Ausbuy

Democracy And Legal Activism

November 19th, 2007

The essence of democracy is that laws are passed by elected officials. People obey these laws through fear of punishment, but also because they, through their elected officials, feel part of the process. In a democracy the rulers govern with the consent of the people. This consent does not cover every decision and rulers often have to show leadership by taking decisions which are unpopular at that time. If the decision does not prove to be correct then, at a later date, the public can punish their leaders by voting them out of office. The judiciary is, in Australia, non-elected individuals paid by the state to enforce the law and interpret the complexities which arise out of this. It has long been accepted that the judgments are based on the laws that were passed and documented, not on the intentions expressed by the politicians in parliament at that time. However, in recent years we have seen the development of international law which is largely derived from international agreements. The courts have decided that these take precedence over our existing laws. This represents a departure from the democratic situation referred to above, as the public to not accept ownership of these new legal obligations. The above is an example of how decisions of the judiciary can overturn the will of the people and their elected representatives. The judicial system is also built around precedence, with judgments being binding in junior courts.

The most common example of legal activism is reading implied rights and obligations into a situation before arriving at a verdict. These reflect the personal views and beliefs of the judge. This was described by Judge Lionel Murphy when he talked about the “golden rule” where the judge listened to his own conscience. Unfortunately, one man’s conscience is another man’s political beliefs.

Whatever the opinion of our elected leaders to whom we have given a mandate, they cannot overturn decisions and can only change the law by passing specific legislation through both houses of parliament, which is not easy. An example where a ruling was modified was the Native Title Law passed by the ALP.

Judges, once appointed, serve until retirement age and are almost impossible to remove. This quite rightly frees them from political pressure, but unfortunately, breeds an arrogance where they forget what their role should be. Ausbuy sees this role as:

• Interpret the laws passed by the appropriate elected officials. This can at times be difficult as modern life becomes more complicated, and situations which could not be foreseen, arise.
• Take into account decisions of higher courts.
• Arrive at a verdict based on the law or the precedents established by higher courts.
• Where no law or precedent applies come to a decision based on equity.
• Apply penalties, where appropriate, based on the guidelines established by elected officials.

It is not the role of non-elected officials to regard themselves as being empowered to use their personal value system in arriving at verdicts. They do not seem to realise that by trying to overturn the wishes of the elected officials, they are in fact entering the political arena without a mandate from the electorate. This does not conform with generally accepted democratic principles and certainly does not produce an outcome where people feel ownership of the laws that bind them. The whole concept of a reforming High Court protecting the rights of the people is nonsense. If a judge wants to engage in politics he should stand for parliament.

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1. I agree that the legal activism of judges is a problem that impacts both politically and socially upon our community.

   The question is how do we change this?
   Your 5 points make sense, but can they be mandated via legislation? Yes/No?

   There should also the right for every citizen to have his/her case heard before a jury. My understanding is that juries are used in only a small % of trials, and that when a jury requested in all other cases, the accused is told “No - tough luck”. That’s no democracy.

   Comment by Apple — January 8, 2008 @ 6:01 pm

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