Judicial Decision

JUDICIAL DECISION-MAKING AND SOCIAL JUSTICE I INTRODUCTION The judiciary’s collective reputation for impartiality and independence is vital in maintaining the perceived legitimacy of judges’ decisions. According to Sir Owen Dixon, this necessitates judges to accept that they should exercise their power via the techniques of legal reasoning.

[1] Despite the general consensus on the importance of judicial independence, particularly from executive interference, there has been increasing criticism aimed at the extent to which judges consider issues relating to social justice in the decision-making process. In the words of the UN, Social justice is about equality and fairness between human beings… We advance social justice when we remove barriers that people face because of gender, age, race, ethnicity, religion, culture or disability.

[2] This essay argues that although legalism may lead to social injustice, the High Court should not supersede its constitutional mandate by treating the Constitution as an instrument for promoting social justice. Although the Court can refer to and provide advice for other action to be taken to break down barriers to fairness, such considerations should not influence its ultimate decision. On the other hand, the High Court does, and should, have the ability to develop the common law to reflect social justice and change. II DIXONIAN LEGALISM AND THE HIGH COURT Dixon contended that resolving federal disputes by committing to the spirit of legalism is crucial in maintaining public confidence in the judiciary’s ability to ensure that the rule of law’s underlying values of certainty and predictability are preserved.

[3] This emphasis on the consistent and strict application of legal concepts is characterized by the western legal tradition.

The western idea of law as an autonomous discipline has illustrated that, despite the cultural forces that shape and dictate the content of the law, legal reasoning and decision-making are sufficient without supplement from other disciplines and societal ideologies.

[4] Conversely, a rigid adherence to legalism could risk serious social injustice. This is because such an approach entails judges to undertake legal reasoning without any evaluation of the implications on social issues and community necessities. Although the Justices of the Court profess to operate in a political and social vacuum, it can also be argued that their legal arguments are invariably premised on judicial biases and presuppositions. Consequently, anterior injustices and obsolete principles may be perpetuated by the conservatism of the Court. Some may opine that judges should deliberately account for issues relating to social justice to offset the Court’s reputation for excessive legalism, but the value of the High Court lies in its appearance of independence.

[5] While it is undeniable that the judiciary retains some law-making power, expressly digressing from legality and making illegitimate decisions to promote popular political views or the principles of social justice would place the judiciary in the realm of the Parliament and create an overly-politicized court system. However, the Court is not prohibited from referencing community values and societal changes, and the underlying values and overall purpose of Constitutional provisions, where appropriate.

When the text and structure of the Constitution is not compelling, cautious references and acknowledgements of non-legal sources do not necessarily denote the manifestation of excessive judicial discretion or activism. It is dubious that every legal problem that appears before the Court can be solved by mere logical extrapolation and application of legal rules and principles. The presence of some facet of activism is fairly inevitable in any judicial system: the real concern is the extent of such activism, and its prominence within the apposite legal construct. A The ‘Constitutional guardian’ As a ‘Constitutional guardian’,

[6] the High Court has played a crucial stabilizing role.

Responsibility rests with the Court to uphold the rule of law and safeguard individual liberties by acting as a check on the government’s parameters of justifiable interference. The potential disinclination of ministers to respect traditions of representative and responsible government, and the possible convergence between the ideological leanings of major parties makes it pertinent that the Court sustains its avowal of apolitical decision-making. This does not mean that the Justices should arrogate to themselves the role of self-conscious advocates of social justice. Where it is intolerable for other branches of government to impinge on judicial power, it is equally objectionable for the judiciary to usurp legislative power for the sole purpose of advancing social justice.

This degree of judicial activism would catalyse a constitutional problem by striking at the root of the separation of powers. An environment in which the Court is observed to disrespect the separation of powers doctrine will only promote an analogous disrespect in the other tiers of government. Therefore, the Court should not interpret the governmental powers that are conferred by the Constitution with the intention of achieving what it perceives to be the most socially desirable outcome. In Commonwealth v Australian Capital Territory,

[7] the Court concluded that the Commonwealth possessed the power to legislate with respect to marriage equality under section 51(xxi) of the Constitution.

