The Law

Judicial Activism and the Rule of Law

kirbyA memorial erected by the American Bar Association stands like a beacon in the field of Runnymede near Windsor Castle. It commemorates Magna Carta, the sealing of which took place there on June 15, 1215—eight hundred years ago last year. The encircling inscription reminds visitors that Magna Carta’s principles became engrained in the common law as an assertion of individual freedom, an acknowledgment of sovereignty and a guarantee of the continuance of the law of England.

A beacon can be used to warn or guide. The memorial is a reminder also that when the early colonists crossed the seas from England and settled in Virginia, they took with them the principles set out in the Great Charter. These principles were eventually reflected in the Declaration of Independence and the Constitution of the United States—documents inspiring a quest for change, but lighting the way to the rule of law.

That Magna Carta stands for both change and continuity is borne out by a letter dated February 4, 1947, written by a senior British public servant in Whitehall, Mr K.W. Blaxter. In response to a proposal that Magna Carta Day be celebrated in schools throughout the British Empire and the United States, Blaxter asserted, somewhat indignantly, that Magna Carta could not properly be regarded as a vindication of the doctrine that political power must be subject to the rule of law. It was essentially an attempt by the barons to restrain the power of the king and wasn’t brought about “by any altruistic promptings”.

Then, like a character in a Flashman novel curbing the demands of an unruly horde in some distant corner of the empire, Blaxter moved to his reason for rejecting the proposal before him:

There is a possibility that the celebration of Magna Carta Day in the Colonial Empire might be used for purposes very different from those we desire. In some colonies where ill-disposed politicians are ever on the lookout for opportunities to misrepresent our good intentions, its celebration might well cause embarrassment and in general there is a danger that the colonial peoples might be led into an uncritical enthusiasm for a document which they had not read but which they presumed to contain guarantees of every so-called right they might be interested at that moment in claiming.

Mr Blaxter’s letter (not quite as he intended perhaps) draws attention to a number of questions concerning Magna Carta’s influence upon the rule of law. I will look principally at the extent to which the rule of law in recent times has been affected by judicial activism.

At Runnymede in 1215 the barons’ demands were reduced to the form of a charter, but the peace didn’t last. The Pope purported to release King John from his undertakings on the grounds that they had been extracted under duress. With John’s death from dysentery in the following year Magna Carta was reissued as the new king’s coronation charter. Throughout the rest of the thirteenth century demands for reissue were a constantly recurring motif in the struggle between the monarch and the barons. In 1297, the Great Charter in its amended form was placed on the statute books of the realm. However, as appears from the American Bar Association’s memorial and from Mr Blaxter’s indignant letter, its power lay in its symbolism and moral force.

Four copies only of King John’s Magna Carta are thought to have survived—two are now in the British Library, one in Lincoln Cathedral and one at Salisbury. Many of the chapters concern the intricacies of feudal relationships, and many provisions were weeded out or supplemented as reissues of the Great Charter occurred. An inquiry into the Charter is made easier by grouping the chapters into several categories.

The essence of the Great Charter’s achievement with respect to the administration of justice can be glimpsed in a paraphrasing of its most famous clauses.

No free man shall be imprisoned or ruined except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice. Moreover, all these aforesaid customs and liberties shall be observed by all of our kingdom.

A rule of law, binding even the king, is suggested by these clauses. The concept is reinforced by other principles derived from the Great Charter which are thought to be characteristic of Western democracies, including parliamentary supremacy.

There is room for debate about the exact meaning of the phrase “rule of law”. In contemporary times it is generally understood to mean that individuals and agencies within the state are bound by laws made publicly and administered by an independent judiciary. In addition, laws made by parliament and rulings of the courts must be intelligible, within the capacity of most people to obey, and for the most part they must not be retrospective.

It is generally understood also that procedures governing the resolution of disputes by the courts should be fair, with questions of right and wrong being determined by the application of known law and not by the exercise of discretion. Put shortly, courts are expected to look at the law as it is, find the facts as they are, and apply the law to the relevant facts. An independent judiciary is thought to be one of the best guarantees against the exercise of arbitrary or unlawful power by the government of the day, and for that reason judges have tenure and are expected to renounce political causes or allegiances.

The principles concerning judicial independence are so long-­established, and so deeply engrained in the common law, that it doesn’t seem surprising to see them reflected in a list of resolutions composed by Sir Mathew Hale, Chief Justice of the King’s Bench from 1671 to 1676, to guide his own conduct. They can be presented in a truncated form as follows.

That in the execution of justice, I must lay aside my own passions, and not give way to them however provoked. That I will reserve myself unprejudiced until the whole case be heard. That in business capital, though my nature prompts me to pity, yet to consider that there is also pity due to the country. That I be not biased with passion to the poor, or favour to the rich. That popular or court applause or distaste have no influence into anything I do in the distribution of justice. If in criminals it be a measuring cast, to incline to mercy and acquittal. To abhor all private solicitations of whatever kind.

Resolutions of this kind could be regarded as equally applicable to present-day judges. Indeed, it is with such a thought in mind that I cannot forbear from calling attention to the final resolution on Sir Mathew Hale’s list: to be short and sparing at meals that I may be fitter for business.

