Subject: Fundamentals of the Common Law (LAWS70217)

REVIEW OF SECONDARY SOURCE: ‘JUDICIAL ACTIVISM: POWER WITHOUT

RESPONSIBILITY? NO, APPROPRIATE ACTIVISM CONFORMING TO DUTY’ 1

I INTRODUCTION

This article, "Judicial Activity: Power Without Responsibility? No, Appropriate

Activism Conforming to Duty” was written by Michael Kirby, former Judge of the High

Court of Australia. Not only honoured as the longest-serving judge in Australia, 2 but

he has also received numerous honours as educator, including honorary degree

Doctor from various universities in Australia.3

This article was originally a speech delivered in a discussion held at the Melbourne

University Law School where judges, legal academics, and journalists discussed

issues of 'judicial activism'.4 Thus, this article is intended for intellectuals who have

prior understanding of the topic at hand.

It is understood, from the article, that to answer the challenges of social

transformation, judges are furnished with the activism power in their judicial duties. 5

However, 'judicial activism' was transformed into a phrase used by traditionalists to

criticize the judge's actions in developing the law. 6 To this extent, the author

maintains that such labelling, mistakenly used as activism is an inseparable part of

1
Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism
Conforming to Duty’ (2006), 30 Melbourne University Law Review 576.
2
‘The Hon Michael Kirby AC CMG’, The Hon Michael Kirby AC CMG (Web Page)
<https://www.michaelkirby.com.au/content/hon-michael-kirby-ac-cmg-0>.
3
‘Biography: Hon. Justice Michael Kirby AC CMG’, High Court Of Australia (Web Page, August 2006)
<https://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyjbio.html>.
4
Kirby (n 1).
5
Ibid 578.
6
Ibid.
the judges in responding to challenges. 7 This review will try to explore whether the

author successfully explained his argument adequately.

II SUMMARY

This article points out the justification of ‘judicial activism’, as the use of appropriate

forms of responsible power by judges. 8 The author supports his arguments by

presenting several landmark decisions that have succeeded in evolving the law in

response to pertinent challenges, most notably, the Australian Communist Party v

Commonwealth9 and Mabo v Queensland [No 2].10 Additionally, the author stressed

how crucial judicial activism is in statutory interpretation by delivering the

development of high court decisions to the meaning of 'jury' in s 80 of the Australian

Constitution.11 Finally, the author highlights the dangers of a strict textualism

approach in interpreting the law and the vanity of the media in bullying judges who

only do their duty.12

III CRITICAL EVALUATION

From the beginning, the author persuasively builds the argument, attempting to

convince the reader to agree with his stance, by explaining the root of judicial

activism, the belief that law cannot stand still. 13 He strengthened this point by

claiming that the development of the law has become a system and precedent, is set

by the wisdom and creativity of judges. 14 Hence, these points have compelling

effects of supporting the author's bias.

7
Ibid.
8
Ibid.
9
Australian Communist Party v Commonwealth (1951) 83 CLR 1.
10
Mabo v Queensland [No 2] (1992) 175 CLR 1.
11
Kirby (n 1) 585.
12
Ibid 582, 590.
13
Ibid 577.
14
Ibid.
While the introduction is clearly unveiling the problem by clarifying that judicial

activism has become synonymous with denunciation, often by conservative minded

individuals,15 the author overlooks one crucial element, namely a definitive

explanation of judicial activism. As a result, the reader is forced to construct the

definition implicitly from the information provided. The lack of definition is probably

because the author understands the article is for discussion event attended by

intellectuals who certainly have comprehensive knowledge about judicial activism.