[8] Accordingly, it invalidated the Marriage Equality (Same-Sex) Act 2013 (ACT).

[9] Nullifying the ACT Act may be viewed as another instance of excessive legalism and a signal of an ostensible attenuation of Australia’s progress towards eradicating the barriers that homosexuals face. However, declaring the Act valid could perpetuate the idea that states and territories could breach other aspects of the Constitution and effectively destabilize the balance of power across the levels of government. Given the High Court’s role of maintaining constitutional integrity, such negative repercussions would catalyse the loss of the Court’s power base – the public’s confidence. Nonetheless, the Court’s unanimous interpretation of section 51(xxi)[10] verified the Parliament’s potential to enact future laws in recognition of marriage equality, which would imprint a greater sense of stability than a collection of piecemeal state and territory laws. In this sense, the Court referenced social issues and included advice that could advance marriage equality in the future, but any sympathy for the cause did not influence its judgment. The Court should interpret the Constitution, especially when clarifying the various powers granted to the tiers of government, with careful legal reasoning to ensure that any relevant legislation passed in response to contentious issues is constitutionally valid. In guarding the Constitution, the Court must prudently give meaning to the words within the Constitution. The centrality of law in western societies necessitates judges to continually look afresh at the provisions contained within the existing laws and allow the Constitution to develop in line with its own logic and established precepts.[11] The few explicitly rights-oriented provisions and implied freedoms in the Constitution have allowed the Court to develop the law and defend some aspects of social justice.

When the Court can decipher additional individual rights within the Constitution, and where these implied freedoms can be distinguished as critical concomitants to Australia’s system of government, the Court should expose these implications. A series of cases, including Australian Capital Television Pty Ltd v Commonwealth,[12] have established that Australians’ right to converse freely with one another and with their elected representatives about public and political affairs is implied by the Constitution. While there may be criticism about the meagre sum of implied rights that the Court has enforced, it has fittingly approached such interpretations with care and restraint. In these cases, the judges take into account the individual freedoms that can be discerned from the text and structure of the Constitution. Furthermore, these freedoms are considered in terms of their imperativeness to the operation of the government. The Court has not arbitrarily interpolated rights into the Constitution’s text and has not exhibited instances of excessive activism.

Consequently, these cases should not be viewed as an opportunity for the Court to extend its exercise of power by attempting to elicit and enforce other prospective rights. III SOCIAL CHANGE AND SOCIAL JUSTICE The High Court has been understandably reluctant to encroach upon areas of rights protection that were traditionally not justiciable.[13] While the western legal tradition classifies law as the major instigator of social change, the judiciary should respond to change. When community values develop, it is often due to an increased awareness of social injustices. The centrality of law in western countries, and its coercive and educative power,[14] means that society expects judges to re-evaluate entrenched principles to help extirpate outdated beliefs. A When is it appropriate? When it comes to the Constitution, it can and should be amended only through the rigorous democratic and federal formula declared by section 128. Some may believe that the Justices of the Court have the democratic legitimacy to amend the Constitution to reflect social change. In principle, the Court’s decisions reflect the prerogatives of the people since the executive appoints the Court bench on the basis of the ‘responsible government’ doctrine, where the executive is presumably accountable to the Parliament, which is in turn accountable to the people. However, accountability to the people is not reflective of the judiciary’s competence in evaluating and responding to social trends. Instead, the High Court has accepted that it can overrule its own decisions when Parliament is not in a position to change the law in constitutional cases, and such a condition has not arisen in other cases.[15] It has been recognized that the Constitution has been read in different ways according to the perceptions of different times,[16] but there has been a lack of transparency as to the extent to which Justices should be constrained by precedent.

