HIGH COURT: by Dr Ian Spry QCNews Weekly
A further improvement in the High Court
, February 8, 2003
Every significant change in the High Court is seen in the recent replacement of Justice Mary Gaudron by Justice Dyson Heydon, of the New South Wales Court of Appeal.
Justice Gaudron was a political appointment - she was chosen not on merit (for she was by far the weakest member of the Court), but (a) because she was a woman and (b) because she had Labor Party political support.
Justice Dyson Heydon, by contrast, is a legal scholar with an international reputation, having been a noted professor at Sydney University, and an eminent member of the New South Wales Court of Appeal.
Although some lobby groups advocated Justice Gaudron's replacement by another woman, they were unable to identify any female judge or senior counsel with sufficient legal abilities and learning.
The importance of the appointment of Justice Heydon is that he is a traditional lawyer, not an activist. He will follow the salutary tradition of such judges as Sir Owen Dixon and Sir Harry Gibbs in applying the law fairly and conscientiously. He is a firm believer in the doctrine of "precedent". By this doctrine, judges apply the existing law: they do not substitute their own self-manufactured law, but leave changes in the law to the Parliament.
Coincidentally, a short time before his elevation to the High Court, Justice Heydon delivered an address entitled, "Judicial Activism and the Death of the Rule of Law".
This address contains one of the most careful and persuasive discussions of the evils of judicial activism. It criticises the Mabo case, inter alia, in which a previous, activist High Court had made up new law by creating "native title" when previously no native title existed.
The Mabo case is of particular interest in view of the extraordinary magnitude of the change that it effected. Irresponsible judges - that is, judges not responsible to an electorate or to any democratic institution - gave force to their own personal prejudices (which prejudices were deplored by many members of the community), so as to confer new rights on Aboriginals which may have an eventual value of billions of dollars.
The appointment of Justice Heydon leaves Justice Michael Kirby as the sole activist judge amongst the seven members of the Court. Justice Kirby is a homosexual activist, whose public proselytising of homosexual relationships renders him a particularly inappropriate member. It may be expected that his reputation and his influence will continue to decline.
The restoration of the standing of the High Court is a particular achievement of the Howard Government. Although that Court still falls short of the Dixon Court of fifty years ago, it is no longer to be seen as an activist institution, as in the days of such controversial justices as Sir Anthony Mason and Lionel Murphy.
This will disappoint activists of the left, but others will be well pleased.
Is it too much to hope for that if a Crean Government, or some other Labor Government, is elected, that Government will not repeat the errors of previous Labor Governments, which have a record of appointing activists who are often of poor quality?