The author points out a massive case that has happened in Australian history, the

Australian Communist Party v Commonwealth.16 Sir Owen Dixon who is famous in

Australia for his defence of ‘strict legalism’, choosing not to be a standstill advocate

by becoming a leading opinion in rejecting the Communist Party Dissolution Act

1950.17

Not only is this case substantial evidence in flourishing his argument, but this

example is also developed coherently with the problem mentioned in the

introduction. However, this instance is a bit disconcerting because of what Dixon J,

and his colleagues do in the majority is routine business, adhering to the principle of

legality.18 The question that arises is whether the simple legal reasoning based on

the principle of the rule of law could be considered judicial activism? The most

probable answer is the success of Dixon J, and his colleagues in the majority in

construing the core tenets of the rule of law, set down half a century prior, in

15
Ibid 578.
16
Australian Communist Party v Commonwealth (n 9).
17
Kirby (n 1) 579.
18
Ibid 580.
response to problems amid the enormous pressure, 19 may be considered as judicial

activism.

Moreover, the author uses the analogy of the anti-Semitism errors in interpreting a

particular passage in the bible for dealing with the textual mindset interpretation as a

counter-argument.20 Although this analogy effectively illustrates how dangerous the

textual mindset is in construing the law, this example can be seen as too sensitive,

as the religious context of is irrelevant to what is being faced by Australia judges.

Indeed, lessons to be learned from the holocaust are universal; however, it would be

better if the author supported his argument by focusing on judges experiences in

Australia, which have been well explained afterwards (the development of statutory

interpretation in the meaning of the Jury in s 80 of the Australian Constitution).21

Along with the Mabo v Queensland [No 2],22 these examples are quite sufficient to

illustrate the strong points of the author’s arguments in refuting the belief that the

judges need to stick to the ‘original intention’ of text in construing the law without

using context as a consideration.

Towards the conclusion, It is safe to conclude that the aim of this article is about the

justification of judicial activism. This is reasonable as many other sources consider

judicial activism as judicial misconduct where judges put their personal values and

19
‘William Shrubb’, The Communist Party case: 65 years on (Web Page, 9 March 2016)
<https://www.ruleoflaw.org.au/65th-communist-party-case/>.
20
Ibid 582–4.
21
Ibid 585–6.
22
Mabo v Queensland (n 10).
agenda when determining the law by deviating the precedent or legislative or

constitutional interpretation.23

IV CONCLUSION

While this article convincingly conveys the underlying message, as the title suggests,

certain areas may be upgraded to improve the article. Adding an explicit definition of

judicial activism, using non-sensitive analogy and balancing the proportion

weaknesses may enhance the quality of this article as a legal writing. Nevertheless,

the message of judicial activism is a responsible power that is inseparable from the

duty of judges and is captured well by the article.

23
Encyclopaedic Australian Legal Dictionary (online at 10 April 2020) ‘judicial activism’; JD Heydon,
‘Judicial Activism and the Death of the Rule of Law’ (2004), 23 Australian Bar Review 110, 113.
 BIBLIOGRAPHY

A Articles

Heydon, JD, ‘Judicial Activism and the Death of the Rule of Law’ (2004), 23

Australian Bar Review 110

Kirby, Michael, ‘Judicial Activism: Power Without Responsibility? No, Appropriate

Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576X

B Cases

Australian Communist Party v Commonwealth (1951) 83 CLR 1

Mabo v Queensland [No 2] (1992) 175 CLR 1

C Others

‘Biography: Hon Justice Michael Kirby AC CMG’, High Court of Australia (Web Page,

August 2006) <https://www.hcourt.gov.au/assets/publications/speeches/former-

justices/kirbyj/kirbyjbio.html>

Encyclopaedic Australian Legal Dictionary (online at 10 April 2020)

‘The Hon Michael Kirby AC CMG’ The Hon Michael Kirby AC CMG (Web Page)

<https://www.michaelkirby.com.au/content/hon-michael-kirby-ac-cmg-0>.

Shrubb, William, ‘The Communist Party case: 65 years on’, Australian Magna Carta

Institute (Web Page, 9 March 2016) <https://www.ruleoflaw.org.au/65th-communist-

party-case/>