[S]ome judges are committed activists who believe those who criticise their approach are "vociferous red-neck people"...The story is based on research carried out by political scientist Jason L. Pierce for his PhD, which was ultimately published as Inside the Mason Court Revolution: The High Court of Australia Transformed. [The full PhD thesis is available online.] The central theme is summarised in this review:
"Perhaps it's illegitimate to pull the rabbit out of the hat, but it's nice to see it emerging," said one High Court judge...
While some judges see judicial activism as their duty, others are still seething over what they see as the High Court's illegitimate law-making under former chief justice Anthony Mason.
"Madness let loose," is how one judge described the Mason court. The Mason court, which recognised Aboriginal native title and implied constitutional rights, was also denounced for cooking up "some pretty funny menus".
Its decisions on implied rights were "silly", "sneaky" and "the worst single feature of Australian constitutional law in the last 20 years", the judge said.
The court's Mabo decision on native title received particular criticism. Another judge said the Mason court's development of implied constitutional rights had created a "looseleaf constitution". "We've said bugger the constitution. We'll tell you what should be there. It's very distressing," one judge said.
Orthodoxy expects certainty in judicial decisions that narrowly apply the law to the resolution of disputes between private parties. Politics and the law occupy separate realms where judges serve as caretakers guarding the boundaries between the two. Without a bill of rights and given the federal structure of Australia, orthodoxy presumed the High Court’s responsibility dealt almost exclusively with the division of powers between the states and federal government. Legal reasoning was declaratory in nature, closely bound by the text of the law, and governed by precedent. Evolution in legal rules occurred interstitially according to common law tradition as existing rules were applied to novel situations. The “politicized” role turned orthodoxy on its head. Uncertainty was acknowledged. New rationales for decisions besides text and precedent were put forward. A “public model” of High Court litigation encouraging a wider range of participants emerged. The High Court stretched its jurisprudential horizons to include public policy questions of justice and personal rights that parliament had failed to address. MABO and implied rights naturally followed. And so did political challenges and eventually the High Court’s retreat from this politicized role.I'll be reading this with interest, bearing in mind possible parallels with what Keane CJ described as Ireland's own "tide of judicial lawmaking", albeit one that has "receded somewhat in recent years". And, I confess, I'll also be enjoying the candour of the Australian judges:
Q: What impact did the retirement of Justices Brennan, Dawson, and Toohey have on the High Court?
Judge: A slight swing to the right. Toohey was a terrible communist. Brennan wasn’t much better.
Q: What do you mean by ‘communist’?
Judge: [Toohey] is always dripping with sympathy for the underdog, whether it was deserved or not. He always thought that the employee should win against the employers. He was a ghastly mistake.
Q: What impact will the retirement of Chief Justice Brennan and appointment of Chief Justice Gleeson have, in your mind?
Judge: Well, we’ll get back to law and not sociology. Gleeson’s a very good lawyer and since he hasn’t got a heart, there’s no danger of him being sort of over muffling to anyone. He’ll just apply strict rules. Bang, bang, bang. That’s it. [p.73 of the Thesis PDF]