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WD Scott and Co Pty Ltd the Judicial Role 341 ---------,-------SEMINARSE~nNl\R ON 01DIRECTIONS RECTIONS IN PUDLIC POLICY WEN1'WOg:ri~ .'!!'C;TEL,_'!!'C;TEL, SYDNEY, FRIDAY, 25 JUNE 1982 THE JUDICIAI.JillLL ADMINISTRATIyEADMINISTRATIVE REFORM,REFORM. THE CQU[(Ulli1lCOUlill.JlliD. GOING TOO FAR? The Bon. Mr. Justice M. D. Kirby Chairman of the Australian Law Reform Commission June 1982 . -~-~"------~-~"-----------.._------------- W.D. SCOTT AND CO., PTY LIMITED MANAGEMENT CONSULTANTS SEMINAR ON DIRECTIONS IN PUBLIC POLICY WENTWORTH HOTEL, SYDNEY, FRIDAY, 25 JUNE 1982 THE JUDICIAL ROLE, ADMINISTRATIVEADMlNISTRATIVE REFORM, THE COURTS AND GOING TOO FAR? The Hon Mr Justice M.D. Kirby Chairman of the Australian Law Reform Commission CHRISTIAN VIRTUES, THE JUDICIARY AND RETIREMENT This is a time of change in the jUdiciary.judiciary. Sir NinjanNinian Stephen, a High Court Judge,JUdge, has become Governor-General Designate. Sir Keith Aickin, a Judge of the High Court of Australia for only six years died last week. Two vacancies remain to be filled on our highest court. Judges are retiring early. A New Zealand ju'dge, Mr Justice Speight retired last month after 15 years on the bench of the SU[H'eme Court, now called the High Court of New Zealand. He is aged 60 years but he had a potential of 12 further years ahead on him in th? judicial harness. In New Zealand judges retire at 72. In Australia (save for Victoria) they retire, generaUy, at 70. Mr Justice Speight· explained '1 just feel I have had enough'. Those of you who read the pape['"spapers earlier in the week will have seen that jUdgesjudges emerged once again as number one in the Australian social status of occupations, according to an opinion poll. They were followed by Cabinet Ministers and barristers. Also making the u[)per class were managers of large enterprises. I am afraid that manogers of les;er organisations have to make do with the middle class, in the pUblicpublic's1s esteem. Mr Justice Speight, however) had other jdeas about the judicial role. he said on his retirement: 'Nowadays,INowadays, going on the bench does not change your life greatiy. Like everyone else a judge these days spends his weekeoos watching footy or painting the house', - 2 - In Australia too we have seen a few earlycarly judicial retirements apart from Sir Ninian Stephen. Mr Justice Connor recently retired from the Federal Court of Australia and the Supreme Court of the A.C.T. He retired at 60 - although in his case he enjoyed an appointment for life. However, on his return to Melbourne he was called back to service by the new Cain Government to hendhead up annn inquiry into casinos and the reform of the law of gBmb:.:ng in Victoria. That pr~ject should keep him busy. The retirement of antipodean judges looks startlingly premature when measured against the announcement of late May 1982 that Lord Denning, Master of the Rolls in England was quitting jUdicialjudicial office at the age of 83. Lord Denning had boasted that he knew every Christian virtue save retirement. The circumstances of his announced retirement were typically controversial. A further book, his third since his 80th birthday, titled 'What Next in the Law' was withdrawn by the ~ublishers after two black jurors in a Bristol riot tdsl threatened to sue the judge for libel. In the book, Lord Denning had suggested that juries should no longer be. selected at random because some racial minorities in Britain had 'different morals' that could lead them to defying the law Bnd being more lil<ely to acquit the accused. Such was the outcry, he announced he was going. The Society of Black Lawyers iri London acknowledged that Lord Denning had. act~d honourably in withdrawing andBnd that his was the retirement 'of a legal giant'. According to Crisl?inCris!?in Hull, legal correspondent in the Canberra Times (l(I June 1982), 'Christian morals Bnd seeing re? at the sight of unions were Denning's weal< l?oint~!?oint~ as a jUdge'.judge'. His views on these topics Werewere so strong, according to Hull, t.hat tl1is jUdgmentsjudgments sometimes verged on evang~lism, e-a· trait in the judiciary neither expected nor welcomed by the community'. Yet Hull acknowledges that Lord Denning was magnificent in his use of the English language, frank in his identification of public !?olicyl?olicy reaSOns for developing the law and determined to press on with law reform from the bencl;tbenc1;t because of inadequate attention to reform by succeeding governments. Hull again: .Lord Denning!sDenning's !?owerl?ower will live on in the law reports. The cases he has decided will affect not only future litigants, but, because many actions of people and companies ·are influenced by the state of the law, they will affect all the travellers on the Ciapham bus, whether they know it or not. Before the announcement of Lord Denning's retirement, the Governor General of Australia Sir Zelman