But this Court is not a Parliament of policy; it is a court of law. Judicial method is not concerned with the ephemeral opinions of the community …. Judicial method starts with an understanding of the existing rules; it seeks to perceive the principle that underlies them and, at an even deeper level, the values that underlie the principle. At the appellate level, analogy and experience, as well as logic, have a part to play. Judgments must be principled, reasoned and objective … And, most significantly, each step in the reasoning must be exposed for public examination and criticism. (Speech by Gerard Brennan, swearing in of Chief Justice of the High Court, 21 April, 1995)

Janet Albrechtsen’s views on judges (The Australian, September 7) are simple and straight forward and she does not mince words: ‘when they reach the lofty High Court, some judges are likely to fall for the pleasures of progressive judging where you get a wider berth to interpret law as you please’ and, ‘more than once we have seen judges and courts in this country defer to the apparent brilliance of their own progressive minds’ and (of the asylum decision), ‘it was a case of the majority … imposing their own preferred reading … contrary to clear words of the section’ and (of Gillard), ‘she will work with the Coalition to … put offshore processing beyond doubt, even to a muscular High Court intent on imposing its own policy preference about refugees.’

She also warns us against efforts to undermine judicial integrity, ‘Knowing they are headed for electoral defeat at the next election, the Gillard-Brown minority government may decide to appoint judges who will boost the activist bent of our highest court. That will … create greater potential for the Court to stymie future actions of a conservative Abbott government.’

These are strong claims by an influential journalist (Crikey ranks her in the top ten) who, as a doctor of commercial law, also has impressive academic qualifications. Her opinions must be taken seriously, however discomfiting to the judges, to those who disagree with her conservative views, and to critics who think she uses a national broadsheet, not to analyse issues to further public understanding, but to promote her own political ideology and policy preferences.

Before looking at the substance of her claims it is worth reflecting on the Prime Minister’s criticism of the Chief Justice. Apart from discourtesy and constitutional impropriety, Gillard compounded the offence and alarmed lawyers – conservative and liberal – by suggesting the High Court had missed opportunities to ‘enhance our region’s response to the evil of people smuggling’, and to ‘send the strongest possible message’ to people smugglers and to warn ‘asylum seekers not to risk their lives … and get into boats’. Gillard knows this is not the Court’s role.

In making these statements, however, she was appealing to a theory of law which sees judges as auxiliary legislators, filling in the gaps left open by the government’s statutes; where this law is unclear they should, in her opinion, use the power of their office to ‘make’ law so as to facilitate, not undermine, the government’s aims. This view of judges led the Prime Minister to vent her displeasure at the Chief Justice for his refusal to co-operate.

Gillard spoke under great stress and with little reflection, aware that Labor’s electoral prospects and ambitions would suffer from failure to resolve the refugee issue, and with her own position as leader prone to media speculation and loss of public support. Albrechtsen spoke with deliberation and with what reads like a token of courtesy – she concedes, puzzlingly, that French CJ and the other majority judges were nevertheless ‘entitled’ to find as they did.

But she also complains that they failed in their duty to apply the law – that they had made a ‘political decision’ rather than applying ‘the clear words of the section’. She implies the Court did this knowingly because it was bent on ‘imposing its own policy preference about refugees’. There is a problem of coherence here – how can they be ‘entitled’ to play politics and also not apply the law? Is she really saying they have a right to make decisions they know are wrong in law?

Despite this remark her charge is a grave one and we need to see what, if any, substance it has. What is both clear and relevant is that Albrechtsen believes decisions of this kind are made by ‘interventionist’ or ‘activist’ judges even when the law on the matter is clear and settled. Those who share her views often call the latter ‘black letter law’ – the law found in black ink in leading textbooks, authoritative past decisions, and in the clear words of statutes and regulations.

The first problem with this thesis is that this is not the law which takes up the time of the appellate courts, and least of all the High Court. Lawyers come to court because they disagree over what the law requires or allows. Even when opposing lawyers think the law is clear and settled, each thinks it is clear and settled in favour of his client. Black letter law merits the title because it is demonstrably the law – you only have to look at the cases or textbooks, or read the sections of the Act. Black letter law is by definition non-controversial law – it does not trouble the courts.

It is precisely because the right legal answer is so often not demonstrable that courts are needed to adjudicate. They must, as Brennan CJ explained, judge which interpretation of the disputed law is more consistent with legal principles which underlie the law as a whole; in doing so they will read these principles in light of the values which best explain their role and importance. His speech has value for aspiring lawyers and especially for students of legal theory, and I cite one more passage,

‘The second promise is to “do right to all manner of people according to law without fear or favour, affection or ill-will”…. the oath or affirmation is taken by every judge. It is rich in meaning. It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be. It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scales of justice. When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with the law. That is the way in which right is done without fear or favour, affection or ill-will.’

Back to Albrechtsen’s thesis: the first problem then, is her idea that correct legal answers are transparently correct, such that experienced lawyers will, if they are honest and intelligent and not trying to shape the law to suit their interests or preferences, agree on the right answer. Why she holds this cheerful view is unclear, but it has very little to do with the real world of legal controversy.

The second problem is her claim that, in the elevated realm of the High Court, ‘you get a wider berth to interpret law as you please’. What on earth does this mean? Is she saying that because these judges have the last word on the subject and their opinion will be conclusive, they can therefore ignore the rules and principles of the law and simply do what they like?

This is a remarkable claim. It is akin to saying that an AFL umpire, because he must interpret rules of fair play, and because his interpretation will be conclusive for that game, has a ‘wider berth’ to interpret rules as he pleases; if he pleases he can rule in favour of a losing team to make the game more thrilling, or in favour of a team he likes. It is an accusation one might expect to find in unsigned comments, not in opinions by public intellectuals.

Given Albrechtsen herself thinks there are right – or best – answers to controversial legal issues (she must believe this in order to condemn ‘activist’ judges for ignoring them) why does she think the ultimate appellate courts are not bound by the rules and principles which make up the body of the law and which, because they contain these answers, obligate lesser courts in the hierarchy?

Why does she suppose our most distinguished judges, who spend demanding lives – the workload is enormous – coping with volumes of material and difficult issues of principle, and who swear to uphold the rights of all citizens according to these standards, can give up this task and rule for one party if it will advance some social policy or political goal they favour?
Is it possible this is the only reason she can imagine to explain why some of the best legal minds in the nation, when conscientiously interpreting unclear law, might reach conclusions different from her own?

These are questions for which Albrechtsen offers no answers.

Some of the best essays on the role of judges, and which do discuss these matters, appear in the pages of the New York Review of Books, usually when appointments are being considered to the US Supreme Court. Interested readers could do worse than to consider the competing approaches and the theories of law used to support them, including a theory of ‘legal realism’ widely thought to underlie the views expressed by this energetic High Court critic.