This column has occasionally locked horns with the socio-legal commentator at The Catholic Boys Daily, Doc Albrechtsen, but the time has come to acknowledge her foresight and perspicacity, on display in her recent column Keep Judges in their Legal Lane and out of Lawmaking.
Inspired by a paper apparently given to the Piddington Society in Perth by Chief Justice Stephen Gageler in mid-August, Planet Janet waxed lyrical.
She must have obtained a copy of the paper, which eludes your correspondent’s pathetic web searching skills.
Such media coverage as I’ve found has Gags talking about judges “sticking to their knitting”. In one excerpt he discusses judicial activism as a phenomenon in some foreign jurisdictions (no names, no pack drill), but not an Australian issue.
Fortunately for us, The Planet can read the runes, and knows that this is code for “the evil activist judges are coming to get us”.
This Sturm und Drang in the press was brought on by a retired Vic County Court judge, Mark Dean KC, opining that a bit of judicial activism was no bad thing.
Dean apparently relied on Lord Mansfield in Somerset’s case (1772) 98 ER 499 delegitimising slavery in Britain, and St Gerard of Brennan in Mabo as his examples.
The Planet knows a trojan stalking horse when she sees one. Judges, maddened by the example of Mansfield and Brennan, need their rabies shots now, before any more damage is inflicted on the social fabric.
Her well-worn thesis rests on the perfection of the democratic model, under which an elected legislature passes laws which are then embraced by all and sundry.
The law concocted by judges, on the other hand, lacks any such legitimacy and is subject to the antipathy evinced in American anti-abortion protests and opposition to Roe v Wade (1973), finally superseded, presumably by anti-activist judges acting activistically, in Dobbs v Jackson Women’s Health Organization (2022).
In cardboard cut-out primary school civics, the “democratic model” is a winner: mechanistic, stable and simple to understand. And totally devoid of the nuanced reality of bringing law to a complex multi-polar society.
Mansfield (hardly a left-wing ideologue) brought down Somerset 35 years before the British Parliament managed to abolish the slave trade, and 62 years before that august body could bring itself to abolish slavery throughout the Empire.
Meanwhile, Napoleon had organised the reintroduction of slavery in French colonial outposts (after its abolition in revolutionary fervour), to garner favour with the Planter class.
That was background to Best J (later promoted to CJ) writing in Forbes v Cochrane (1824) 107 ER 450 at 458-9:
“If, indeed, there had been any express law, commanding us to recognise those rights [i.e. to be a slaveowner], we might then have been called upon to consider the propriety of that which has been said by the great commentator [Blackstone] upon the laws of the country, ‘That if any human law should allow or injoin us to commit an offence against the divine law, we are bound to transgress that human law’.
It is a matter of pride to me to recollect that, whilst economists and politicians were recommending to the Legislature the protection of this traffic, and senators were framing statutes for its promotion, and declaring it a benefit to the country, the Judges of the land, above the age in which they lived, standing upon the high ground of natural right, and disdaining to bend to the lower doctrine of expediency, declared that slavery was inconsistent with the genius of the English constitution, and that human beings could not be the subject matter of property. As a lawyer I speak of that early determination [Somerset’s case], when a different doctrine was prevailing in the senate, with a considerable degree of professional pride.”
That was the last gasp of proposed mutiny by judges in the face of clear statutory provisions: the Great Reform Act of 1832 and the process of actually democratising British and colonial societies was fast approaching.
But neither Somerset nor Mabo involved a court defying a statutory provision. They dealt with accepted “societal norms”: that Africans could be seized and made into merchandisable commodities; and that the Australian continent and Tasmania were uninhabited and hence terra nullius in 1788.
The Planetary theory is that such issues must be left to legislatures to sort out:
“Even in those rare cases where there’s genuinely no pre-existing law, judges should resist barging in to invent their own, particularly where their proposed change is controversial or political in nature.”
The cardboard cut-out model collapses at this point. Where a current societal model provides for one group to prosper at the expense of another, the favoured group will always fight to retain its privileged position.
If they are a majority (see white Australia v the four percent indigenous of the nation’s population) or are politically powerful (see white slave owners), the legislative process is unlikely to deliver a timely solution.