Unlike other areas of the law where the legislature may take action to reverse the Court’s holding, reversing constitutional decisions is a complex procedure and not always accomplishable. The practical considerations of a referendum and the meagre number of referendums held over the course of Australian history (only 8 out of the 44 proposed were carried)[17] mean that constitutional change is neither lightly undertaken nor likely to be successful. It can be inferred that the current level of social change has not warranted alterations of the Constitution. As a result, the High Court should not extend its scope of constitutional interpretation by accounting for what it perceives to be social justice, and only change the meaning of words when previous interpretations are blatantly anachronistic. Notably, the legitimacy of the extent to which the Court accounts for social justice and change differs radically with respect to the context in which it occurs.

The ability of the Court to amend the Constitution is cardinally dissimilar from its capacity to develop the common law in reflection of social change. This is simply because the foundation of the common law is predicated on judicial decisions, and the courts are entitled to continue to mould and develop such laws gradually, cautiously, and with due respect to precedent. The High Court’s recognition and initial consolidation of native title stemmed from an adaptation of existing common law principles in response to contemporary conceptions of justice and international human rights standards. By proclaiming that the common law recognised and protected indigenous rights and interests in Mabo v Queensland [No 2],[18] the decision abolished some of the ingrained barriers that perpetuated the discriminatory and unjust treatment of Aborigines. However, the principle of native title was defined by the Court to be a tenuous and constricted right, susceptible to extinguishment by an expansive range of prior Crown grants and reservations of land.[19] After the recognition of a new principle of law, there will invariably be a refining and further development of the principle. Despite the intention of mitigating social injustice, the Court failed to develop the principle of native title to ‘live up to the promise of Mabo’.[20] This is because the common law is linked to the past, whereas justice necessitates an inventive, sympathetic, revitalization of the law.

Reconciling the new principle with established doctrines, and sustaining the principles of social justice that motivated the development of the law, is a difficult process. Moreover, the Parliament’s power to reject any developments in the common law through passing opposing Acts and amendments is a cogent encumbrance. Despite the shortcomings in the progression of indigenous rights, the Court’s development of the common law was a ‘great leap’ towards the recognition, acceptance and protection of Aboriginal land rights. The prospect of native title existing across vast areas of Australia became a reality for many indigenous people, and the development reflected the increased national and global awareness of the need to eradicate social injustices. If the Court had not taken account of the injustices faced by Aborigines, it would have potentially stimulated public suggestions that the Court subscribed to archaic, racist ideologies. Moreover, if the Court had not digressed from the 200 year-old common law rule that did not protect a spouse from marital rape in R v L (1991) 174 CLR 379, the Court would have been criticized for being acutely ignorant of the ‘woman-centred perspective on rape’[21] that had emerged in public and legal consciousness. When it comes to the common law, the Court should attempt to reflect changes in community values and perspectives irrespective of whether they believe the development would be effective, or substandard, in the long term. B Lower Courts When judges deviate from precedent, they carry the risk of creating uncertainty, inefficiency and the appearance of injustice.[22] For any judicial branch below the High Court, a failure to follow precedent with proper justification would cause the decision to be overturned and the judge to be reprimanded on appeal.

Lower courts cannot overrule binding precedents simply on the basis that they are inconsistent with contemporary notions of justice. Consciously disregarding an unpopular precedent, or ‘underruling’,[23] would incite substantial uncertainty about the state of the law. Instead, a judge of a lower court can criticize the precedent that is considered to be unjust and outdated, encourage an appeal and allow the higher court to overrule the precedent. The judges and magistrates of lower courts are able to exercise judicial discretion to advance a personal notion of fairness in accordance with the principles and rules of law. Furthermore, the existence of the Family Court, the Industrial Relations Court and appeal system attempt to achieve fairness and remove legal barriers.

