page
contains the enigmatic observation: “It should be noted that the notion of
representative government leaves out of account the judicial branch of
government. ”The perception that “all powers of government ultimately belong
to, and are derived from, the governed”, and that the governed elect
legislatures but not courts, has not led the High Court to the conclusion that
the courts should assume a very different role from that of parliamentary
legislatures.
CONCLUSION
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. If
judicial law-making does conflict with legislative policy, or the general legal
and political order, or creates financial problems which the judicial branch
cannot solve but must leave to others to grapple with, it intrudes into the
true role of other arms of government. It conflicts with the separation of
powers.
In
the words of Lord Devlin “It is essential to the stability of society that
those whom change hurts should be able to count on even-handed justice calmly
dispensed, not driven forward by the agents of change.” Loyalty to precedent is
important because it increases the chance of obtaining some certainty. The
common law is not always clear, but in most fields it is reasonably
ascertainable. It would have much less certainty if it were thought to be
readily open to change. If courts are disloyal to precedent, in the words of
Lord Camden, “each judge would have a distinct tribunal in his own breast, the
decisions of which would be as irregular and uncertain and various as the minds
and tempers of mankind”.
Disloyalty
to precedent in effect gives judges uncontrolled discretionary power. Lord
Camden said in Hindson v Kersey :
The
discretion of a Judge is the law of tyrants: It is always unknown: It is
different in different men: It is casual, and depends upon constitution,
temper, passion.— In the best it is often times caprice: In the worse it is
every vice, folly and passion, to which human nature is liable.
The
doctrine of precedent is a safeguard against arbitrary, whimsical, capricious,
unpredictable and autocratic decision-making. It is of vital constitutional
importance. It prevents the citizen from being at the mercy of an individual
mind uncontrolled by due process of law.
It
is not surprising that George Orwell, though not sympathetic to the gouty old
bullies and evil old men, was prepared to praise them on the ground that they
interpreted the law according to the books and not otherwise. The more the
courts freely change the law, the more the public will come to view their
function as political; the more they would rightly be open to vigorous and
direct public attack on political grounds; and the greater will be the demand
for public hearings into the politics of judicial candidates before appointment
and greater control over judicial behaviour after appointment.
So
far as these demands were met, judicial independence would decline, and such
attraction as judicial office presently has would be diminished. None of these
outcomes would be desirable. All would multiply the threats to the rule of law
which judicial activism has created. Our present state is much less bad than
that of the