The High Court must address public misgivings about judicial activism

The High Court's centenary this week rightly brings celebrations of its triumphs as the ultimate constitutional umpire and defender of the rule of law. Yet there is still public confusion about the Court's law-making. Both the Court and the Howard government have institutional roles in raising the level of public legal literacy and undoing the harm caused by unjustified political complaints of judicial activism.

High Court Chief Justice Murray Gleeson currently makes much of the seven judges' failure to split along lines matching the political colours of the governments appointing them. However this does not prove that the Court is completely apolitical. Partisan politics is only one way in which politics, ideology, and values could affect law.

The most pernicious lingering myth is that only parliaments make law, judges simply apply it, and judges who change precedent too much or against political expectations are undemocratic judicial activists. In a new book, I argue that this public misconception is exacerbated because different sections of the Australian community hold fundamentally different views about the nature of law and justice, so that we are often stuck talking at cross-purposes about legal controversies.

Labelling judges as undemocratic activists is sometimes just code for governmental dissatisfaction with inconvenient judicial outcomes, especially in politically sensitive areas like native title and immigration detention. Incoming Attorney-General Phillip Ruddock must now defend courts which he and other Howard government ministers have accused of activism.

Still, governments don't mind judicial activism when it suits them politically. Liberal US Supreme Court judges first clothed women's abortion rights with constitutional protection in the 1970s, but President George W. Bush won't lose too much sleep if conservative judges roll back that protection. To paraphrase one American judge, calls for judicial intervention or restraint depend on "whose ox is being gored".

Just before his elevation to the High Court last year, Justice Dyson Heydon castigated what he perceived as the Court's judicial activism mainly during Sir Anthony Mason's tenure as chief justice. The Mason years produced landmark decisions like Mabo and implicit constitutional protection of political free speech. Instead, Heydon endorsed the legalistic philosophy of judging associated with the much-respected Sir Owen Dixon. He called for judges to leave to politicians any ground-breaking legal changes which might disturb the settled legal and political order.

This approach favours incremental law-making, the collective wisdom of precedent, and Dixon's methodology of "strict logic and high technique". It views judicial activism monolithically, and demonises it as a threat to the rule of law. However, the suggested dichotomy between legalism ("hooray") and judicial activism ("boo") is unhelpful, as there is much room for argument about different ways of doing justice according to law. Indeed, both legalism and activism have a spectrum of meanings.

Few people from politics, law, or academia dissented publicly from Justice Heydon's resurrection of one kind of legalism. Yet more than one of his current High Court colleagues is on record exposing strict legalism's weaknesses, with one likening it to a fairytale. Sir Anthony Mason briefly responded by bemoaning the Gleeson Court's backtrack towards legalism, which "conceals rather than reveals the reasoning process". We shouldn't leave public debate about this topic mainly to judges.

Landmark cases like the High Court's decision this year on medical negligence causing an unplanned pregnancy demonstrate the unhelpfulness of analysing cases along a spectrum between legalism and activism. The Court narrowly decided that negligent doctors could be liable for the reasonable costs of child-raising until adulthood. All seven judges grappled with public policy issues, with the outcome turning on which set of policy interests each judge favoured.

Chief Justice Murray Gleeson thought the answer depended on "general principles, based upon legal values". Justice Ian Callinan pointed to the influence of judges' "own social values" and not just "strict legal principle". Even Justice Dyson Heydon acknowledged the relevance of "the law's assumptions about some key values in family life as reflected in the unenacted and enacted law". These candid judicial admissions show that precedent only takes you so far in difficult cases.

Legalism's supporters might argue that it is one thing for judges to use values entrenched in legislation and judge-made law to extend liability for medical negligence incrementally. It is another thing altogether to overturn a century of property law assumptions in Mabo to recognise native title, based partly on the contemporary values of the Australian people. This is a debate worth having. Yet Mabo's non-discrimination principle also underlies much Australian law. Moreover, both following and changing precedent involves choices and affirmation of particular values and interests over others.

Denying legalism does not mean that judges should interfere in politics, overturn precedent willy-nilly, or have carte blanche to do whatever they like. That throws out the legal baby with the bathwater. It just means that legalism offers an incomplete view of judicial reasoning and law-making boundaries between courts and parliaments.

In the end, this is really an ideological battle over competing approaches to judging. It is also a battle over which sets of choices, values, and public interests deserve support as the policy of the judge-made law.

Unfortunately Heydon's own definition of judicial activism forecloses rather than opens debate about competing judicial philosophies. He defines judicial activism as "using judicial power for a purpose other than that for which it was granted", such as "the furthering of some political, moral or social programme". Yet this simply contrasts legalism with the "bogeymen" of idiosyncrasy and political activism. There is much in between.

Though it has many supporters in law and politics, legalism offers only a veneer of certainty. It risks making law seem less value-laden, more interpretation-free, and less infused with choice-making opportunities than is often the case. Law is not always as clear-cut as legalism suggests.

Legalism cannot immunise judges from grappling with difficult public policy questions, even if they don't do that at large in the way that politicians do. The High Court remains reluctant to acknowledge fully its legal ideology, public policy choices, and range of non-legal influences. Yet the Court sets the legal tone. We shall be stuck in a legal time-warp if legalism re-emerges as the default mindset of the Australian judiciary and legal profession.