Should Judges
Make Law?
From Part 1 of 'The High Court In Mabo' (1995)

Without casting any aspersion whatever on the party political nature of High Court decision making, the reality is that the political philosophy, ethical values, prejudices and individual idiosyncrasies of the judges become dominant when judges indulge in wide ranging law reform.

Justice Michael Kirby in a newspaper article argues as follows:

Powerful media interests and others have resisted reforms; Parliament has shown itself spineless. Little wonder people are now turning to the courts to extract from the Constitution the fundamental rights which Parliament has been ineffective to protect. (Kirby 1993)

Justice Kirby's article is about judges inserting a Bill of Rights in the constitution because parliament and the people have failed to do so. Parliament often shows itself "spineless" (to use Kirby's adjective) — in the face of the views of the people and special interest groups. In this context (and for much of the article) Kirby ignores the reality that Parliament also responds to the people.

What are Kirby's views (which would probably coincide with those of the six judges in Mabo) on democracy and the views of the people?

Kirby argues

"Far from activist courts usurping the role of the parliaments, they might have only filled vacuums left by vacillating or spineless parliaments" (Kirby 1993).

He does not mention the people directly. But he mentions in the article the referendum proposals that were rejected by the people and argues that the courts must fill the vacuum. It must follow that (though Kirby does not state this) that the people are vacillating or spineless — or perhaps ignorant, reactionary, conservative or foolish and therefore deceived in public debate.

Faced with a situation of failure of action by Parliament (whether in response to views of people or special interest groups), should power to effect change be entrusted to judges to over ride the people and Parliament, especially in relation to fundamental constitutional issues, such as Mabo which arguably deprive State Parliaments of powers which they possessed? The Mabo Edict may take away the powers of State Parliaments. There are serious doubts as to whether the State Parliament has power to reverse the effects of the decision in view of the Commonwealth Racial Discrimination Act, section 109 of the Commonwealth Constitution and conflicting Commonwealth legislation. Thus the Mabo Edict has amended State Constitutions.

The Mabo Edict has also substantially affected property rights. If the Commonwealth Parliament had attempted to affect property rights in the same manner as obiter dicta in the Mabo Edict seems to do, the legislation would have been held invalid under section 51 (xxxi) of the Constitution, and may also be invalid under other provisions of the Constitution.

Such wide and sweeping powers cannot and must not be conceded to judges.

The Chief Justice has justified the process of judicial law making by reference to the need to provide judgements which are "humane, practical and just" and in accordance with fundamental and community values. (Mason 1987:157-59)

Such a formulation provides a slippery slope for judges. Judges will have vastly different conceptions of what is humane, practical and just.

What are fundamental values? Fundamental values of a Marxist, a Socialist, democratic socialist, an anarchist, or objectivist, a Liberal, a Libertarian, or a traditional moralist, are different. Sir Anthony then proceeds to refer to

"by values I mean those that are accepted by the community rather than those personal to the judge".

Sir Anthony is apparently confusing community values and fundamental values. There is, however, no indication that Sir Anthony, in his judgments on the common law and the constitution which have involved departures from existing precedent, has paid any regard to community values. How are community values to be assessed?

Sir Anthony's judgments do seem to reflect the dominant values of the academic community — are these community values? The Roy Morgan study of the Values of the Australian People, coordinated and published by a respected and impartial organisation, has found that only 4% of the Australian people favour more intervention in the lives of ordinary Australians. Yet one of the bases of Sir Anthony Mason's interpretation of the Constitution is that it must be interpreted so as to provide more room for Parliaments to operate. One may ask "Where is Sir Anthony's respect for community values?'

Unbounded Intellectual Arrogance
The above words of Sir Anthony Mason demonstrate unbounded intellectual arrogance. The intellectual arrogance lies in the belief that a High Court (sometimes by a majority of one) has power and the obligation to rewrite the common law, legislation or the Constitution itself drafted by a body elected by the people consisting of persons of diverse backgrounds and philosophies, versed in politics as well as in constitutional law. Does it not enter into the minds of the High Court Judges that they are not infallible and that they may be wrong or misguided? If so, should they not desist from their belief that they should proceed with making law and re-writing State and Commonwealth Constitutions? The unbounded intellectual arrogance lies in the belief of a small number of judges in the High Court that they have the duty and the obligation to re-write the law and the Constitution.

There is also an apparent contempt for the political processes in government.

The role of the judge in the modern era of Parliamentary dominance is to interpret law.

Parliament and government are eventually accountable to the people. This is the legitimising process for Parliament enacting legislation. It is the reason why a tiny group of unelected and unrepresentative judges should not and cannot make law. Their law making capacity is restricted to a narrow role within interpretation. Legislation by Parliament is preceded by (should be preceded by) public discussion. Prior to the presentation of a proposed law there is scope for those affected to express their views about the legislation. The proposed law is debated in parliament. The judges in Mabo have taken upon themselves the law making role. They have produced a judgment which is deeply divisive and is open to many objections. The judgment itself has not even been preceded by any discussion before the court of the pros and cons of the extension after argument of the same principle applied to the Murray Islanders to the Aborigines. I have reservations about the political process. The influence of minority special interest groups is pervasive. But, with all its limitations Parliament is infinitely more capable of (or perhaps less incapable of) legislating on fundamental public policy issues than the High Court.

Is the Mabo Edict in accordance with the expectations of the Australian people? How would the Australian people respond if they had the opportunity of expressing their views in a referendum about the Mabo Edict, having been informed of the full implications. This would have involved a focus on providing justice for the Australian people as a whole and for the Aboriginal people, the problem of the Aborigines, the economic implications including the cost of compensation for those who lose rights to land and the extent of the transfer of land which will take place. The answer of the Australian people would have been a resounding "NO".

The Australian people have also demonstrated through referendums that they have a marked disinclination to provide more power to a government and Parliament in Canberra. This is not the conservativeness of the Australian people or scare tactics used in referendum campaigns. The real reason for failure of referenda is the people's disinclination to confer power on the Commonwealth Parliament and Government.

There seems little or no doubt that the answer of the Australian people will be a resounding "NO".

These comments are provided in the context of the argument by supporters of Mabo that the people support the judgement. Whether the Australian people are justified in their answer is a different issue, which is analysed below.