Hale’s list indicates that judges should be impartial, objective, incorruptible, and not only decisive but accustomed to applying known law to established facts. The conventional view is that rulings made in this way will give a welcome degree of certainty to the law, for citizens and corporate bodies must know what the law is before they can be expected to obey it. Rulings should not be affected by the personal beliefs of the presiding judge or by the vagaries of public opinion.

Curiously, the conventional or legalistic view of a judge’s function was called into question recently by some other extra-judicial writings of Sir Mathew Hale. It happened in this way. A man was found guilty of rape on two occasions in South Australia, notwithstanding that at the time of the alleged offences in 1963 he was married to and cohabiting with the alleged victim. Upon appeal to the High Court, the man relied upon a proposition set out in Sir Mathew Hale’s The History of the Pleas of the Crown to the effect that a husband cannot be guilty of rape in such a case because consent is presumed. Hale’s proposition was apparently viewed as good law in the 1960s by the prosecuting authorities because no charges were laid at that time. It was accepted that the elements of the offence of rape identified in S48 of the Criminal Law Consolidation Act 1935 (SA) were supplied by the common law.

The man’s appeal was dismissed by a majority of the court: PGA (2012) HCA 21. Five of the seven judges held that if the marital immunity described by Hale was ever part of the common law of Australia it had ceased to be so by 1935. The majority referred to a “creative element” in judicial work and to certain permissible steps in that regard identified by a former Chief Justice of the High Court, Sir Owen Dixon, in a famous essay, “Concerning Judicial Method”. The majority went on to add another step which was thought to be “determinative of the present appeal”, namely, where by reason of statutory intervention or a shift in the case law, the initial rule has become no more than “a legal fiction”. Hence, having regard to the profound enhancement of women’s rights over the years as to property, suffrage, citizenship and matrimonial causes, any basis for a continued acceptance of Hale’s proposition had been removed.

The majority judges said that it was unnecessary to rely in general terms upon judicial perceptions today of changes in social circumstances and attitudes which had occurred in this country by 1935, even if it were an appropriate exercise of legal technique to do so. Their conclusion followed from the changes made by statute law, as then interpreted by the courts, before the enactment of the Criminal Law Consolidation Act.

It emerges, then, that the majority felt obliged to assert that they were proceeding in a conventional or strictly legalistic manner. No, they were not influenced by personal “perceptions” concerning the status of women in the modern world, and nor should it be assumed that they simply weren’t prepared to leave a wife without a remedy (even in respect of events that had taken place forty-seven years earlier when a marital immunity was thought to exist). Nonetheless, the majority ruling could be viewed as a disguised form of judicial activism. This may have contributed to the writing of powerful dissenting judgments by the minority—Justice Heydon and Justice Bell.

According to Justice Heydon, the effect of the majority view was this: conduct that no one saw as attracting criminal liability in 1963 did in fact attract that liability because, on a historical review of the law forty-seven years later, it was thought that changes in legal and social conditions had caused the conduct to become criminal. The step taken by the court conducting the review was said to be doing nothing more than removing an anachronistic fiction, but this was specious. The rule of law is based on the idea that the citizen should be ruled by laws and not by the whims of men. This means that only breaches of existing criminal law should be punishable—the citizen should be able to know beforehand what conduct is permitted and what forbidden, for only in that way can he order his affairs with certainty. When parliament creates a new crime, it almost invariably legislates for the future only. If a court manufactures a new crime it thereby determines after the event that the defendant’s conduct is a criminal offence. To countenance this type of retrospective criminal legislation means that certainty and consequently freedom are at an end.

Justice Bell’s dissenting judgment was equally forthright. The fact that reformative legislation had been enacted throughout Australia on the understanding that the marital immunity propounded by Hale was indeed a rule of law provided some evidence that it was. This was a good reason for the High Court not to treat the immunity as no defence to what happened before the reformative era. She said: “It is abhorrent to impose criminal liability on a person for an act or omission which, at the time it was done or omitted to be done, did not subject the person to a criminal punishment … the law should be known and accessible.”

This brings me to the nature of judicial creativity and to the question of whether there is need to revisit certain features of the rule of law, including the notion of judicial independence—a cornerstone of our democratic system.

Sir Owen Dixon, Chief Justice of the High Court from 1952 to 1964, was of the view that great forensic conflicts could only be properly resolved by “strict and complete legalism”. Close adherence to legal reasoning was principally for the sake of attaining uniformity, consistency and certainty. The mere fact that a case was new did not justify judges deciding it on their own view of what was just or expedient. The superior courts are bound by a strict doctrine of precedent for that very reason.

It emerges from the reasoning in the PGA case that Dixon’s view allowed for a “creative element” in judicial work, but limited to extending the application of accepted principles to new cases. It is clear that Dixon was opposed to what is now loosely described as “judicial activism”; that is, to use a definition provided by The Oxford Companion to the High Court, “a process of reasoning that openly takes account of contemporary but enduring community values when formulating legal rules or doctrines”.

