Put the brakes on judicial hoons

J'ACCUSE. I accuse some judges of naked, unvarnished judicial activism. I accuse them of distorting and destroying the democratic framework in Australia.

J'ACCUSE. I accuse some judges of naked, unvarnished judicial activism. I accuse them of distorting and destroying the democratic framework in Australia.

I accuse them of being, as Thomas Jefferson once said, "a subtle corps of sappers and miners constantly working underground to undermine the foundations" of our system of government.

We are indeed indebted to Jason Pierce for exposing to us for the first time the reality of this process. If you doubted that some judges regard parliament as a bunch of generally slow, incompetent populists whose legislation (or lack of it) needs to be corrected by a more intelligent class of being, look no further than Jason's book, Inside the Mason Court Revolution - The High Court of Australia Transformed. Let me give you a small selection from the smorgasbord on offer:

"Mabo ... broke a tension (that) the politicians were quite unable to break," one judge said. "If the High Court had not ruled against the idea of terra nullius, that would have been a political problem that we would not have been able to resolve through the ordinary democratic process."

Yet another Federal Court judge said the courts needed to step in when parliament "wimped out ... the whole issue is too divisive so it falls to the court to fill in".

Another judge suggested it was the duty of the judiciary to get out in front and educate the masses about the new activist role. He derided critics of Mabo as "vociferous redneck people" with "no sympathy for liberalism".

With a healthy dose of arrogance, and little regard for democracy, judges supposed that their role was to fill in the gaps. One judge described the Court's role as a necessary "void-filling exercise ... In the absence of a bill of rights, there is a void there that from time to time has to be filled". Another agreed: "In the absence of a bill of rights, I don't see any problem with the High Court reading by implication some implied rights into the Constitution."

These are not isolated. They are not accidental. They are deliberate. And dangerous. And there are more where this came from.

We have not yet reached crisis point - as they have in the US - where the very legitimacy of the courts, and thus community acceptance of their rulings, is threatened. But we will move closer to such a crisis if views such as the ones I mentioned prevail.

My second accusation is not aimed at judges, but at the legal profession as a whole. For what is the legal profession doing to fix the problem? Nothing.

Quite the opposite. The profession is trying to maintain the ability for judges to remain activist by pretending this is a purely legal issue, a purely technical issue of interest only to lawyers, and thus to be left to lawyers to solve. This device of treating the issue purely as a technical issue enables the profession to play its favourite delaying games, of obfuscation and complication. Death by definition, I call it. Judicial activism cannot be defined, ergo, judicial activism does not exist. It is simply some kind of fiction concocted by wicked conservatives who disagree with the substance of particular decisions.

That charge is simply nonsense. It is just another attempt by some in the legal profession to disregard judicial activism as an issue.

If lawyers continue to pontificate about judicial activism as a legal issue, they have got it wrong. This issue is more about power and politics than it is about the law. It is about who makes decisions on key issues, about who wields power and to what extent. It is about the legitimacy and community acceptance of our institutions.

If the legal community will not accept the challenge to properly address the issue, but instead continues to dance on the heads of pins, to engage in hairsplitting and denial in the face of clear evidence, we will end with a politicised judiciary.

Let me remind you that the appointment of US judges has been so politicised that it has become the subject of election promises and Senate filibusters. Many will recall the kerfuffle when Democrats challenged George W. Bush's federal court appointments in 2005. Those with an eye to history recognised this was not, as many claimed, unprecedented.

Certainly, between 1897 and 1968 the US Senate rejected only one candidate for the Supreme Court. However, by 1968 there was, as one writer has called it, an "ongoing donnybrook" where six candidates were rejected or withdrawn and four others confronted serious opposition. David Greenberg from Rutgers University has tracked how the "contentious era" began in June 1968 when president Lyndon B. Johnson tapped his old friend, associate justice Abe Fortas to replace the retiring Supreme Court chief justice Earl Warren.

Richard Nixon turned the Warren court's jurisprudence into an election issue, promising to appoint judges who would "interpret the Constitution" and not "legislate from the bench". The core reason for opposition to Fortas was ideology. And as Greenberg notes, both Republicans and conservative Southern Democrats (otherwise known as the Dixiecrats) loathed the Warren court's rulings on racial equality, sexual freedom, and the rights of the accused.

The defeat of the nomination of Fortas was the first in 38 years, but it would not be the last. In 1987, a new verb - to be "borked" - was born when the Senate rejected the confirmation of Robert Bork after an intensely political campaign by civil and women's rights groups. Their aim: to derail his appointment for his alleged desire to roll back civil rights decisions of the Warren and Burger courts.

And let's not forget that judicial decisions necessarily influence the political landscape. Decisions such as Roe v Wade galvanised the religious Right, which never accepted these matters should be decided by the courts, not parliaments. It is by no means far-fetched to say that Roe v Wade gave America George W. Bush. It horrifies liberals when I say that, but it's a case of the best of intentions having unintended consequences.

Of course, in the US their Bill of Rights gives the US Supreme Court a licence to decide social and political issues. But that has not saved the court from criticism or from the underlying fear that its decisions lack public acceptance.

In Australia, there is much less legitimacy in the view that courts can engage in activism. If you doubt that this is an issue in Australia, then let me suggest you need to get out more. You should see my email inbox every time I write a column about judicial activism. While not at US levels, there is a lot of concern - and yes, much anger - out there. Many ordinary Australians are losing respect for courts who believe they usurp the role of politicians.

