Judicial Activism And Its Threat To Liberty

This week, Prime Minister Tony Abbott announced the long-promised Royal Commission into union corruption. Its terms of reference—initially confined to a small number of unions and designed primarily to shine a light on the activities of the Australian Workers Union in the 1990s, its officials and legal representation—have been broadened to include any “registered organization” under the 2009 Fair Work Act, and any legal entity associated with them.

The Prime Minister also announced the appointment of retired High Court Justice Dyson Heydon as Chief Commissioner. Given the vastness of evidence that will need to be collected, the length of time to locate witnesses and receive testimony and to report back to parliament, I think there is a question mark over whether Justice Heydon, at his age, will be able to lead the Royal Commission through to its final report.

But I was greatly heartened to read an essay of Heydon’s, originally given as a speech at a function of Quadrant last October and published in its journal. I became aware of it today when Michael Smith published it here on his website—many thanks mate for alerting us all to this. Michael is currently experiencing some woes with Google (a spurious malware alert appears when you navigate to his site on Chrome; use IE, Navigator or Firefox instead), so I have taken the liberty of reproducing the essay here on this site. It is one of the best cases I have ever read made against the insidious tide of judicial activism; one by one, Heydon examines every apologia ever devised for it, before ruthlessly and relentlessly grinding it into dust. The history and examples Justice Heydon cites are primarily derived from Australian High Court case law, but are based on principles of jurisprudence equally applicable wherever English Common law serves as the parent body of law.

At twelve thousand words, it’s a substantial bit of bedtime reading; I wouldn’t recommend it, though, unless I had read it through myself and can guarantee the effort is worthwhile. Heydon probably didn’t intend it (although he alluded to the paradox towards the end), but he has reinforced my personal view that a judiciary that, by its activism, arrogates to itself a law-making rôle parallel to the legislature, thereby violates the separation of powers, which can only be rectified by subjecting itself, just as the legislature does, to the judgement of the people.

This entry was posted in Uncategorized. Bookmark the permalink.

5 Responses to Judicial Activism And Its Threat To Liberty

  1. Kitler says:

    Well as I’m too lazy to read that many words before bedtime, you could advocate that all judges at high levels be restricted to term limits of say ten years and mandatory retirement at age 70. Or they could be elected but that leads to judges seeking to seem tough on crime and the prison populations sky rockets and becomes a drain on the public purse.

    To be honest we are at the end of this cycle of civilization and activist judges like the rest of the parasites will not survive the coming turmoils and then we can begin again with a clean slate and after lots of heads on pikes as a warning to others of the folly of putting your head so far up the place where the sun doesn’t shine you can see your own tonsils. To use a political metaphor.

    Well, there is a compulsory retirement age – Heydon retired from the High Court last year, the day before his 70th birthday. It would be nice to introduce a minimum age of appointment: sixty would give you the maximum term you seek. Though your Supreme Court appointees tend to be as young as possible, apparently so as to frustrate as many future administrations as possible – Oz

  2. Kitler says:

    Well just throwing out the usual ideas out there, I noticed from a young age that judges over 60 can be quite senile or quite frankly malicious or insane with a few noted exceptions. Then again there are quite a few young judges on a high level that also meet that criteria. So the next time they set an axe wielding homicidal maniac murderer free because his mum was mean to him or he he has powerful friends the judge should be made to live with them.

    As for our SCOTUS appointees term limits would solve our problem and also having our three letter agencies tell us in advance what they can be blackmailed with before they are appointed, mind you finding a judge here who hasn’t broken any major laws here might be tough.

  3. Kitler says:

    JD has just quit the DT for pastures unknown as yet,end of an era.

  4. farmerbraun says:

    I reckon that with the defeat of hysterical AGW alarmism having been accomplished, we’ll all have to sit around , and await the arrival of hysterical XXX alarmism.

    What’s it going to be?

    Peak Socialism – Oz


  5. izen says:

    Shorter Hayden.
    Gentlemen judges who interpreted the law to support the status quo were okay, but when they interpreted it in favour of non-white, non-male, non-business and non-gentlemen it is judicial activism.

    I suspect that Heydon would approve of this pushback against the evils of judicial activism?


    Heydon, not Hayden. You’ve obviously read a different essay – Oz

Comments are closed.