Soigne, Fastidious Philosopher Kings

In today's Legal Systems seminar we're discussing judicial activism, with a bit of help from the Hon Dyson Heydon's famous Quadrant speech ("soigne, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary, our philosopher kings and enlightened despots"), the equally spirited 'Heydon Seek: Looking for Law in All the Wrong Places' by Allan Hutchinson in 29(1) Monash University Law Review (2003) 85-103, John Gava's 'Unconvincing and perplexing: Hutchinson and Stapleton on judging' in University of Queensland Law Journal (2007), 'A Blast from the Past: The Resurgence of Legal Formalism' by Frank Carriganin 27(1) Melbourne University Law Review (2003) 163-186, 'Cattanach v Melchior: Principle, Policy & Judicial Activism' by David Hamer in 1(2) University of New England Law Journal (2004) 225-238 and 'The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable' by Jane Stapleton in 24 Australian Bar Review (2003) 135-150.

Heydon sniffed in relation to Australian Capital Television v Commonwealth (1992) 177 CLR 106 that

the soigné, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary – our new philosopher-kings and enlightened despots – are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great beast, as Alexander Hamilton called it – ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.

In short, radical legal change is best effected by professional politicians who have a lifetime’s experience of assessing the popular will, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and fortuitous basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions.

Professional politicians may not be an ideal class, but they are better fitted than the courts to make radical legal changes. It is curious that the Mason court, whose members individually have tended to stress that the Constitution was made by the people of Australia, and who collectively implied into the Constitution a provision requiring freedom of political communication on the basis that the Constitution provided for representative democracy, whereby parliamentary legislators are chosen directly by the people, tended to treat itself as another legislature even though it was not chosen by the people.

It is difficult not to endorse Richard Ackland's comment regarding Cattanach v Melchior (2003) 215 CLR 1 that

Regardless of the job application speech, large quantities of judicial reasoning frequently involve coating personal values in what law is to hand to lend support. To suggest that is not activism or adventurism is really too much of a con to swallow. The principle to bear in mind when weighing the value of the commentary is that whenever a court's reasoning does not confirm to a conservative perception of values, then it is denounced as 'judicial activism'. Conversely, for a liberal minded person, a decision that favours conservative values invariably is said to be infected with 'excessive legalism'. They are entirely unhelpful labels deployed to enhance or rebuke judges according to the acceptability or otherwise of the values they bring to their task.