No doubt much can be explained by the values gap between many judges and the bloke in the street. Doubt that? Well, once again let's defer to what the judges say. One judge told Pierce that "the composition of the judiciary has changed quite a bit. I suspect the social values of the judiciary have become more radical. I don't mean we are all raving comrades. But ... judges are ... to use the Americanism ... more liberal as a class." When asked to give examples of this more liberal judiciary, he replied: "Almost the entire membership of the Federal Court."

So let me suggest that this audience and the wider legal profession needs to take this issue on in good faith. It needs to stop fobbing off the concerns with paternalistic nodding and a quiet admonition of "there, there, you just leave this to us".

Reminding you about the evils of judicial activism - the arrogance, the democratic deficit, the lack of accountability, the incompetence of the judiciary to legislate - is the easy part.

The more important, and much harder task, is to stimulate a different kind of discussion than the one I suspect lawyers are used to: by suggesting that any definition of judicial activism must recognise the political context, not just the legal angle. A definition that gives the average Australian a say in determining the legitimate role of the courts.

I realise that by offering such a definition up to an audience of lawyers is a bit like offering up a Christian to the lions. It will be savaged by experts and its inevitable flaws mercilessly exposed, thus allowing lawyers to continue doing what they want to do. But here is the challenge.

The onus is on the lawyers - the real lawyers I mean, not former lawyers-cum-journalists like me - to come up with an appropriate definition. I will offer a definition as a trial balloon, a ritual sacrifice if you like.

But do not expect me to set down in stone "judicial activism according to Janet". Ultimately it is the lawyers who must do better than they have to date. If lawyers refuse to recognise the political implications of judicial activism, and find a way to control it, the profession will have failed.

WHEN judges tell us they are acting within their bounds by making law, they should not assume that the wider community agrees. Most people recognise when judges are making political decisions, moving beyond the bounds of the proper role of judges. When that happens, watch out. Political judges will start to be treated as politicians.

And that's why what the wider community thinks about judicial activism matters. By looking to the man in the street, I am not suggesting we engage in a popularity contest for courts and their decisions. It is not whether the man in the street likes or dislikes a decision. It is whether the man in the street thinks that a decision should have been made by the judiciary. It comes down to who should decide basic social and political issues. How many votes should we count? The seven men and women who comprise the High Court or the 16 million or so Australians on the electoral roll?

So my challenge is to get lawyers to think about a definition that takes account of that wider audience. I'll have a go at drafting the "people's definition of judicial activism".

It is not unreasonable to ask judges to look to what the man in the street thinks. They do so on a regular basis as part of their judicial role. When they imply terms into contracts, for example, they use a test that the term to be implied must be so obvious that "it goes without saying". So here is a start to our people's definition of judicial activism. If we are talking about judges interpreting statutes or the Constitution, the test may be whether a significant majority of Australians believe that it goes without saying that it falls to judges to decide a particular issue in the manner they did.

When it comes to the common law, let's agree that judges do properly make law. At common law, they always have. But as Harry Gibbs has noted, "to say that because judges make law, they are therefore justified in becoming judicial activists has just as much sense as saying that because motorists drive, they are therefore entitled to drive at an excessive speed." So the question is at what speed and when should judges make law? Should judges move the common law in small incremental steps or great leaps?

What converts a judge into a common law judicial hoon, transforming acceptable judicial law-making into unacceptable judicial activism, is the pace of change. Incremental change that goes no further than is absolutely necessary to decide a particular case is acceptable. Change which a significant majority of Australians would regard as an unacceptable, accelerated leap in the law should be left to parliament, not the courts, to decide.

Now we get to the political point of the issue. It is important that the measure be a significant majority of Australians. A 51 per cent vote may be fine to get a political party over the line in an election and thereby confer on them legitimacy to govern. But that's because the 49 per cent of voters know that in three years' time, the decision will be thrown open with the government they did not vote for standing for re-election.

You cannot consistently have 49 per cent of the people against you. Similarly, it is untenable that 49 per cent of the people consistently believe that the judiciary is usurping its role without there being serious consequences for the legitimacy of the judiciary. That situation would lead to intense controversy and ultimately to the view that judges ought to have limited terms and be elected.

That's why, in defining judicial activism, judges need to take account of what a substantial majority thinks about its decision-making. To summarise, for judicial lawmaking to be acceptable I submit that it must be so obvious that a substantial majority of Australians regard the change as incremental or reasonable that it goes without saying.

Now, as I have admitted, this is just a tentative start towards finding a definition of judicial activism that recognises this is a question of power, not just law. We need different tests of the proper judicial role depending on whether we are talking about judges interpreting the common law, ordinary statutes or the Constitution. What is essential is that these tests include what the man in the street regards as the proper role of the judiciary in each instance.

Now it's over to you, the experts. This is your job. You need to find a test that will ensure that our courts continue to be regarded as impartial, dispassionate, apolitical implementers of the law, not legislators. If you want judges who actively make law, let's elect them. That, of course, goes without saying.

Edited extract from a speech to the Constitutional Law Conference in Sydney yesterday. Janet Albrechtsen is a columnist for The Australian.