- Judges who overstep the mark
- By Janet Albrechtsen
- The Australian
- 26/11/2003 Make a Comment
- Contributed by: admin ( 75 articles in 2003 )
One activist judge is tolerable, even kind of amusing. Too many means trouble.
Over the past week at the University of Exeter, High Court Justice Michael Kirby has delivered a series of tongue-lashings to his critics, those "bully boys (and girls)" who believe activist judges undermine the democratic deal and dare to say so.
Kirby's comic timing is impeccable because, in NSW, the dismal results of too much activism were recently exposed. Indeed, so bad is the problem in the NSW Industrial Relations Commission that the state's highest court is finally rebelling against the outlandish efforts of interventionist judges.
Unfortunately, Kirby is too busy delivering brickbats to his critics to notice what is happening inside some of the nation's courtrooms. He told his English audience that critics of judicial activism "are contemptuous of fundamental human rights and jealous of any source of power apart from their own". They "hate it when judges express the law in terms of legal principles to protect minorities, the weak and the vulnerable".
Contemptuous of fundamental human rights? No. Just suspicious of judges who are impatient with the parliamentary process and grasp at this hazy notion of "human rights" to dictate a result that sounds good and makes them feel good but bears little relation to the law.
Jealous of any source of power apart from their own? You bet. Judges who usurp the role of parliament (and therefore the people) have forgotten their job description. Of course, judges have to make choices when they interpret vague laws. Undoubtedly, the common law legitimately moves in small, incremental ways. The problem is that when you give them an inch, activist judges take a long, meandering Kirbyesque mile. They travel down roads they have no business being on, using as their road map their own personal drafting manual.
For example, inside Kirby's Guide to Law-Making you will probably find a long chapter on "human rights" followed by an even fatter chapter on international law, because, as Kirby said in an interview in April: "(International law) will make us more creative." And then there is the chapter on protecting "minorities, the weak and the vulnerable" where phrases like "community values" and "social justice" will surely outnumber any references to the rule of law.
As one judge on a bench of seven, Kirby's activist forays make an amusing read, but are essentially irrelevant. However, when too many judges start running their own race, the rule of law is left behind. The NSW Industrial Relations Commission is a perfect example of how fine-sounding sentiment about protecting the weak and the vulnerable is so easily abused by unaccountable, unelected activist judges.
In NSW, unfair dismissal laws stop unscrupulous employers who try to pay employees below award rates by using independent contractor arrangements. Think garage sweatshops and overworked, underpaid migrant workers. That is weak and vulnerable and parliament, to its credit, tried to do something about it.
Enter a few interventionist IRC judges and you soon had senior executives claiming unfair dismissal, using the same laws to secure $14 million option packages. Kirby's weak and vulnerable victim -- the licence to judicial law-making -- has been extended by IRC judges to corporate executives who are neither weak nor vulnerable.
An expert in employment law, Sydney lawyer John Colvin, has seen the IRC become the rich boys' legal playground. He has written about the "lucky executives in NSW" who can apply to the IRC to "set aside negotiated contracts of employment even when they provide for lengthy notice periods, termination payouts, share schemes and bonuses".
An employee will always call a termination "unfair" but why do IRC judges so often agree? Because they can. "Fairness," says Colvin, "is a bit like beauty, which can reside in the eye of the beholder." NSW politicians made it easy for them by drafting vague laws, leading the judges out into the wilderness and abandoning them, as former High Court judge Hayden Starke said once.
The IRC frolics show how uncertain laws translate into expensive litigation. Employers will pay a premium to avoid those costs. That jacks up the costs of employment and that, in turn, acts as a disincentive to business to set up headquarters in NSW. Judicial activism is not harmless. The medical indemnity crisis should have taught us that.
The IRC has claimed jurisdiction over all sorts of commercial contracts far removed from the original intention of parliament. Fortunately, the state's highest court has had enough. Overturning a decision of the IRC, the president of the NSW Court of Appeal, Keith Mason, recently delivered a scathing critique of the IRC: "Like the Chief Justice, I am profoundly troubled by the march of the commission's jurisdiction into the heartland of commercial contracts."
On it went. "The matter is also troubling," said Mason, "because it must frankly be stated that the members of the commission do not generally have the experience of the judges of the Equity Division in such matters and because ... the commission lacks the ongoing assistance of appellate and other supervision by the Court of Appeal or the High Court in such matters." Translation: An interventionist court out of control and out of its depth. That about sums up what's wrong with activist judges.
