The French High Court is not an activist High Court

The High Court is often criticised for judicial activism but there is little evidence that the current High Court is activist.

In constitutional cases, High Court judges are accused of activism if they make decisions that expand civil rights or freedoms, since we don't have a constitutionally-entrenched bill of rights, and the people who wrote our Constitution voted against having one.

This judicial activism is controversial because in constitutional cases what the High Court says goes. We (the punters) can only change the Constitution with a referendum, and proposals for referenda only succeed with bipartisan support. This is very unlikely in the current political environment.

Judicial activism in constitutional cases is properly scrutinised by the public because the High Court has the power to thwart government policies. On one level, that seems anti-democratic. Suspicions are aroused that the judges' decisions are based on personal policy preferences.

But it shouldn't be overlooked that in our common law, adversarial system of justice, the High Court is offered opposing accounts of the law from which they need to make hard choices. And since they are at the apex of the judiciary, they are powerful choices.

The High Court led by Chief Justice Robert French has not produced surprising constitutional decisions. Many of the French High Court's decisions in constitutional cases raising controversial civil liberties questions have merely involved the application of principles that have existed for centuries (particularly, the principle of the separation of powers that courts need to be, and be seen to be, independent of the government). So, for example, when the High Court recently upheld a constitutional challenge by former president of the Sydney chapter of the Hells Angels, Derek Wainohu, it was merely working out the implications of previous decisions invoking separation of powers principles dating to the 17^th and 18^th century. These were principles that were regarded as fundamental by the people who wrote our Constitution. And, it is worth noting, they were principles that, in a very real way, mark the difference between democratic countries that prize liberty, like Australia, and the despotic regimes that don't.

Now there are times when the High Court engages in judicial activism. When the Mason Court developed the implied freedom of political communication, many lawyers and scholars correctly pointed out that this was inconsistent with the intention of the people who wrote the Constitution, who voted against the inclusion of a bill of rights in our document (that's not the same thing as saying they didn't like the result – many of them, including me, did). But I have often wondered what would have happened if, instead of developing the implied freedom of political communication, the High Court led by Sir Anthony Mason had delivered a judgment that said "the Constitution does not guarantee freedom of speech, and if the Australian people want it, then they should approve a referendum proposal that will produce that result". It's hard to imagine the Australian people voting against a referendum that guaranteed freedom of political communication. The addition of a new section or sections of the Constitution guaranteeing freedom of political communication would have lent popular legitimacy to the free speech jurisprudence that has developed since. Settled constitutional language could also have made the provision of legal advice a more straightforward exercise.

But it's not the French Court's fault that the Mason Court developed the free speech doctrine. And if the High Court judges are invited to apply that legal doctrine or other doctrines to new circumstances, then we can hardly be surprised if they do strike down laws from time to time. Just because they do that does not mean that they are activists. My own impression is that they engage in their difficult task with enormous diligence and with exhaustive regard to the submissions of the parties and to precedent.