Already we know the time-line on the sequelae to Somerset, or the complete failure of the Australian political system to quash the grotesquery of terra nullius.
What the mechanically minded Planet is incapable of grasping is that legislation and the judicial function, at their best, work together in a very sophisticated and ever evolving dance.
If only Janet would go and read Mark Leeming’s Theories and Principles Underlying the Development of the Common Law: the Statutory Elephant in the Room (2013) 36(3) UNSW Law Journal 1002.
The common law largely develops from the process of interpreting and applying statutes, and this process has been going on for over 700 years.
Life on a Planetary world may be sampled in the decision of the UK Supremes, written by la Presidente, Baroness Hale, in R (Black) v Secretary of State for Justice [2018] AC 215.
Black was a prisoner suffering from inter alia hypertension and coronary heart disease, conditions exacerbated by second-hand cigarette smoke.
He sought judicial review of government decisions which allowed cigarette smoking to continue in Crown-owned prisons, contrary to provisions of the Health Act 2006 (UK) which banned smoking in public places (and the reports leading to the legislation made clear that prisons fell in that category).
Baroness Hale led a unanimous Court agreeing with the government’s contention that it was not bound by the banning provisions: the medieval chestnut of presumed Crown immunity from the operation of statutes was treated as a “rule”.
Black’s counsel, Philip Havers QC, attempting to displace this piece of arcana, came with the best of pedigrees: son of a Lord Chancellor, nephew of Lady Butler-Sloss (first woman on the Court of Appeal), and brother of the actor Nigel Havers.
He did his best, even arguing the Australian High Court’s downsizing of the immunity from a “rule” to a very bare “presumption”, dependant on inferred legislative intent, as expressed in Bropho (1990).
The Baroness didn’t even note the colonial case’s existence. Black was sent back to chokey where he’s no doubt long been polished off (he was a lifer) by the second-hand smoke from which the legislation was patently designed to protect him.
An ultimate court was happy to deny him that protection in the process of enforcing an ancient judge made nostrum of governmental immunity, which will never be overturned by British or Australian parliaments (with the exception of the uncrowned republic of the ACT: see Legislation Act 2001 s.121).
Would Janet feel conflicted by the decision of the SA Court of Appeal in Ryal v The King [2025] SASCA 47 where the common law defence of honest and reasonable mistake was jettisoned re the defendant’s state of mind as to the age of his sex-messaging partner, by reference to other state of mind provisions existing in the Criminal Law Consolidation Act 1935.
No clear words of despatch for the common law defence, merely inference from other sections dealing with states of mind that would make the defence redundant. No reference was made to Lord Reid in Sweet v Parsley [1970] AC 132 where his Lordship said:
“It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word “knowingly,” is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence.”
In a jurisdiction lacking a Bill of Rights (which the Murdoch media characterises as evil), common law rights are all that the community have to defend themselves against the might of the State.
The SA CA took its stance from the allowance in CTM in the High Court in 2008 that the defence of honest and reasonable mistake might be extinguished by “necessary presumption”, and that, the CA said, followed from there being no work for the defence to do where the Act provided some references to a knowing state of mind. Hardly a rebuttal of Lord Reid’s stance.
Black was a murderer and Ryle a sex offender: courts will treat them to chilling applications of common law theory which may be classified variously as inert or activist.
Judges, being only human (so it’s rumoured) watch over their shoulders for media reaction. Black gets no public sympathy, and the CA in Ryle is doing the parliament’s work for it.
The Planet might tut tut over such intervention, but the public and politicians alike are delighted to have the issue swept under the rug. As for the niceties of the legal issues at stake, legislatures couldn’t care less. So much for the cardboard cut-out model of civics, and the pick-and-choose quality of opposition to judicial activism.
[By-the-by, when Pat O’Shane sued The Sydney Morning Herald for defamation over an article by Albrechtsen, one of the defences pleaded was Lange qualified privilege – allegedly one of the notorious instances of judicial activism by Their Highnesses. The columnist doesn’t appear to have objected to that defence being pleaded to defend her article. More here.]