How judicial activism results in the death of the rule of law in Australia

Retrospectivity. Most parliamentary legislation takes effect only on or after enactment. This enables those affected by it to adjust to it in advance. But judicial legislation can only be retrospective. 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.

Decisiveness. There can be total chaos within, and total contradiction between, the reasoning of each of the judges favouring the majority orders. 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 but 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. Yet the proliferation of dicta caused endless speculation at all levels of the court system. The harm caused would have been much less likely if parliamentary legislation had been employed.

Inconsistency. When courts effect radical judicial change, 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 Queensland (No 2) (1992) recognised native title, the then Labor government decided that it was necessary to create a legislative regime. The result was the Native Title Act 1993. Parliament, relying on what had been explicitly said in the Mabo case by Brennan J (Mason CJ and McHugh J concurring), assumed that it was to operate on the basis that Crown leases, like the Crown grant of a fee simple, extinguished native title.

Wik Peoples v Queensland (1996) departed from that assumption, over the dissent of Brennan CJ and McHugh J as well as Dawson J, to the consternation of politicians of all parties.

It is questionable whether it is the proper role of the courts to introduce radical changes of this kind which Parliament had not done. 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.

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 New South Wales, for example, claims by pedestrians in relation to tripping on footpaths comprise the majority of claims against councils and constitute the single most expensive source of public liability claims. Last year the New South Wales government announced that it proposed to nullify the majority decision by legislation. Decisions like those in Brodie have the effect of requiring public expenditure on particular purposes to be increased, to the detriment of expenditure on other purposes. Those are choices conventionally regarded as being for the executive.

Indeterminate justifications. Finally, another undesirable element in some recent judicial changes in the law is that they are based on very indeterminate grounds. 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.

Radical legal change is best effected by professional politicians who have a lifetime's experience of assessing the popular will. They may not be an ideal class, but they are better fitted than the courts to make radical legal changes.

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.