The three 'R's of recent Australian judicial activism: Roach, Rowe and (no) 'riginalism.

• Jurisdiction: Australia
• Author: Allan, James
• Date: 01 August 2012

[In this article the author argues that two recent High Court of Australia decisions, Roach v Electoral Commissioner and Rowe v Electoral Commissioner, are prime examples of judicial activism, of judges employing interpretive techniques that have the effect of significantly inflating their own discretionary powers at the point of application of the Constitution. Indeed, he argues that these interpretive techniques would almost certainly be rejected by voters pondering a more from parliamentary sovereignty to a written constitution were these techniques, and their effects, spelt out in advance. He considers those two decisions in detail and then concludes by noting several unpalatable implications of the thinking underlying them.]

CONTENTS I Introduction II Context III Roach and Animal Farm Judging: Four Years Good, Two Years Bad IV Rowe and Rowing Gently Down This Stream V Concluding Remarks on Judicial Activism I INTRODUCTION

Judicial activism is a hotly contested notion or concept, (1) one that usually carries with it pejorative connotations. At its heart, the label 'judicial activism' suggests some degree of illegitimacy. The core charge is that the judges have exceeded their proper role in a democracy. They have moved from the many grey areas, or penumbras of doubt, (2) involved in interpreting the laid-down statures and constitutional provisions (where disagreement and diverging answers are only to be expected from individual judges who bring differing values, concerns, emphases and intellectual abilities to the task) into something that no longer looks like interpretation. It looks more like legislating from the bench, otherwise described as point-of-application judges imposing their own first-order moral and political preferences, judgements and sentiments on all the rest of us.

The gist of the judicial activism complaint, then, is a complaint about what the unelected top judges are doing--that they are gainsaying or second-guessing or circumscribing or redirecting the elected branches of government without any legitimate warrant or grounds for doing so.

In that above sense the judicial activism charge is a serious one to make. Notice, however, that it does not necessarily connote bad faith. The gainsaying, second-guessing and circumscribing can be done not only to achieve what are believed to be good substantive outcomes (which can motivate even bad faith judicial activism), but also in the belief the constitutional materials and jurisdiction's rules of recognition (3) do allow such actions. The latter belief, in other words, can be honestly held by the judges. It is just that disinterested observers may disagree and think such a belief far-fetched in the particular circumstances. Still, that does not amount to bad faith on the part of the judge.

Accordingly, at least in my sense, judicial activism need not be an exercise in bad faith interpreting. This complaint or gravamen is broad enough also to encompass implausible and unconvincing interpretation, where the legal materials do not support the substantive outcomes (however worthy) that judges believe are possible.

Of course the line between interpretation that constitutes judicial activism and interpretation that does not will be drawn in different places by different people. Almost everyone might recognise the possibility of judicial activism in the abstract, but in any particular case where that charge or allegation is made, you are likely to find smart, well-informed, nice people simply disagreeing about the merits of that charge. I accept that reality up-front.

Nevertheless, in the rest of this paper I will seek to convince the reader that two recent High Court of Australia decisions are prime examples of judicial activism in my above sense; they are rather blatant examples of illegitimate judging techniques or interpretive approaches taken by the majority Justices. The fact the outcomes that are achieved in both instances are likely to be seen by many (me included) as on balance a good call in cost-benefit terms (if one were in the position of legislating on a blank slate) does not in some magical, ineffable way make the illegitimate interpretive approaches of the majority judges thereby acceptable or legitimate. This is still judicial activism at its worst, or so I will argue in what follows.

The two cases I will be discussing are Roach v Electoral Commissioner ('Roach') (4) and Rowe v Electoral Commissioner ('Rowe'). (5) The first is a prisoner voting rights case. The second has to do with the entitlement to vote as well, but this time more circuitously: the issue in the case was when the electoral rolls (listing all eligible voters) were to be closed and hence prevent any further applications for enrolment. In both Roach and Rowe, the social policy lines that had been drawn by the democratically elected legislature were invalidated by the top judges of the land. The governing statutory provisions were struck down by majority judgments of the High Court of Australia--four of six of the sitting Justices decided to do so in Roach, while in Rowe it was a 4:3 decision.