A leading Australian jurist whose name is often associated with judicial activism is the former High Court judge Michael Kirby. In his book The Judges he described strict legalism as “a fairy tale”. He said that there are few observers in the judiciary who would deny that judges make law. If they have a function in making law, they have a function in its reform. In his view, the debate today is rather about “the principles by which these unelected lawmakers will perform their creative duties”.

There is obviously a certain force in the suggestion that judges make law. A judgment is the outcome of an evaluation, a weighing up of factors relevant to the dispute in question. The elements to be put into the scales are thought to be objectively defined, but the weight to be given to each factor, and the overall balance to be achieved, may vary from one judge to another. Moreover, by simply accepting that they are bound by the doctrine of precedent, many judges may unconsciously be reproducing in a new judgment certain hidden values underlying an existing rule, even though community practices have changed significantly. Legalism could become a cloak for the continued application of undisclosed policy values or complacent social assumptions.

The PGA case could be used to underpin a critique of this latter kind. The male appellant set up a defence of marital immunity, but the precedents he relied upon dated back to a time when the nature of marriage was entirely different. It might seem to an activist that to follow the precedents would conceal the fact that the conduct complained of was no longer acceptable.

In various cases Justice Kirby’s reasoning reflected the activist credo. In the Hindmarsh Island case, for example, in construing the race power vested in the federal parliament, he said:

My reasons are in part textual and contextual, in part affected by the “manifest abuse test”; in part influenced by the history of the power which I have outlined and in part affected by the common assumptions against the background of which the Australian constitution must be read today.

In a recent biography—Michael Kirby: Paradoxes /Principles by Professor A.J. Brown—the author mentions Justice Kirby’s Hamlyn Lectures, delivered to an audience in Cardiff in 2003. Having repeated his characterisation of strict legalism as “a fairy tale”, Justice Kirby indicated that when faced with a novel problem judges had regard to three great sources of guidance: legal authority, legal principle and legal policy. Professor Brown observed that “at the heart of Kirby’s trinity of legal sources lay the notion that ideally, legal principle and public policy were clearly distinguishable”, but it seems that the exact nature of the difference can only be fully established by a close reading of his judgments.

These lectures rounded off a significant phase in the legalism-versus-activism debate. Almost exactly twelve months earlier, in a manner which would probably have startled the applause-averse Sir Mathew Hale, Justice Kirby addressed the 34,000 people from across the world who had filled the Aussie Stadium for the opening of the 2002 Sydney Gay Games. In doing so, the “active judge” spoke of a future world where everyone can find their place and where their human rights and dignity will be upheld. Bringing the crowd to its feet—and prompting many to tears—Justice Kirby’s closing words featured on national television and were published worldwide: “by our lives let us be an example of respect for human rights”.

In the meantime, a number of equally eminent jurists continued to see merit in the more conventional judicial method contended for by Sir Owen Dixon—“legalism”—and were still troubled by what they saw as significant defects in the activist cause.

Common assumptions. Is a judge qualified to determine what are the common assumptions of the Australian people?

Unelected lawmakers. Are unelected judges entitled to impose their preferences or their perceptions about what is best for society in regard to human values and attitudes, when the essence of democracy is generally understood to be that elected lawmakers should decide matters of concern?

Human rights. An unequivocal commitment to human rights sounds virtuous (utopian perhaps), but as one right is usually limited by the presence of another, will such a commitment led to uncertainty in the law? According to the appellant in the PGA case, for example, the wife’s “right” to autonomy within a marriage was reduced to some extent in circumstances where it would subvert a countervailing right vested in her husband; that is, a right not to be prosecuted for a crime which didn’t exist when the act complained of was allegedly perpetrated. Will an emphasis upon human rights lead to a favouring of whichever rights are preferred by the unelected lawmakers?

Only a few days before the tumultuous proceedings at the Aussie Stadium described by Justice Kirby’s biographer, another widely respected judge, Justice Dyson Heydon, delivered an address—in a quieter vein—titled “Judicial Activism and the Death of the Rule of Law”. He endorsed Dixon’s approach to judicial method and noted that the rule of law operates as a bar to untrammelled discretionary power. In deciding cases a judge drew upon existing or readily discoverable legal sources. He was bound to identify what the crucial issue was and reach a decision on that and no other. The legalistic approach was underpinned by the doctrine of precedent, an approach which 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. This served to explain the common law approach of gradual development.

It still seemed true, Justice Heydon went on to say, that modern Australian judges were financially incorruptible, but there were two types of wholly illegitimate pressure pushing a judge away from probity, and evidencing judicial activism. The first was the desire to utter judicial opinions on every subject which may have arisen, however marginal. The second was the desire by ambitious judges 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.

The duty of a court, Heydon contended, as evidenced by the judicial oath, was not to make law but to do justice according to law. When judges detect the presence of particular community values as supporting their reasoning, they may become confused between the values they think the community actually holds and the values which they think the community should hold. Radical legal change is best effected by parliamentarians who have a long experience of assessing the popular will and have all the resources of the executive and the legislature to assist them.