Cowen delivered an elegant tribute to him at the Lord Denning Society in the University of Queensland on 1 April 1982. No name in the contemporary common law would be bett~r known than that of Lord Denning. DistingUishedDistinguished English lawyer and fellow ju~e, Lord SearScar man, wrote in January 1977, that the past 2S years were not to be forgotten ... They -3- were (he(he said)said) thethe age of legallegal aid, lawlaw reformreform and Lord Denning. So farfar as Denning isis concerned, therethere would be general agreement, even on thethe part of thosethose who disagree with much or somesome part of what he seessees as thethe rolerole of thethe JUdge. On his 80th birthday in January 1979, the Lord' Chancellor, Lord Hailsham, who certainly does not accept all of Lot'dLO('d DenningDenningls1s views, wrote that he had a fearless, original mind revolving around new ways of accelerating the development of the law, pondering its fault~,fault~J seeking to remedy its injustices and anomalies and devising fresh and novel solutions to age old problems. GOING TOO FAR? Lord Denning is, of course, a jUdicialjudicial activist. He has said time and again that he sees no great problem in jUdgesjudges entering frankly into the field of public policy in their judgments. He sees no reason for waiting for law reform commissions to rei?ort or for Parliament to actonact on reports .or other suggestions for change. As far as he is concerned, the creative function of the common law judge is as alive today as ever it was. He never flinched from stretching old precedents and developing new legal concepts and remedies. Other jUdgesjudges might bllUlkbaulk at the not.ion of judge overtly and frankly maldng new laws (and not merely applying laws long established). But not Lord Denning. He was un troubled by the democratic theory that Parliament makes laws and that judges merely faithfully implement t~em. Nowadays, few people believe this fairy tale. But Lord Denning stretched to the limit the extent to which the judge should be creative and inventive. As a stimulus to more cautious souls and as a burr under tlle saddle of the common law of England, he fulfilled a unique and important catalytic function - with implications in our own country. I suspect that he will be sorely missed. In another recent speech, the Governor-General, Sir Zeman Cowen raised an important andllnd different different question about the judicial role - and one peculiarly relevant to )udges in Australia. This time it was in the context of the novel changes in administrative law introduced in the Federal sphere in Australia by succeeding governments over the past decade. Some of you .may,may not know of these changes. They deserve wider [)ublicity than they have received, includinginclUding amongst leaders of commerce. A mosaic of new administrative reforms is being put together in order to provide new and more effective means of redress for the citizen against the growing, anonymous bureaucracy. The chief pieces of this mosaic so far put in place by Federal legislation include: The creation of the Commonwealth Ombudsman (Professor Jack Richardson) with power to investigate bad ndministrationadministration,1 negotiate changes and to report to the Prime Minister and Parliament where administrative wrongdoing affecting a citizen is not ·righted. -4- The creation of an Administrative Review Council in Canberra, of which I am n member, to develop review of administrative action in the Federal public sector, to suggest rationalisation and irnp,'ovement of Federal review mechanisms and tribun8ls andnnd to push forward the processes of reform. 1'11CT11C passage of an important reforming Act the Administrative Decisions (Judicial Review) Act 1977 which came into force in October 1980. 1'1:i51'ryi5 statute, which is increasingly being used to call public officials of the Commonwealth to account, confers on persons affected by discretionary decisions of Com monwealth administrators a right to reason for their decisions. It also simplifies,simplifies, expedites and centralises the system of judicial review by which administrative discretions can be tested against the letter of the law and principles of faimessfaiI'Tless and natural justice. Th~ passage of the Freedom of Information Act 1981 represents an important advance towards greater opennes,<:.;opennes,<;; of Federal o.~ministration. It reverses the prima facie position that has obtained until now, namely that documents in the possession of government are not available to members of the public. Now documents will be prima facie available. To be withheld, they must fall within certain classes of exemption and may be subjected to independent review scrutiny. Finally, there is the creation of an important new Federal tribunal - the Administrative Appeals Tribunal. This Tribunal was established by an Act passed by ttle Whitlam Government.
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