A New High Court: Justice Dyson Heydon
The recent appointment of Justice Dyson Heydon - a legal scholar with an international reputation who had been a member of the New South Wales Court of Appeal - has assisted the slow process whereby the formerly activist Court (which included Justices Mason, Brennan and Deane) is gradually becoming a generally respected institution which declares and applies the law instead of manufacturing it.
Justice Heydon expressed accurately and fairly in a speech on 30 October 2002 in regard to "judicial activism". He remarked of this concept that often its function "is the furthering of some political, moral or social programme: the law is seen not as the touchstone by which the case in hand is to be decided, but as a possible starting point or catalyst for developing a new system to solve a range of other cases".
These comments underscore the dangers which "judicial activism" creates, and which are exemplified by the Mabo and Wik decisions, by which law was manufactured by radical judges and a new class of "land rights" was created for Aboriginals, causing confusion and distress amongst significant numbers of Australians.
There has been a marked drift away from "judicial activism" during the past five years. But unfortunately the Court still includes Justice Michael Kirby, a homosexual rights activist, whose pre-occupation with this subject has rendered his judgments in other fields highly unreliable. And Justice Gummow unfortunately still remains on the Court, and has produced judgments that have been regarded as generally disappointing and not up to the required quality.
Despite its improvement over the preceding Brennan Court, the Gleeson Court has been disappointing. Its members have formed the habit of writing long and discursive judgments, often needlessly purporting to decide matters that are not in fact at issue. Too often these judgments comprise long essays on particular areas of law. They are insufficiently researched and are insufficiently scholarly. Although the poorest-quality judgments are those of Justice Kirby, the other members of the Court seem often not to resist the temptation to prepare unnecessarily prolix judgments of their own. Too often these judgments show signs of having been dictated: and for legal judgments dictation always involves looseness and a lack of concentration and rigour.
It may be hoped that Justice Heydon will model his judgments, not on those of his contemporaries, but on those of Sir Owen Dixon, Sir Wilfred Fullagar and Sir Harry Gibbs, the three greatest judges who have sat on the High Court. All three were masters of expression. They were succinct and wrote no more than was necessary for the case in question. And they were judges of complete integrity, who applied the law in accordance with their duty.
National Observer No. 56 - Autumn 2003