It seems that Justice Heydon’s fears about the increasing influence of judicial activism were not allayed by his years of service on the High Court. Shortly after his retirement, in a piece published in the Australian Financial Review on April 5, 2013, Heydon reaffirmed his previous approval of legalism. He pointed out that each elector has the right to be treated as an autonomous moral being whose opinion on moral issues is taken into account. Each member of parliament is directly accountable to each individual elector in his or her constituency. Judges are not, because of their independence. There is more legitimacy in accountable legislators deciding social or moral issues than non-accountable judges.

The nature of the contest between the legalistic approach of Justice Heydon and the activist view to the contrary put by Justice Kirby is reflected in another decision of the High Court: Cattanach v Melchior (2003) HCA 38. In that case the appellant doctor was found to be guilty of negligence when the respondent mother became pregnant and gave birth to a healthy child after a sterilisation operation.

Justice Heydon observed (in a dissenting judgment) that there was no superior court authority favouring the damages sought by the respondent parents, namely, the reasonable costs of raising and maintaining the child until the age of eighteen. It was therefore up to the claimant parents to establish that the principles concerning recovery of damages could be extended. This could not be done persuasively because limiting attention to outgoings incurred during childhood would ignore some significant consequences of parenthood, such as the emotional and spiritual rewards it may bring. He said: “It is wrong to attempt to place a value on human life or on the expense of human life because human life is invaluable—incapable of effective or useful valuation.”

On the other hand, a majority of the High Court was prepared to approve the award of damages. Justice Kirby held that the claim was justified by the application of ordinary legal principles. He criticised Justice Heydon for denying relief on the grounds of emotive considerations and public policy, contrary to his usual opposition to criteria of that kind.

The Cattanach case could be taken to suggest that, in practice, when a need for judicial creativity arises due to the novelty of the circumstances, it may often be difficult to distinguish the judicial methods known respectively as legalism and activism. Nonetheless, within legal circles the debate runs on.

Justice Heydon is not alone in voicing misgivings about a perceived tendency on the part of activist judges in a modern (or perhaps a postmodern) world to give effect to their personal views, albeit presented as simply disposing of anachronistic fictions, or giving effect to current community values, or as a means of vindicating human rights.

The decision of the High Court in the well-known Mabo case was described by some commentators as a high point of judicial activism. The judgments of the majority effected a profound reversal in common-law doctrine relating to the proprietary claims of indigenous persons to their traditional lands. The majority expressly sought to bring Australian law into line with jurisdictions overseas, and with some of the judicial opinions acknowledging the relevance of human rights standards and community values. Justices Deane and Gaudron went so far as to declare that redress of the indigenous claimants’ position was required because until this was done “the nation as a whole must remain diminished”.

In the years that followed, notwithstanding Sir Mathew Hale’s cautionary maxims, members of the public have seen Federal Court judges being photographed in the presence of successful native title claimants. These photographs have been taken after the making of consent orders admittedly, but they are bound to leave an impression that the judges in question are doing more than simply applying the law: they are speaking for the community. Photographs of this kind may seem benign, but they continue to raise the question of whether, in the long run, legalism or activism represents the best judicial method.

In his recently published book Democracy in Decline, Professor James Allan contends that the exercise of judicial power by activist judges lacks legitimacy and can be regarded as interference with democratic decision-making by parliamentarians. He refers to a possible lack of diversity among those appointed as judges, especially if it comes to pass, as in the United Kingdom, that appointments to the bench are made pursuant to the recommendations of judicial commissions. The fear is, Allan contends, that we will end up with an insulated, self-selecting “lawyerly caste” whose views on same-sex marriage, abortion, euthanasia, how to balance criminal procedures and public safety and other contentious issues are noticeably at odds with those of the voting public.

This reference to a “lawyerly caste” points to a potential erosion of the rule of law of a slightly different kind from the case against judicial activism put by Justice Heydon. In his extra-judicial writings Heydon argued that the doctrine of precedent provided continuity, certainty and stability in the law. Thus, if judges, as a matter of conscious decision, and as a means of demonstrating that they are keeping the law up to date, purport to draw upon current social values in resolving disputes, then the rule of law would be undermined. That is because judicial decisions should not be made pursuant to latent judicial whims and assumptions, but upon the application of rules that are known or readily discoverable.

But are we now entering an entirely new phase of judicial activism? In years to come will up-to-date judges, as members of a “lawyerly caste”, set about their self-appointed task of reforming the law not as a matter of conscious decision, supported by accessible reasons, but rather, in an age of increasing conformity, pursuant to a number of assumptions that are never questioned; that is, all those assumptions about community values which are thought to be patently benign and generally shared by well-educated people? If decisions are made in such a manner, arrived at pursuant to current orthodoxies or supposedly self-evident assumptions that are so deeply entrenched as not to require reasons, the rule of law will be put at risk.

There was a time when law students were encouraged to study legal history and jurisprudence as a means of revealing the vagaries of legal systems, exploring the process of reform. That time seems to have passed. The young lawyer of good will who wishes to move beyond “bread and butter” issues, and look at the workings of the legal system with an inquiring gaze, now seems to be drawn immediately into the field of human rights and the removal of discrimination. This is where the action is thought to be. Unfortunately, however, the rhetoric of human rights can lead not only to an undue emphasis upon the predicament of complainants, and a push for justice in particular cases, but also to a lack of interest in the coherence of the legal system as a whole.

