The High Court must address public misgivings about judicial activism

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.