This is the editorial from The Australian
High court not a law unto itself
A US book has unmasked Australia's highest court | July 16, 2007
GONE may be the days when it was frowned upon for judges to socialise outside their circle of judicial peers, but it is hard to believe that they have better antennae for community sentiment than politicians who are forced to present their wares to the public for election on a regular basis. This point is central to the issue of judicial activism highlighted by US academic Jason L. Pierce in his book, Inside the Mason Court Revolution. The debate is all the more pressing with the federal Government preparing to announce a replacement for retiring High Court judge Ian Callinan under a system that pays lip service to consultation but is, unlike the US system of appointments to the Supreme Court, a winner-takes-all fait accompli by executive government.
Pierce's book draws from a series of anonymous interviews with 80 of Australia's most senior judges. As reported in The Weekend Australian, the book highlights the deep divisions that still exist within Australia's highest court over its transformation under chief justice Anthony Mason from caretaker to creator of the law.
Mason's tenure as chief justice from 1987-95 followed the closing off of all appeals to the Privy Council in 1986, freeing the High Court from oversight. The result, as told to Pierce by the judges, was a "hyperactive", "adventurous", "incomparably activist" High Court "composed of judicial legislators (and) controlled by Jacobins." The judges were "under the influence of left-wing theorists", "deciding cases as Marx or Freud would have", "defying common sense", "moving the goal posts instead of just deciding if a goal had been scored", and "overcome with delusions of grandeur".
Among those interviewed were High Court Chief Justice Murray Gleeson, nine current and retired High Court judges, 24 Federal Court judges, five chief justices from the states and territories and some of the most senior state judges. Their unguarded comments make it clear that a desire for judicial activism remains alive and well.
One Victorian appellate judge said he did not believe the country could move forward unless the High Court was prepared to take risks and that it took parliaments a hell of a long time to make laws reflecting community feeling. One Mason court judge went as far as to say critics of the Mabo decision - which rejected the notion of terra nullius and opened the way for recognition of native title rights for indigenous Australians - were vociferous rednecks with no sympathy for liberalism. One does not have to disagree with the High Court's reasoning on Mabo to feel uncomfortable at such sentiments when expressed by judicial officers who are appointed with little or no public input or debate and, once appointed, are nearly impossible to remove.
The more convincing argument is that laws are best made by those most directly responsible to the public through regular elections. As one judge told Pierce, in seeking to override the parliamentary process on lawmaking, the judiciary may not be as fully informed about the process and public opinion as they would like to think they are. It is indeed, as another judge said, dangerous for judges to arrogate to themselves the function of identifying majority or community standards.
The issues raised by Pierce are of particular interest now as the federal Government prepares to appoint three new High Court justices in less than two years. A replacement for Justice Callinan, who steps down on September 1 after reaching the statutory retirement age of 70, is expected at any time. Chief Justice Murray Gleeson is due to retire in 2008 and Michael Kirby the following year.
With debate still alive as to how the High Court should interpret its relationship to executive government, the potential is clearly there to shift the balance in favour of either a more conservative or progressive stance. Of course, in attempting to mould the make-up of a court to its liking, no government is guaranteed to always get what it bargained for.
What Pierce's book highlights is the need for much wider debate concerning both the appointment of judges and the debate taking place among office holders within the court. It is unfortunate that the candid comments published by Pierce could only be elicited and made public on the basis of anonymity to be published in a foreign country.
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http://www.theaustralian.news.com.au/story/0,25197,22079286-23069,00.html 
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Topic: The High Court - should it leave law making to parliament? (Read 2498 times)