These days, lawyers who like to think they are moving with the times are inclined to revere the judge who eschews the old ways in order to achieve a “just result”. This brings with it a risk that the various ingredients of the rule of law, most of which are deeply rooted in legal history, will become blurred and possibly subsumed within a general but somewhat hazy notion that the rule of law stands for the righting of wrongs.

Hazy notions of this kind will lead to injustice, for just results depend ultimately upon the application of known rules by an independent judiciary pursuant to the workings of a stable and generally efficacious legal system. It will be difficult to eliminate discriminatory practices where rules are uncertain or not applied consistently. It will be impossible to remedy such practices where the legal system is chaotic or has broken down.

A clear understanding of what the rule of law stands for will foster objectivity, and enhance the prospect of doing justice by treating like cases alike. It will serve also as a useful reminder to the legal fraternity that the law cannot be expected to solve all problems. It is generally not the function of law to intrude upon the intimate moments or private lives of citizens, or to seek to impose particular patterns of behaviour, save for where it is necessary to preserve public order or to protect people from what is oppressive or injurious.

It was a thought of this kind presumably that lay behind a passage from a textbook mentioned by Justice Bell in the course of her dissenting judgment in the PGA case—a thought which has been overtaken by later changes to the law but may still serve to explain the former, long-established rule concerning marital immunity:

A husband should not walk in the shadow of the law of rape in trying to regulate his sexual relations with his wife. If a marriage runs into difficulty the criminal law should not give to either party to the marriage the power to visit more misery upon the other than is unavoidable in the nature of things.

Nicholas Hasluck’s book on law and literature Legal Limits (Federation Press) was reviewed in the March 2014 issue of Quadrant.


29 thoughts on “Judicial Activism and the Rule of Law

  • Rob Ellison says:

    “The High Court’s decision in PGA finds that the marital immunity for rape prosecution did not exist, as a matter of law, from 1935 to 1976 in South Australia. As there is one common law for Australia, this decision also determines the
    common law position in Victoria and NSW prior to statutory intervention. If not statute barred, marital rapes committed from 1935 are now liable to prosecution in the common law jurisdictions, with the odd proviso that only those marital rapes committed in aggravating circumstances are liable to prosecution in South Australia between 1976 and 1992. This decision does not affect the legal situation in the code states where rape in marriage was not a criminal offence prior to the statutory reforms of the 1980s.” Wendy Larcombe and Mary Heath

    So a tangled web of statutory and common law. It should be said that this particular violent offender was guilty of crimes that were without doubt crimes at the time and which were evident to the police even then. They advised the woman to seek medical attention.

    There is no doubt that the High Court is the guardian of common law. Not the parliament. In this case the majority argued that Hale’s morally repugnant, extra judicial proposition of in 1736 had – and never did – any force in law. Notwithstanding that laws subsequently made – and practices of proscecutors and police – implicitly endorsed the principle of immunity from prosecution for violence and rape in marriage.

    The dissidents argued that there was clear evidence of immunity from rape in marriage under common law applied through until the late 20th century. Larcombe and Heath argue that the dissidents are correct and that the judgement retrospectively absolves civil society of condoning violent crimes against women. I recommended this as having far greater clarity and depth than the poor offering above.

    In my view the majority is correct – notwithstanding the long standing justifications of rape and violence against women.
    Hale’s extra judicial proposition on immutable consent in marriage was unsound without a doubt either then or now – and it’s promulgation an error in law that did a great disservice to legions of women. It is moreover a very sour note on which to build a lament on judicial adventures.

    • Warty says:

      I had resolved to ignore your utterly dull ramblings and your infinite capacity for insulting the authors of some of the articles published in the Quadrant, but, I’m afraid your pompous little outbursts today are really beyond the pale. You state, with regard to Larcombe and Heath: ‘I recommend this as having greater clarity and depth than the poor offering above’. I mean, really, who on earth do you think you are? The second Solomon?
      And then your statement, again pompous: ‘In my view (who cares) the majority is correct (oh, how kind of you)- notwithstanding the long standing justifications of rape and violence against women (aha, I hear a little left wing political agenda rearing up). Hale’s extra judicial proposition on immutable consent in marriage was unsound without a doubt either now or then (mate, you can’t impose the thinking of this day and age on people living in the sixteen hundreds: it is plainly idiotic. His judgement was in keeping with the customs and beliefs of his time. Anyway,your pontifications, or anyone else’s will have little effect: the bloke is well and truly dead).

      • Rob Ellison says:

        As I said before – you offend too easily at free speech you disagree with. At any rate – both times I offered an alternative analysis. A different and more in depth analysis than possible here – which I presume you haven’t bothered with. This time covering the same material and essentially coming to similar conclusions – except that the laws on rape in marriage were morally repugnant.

