Hear Ye! Since 1998.
Please note: This post is at least 3 years old. Links may be broken, information may be out of date, and the views expressed in the post may no longer be held.
Dec 03

Parliament and the Courts

Lots of political activity as of late. Naturally Latham’s ascendancy to the helm of Labor gives the ALP a fresh shot of life, but I doubt that it will be enough to prevent Howard grabbing yet another term as PM. The Democrats are in turmoil (again). The drunkard, Bartlett, is refusing to step down, and I wonder if there will be a huge voter backlash during the next election? Actually, I was at a dinner last weekend where a certain Professor remarked to the table that Bartlett and Latham’s antics are nothing too outrageous. He noted that former PM Bob Hawke used to proposition women fairly frequently, and upon being rejected would toddle away spitting, “F*cking prostitute!” The media then was not as prominent as it is today.

Actually, I’ve always wondered what would happen if the coalition had a majority in both houses of parliament. Scary thought.

There’ve been a few shots fired at Justice Kirby in the SMH lately, fervently denouncing his championing of judicial activism. The latest has been by Padraic McGuinness. For many law students, Kirby’s activist and policy oriented judgments seem quite comfortable amidst the stodgy statements of the more formalist judges on the bench. Nonetheless, just as judicial activism twists things to create law (or at least reinterpret the law), formalist judgments can twist things to make them conform with age old precedent. This means judgments produced from both approaches can sit uncomfortably in the mind. McGuinness makes a very valid point about how policy research is the domain of academia, and not the judiciary, and therefore judges using “policy arguments” are in fact only appealing to their “common sense” and their own moral beliefs – which naturally may be incorrect. (However, anyone who’s read a Kirby judgment will know, by the sheer length of his writings and the amount of journal articles and international cases he cites, that his judgments are virtually research projects within themselves.) More telling is McGuinness’ point about how activism destabilises the certainty in law. And I think this is quite a strong point. An activist court could potentially create quite a lot of uncertainty for litigants. I don’t know what effect this would have, but can you imagine a whole bench filled with activist judges? Precedent would appear to be devalued.

It’s an interesting debate. Activism has its place (an example of the effects can be seen most lately in this link) and I certainly do feel comforted, to a limited extent, that activist judges do exist, but I’m not so sure that all the judiciary should be converting to activism en masse, as Kirby seems to be encouraging.

This post has 2 comments

1.  nate

the results of judicial activism may be prima facie right, but they are often won at the cost of the democratic process by which competing interests are resolved (via, e.g., give and take). that, of course, is rarely a good thing.

2.  saundo

the conservative background of most of the top bar means that activist judges such as Kirby will usually be in the minority. However, it is interesting to note that many of the seemingly radical (dissenting) judgments of Murphy have since become binding law.

Add a Comment

You must be logged in to post a comment.