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.