        I presume I’m allowed an opinion? It is not a matter of imposing my view on times gone by – but failing to see how an extra judicial pronouncement had much weight in law – despite being taken up enthusiastically by prosecutors and politics. As Larcombe and Heath said – condoning violence against women in marriage. The majority decision was that this was evident in law by 1935 let alone 1963.

      • Rob Ellison says:

        “notwithstanding the long standing justifications of rape and violence against women (aha, I hear a little left wing political agenda rearing up).”

        No – this so called immunity allowed women to be raped. It is not left wing – or shouldn’t be – it is a fundamental concern for the dignity of life that emerges from the wellsprings of western freedoms. It is failing to note that this extra legal proposition allowed rape in marriage that most got my goat. All of the opinion allowed that this was an especially obnoxious law. The essential difference was in when it should be disallowed.

  • lloveday says:

    Quote: Judges are expected to be impartial and objective, accustomed to applying known law to established facts. Yet former High Court judge Michael Kirby writes that “unelected lawmakers”, by which he means fellow members of the judicial class, must “perform their creative duties”

    Kirby was appointed to various judicial positions while he was blatantly and knowingly breaking one of the laws that he adjudicated. It matters not whether the homosexual laws he was breaking were bad laws or not, it was wrong that he was imposing penalties on people, or confirming the penalties imposed by other judicial officers, for breaking certain laws while merrily breaking another.

    If he thought the homosexual laws were bad, which he assuredly did, the honourable and proper course would have been to resign (or not accept the appointment in the first place) and fight for decriminalisation in the proper forums.

    If a case involving homosexual law had come before him, how could he have possibly been “impartial and objective”?

    • Warty says:

      Right-on, LBLoveday!

    • Rob Ellison says:

      “Kirby became the youngest man appointed to federal judicial office in 1975, when he was appointed Deputy President of the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes.[6]

      In 1983, Kirby was appointed a judge in the Federal Court of Australia, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state’s legal system, in 1984.” Wikipedia

      Only the NSW Court of Appeal had a jurisdiction over criminal matters of that sort. Homosexuality was legalised in NSW in May 1984.

      • Jody says:

        However, up until that time Kirby was only too happy to disobey the law of the land! So, he had form. And his pathetic excuse when questioned about this later…”that law was never enforced”. This raises yet another issue: is a law a real law if it is never enforced? What does that say about the myriad laws regarding motorists and speeding, driving using fog lights and exceeding acceptable noise levels? Are they still laws despite never being enforced (presumably because of lack of resources in policing and pathetic follow-up from courts).

        So, I ask again…is a law still a law if on the statute books but not ‘enforced’ (and how do we know that a law is definitely not enforced.)

        Dodgy arguments altogether from a dodgy judge who has significant political prejudice.

        • Rob Ellison says:

          But the argument was that he was a judge at the time. Beyond the fallacy of shifting goalposts – there are questions of the laws standing in respect of enlightenment values. Principally equal treatment before the law and the right to privacy. More recently is a formal recognition that these laws were unjust in new laws that expunge past convictions.

          But I am not sure traffic laws are not enforced – or that they are inconsistent with hard won personal freedoms.

          • Jody says:

            Some traffic laws are not enforced. But you seem to be suggesting that the law regarding homosexuality was wrong. Be that as it may it was on the statute books as a law and equal treatment and privacy needed to be dealt with by the parliament, not by a member of the judiciary taking the law into his own hands. This surely is a bedrock principle of the enlightenment values which you seem to be avoiding.

            There are lots of laws I don’t agree with, but I’d have difficulty convincing myself that I can flout them because they are ‘bad laws’. If I was a high flying lawyer, however, I could use all kinds of casuistry to convince others that I was above them all!! But a skeptic like me would say, “no you’re not; if you don’t like the laws petition to have them changed by the parliament, otherwise if you break them you are breaking the law”.

        • Philby says:

          Could not agree more Jody. A fine and informative article by Hasluck that sends shivers up my spine.

      • lloveday says:

        Kirby was appointed to the HCA in 1996. Homosexual acts were decriminalized in Tasmania on May 13,1997.
        In the lead up to the decriminalization homosexual activists took the matter to the High Court, so faced with the state law being struck down by the HCA, of which Kirby was a member, Tasmania’s Upper House finally passed the law by one vote.

        • Rob Ellison says:

          It seems strained. Not doing anything illegal – unless he went to Tasmania to do the deed – implying that he was unfit to rule on the lawfulness or otherwise of the laws in Tasmania. Your original false insinuation was that he was ruling on these cases while breaking the law himself. Not relevant to the issue of judicial activism. This is a hypothetical that isn’t germane to the issue of judicial activism.

          These laws were unjust – not in accordance with freedom of conscience. equal standing before the law and the right to privacy we all want – and the convictions ultimately expunged.

          • lloveday says:

            “These laws were unjust” is an opinion, not an established, or even establishable fact. Nor is it relevant to Kirby’s habitual commission of criminal acts. I think many laws are unjust, and when I am break them (eg bike helmets, compulsory voting) I accept I am liable for and accept the consequences.