What would Kirby make of this latest criticism from judges of the NSW Court of Appeal? Just a bunch of bully boys?
Over the past week at the University of Exeter, High Court Justice Michael Kirby has delivered a series of tongue-lashings to his critics, those "bully boys (and girls)" who believe activist judges undermine the democratic deal and dare to say so.
Kirby's comic timing is impeccable because, in NSW, the dismal results of too much activism were recently exposed. Indeed, so bad is the problem in the NSW Industrial Relations Commission that the state's highest court is finally rebelling against the outlandish efforts of interventionist judges.
Unfortunately, Kirby is too busy delivering brickbats to his critics to notice what is happening inside some of the nation's courtrooms. He told his English audience that critics of judicial activism "are contemptuous of fundamental human rights and jealous of any source of power apart from their own". They "hate it when judges express the law in terms of legal principles to protect minorities, the weak and the vulnerable".
Contemptuous of fundamental human rights? No. Just suspicious of judges who are impatient with the parliamentary process and grasp at this hazy notion of "human rights" to dictate a result that sounds good and makes them feel good but bears little relation to the law.
Jealous of any source of power apart from their own? You bet. Judges who usurp the role of parliament (and therefore the people) have forgotten their job description. Of course, judges have to make choices when they interpret vague laws. Undoubtedly, the common law legitimately moves in small, incremental ways. The problem is that when you give them an inch, activist judges take a long, meandering Kirbyesque mile. They travel down roads they have no business being on, using as their road map their own personal drafting manual.
For example, inside Kirby's Guide to Law-Making you will probably find a long chapter on "human rights" followed by an even fatter chapter on international law, because, as Kirby said in an interview in April: "(International law) will make us more creative." And then there is the chapter on protecting "minorities, the weak and the vulnerable" where phrases like "community values" and "social justice" will surely outnumber any references to the rule of law.
As one judge on a bench of seven, Kirby's activist forays make an amusing read, but are essentially irrelevant. However, when too many judges start running their own race, the rule of law is left behind. The NSW Industrial Relations Commission is a perfect example of how fine-sounding sentiment about protecting the weak and the vulnerable is so easily abused by unaccountable, unelected activist judges.
In NSW, unfair dismissal laws stop unscrupulous employers who try to pay employees below award rates by using independent contractor arrangements. Think garage sweatshops and overworked, underpaid migrant workers. That is weak and vulnerable and parliament, to its credit, tried to do something about it.
Enter a few interventionist IRC judges and you soon had senior executives claiming unfair dismissal, using the same laws to secure $14 million option packages. Kirby's weak and vulnerable victim -- the licence to judicial law-making -- has been extended by IRC judges to corporate executives who are neither weak nor vulnerable.
An expert in employment law, Sydney lawyer John Colvin, has seen the IRC become the rich boys' legal playground. He has written about the "lucky executives in NSW" who can apply to the IRC to "set aside negotiated contracts of employment even when they provide for lengthy notice periods, termination payouts, share schemes and bonuses".
An employee will always call a termination "unfair" but why do IRC judges so often agree? Because they can. "Fairness," says Colvin, "is a bit like beauty, which can reside in the eye of the beholder." NSW politicians made it easy for them by drafting vague laws, leading the judges out into the wilderness and abandoning them, as former High Court judge Hayden Starke said once.
The IRC frolics show how uncertain laws translate into expensive litigation. Employers will pay a premium to avoid those costs. That jacks up the costs of employment and that, in turn, acts as a disincentive to business to set up headquarters in NSW. Judicial activism is not harmless. The medical indemnity crisis should have taught us that.
The IRC has claimed jurisdiction over all sorts of commercial contracts far removed from the original intention of parliament. Fortunately, the state's highest court has had enough. Overturning a decision of the IRC, the president of the NSW Court of Appeal, Keith Mason, recently delivered a scathing critique of the IRC: "Like the Chief Justice, I am profoundly troubled by the march of the commission's jurisdiction into the heartland of commercial contracts."
On it went. "The matter is also troubling," said Mason, "because it must frankly be stated that the members of the commission do not generally have the experience of the judges of the Equity Division in such matters and because ... the commission lacks the ongoing assistance of appellate and other supervision by the Court of Appeal or the High Court in such matters." Translation: An interventionist court out of control and out of its depth. That about sums up what's wrong with activist judges.
What would Kirby make of this latest criticism from judges of the NSW Court of Appeal? Just a bunch of bully boys?
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