Although judges can take into consideration the disadvantages of those relying on legal aid and interpreters, their decisions usually only influence the litigants of the case and do not significantly mitigate social injustices on a broad scale. As a result, the High Court plays an imperative role in removing the entrenched precedents that bind all the lower courts. IV CONCLUSION The High Court has a central role in guarding the Constitution and upholding the separation of powers. While Dixon’s strict legalism is not always achievable, reference to non-legal sources do not detract from the legality of the Court’s decisions. However, the Court should not use or interpret the Constitution with the intention of ameliorating issues relating to social justice. Instead, accounting for social issues and international standards should be done in common law cases. Despite the fact that there will always be injustices and outcries of unfairness, Australia’s judiciary has, for the most part, developed and interpreted the law carefully and legitimately. BIBLIOGRAPHY A Articles/Books/Reports Cook, Catriona, Robin Creyke, Robert Geddes and David Hamer, Laying Down the Law (LexisNexis Butterworths, 8th ed, 2012) Dixon, Owen, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Judge S Woinarski (ed), Jesting Pilate and other Papers and Addresses (Lawbook, 1965) 245, 247 Handsley, Elizabeth, ‘”The judicial whisper goes around”: Appointment of judicial Officers in Australia’ (2006) in Kate Malleson and Peter H. Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (University of Toronto Press, 2006) 129 Jowell, Jeffrey and Dawn Oliver, The Changing Constitution (Oxford University Press, 7th ed, 2011) Parkinson, Peter, Tradition and Change in Australian Law (Law Book Co of Australia, 4th ed, 2010) Tehan, Maureen, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 570 Williams, Daryl, ‘Judicial Independence and the High Court’ (1998) 27 University of Western Australia Law Review 140 B Cases Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577 Mabo v Queensland [No 2] (1992) 175 CLR 1 The Commonwealth v Australian Capital Territory [2013] HCA 55 C Other Australian Electoral Commission, Referendum dates and results (24 October 2012) <https://www.aec.gov.au/elections/referendums/Referendum_Dates_and_Results.htm Brennan, Gerard, ‘Judicial Independence’ (Speech delivered at the Australian Judicial Conference, the Australian National University, 2 November 1996) <https://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_ajc.htm; United Nations, World Day of Social Justice (20 February 2014) <https://www.un.org/en/events/socialjusticeday/> 1

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[1] Sir Owen Dixon, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Judge S Woinarski (ed), Jesting Pilate and other Papers and Addresses (Lawbook, 1965) 245, 247.

[2] United Nations, World Day of Social Justice (20 February 2014) <https://www.un.org/en/events/socialjusticeday/>.

[3] Sir Jeffrey Jowell and Dawn Oliver, The Changing Constitution (Oxford University Press, 7th ed, 2011) 11.

[4] Peter Parkinson, Tradition and Change in Australian Law (Law Book Co of Australia, 4th ed, 2010) 24.

[5] Sir Gerard Brennan, ‘Judicial Independence’ (Speech delivered at the Australian Judicial Conference, the Australian National University, 2 November 1996) <https://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_ajc.htm>

[6] Daryl Williams, ‘Judicial Independence and the High Court’ (1998) 27 University of Western Australia Law Review 140, 152.

[7] [2013] HCA 55.

[8] Ibid 56.

[9] Ibid 61. [10] Ibid 10. [11] Parkinson, above n 4. [12] (1992) 108 ALR 577. [13] Gerard, above n 5. [14]Parkinson, above n 4, 26. [15] Catriona Cook et al, Laying Down the Law (LexisNexis Butterworths, 8th ed, 2012) 146. [16] Cook et al, above n 15, 150. [17] Australian Electoral Commission, Referendum dates and results (24 October 2012) <https://www.aec.gov.au/elections/referendums/Referendum_Dates_and_Results.htm>. [18](1992) 175 CLR 1. [19] Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 570. [20] Ibid 571. [21] Elizabeth Handsley, ‘”The judicial whisper goes around”: Appointment of judicial Officers in Australia’ (2006) in Kate Malleson and Peter H. Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (University of Toronto Press, 2006) 129. [22]Cook et al, above n 15, 211. [23] Ibid 209.

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