            “Your original false insinuation..”. You can make inferences, but cannot know what, if anything, I insinuated. It would be wrong, in my opinion, for eg, a Supreme Court judge to hear murder trials while he was habitually committing crimes that were only heard in Local Courts (eg shoplifting). Kirby, both as Deputy President of the Australian Conciliation and Arbitration Commission and as a Federal Court judge adjudicated Australian law while habitually breaking other Australian law.

            I cannot know whether he did “the deed” in Tasmania, but I am of the opinion it would be grossly improper for him to adjudicate on a law essentially the same as one he previously wantonly broke repeatedly, and one which he would be breaking were he to “do the deed” in Tasmania that he was currently doing in NSW.

            While he missed out by a few months on being President of the NSW Appeals Court while homosexual acts were illegal there, what about his spell as President of the Court of Appeal of Solomon Islands? Homosexual acts were illegal then, and still are, although again I can’t know whether he did “the deed” there. Whether or not, it is again, in my opinion, grossly improper that he could adjudicate on a law that if he behaved in Solomon Islands as he did in NSW while holding that SI judicial office, he would be liable for 5-14 years jail, depending on the manner of the “deed”.

          • Rob Ellison says:

            There laws were unjust and convictions expunged in Australian jurisdictions.


          • lloveday says:

            Neither whatever is at this link “” nor 1,000 more alter the fact that “Area = Length x Breadth” and “Edward Whitlam is dead” are facts whereas the fairness of a law is a matter of opinion. We can measure and determine the fairness of a roulette wheel, but we cannot determine that a law is fair or unfair just because some people think it is – there will always be others who think the opposite, and only the very arrogant “know” they are right and claim the others are unconditionally wrong.
            A contemporary example – activists howl that same-sex marriage is a matter of fairness. In the USA the Supreme Court voted 5-4 on the issue (not specifically on “fairness”, but in practice that was the issue). 5-4 sounds like a baseball score to me, not proof of the validity of law. 9 of the finest legal minds in the world, backed by unprecedented capable staff and resources split 5-4, but worse, they spit in a fashion that was the most widely predicted one. They seem to have voted according to their known personal beliefs, not in an impartial and objective manner – how else could so many have correctly predicted the outcome?
            Fact – the USA Supreme Court’s 5-4 determination is now law. Fact – that 5-4 vote does not make the law fair or unfair, nor will the opinions of you, me or millions of others on either side. Ditto NSW’s laws relating to homosexual acts.

          • Rob Ellison says:

            “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

            There are fundamental tenets of freedom which are not opinion but the passionately held and defended western heritage. One of these is equality before the law. In as far as the State makes laws regarding marriage – then all must be treated equally. Marriage to my mind, however, is a religious institution and the State should restrict itself to civil unions. To do other is to make a law on religion – to undermine freedom of religion. Which is another fundamental tenet.

  • Warty says:

    I couldn’t even begin to hope that you, Justice Nicholas Hasluck, might read this comment, but you never know.
    I have no legal background, but I found the article to be understandable, yet suitably profound, and uplifting for the intellect. There are, however, a couple of principles that provoke further questions, for instance, that ‘laws made by parliament and rulings of the court must be intelligible, within the capacity of most people to obey, and for the most part must not be retrospective’. For me, perfectly intelligible, and a fulcrum for much of your argument.
    I do understand that a great deal of statutory law is intentionally broad, as I believe so that it can be tested and expanded upon in courts of law (hence the executive, the parliament and the judiciary being parts of the way law is made and upheld in the Westminster System). And I know that much work was done in the 1970s, as I recall, to ensure that legislation at all levels of government should be composed in ‘plain English’, again so that it could be intelligible to those who need to comply. What I was wondering was how well section 18c, of Part II of the Racial Discrimination Act stacks up with regards to the Cindy Prior case (with respect to her actions against the three students who objected to being evicted from an Aboriginal computer lab and the Queensland University of Technology for their failings with respect to duty of care). I have no problems understanding section 18c, at a level, though it is so broad, it seems to undermine my capacity to obey, in other words it does not spell out for me how I might offend someone of out of the ordinary sensitivity, someone who is perhaps even pathologically fragile. These may have been tested to the full in common law, but how does that tie in with ‘the capacity of most people to obey’, or does ‘capacity for most people to obey’ mean ensuring one has a lawyer next one when one writes a potentially offensive post on Facebook ( I do understand that anything composed on social media is covered by the act) but it is the ‘capacity to obey’ bit that flummoxes me: I haven’t studied up on the relevant laws of precedent necessary to keep out of deep water.

    • Rob Ellison says:

      Wrong question Warty. Statutory law is either consistent or inconsistent with common law. Where consistent it is redundant and often seen seen as limiting rights. Where inconsistent the statutory law prevails. Unless parliamentary law is inconsistent with the constitution. That’s the right question. Is 18c consistent with our (implied) right to free speech?

      • Warty says:

        Hm, not so Rob Ellison. Section 18c, in the preamble, seeks to establish a balance between free speech and the rights of people of certain race not to be offended. The question still lies in the way the case against the students is consistent with 18c, seeing that their ‘posts’ do not seems to have been sufficiently offensive. Section 18c does not specify what is or isn’t offensive, as it is framed in a way that allows for interpretation, as a lot of statues are. The problem lies with the interpretation.

