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...topic, the author asserts that creativity has always been part of the judicial function and duty in common law countries. He illustrates this statement by reference to the Australian Communist Party case, and specifically the reasons of Dixon J, often cited as the exemplar of judicial restraint. He suggests that judicial activism' has become code language for denouncing important judicial decisions with which conservative critics disagree. By reference to High Court decisions on the meaning of 'jury' in s 80 of the Australian Constitution and cases on constitutional free speech, legal defence of criminal accused and native title, he explains the necessities and justifications of some judicial creativity. He illustrates the dangers of a mind-lock of strict textualism and the futility of media and political bullying of judges who simply do their duty. Finally he calls for greater civility in the language of discourse on the proper limits of judicial decision-making.]
CONTENTS I Nostalgic Thoughts II The Australian Communist Party Case III Textual Mind-Lock IV Original Intent and Ancestor Worship V Decisions under Attack A Constitutional Free Speech B Legal Defence for the Indigent C Native Title VI Media Bullies and Judges VII Conclusion
Constitutional dangers exist no less in too little judicial activism as in too much. (1)
I NOSTALGIC THOUGHTS
It is a special pleasure for me to present these thoughts in a session chaired by Sir John Young. It is 30 years since I first met him in his chambers in Melbourne as Chief Justice of Victoria. I had just been appointed to chair the Australian Law Reform Commission, a new federal agency established to advise on the reform of federal laws. I had the privilege of meeting the distinguished judges of the Supreme Court of Victoria who were members of the Chief Justice's Law Reform Committee. They included Sir Oliver Gillard, Sir Murray McInerney and Mr Justice Cliff Menhennitt. They were fine and talented judges. I learned much from them and from Sir John Young himself.
He, in turn, had learned from his mentors, especially Sir Owen Dixon. He served for a time as associate to that great Australian judge and Chief Justice. Dixon J has been praised for his adherence to the legal method. However, like all great judges of the common law tradition, he knew that the law cannot stand still. It moves and adapts to changing circumstances and different times. Those who deny this fact are wilfully blind to the realities of the judicial tradition to which we, the people of Britain, the United States and Australia, are heir. In our legal system, the judges are law-makers. They are not law-makers in the bold tradition of the other branches of government--the legislature and the executive. But law-making is part of the judicial function. Let there be no mistake about this.
To the blind or false-sayers who ignore or deny these simple facts, a question must be posed. Where else did the common law of England and its offshoots in America and Australia come from, if not from the judges? Look around the room of any judge or lawyer of our tradition and you will find bookshelves full of casebooks with legal exposition, explanation and development. It is not that the judges cannot help themselves. It is that, being a judge in our legal system necessarily involves the office-holder in a creative function. Recorded in those law books, indeed found on virtually every page, are the legal principles that form the bedrock of our system of law and precedent. It is as well that these home truths should be stated at the beginning of this conversazione so that those who live in the dream world where judges make no law can be given a rude awakening. Let them throw off their slumbers and be alert to the reality that surrounds them, if only they will look.
Nostalgic dreams of judges without choices, devoid of creativity, abjuring all 'activism', may be found in fairy stories. But for judges, lawyers and citizens who are obliged to live in the real world, it is necessary to face up to the requirements of judicial choice. Choice about the meaning of a constitutional text. Choice about the interpretation of ambiguous legislation. Choice about the application, extension, confinement or elaboration of old principles of the common law to new facts, circumstances and times.
I did not think, so long after I was taught these basic rudiments about judicial choice, by my great professor and teacher of jurisprudence Julius Stone, that I would be obliged to come to an intellectual occasion to repeat the self-evident truths that he imparted nearly 50 years ago at the Sydney Law School. Stone was a disciple of Roscoe Pound. Indeed, Stone was almost appointed Dean of the Harvard Law School in succession to Pound in the 1930s. Had that happened, we would, to our great disadvantage, have lost the impact of his intellect and teaching in the Southern Hemisphere. But he came to these parts. He taught the truths that Roscoe Pound had taught. He made us face the realities of judicial choice. He required his students to acknowledge those realities. The students went on to become judges, lawyers and law teachers. The mask or blindfold of choice-free legal and judicial activity was cast aside. The debate moved to a higher plane.
In that plane we ask not whether there is judicial activism. Of course there is. It is the very essence of the brilliant system of law that the ancient English judges developed and bequeathed to us. The real debate is, and should be, when faced with inescapable choice, whether judges should take this step or that. Whether they should prefer this meaning to the other. Whether they should accept this interpretation and reject the opposite. In short, the debate about judicial activism is largely a phoney debate. Judicial activism has become a code phrase for denunciation and demonisation, mainly by people of a conservative social and professional disposition. If we pretend to an intellectual approach to the judicial function, we must do better than this. We must attempt to identify the circumstances when a further step in legal doctrine is justifiable according to past authority, legal principle and policy. And when it is not.
So I start these remarks with the briefest of obeisance to nostalgic thoughts, yet with a clear-sighted realism about the way judges actually perform their duties. And an appreciation that the success of the common law system has derived from the very way in which it combines, in judicial choices, the capacity to stand still at the very time that it finds the momentum to move forward. Denial of this inherent dualism in our legal order is absurd. It is also unworthy because the capacity of our law to adjust to radically changing circumstances is the very essence of its genius.
II THE AUSTRALIAN COMMUNIST PARTY CASE
Sir Owen Dixon, who was successively a Justice of the High Court and Chief Justice of Australia from 1929 to 1964, is famous in Australia for his defence of 'strict legalism', (2) particularly in the resolution of the hard-fought battles over the division of powers in the Federation. However, even in such matters, Dixon J was far from being an advocate of standing still. He realised that, in controversies of great moment, it was frequently necessary to reach for new tools and new ways of resolving issues of legal and social significance.
Dixon J showed his skills most clearly in his leading opinion in Australian Communist Party v Commonwealth. (3) It is a decision that I have a personal reason to remember quite vividly. It was, in my view, Dixon J's wisest and finest judicial hour. It is appropriate that we in Australia (and perhaps our friends elsewhere) should remember the case at a moment, such as the present, when unrestrained voices are raised urging us to cast aside our traditional liberties in response to the perceived threat of terrorism.
In 1950, the terrorists, so far as Australia was concerned, were the communists. (4) They, or their Russian and Chinese comrades, had undoubted access to weapons of mass destruction. They, or their 'evil empire', made claims to world hegemony. They propounded their doctrine, rather like a religion, and were intolerant of those who did not share their messianic views. There was a real concern, reinforced...
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