The human rights furphy of ‘activist judges’

My grandmother was a wise woman, in a practical way. Do one thing at a time and do it well, she said. Janet Albrechtsen recently tried to do three things at once. But to be fair, Albrechtsen didn’t know my grandmother.

Her article [‘Judges There To Serve The Law, Not Make It’, Sydney Morning Herald, 9 April 2001] criticises ‘activist judges’, ‘left-leaning liberals’ and the idea of a bill of rights. Along the way is a failed attempt to identify activist judges as left-leaning liberals.

I think Grandma would say that, in the end, Albrechtsen’s thesis is that a bill of rights allows activist judges to undermine governments’ authority to govern. Disparaging left-leaning liberals is irrelevant, though it takes the greater part of the article.

Albrechtsen criticises liberal judges for subverting democracy. She invokes the authority of the gleefully arch-conservative journalist Mark Steyn who promoted the phrase ‘the FU movement’ to describe ‘leftist’ and ‘activist’ judges who make decisions which don’t meet a conservative social agenda.

Albrechtsen agrees with Steyn, at length, but then concedes that conservative judges are just as likely to be ‘activist’ so that ‘we can’t trust judicial activists from either side’.

Albrechtsen’s position comes down to this: all judges who ‘seek to entrench their views on what makes a fair society’ are activist judges and anti-democratic. In keeping with the retort ‘FU’, it is tempting to say that is simply BS. But the real position is a little more complex.

All decision-makers with experience and opinions are ‘activist’. Judicial officers are not machines. They have a democratic function to exercise judgment.

A refined version of Albrechtsen’s complaint would be that most judicial decisions are made within bounds set by Parliament and precedent, and that ‘activism’ is an issue at only the highest levels of judicial decision-making, where the bounds are sometimes so wide as to be uncharted. That takes us to the High Court.

Yes, High Court judges have experience, opinions, values and politics. That is because they are people. They are also selected and appointed by the government, and authorised to play a part in the process of law-making.

How each judge sees a novel issue differs according to her or his values.  That is why there are seven of them; that is why the court divides in opinion. No case of importance is decided by only one judge, and what is decided can be overturned by legislation. Nothing is entrenched, and one judge’s world view does not become law.

It would be more constructive to accept judges as people, and to look at ways of ensuring that their views are broadly representative. Albrechtsen relates this non-issue of ‘activist judges subverting democracy’ to an ‘amorphous’ bill of rights which would give ‘free rein to law reform by judicial fiat’.

But a bill of rights need not be amorphous. In other countries it is as precise as existing legislation in Australia that prohibits discrimination or guarantees privacy. Judges will interpret and exercise judgment as necessary, as usual.

Albrechtsen sets up an unrealistic, unlikely bill of rights to highlight the dangers of her brand of activist judge. But understand a real bill of rights, as it is in Canada, Britain or New Zealand, and her argument fails.

Significantly, other countries usually limit the extent to which a court can give effect to rights. The Canadian Charter guarantees are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

Albrechtsen’s concern that a radical left-leaning judiciary would hijack an Australian bill of rights is ironic. Australia is so conservative about change that it is the only Western democracy not to have legislated a guarantee of fundamental freedoms.

Maybe Australia’s attitude is appropriate. Maybe Australia alone doesn’t need to go down the path of all similar cultures and political systems. But first Australia needs to openly and confidently debate the issues, such happened at the NSW Parliament’s Bill of Rights Inquiry.

Such a debate would avoid the diverting but pointless excursions into name-calling and ‘FU’ attitudes. Whether or not Grandma would have approved of such language, she’d be right in saying we should get down to concentrating on a complex and important issue, and doing that well.

Published on 16 April 2001 by the Sydney Morning Herald as ‘Judging the Wrongs in the Debate over a Bill of Rights’.