        • Rob Ellison says:

          And again you go off on some odd tack. What it sets out to do in the preamble is irrelevant. Especially if it is unconstitutional.

          “The authors of No Offence Intended: Why 18C is Wrong are unlikely to receive any invitations to a grievance industry soiree. They are quite firm in their conclusion that section 18C is wrong. It is wrong in law, which is to say it is not constitutional, and it is contrary to Australia’s common law traditions and liberal democracy.

          Section 18C is unconstitutional on two grounds. It is not supported by the external affairs power of the Constitution and it infringes the freedom of communication about government and political matters that is implied in the Constitution.

          The authors, however, are tough on racism. They recommend the Commonwealth Parliament enact legislation making incitement to violence based on race, colour, national or ethnic origin a crime. They argue that “racist speech not advocating racial enmity or racial violence” is better fought by civil society using freedom of expression and association, not by state restriction on speech.”

          We may as well add religion and sexuality at the same time. Personal and religion freedoms are of course fundamental western enlightenment values.

          18c restricts free by allowing the taking of offence at what might or might be protected speech made in good faith a criminal offence. In the case of the Queensland three it seemed reasonable if a little flippant to me – but someone found it offensive. And no it isn’t open to interpretation.

      • Jody says:

        Many of your comments seem to imply that human rights trump laws. You don’t say so in as many words but I get that distinct impression. I certainly got that impression from your response to my comments on homosexuality and the law and the disregarding of this by Michael Kirby. Again, I ask the question: “if the law is not enforced is it still a law”?

        If it is the case that human rights trump laws then it makes you wonder why a statutory bill of rights is needed in some states and nations. And it also suggests to my why so many people are opposed to such a notion, as am I. Like much else else in our society, laws appear to be watered down or subject to various interpretations. It is comparatively easy to personally tailor the application a law – or so it seems – if you have the intellectual and financial resources to challenge. This is inequality which puts economic inequality in the shade, IMO.

        • Rob Ellison says:

          Human rights have been around for a lot longer than the UN. Fundamental freedoms are the basis for the common law. Indeed the argument against a bill of rights is that they may act to curtail freedom. They started with the Magna Carta, were given new direction in the Reformation and codified in the Scottish Enlightenment – which had such a profound influence on English Law and early Australia culture. Laws incompatible with these fundamental freedoms – so hard won – are unconscionable and unjust. These rights and these freedoms are our heritage. Is an unjust law not enforced still unjust? Are we entitled to challenge injustices? Yes it is and so we are.

          There is a simple remedy to judicial activism. Parliaments make laws. But these laws must be in accord with the constitution.

          • Jody says:

            I can think of many unjust laws I could have challenged in my working life as a primary producer; the kind of laws framed by environmental activists which said my activities were ‘environmental vandalism’ as regards smell and dust. We had been in business 20 years and suddenly the ground rules changed; we were ordered to stop the odours crossing the fence line. Clearly this was impossible; ergo the law was unjust and unreasonable. However, we could do little to change our situation because the laws had been framed. We were not in the privileged position of activism and our human rights meant nothing. Only when I played the game did we finally win the fight; but it involved considerable obfuscation and dissembling!!

            Again, if a law is not enforced is it still a law?

          • Rob Ellison says:

            The most important limitation to freedom is the right of others to life, liberty and the pursuit of happiness.


            I can’t comment on the rights and wrongs of your situation. Other than to say that laws are evolved in the cut and thrust of politics. There is nothing sacrosanct about it. It is the city of man.

            There are certain inalienable rights – given by God – and the primary one is ownership of ones own body and the product of ones labour. The practices of rape in marriage – around which the discussion revolved – was a fundamental violation the God given rights of these women. Always was – always will be.

  • Jody says:

    I claimed the right to benefit from the product of one’s labour. The laws which were enacted were effectively retrospective because we had been trading under totally different conditions. I use this analogy to suggest that it was not our prerogative to get around them as Justice Kirby did because the laws were actually enforced (against others). The point you make about life, liberty and the pursuit of happiness has everything to do with the environmental laws which nearly crushed our business IF laws regarding homosexuality can be claimed to have affected the likes of Michael Kirby. The reasoning is exactly the same. But you don’t answer my question: is a law still a law if it is not enforced?

    • Rob Ellison says:

      I don’t know where you get the idea from – you merely attribute it to Kirby. That law was certainly enforced as late as 1983.

      It is the wrong question – misleading and leading the witness. I don’t have to answer however many times you repeat it. The right question is whether the law was unjust – and we have decided as a society that it was.

      The question of the duty to obey unjust laws goes back to Aristotle at least. The answer to that is that there is no duty to obey unjust laws if your conscience in good faith dictates otherwise.

      • Philby says:

        “The question of the duty to obey unjust laws goes back to Aristotle at least. The answer to that is that there is no duty to obey unjust laws if your conscience in good faith dictates otherwise.”

        Are you for real??

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