Both majority decisions, in my view, rest on the most implausible and farfetched understanding of the meaning of the Australian Constitution, one that significantly liberates the point-of-application interpreter when it comes to gainsaying, indeed overruling, the elected legislature. This Roach and Rowe understanding of how to give meaning to Australia's written Constitution allows its judicial exponents to claim--at least implicitly--that legislation can be (and was) constitutionally valid at the time of Federation and the coming into force of that Constitution (and indeed that the legislation remained so up to 1983 and beyond) but that that same legislation is today no longer constitutionally valid.

On top of that, this same Roach and Rowe approach to constitutional interpretation--to giving meaning to that text--also carries with it the clear and undeniable suggestion that if Parliament keeps its hands off and leaves alone old legislation governing, say, when prisoners can vote or when electoral rolls must close, then that old legislation will be and will remain valid. But where a Parliament in the recent past happens to have legislated to liberalise those rules then no Parliament of even more recent vintage will be able to revert back to the older rules. Not ever. The Constitution, or so these Roach and Rowe judges claim, forbids it.

Just think about that for a moment and whether these claims are best characterised as the results of persuasive interpretations of an Australian constitutional text that disavows any US-style bill of rights or, alternatively, as the results of point-of-application majority judges simply reading their own moral and political preferences, sentiments and druthers into that text to achieve outcomes they happen to think are better than the ones chosen by the legislature. And while you are pondering which characterisation is likely to be more persuasive, remember that no relevant part of the text of that Constitution--the one the majority judges say used to allow the legislature to do something but now does not--has changed. The relevant parts of the text being interpreted are exactly as they were. The words have not changed. Only the scope for judges to invalidate democratically enacted legislation has changed. That has grown and expanded, quite considerably in fact. Or so a bare majority of Australia's top judges tells us.

The rest of this paper comes in four Parts. Part II will be brief and will provide some context. Parts III and IV will then take the reader through the two cases, Roach and Rowe. The final Part of this paper will return to the topic of judicial activism and why both Roach and Rowe are prime examples of this sin.

II CONTEXT

The Roach and Rowe cases cannot be understood in isolation. They need to be seen as the latest incarnation of the so-called implied rights series of cases (6) dating back from the early 1990s. I have written about those implied rights cases elsewhere (7) and the very fast-and-loose interpretive approach the majority Justices relied upon in those cases. In brief, these decisions were very much premised on a 'living tree' (8) or 'living constitution' interpretive approach.

For our purposes in this paper there is no need to re-canvass all that in detail. It will suffice simply to remind the reader of the reasoning of Mason CJ in one of the first, and most important, of those implied rights cases, namely Australian Capital Television Pty Ltd v Commonwealth ('ACTV'). (9) Writing with the majority, the Chief Justice arrived at the conclusion that the Constitution--one that explicitly and deliberately left out any US-style bill of rights or First Amendment free speech entitlements and protections, opting, after much debate and discussion amongst the founders, to leave such social policy balancing exercises to the elected Parliament--implicitly created an implied freedom of political communication. His reasoning followed these steps:

1 The Constitution provides that elected Members and Senators of Parliament are to be 'directly chosen by the people'; (10)

2 hence those elected are representatives of the people;

3 hence they are accountable to the people;

4 thus they have a responsibility to take account of the views of the people;

5 therefore the judges interpreting this Constitution must be able to, and hereby do, assert that there is an implied freedom of political communication in relation to public affairs and political discussion. (11)

The practical effect of 'discovering' this implied right to freedom of political communication (one that presumably had lain dormant for nine decades on the majority's reasoning) was that the High Court Justices then could move on to strike down or invalidate parts of a statute putting limits on election broadcasting spending.

As this will be a common refrain of mine...